Discussion

Pursuant to § 5135, this Commission may deny a Household Goods Carrier permit "if it can be shown that an applicant . . . has committed any act constituting dishonesty or fraud; committed any act which, if committed by a permitholder would be grounds for suspension or revocation of the permit; misrepresented any material fact on his application; or, committed a felony, or an act of moral turpitude." CSD has presented undisputed evidence that this applicant: (1) was convicted of a misdemeanor, and (2) failed to disclose the conviction on his application. Applicant responds by explaining the circumstances surrounding his arrest and conviction.

CSD contends that Croy's criminal history is similar to that of the applicant in Application of Porter, Decision (D.) 98-02-100. There the applicant had been convicted of second degree burglary and assault with intent to rape 16 years prior to applying for authority to operate as an Energy Service Provider. The Commission concluded that the convictions were "not substantially related to the qualifications of a licensee." The Commission went on, however, to consider the applicant's subsequent compliance with the law. Since the convictions, Porter had been convicted of a misdemeanor charge of prostitution, and had multiple convictions for driving with a suspended license. At the time of his application to the Commission, there was an outstanding bench warrant for his arrest for failure to perform community service ordered for his latest conviction for driving with a suspended license. Based on this history, the Commission concluded that Porter's failure to comply with the court orders showed a lack of responsibility, and that Porter was not amenable to regulation.

In contrast to Porter's criminal history, Croy's history shows one isolated instance that occurred nine years ago. The records show that Croy complied with the ordered one-year probation. CSD has not shown any pattern of criminal acts by Croy that is analogous to the pattern exhibited by Porter, nor has CSD presented any facts or analysis to support its assertion that Croy's history "indicates both the capacity and the disposition to inflict serious bodily harm on others." CSD Brief at 5. The mere possession of a handgun does not, in and of itself, demonstrate, or even suggest, a disposition to inflict serious bodily harm on others. The recently expired concealed weapons permit also does not demonstrate such disposition. Indeed, other than this nearly decade-old misdemeanor conviction, Croy's conduct (including his successful completion of probation) demonstrates a pattern of compliance with the criminal laws of this State. Therefore, we find that Porter and Croy are distinguishable.

CSD offers two reasons supporting its position that the application should be denied based on Croy's failure to disclose his misdemeanor conviction on his application. First, CSD states that such a conviction would be grounds to revoke a household goods carrier permit. Because the application requires disclosure of any act that would be grounds for revocation, CSD concludes that Croy was required to disclose the conviction. CSD provided us no citation for these propositions. While we can hypothesize circumstances where a concealed weapons violation might be grounds to revoke a permit, we can also envision circumstances with the opposite outcome. The facts of Croy's misdemeanor show no nexus to the moving industry nor any threat whatsoever to the public. Thus, based on this factual context, we find that, on balance, Croy's misdemeanor violation was not necessarily an act that would be grounds for revoking a permit.

CSD's second argument for denying Croy's application due to his failure to disclose his misdemeanor conviction is that Croy has committed an act of dishonesty and misrepresented a material fact on his application by omitting the conviction. In support of this conclusion, CSD states "any reasonable person would regard Applicant's weapons conviction as material to his Application." CSD protest at 5. CSD offers no citation for this statement. The Commission's application form, however, specifically addresses criminal convictions, and seeks additional explanations only if the applicant has "committed a felony, or a crime involving moral turpitude." A reasonable conclusion to draw from the application's singling out of felonies and crimes involving moral turpitude is that the applicant need not disclose any other type of criminal convictions such as misdemeanors or violations. By including only felonies and crimes involving moral turpitude, the application creates the reasonable impression that other types of criminal convictions are excluded. Such an interpretation is consistent with the jurisprudential maxim "particular expressions qualify those which are general." Civil Code § 3534. Thus, having sought information on particular types of crimes, i.e., felonies and crimes of moral turpitude, the application's general request for "material" information is qualified in this respect. An applicant could reasonably conclude that the Commission had determined that misdemeanors and violations were not "material."

In sum, based on the particular facts of this case, we find that Croy's nine-year old misdemeanor conviction was not a material fact that Croy was required to disclose on his application. Accordingly, Croy had no obligation to disclose it in the applcation.

We will grant Bryan S. Croy, doing business as Croy Moving Systems, (Croy or applicant) a Household Goods Carrier Permit.