DENVER – A Denver District Court judge on Tuesday overturned Denver’s decision to revoke Pinkerton’s private security guard employer license permanently, which was made after an unlicensed security guard subcontracted by the company shot and killed a man in October 2020.
Judge David H. Goldberg ruled that the license revocation should be overturned essentially because the Department of Excise and Licenses did not use the correct terms based on Denver Municipal Revised Code to describe Pinkerton on the decision to revoke the license.
Former Department of Excise and Licenses Executive Director Ashley Kilroy had issued her final decision in the case in July 2021, affirming a hearing officer’s conclusion that Pinkerton should be liable for Matthew Dolloff being hired by Pinkerton’s subcontractor, Isborn Security Services, though he did not have a private security guard license in Denver.
Essentially, the department relied on various portions of the municipal code to show that Pinkerton should be liable for what occurred, but the different portions contained different descriptions of how a person or organization was characterized, according to the judge.
One part tied to suspension of licenses refers to “his or her,” while another part of the code defines “gender” as using “the masculine, females as well as males, firms, associations, and corporate organizations as well as individuals,” meaning that “his” would cover all of those people or organizations.
Pinkerton had argued that since the Department of Excise and Licenses had used the “his or her” language, that the decision applied only to “natural persons” and not a company.
Judge Goldberg agreed with Pinkerton’s attorneys, saying that if the department had used “his” or mentioned in the final decision the word “Person,” which is defined as including “a firm, corporation, association, or other organization acting as a group or unit as well as an individual,” the decision could have been allowed.
“As a result of the foregoing, the Final Decision adds the definition of ‘Person’ into the ordinance’s use of ‘his or her’ when the word ‘his’ is separately defined under ‘Gender’ in D.R.M.C. §1-2(8),” Judge Goldberg wrote. “…If the City Council intended to include corporate entities within the scope of D.R.M.C. §32-30(b), it could have simply used ‘his’ instead of ‘his or her’ or substituted ‘Person’ in place of a gendered term.”
As an example, the judge wrote a footnote: “For example, the ordinance could read ‘Any act or omission committed by any employee, agent, or independent contractor that occurs in the course of the Person’s employment…'”
The judge wrote that the court “does not defer to agency interpretation when an ordinance is unambiguous” and that the use of “his or her” amounted to “plain language,” despite the city’s argument that its interpretation of the ordinance was correct and that a different interpretation “would allow businesses to subcontract away liability.”
“This public policy argument does not persuade the Court’s plain language interpretation because the Court finds the ordinance unambiguous,” the judge wrote.
Judge Goldberg wrote that on its face, “his or her” does not include business entities and that “the policy issue and resulting impact on the community must be addressed by the City Council, not the courts.”
As such, the judge found Kilroy abused her discretion and reversed the revocation of Pinkerton’s license.
In a statement, Eric Escudero, the spokesperson for the Department of Excise and Licenses, said the department and City Attorney’s Office were reviewing the decision and “will announce the next steps the city will take following review.”
Dolloff, the security guard, saw the murder charge against him dismissed in March after the Denver District Attorney’s Office said it did not have enough evidence to prove Dolloff was guilty of murder in the shooting death of Lee Keltner.