1972 DOS 07

STATE OF NEW YORK

DEPARTMENT OF STATE

OFFICE OF ADMINISTRATIVE HEARINGS

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In the Matter of the Application of

STEVEN BROADNAX

For a License as a Watch, Guard, or Patrol Agency

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            The above noted matter came on for hearing before the undersigned, Patrice M. Le Melle, on September 13, 2007, at the office of the Department of State located at 123 William Street, New York, New York.

            The applicant was present and was represented by George N. Donas, Esq. 28, Mills Lane, Easton, Connecticut, 06612.

            The Division of Licensing Services (hereinafter "DLS") was represented by Supervising License Investigator William F. Schmitz.

ISSUE

            The issue before the tribunal is whether the applicant should be denied a license as a Watch, Guard, or Patrol Agency because of his criminal convictions which indicate a lack of good character and trustworthiness.

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FINDINGS OF FACT

            1) By application dated July 9. 2006, the applicant applied for a license as a Watch, Guard, or Patrol Agency, answering "yes" to question number 2: "Have you ever been convicted in this state or elsewhere of a crime or offense that is a misdemeanor or felony?" (State's Ex. 4).

            2) The applicant has the following criminal history (State’s Ex. 5):

                        - November 9, 1989, was convicted on his guilty plea to a charge of Attempted Reckless Endangerment in the 1^st degree, Penal Law §110-120.25, a class E felony; and sentenced to six months imprisonment and five years probation. Due to a violation of his probation, the applicant was resentenced to one year imprisonment on July 31, 1991;

                        - August 22, 1991, was convicted of Criminal Mischief: Intent to Damage Property, Penal Law §145.00, a class A misdemeanor, and was sentenced to “time served”;

                        - November 16, 2000, was convicted upon a guilty plea to Coercion: Threat of Physical Injury, Penal Law §135.60, a class A misdemeanor, and Criminal Possession of a Weapon in the 4^th degree, Penal Law §265.01, a class A misdemeanor, and sentenced to a conditional discharge with an unspecified order of protection,.

            3) At the time of the commission of the felony, the applicant was approximately 26 years old. He was granted a Certificate of Relief From Disabilities for this felony conviction on July 22, 1992. (State's Ex. 4, Appl. Ex. C). The applicant explained the facts and circumstances underlying each conviction, including the felony conviction, in letters to DLS and during his testimony at the hearing. He explained that the felony conviction arose when he made an illegal u-turn and was followed by a vehicle that had plain clothes detectives attempting to pull him over. Unsure of whether these were in fact plain clothes detectives, the applicant continued to drive and in an attempt to avoid a pedestrian, swerved and hit a parked car causing property damage. The 1991 charge involved a domestic dispute whereby the applicant believed the mother of his child was with another man in their home. He began banging and kicking the door when the girlfriend called the police. The November 16, 2000 misdemeanor conviction involved a domestic dispute with the same woman. When he denied the police permission to search his car, he was arrested and his car was towed. He was charged with Criminal Possession of a Weapon. The applicant now has custody of their child who was involved in this dispute.

            4) Prior to the convictions, the applicant was employed as a security guard with Pinkerton Security from February 11, 1983 to June 23, 1985. Subsequent to the convictions, the applicant held various construction jobs and, since 2001, has operated his own construction company. He would like to obtain his license as a watch, guard or patrol agency in order to supplement his income to support his family, control the security issues at the construction sites where his

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company does business and to provide security services to other construction businesses. On May 23, 2007, the City of New York’s Department of Small Business Services granted his company listing in the New York City M/WBE Directory of Certified Businesses after its rigorous review. As of January 4, 2007, his company was prequalified to do work for the New York city School Construction Authority which is no small feat. He is also is licensed as a home improvement contractor and has a home improvement salespersons license from the New York City Department of Consumer Affairs (Appl.’s Ex. A-C, H).

            5) The applicant submitted a character reference letter from the accountant of his company attesting to the applicant being current with all of his tax filings, in addition to letters and testimony evincing the applicant’s position as a family man currently living with his wife and five children. His attorney also provided his personal testimony in favor of the applicant, noting the change in his demeanor over the years, noting that he has known the applicant through contractors who are clients of his and who are interested in having the applicant provide security services for their various construction projects, also noting the attention and care he gives to his children.

