Oregon Administrative Rules|Section 259-060-0300 - Denial/Suspension/Revocation

                                                
Current through Register Vol. 60, No. 12, December 1, 2021 
(1) The Board, in conjunction with the Private Security and Investigator Policy Committee, is responsible for establishing the minimum standards for the licensure or certification of private security providers. This rule defines the Board's standards and the Department's procedures for denial, suspension or revocation.
 
(2) The Board, in conjunction with the Private Security and Investigator Policy Committee, and the Department are the only entities with the authority to make a determination on whether or not the minimum standards for certification or licensure as a private security provider have been violated.
 
(3) Mandatory Grounds for Denying or Revoking Private Security Certification or Licensure. The Department must deny or revoke a certification or license of any applicant or private security provider after written notice and hearing, if requested, upon a finding that the applicant or private security provider: 
(a) Has been convicted of a person felony as defined by the Criminal Justice Commission in OAR 213-003-0001 in effect on February 3, 2014 or any crime with similar elements in any other jurisdiction; 
 
(b) Is required to register as a sex offender under ORS 163A.010, 163A.015, 163A.020 or 163A.025; or
 
(c) Has, within a period of ten years prior to application or during certification or licensure, been convicted of the following: 
(A) Any felony other than those described in subsection (a) above or any crime with similar elements in any other jurisdiction;
 
(B) A person class A misdemeanor as defined by the Criminal Justice Commission in OAR 213-003-0001 in effect on February 3, 2014 or any crime with similar elements in any other jurisdiction;
 
(C) Any crime involving any act of domestic violence as defined in ORS 135.230 or any crime with similar elements in any other jurisdiction;
 
(D) Any misdemeanor or felony conviction involving the unlawful use, possession, delivery or manufacture of a controlled substance, narcotic, or dangerous drug in this or any other jurisdiction; 
 
(E) Any misdemeanor arising from conduct while on duty as a private security provider; or
 
(F) Any of the following misdemeanors or any crime with similar elements in any other jurisdiction: 
161.405(2)(d) (Attempt to Commit a Class C Felony or Unclassified Felony);
 
161.435(2)(d) (Solicitation of a Class C Felony);
 
161.450(2)(d) (Conspiracy to Commit a Class A misdemeanor); 
 
162.075 (False Swearing);
 
162.085 (Unsworn Falsification);
 
162.145 (Escape III);
 
162.235 (Obstructing Governmental or Judicial Administration); 
 
162.247 (Interfering with a Peace Officer);
 
162.295 (Tampering with Physical Evidence);
 
162.335 (Compounding a Felony);
 
162.365 (Criminal Impersonation);
 
162.369 (Possession of a False Law Enforcement Identification Card);
 
162.375 (Initiating a False Report);
 
162.385 (Giving False Information to Police Officer for a Citation or Arrest on a Warrant);
 
162.415 (Official Misconduct I);
 
163.435 (Contributing to the Sexual Delinquency of a Minor); 
 
164.043 (Theft III);
 
164.045 (Theft II);
 
164.125 (Theft of Services);
 
164.140 (Criminal Possession of Rented or Leased Personal Property);
 
164.235 (Possession of Burglar's Tools);
 
164.255 (Criminal Trespass I);
 
164.265 (Criminal Trespass while in Possession of a Firearm); 
 
164.335 (Reckless Burning);
 
164.354 (Criminal Mischief II);
 
164.369 (Interfering with Police Animal);
 
164.377(4) (Computer Crime);
 
165.007 (Forgery II);
 
165.055(4)(a) (Fraudulent Use of a Credit Card);
 
165.065 (Negotiating a Bad Check);
 
165.570 (Improper Use of Emergency Reporting System);
 
166.116 (Interfering with Public Transportation);
 
166.240 (Carrying of Concealed Weapons);
 
166.250 (Unlawful Possession of Firearms);
 
166.350 (Unlawful Possession of Armor Piercing Ammunition); 
 
166.425 (Unlawful Purchase of Firearm);
 
167.007 (Prostitution) ;
 
167.008 (Patronizing a Prostitute);
 
