STATE OF NORTH CAROLINAIN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE02 DOJ 1562

John Curtis Howell
Petitioner
vs.
N. C. Private Protective Services Board
Respondent / )
))
)))) / PROPOSED DECISION

Upon consideration of Petitioner’s Motion to Stay, and the parties’ October 1, 2002 oral arguments on this Motion, the undersigned determines as follows:

APPEARANCES

For Petitioner: Richard T. Rodgers, Jr.

Carolina Courtroom Lawyers, PLLC

PO Drawer 250

Burgaw, NC28425

For Respondent:Charles F. McDarris

Holt York McDarris & High, LLP

4601 Six Forks Road, #207

Raleigh, NC27609

ISSUES

1.Whether the Office of Administrative Hearings has jurisdiction to determine if Petitioner’s Motion to Stay should be granted?

2.Whether the undersigned should issue a preliminary injunction to stay the Respondent’s Summary Suspension of Petitioner’s firearms trainer’s certification?

FINDINGS OF FACT

1.On June 6, 2001, Respondent issued Petitioner a Firearms Trainer’s Certificate #18FT. Petitioner is currently the firearms trainer for Myers Investigative and Security Services, Inc. of Dunn, NC. Petitioner conducts firearms training classes for armed security guards that have been subsequently placed on active posts throughout North Carolina.

2.On September 19, 2002, Respondent’s Director Wayne Woodard issued an Order of Summary Suspension of Petitioner’s Firearms Trainer Certification pursuant to N.C. Gen. Stat. § 150B-3. In such Order, the Director found that:

Mr. Howell’s [Petitioner’s] inattentiveness and failure to comply with the Private Protective Services Act and the rules promulgated thereto creates a serious threat to the public health, safety, and welfare and finds that a number of armed security guards have been placed on post without being properly trained. The Director further finds that summary suspension of Mr. Howell’s [Petitioner’s] Firearms Trainer Certification is necessary to prevent further abuses within the firearms training program.

On September 19, 2002, Respondent’s Investigator Larry Liggins served such Order on Petitioner.

3.On September 26, 2002, Respondent notified Petitioner that on October 29, 2002, the Office of Administrative Hearings would conduct a contested case hearing “to review the suspension of the Certification. Said certification was summarily suspended based upon the findings set forth in the attached Order of Summary Suspension of Firearms Trainer Certification.” (See Respondent’s Notice of Hearing)

4.On September 27, 2002, Petitioner filed a Motion requesting a preliminary injunction to stay Respondent’s September 19, 2002 Summary Suspension Order.

5.On October 1, 2002, the undersigned conducted a hearing to determine the above-cited issues. At such hearing, both parties made oral argument. Petitioner did not present witnesses. However, Respondent presented witnesses supporting its basis for issuing the September 19, 2002 Summary Suspension Order. On October 2, 2002, the undersigned conducted a telephone conference further addressing the jurisdictional issue in this case.

6.Pursuant to 12 NCAC 7D .0807, as a firearms trainer, Petitioner is required to conduct at least 20 hours of classroom training for firearms training, including specific blocks of instruction set forth in 12 NCAC 7D .0807 (b)(1 - 5).

7.Pursuant to a complaint filed with Respondent by one of Petitioner’s former students, Respondent’s Director initiated an investigation into Petitioner’s training methods. Respondent’s Investigator Larry Liggins conducted this investigation and interviewed Petitioner, and at least 6-7 individuals who had taken Petitioner’s firearms training course. These individuals advised Liggins that during their firearms training course with Petitioner, Petitioner did not conduct 20 hours of classroom firearms training, but taught approximately 9-12 hours of classroom training in each training session. Of the individuals that Liggins interviewed, Petitioner signed a Firearm Training Certificate and documentation record for at least 4 of those individuals. On these documents, Petitioner indicated that each person had successfully completed Petitioner’s Basic Armed Security Officer Training Course of a minimum of 20 hours of classroom training as required by N.C. Gen. Stat. § 74C and 12 NCAC 7D .0807. (Resp Exhs 4-7)

These individuals submitted these Firearms Training Certificates and documentations records to Respondent. Respondent used these documents as a basis to issue armed security guard registration permits to each individual armed security officer.

