Judge James C. Chalfant, Case Number: 23STCP04271, Date: 2024-08-08 Tentative Ruling

Petitioners Scott D. Wagenseller (“Wagenseller”), Gates Security (“GS”), Gates Security Training (“GST”), Gates Security Systems (“GSS”) and Griffen Taylor Dietrich (“Dietrich”) seek administrative mandamus directing Respondent Bureau of Security and Investigative Services (“BSIS”) to set aside its ordering revoking, suspending, and placing on probation certain licensure of Wagenseller, GS, and Diedrich.

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

On November 21, 2023, Petitioners Wagenseller, GS, GST, GSS, and Dietrich filed the Petition against Respondent BSIS for administrative mandamus. The Petition alleges in pertinent part as follows.

Since on or about October 13, 2000, Wagenseller has been the President, Principal, and Qualified Manager of GS, a private security corporation located in Thousand Oaks, California. Pet., ¶¶1-2.

GST has been a licensed training facility with firearm license number 1067 since on or about October 2, 2001. Pet., ¶3.

GSS has been an alarm company operator and alarm company branch licensee from BSIS since on or about March 4, 2004. Pet., ¶4.

Dietrich holds a security guard registration number, firearm permit number, and baton permit number from BSIS. Pet., ¶5. Dietrich’s security guard registration was issued on or about November 2, 2015, his firearm permit was issued on or about December 6, 2017, and his baton permit was issued on or about May 1, 2021. Pet., ¶5.

Wagenseller was issued a firearm permit number from BSIS on or about February 2, 2018, and a firearm instructor license number on or about October 1, 2001. Pet., ¶6.

On August 9 and 10, 2023, Deena R. Ghaly, Administrative Law Judge (“ALJ”) of the Office of Administrative Hearings (“OAH”) heard the First Amended Accusation of Complainant BSIS Deputy Chief Samuel Stodolski against Petitioners. Pet., ¶¶10-11, Ex. A.

On October 16, 2023, the ALJ issued a Proposed Decision to revoke various licenses of Dietrich, with revocation stayed and all licenses/permits suspended for 60 days thereafter, followed by probation for three years on various terms and conditions. Pet., ¶12. Only Dietrich received a formal notice from BSIS. Pet., ¶13, Ex. C.

Although Wagenseller has not yet received a formal written notice of BSIS’s Decision and Order regarding his licenses, it is his understanding that BSIS imposed the same revocation, stay, and suspension with probation as with Dietrich. Pet., ¶13.

Petitioners contend that the 60-day suspension of Dietrich’s licenses before BSIS will result in a de facto revocation of said licenses, as he will be unable to provide security services to his clients, thereby resulting in a loss of all his client accounts and the loss of his job as an employee of Gates Security. Pet., ¶16.

Wagenseller contends his lack of formal notice of the Decision and Order of BSIS with regard to his licenses, which may be effective November 17, 2023, is unconscionably unfair and will result in irreparable harm to his current and future livelihood. Pet., ¶¶17-18, Ex. B.

Wagenseller and Dietrich seek (1) a stay of revocation of their various licenses held before BSIS, (2) mandamus setting aside BSIS’s Decision, and (3) attorney fees. Pet. at 2, 11.[1]

On November 28, 2023, the court denied Wagenseller, GS, GST, GSS, Dietrich’s ex parte application for stay of BSIS’s decision.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

CCP section 1094.5 does not in its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (“Fukuda”) (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143; see CCP §1094.5(c). An administrative decision imposing discipline on a professional licensee is decided under the independent judgment standard. Griffiths v. Superior Court, (2002) 96 Cal.App.4th 757, 767.

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” Bixby, supra, 4 Cal.3d at 143. The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, (2003) 107 Cal.App.4th 860, 868. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16.

“In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” Fukuda, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150-51; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

The agency’s decision must be based on the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 514-15. Implicit in CCP section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 115.

Wagenseller is the founder and owner of GS. AR 1710-11. Dietrich is the Director of Business Development for GS and has been for seven years. AR 1646-47.

As of the date of the hearing on the Second Amended Accusation (“SAA”), Wagenseller, GS, GST, GSS, and Dietrich held the following licenses issued by BSIS: (1) GS held Private Patrol Operator License No. 17191; (2) GSS held Alarm Company Operator License No. 6002; (3) GST held Training Facility Firearm License No. 1067; (4) Wagenseller held a Firearm Permit, Baton Permit, Firearm Instructor License, and an Alarm Company Employee License; and (5) Dietrich held a Security Guard License, Firearm Permit, and Baton Permit. AR 558-59, 560, 562.

