STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 02 DOJ 1259

Desantis Lamarr Everett, )

Petitioner, )

)

v. ) PROPOSAL FOR DECISION

)

N. C. Private Protective Services Board, )

Respondent. )

This contested case was heard before Senior Administrative Law Judge Fred G. Morrison Jr. on August 27, 2002, in Raleigh, North Carolina.

APPEARANCES

Petitioner appeared pro se.

Respondent was represented by attorney Bradford A. Williams.

WITNESSES

Petitioner - Petitioner testified on his own behalf.

Respondent - Investigator Helen Parker 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.

STATUTES AND RULES APPLICABLE

TO THE CONTESTED CASE

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.

3. In his application for an unarmed guard registration permit, Petitioner answered “yes” to the question “have you ever pled guilty to and/or been convicted of any crime (Felony or Misdemeanor).”

4. Pursuant to Petitioner’s unarmed guard registration permit application, Respondent Board obtained a criminal record check on the Petitioner from Guilford County. Investigator Helen Parker determined from the criminal record check that Petitioner received a prayer for judgment continued, on September 18, 1995, for misdemeanor weapons on educational property. On March 4, 1999, Petitioner received a misdemeanor conviction for carrying a concealed weapon.

5. Petitioner testified that the 1995 conviction for misdemeanor weapons on educational property came about when he was helping two friends move into on-campus housing at the University of North Carolina - Greensboro (hereinafter “UNCG”). Petitioner informed the Court that he is a collector of archaic and ornamental weapons. Just before he went to the UNCG campus to assist his friends, Petitioner attended a meeting of the Society for Creative Anachronisms, a group dedicated to the collection of archaic and ornamental weapons as part of its historical recreations of Europe’s Middle Ages. Petitioner testified that, after the meeting, he forgot to remove an ornamental knife from his car.

6. While Petitioner helped his friends move, a UNCG police officer rode by Petitioner’s car on a bicycle and saw the knife in the vehicle through an open car door. The officer asked Petitioner if the vehicle and knife were his, and Petitioner acknowledged ownership. According to Petitioner, the police officer did not view him as a threat and allowed him to stay on campus until midnight so he could help his friends with their move. He was then barred from campus since anyone charged with weapons on educational property is automatically barred from the campus to which the weapon was brought. Petitioner testified that he pled guilty to the misdemeanor charge of weapons on educational property and received a prayer for judgment continued. The knife was destroyed as a result of Petitioner’s conviction.

7. As to the 1999 misdemeanor carrying concealed weapon conviction, Petitioner explained that he was stopped by the police in Greensboro. The officer who stopped Petitioner asked if Petitioner had a weapon in the car. Petitioner admitted to the officer that he had a knife near the driver’s side door. Petitioner testified that the ornamental knife was eight to ten inches long. After being charged with misdemeanor carrying concealed weapon, Petitioner pled guilty to the charge, paid costs, and the knife was destroyed.

8. Petitioner is thirty-three years old, graduated from high school, attended college, and was medically discharged from the Unites States Marine Corps. He has had odd jobs since attending college and being discharged from the military, including work as a lab technician in Greensboro. He informed the Court that he doesn’t own or keep any firearms and that, other than the two convictions related to the possession of ornamental knives, he has not been charged or convicted with any misdemeanors or felonies. He characterized his two misdemeanor convictions as arising out of poor judgment and not bad behavior. He was a credible witness, good demeanor, polite, respectful to the undersigned and counsel.

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 crimes involving moral turpitude constitute prima facie evidence of an applicant’s lack of good moral character or temperate habits.

3. Respondent Board presented prima facie evidence of Petitioner’s lack of good moral character or temperate habits through Petitioner’s criminal record, which includes convictions for misdemeanor weapons on educational property and misdemeanor carrying concealed weapon. Petitioner rebutted the presumption of a lack of good moral character established by Respondent Board in that he received a PJC in one case and no active time or probation in either, appeared very credible and respectful at the hearing, and admits past mistakes in judgment.

Based on the foregoing, the undersigned makes the following:

PROPOSAL FOR DECISION

The North Carolina Private Protective Services Board will make the final decision in this contested case. It is proposed that the Board reverse its initial decision to deny Petitioner’s application for an unarmed guard registration permit.

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 6th day of September, 2002.

_______________________________

Fred G. Morrison Jr.

Senior Administrative Law Judge

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