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72-Dos-14 State of New York Department of State Office of Administrative Hearings ------X

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72-Dos-14 State of New York Department of State Office of Administrative Hearings ------X 72-DOS-14 STATE OF NEW YORK DEPARTMENT OF STATE OFFICE OF ADMINISTRATIVE HEARINGS -------------------------------------------------------X In the Matter of the Complaint of DEPARTMENT OF STATE DIVISION OF LICENSING SERVICES, Complainant, DECISION -against- ROBERT KETTLES, Respondent. ---------------------------------------------------------X The above matter was heard by the undersigned, Scott NeJame, on September 4, 2013 at the office of the Department of State located at One Commerce Plaza, Albany, New York via teleconference with the Department of State at 65 Court Street, Buffalo, New York. The respondent did not appear. The complainant was represented by Senior Attorney Linda D. Cleary, Esq. COMPLAINT The complaint alleges that the respondent registered security guard was conducting business as an unlicensed security guard employer by using various unlicensed names, including but not limited to Capital Dynamics Investigative & Security Services, Inc. (“Capital Investigative”), Capital Dynamics Investigate & Security Services, Inc. (“Capital Investigate”) and Capital Dynamics Investigations Security (“Capital Investigations”) and that he: employed one unregistered security guard, five security guards who were not associated with the respondent, failing to conduct the required due diligence with regard to seven security guards, and failed to properly register with the complainant the title (“President”) that he was using when operating his company. FINDINGS OF FACT 1) The notice of hearing initially scheduling the hearing for September 4, 2013 together with a copy of the complaint was served by certified and regular mail posted on August 19, 2013 and addressed to the respondent at his licensed address as it appears in the records of the Department of State. Both of the mailings were returned by the Postal Service marked with a forwarding address for the respondent in the same city. On or about August 16, 2013, the complainant sent the same notice of hearing and complaint to the respondent at the new address listed by the Postal Service. Neither the mailings nor the return receipt were returned by the Postal Service. The respondent telephoned Ms. Cleary, Esq. the day before the hearing, September 3, 2013, and Ms. Cleary advised the respondent of the hearing. 2) The tribunal takes official notice of the records of the Department of State and finds that the respondent was and is registered as a security guard from September 18, 1998 through September 17, 2002 and from April 4, 2008 through April 3, 2014 (State’s Ex. 12). 3) Based on an investigation and audit conducted by the complainant from October 1, 2012 to December 31, 2012 and on February 1, 2013, DLS License Investigator Brian Reed (“Inv. Reed”) obtained the employee records from the respondent’s office in Rochester, New York (State’s Ex. 6). He also interviewed the respondent, who informed him that he had neither applied for nor received a watch, guard or patrol or a private investigator license (R- 12). The respondent told him that he was the only officer for Capital Investigative and that he filed a “d/b/a” certificate as well as a corporate filing for that company (R- 12-13). 4) Upon a search of the records of the complainant’s database, Inv. Reed confirmed that the respondent was not and is not licensed as a watch, guard or patrol agency or a private investigator (R- 13-14) and he instructed the respondent to cease and desist operations as a private investigator or watch, guard or patrol agency. However, the respondent continued to operate his business in anticipation of obtaining a license (R- 14-15). 5) When he conducted his audit in 2012 and 2013, Inv. Reed noted in the attachments to the complaint that the respondent employed one security guard who had an expired registration (Andre White), employed four security guards who were not associated with his name or company (Luis Guadalupe, Clifton Mayers, Elijah Reid, Jr., and Ronald Zalone1), and employed two additional security guards without putting the proper documentation in their files, i.e., their files did not contain the necessary employee statements, transaction batch codes or verification of fingerprints (Richard Ortiz and Melanie Rivera2) (State’s Ex. 6, 9 and 11; R- 16). 6) Inv. Reed requested and the respondent provided him with two written contracts he held, one with Home Leasing, LLC, at a rate for security guards of $35 per hour, and the other with Historic High Point, also known as “Rainaldi” Real Estate Inc., at a rate for security guards of $26 per hour (State’s Ex. 7; R- 26-27). The respondent also produced a copy of the badge worn by his security team (State’s Ex. 7; R- 29). 7) Through his search of the complainant’s database, Inv. Reed confirmed that the respondent is and was licensed as a security guard and not licensed under any of the names described above (State’s Ex. 9). 