On April 11, 2023, Complainant Samuel Stodolski (“Stodolski”), as Deputy Chief of BSIS, filed a Petition for Interim Suspension (“ISO”) asking the Office of Administrative Hearings (“OAH”) to suspend all of Petitioners’ licenses pending a hearing on formal charges that Petitioners practiced in a manner that impersonates government law enforcement agencies and personnel. AR 793-94. Petitioners opposed the ISO. AR 799-800.

On May 5, 2023, after hearing evidence and argument, the OAH issued an ISO imposing license restrictions on GS, Wagenseller (as qualified manager of GS), and Dietrich. AR 789-820. The ISO ordered Petitioners to take the following actions: (1) within ten business days, apply “private security” or “security patrol” signage to GS’s “ranger Patrol” vehicles in lettering visible from 50 feet away; (2) remove all siren systems in GS vehicles; (3) Wagenseller and Dietrich, and all employees of GS, are prohibited from openly carrying a shotgun or rifle on their person or in their vehicle while on duty; and (4) Wagenseller and all of GS’s security guards shall wear uniforms with BSIS-approved patches on both shoulders identifying them as employees of GS. AR 818.

The ISO specified that Petitioners’ failure to comply with the terms of the ISO would constitute a separate cause for disciplinary action against GS and Diedrich. AR 819.

On August 4, 2023, Stodolski filed the SAA against Petitioners alleging 11 causes for discipline. AR 514-31. The SAA alleged, inter alia, a cause for discipline against GS and Wagenseller for violating the terms of the ISO because Petitioners did not ensure all vehicles included signage stating “private security” or “security patrol” in lettering visible from at least 50 feet away (AR 527); two causes for discipline against GS, Wagenseller, and Diedrich for impersonating law enforcement personnel or giving the impression of having a connection to law enforcement based in part on Petitioners’ use of the term “ranger” on uniforms and vehicles and patrolling public areas (AR 527, 530); two causes against GS, Wagenseller, and Diedrich for discipline for uniform violations because GS’s employees failed to wear BSIS-approved patches (AR 527-28); one cause for discipline against Wagenseller for unlawful carrying of a firearm without a valid and unexpired permit (AR 529); one cause for discipline against GS for acting outside of the scope of licensure based on GS employees responding to incidents that do not concern property or things they were hired to guard or protect (AR 529); and one cause for discipline against GS for operating under an unauthorized business name by using the name “ranger Patrol” without written authorization from BSIS (AR 530).

On August 9 and 10, 2023, the ALJ heard the SAA against Petitioners via videoconference. See AR 154-84.

The primary evidence against Petitioners occurred through the testimony of Investigator Adam Diehl (“Diehl”). AR 159-60. Diehl presented a PowerPoint presentation of photographs compiled by retired Mountains Recreation and Conservation Authority (“MRCA”) ranger Walt Young (“Young”), who did not testify at the hearing. AR 159-60.

Diehl presented the declaration of Young with his observations and findings and authenticating a PowerPoint presentation. AR 1366-68, 623-68.

Both Wagenseller (representing himself and the corporate Petitioners) and Dietrich confirmed they had no objection to Young’s declaration and PowerPoint presentation. AR 1367. As a result, the declaration was received in evidence. AR 1367. Neither Wagenseller nor Dietrich objected at any point while other witnesses discussed the declaration and PowerPoint presentation in their testimony. See AR 1368-90.

Young’s declaration stated that he investigated GS’s operating practices and summarized his findings in a PowerPoint presentation. AR 623-24. To show the similarities between GS’s vehicles and uniforms and those used by law enforcement agencies, Young’s PowerPoint included photographs showing side-by-side photographs of GS’s vehicles and uniforms with those used by government law enforcement agencies. AR 639, 641-43, 648-49, 663-64.

Young’s PowerPoint included copies of Petitioners’ social media posts showing that Petitioners employed vehicles, uniforms, tactics, and marketing practices that gave the false impression that they were associated with government law enforcement agencies. AR 633-34, 637-38, 646, 656, 659-62, 665-68.

