STATE OF NEW YORK
DEPARTMENT OF STATE
OFFICE OF ADMINISTRATIVE HEARINGS
270 DOS 97
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DIVISION OF LICENSING SERVICES,
Complainant,
-against- DECISION
COMMAND SECURITY CORP.,
Private Investigator,
Respondent.
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ADMINISTRATIVE LAW TRIBUNAL
270 Broadway, New York, NY 10007
Held: August 19, 1997
Felix Neals, Supervising Administrative Law Judge
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The respondent, Command Security Corp., 331 Park Avenue South, New York, NY 10010, did not appear and was not represented at the hearing.
The complainant, the Division of Licensing Services, was represented by Laurence J. Soronen, Esq., Litigation Counsel, Department of State, 84 Holland Avenue, Albany, NY 12208.
ISSUE
The Division of Licensing Services started this action under the provisions of the General Business Law, §79, State Administrative Procedure Act, Article 3, and 19 New York Codes, Rules and Regulations, Part 400. The State alleges that the respondent lacks the requisite character, fitness, and competence required of a licensed private investigator because the respondent violated the provisions of General Business Law, Article 7-A, the Security Guard Act. The State specifically charges that in violation of General Business Law, 89-g, the respondent failed to exercise due diligence in certifying as true and correct information contained in two applications filed for registration as a security guard by one potential employee under two different names.
PROCEDURAL RECORD
The Division of Licensing Services withdrew without prejudice the complaint made against Mr. Aurobindo Mongul, also known as Laiquat Ali.
SUMMARY OF THE EVIDENCE
A. EXHIBITS. Documents admitted at the hearing, include the following:
1. Copy of the pleadings that consist of: (a) notice of hearing dated May 22, 1997, that schedules a hearing date of August 19, 1997; and (b) complaint dated May 16, 1997, which alleges (1) that Mr. Aurobindo Mongul registered as a security guard under the name Aurobindo Mongul as an employee of Command Security Corp. for the term July 10, 1995, through July 10, 1997, and registered as a security guard under the name of Laiquat Ali as an employee of Command Security Corp. for the term March 28, 1996, through the term March 28, 1998; and (2) that Command Security Corp. certified as true and correct both applications for registration.
2. United States Postal Service receipt which notes that certified mail addressed to Command Security Corp., 331 Park Avenue South, New York, NY 10010, was received on May 28, 1997.
3. United States Postal Service domestic return receipt which notes that certified mail dated May 28, 1997, addressed to Command Security Corp., 331 Park Avenue South, New York, NY 10010, was delivered on May 30, 1997.
4. Computer reports dated May 9, 1997, which denote the following: (a) Mr. Aurobindo Mongul is registered as a security guard for the term March 28, 1996, through March 28, 1998, at 94-12 207th Street, Queens Village, NY 11428, with a birth date of September 27, 1956; (b) Mr. Laiquat Ali was registered as a security guard for the term July 10, 1995, through July 10, 1997, at 94-12 207th, Queens Village, NY 11428, with a birth date of September 27, 1956; (c) Mr. Laiquat Ali was employed as a security guard by Command Security Corp., 331 Park Avenue South, New York, 10010, from June 1, 1995, to an unspecified date; (d) Mr. Aurobindo Mongul was employed as a security guard by Command Security Corp., from January 26, 1996, to an unspecified date; (e) Command Security Corp. is licensed as a private investigator for the term February 29, 1996, through February 28, 1998, with main offices at Lexington Park, P.O. Box 340, Lagrangeville, NY 12540, and is licensed to conduct business at a branch office at 331 Park Avenue South, New York, NY 10010, for the term August 28, 1995, through August 27, 1997.
5. Report dated March 26, 1996, of the New York State Division of Criminal Justice Services which states that an examination of the fingerprint cards submitted with the applications of Messrs. Laiquat Ali and Aurobindo Mongul reveals that both fingerprint cards contain the fingerprints of the same person.
6. Copy of the application for registration as a security guard and fingerprint card submitted by Mr. Aurobindo Mongul to the Division of Licensing Services on March 4, 1996.
7. Copy of the application for registration as a security guard and fingerprint card submitted by Mr. Laiquat Ali to the Division of Licensing Services on June 15, 1995.
