Orion Security v. Board of Police Com'Rs

• Decision Date: 15 October 2002
• Docket Number: No. WD 61195.,WD 61195.
• Citation: 90 S.W.3d 157
• Parties: ORION SECURITY, INC., Appellant, v. BOARD OF POLICE COMMISSIONERS OF KANSAS CITY, MISSOURI, et al., Respondents.
• Court: Missouri Court of Appeals

90 S.W.3d 157

ORION SECURITY, INC., Appellant, v. BOARD OF POLICE COMMISSIONERS OF KANSAS CITY, MISSOURI, et al., Respondents.

No. WD 61195.

Missouri Court of Appeals, Western District.

October 15, 2002.

Application for Transfer Denied December 24, 2002.

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Robert Peter Smith, Kansas City, for appellant.

Dale H. Close, Albert A. Riederer II, Kansas City, for respondent.

Before JOHN E. PARRISH, Special Judge, KERRY L. MONTGOMERY, Special Judge, and ROBERT S. BARNEY, Special Judge.

ROBERT S. BARNEY, Special Judge.

Appellant Orion Security, Inc. (Orion) appeals from a judgment in favor of the Board of Police Commissioners of Kansas City (Police Board) which upheld a 30-day suspension of Orion's private security license because one of its employees, Florence Meador, performed private security services without a license.¹

Orion presents four points on appeal. Point I alleges that the decision makers on the Police Board violated its rights to procedural due process because its members were partial and biased against Orion and its president, Charles Stephenson. Point II claims that the suspension was not supported by competent and substantial evidence upon the whole record and was unauthorized by 17 C.S.R. § 10-2.060(10) and (11) (1997), the code of state regulations which regulates individuals and entities providing private security services. Orion maintains that no violation of the regulations took place, or, alternately, that the violation was not committed by Orion's officers, directors, partners or associates. Point III alleges the suspension imposed by the Police Board was arbitrary, capricious, unreasonable and an abuse of discretion, because of its undue harshness, particularly as compared to the treatment accorded other violating entities or persons. Point IV chiefly asseverates that the Police Board exceeded its regulatory authority because the original letter suspending Orion from conducting any private security business in Kansas City, Missouri, was not signed by the Chief of Police or his authorized designee.

Orion is licensed by the Police Board, pursuant to statutory authority provided by § 84.720, RSMo 1994 and 17 CSR 10-2.060 (1997), to perform private security functions within the city limits of Kansas City. Charles Stephenson is Orion's president, sole director, and sole owner.

Orion hired Florence Meador in 1996 after she worked as a security officer in the State of Kansas and in Independence, Missouri. Meador applied at the Private Officer's Licensing Section (Licensing Section) for a license to work in Kansas City, Missouri, and received a temporary license. However, Meador failed the required written test and the Licensing Section notified Meador and Orion that her private security license was suspended. Meador also notified both Stephenson and Patti Rentrop,² an Orion employee, of her suspended status and that she desired assistance with the test.

Despite her suspended status, Orion continued to schedule Meador to work at the Pepsi-Cola Bottling plant in Kansas City, Missouri. Meador informed the Licensing Section of this violation on several occasions. Tamy K. Gallagher, Supervisor of the Licensing Section, called Stephenson to inform him of the violation. Stephenson informed her, in no uncertain terms, that no unlicensed personnel were working for Orion in Kansas City, Missouri.

Supervisor Gallagher informed the Kansas City Metro Patrol Division that Meador was working without a license at the Pepsi plant. On February 27, 1998, law enforcement officers from the Metro Patrol Division went to the Pepsi plant and found Meador. Meador was clothed in an Orion uniform and informed the officers that she was on-duty as a security guard, and affirmed that she was not licensed as a security guard. Meador was taken into custody and booked for false impersonation of a security guard. Meador subsequently affirmed that Stephenson had hired her and that Orion had been informed of her unlicensed status, yet, continued to schedule her to work at the Pepsi Plant and at another location in the area. Meador also provided time sheets and pay stubs from Orion for work performed after notice of her suspension, including at least 13 shifts actually worked inside the city limits of Kansas City, Missouri.

Orion claimed that Meador was inadvertently scheduled to work after her suspension and claims that she was removed from the schedule as soon as it discovered the oversight. Orion also claimed that it attempted, without success, to contact Meador to advise her of the scheduling change. According to Orion, although Meador was at the Pepsi plant when arrested, she had not officially signed in on the register and Orion did not recognize her as actually starting work that evening.