167.062 (Sadomasochistic Abuse or Sexual Conduct in a Live Show);
 
167.075 (Exhibiting an Obscene Performance to a Minor);
 
167.080 (Displaying Obscene Material to Minors);
 
167.262 (Adult Using Minor in Commission of Controlled Substance Offense);
 
167.320 (Animal Abuse I);
 
167.330 (Animal Neglect I);
 
471.410 (Providing Liquor to a Person Under 21 or Intoxicated Person);
 
807.620 (Giving False Information to a Police Officer/Traffic); 
 
811.540(3)(b) (Fleeing or Attempting to Elude Police Officer).
 
(4) Emergency Suspension. 
(a) The Board has determined, based on the principles of diminishing skills, that a serious risk to public health and safety is created by certifying individuals to possess or have access to a firearm while providing private security services or instructing the private security basic firearms, marksmanship qualification, and armed refresher courses when those individuals do not demonstrate and provide proof of their current knowledge, skills and abilities with a firearm by meeting the firearms qualification and training requirements defined in these rules.
 
(b) The Board has determined that a serious risk to public health and safety is created by allowing a person who is certified or licensed as a private security provider to continue to provide private security services once the Department has been made aware that the person has been charged with a crime that has been defined as a mandatory disqualifier in section (3) of this rule.
 
(c) In order to mitigate the risks to public health and safety, the Department may issue an emergency suspension order pursuant to OAR 137-003-0560 immediately suspending a private security provider's certification or licensure upon finding that: 
(A) An armed private security professional or private security firearms instructor failed to meet the firearms qualification and training requirements defined in these rules; or
 
(B) A person has been charged with any of the mandatory disqualifying crimes listed in section (3) of this rule. The report of a charge may be in any form and from any source.
 
(d) The Department may combine the hearing on the Emergency Suspension Order with any underlying proceeding affecting the license or certificate.
 
(e) The sole purpose of the emergency suspension hearing for an emergency suspension order based upon a failure to meet the firearms qualification and training requirements will be to determine whether the individual satisfied the requirements. Upon showing that the individual has satisfied the requirements, the suspension of the individual's certification will be rescinded, otherwise the suspension will remain in effect until the requirements have been satisfied.
 
(f) The sole purpose of the emergency suspension hearing for an emergency suspension order based upon the charge of a mandatory disqualifying crime will be to determine whether the individual was charged with a mandatory disqualifying crime. Upon showing that an individual was not charged with a mandatory disqualifying crime, the suspension of the individual's certification or licensure will be rescinded, otherwise the suspension will remain in effect until final disposition of the charges.
 
(5) Discretionary Grounds for Denying or Revoking Private Security Certification or Licensure. The Department may deny or revoke the certification or licensure of any applicant or private security provider after written notice and hearing, if requested, upon finding that an applicant or private security provider: 
(a) Fails to meet the minimum standards for certification or licensure as a private security provider as defined in OAR 259-060-0020;
 
(b) Has falsified any information submitted on the application for certification or licensure or any documents submitted to the Department pertaining to private security certification or licensure;
 
(c) Has violated any of the temporary assignment provisions of OAR 259-060-0030; 
 
(d) Has failed to submit properly completed forms or documentation in a time frame as designated by the Department;
 
(e) Has failed to pay a civil penalty or fee imposed by the Department when due;
 
(f) Has failed to comply with any provisions found in the Act or these rules; or
 
(g) Lacks moral fitness. For the purposes of this standard, the Department, through the Policy Committee and Board, has defined lack of moral fitness as: 
(A) Dishonesty. Lack of honesty includes, but is not limited to, untruthfulness, dishonesty by admission or omission, deception, misrepresentation or falsification;
 
(B) Lack of Good Character. Lack of good character includes, but is not limited to, failure to be faithful and loyal to the employer's charge and failure to use discretion and compassion;
 
(C) Mistreatment of Others. Mistreatment of others includes, but is not limited to, violating another person's rights and failure to respect others;
 
(D) Lack of Public Trust. Failure to maintain public trust and confidence includes, but is not limited to, acting in an unlawful manner or not adhering to recognized industry standards; or
 
(E) Lack of Respect for the Laws of this State or Nation. Lack of respect for the laws of this state and nation includes a pattern of behavior which leads to three or more arrests or convictions within a ten-year period prior to application or during certification or licensure.
 