8. Affidavit dated August 15, 1997, of Mr. Aurobindo Mongul which essentially attests the following: In June 1995, he presented a "green card" and social security card bearing the name Laiquat Ali to Command Security Corp.; he received and completed various employment forms, attended a training class, and received certification. He was not requested to verify any of the information he supplied to Command Security Corp. He continued to be employed by Command Security Corp. under the name of Laiquat Ali through 1995. In December 1995, he received a work permit in the name of Aurobindo Mongul, and in January 1996, utilizing the work permit and a social security number in the name Aurobindo Mongul, he applied for a job as a security guard with Command Security Corp. In the application, he did not disclose the fact that he was presently employed by Command Security Corp. under the name of Laiquat Ali and under a different social security number; in fact, his employee statement indicated that he had not previously worked as a security guard. The applications submitted to Command Security Corp. in both names, Aurobindo Mongul and Laiquat Ali, bore the same address, telephone number, and date of birth. He was never questioned about the fact that he worked for the same company under two different names although he did nothing to alter his physical appearance.
9. Pamphlet, What Color is Your Green Card?, issued September 1, 1993, U.S. Department of Justice, Immigration and Naturalization Service. The pamphlet is a reference guide with samples of different types of documents to assist in the recognition of genuine employment authorization documents.
B. OFFICIAL NOTICE. Official notice is taken of the records of the Division of Licensing Services of the licensure history of Command Security Corp., and of the licensure and employment history in the names of Laiquat Ali and Aurobindo Mongul.
Official notice is also taken of the Document Reference Guide 93R-01, What Color is Your Green Card?, issued September 1, 1993, by U.S. Department of Justice, Immigration and Naturalization Service, that contains reproductions of commonly issued travel and employment authorization documents.
FACTS
By the substantial evidence, I find the following facts:
Command Security Corp. is licensed as a corporate private investigator for the term February 29, 1996, through February 28, 1998, at a main office address of Lexington Park, P.O. Box 340, Lagrangeville, NY 12540, and is licensed to conduct business at a branch office, 331 Park Avenue South, New York, NY 10010, for term August 28, 1995, through August 27, 1997.
Sometime in January 1991, using a fictitious green card and a fictitious social security card in the name of Laiquat Ali, Mr. Aurobindo Mongul obtained employment as a security guard with Madison Detective Agency.
At a time not disclosed by the evidence, Command Security Corp. acquired or merged with Madison Detective Agency. Sometime before June 1, 1995, after acquiring or merging with Madison Detective Agency, Command Security Corp. required that security guard employees apply to the Division of Licensing Services for registration.
Again presenting the fictitious green card and the fictitious social security card in the name of Laiquat Ali to Command Security Corp., Mr. Aurobindo Mongul applied for registration as a security guard in the name of Laiquat Ali; and in the application dated June 1, 1995, he stated the following: he had not applied before for registration as a security guard; a birth date of September 27, 1956; a home address of 94-12 207th Street, Queens Village, NY 11328; a voter's registration in that name at that address; an employment history that includes working as a security guard for Madison Detective Agency from January 1991 to October 1993, and for Command Security Corp. from November 1993 to present (June 1, 1995, the date of the application) at 331 Park Avenue South, New York, N.Y.
Through its training school, Command Security Manhattan, 331 Park Avenue South, New York, NY 10010, Command Security Corp. provided the required eight-hour pre-assignment training course for security guards to Mr. Laiquat Ali and issued a certificate that denotes his successful completion of the course on June 1, 1995. Also on June 1, 1995, Security Command Corp. certified that the information on Mr. Laiquat Ali's application was true and correct and filed the application with the Division of Licensing Services. The Division of Licensing Services issued a security guard registration to Mr. Laiquat Ali for the term July 10, 1995, through July 10, 1997.
In January 1996, Mr. Aurobindo Mongul, using a valid work permit and a valid social security card, applied under his own name for a job with Command Security Corp. and completed the application for registration as a security guard that includes the following information: a birth date of September 27, 1956; a home address of 94-12 207th Street, Queens Village, NY 11428; an employment history of general helper, car wash attendant, and gas attendant. He states on the application that he had not applied before for registration as a security guard.
