Rios v. Department of State Police

• Decision Date: 01 April 1991
• Docket Number: Docket No. 118267
• Citation: 469 N.W.2d 71,188 Mich.App. 166
• Court: Court of Appeal of Michigan — District of US
• Parties: Gonzalo RIOS, III, Petitioner-Appellee, v. DEPARTMENT OF STATE POLICE, Respondent-Appellant. 188 Mich.App. 166, 469 N.W.2d 71

Page 71

469 N.W.2d 71

Gonzalo RIOS, III, Petitioner-Appellee, v. DEPARTMENT OF STATE POLICE, Respondent-Appellant.

Docket No. 118267.

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

Court of Appeals of Michigan.

Submitted Jan. 23, 1991, at Lansing.

Decided April 1, 1991, at 9:15 a.m.

Released for Publication May 17, 1991.

[188 MICHAPP 166] Farhat, Story & Kraus, P.C. by Richard C. Kraus and Timothy M. Perrone, East Lansing, for petitioner-appellee.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., and Michael A. Lockman and William H. Schwan, Asst. Attys. Gen., for respondent-appellant.

[188 MICHAPP 167] Before BRENNAN, P.J., and GRIBBS and FITZGERALD, JJ.

BRENNAN, Presiding Judge.

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 Sec. 10(1)(c) of 1965 P.A. 285, the Private Detective License Act (PDLA), M.C.L. Sec. 338.830(1)(c); M.S.A Sec. 18.184(10)(1)(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 [188 MICHAPP 168] 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, M.C.L. Sec. 338.830; M.S.A. Sec. 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 [188 MICHAPP 169] 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 Sec. 6(1)(c) and (f) of the act, M.C.L. Sec. 338.826(1)(c), (f); M.S.A. Sec. 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 N.W.2d 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 N.W.2d 667 (1985). In the present [188 MICHAPP 170] case, we find that the purpose of the statute requires a different interpretation.

The PDLA was amended pursuant to 1978 P.A. 311, HB 5731, to add the "good moral character" standard found in M.C.L. Sec. 338.826(1)(c); M.S.A. Sec. 18.184(6)(1)(c); M.C.L. Sec. 338.830(1)(c); M.S.A. Sec. 18.184(10)(1)(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 P.A. 294, now M.C.L. Sec. 338.41 et seq.; M.S.A. Sec. 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 [188 MICHAPP 171] licensing boards...