8) In a letter dated February 28, 2013, the respondent responded to the audit and pursuant to Inv. Reed’s request, indicated that he was operating without a watch, guard or patrol license but intended to obtain a license and the steps he was taking to come into compliance (State’s Ex. 10; R- 36). 9) In an email sent by complainant’s Senior License Investigator John Goldman (“Inv. Goldman”) dated April 16, 2013, Inv. Goldman sought to confirm that the respondent had ceased operating his business (State’s Ex. 13). By email dated April 15, 2013, the respondent responded that he is going to help his customers by finding another security guard company to assist them and then he would comply with the “cease and desist” order (State’s Ex. 13). 1 Inv. Reed placed Andre White in this category, but the tribunal did not include him because he was on a previous list. 2 Other than the ones he mentioned on the previous lists. 72-DOS-14 10) Offered into evidence at the hearing was an unsigned and undated Consent Order allegedly signed by the respondent when he was previously acting in the same capacity as he did in this instant case and fining him $1,000 payable in four instalments, the last of which was to be paid on or before February 23, 2013 (State’s Ex. 12). The tribunal understands that the respondent is still working as a licensed security guard, having completed the payments according to the terms of the Consent Order. OPINION AND CONCLUSIONS OF LAW I- Pursuant to the State Administrative Procedure Act §400.4(b), a notice of hearing, “shall be served personally or by certified mail or in any manner authorized by the Civil Practice Law and Rules.” GBL (“GBL”) Article 7 §79(2) further proscribes that the notice must be sent to the applicant or respondent’s last known address. In this case, on August 16 and 19, 2013 (dates of posting), the notices of hearing and complaints were served by certified and regular mail on the respondent’s address contained in the records of the Department of State (State’s Ex. 1). Both mailings were returned by the Postal Service containing a new address for the respondent. The complainant re-served the respondent with the notices of hearing and complaints, again by certified and regular mail, after August 27, 2013 (State’s Ex. 1). Where a notice of hearing is mailed to an address in the records of the Department of State and the mailing is returned, there must be reasonable attempts to re-serve the notice of hearing. See DLS v Drake, 11 DOS APP 12. Service of process in this case was reasonable under the circumstances. The holding of an ex parte quasi-judicial administrative hearing was permissible, inasmuch as there is evidence that notice of the place, time and purpose of the hearing was properly served. Patterson v Department of State, 36 AD2d 616, 312 NYS2d 300 (1970);Roy Staley v Division of Licensing Services, 14 DOS App 01; Matter of the Application of Rose Ann Weis, 118 DOS 93. II- GBL §72 sets forth the requirements for any person, firm, partnership, limited liability company or corporation seeking to become licensed as a private investigator or a watch, guard or patrol agency. GBL §81(1) then sets forth a requirement that the holder of any license be “legally responsible for the good conduct in the business of each and every person so employed.” 19 NYCRR §170.13 re-affirms and details that requirement by providing, “All licensees...shall be required to provide supervision of all employees engaged in the business of...security guard work. Such supervision shall consist of regular, frequent and consistent guidance, instruction, oversight and superintendence by the licensee with respect to...security guard work conducted by the licensee, and all matters relating thereto.” Thus, the qualifying officer of a private investigator or a watch, guard or patrol agency is responsible for the supervision of the activities of that entity, Department of State v. Greenberg, 32 DOS 87, conf’d. Greenberg v. Shaffer, 139 AD2d 648, 527 NYS2d 287 (2nd Dept. 1988); DLS v. Vick, 122 DOS 09 (2009) (citing Greenberg). The respondent violated GBL §72 by holding himself out and acting as a security guard employer without the required license. His actions were all the more egregious because he provided armed security guards in his contracts (State’s Ex. 7). III- GBL §89-g(1) provides, “except as provided in this section and §89-w of this article, no security guard company shall knowingly employ a person as a security guard and no person shall be employed as a security guard or act as a security guard unless: a. The security guard company has verified with the department that such person possesses a valid registration card which has not expired or been revoked or suspended…” The respondent employed one unregistered security guard (whether that security guard was denied, expired, rejected, suspended or revoked is irrelevant) from Attachment C in the complaint in violation of GBL §89-g(1) and 19 NYCRR §174.6(c).
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