On January 18, 1996, Command Security Corp. certified as true and correct the information contained in the application completed by Mr. Aurobindo Mongul, provided Mr. Mongul with the required training in the school of Command Security Manhattan, and issued him a certificate that indicates his successful completion of the training course.
The Division of Licensing Services registered Mr. Aurobindo Mongul as a security guard for the term March 28, 1996, through March 28, 1998.
In both applications for registration as a security guard, as Laiquat Ali and as Aurobindo Mongul, Mr. Mogul stated that he had not applied before for registration as a security guard. Therefore, on the face of each application, Mr. Mongul was a potential guard employee that was new to the security industry.
Subsequently, a comparison by the New York State Division of Criminal Justice Services of the fingerprint cards of Laiquat Ali and Aurobindo Mongul disclosed that the fingerprints on both fingerprint cards were from the same individual.
The records of the Division of Licensing Services list Command Security Corp. as the employer of both Mr. Laiquat Ali and Mr. Aurobindo Mongul as security guards.
On August 28, 1997, 80 days before the scheduled hearing date, a copy of the pleadings addressed to Command Security Corp., 331 Park Avenue South, New York, NY 10010, was delivered by certified mail to the respondent's business address currently listed with the Division of Licensing Services.
The respondent did not appear and were not represented at the hearing.
OPINION
The State offered the only evidence admitted at the hearing. The evidence admitted is not impugned by any direct evidence or by any legitimate inference, is not improbable, and is not surprising or suspicious. Accordingly, the evidence is conclusive. Hull v Littauer, 162 NY 569, 572 (1900).
The respondents' failure to appear or to be represented at the hearing raises initially the issue of procedural due process which seeks to insure that a party in a pending quasi-judicial administrative hearing is afforded a fair notice of and a meaningful opportunity to protect his or her interests (Sharkey v Thurston, 268 NY 123 [1935]; Stuart v Palmer, 74 NY 183 [1893]). Fair notice is notice that sufficiently apprises a party of the pendency of the action through the lawful service of process (Michaud v Loblaws, 36 AD2d 1013, 321 NYS2d 626 [4th Dept. 1971]; Korn v Lipman, 201 NY 404 [1911]). Lawful service of process is the method through which the administrative tribunal asserts authority over a party in a quasi-judicial administrative proceeding.
Two statutes and a regulation embody the principles of due process of law and specify methods for the service of notices of quasi-judicial administrative proceedings brought under the provisions of General Business Law, Article 7. Collectively, General Business Law, §79, State Administrative Procedure Act, §301(2), and 19 New York Codes, Rules and regulations, §400.4(a), require the following: (1) Every adjudicatory proceeding that may result in a determination to revoke or suspend a license or to fine or reprimand a licensee must be commenced by the service of a written notice of hearing and a statement of charges. (2) The notice of hearing shall include (a) a statement of the time, place, date, and purpose of the hearing and of the legal authority and jurisdiction that governs the hearing, and (b) reference to the particular sections of the statutes and rules involved, where possible. (3) The statement of charges shall consist of plain and concise statements that sufficiently apprise the party charged and the Administrative Law Judge of the alleged unlawful activity. (4) The party charged with unlawful conduct must be served personally, or by registered mail, or by certified mail, or in a manner authorized by the Civil Practice Law and Rules for the service of a summons, with a copy of the written notice and statement of charges at the party's last known business address at least 15 days before the scheduled hearing date.
The service of process on the respondent complies with the requirements of General Business Law, §79, State Administrative Procedure Act, §301, and 19 New York Codes, Rules and Regulations, Part 400.4: The substantial evidence proves that 80 days before the scheduled hearing date, a copy of the notice of hearing and the complaint addressed to the respondent was sent by certified mail to the respondent's business address last known to the Division of Licensing Services.
Lawful service of process was effected. Consequently, due process principles allow the tribunal to conduct a quasi-judicial administrative disciplinary hearing without the respondent's presence to determine the State's allegation that the respondent violated the provisions of General Business Law, §89-g, by failing to exercise due diligence in certifying as true and correct the information provided in two applications submitted by one person using two different names for registration as a security guard with the respondent.
The fundamental question posed is what measure of activity constitutes the exercise of due diligence by a licensed private investigator to verify information submitted by a prospective employee in an application for registration as a security guard.
