STATE OF NEW YORK
DEPARTMENT OF STATE
OFFICE OF ADMINISTRATIVE HEARINGS
291 DOS 96
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BRUCE GACSAL,
Applicant for a License as a Private Investigator,
-against- DECISION
DIVISION OF LICENSING SERVICES,
Objector.
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ADMINISTRATIVE LAW TRIBUNAL
270 Broadway, New York, NY 10007
Held: December 5, 1996
Felix Neals, Supervising Administrative Law Judge
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The applicant, Mr. Bruce Gacsal, 61-15 84th Street, New York, NY 11379, was represented by Harold M. Weiner, 342 Madison Avenue, New York, NY 10173.
The objector, the Division of Licensing Services, was represented by Mr. William F. Schmitz, Supervising License Investigator and Division Compliance Officer, 270 Broadway, New York, NY 10007.
ISSUE
The applicant requested this action under the provisions of General Business Law, §79, to review the Division of Licensing Services' decision to deny his application for a license as a private investigator. The State denied the application on the ground of experiential incompetence and alleges that the applicant failed to prove legal experience sufficient to qualify for a license as a private investigator under the provisions of General Business Law, §72.
SUMMARY OF THE EVIDENCE
A. EXHIBITS. Documents submitted into evidence include:
1. Copy of the pleadings that consist of a notice of hearing, Division of Licensing Services' letters that deny the application for licensure, and applicant's letter that requests a quasi-judicial administrative hearing to review the Division of Licensing Services' decision.
2. Copy of the applicant's application for a license as a private investigator filed with the Division of Licensing Services.
3. Nine letters that delineate the activities of the applicant as follows:
(A) April 10, 1996 from Director of Security, DynAir Services, Inc. who states that the applicant's duties "...consisted of surveillance of the unloading and offloading of international aircraft and reporting any and all irregularities...the escorting and safeguarding of high value shipments and performing detailed on ground aircraft and motor vehicle accident investigations and reports...investigations stemming from Petit Larceny...in December of 1994, he took over the entire Security operation at J.F.K.....time spent conducting investigations is in the ninety percentile."
(B) April 30, 1996 from Detective Lieutenant, Criminal Investigation Bureau, The Port Authority of New York and New Jersey Police, who writes of the applicant's "...high level of academic skill which allows him to master both concrete and abstract tasks quickly and completely....(and that)...He has always handled the service aspect of his job sincerely, efficiently, and with true compassion...is efficient, intuitive and effective manager....(with excellent)...experience, professionalism and managerial skills...."
(C) May 2, 1996, Assistant Chief Inspector, U.S. Custom Service, Department of the Treasury, who writes "In my dealings with...(Mr. Gacsal) on security matters he was always diligent and always willing to help the law enforcement community."
(D) May 3, 1996, Director Airport Operations, Spartan Security Services, Inc., verified and acknowledged "...that Mr. Bruce Gacsal has been a tremendous help to Spartan Security, Inc. in order to assist in several types of investigations at JFK International Airport."
(E) May 8, 1996, Commanding Officer, Special Services Division, Los Angeles Airport Police Bureau, writes that he knew Mr. Gacsal in his assignment as Security Manager for DynAir Corporation at Los Angeles International Airport in May 1992 and "...found him to be very professional, displaying a high degree of honesty and integrity."
(F) May 9, 1996, Manager of Air France, Security/Fraud Prevention, writes that Mr. Gacsal, "During time of his investigations that were conducted for Air France...(showed) courtesy to all individuals and preceded his duties with a high statue and accomplishment."
(G) June 18, 1996, Vice President, Western Region, DynAir Corporation, states: "Bruce Gacsal worked for DynAir Corporation in Los Angeles, CA as Security Manager from May, 1992 until November, 1994. In that capacity he was involved in investigations of theft, aircraft accidents, vehicle accidents, Workers' Compensation cases and various other areas of the operation. He worked very closely with U.S. Customs, Immigrations and all local Police Departments. He also handled security for our San Francisco, CA office. This involved the same type investigations as in Los Angeles and a close working relationship with local and Federal agencies."