In March of 1998, former Chief of Police, Floyd 0. Bartch, had a discussion with staff members regarding the Meador matter. Based on facts arising from the discussion, Chief Bartch decided, pursuant to the authority granted by 17 CSR 10-2.060 (1997), that Orion's license to operate a private security service should be suspended. On March 19, 1998, Supervisor Gallagher sent a certified letter to Stephenson suspending Orion and all employees licensed with the company from conducting any private security business in Kansas City, Missouri, for a 90-day period beginning on April 1, 1998, and continuing until June 30, 1998.³

Orion appealed the decision to the Police Board on March 24, 1998. After the Police Board heard the evidence, but before its final decision, it allowed the two parties to attempt to settle the matter to prevent Orion from going out of business. Chief Burtch proposed an alternative penalty which included a 6-month probation and a fine of $10,000.00. Orion rejected the proposal. Later the Police Board affirmed the suspension, but reduced it to 30 days. Orion then petitioned the Circuit Court of Cole County for review of the Police Board's decision. On February 14, 2002, the Circuit Court affirmed the Police Board's decision. Orion now appeals to this Court.

"This court reviews the decision of the Board, not that of the circuit court." Kendrick v. Board of Police Com'rs of Kansas City, Mo., 945 S.W.2d 649, 651 (Mo.App.1997); Fritzshall v. Board of Police Comm'rs, 886 S.W.2d 20, 23 (Mo.App. 1994). "On appeal from an agency decision in contested case, we consider only whether the agency's findings are supported by competent and substantial evidence on the record as a whole." Kendrick, 945 S.W.2d at 651. "We may not substitute our judgment on the evidence for that of the agency, and we must defer to the agency's determinations on the weight of the evidence and the credibility of witnesses." Id.; Fritzshall, 886 S.W.2d at 23. "If the decision of the agency is supported by substantial and competent evidence on the whole record, it must be affirmed." Kendrick, 945 S.W.2d at 651. "On the other hand, we must reverse the agency's findings if it is determined the decision is not supported by competent and substantial evidence on the whole record, or if the decision constitutes an abuse of discretion, or is unauthorized by law, or is arbitrary and capricious." Id.; Fritzshall, 886 S.W.2d at 23. The evidence and all reasonable inferences from the evidence is considered in the light most favorable to the administrative agency's findings. Kendrick, 945 S.W.2d at 651; see also State Bd. of Nursing v. Berry, 32 S.W.3d 638, 640 (Mo.App.2000). "The fact-finding function rests with the [agency], and even if the evidence would support either of two findings, the court is bound by the [agency's] factual determination." Berry, 32 S.W.3d at 640. While this Court cannot substitute its own judgment on factual matters, it can independently determine questions of law. Id. at 641.

"The term `substantial evidence' both implies and comprehends competent evidence." Fujita v. Jeffries, 714 S.W.2d 202, 206 (Mo.App.1986). Substantial evidence is defined by the Missouri Supreme Court in Collins v. Division of Welfare, 364 Mo. 1032, 270 S.W.2d 817 (Mo. banc 1954) as:

[E]vidence which, if true, has probative force upon the issues, i.e., evidence favoring facts which are such that reasonable men may differ as to whether it establishes them; it is evidence from which the trier or triers of the fact reasonably could find the issues in harmony therewith; it is evidence of a character sufficiently substantial to warrant the trier of facts in finding from it the facts, to establish which the evidence was introduced.

Id. at 820; see also Sprint Comms. Co., L.P. v. Dir. of Revenue, 64 S.W.3d 832, 834 (Mo. banc 2002).

In our review of Orion's first point, we observe that Orion maintains that the decision makers on the Board of Police were partial and biased against Orion and its president, Charles Stephenson. Orion contends that this bias constitutes a due process violation that was contrary to the company's rights under Article I, Section 10 of the Missouri Constitution and Amendment 14 of the United States Constitution.

"The procedural due process requirement of fair trials by fair tribunals applies to administrative agencies acting in an adjudicative capacity." Fitzgerald v. City of Maryland Heights, 796 S.W.2d 52, 59 (Mo.App.1990). "Administrative decisionmakers must therefore be impartial." Id. A decision maker who has unalterably prejudged the adjudicative facts is biased. Id.

"[A]dministrative decisionmakers are no more expert at determining their impartiality than judges are at determining theirs." Id. Since 17-CSR 10-2.060 (1997) places Police Board members in the position of adjudicators making findings of fact and conclusions of law, the determination of the existence of their impartiality should be reviewed using the same standard used to review a judge's determination of his or her challenged impartiality. Id. Accordingly, challenges to the adjudicator's...