Diehl testified about his investigation into Petitioners’ activities after BSIS received complaints from law enforcement agencies and the public expressing confusion regarding whether Petitioners’ vehicles were associated with government law enforcement agencies. AR 672-75, 1421-22, 1424, 1458.

In February 2022, BSIS received a complaint from Young alleging that Petitioners were impersonating law enforcement personnel. AR 572, 1349-50. Petitioners’ employees wore shirts with the term “ranger” on the back, which is not permissible under Public Resource (“Pub. Res.”) Code section 4022. AR 1371, 614, 634. Petitioners also used vehicles bearing the term “ranger patrol,” a fictitious business name not approved by BSIS. AR 1381, 1405-06. Diehl opined that BSIS would not approve terms like “ranger patrol” that are likely to confuse the public into believing those vehicles are associated with a law enforcement agency. AR 1349-51. [2]

Additionally, Petitioners’ vehicles were not prominently marked with the words “private security” or “security patrol” in font large enough to be seen from 50 feet away. AR001372-74; AR001399- 400; AR001405-06. Diehl agreed with Young’s opinion that Petitioners’ vehicles were too similar to law enforcement vehicles such that the public would be confused. AR001376-79. Diehl also agreed with Young’s opinion that Petitioners’ uniforms were too similar to law enforcement agency uniforms (Orange County Sheriff and Border Patrol, specifically). AR001382-83.

BSIS regulates badges and patches on private patrol uniforms to protect the public and ensure security guards are clearly identifiable to the public and law enforcement agencies. AR 1365, 1373. Some of Petitioners’ employees wore a seven-cornered star badge that was not approved because it did not have an identification number of each individual employee (when that employee is armed). AR 587, 1395-96. Petitioners’ employees were wearing unapproved shoulder patches that stated “patrol division” instead of “private security.” AR 573, 651, 1397.

Petitioners also responded to incidents on public roads and areas outside of their clients’ property. AR 1385-89. Diehl explained that this was outside the scope of Petitioners’ licensure because they were only authorized to operate on their client’s property and/or on the way to those locations. AR 1385-89. Petitioners issued a citation to a door-to-door salesman, a function that should be solely exercised by a government law enforcement agency. AR 676, 1424-25.

Diehl conducted two field visits to verify Petitioners’ ISO compliance on June 22 and June 27, 2023. AR 822-23, 828, 831-32, 834, 836, 838, 1442-45, 1447-49. While some “private security” signage was placed on the top of the rear bumper on some vehicles, the signage was not visible from 50 feet away because of where the signage was applied. AR 834, 838.

ranger Darrell Readyhoff (“Readyhoff”), a senior ranger with the California Department of Parks and Recreation, testified that he observed GS’s vehicles bearing the “Ranger Patrol” signage on several occasions. AR 1510-12.

Readyhoff conducted a traffic stop on one of GS’s vehicles on May 13, 2022 because it had the word “ranger” on it. AR 1510-12. Wagenseller was driving the vehicle. AR 1513. Furthermore, Readyhoff observed loaded long guns within the vehicle and asked Wagenseller to produce his firearm qualification card or some other proof of authority to carry the firearm. AR 1514-16. Wagenseller was only able to produce an expired permit. AR 1515-16. Readyhoff observed that the vehicle’s requisite signage identifying it as private patrol was too small to be seen from 50 feet away. AR 1512-15. Readyhoff stated that he would have confused Petitioners’ Ranger Patrol vehicles for law enforcement vehicles if he did not have prior experience with their vehicles. AR 1512, 1522-23.

Joseph T. Edmiston (“Edmiston”), Chef Executive Officer of MRCA and sworn park ranger, testified about a public complaint filed with MRCA regarding the conduct of a park ranger. AR 1552. However, MRCA and State Parks did not have any rangers assigned to the location of the incident involved in the complaint. AR 1552. Edmiston was concerned that the complaint involved the conduct of one of GS’s employees based on its improper use of the term “ranger.” AR 1553, 1567.[3] Edmiston also testified that Petitioners’ badges look very much like law enforcement agency badges. AR 1560-61. He was concerned that GS’s employees could act in ways that would bring the ranger services into disrepute or endanger the rangers. AR 1560-61.