8.Liggins indicated that during the investigation, Petitioner admitted to Liggins that he had not been conducting 20 hours of classroom firearms training instruction, but had instead provided approximately 9½ hours of classroom instruction depending on how quickly each class’ participants grasped the material.

9.The investigation also revealed that during one classroom session, Petitioner gave dummy or blank ammunition to his students to practice “dry fire.” “Dry fire” is the manipulation of the handgun’s trigger that causes the weapon’s firing action to cycle while the weapon is unlocked or loaded with dummy or blank ammunition. Petitioner left the room for approximately 5 minutes. No other firearms instructor/trainer was in the room with the students. While practicing “dry fire,” a student discharged a .357 caliber round that was “live.” That round entered the wall of the classroom, approximately 12 feet above the floor.

10.Liggins’ information indicated that Petitioner did not verbally notify the Respondent about the above-noted discharge incident, by the next business day, or did not notify Respondent by written report within 5 business days.

11.12 NCAC 7D .0112 requires that a licensee or registrant who discharges a firearm while engaged in the private protective services business, notify the Respondent of such incident (1) either in person or by telephone by the first business day after the incident and (2) file a written report with Respondent within 5 working days of the incident.

12.Liggins reported and discussed his findings with Director Woodard.

13.As the date of this hearing, Investigator Liggins continues to investigate this matter. His preliminary information indicates that at least other 60 guards were issued firearms registration permits based upon Firearms Training Certificates that indicated they had completed Petitioner’s firearms training course and received the minimum 20 hours of classroom firearm training. Liggins has yet to interview such individuals.

14.After reviewing the information gathered during the investigation so far, and discussing such with Liggins, Deputy Director Wright, and the Respondent’s attorney, Director determined that Petitioner’s failure to comply with the firearms training requirements created a serious threat to the public health, safety, and welfare because a number of armed security guards had been licensed by Respondent and placed on post without receiving the minimum 20 hours of classroom firearms training and thus, in Woodard’s opinion, without being properly trained. Woodard found that summary suspension of Petitioner’s firearms trainer certification was necessary to prevent further abuses within the firearms training program.

15.By affidavit only, Petitioner indicated that his income as a firearm trainer for Myers Investigative and Security Services, Inc. is the principal source of income from which he supports himself and his family. Petitioner does not expect his employment with Myers to continue should his firearms trainer certification continue to be suspended pending the duration of the Respondent’s investigation. Petitioner did not testify at the administrative hearing on this matter.

CONCLUSIONS OF LAW

1.Respondent is created pursuant to the North Carolina Private Protective Services Act, N.C. Gen. Stat. § 74C-1 et seq., and is established within the North Carolina Department of Justice for the purpose of administering the licensing of, and setting the education and training requirements for persons, firms, associations, and corporations engaged in the private protective services profession within North Carolina. 12 NCAC 07D .0101. Specifically, Respondent regulates the licensing of a firearms trainer’s certification. 12 NCAC 07D .0900 et seq.

2.Respondent is an occupational licensing agency pursuant to Article 3A of N.C. Gen. Stat. § 150B-38.

3.Pursuant to N.C. Gen. Stat. § 150B-3(c), the Respondent may summarily suspend an occupational license if the Respondent finds “that the public health, safety, or welfare requires emergency action and incorporates this finding in its order. . . . The proceedings [on this suspension] shall be promptly commenced and determined.” The statute does not provide where the proceeding on this suspension shall commence.

4.Pursuant to N.C. Gen. Stat. § 150B-33(b)(6), an Administrative Law Judge may stay the contested action by an agency pending the outcome of the contested case upon terms as he/she deems proper, and subject to the provisions of G.S. 1A-1, Rule 65. However, this authority is only allowed where an administrative hearing is conducted under Article 3 of Chapter 150B of the North Carolina General Statutes. There is no such similar provision where an administrative hearing is conducted under Article 3A of Chapter 150B of the North Carolina General Statutes. In other words, an Administrative Law Judge has no statutory authority to stay the contested action of an Article 3A occupational licensing agency.

