STATE OF NEW YORK
DEPARTMENT OF STATE
OFFICE OF ADMINISTRATIVE HEARINGS
570 DOS 04
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TIMOTHY PHELPS,
Applicant for an Appearance Enhancement License,
-against- DECISION
DIVISION OF LICENSING SERVICES,
Objector.
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ADMINISTRATIVE LAW TRIBUNAL
333 East Washington Street, Syracuse, NY 13202
Held: June 10, 2004
Felix Neals, Supervising Administrative Law Judge
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Applicant, Mr. Timothy Phelps, represented himself.
Objector, the Division of Licensing Services, was represented by Mr. Richard Drew, License Investigator III.
Under the provisions of General Business Law, §411, State Administrative Procedure Act, Article 3, and 19 New York Codes, Rules and Regulations, Part 400, the applicant requested this action to review the Division of Licensing Services' denial of his application for a license to engage in the practice of esthetics. The State alleges that the applicant lacks the statutory prerequisites of good character and trustworthiness because of a criminal conviction and the underlying actions and circumstances of the criminal conviction (General Business Law, §406).
On February 18, 1999, Mr. Phelps plead guilty to sexual abuse 1st degree, 2 counts, class D felonies, Penal Law, §130.65. He was sentenced to a six-month jail term and a five-year term of probation that was completed on February 18, 2004.
On February 19, 2004, from the Ontario County Court, Mr. Phelps obtained a certificate of relief from disability “to allow for licensure, subject to attached decision” of the Ontario County Court. In its decision, the court stated:
“A hearing was held on the relief sought (certificate of relief from disabilities) on March 9, 2004. Subsequent thereto, the defendant provided an affidavit from...the sexual offender treatment provider for Ontario County...(who) conducted the defendant’s initial evaluation and assessment...(and who) had the defendant in treatment for sex offender therapy for a period of approximately four years. Throughout the time of sex offender therapy, the defendant was actively engaged in therapy, he never missed a group and was always well prepared. (The social worker)...notes that the defendant provided encouragement and guidance to others in therapy and was very invested and responsible in the treatment process. According to (the social worker)...the defendant was successfully discharged from sex offender treatment in the Spring of 2003...(and) had ‘reached an appropriate and achievable prevention program which leads to success not to re-offend in the future.’
“During his probationary period, the defendant attended school to become a licensed make-up artist. It is the defendant’s hope to become a professional make-up artist. However, before he can sit for the licensing exam, he must obtain a Certificate of Relief from Disabilities.
“Pursuant to Section 701 of the Corrections Law, the Court may grant a certificate of relief from disabilities...”
General Business Law, §410(f)(iv), provides that a conviction of a violation of Penal Law, §130, shall not be “considered a criminal conviction or reported as such” where “evidence of successful rehabilitation to remove the disability has been issued.”
The tribunal may not consider the certificate of relief from disabilities issued by the Ontario County Court as evidence of successful rehabilitation because: (1) the sentence imposed by the court is not revocable; (2) a court in New York may issue a certificate of relief from disabilities only where the court has imposed a revocable sentence (Correction Law, §702); (3) Mr. Phelps served felony time, and under provisions of Correction Law, §703, only the New York State Board of Parole may issue a valid certificate of relief from disabilities (Application of Helmsley, 575 NYS2d 1009, 152 Misc2d 215 [1991]; United States of America v Craig, 896 F. Supp. 85 [N.D. NY 1995; Wandolski v Division of Licensing Services, 488 DOS 00]).
However, the tribunal may and does consider the findings of the Ontario County Court as being evidence of successful rehabilitation to remove the disability of the conviction; and the conviction is not considered a criminal conviction.
Because the conviction is not considered a criminal conviction, Correction Law, Article 23-A, is not applicable.
I ORDER that under the provisions of General Business Law, §411, the application of Mr. Timothy Phelps (UID #28PH1190692) for a license to engage in the practice of esthetics is granted.
SO ORDERED: June 14, 2004
Felix Neals
Supervising Administrative Law Judge