4 DOS 93
Issued: January 22, 1993
STATE OF NEW YORK
DEPARTMENT OF STATE
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DIVISION OF LICENSING SERVICES,
In the Matter of the Application of:
DECISION
DOMINIC PEZZO
for a License as a Private Investigator.
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Administrative Law Tribunal
270 Broadway, New York, N.Y. 10001.
Held: November 22, 1992.
Before; Felix Neals, Administrative Law Judge.
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The applicant, Mr. Dominic Pezzo, 5810 229th Street, Bayside, N.Y. 11364, was represented by Susan Courtney Chambers, Esq., 89 Fifth Avenue, New York, N.Y. 10003.
The Division of Licensing Services, was represented by Mr. Michael Coyne, 333 East Washington Street, Syracuse, N.Y. 13202.
ISSUE
This proceeding was brought pursuant to the provisions of General Business Law, §79, to determine if the applicant possesses the requisite honesty, good character, and integrity to qualify for licensure as a private investigator.
FACTS
The applicant filed an application with the Division of Licensing Services on February 11, 1992. On June 29, 1992, the Division of Licensing Services notified the applicant that it proposed to deny the application for licensure on the following grounds: First, the applicant's experience was insufficient to satisfy the requirements of law, since after review of the applicant's application the Division credited the applicant with 14 months of experience. Second, the applicant had been convicted of a felony, and there was a direct relationship between the specific license applied for and the criminal offense for which the applicant had been convicted. On August 19, 1992, the Division of Licensing Services amended its notice of proposed denial by deleting the reference made to a felony conviction. The applicant requested a quasi-judicial administrative hearing.
The Division of Licensing Services bases it objections to the licensure of the applicant upon the following three convictions that occurred within a one-year duration of time:
(1) On April 23, 1986, the applicant was convicted of disorderly conduct, a violation of Penal Law, §240.20(7). The applicant was charged with acting in concert with his wife who was charged with shoplifting.
(2) On May 12, 1986, the applicant plead guilty to tampering with a witness in the fourth degree, a class A misdemeanor, a violation of Penal Law, §215.00, was sentenced to three years probation, and fined $1,000. It was alleged that the applicant attempted to pay the owner of a competing business to withdraw charges made against an employee of the applicant or not testify. A certificate of relief from disabilities of that offense was issued to the applicant on January 10, 1990.
(3) On June 1, 1987, the applicant plead guilty to obstructing governmental administration in the second degree, a class A misdemeanor under Penal Law, §195.05, and was sentenced to three years probation to run concurrently with the sentence imposed on May 12, 1986. While employed as a detective for the Waterfront Commission of New York Harbor, the applicant was charged with submitting falsified documents in an arrest made by him in the scope of the employment. On February 19, 1990, a certificate of relief from disabilities of that offense was issued temporarily for the duration of the probation to allow the applicant to apply for a pistol permit and for a private investigator's license.
The applicant was employed full time by the Waterfront Commission of New York Harbor from 1975 until 1984 as a special agent and from 1984 until 1985 as a detective. Mr. Howard Zuckerman, Assistant Director of Licensing and Employment Information Centers of the Commission, testified that both as a special agent and as a detective, the applicant performed investigations of criminal activity that resulted in arrests.
The applicant was employed by the Trump Organization in August 1989 at an entry level position; currently he is the executive director of security supervising 28 other security personnel. His duties include the protection of members of the Trump family, the transport of large amounts of cash, and the supervision of security of certain real properties. This was affirmed in writing by the applicant's employer, Mr. Donald Trump.