The provisions of General Business Law, Article 7, regulate the business defined as that of a private investigator and authorize penalties of revocation, suspension, fine or reprimand where the substantial evidence proves that a licensed private investigator agency violated any provision of General Business Law, Article 7-A, the Security Guard Act (General Business Law, §79[1][e]). The Security Guard Act governs the security guard industry and establishes uniform standards for security guards and for security guard companies. The statute is amplified by 19 New York Codes, Rules and Regulations, Part 174.
A licensed private investigator acts as a security guard company and is governed by the provisions of General Business Law, Article 7-A, when the licensee employs one or more persons as security guards. A security guard is a person hired in a quasi-law enforcement position to perform one or more of the following functions: (1) protection of individuals or property from harm, theft or other unlawful activity; (2) deterrence, observation, detection or reporting of incidents in order to prevent any unlawful or unauthorized intrusion or entry, larceny, vandalism, abuse, arson or trespass on property; (3) street patrol service; (4) response to security alarm systems used to prevent or to detect unauthorized intrusion, robbery, burglary, theft, pilferage and other losses or to maintain security of protected premises. General Business Law, §89-f.
Provisions of General Business Law, §89-g, and 19 New York Codes, Rules and Regulations, §174.6, proscribe that a security guard company should not employ a person as a security guard until the security guard company either: (1) has verified with the Division of Licensing Services that the person possesses a valid registration card as a security guard that has not expired or been revoked or suspended; or (2) has filed specified documents including (a) application for a registration card completed and sworn to by the person as provided in General Business Law, §89-h(1), and (b) certification that the company has exercised due diligence to verify as true both the information contained in the person's application and that the person has completed the preassignment training required by General Business Law, §89-h(2).
Neither the licensing statute nor the regulation defines due diligence. Black's Law Dictionary 411 (5th ed. 1979) defines due diligence as "Such a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case."
19 New York Codes, Rules and Regulations, §174.6, outlines the minimum due diligence steps that must be exercised by a security guard company to determine the qualifications of an applicant for employment as a security guard in three situations: (1) when the potential employee is already registered with the Division of Licensing Services as a security guard (§174.6[a]); (2) when the potential employee has an application for registration as a security guard pending that was submitted by a company other than the potential employee (§174.6[b]); and (3) when the potential employee is new to the industry (§174.b[c]).
A rational and reasonable interpretation of the "new-to-the-industry provision" of the rule is that any potential employee who is not registered or who does not have an application pending for registration as a security guard is new to the industry, and the prescription of 19 New York Codes, Rules and Regulations, §174.6(c), applies to the employment of that person by a security guard company (see People v Granatelli, 108 Misc2d 1009, 438 NYS2d 707 [Sup. Ct. Crim. Term 1981], administrative agency may give rational and reasonable construction and interpretation of its own rules).
Where a potential security guard employee is new to the industry, a security guard company must, as an exercise of minimum due diligence: "verify identity. Such verification may be made by checking identifying documents such as a state issued driver's license or state issued I.D. card with a photograph or a U.S. Military card...(and) verify prior employment records as indicated on the Employee Statement Form. Such verification may be made by the procurement and filing of reference letters from former employers." 19 New York Codes, Rules and Regulations, §§174.6(c)(4) and 174.6(c)(5).
An obvious intent of the rule is that a prospective employer of a person new to the industry at the very least, must: (1) verify a potential employee's identify by checking an identifying document that bears a photograph of that person; and (2) verify prior employment as listed by the prospective employee on the employee statement.
In both applications submitted to Command Security Corp. by Mr. Mongul, the first in June 1995 under the name of Laiquat Ali and the second in January 1996 under his true name of Aurobindo Mongul, the employee statements indicate that he was a potential security guard employee new to the industry, that he had not previously registered with the Division of Licensing Services as a security guard. Therefore, in both situations, the provisions of 19 New York Codes, Rules and Regulations, §§174.6(c)(4) and 174.6(c)(5) applied to the potential employer.
In June 1995 when Mr. Mongul applied for employment as a security guard in the name of Laiquat Ali, Command Security Corp. exercised the minimum due diligence required by 19 New York Codes, Rules and Regulations, §§174.6(c)(4) and 174.6(c)(5).
