WAKE COUNTY
LINDSAY R. EBRON, JR.,
Petitioner,
v.
NORTH CAROLINA PRIVATE
PROTECTIVE SERVICES BOARD,
Respondent. / ))))))))))) / IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
07 DOJ 0469
PROPOSAL FOR DECISION
This contested case was heard before Administrative Law Judge Donald W. Overby on May 29, 2007, in Raleigh North Carolina.
APPEARANCES
Petitioner appeared pro se.
Respondent was represented by attorneys J.T. Crook and Charles F. McDarris.
WITNESSES
Petitioner – David Bailey testified on behalf of Petitioner and Petitioner testified on his own behalf.
Respondent – Private Protective Services Board Deputy Director Mark Poole testified for Respondent Board.
ISSUES
Whether grounds exist for Respondent to deny Petitioner’s unarmed guard registration permit application for lack of good moral character or temperate habits.
BURDEN OF PROOF
Respondent has the burden of proving that Petitioner lacks good moral character or temperate habits. Petitioner may rebut Respondent’s showing.
APPLICABLE STATUTES AND RULES
Official notice is taken of the following statutes and rules applicable to this case:
G.S. 74C-2;
74C-3;
74C-8(d)(2);
74C-9;
74C-11;
74C-12(a)(25);
12 NCAC 7D § .0700.
FINDINGS OF FACT
1. Respondent Board is established pursuant to N.C.G.S. 74C-1 et seq., and is charged with the duty of licensing and registering individuals engaged in the private protective services profession, including unarmed guards.
2. Petitioner applied to Respondent Board for an unarmed guard registration permit. Respondent introduced Petitioner’s application for an unarmed guard registration permit as Exhibit 2.
3. In his application for an unarmed guard registration permit, Petitioner answered “yes” to the questions “Have you ever pled guilty to and/or been convicted of any crime (Felony or Misdemeanor); Served time.” He answered “no” to the question “Been Paroled or Been on Probation.”
4. Respondent offered into evidence Exhibit 1, the Petitioner’s application for renewal of his unarmed registration. Attached as Page 2 to Exhibit 1, Petitioner submitted a handwritten explanation as requested in the application, which reads:
DUI 1995
Assault on a Female 2004.
5. Respondent introduced Exhibit 2, which is a criminal record check dated June 28, 2006 provided by Petitioner to the Respondent Board with his application, Exhibit 1. Private Protective Services Board Deputy Director Mark Poole (hereinafter “Deputy Poole”) determined from Petitioner’s criminal record that Petitioner had a July 20, 2004 conviction for Misdemeanor Assault on a Female, consistent with his application.
6. The criminal record check also shows that the Petitioner was placed on supervised probation for 18 months as a result of the conviction for assault on a female in 2004, contrary to the answer given by the Petitioner in his application.
7. The criminal record check shows convictions of the following charges which were not listed by the Petitioner on his application: Operating a motor vehicle with no insurance, disposition date of November 3, 1997; driving while license revoked, February 3, 1995; driving while license revoked, October 15, 1997. The Petitioner’s criminal record also shows a number of offenses which are “voluntarily dismissed with leave”, including another driving while license revoked, which are treated as convictions for sentencing purposes in criminal proceedings. Another charge of driving while license revoked was dismissed with the disposition of the driving while impaired charge. Driving while license revoked is a Class 1 misdemeanor. Petitioner is not eligible for a driver’s license so long as any traffic violation is “dismissed with leave.” Traffic convictions are not considered in denying the Petitioner’s application according to Deputy Poole.
8. Respondent introduced Exhibit 4, which was a Charlotte Mecklenburg Police Department Incident Report dated May 3, 2004. The Incident Report describes the event which led to the Petitioner’s conviction in 2004 for Assault on a Female.
The narrative of the reporting officer wrote:
The victim states that the suspect [Petitioner] threatened to kill her and assaulted her by choking her.
9. Exhibit 2 reveals that Petitioner had previously been charged with Misdemeanor Assault on a Female on March 25, 2002, and Harassing Phone Calls on April 19, 1998. In both cases, Petitioner’s wife was the complaining witness. Both cases were subsequently voluntarily dismissed. Additionally, Exhibit 2 reveals that in connection with the 2004 Assault on a Female charge and conviction, Petitioner was also charged with misdemeanor carrying of a weapon on campus or other educational property, which was voluntarily dismissed.
10. Deputy Poole testified that the Respondent Board considered all of the materials submitted with the application and decided in conformance with standard board procedures that the Petitioner’s application should be denied. Respondent introduced Exhibit 3, which is the denial letter sent to Petitioner following the final decision on the Petitioner’s application.
11. David Bailey, a licensee with the Respondent Board, testified on behalf of the Petitioner. The Petitioner had served as his employee for nine years, on and off, and that Petitioner did a “great job” while employed with him. The Petitioner previously worked for him as an armed guard and was previously issued an armed guard permit by the Board. As an armed guard, Petitioner was issued a firearm. Mr. Bailey was aware of the 2004 conviction for assault. He learned of the incident from representatives of Respondent Board, and upon learning such information, he immediately suspended Petitioner and had Petitioner surrender his firearm.
12. Petitioner testified on his own behalf. Petitioner admitted that he was previously convicted of assault on a female and that the female assaulted was his wife. The incident which ultimately led to his conviction occurred at Central Piedmont Community College where his wife was employed. Petitioner denied having a weapon or firearm in his possession at the time of the incident.
CONCLUSIONS OF LAW
1. Pursuant to G.S. 74C-12(a)(25), Respondent Board may refuse to issue an unarmed guard registration permit for lack of good moral character or temperate habits.
2. Pursuant to G.S. 74C-8(d)(2), convictions for offenses involving moral turpitude or convictions for acts of violence constitute prima facie evidence of an applicant’s lack of good moral character or temperate habits.
3. The listing of what constitutes lack of good moral character or temperate habits in G.S. 74C-8(d)(2) is not meant to be an all inclusive and exhaustive list. Petitioner has consistently demonstrated a lack of temperate habits by continuously and consistently driving without a valid driver’s license in violation of North Carolina law, and failing to attend to several traffic citations issued to him.
4. Respondent Board presented evidence of Petitioner’s lack of good moral character or temperate habits through Petitioner’s criminal record. Petitioner has failed to rebut the presumption that he lacks good moral character.
Based on the foregoing, the undersigned makes the following:
PROPOSAL FOR DECISION
It is proposed that the Board UPHOLD its initial decision to deny Petitioner’s application for an unarmed guard registration permit.
It is further proposed that Petitioner be prevented from re-applying for an alarm systems registration permit for a period of one (1) year from May 29, 2007.
ORDER
It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714, in accordance with G.S. 150B-36(b).
NOTICE
The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this proposal for decision, to submit proposed findings of fact and to present oral and written arguments to the agency pursuant to G.S. 150B-40(e).
The agency that will make the final decision in this contested case is the North Carolina Private Protective Services Board.
This the 3rd day of July, 2007
______
Donald W. Overby
Administrative Law Judge
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