After the hearing was complete, the ALJ issued a Proposed Decision. AR 19-218. The ALJ’s factual findings set forth the various licenses held by GS, GSS, GST, Wagenseller, and Dietrich. AR 191-93. The investigation commenced when complaints were received that GS operated in a manner that gave the impression it was a law enforcement agency. AR 193.

A specific complaint was made by MCRA ranger Young who reported that MRCA personnel reported seeing GS personnel in uniforms and vehicles that looked like law enforcement agencies. AR 193. Young made a PowerPoint that should Dietrich wearing a “ranger” shirt, a GS SUV with a six-point star design not approved by BSIS, vehicles without “private security” or “security patrol” on them, and ATVs marked with “ranger”. AR 194. The PowerPoint showed GS personnel handcuffing a person from a ride-along on a non-client call, and other social media marketing. AR 195.

BSIS investigated with a focus of whether Petitioners were using names or wording in the business likely to mislead the public that GS is a law enforcement agency. AR 196. On May 5, 2023, an ALJ issued the ISO requiring GS, within ten business days, to show “Private Security” or “Security Patrol” signage on its vehicles that is visible 50 feet away. AR 197. The ISO also proscribed sirens on vehicles, proscribed GS employees from carrying shotguns or rifles on their person or in their car while on duty and required all GS guards and Wagneseller to wear uniforms with BSIS-approved patches on both shoulders identifying that they work for GS. AR 198.

On June 22, and again on June 27, 2023, Investigator Diehl visited a parking lot where GS parks its vehicles. AR 198. On both occasions, he found several GS vehicles that did not display “Private Security” or “Security Patrol” signage as required by the ISO. AR 198.

Readyoff testified to GS vehicles bearing “Ranger Patrol” signage. He also stopped a GS vehicle driven by Wagenseller because it had a “ranger” sign, and Wagenseller had a long gun with an expired permit. AR 199.

Wagenseller and Diedtrich both testified. AR 199. Wagenseller stated that GS corrected the signage on some, but not all, vehicles after issuance of the ISO. AR 200. The photos of Diedrich and other GS personnel without badges on their shoulders and making arrests or issuing citations were largely staged and did not involve actual public interaction. AR 200. As for patrolling outside their clients’ properties, both maintained that GS works beyond their clients’ physical locales to any place or circumstance the client needs protection. AR 200. Wagenseller added that local law enforcement has requested or willingly accepted GS’ assistance in emergency situations in the past. AR 200.

Pub. Res. Code section 40222 provides that only peace officers may use the title “ranger” and anyone not a peace officer may not wear or exhibit the title in a way likely to deceive. AR 202.

The first cause (violation of the ISO by GS and Wagenseller) was established by the preponderance of evidence as set out in Diehl’s testimony, his photographs, and Readyhoff’s observations during his traffic stop. AR 202.

The second cause (giving the impression of law enforcement against GS, Wagenseller, and Diedrich) was established. Pub. Res. Code sections 587.1(b), 7582.26, and 7582.15 act in conjunction to prohibit impersonating law enforcement. AR 203. GS, Wagenseller, and Diedrich wore, or allowed GS personnel to wear, uniforms without required patches, with the word “ranger” on them, and in a manner to give the impression they were law enforcement. AR 203. The vehicles also were easily mistaken for law enforcement vehicles because they were not marked with signage that they were private patrol and instead had signage of “ranger”. AR 203. Finally, they posted materials on social media depicting GS personnel engaged in arrests. AR 203. Whether these posts were staged does not affect the misleading impression given. AR 203.

The third and fourth causes (uniform violations armed and unarmed by GS, Wagenseller, and Diedrich) were essentially the same as the second cause and established for the same reason. AR 205.

The fifth and sixth causes (unlawful carrying of firearms against GS and aiding and abetting against Wagenseller) were not established. AR 208.

The seventh cause (unlawful carrying of firearm against Wagenseller) was established by Readyhoff’s stop of Wagenseller at which the latter had only an expired permit for his long gun. AR 208.

The eighth cause (firearms training and instruction violations against GTS and Wagenseller) was not established. AR 209.

The ninth cause (acting outside of licensure against GS) was established by social media posts showing that on one occasion GS responded to an incident unrelated to its contractual obligations to its client. AR 211.

The tenth cause (impersonating law enforcement against GS, Wagenseller, and Dietrich) is the same charge as the second cause and was established based on the same findings. AR 212.

