Rios v. Department of State Police

469 N.W.2d 71, 188 Mich. App. 166

• Court: Michigan Court of Appeals
• Decided: April 1, 1991
• Docket: Docket 118267
• Status: Published

Opinion

Brennan, P.J.

Respondent Department of State Police appeals as of right from a June 9, 1989, order directing the State Police to issue petitioner a private detective’s license. We affirm in part and remand for further proceedings consistent with this opinion.

Petitioner was licensed as a private detective for approximately ten years, in two-year terms, with his most recent license expiring on January 25, 1989. Shortly before the license was to come up for renewal, the department received information from the Federal Bureau of Investigation indicating that petitioner had been convicted of a felony for "interstate travel in aid of racketeering.” After receiving this information, Lieutenant James Baird, commanding officer of respondent’s Private Security and Investigator Section, issued a notice on December 20, 1988, of summary revocation of petitioner’s license because of his felony conviction. He also advised petitioner that the department would not renew his license upon its expiration date of January 25, 1989. He further requested return of petitioner’s license, validation certificate, and personal identification card. The letter cited § 10(l)(c) of 1965 PA 285, the Private Detective License Act (pdla), MCL 338.830(1)(c); MSA 18.184(10)(l)(c), stating that it is sufficient reason to revoke a license if the licensee has been convicted of a felony.

On January 23, 1989, petitioner presented Lieutenant Baird with a partially completed application for license renewal, the necessary bond fees, a statement in explanation of his felony conviction, and a statement that the prosecuting attorney of Ingham County and the Chief of Police of the City of Lansing refused to endorse his application on the basis of his felony conviction in federal court. Lieutenant Baird rejected the application because of the felony conviction. Subsequently, petitioner’s attorney wrote Lieutenant Baird on February 1, 1989, resubmitting the renewal application with a request that the department reconsider it. Petitioner’s counsel argued that because petitioner’s 1987 felony conviction did not involve dishonesty or fraud or any other activity proscribed by the Private Detective License Act, his license should not be denied. Lieutenant Baird replied, restating his reason for the denial of licensure and indicating that petitioner had no further authority to operate as a private detective because his license had expired. This Court granted interlocutory appeal and remanded the case to the lower court for resolution of the merits of petitioner’s statutory construction claim regarding the Private Detective License Act. The lower court, on remand, ruled that the Private Detective License Act does not provide for revocation or denial of licenses on the basis of any felony conviction, but rather felony convictions involving dishonesty. 1

Section 10 of the Private Detective License Act, MCL 338.830; MSA 18.184(10), provides in part:

(1) The secretary of state may revoke a license issued under this act if the secretary determines, upon good cause shown, that the licensee . . . has:

(c) Been convicted of a felony or misdemeanor involving dishonesty or fraud, unauthorized divulging or selling of information or evidence, impersonation of a law enforcement officer or employee of the United States or a state, or a political subdivision of either, of illegally using, carrying, or possessing a dangerous weapon, or is not of good moral Character.

The same requirements appear in §6(l)(c) and (f) of the act, MCL 338.826(l)(c), (f); MSA 18.184(6)(1) (c), (f), concerning qualifications of an applicant for a license as a private detective or private investigator.

Petitioner contends that the modifying clause "involving dishonesty or fraud . . .” also modifies the word felony and that his felony does not come within that language. The Department of State Police, on the other hand, maintains that merely being convicted of a felony, without regard to any modifying clause, is sufficient ground for denial of an application or renewal of an application or revocation of a private detective license.

It is not clear from reviewing the statute whether the act encompasses all felonies or just those involving dishonesty or fraud because of the placement of the word "or.” Where the disjunctive "or” creates an ambiguity in a statute, the statute should be construed to give effect to the general purpose sought to be accomplished by the Legislature. Nolan v Dep’t of Licensing & Regulation, 151 Mich App 641, 648; 391 NW2d 424 (1986). In determining the intention of the Legislature, the rules of statutory construction serve as guidance. Id. An established principle of statutory construction is that a modifying clause is confined to the last antecedent unless something in the subject matter or dominant purpose requires a different interpretation. Nemzin v Sinai Hospital, 143 Mich App 798, 801; 372 NW2d 667 (1985). In the present case, we find that the purpose of the statute requires a different interpretation.

The pdla was amended pursuant to 1978 PA 311, HB 5731, to add the "good moral character” standard found in MCL 338.826(l)(c); MSA 18.184(6)(l)(c); MCL 338.830(l)(c); MSA 18.184(10) (l)(c). Numerous other licensing provisions were amended as well to add this standard to their application and revocation provisions. Before they were amended, the House Bills for these amendments were "tie-barred” to HB 5213 of the 1977 regular session, which became 1978 PA 294, now MCL 338.41 et seq.; MSA 18.1208(1) et seq., or the licensing of former offenders act (lfoa), meaning they would not be effective if HB 5213 was not enacted. The stated purpose of the lfoa is

to encourage and contribute to the rehabilitation of former offenders and to assist them in the assumption of the responsibilities of citizenship; to prescribe the use of the term "good moral character” or similar term as a requirement for an occupational or professional license or when used as a requirement to establish or operate an organization or facility regulated by this state; and to provide administrative and judicial procedures to contest licensing board or agency rulings thereon.