(H) June 21, 1991, Regional Vice President, DynAir Services, Inc., advises "...that Bruce Gacsal was employed by DynAir from August of 1990 to May of 1996 in the capacity of Manager of Security at Los Angeles and John F. Kennedy Airport. At both locations, he lead a team of security agents in maintaining a safe and secure operating environment. He is a competent and dedicated person, who excels in security investigating work."
(I) June 21, 1996, George Hogan, Vice President Operations, DynAir Services Inc., says that Mr. Gacsal, in...his positions as Security Manager for DynAir, Bruce was responsible to conduct and oversee investigations concerning workmen's compensation, theft, aircraft and vehicle accidents. In addition, he was responsible to interface with the customer's security departments and law enforcement agencies, including The Port Authority Police, U.S. Customs and The Secret Service."
4. Press release dated February 7, 1996, U.S. Department of Justice, Federal Bureau of Investigations, in which Assistant Director, FBI New York Office, expresses "...his appreciation to BRUCE GACSAL, Director of Security for Dynair Services at John F. Kennedy International Airport, for his cooperation during...(an) investigation."
B. OFFICIAL NOTICE. The tribunal takes official notice of the licensure history in New York of DynAir Services, Inc. and Spartan Security, Inc.
C. WITNESS. Mr. Gacsal testified concerning his six-year employment at DynAir Services, Inc., beginning August 24, 1990.
FACTS
By substantial evidence, I find the following facts.
Mr. Bruce Gacsal filed an application with the Division of Licensing Services for a license as a private investigator. Mr. Gacsal based his application on experience gained during his six-year employment with DynAir Services, Inc. as: manager of security at JFK International Airport (November 1994 to the present); manager of security, Los Angeles International Airport, April 1992 to November 1994; assistant director of security, JFK International Airport (August 1990 to April 1992).
In New York for the duration of time from August 1990 to the present, DynAir Services, Inc., was and is currently licensed as a watch, guard and patrol agency doing business under an assumed name. The company is not licensed as (or to engage in the regulated activities of) a private investigator.
OPINION
To meet the experiential qualification required to be licensed as a private investigator, the applicant's application must be based either on employment with a licensed private investigator or on employment in an equivalent position (employment as a public law officer is not at issue).
The applicant must prove experiential competency by substantial evidence, relevant proof that a reasonable mind may accept as adequate to support a conclusion or ultimate fact (State Administrative Procedure Act, §306; General Business Law, §72; Gramatan Avenue Associates v Division of Human Rights, 45 NY2d 176, 408 NYS2d 54, 56 [1978]; Matter of Stanislaw, 41 DOS 87 [1987]). The source of the relevant proof of qualifying experience must be reliable, from authenticated or identified documents and from verified statements by competent witnesses (persons who were in a position to actually know what primary duties constituted the major portion of the applicant’s work performance and who have personal knowledge of the applicant’s work activities).
To prove experiential competence, the applicant must prove the following factors:
1. For a fee or any consideration, the applicant has performed investigations to obtain information about: The identity, habits, conduct, movements, whereabouts, affiliations, associations, transactions, reputation or character of any person, group of persons, association, organization, society, other groups of persons, firm or corporation; the credibility of witnesses or other persons; the whereabouts or missing persons; the location or recovery of lost or stolen property; the causes and origin of, or responsibility for fires, or libels, or losses, or accidents, or damage or injuries to real property...or with reference to the conduct, honesty, efficiency, loyalty or activities of employees, agents, contractors, and subcontractor; or the securing of evidence to be used before any authorized investigation committee, board of award, board of arbitration, or in the trial of civil or criminal cases. General Business Law, §71(1); 19 New York Codes, Rules and Regulations, §172.1.