The eleventh cause (operating unauthorized business name against GS) was established based on GS’s use of the name “Ranger Patrol”. AR 212.

The ALJ considered the disciplinary guidelines (AR 212-14) and proposed an order which revoked, then stayed revocation of, GS’s private Patrol Operator’s License No. 14191, Dietrich’s Security Guard Registration No. 1935705, and Wagenseller’s Firearm Permit No. 2634938. The Proposed Decision suspended these licenses for 60 days and placed them on probation for three years on various terms and conditions. AR 215-18.

On October 17, 2023, BSIS issued its final decision adopting the ALJ’s Proposed Decision. AR000433-99. BSIS’s Decision became effective on November 17, 2023. AR 434.

Petitioners GS, Wagenseller, and Dietrich[4] seek an order directing BSIS to set aside its order revoking certain of their licenses and permits, staying the revocation and imposing a 60-day suspension, and placing them on three years of probation.[5]

Petitioners argue that the primary evidence against them was presented by Investigator Diehl, who presented a Power Point presentation of photographs which retired ranger Young had compiled. Young did not testify, yet his declaration was read into evidence without Petitioners having any opportunity to cross examine him. Neither Young nor Edmiston witnessed any of the alleged violations, but drew conclusions from the staged social medial posts online. Pet. Op. Br. at 2-3.

These strange and foundationless PowerPoint images were merely social media posts depicting purported violations of law which were completely unreliable and taken out of context because they were only marketing imagery and materials. AR 625-68. The admission of this hearsay evidence was improper and greatly prejudiced Petitioners in their ability to defend against the underlying SAA as they had no opportunity to cross examine Young. Pet. Op. Br. at 3-4.

Petitioners point to ALJ Furman’s ruling on the ISO petition in which she stated that there were serious evidentiary problems with Investigator Diehl’s supporting declaration. The declaration failed in many instances to explain the basis for his statements, relied on unauthenticated and undated photographs annotated with commentary by an unidentified author used in an undated presentation to an unknown audience. Other undated photographs appear staged for marketing purposes. The screenshot of Gate Security’s social media posts do not always indicate when the events depicted occurred. declaration. AR 802-03.

ALJ Forman further noted the unreliability of Diehl’s declaration: “SI Deihl often exaggerates the extent of respondents’ alleged misconduct and thus many of his statements are speculative. For instance, he states that many of Gates Security’s’ vehicles are unlawfully equipped with siren systems…; however, the evidence demonstrates only one Gates Security vehicle contains a siren system, i.e., the one driven by respondent Wagenseller. Another photograph purportedly showing a siren system is unauthenticated, truncated, appears not to be taken by SI Diehl, and has no context to judge its reliability.” AR 803.

ALJ Forman also was concerned about Diehl’s reliance on hearsay statements in his declaration:

Petitioners conclude that, if Young’s observations of their unlawful conduct were so important, BSIS should have had him testify instead of having Diehl relate Young’s observations secondhand via the Power Point presentation. Allowing this unreliable hearsay evidence was a clear abuse of discretion. Pet. Op. Br. at 6.

Young’s declaration and PowerPoint are hearsay. The Administrative Procedures Act, which governs the underlying proceeding, provides:

“Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. An objection is timely if made before submission of the case or on reconsideration.” Govt. Code §11513(d).

Pursuant to Govt. Code section 11513(d), Young’s declaration and PowerPoint could have been used at least to supplement or explain the other evidence presented by Diehl and Readyhoff. But the evidence was not so limited because Wagenseller and Diedrich made no objection to it. AR 1367. In fact, they affirmatively confirmed their non-objection to the declaration and PowerPoint. AR 1367. Hearsay evidence becomes competent evidence and may support a factual finding when there is no objection to its admission at an administrative hearing. Clary v. City of Crescent City, (2017) 11 Cal.App.5th 274, 302. Thus, Young’s declaration and PowerPoint was properly admitted and could be considered for any evidentiary purpose.[6]

In reply, Petitioners argue that Diehl is an unsworn special investigator whose report would not be admissible under the public employee record exception to hearsay discussed in Lake v. Reed, (1997) 16 Cal.4^th 448. According to Petitioners, there was a clear objection to the introduction of Diehl’s hearsay testimony (regarding the PowerPoint) pursuant to Lake v. Reed when Mr. Dietrich made this objection clearly and directly on the record. AR 1392. In fact, after the ALJ explained her understanding of Lake v. Reed and how it pertains to “…a police officer” (AR 1391-92), she stated: “So with that constraint, is there an objection?” AR 1392. Dietrich responded: “Yes, Your Honor, I have an objection.” AR 1392. After Dietrich confirmed that Diehl is not a sworn law enforcement officer (AR 1392), he objected. AR 1393.