OPINION
The application for licensure is proposed to be denied by the Division of Licensing Services on the grounds of incompetency (lack of qualifying experience) and of untrustworthiness (convictions of criminal offenses). Therefore, the applicant has the burden of proving by substantial evidence compliance with the statutory prerequisites of character, competence, and integrity. State Administrative Procedure Act, section 306. General Business Law, section 72. (Matter of Stanislaw, 41 DOS 87 [1987]). It is the applicant's responsibility to supply the information reasonably necessary to prove that the applicant satisfies the statutory prerequisites. (Matter of Kelly, 54 DOS 91 [1991]). Substantial evidence is that which a reasonable mind could accept as supporting a conclusion or ultimate fact (Matter of Stewart, 5 DOS 92 [1992]; Gray v Adduci, 73 NY2d 741, 536 NYS2d 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 AD2d 710, 465 NYS2d 365, 366 (4th Dept. 1983). (citations omitted). Matter of Brown, 14 DOS 92 (1992).
The first issue to be considered is that of the applicant's trustworthiness. In determining the applicant's fitness for licensure, consideration must be given to: (A) The legal mandate of the Department of State to protect the public at large and to prevent persons who are incompetent and untrustworthy from engaging in the business of private investigator and preying upon the public (Shorten v Milbank, 170 Misc. 905, 11 NYS2d 387, affirmed 256 AD 1069, 12 NYS2d 583 (1st Dept. 1939)). (B) The public policy of the State of New York prohibiting unfair discrimination against previously convicted criminal offenders in their efforts to obtain employment and to engage in occupations or professions requiring a license. (Correction Law, §§752, 753). (C) The fundamental legal concept that the standards which govern the granting of a license must be applied equally by a licensing agency to all applicants for licensure. (G. J. S. Pizza v McLaughlin, 78 AD2d 653, 432 NYS 231 (2nd Dept. 1980)). (D) The burden of proof concept provided for in State Administrative Procedure Act (SAPA), §306.
The public policy of the State of New York prohibits the denial of an application for licensure on the grounds that the applicant was previously convicted of one or more criminal offenses or that the applicant lacks good moral character because of prior criminal convictions unless: There is a direct relationship between the elements of one or more of the criminal offenses for which the applicant was convicted and the duties and responsibilities of the specific license sought; or the issuance of a license to the applicant would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public (Correction Law, §752).
A direct relationship exists where the criminal 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 sought. Correction Law, §750(3). There is not a 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." (Matter of Bonacorsa, 71 NY2d 605, 528 NYS2d 519, 522 [1988]). In deciding the issues of direct relationship and unreasonable risk, the Department of State is required:
First, to consider the factors listed in Correction Law, §753(1) as: (a) The public policy of the state to encourage the licensure and employment of persons previously convicted of one or more criminal offenses. (b) The specific duties and responsibilities necessarily related to the license or employment sought. (c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities. (d) The time which has elapsed since the occurrence of the criminal offense. (e) The age of the person at the time of occurrence of the criminal offense. (f) The seriousness of the offense. (g) Any information produced by or on behalf of the applicant regarding rehabilitation and good conduct. (h) The legitimate interest of the public agency or private employer in protecting property, and the welfare of specific individuals or the general public.
Second, to consider any "...certificate of relief from disabilities or a certificate of good conduct issued to the applicant, which certificate shall create a presumption of rehabilitation in regard to the offense or offenses specified therein." Correction Law, §753(2).
The weight that is to be given individually and collectively to the statutory factors is discretionary with the administrative forum. (Matter of Bonacorsa, supra, 528 NYS2d at 523). This becomes significantly important in light of the fact that all applicants for licensure, including an applicant convicted of criminal offenses with a certificate of relief from disabilities, have the burden of proving that they possess the trustworthiness and the competence required by law. Matter of Poretsky, 40 DOS 87 (1987).
