IN RE: Rev. Robert L. DICKERSON (2022)

Determination of respondents, dated July 11, 2019, which, after a hearing, denied petitioner's application to renew a private investigator's license based on findings that his conduct, before and after his previous license expired, violated statutory and regulatory law governing private investigators, and demonstrated incompetence and untrustworthiness, unanimously confirmed, the petition denied, and this proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Joan Madden, J.], entered on or about November 25, 2020), dismissed, without costs.

The determination is supported by substantial evidence (CPLR 7803[4];  300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 179–182, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978];  see General Business Law § 79[1][a], [d]).  As to statutory and regulatory violations, petitioner admittedly failed to “deliver to the client a written report, setting forth the services performed on the client's behalf ․ at the time of billing” (19 NYCRR 173.2), which respondents rationally found applicable upon the client's termination of petitioner's services before his investigation was concluded (see Andryeyeva v. New York Health Care, Inc., 33 N.Y.3d 152, 174, 100 N.Y.S.3d 612, 124 N.E.3d 162 [2019]).

The record also supports the finding that petitioner “engage[d] in the business of private investigator ․ without having first obtained from the department of state a license,” in that he admittedly failed to file a renewal application but continued an investigation after his license expired (General Business Law § 70[2]).  Contrary to petitioner's contention, the mere belief that he had filed a renewal application did not entitle him to continue his investigation, since the absence of an application belies his assertion that he filed a “timely and sufficient application” that would allow his work to continue (State Administrative Procedures Act § 401[2];  see Matter of Town of Haverstraw v. Jorling, 213 A.D.2d 654, 655, 624 N.Y.S.2d 941 [2d Dept. 1995]).

As for instances of untrustworthiness, the record shows that petitioner made no efforts to satisfy two tax warrants filed against him with the county clerk for eight and nine years, respectively, until he became aware of the investigation concerning them in connection with his new license application (see Tax Law § 692[e];  compare Matter of Coulter v. State of N.Y. Ins. Dept., 74 A.D.3d 963, 964–965, 902 N.Y.S.2d 652 [2d Dept. 2010]).  The record also demonstrates that petitioner admittedly owed the client a refund for services not rendered, but he made only one effort at arranging payment around the time the investigation into her administrative complaint began, more than a year before the hearing (see e.g. Matter of Mittleberg v. Shaffer, 141 A.D.2d 645, 646, 529 N.Y.S.2d 545 [2d Dept. 1988]).  The Secretary of State is “vested with a wide discretion in determining what should be deemed untrustworthy conduct” (Matter of Gold v. Lomenzo, 29 N.Y.2d 468, 477, 329 N.Y.S.2d 805, 280 N.E.2d 640 [1972];  Matter of Mittleberg, 141 A.D.2d at 646, 529 N.Y.S.2d 545).

Under the circumstances, we do not find the penalty of license denial “shocking to one's sense of fairness” (Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 233, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974];  see e.g. Matter of Borkan v. State of New York, 57 A.D.3d 245, 246, 868 N.Y.S.2d 651 [1st Dept. 2008]).

We have considered petitioner's remaining contentions and find them unavailing.