Petitioners are looking at the wrong exhibit. Both Wagenseller and Dietrich confirmed they had no objection to Exhibit 9, which was Young’s declaration and PowerPoint presentation. AR 1367. As a result, both were received in evidence. AR 1367. Neither Wagenseller nor Dietrich objected at any point while other witnesses discussed the declaration and PowerPoint presentation in their testimony. See AR 1368-90. In contrast, Dietrich objected to Exhibit 5, which was Diehl’s investigative report. AR 1391, 1393. The ALJ received the exhibit subject to the administrative hearsay rule. AR 1394. One exhibit has nothing to do with the other.

Petitioners argue that the Complainant presented no witnesses to Petitioners’ supposedly harmful conduct. The only witnesses who testified were Diehl and Readyhoff, a senior ranger with the California Department of Parks and Recreation who testified to minor violations of signage issues on their security patrol cars and some alleged firearm issues. No member of the public complained of misconduct by Petitioners. No member of the public testified that they were confused by GS’s security services and activities. No current or former clients of Gates testified, and not even one agent or enforcement analyst from BSIS testified at the hearing. This lack of any reliable, live witnesses clearly showed that the Complainant did not meet its burden of proof at hearing. Pet. Op. Br. at 6.

Aside from the fact that Readyhoff testified to misconduct and not just minor issues, BSIS points out that Petitioners are arguing that members of the public must testify to actual harm. Protection of the public is the primary purpose of licensing statutes, and a licensing agency need not wait for actual harm before disciplining a license. Griffiths v. Superior Court, (2002) 96 Cal.App.4th 757, 773. Bus. & Prof. Code sections 7587.1(e) and 7582.26(d) prohibit impersonating or aiding or abetting an employee to impersonate a law enforcement officer or employee. Neither section requires actual confusion by a member of the public. The observations and opinions of ranger Young, Diehl, ranger Readyhoff, and Edminston were more than sufficient to establish that Petitioners engaged in conduct that violated statutory and regulatory authority governing their licensed activity. See Opp. at 16-17.

In reply, Petitioners admit that actual harm to the public is not a required element of license discipline actions. However, general equitable principles and reasonableness to an unrepresented party would suggest that lack of any actual public harm or confusion by Petitioners’ activities) should be considered and acknowledged by BSIS. It was not, and though this issue is not dispositive, it is representative of the unfair treatment of Petitioners, who proceeded in pro per. Omitting such important evidence of lack of actual public harm is punitive and serves no public protection function. Reply at 8-9.

This is a non-issue. Dietrich and Wagenseller were quite capable of stating “we didn’t harm anyone”. Nor is there a different rule for pro pers than other parties. “Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation”. Rappleyea v. Campbell, (11994) 8 Cal.4^th 975, 984-85. “A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.” Id. at 985. So long as Dietrich and Wagenseller understood the administrative process that was happening – and there is no evidence they did not -- that was sufficient.

Petitioners argue that, in a very concerning and contradictory move, the ALJ’s Proposed decision revoked Wagenseller’s Firearm Permit Number 2364938, imposed a 60-day suspension, and thereafter placed it on probation for three years. AR 181. This decision was an abuse of discretion in that the ALJ found that “[t]here was insufficient legal bases or insufficient evidence to establish three causes of discipline, all related to misuse of firearms.” AR 156-57. It was improper and inconsistent for the ALJ to suspend Wagenseller’s Firearms Instructor License for 60 days when she concurrently held that the Complainant failed to establish that any violations concerning the misuse of firearms existed. AR 157. Pet. Op. Br. at 7-8.

Petitioners are simply wrong. The ALJ did not suspend Wagenseller’s Firearm Instructor’s License, she suspended his Firearm Permit Number 2364938. The ALJ found insufficient evidence on the eighth cause (firearms training and instruction violations against GTS and Wagenseller) and no action was taken on Wagenseller’s Firearms Instructor License. AR 209. Therefore, Petitioners’ discussion of the ALJ’s findings on the weakness of this evidence is irrelevant. AR 172-74. Pet. Op. Br. at 7-8.

