STATE OF NEW YORK
DEPARTMENT OF STATE
OFFICE OF ADMINISTRATIVE HEARINGS
639 DOS 01
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LELAND V. RANDOLPH,
Applicant for Registration as a Security Guard,
-against- DECISION
DIVISION OF LICENSING SERVICES,
Objector.
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ADMINISTRATIVE LAW TRIBUNAL
123 William Street, New York, NY 10038
Held: October 10, 2001
Felix Neals, Supervising Administrative Law Judge
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The applicant, Mr. Leland V. Randolph, 4806 Beverly Road, Brooklyn, NY 11205, was represented by Robert Julian Lashaw, Esq., 150 Broadway, NY 10038.
The objector, the Division of Licensing Services, was represented by Mr. Richard Drew, License Investigator III, 84 Holland Avenue, Albany, NY 12208.
ISSUE
The State alleges that the applicant lacks requisite character, fitness, and competence required by the provisions of General Business Law, §89-h, to be registered as a security guard. Specifically, the State charges the following: (1) the applicant was convicted in the State of New York of a criminal offense, petit larceny, class A misdemeanor, Penal Law, §155.25, that constitutes a bar to the applicant's employment as a registered security guard; (2) the applicant made a material false statement in the application for registration as a security guard by answering "no" to the question, "Have you ever been convicted in this State or elsewhere of any criminal offense (other than a minor traffic offense)?"; and (3) the issuance of the license or the granting of the employment to the applicant would involve an unreasonable risk to property or to the safety or to the welfare of specific individuals or to the general public.
SUMMARY OF THE EVIDENCE
Evidence submitted includes the following:
A. EXHIBITS.
1. Copy of the pleadings that consists of the notice of hearing, Division of Licensing Services' denial of the application, and applicant's written request for a quasi-judicial, administrative hearing.
2. Application for registration as a security guard.
3. Report, New York State, Division of Criminal Justice Services.
4. Letters attesting to character.
5. Certificate of relief from disabilities.
B. WITNESSES. Messrs. Wendell Wilson, David Allen Watson, and Leland V. Randolph.
FACTS
By the substantial evidence I find the following facts:
Mr. Leland V. Randolph submitted an application to the Division of Licensing Services for registration as a security guard. The agency denied the application for registration, and the applicant requested a quasi-judicial administrative hearing. In the application, the applicant answered "no" to the question, "Have you ever been convicted in this State or elsewhere of any criminal offense (other than a minor traffic offense)?".
In the State of New York on February 13, 2001, Mr. Randolph pled guilty to a charge of petit larceny, class A misdemeanor, Penal Law, §155.25.
Mr. Randolph's work history in the security field is as follows: 1983 to 1985, peace officer with Stores Mutual Protection Association (of department stores); 1985, New York State Police; September 1985 to June 1986, Mays Department Store, Security Manager; June 1986 to March 1992, peace officer, Security Plus Service assigned to Starrett City (various sites) where he was awarded twenty-six commendation awards for excellency in performance of duties; August 1992 to 1993, DS Security as armed security guard; 1993 to 1997, Marquez Security Services as armed security guard; November 1997 to September 2000, Greyston Health Services as peace officer.
In September 2000, Mr. Randolph was employed as a temporary, per diem employee by the MTA Bridges and Tunnels. After a three-day training of how to register vehicles, he was assigned to the Triborough Bridge as a toll collector. He worked intermittently until December 2000. In January 2000, when he reported to work, he was informed by MTA personnel that more than $5,000 were missing from misregistration of vehicles during his work shifts in the duration of time from September 24, 2000, to December 2000. He was charged with official misconduct, a class A misdemeanor, Penal Law, §195.00.
Although Mr. Randolph professed his innocence, pointing out that having worked less than fifty shifts, it was highly improbable that he could have stolen more than $5,000 in the duration of employment, on February 13, 2001, at the advice of an assigned attorney, Mr. Randolph pled guilty to petit larceny to prevent the expense and chance of a trial. At the time of conviction, Mr. Randolph was 38 years of age.