            6) By letter dated January 5, 2007, the applicant was advised by the complainant that it proposed to deny his application because of a disqualifying offense (withdrawn at the hearing) and because of the facts and circumstances attendant to the criminal charges which demonstrated a lack of good character and trustworthiness, and he was told he could request a hearing on the matter which he did by letter dated February 9, 2007. DLS, then, referred the matter to this tribunal on April 17, 2007. Notice of hearing was served on the applicant by registered mail delivered on May 16, 2007(State's Ex. 1). The applicant requested and was granted an adjournment three times before the hearing was finally held.

OPINION

            I- As the person who requested the hearing, the burden is on the applicant to prove, by substantial evidence, that he is entitled to be licensed as a Watch, Guard, or Patrol agency. State Administrative Procedure Act (SAPA), §306(1); General Business Law (GBL) §§72 and 74. Substantial evidence is that which a reasonable mind could accept as supporting a conclusion or ultimate fact. Gray v Adduci, 73 N.Y.2d 741, 536 N.Y.S.2d 40 (1988). "The question...is whether a conclusion or ultimate fact may be extracted reasonably--probatively and logically." City of Utica Board of Water Supply v New York State Health Department, 96 A.D.2d 710, 465 N.Y.S.2d 365, 366 (1983)(citations omitted).

            II- In considering whether the license should be granted, it is necessary to consider, together with the provisions of General Business Law Article 7, the provisions of Correction Law Article 23-A. Codelia v Department of State, 29114/91, Supreme Court, NY County, 5/19/92.

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            Correction Law Article 23-A imposes an obligation on licensing agencies

"to deal equitably with ex-offenders while also protecting society's interest in assuring performance by reliable and trustworthy persons. Thus, the statute sets out a broad general rule that...public agencies cannot deny...a license to an applicant solely based on status as an ex-offender. But the statute recognizes exceptions either where there is a direct relationship between the criminal offense and the specific license...sought (Correction Law §752[1]), or where the license...would involve an unreasonable risk to persons or property (Correction Law §752[2]). If either exception applies, the employer (sic) has discretion to deny the license...." Matter of Bonacorsa, 71 N.Y.2d 605, 528 N.Y.S.2d 519, 522 (1988).

            In exercising its discretion, the agency must consider the eight factors contained in Correction Law §753[1].

"The interplay of the two exceptions and §753[1] is awkward, but to give full meaning to the provisions, as we must, it is necessary to interpret §753 differently depending on whether the agency is seeking to deny a license...pursuant to the direct relationship exception...or the unreasonable risk exception.... Undoubtedly, when the...agency relies on the unreasonable risk exception, the eight factors...should be considered and applied to determine if in fact an unreasonable risk exists.... Having considered the eight factors and determined that an unreasonable risk exists, however, the...agency need not go further and consider the same factors to determine whether the license...should be granted....§753 must also be applied to the direct relationship exception...however, a different analysis is required because 'direct relationship' is defined by §750[3], and because consideration of the factors contained in §753[1] does not contribute to determining whether a direct relationship exists. We read the direction of §753 that it be applied '(i)n making a determination pursuant to section seven hundred fifty-two' to mean that, notwithstanding the existence of a direct relationship, an agency...must consider the factors contained in §753, to determine whether...a license should, in its discretion, issue." Bonacorsa, supra, 528 N.Y.S.2d at 523.

            A direct relationship is one wherein the offense bears directly on the applicant's ability or fitness to perform one or more of the duties or responsibilities necessarily related to the license, Correction Law §750[3]. There is no statutory definition of "unreasonable risk" which "depends upon a subjective analysis of a variety of considerations relating to the nature of the license...and the prior misconduct." Bonacorsa, supra, 528 N.Y.S.2d at 522.

"A direct relationship can be found where the applicant's prior conviction was for an offense related to the industry or occupation at issue (denial of a liquor license warranted because the corporate applicant's principal had a prior conviction for fraud in interstate beer sales); (application for a license to operate a truck in garment district denied since one of the corporate applicant's principals had been previously convicted of extortion arising out of a garment truck racketeering operation), or the elements inherent in the

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nature of the criminal offense would have a direct impact on the applicant's ability to perform the duties necessarily related to the license or employment sought (application for employment as a traffic enforcement agent denied; applicant had prior convictions for, inter alia, assault in the second degree, possession of a dangerous weapon, criminal possession of stolen property, and larceny)." Marra v City of White Plains, 96 A.D.2d 865 (1983) (citations omitted).