In June 1995, the potential employee presented a green card purportedly issued by the Immigration and Naturalization Service. Ordinarily, the document bears a photograph of the holder (Document Reference Guide 93R-01, What Color is Your Green Card?, U.S. Department of Justice, Immigration and Naturalization Service, (M-396 [9/1/93]). The evidence does not reveal what type of card was presented by Mr. Mongul, whether a resident alien card, an alien registration receipt card, an employment authorization card, a temporary resident card, a border crosser card, or other document. In addition, the evidence does not disclose whether any irregularity existed on the face of the identifying document presented by the potential employee to Command Security Corp. that should have caused the company to seek further verification of the potential employee's identity.
The employee statement submitted to Command Security Corp. in June 1995 by Mr. Mongul lists a valid employment history of four years as a security guard under the name of Laiquat Ali (the name that appears on the green card) with Madison Detective Agency (the company that Command Security Corp. either acquired or merged with at a time not established by the evidence). For more than four years (January 1991 to June 1995), Mr. Mongul worked as a security guard for Madison Detective Agency under the name of Laiquat Ali. The evidence does not disclose that any irregularity existed in the employment records of Madison Detective Agency that should have caused Command Security Corp. to further investigate the identity or the employment history of the potential employee named Laiquat Ali.
In January 1996, Mr. Mongul applied in the name of Aurobindo Mongul for employment as a security guard with Command Security Corp. as an employee new to the industry. He presented valid identifying documents to the employer and failed to reveal his prior employment and registration as a security guard under a different name. Accordingly, the exercise of minimum due diligence by Command Security Corp. to verify the identity of the potential employee as Aurobindo Mongul is not an issue.
The evidence fails to prove that Command Security Corp. actually knew that Mr. Mongul worked for the company as a security guard under two different names.
The question then is whether in January 1996 when Mr. Mongul was employed and trained as a security guard for the second time by Command Security Corp., should the company have known, or through the exercise of reasonable diligence would have known, that Mr. Mongul had been previously employed as a security guard under the name of Laiquat Ali. Do the established facts legally infer knowledge? The tribunal thinks not.
Knowledge or notice of extant facts may be implied or inferred where the evidentiary established facts: (1) would ordinarily incite suspicion and diligent inquiry; (2) furnish a reasonable and natural clue to the ultimate facts; and (3) be sufficiently pertinent in character to enable reasonably cautious and prudent persons to investigate and ascertain the ultimate facts (81 NY Jur2d, Notice and Notices, §§5-8). Diligent inquiry is "Such inquiry as a diligent man, intent upon ascertaining a fact, would ordinarily make, and it is inquiry made with diligence and good faith to ascertain the truth, and must be an inquiry as full as the circumstances of the situation will permit." Black's Law Dictionary 412 (5th ed. 1979).
The facts established by the evidence do not disclose: (1) where, how or who processed the two employment applications submitted at different times to Command Security Corp. by Mr. Mongul under the two different names, whether both applications were processed by the same person in the same facility or by different people in the same facility or in different facilities; (2) how or who provided the security guard training to Mr. Mongul in June 1995 and in January 1996, whether he was taught by the same or different training person or persons; (3) whether under both names, he performed security guard duties at the same work site or sites or under the supervision of the same person or persons; (4) whether any person or persons who processed the two employment applications, provided the security guard training or supervised the work activities of Mr. Mongul were officers, employees or agents of Command Security Corp.
The evidence fails to establish facts sufficient to have obligated an investigation in January 1996 by Command Security Corp. to further verify either the identity or the employment history of Mr. Mongul as a security guard, and therefore, knowledge of the employment of Mr. Mongul under two different names cannot be legally inferred to Command Security Corp.
CONCLUSION OF LAW
Based on the foregoing findings of fact and opinion and as a matter of law, I conclude:
The State failed to prove by substantial evidence that in violation of the provisions of General Business Law, §89-g, the respondent, Command Security Corp., did not exercise due diligence in certifying as true and correct information contained in two applications filed for registration as a security guard by one potential employee under two different names.
ORDER
Based on the foregoing findings of fact, opinion, and conclusion of law and under the provisions of General Business Law, §79:
I ORDER that the complaint charging the respondent, Command Security Corp., with a violation of General Business Law, §89-g, is dismissed.
SO ORDERED: September 11, 1997.
Felix Neals
Supervising Administrative Law Judge