On May 12, 2001, Mr. Randolph signed an employee statement and security guard application. The application had been completed in the employer's office by employer's personnel. Mr. Randolph states that he did not examine the employment application. Not having ever completed an application for registration, he was not aware of the question or the answer of "no" to the question about prior criminal convictions. The tribunal finds Mr. Randolph's testimony to be credible.
The tribunal noticed that during Mr. Randolph's testimony, he appeared to suffer severe vision limitations when examining documents. In response to questions by the tribunal, Mr. Randolph revealed that he suffers vision limitations, has had an operation on one eye, and is awaiting an operation on the other eye.
Persons in a position to have knowledge of the applicant's reputation both prior to and subsequent to the conviction offered testimony in support of Mr. Randolph's application for registration as a security guard.
OPINION
A Division of Licensing Services' decision that denies an application for registration as a security guard is reviewable in a quasi-judicial, administrative hearing requested by the applicant (General Business Law, §§79 and 89-k[2]).
Preliminarily, the issues to be determined are: (1) whether the applicant made a material misstatement on the application for a security guard registration; and (2) whether the material misstatement prevents the granting of the security guard registration.
A material misstatement in an application submitted to the Division of Licensing Services for registration as a security guard is any statement made in the application that, if the true facts were known: (1) would intrinsically prevent the renewal of the registration because of a failure of the applicant to qualify under the provisions of General Business Law, Article 7-A; or (2) would allow the Division of Licensing Services in its discretion either to grant or to deny the application for renewal of a prior registration.
In deciding a person's fitness for renewal of a registration as a security guard, truthful answers to questions concerning the person's prior conviction for violations of law is an essential factor. The answer of "no" to that question after being convicted of a misdemeanor is a material false statement. The concomitant, definitive issue is whether the material misstatement was deliberately made by Mr. Randolph with the intent to deceive the licensing agency. It was not. Mr. Randolph's answer of "no" to the criminal conviction question was inadvertent and not done with intent to deceive the licensing agency.
The remaining question is whether the applicant's criminal conviction prevents the granting of the security guard registration on grounds either of unreasonable risk or of untrustworthiness. It does not.
Because the applicant has been convicted of a criminal offense, a determination of the applicant's fitness for registration as a security guard must be decided as statutorily directed by provisions both of the General Business Law, Article 7-A, and of the Correction Law, Article 23-A.
Provisions of General Business Law, Article 7-A: (1) regulate the registration (§89-h) and the employment of security guards (§89-g); (2) provide that the registration as a security guard may be denied to any person who has been convicted (a) of a misdemeanor offense where an essential element of the offense "...bears such a relationship to the performance of the duties of a security guard as to constitute a bar to employment" (§89-h[5]); and (3) further provide that to constitute a bar to employment, (a) there must be a direct relationship between the serious offense and the registration or employment of the applicant as a security guard, or (b) the registration or employment of the applicant as a security guard must involve an unreasonable risk to property, or to the safety or welfare of specific individuals or of the general public (§89-l[5][b]).
Correction Law, §752: (1) expresses the public policy that forbids unfair discrimination against an applicant previously convicted of a criminal offense who seeks to be registered as a security guard; and (2) prescribes that the denial of an application for registration as a security guard shall not be denied because of an applicant's prior, criminal conviction unless based on a factual finding either (a) that a "direct relationship" exists between the prior criminal offense and the security guard registration, or (b) the registration of the applicant would involve an "unreasonable risk" to property or to the safety or welfare of specific individuals or of the general public.
A registered security guard acts in a quasi-law, enforcement position in that he or she is hired to protect individuals and property from harm, theft or other unlawful activity and to deter criminal activity. Law obligates and trusts a registered security guard to perform watch, guard, and patrol activities faithfully, honestly, and reasonably and not to pose a high degree of risk of being a danger to the property that or to the persons whom the security guard is employed to protect (General Business Law, §89-f; Matter of Codelia, 44 DOS 91 [1991]).