(6) Scope of Revocation. Whenever the Department revokes the certification or licensure of a private security provider under the mandatory or discretionary grounds defined in this rule, the revocation will encompass all private security certificates and licenses the Department has issued to that person.
 
(7) Denial and Revocation Procedure. 
(a) When the Department receives information from any source that a private security provider may not meet the established standards for Oregon private security providers, the Department will review the information to determine if substantial evidence exists to support denial, suspension, or revocation of a private security license or certification under the Act or these administrative rules.
 
(b) If the Department determines by a preponderance of evidence that a private security provider may have engaged in discretionary disqualifying misconduct:
(A) The Department will seek input from the affected private security provider by allowing the individual to provide, in writing, information for review. 
 
(B) The Department may take action upon discovery of discretionary disqualifying misconduct when consensus is reached that the nature of the discretionary disqualifying misconduct is appropriate for summary staff disposition or administrative closure.
 
(C) If Department staff believes that a private security provider may have engaged in discretionary disqualifying misconduct, Department staff will review the conduct, including aggravating and mitigating circumstances. If Department staff is unable to reach a consensus to summarily dispose of or administratively close the case, the case will be presented to the Board, through the Policy Committee.
 
(c) In making a decision to authorize initiation of proceedings under subsection (d) of this rule based on discretionary disqualifying misconduct, Department staff, the Policy Committee and Board will consider mitigating and aggravating circumstances.
 
(d) Initiation of Proceedings: Upon determination that a sufficient factual basis exists to support the request for denial, suspension, or revocation of a private security license or certification under the Act or these administrative rules, the Department will prepare and serve a contested case notice on the private security provider. 
(A) All contested case notices will be prepared in accordance with the applicable provisions of the Attorney General's Model Rules of Procedure adopted under OAR 259-005-0015.
 
(B) In discretionary cases heard by a policy committee, the contested case notice will be served on the private security provider prior to Board review. If the Board disapproves the Policy Committee's recommendation, the Department will withdraw the contested case notice. 
 
(C) Applicants who choose to withdraw their application forfeit their application fees.
 
 
(e) Response Time: 
(A) A party who has been served with an Emergency Suspension Order has 90 days from the date of mailing or personal service of the Order in which to file a written request for hearing with the Department.
 
(B) A party who has been served with a Contested Case Notice of Intent to Deny Certification or Licensure has 60 days from the date of mailing or personal service of the notice in which to file a written request for hearing or a written request withdrawing their application from consideration with the Department. 
 
(C) A party who has been served with a Contested Case Notice of Intent to Revoke Certification or Licensure has 20 days from the date of the mailing or personal service of the notice in which to file a written request for hearing with the Department.
 
 
(f) Default Orders: 
(A) If a timely request for a hearing is not received, the Contested Case Notice will become a final order denying or revoking certification pursuant to OAR 137-003-0672.
 
(B) If a timely request for a hearing is not received in cases heard by a policy committee, the Contested Case Notice will become a final order denying or revoking certification pursuant to OAR 137-003-0672, pending Board affirmation.
 
(g) Final Order: 
(A) A final order will be issued pursuant to the applicable provisions of the Attorney General's Model Rules of Procedure adopted under OAR 259-005-0015 if a private security provider fails to file exceptions and arguments within 20 days of issuance of the proposed order. 
 
(B) Department-proposed amendments to the proposed order in a case that was originally heard by a policy committee must be considered and approved by the policy committee that originally reviewed the case before a final order is issued.
 
(h) Stipulated Order Revoking Certification or Licensure: The Department may enter a stipulated order revoking certification or licensure of a private security provider upon the person's voluntary agreement to terminate an administrative proceeding to revoke a certification or license, or to surrender a certification or license, under the terms and conditions provided in the stipulated order.
 