            While the issuance of a Certificate Of Relief From Disabilities creates a presumption of rehabilitation, as explained by the Court in Bonacorsa, that presumption is only one factor to be considered along with the eight factors set forth in Correction Law §753[1] in determining whether there is an unreasonable risk or, if a determination has already been made that there is a direct relationship, in the exercise by the agency of its discretion. Hughes v Shaffer, 154 AD2d 467, 546 NYS2d 25 (1989).

"The presumption of rehabilitation which derives from...a certificate of relief from civil disabilities, has the same effect, however, whether the...agency seeks to deny the application pursuant to the direct relationship exception or the unreasonable risk exception. In neither case does the certificate establish a prima facie entitlement to the license. It creates only a presumption of rehabilitation, and although rehabilitation is an important factor to be considered by the agency...in determining whether the license...should be granted (see §753[1][g]), it is only one of the eight factors to be considered." Bonacorsa, supra, 528 NYS2d at 523.

            Further, an agency which seeks to deny an application has no obligation to rebut the presumption of rehabilitation which derives from the Certificate of Relief so long as it properly considers the other factors set forth in Correction Law §753[1]. Matter of Jose Luis Arrocha v Board of Education of the City of New York, 93 NY2d 361, 690 NYS2d 503 (1999).

            In view of the fact that a Watch, Guard, or Patrol agency employs, and supplies the services of, security guards who perform various protective services, including the protection of persons, and of the fact that as qualifying officer of such an agency the applicant would be responsible for the supervision of those guards, it is clear that there is a direct relationship between the crime of which he was convicted and the license sought. A Watch, Guard, or Patrol agency serves in a quasi-law enforcement capacity, cf. Codelia v Department of State, supra, and, therefore, any crime would, in fact, appear to be related to a license as a Watch, Guard, or Patrol agency. cf. Matter of the Application of McCurdy, 87 DOS 93.

            The direct relationship having been established, it is necessary to consider the factors set forth in Correction Law §753.

            The pertinent duties and responsibilities of a Watch, Guard, or Patrol Agency (§753[1][b]), are essentially the prevention of crime and other unlawful activity. Thus, as noted above, any criminal activity bears directly on an applicant's fitness to perform those duties and to meet those responsibilities (§753[1][c]).

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            About eight years have passed since the commission of the most recent crime (§753[1][d]), which occurred when the applicant was approximately 37 years old (§753[1][e]).

            The seriousness of the crimes is established by the fact that at least one was a felony (§753[1][f]).

            In the applicant's favor are the public policy of encouraging licensure of ex-offenders (§753[1][a]), the issuance to him of a Certificate of Relief From Disabilities (§753[2], and his post conviction employment and establishment of a construction business (§753[1][g].

            All of the above must be considered in the light of the legitimate interest of DLS in the protection of the safety and welfare of the public (§753[1][h]).

            The weighing of the factors is not a mechanical function and cannot be done by some mathematical formula. Rather, as the Court of Appeals said in Bonacorsa, it must be done through the exercise of discretion to determine whether the direct relationship between the "convictions and the license has been attenuated sufficiently." Bonacorsa, supra, 528 NYS2d at 524.

            The applicant was convicted of a felony and two misdemeanors. His testimony and the testimony of his attorney offered a satisfactory explanation for the conduct underlying the convictions. The presumption of rehabilitation arising out of the issuance to him of a Certificate of Relief From Disabilities might have been negated by his subsequent conduct in violation of Penal law resulting in two misdemeanors; however, his further subsequent conduct establishing a business, obtaining other important government licenses and certificates and supporting his family tends to support the notion that he has been rehabilitated and no longer lacks trustworthiness.

CONCLUSIONS OF LAW

            After having given due consideration to the factors set forth in Correction Law §753 and to the requirements of GBL §§72 and 74, and having weighed the rights of the applicant against the rights and interests of the general public, it is concluded both that the applicant has established that the direct relationship between his conviction and a license as a Watch, Guard, or Patrol agency has been attenuated sufficiently, and that he has the requisite good character and integrity to be licensed as a Watch, Guard, or Patrol Agency

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DETERMINATION

            WHEREFORE, IT IS HEREBY DETERMINED THAT, pursuant to General Business Law §§72, 74, and 79, the application of Steven Broadnax for a license as a Watch, Guard, or Patrol Agency is granted.

Patrice M. Le Melle Administrative Law Judge

Dated: October 22, 2007