The ALJ did find that the seventh cause (unlawful carrying of firearm against Wagenseller) was established by Readyhoff’s stop of Wagenseller at which the latter had only an expired permit for his long gun. AR 208. As a result, she revoked, suspended, and placed his Firearm Permit on probation. AR 180.

In reply, Petitioners admit their error in arguing that BSIS improperly disciplined Wagenseller’s Firearms Instructor License. Now, they contend that it was error to discipline his firearms permit. The ALJ concluded that Wagenseller produced an expired firearm permit when stopped by ranger Readyhoff. AR 208. This is inaccurate, as a recent review of Wagenseller’s firearms permit status on the BSIS license lookup website does not indicate the license was expired. There may have been some confusion on Wagenseller’s part during testimony on this issue, but BSIS’s own records do not clearly indicate his firearms permit has ever expired. Reply at 9-10.

The ISO ordered Petitioners to take the following actions: (1) within ten business days, apply “private security” or “security patrol” signage to its “ranger Patrol” vehicles in lettering visible from 50 feet away; (2) remove all siren systems in GS’s vehicles; (3) Wagenseller and Dietrich, and all employees of GS, are prohibited from openly carrying a shotgun or rifle on their person or in their vehicle while on duty; and (4) Wagenseller and all of GS’s security guards shall wear uniforms with BSIS-approved patches on both shoulders identifying them as employees of GS. AR 818. The ISO specified that Petitioners’ failure to comply with the terms of the ISO would constitute a separate cause for disciplinary action against GS and Diedrich. AR 819.

The ALJ found that the first cause (violation of the ISO by GS and Wagenseller) was established by the preponderance of evidence as set out in Diehl’s testimony, his photographs, and Readyhoff’s observations during his traffic stop. AR 202.

Petitioners argue that the SAA first cause alleged that GS vehicles did not display the “Private Security” or “Security Patrol” signage as required by the ISO. AR 164. Other allegations were that GS’s cars bore the signage “ranger Patrol” on “several occasions.” AR 165. Pet. Op. Br. at 10.

Petitioners produced evidence that Gates corrected some, but not all, patrol vehicles’ signage. AR 166. They also produced evidence that the cars without corrected signage were used “…exclusively for marketing events such as parades.” AR 166. Pet. Op. Br. at 10.

Both Wagenseller and Dietrich testified that the images on social media depicting GS personnel in uniforms without badges on the shoulders and left breast areas performing arrests and writing citations were staged and only used for marketing purposes showing hypothetical security firm situations and encounters without actual public interaction. AR 166. Pet. Op. Br. at 10.

Dietrich and Wagenseller also testified that GS’s work went beyond its clients’ property lines at times and involved any place the client might need protection, a reasonable function of any reputable security firm. AR 166. Petitioners offered evidence that that local law enforcement agencies “…have requested or willingly accepted Gates Security personnel’s assistance when dealing with emergency situations throughout the areas Gates Security operates.” AR 166, 976-80. They presented letters of support from fire and police departments praising GS’s willingness to help them in times of need. AR 166-67. Clearly, public protection and local law enforcement agencies are benefitted by GS’s assistive activities. Given the abundant evidence Petitioners produced at hearing, there should have been no finding that the ISO was violated in any way. Pet. Op. Br. at 10.

BSIS argues that Petitioners fail to provide an adequate statement of facts with citations to the record. Opp. at 14-15.

BSIS is correct. When a petitioner challenges an administrative decision as unsupported by substantial evidence in light of the record as a whole, it is the petitioner’s burden to demonstrate that the administrative record does not contain sufficient evidence to support the agency’s decision. State Water Resources Control Board Cases, (2006) 136 Cal.App.4th 674, 749. A recitation of only the part of the evidence that supports the petitioner’s position is not the “demonstration” contemplated by this rule. Accordingly, if a petitioner contends that some issue of fact is not sustained, he is required to set forth in his brief all the material evidence on the point and note merely his own evidence. Unless this is done, the error is deemed to be waived. Id. (quoting Foreman & Clark Corp. v. Fallon, (1971) 3 Cal.3d 875, 881). Petitioners rely on their own evidence without identifying the Complainant’s evidence supporting a violation of the ISO. Consequently, they have failed to meet their burden of showing that the ALJ’s Proposed Decision is not supported by the weight of the evidence.[7]

