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Gray v. State

Superior Court of Maine, Kennebec

July 18, 2019

JOSHUA GRAY, Petitioner
v.
STATE OF MAINE, DEPARTMENT OF PUBLIC SAFETY, Respondent

          Roger Hurley, Esq. Plaintiff's Attorney

          Kent Avery, Aag Defendant's Attorney

          ORDER ON PETITIONER'S 8OC APPEAL

         Before the Court is Petitioner Joshua Gray's 80C petition for review of the Department of Public Safety's (the "Department's") denial of his application for a Professional Investigator's License. For the following reasons, the petition is granted.

         Background

         Joshua Gray is licensed as a Professional Investigator in Tennessee, Vermont, Massachusetts and New Hampshire. On January 26, 2018, Gray applied for an investigator's license in Maine. As part of its review of Gray's application, the Department conducted a background investigation which included an investigation into Gray's use of social media. This investigation revealed that Gray has published numerous statements concerning a fatal police shooting which occurred in Vassalboro in 2017. The dominant theme of these statements is that an officer who was involved in the shooting, Lt. Scott Ireland, is a "dirty cop" whose career has been plagued by lying, internal affairs trouble and abuse of power issues and who committed first degree murder while he was "likely drunk." As a result of its investigation, the Department concluded that Gray had made statements which demonstrate that he "lack[s] the requisite competency and fitness of character to act as a PI in the State of Maine." Consequently, the Department denied Gray's application on August 31, 2018. Gray's attorney received a copy of the denial on September 14, 2018 and on October 11, 2018 Gray filed a petition for review of the denial of his application.

         Standard of Review

         The Court reviews an administrative agency's decision for an abuse of discretion, error of law, or findings not supported by the evidence. Uliano v. Bd. of Envtl. Prot., 2009 ME 89, ¶ 12, 977 A.2d 400 (citation omitted). "An administrative decision will be sustained if, on the basis of the entire record before it, the agency could have fairly and reasonably found the facts as it did." Id. (quoting CWCO, Inc. v. Superintendent of Ins., 1997 ME 226, ¶ 6, 703 A.2d 1258). The party seeking to vacate an agency decision bears the burden of persuasion. Kelley v. Me. Pub. Emps. Ret. Sys., 2009 ME 27, ¶ 16, 967 A.2d 676. "When an agency concludes that the party with the burden of proof failed to meet that burden, [the court] will reverse that determination only if the record compels a contrary conclusion to the exclusion of any other inference." Kelley v. Me. Pub. Emples. Ret. Sys., 2009 ME 27, ¶ 16, 967 A.2d 676 (quotation omitted).

         Discussion

         The State of Maine requires that professional investigators obtain a professional investigator's license from the Chief of the Maine State Police. 32 M.R.S. § 8104. In order to obtain an investigator's license, an applicant must demonstrate that they possess good moral character. Id. § 8105(4). Further, the Chief may refuse to issue a license if the applicant has:

A. Engaged in conduct that evidences a lack of ability or fitness to discharge the duty owed by the licensee to a client or the general public; or
B. Engaged in conduct that evidences a lack of knowledge or an inability to apply principles or skills to carry out the practice for which the person is licensed.

32 M.R.S.§ 8113(6).

         In this case, the Chief of the Maine State Police determined that "since early 2017, [Gray had) made postings on social media platforms (including on [his] business' official Facebook page) that include statements that are materially false." (R. 4.) The Chief further determined that "[b]y publishing such misleading statements publicly, [Gray has] demonstrated conduct that brings into question [his] ability to competently investigate and then report investigative findings with accuracy, objectivity, and without bias." Id. The Chief reasoned that "[f]rom a consumer protection perspective, these findings ... are of great concern." Id. Consequently, the Chief denied Gray's license based on his findings that Gray "lack[s] the requisite competency and fitness of character to act as a PI in the State of Maine." (R. 4.)

         Gray argues that denying his application on the basis of his social media articles and posts violates his right to free speech and thus constitutes an error of law. Gray asserts that his social media postings are statements of opinion which were not likely to incite violence and that they were made in his capacity as a private citizen. Because, in his view, "[a]ll speech, in any form and by any method, has always been ruled as protected except speech which incites imminent ...


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