5.However, N.C. Gen. Stat. § 150B-40(e) provides that an agency may ask the Director of the Office of Administrative Hearings to designate an Administrative Law Judge to preside at a contested case hearing under Article 3A of Chapter 150B. If the agency makes such a request, the assigned Administrative Law Judge “shall sit in the place of the agency and shall have the authority of the presiding officer in a contested case under this Article. The Administrative Law Judge shall make a proposal for decision, which shall contain proposed findings of fact and proposed conclusions of law.

Since the Respondent requested an Administrative Law Judge be designated to conduct a contested case hearing to “review the [Summary] suspension of the [Petitioner’s] certification,” the undersigned sits in the place of the agency and has the authority of the agency’s presiding officer under Article 34A. Therefore, since the agency has power to stay its own actions, then the undersigned has jurisdiction to rule on Petitioner’s Motion to Stay.

6.N.C. Gen. Stat. § 74C-6 defines the Director’s position and duties as follows:

The position of Director of the Private Protective Services Board is hereby created within the Department of Justice. The Attorney General shall appoint a person to fill this full-time position. The Director’s duties shall be to administer the directives contained in this Chapter and the rules promulgated by the Board to implement this Chapter and tocarry out the administrative duties incident to the functioning of the Board in order to actively police the private protective services industry to ensure compliance with the law in all aspects. (Emphasis added)

7.N.C. Gen. Stat. § 150B-2 defines the word “agency” as:

agency or officer in the executive branch of the government of this State and includes. . . any other unit of government in the executive branch.

8.Pursuant to N.C. Gen. Stat. § 74C-6 and N.C. Gen. Stat. § 150B-2, Respondent’s Director’s position has the authority to issue a Summary Suspension to “carry out the administrative duties incident to the functioning of the Board . . to actively police the private protective services industry to ensure compliance with the law in all aspects.”

9.A preliminary injunction will be issued only if plaintiff is able to show the likelihood of success on the merits of his case and if plaintiff is likely to sustain irreparable loss unless the injunction is issued, or if, in the opinion of the court, issuance is necessary for the protection of the plaintiff’s rights during the course of litigation. A.E.P. Indus. Inc. v. McClure, 308 N.C. 393, 302 S.E.2d 754 (1983).

10.The burden is on the plaintiff to establish the right to preliminary injunctions. Pruitt v. Williams, 25 N.C. App. 376, 213 S.E.2d 369, appeal dismissed, 288 N.C. 368, 218 S.E.2d 348 (1975)

11.In this hearing, Petitioner failed to present any evidence establishing a likelihood of success on the merits of this case. However, Respondent presented sufficient evidence supporting the reasons for its September 19, 2002 Summary Suspension of Petitioner’s firearms trainer’s certification and thereby, established by its own evidence, a likelihood that it would succeed on the merits of this case.

12.Because Petitioner failed to prove that he would likely succeed on the merits of this case, Petitioner has failed to prove that he is entitled to a preliminary injunction to stay the Respondent’s September 19, 2002 Summary Suspension Order.

PROPOSAL FOR DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby proposes that the Respondent Board DENY Petitioner’s Motion for a Preliminary Injunction to Stay the Respondent’s Summary Suspension of Petitioner’s firearms trainer’s certification.

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 N.C. Private Protective Services Board will make the Final Agency Decision in this contested case. That agency is required to give each party an opportunity to file exceptions to this proposed decision and to present written arguments to those in the agency who will make the final decision. N.C. Gen. Stat. § 150B-36(a).

N.C. Gen. Stat. § 150B-36 requires the Board to serve a copy of the Final Decision on all parties, and furnish a copy to the parties’ attorney of record and to the Office of Administrative Hearings.

This the 4th day of October, 2002.

______

Melissa Owens Lassiter

Administrative Law Judge

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