The legislative analysis of HB 5213 is enlightening. The House Legislative Analysis Section noted:

Prisoners who have a marketable trade which they can practice when they leave prison are much more likely to make a successful reentry into society than those who do not. In the past, however, a prison conviction itself has been used as the only reason to deny a person a professional license, even when there was no possible connection between the nature of the crime and the licensed profession. Recognizing that this thwarts the goal of rehabilitation, the legislature enacted Public Act 381 of 1974 [the lfoa] which prohibited licensing boards from using a conviction as the sole grounds for denying an application. In the same act, the legislature also defined "good moral character”, intending that this uniform definition would be used by all state licensing boards, so that the determination of good moral character could not be an arbitrary one. A June 1975 opinion of the attorney general, however, stated that the act was constitutionally faulty because it attempted to alter or amend the many separate licensing acts without reenacting the appropriate sections. Thus, in order to accomplish the primary purposes of Public Act 381, these licensing statutes still need to be amended individually. [House Legislative Analysis, HB 5213, November 29, 1977. Emphasis added.]

HB 5213 amended 1974 PA 381 to state that a licensing board or agency could not use a judgment of guilty in a criminal or civil prosecution as the sole proof of an applicant’s lack of good moral character, although it could be considered in determining the applicant’s good moral character. The bill also clarified the use of criminal records in connection with a license application.

It is well established that statutes relating to the same subject matter should be read together and construed to preserve the intent of each other. Gooden v Transamerica Ins Corp of America, 166 Mich App 793, 804; 420 NW2d 877 (1988). We believe, as the trial court apparently believed, that the pdla, like the lfoa to which it is tied, seeks to remove barriers to the reintegration into society of former offenders. The pdla specifically refers to the "good moral character” standard "as defined . . . under . . . sections 338.41 to 338.47 of the Michigan Compiled Laws [the lfoa].” MCL 338.822(a); MSA 18.184(2)(a). We therefore believe that the "dishonesty or fraud” language as well as the other proscribed activity stated in MCL 338.826(l)(f); MSA 18.184(6)(l)(f) and MCL 338.830(l)(c); MSA 18.184(10)(l)(c) 2 modifies both "felony” and "misdemeanor.” Respondent contends that if we adopt the position urged by petitioner, then persons convicted of crimes such as criminal sexual conduct and murder may be eligible for a private detective’s license, while those convicted of a fraudulent or dishonest crime such as forgery will not be eligible for a license. However, respondent’s argument is without merit because a person convicted of such a crime would not be likely to meet the "good moral character” standard of the PDLA.

Accordingly, we find that the pdla does not permit the state to refuse or revoke certification on the sole basis that a detective has been convicted of any felony, although the fact that a person has any felony conviction may be considered in determining whether that person is of good moral character. Rather, the pdla permits the state to refuse or revoke certification on the sole basis that a detective or applicant has been convicted of a felony only if that felony involves fraud or dishonesty or other proscribed activity stated under §§6(l)(f) and 10(l)(c) of the act. 3 To hold otherwise would thwart the purpose of the lfoa, to which the pdla is closely tied. We therefore affirm the trial court’s interpretation of the statute, but find it necessary to remand to the Department of State Police for an evidentiary hearing to determine whether petitioner’s conviction involved dis honesty or fraud or other proscribed activity under the act or whether petitioner is not of good moral character.

Affirmed in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 It is not clear, but we presume that the trial court found that a license could be revoked on the basis of a felony conviction involving other proscribed activity stated in the act such as fraud, unauthorized divulging or selling of information or evidence, impersonation of a law enforcement officer or employee of the United States or a state, or a political subdivision of either, or illegally using, carrying, or possessing a dangerous weapon.

2 Unauthorized divulging or selling of information or evidence, impersonation of a law enforcement officer or employee of the United States or a state, or a political subdivision of either, or illegally using, carrying, or possessing a dangerous weapon.

3 See proscribed activity listed in footnote 2. Of course, the state may also refuse or revoke certification on the sole basis that a person has been convicted of a misdemeanor involving dishonesty or fraud or other stated proscribed activity under the act, or on the sole basis that a person is not of good moral character. See MCL 338.826(l)(c), (0; MSA 18.184(6)(l)(c), (0; MCL 338.830(l)(c); MSA 18.184(10)(lXc).