A direct relationship exists where the inherent characteristic of the criminal offense of which the applicant was convicted reasonably imply that the applicant cannot be trusted to perform watch, guard, and patrol activities faithfully, honestly and reasonably - in other words, if registered as a security guard, the applicant would pose an unreasonable risk to persons whom or to property that the licensing agency is mandated to protect.
Unreasonable risk is not defined statutorily. However, where the applicant has been convicted of a misdemeanor offense, eight statutory elements prescribed in Correction Law, §753, construct a prescription for measurement of probable risk that might be posed by an the applicant's registration as a security guard. Each element is applied to the facts in the applicant's situation, and the substantial evidence establishes the magnitude of probable risk, the likelihood of future criminal activity by the applicant if registered, (and thereby be eligible for employment) as a security guard. The premise implied is that an applicant's prior criminal conviction not statutorily barred from consideration creates a rebuttable presumption of risk.
When the provisions of General Business Law, §89, and of Correction Law, §§752 and 753, are applied to the evidence to determine the applicant's qualifications to be registered as a security guard, the legal consequences are as follows:
1. The applicant was convicted of a misdemeanor offense.
2. A direct relationship exists between the applicant's criminal conviction and essential duties of a registered security guard. An essential element of the criminal offense of petit larceny is stealing property. That essential element correlates explicitly with specific duties and responsibilities of a registered security guard to protect persons and property from and to deter theft, loss, and other unlawful activity and directly relate to the applicant's fitness to perform those duties and to meet those responsibilities (General Business Law, §89-h[5]; Correction Law, §§752, 753[1][b], and 753[1][c]).
3. The applicant was of an age (38 years) at which he is assumed to be cognizant of the seriousness of his action when he pled guilty to the criminal offense (Correction Law, §753[1][e]).
4. The applicant's unlawful act is not defined as a serious offense (Correction Law, §753[1][f]; General Business Law §89-f[13]).
5. In determining the applicant's fitness for registration as a security guard, consideration is given to the applicant's exemplary work history, excluding MTA Bridges and Tunnels, and the reputation evidence offered through testimony.
General character, the morality of the applicant, is proved by evidence of general reputation, what the community believes the applicant's character to be. The reputation evidence of good character offered by the applicant is admissible, relevant, and factually significant (Correction Law, §753[1][d]).
Evidence of the applicant's reputation is admissible because: (1) the denial of his application for registration as a security guard is based on his criminal conviction; (2) the applicant has satisfied the penalties imposed in the criminal action; and (3) the applicant obtained a certificate of relief from disabilities from the sentencing court.
Evidence of the applicant's reputation is relevant and treated as fact because: (1) The reputation evidence is offered by persons in a position to have knowledge of the applicant's reputation in the community subsequent to his criminal conviction; and (2) the reputation evidence offered regards the particular traits involved in the applicant's criminal conviction.
The evidence offered by the applicant attenuates the risk posed by the direct relationship that exists between an essential element inherent in the nature of the criminal offense for which the applicant was convicted and duties legally imposed upon a registered security guard (Correction Law, §753[1][g]; General Business Law, §§89-h[5] and 89-l[5][b]).
6. The registration of the applicant as a security guard complies both with the mission of the regulatory agency to protect the public from unfit and incompetent registrants (Legislative Findings of L. 1992, c. 336) and with the public policy of the State of New York that prohibits discrimination against the applicant in his effort to engage in an occupation that requires registration with a regulatory agency (Correction Law, §§753[1][a] and 753[1][h]).
CONCLUSION OF LAW
Based on the foregoing findings of fact and opinion and as a matter of law, I conclude:
Mr. Leland V. Randolph proved by substantial evidence that he possesses the requisite character, fitness, and competence required by the provisions of General Business Law, §89-h, to be registered as a security guard.
ORDER
Based on the foregoing findings of fact, opinion, and conclusion of law, and under the provisions of General Business Law, §89-k:
I ORDER the application (UID #10008477704) of Mr. Leland V. Randolph for registration as a security guard is granted.
SO ORDERED: October 11, 2001
Felix Neals
Supervising Administrative Law Judge