In the determination of the direct relationship issue, the two factors considered are: the correlation between the elements of the criminal offenses of which the applicant was convicted and the specific duties and responsibilities necessarily related to the license of a private investigator (factor expressed in Correction Law, §753[1][b]); and the impact that the elements inherent in the nature of the criminal offenses will have on the applicant's ability to perform any of the duties and responsibilities of a private investigator (factor listed in Correction Law, §753[1][c]). In this case, a direct relationship exists between the elements inherent in the nature of the crimes of which the applicant was convicted and essential duties and responsibilities of a licensed private investigator. The criminal convictions of acting in concert with a person charged with shoplifting, of tampering with a witness, and of obstructing a governmental witness: (1) relates directly to the definition of a private investigator stated in General Business Law, §71(1), as being one who investigates crimes, the credibility of witnesses, the location or recovery of lost or stolen property, and the causes and origin of, or responsibility for losses, accidents or damages to property; and (2) relates directly to the provisions of General Business Law, §70(1), that permit a licensed private investigator to perform the services of a watch, guard or patrol agency which include the protection of persons and property and the prevention of theft (General Business Law, §71[2]). A private investigator serves in a quasi-law enforcement capacity.
The subsequent question is whether the direct relationship is of such an effect that the granting of a license to the applicant would involve potential hazardous situations for property and persons, in other words, pose an unreasonable risk. The potential risk that the issuance of a license to the applicant would pose must be assessed considering the factors expressed in the provisions of Correction Law, §753. The public policy of the State prohibiting discrimination against the individual applicant (factor, §753[1][a]) is balanced against the statutory mandate of the licensing agency to protect the public interests (factor, §753[1][h]); and the risk posed by the direct relationship between the elements inherent in the nature of the criminal offense and the essential duties and responsibilities of a private investigator is as follows when the statutory factors set forth in Correction Law, §753, are considered and applied to the facts of the applicant's case.
The elements inherent in the criminal offenses have a direct bearing on the applicant's fitness and ability to perform the duties and responsibilities of a private investigator §753[1][a]).
The time of 6 years that has elapsed since the occurrence of the criminal offenses is sufficient in which to measure the applicant's status of rehabilitation (§753[1][d]).
The applicant was of a mature age (40) during the time of occurrence of the criminal offenses (§753[1][e]).
The offenses were economically motivated and involved serious public injury (§753[1][f]).
The applicant presented information sufficient to establish rehabilitation and good conduct subsequent to the criminal convictions (§753[1][g]).
The presumption of rehabilitation created by the certificate of relief from disabilities issued to the applicant is supported by the evidence (§753[2]).
Consequently, the applicant offered sufficient evidence in mitigation of the risk posed by the direct relationship that exists between the elements inherent in the nature of the criminal offenses and the duties and responsibilities of a private investigator.
To establish experiential competence, an applicant for a license as a private investigator must establish by substantial evidence that the applicant "...has been regularly employed, for a period of not less than three years, undertaking such investigations as those described as performed by a private investigator in subdivision one of section seventy-one of this article as a...police officer...or employee of a licensed private investigator, or had an equivalent position and experience." (General Business Law, §72[1]). Here, the record establishes that the applicant was employed regularly and full time for at least 12 years as an investigator for the Waterfront Commission of New York Harbor. That experience satisfies the requirement of General Business Law, §72(1).
CONCLUSIONS OF LAW
I. There is a direct relationship between the elements inherent in the offenses of which the applicant was convicted and the essential duties and responsibilities of a licensed private investigator.
II. The risk posed by the direct relationship between the applicant's criminal convictions and the license applied has been attenuated by sufficient evidence, and the issuance of a license of a license as a private investigator to the applicant would not pose an unreasonable risk to the property, safety or welfare of the public.
III. The applicant proved that he possesses the experiential competence required by law to be licensed as a private investigator.
DETERMINATION
IT IS DETERMINED, according to the foregoing and pursuant to the provisions of General Business Law, §79, that the application of the applicant for a license as a private investigator is granted.
From the testimony and the evidence produced at the hearing, the above findings of fact, opinion, conclusions of law, and determination are made, and the adoption of this decision is recommended.
Felix Neals
Administrative Law Judge
Concur and So Ordered on: GAIL S. SHAFFER
1/22/93 Secretary of State
By:
Maureen F. Glasheen
Deputy Secretary of State