(8) Appeal Procedure. Private security applicants and providers aggrieved by the findings and Order of the Department may file an appeal with the Court of Appeals from the Final Order of the Department, as provided in ORS 183.480.
 
(9) Notwithstanding section (10) of this rule, any private security applicant or provider whose certification or licensure is denied or revoked will be ineligible to hold any private security certification or licensure for a period of ten years from the date of the final order issued by the Department.
 
(10) Reconsideration Process. Any individual whose certification or license has been denied or revoked for discretionary grounds may apply for reconsideration of the denial or revocation after a minimum four-year ineligibility period from the date of the final order. 
(a) All applicants for reconsideration are required to submit a new application packet along with a Form PS- 30 Application for Reconsideration. The applicant may provide any mitigating information for the consideration of DPSST, Policy Committee, and Board. 
 
(b) In reconsidering the application of an applicant whose certification or licensure was previously denied or revoked for discretionary grounds, DPSST, the Policy Committee and the Board may consider mitigating and aggravating circumstances.
 
(c) The Board's decision to deny an application for reconsideration will be subject to the contested case procedure described under section (7) of this rule.
 
(d) If an application for reconsideration is denied, the original ineligibility date remains in effect as described in section (9) of this rule.
 
(11) Denial, Revocation or Emergency Suspension of Private Security Certifications for Emotional Fitness. The Department may request a certified armed private security professional or private security firearms instructor, or applicant for either profession, to submit to a medical examination, conducted by an independent medical provider approved by the Department, to determine the emotional fitness of the applicant or certified private security provider if the Department receives information from another public agency that the applicant or certified private security provider poses a serious risk to public health and safety. The Department will review the evaluation and make a determination based on the evaluation and all other information obtained or received by the Department whether the applicant or certified private security provider poses a serious risk to public health and safety. If the Department determines that the emotional state of the applicant or certified private security provider poses a serious risk to public health and safety based on existing information, the Department shall deny the application or revoke the certification.
(a) For the purposes of this standard, evidence of a serious risk to public health and safety is defined as information that demonstrates the significant probability that a certified armed private security professional's, private security firearms instructor's, or applicant's emotional state could result in unpredictable or violent behavior that could result in the serious injury or death of another person.
 
(b) For the purposes of this standard, receipt of information from another public agency includes information from a city, county, state, tribal or federal government entity that was obtained through the submitting entity's direct assessment of the individual's emotional or mental state, or information that the submitting entity obtained through a request for an assessment of the individual's emotional or mental state. The receipt of information does not include complaints that are forwarded to or received by the Department without any supporting documentation.
 
(c) The Department will contact the affected provider or applicant in writing with the request for the individual to submit to a medical examination to determine emotional fitness within 14 days of the receipt of information from another public agency.
 
(d) The applicant or provider will have 30 days from the date of the Department's request to respond to the Department as either willing to participate in the medical examination or refusing the medical examination. Should the affected individual not provide a response within the 30 days or refuse further medical examination by the medical provider approved by the Department, the Department may proceed in reviewing the information available and making a determination.
 
(e) In recognition of the impact on the affected individual's employment, the Department will make every effort to schedule the requested medical evaluation as quickly as possible.
 
(f) Refusal to submit to a medical examination cannot be the sole basis for a determination that the affected individual poses a serious risk to public health and safety.
 
(g) If the Department determines that the affected individual poses a serious risk to public health and safety, the Department will prepare and serve the private security provider with a Notice of Intent to deny or revoke certification and the Department may prepare and serve the private security provider with an Emergency Suspension Order. 
 
(h) All orders and notices issued pursuant to this standard will be prepared in accordance with the applicable provisions of the Attorney General's Model Rules of Procedure adopted under OAR 259-005-0015. 
(I) Response Time: 
(i) A party who has been served with an Emergency Suspension Order has 90 days from the date of mailing or personal service of the Order in which to file a written request for hearing with the Department.
 
(ii) A party who has been served with a Contested Case Notice of Intent to Deny Certification has 60 days from the date of mailing or personal service of the notice in which to file a written request for hearing or a written request withdrawing their application from consideration with the Department.
 