2. (A) The investigations were performed by the applicant as a regular employee of a licensed private investigator for a minimum duration of three years; or
(B) the investigations were performed by the applicant in an equivalent position: (1) for a minimum duration of three years; (2) on a full-time basis; (3) in a position the primary duties of which were to conduct investigations; (4) as the major portion of the applicant's activities; and (5) for an employer, firm, organization or governmental agency, whether subject to the provisions of Article 7 of the General Business Law or otherwise, that required such investigations in the course of its regular operations. 19 New York Codes, Rules and Regulations, §172.1.
Mr. Gacsal did neither. He did not perform investigations as a regular employee of a licensed private investigator for a minimum duration of three years and he did not perform investigations in an equivalent position (1) for a minimum duration of three years; (2) on a full-time basis; (3) in a position the primary duties of which were to conduct investigations as the major portion of his activities; nor (4) for an employer, firm, organization or governmental agency that required such investigations in the course of its regular operations. 19 New York Codes, Rules and Regulations, §172.1.
From August 1990 to April 1996 (the date of his application for licensure), Mr. Gacsal worked full-time as an employee of DynAir Services, Inc., a licensed watch, guard and patrol agency. The letters from management employees of DynAir Services, Inc. which asseverate that Mr. Gacsal, as an employee, performed "investigations" are dilemmatic.
First, the applicant's duties and responsibilities as an employee of DynAir Services, Inc., a licensed watch, guard and patrol agency, do not qualify as experience of a private investigator. Definitionally, a watch, guard or patrol entity performs services to protect persons or property, or to prevent the theft or the unlawful taking of goods, wares and merchandise, or to prevent the misappropriation or concealment of goods, wares or merchandise or valuable documents, papers, and articles of value, or to procure the return of goods, wares or merchandise or valuable documents, papers, and articles of value unlawfully misappropriated, concealed or stolen (General Business Law, §71.2). Employment as a watch, guard or private patrol agency is not considered as the work of a private investigator (General Business Law, §72). Services rendered by an employee of a watch, guard and patrol agency do not qualify as experience of a private investigator. General Business Law, §72(1); 19 New York Codes, Rules and Regulations, §172.1; Bartels v Division of Licensing Services, 80 DOS 95 (1995); Matteo v Division of Licensing Services, 12 DOS 96 (1996).
Second, if the "investigations" to which the letters from DynAir Services, Inc. refer were activities defined statutorily as the business of a private investigator (General Business Law, §71), both the company and the employee engaged in unlicensed activity. Illegal experience cannot be used to prove experiential competency in an application for a license as a private investigator. Matter of Hoffman, 91 DOS 92 (1992).
The letters from Air France and from Spartan Security Services, Inc. are disjunctive in their characterization of Mr. Gacsal's activities as "investigations". First, a conclusory statement that he performed "investigations" lacks the specific information necessary to support the conclusion; there is not any proof of what was done, when, and for how long, and what relationship (if any) existed either between Mr. Gacsal and Air France or between Mr. Gacsal and Spartan Security Services, Inc. (a licensed private investigator in New York). Consequently, the evidence fails to establish whether Mr. Gacsal performed or could have legally performed regulated investigative activities for Air France, or assisted or could have legally assisted Spartan Security Services, Inc. in conducting regulated investigative operations.
CONCLUSION OF LAW
Based on the foregoing findings of fact and opinion and as a matter of law, I conclude:
The applicant failed to prove by substantial evidence that he acquired at least three years of qualifying investigative experience as mandated in the provisions of General Business Law, §§71(1) and 72.1, and 19 New York Codes, Rules and Regulations, §172.1.
DETERMINATION
Based on the foregoing findings of fact, opinion, conclusions of law, and under General Business Law, §79:
I DETERMINE that the decision of the Division of Licensing Services to deny the application of Mr. Bruce Gacsal for a license as a private investigator is confirmed.
SO ORDERED: December 23, 1996.
Felix Neals
Supervising Administrative Law Judge