In any event, the weight of the evidence does support a violation of the ISO. The ISO was issued on May 5, 2023. AR 818-20. Diehl conducted two field visits, on June 22 and June 27, 2023, to verify Petitioners’ ISO compliance. AR 822-23, 828, 831-32, 834, 836, 838, 1442-45, 1447-49. While some “private security” signage was placed on the top of the rear bumper on some vehicles, the signage was not visible from 50 feet away because of where the signage was applied. AR 834, 838.

Ranger Readyhoff conducted a traffic stop on one of GS’s vehicles on May 13, 2022 because it had the word “ranger” on it. AR 1510-12. Wagenseller was driving the vehicle. AR 1513. Readyhoff observed that the vehicle’s requisite signage identifying it as private patrol was too small to be seen from 50 feet away. AR 1512-15. Readyhoff stated that he would have confused GS’s ranger Patrol vehicles for law enforcement vehicles if he did not have prior experience with their vehicles. AR 1512, 1522-23.

The ALJ correctly found that “Wagenseller’s contention that any Gates Security vehicles out of compliance with the ISO were only used for parages and other purposes not directly related to servicing clients is not a valid defense. The ISO clearly required Gates Security to correct the signage on all its vehicles.” AR 202-03.

Petitioners’ argument that they should not be subject to discipline for violating the ISO based on staged social media posts was rebutted by the ALJ: “Social media postings are a form of marketing or branding and thus serve a business purpose and are executed in the course of doing business.” AR 204. If Petitioners never meant to mislead the public into believing it had some connection to the real ranger service, it should have never used the term “ranger” anywhere in its marketing.

In reply, Petitioners argue that ranger Readyhoff stopped a GS vehicle on May 13, 2023, and the stop was clearly within the ten-day compliance period of the ISO. Thus, this evidence should not have been admitted nor relied upon as a violation of the ISO. Petitioners add that there was evidence that GS had upgraded its patrol cars and the issue whether it was visible from 50 feet away as ordered by the ISO is a subjective matter that could not be conclusively proven at hearing. AR 834, 838. Pet. Op. Br. at 10. The former may be true, but again Petitioners raise new issues for the first time in reply that are waived. Regency, supra, 31 Cal.App.4th at 1333.

Finally, Petitioners reply that there was no evidence that they had any intention to mislead the public in the social media posts and there was ample evidence of their lack of desire to do so. Examples of compliant conduct included their efforts to change “ranger” markings on their cars and their completion of these efforts, all pursuant to the ISO. AR 834, 838. Reply at 11.

The ALJ never stated that Petitioners made no effort to comply with the ISO. She only ruled that they violated it. The ALJ stated: “While they made some changes, including removing sirens from their patrol vehicles, the number of Gates Security vehicles left with improper markings and without clear signage that they are private patrol demonstrates some ongoing resistance to operating Gates Security within the bounds of the law.” AR 214. This ruling is supported by the evidence.

The Petition is denied. BSIS’s counsel is ordered to prepare a proposed judgment, serve it on Petitioners’ counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for September 19, 2024 at 9:30 a.m.

[1] Although Petitioners’ opening brief refers to discipline of GS’s licensure, the Petition does not.

[2] Petitioners admitted to using the term “ranger” on uniforms or patches for a social media post and for advertisement purposes (AR 1652-54, 1704-06) and using “ranger patrol” on All Terrain Vehicles used for patrol (AR 1687-89).

[3] The citations AR 1552, 1553, and 1567 are not in the parties’ joint appendix and were not verified by the court.

[4] Petitioners’ opening brief refers to GSS and GST, but no discipline was imposed against either. Pet. Op. Br. at 2.

[5] For convenience, the court will refer to the ALJ’s Proposed Decision rather than the BSIS’s Decision adopting it.

[6] ALJ Forman’s concerns about Diehl’s declaration at the ISO hearing are irrelevant to this issue.

[7] Petitioners argue that their opening brief cites the Administrative Record 35 times. Reply at 4, 6. The citations referred to by Petitioners were mostly their own evidence or the ALJ’s findings. Petitioners did not cite any of Complainant’s evidence on the first cause.