(iii) A party who has been served with a Contested Case Notice of Intent to Revoke Certification or Licensure has 20 days from the date of the mailing or personal service of the notice in which to file a written request for hearing with the Department.
 
 
(j) Default Orders: If a timely request for a hearing is not received, the Contested Case Notice will become a final order denying or revoking certification pursuant to OAR 137-003-0672. 
 
(k) Hearing Request: If a timely request for a hearing is received, the Department will refer the matter to the Office of Administrative Hearings in accordance with OAR 137-003-0515.
 
(l) Proposed and Final Orders: In cases where a hearing is requested, proposed orders, exceptions, and final orders will be issued pursuant to the applicable provisions of the Attorney General's Model Rules of Procedure adopted under OAR 259-005-0015.
 
(m) The denial, suspension or revocation of an individual's armed private security professional certification or private security firearms instructor certification based upon emotional fitness will not impact the individual's ability to apply for other private security provider certificates or licenses.
 
(n) Any application for certification as an armed private security professional or a private security firearms instructor submitted by an individual whose certification was denied or revoked based upon emotional fitness will be denied until the Department has been provided with satisfactory evidence that the applicant no longer poses a serious risk to public health and safety.
 
Or. Admin. R. 259-060-0300
PS 9-1997, f. & cert. ef. 8-20-97; PS 10-1997(Temp), f. & cert. ef. 11-5-97; BPSST 1-1998, f. & cert. ef. 5-6-98; BPSST 2-1998(Temp), f. & cert. ef. 5-6-98 thru 6-30-98; BPSST 3-1998, f. & cert. ef. 6-30-98; BPSST 3-1999(Temp), f. & cert. ef. 3-9-99 thru 9-5-99; BPSST 4-1999, f. 4-29-99, cert. ef. 9-5-99; BPSST 3-2000, f. & cert. ef. 8-10-00; BPSST 8-2001(Temp), f. & cert. ef. 8-22-01 thru 2-18-02; BPSST 18-2001(Temp), f. & cert. ef. 11-28-01 thru 2-18-02; BPSST 4-2002(Temp), f. & cert. ef. 2-25-02 thru 7-1-02; BPSST 13-2002, f. & cert. ef. 4-30-02; DPSST 4-2003, f. & cert. ef. 1-22-03; DPSST 10-2003(Temp), f. & cert. ef. 6-16-03 thru 12-1-03; DPSST 12-2003, f. & cert. ef. 7-24-03; DPSST 6-2004, f. & cert. ef. 4-23-04; DPSST 5-2005(Temp), f. & cert. ef. 8-3-05 thru 1-1-06; DPSST 10-2005, f. & cert. ef. 10-14-05; DPSST 6-2006, f. & cert. ef. 5-15-06; DPSST 25-2012, f. 10-26-12, cert. ef. 11-1-12; DPSST 12-2013, f. & cert. ef. 6-24-13; DPSST 3-2014, f. & cert. ef. 1-2-14; DPSST 4-2014, f. & cert. ef. 1-28-14; DPSST 8-2014(Temp), f. & cert. ef. 3-6-14 thru 8-1-14; DPSST 15-2014, f. & cert. ef. 6-24-14; DPSST 20-2014, f. & cert. ef. 7-30-14; DPSST 5-2015, f. & cert. ef. 3-24-15; DPSST 10-2017(Temp), f. & cert. ef. 6-23-17 thru 12-19-17; DPSST 21-2017, amend filed 12/05/2017, effective 12/20/2017; DPSST 3-2018, amend filed 01/29/2018, effective 2/1/2018; DPSST 68-2018, amend filed 10/25/2018, effective 1/1/2019; DPSST 31-2020, amend filed 11/06/2020, effective 1/1/2021
Statutory/Other Authority: ORS 181A.870
 
Statutes/Other Implemented: ORS 181A.870, ORS 181A.850, ORS 181A.855, ORS 181A.880 & ORS 181A.885 
This section was updated on 2/11/2021 by an editor because it was made effective.