STATE OF NORTH CAROLINAIN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 11 DOJ 14434

______

STEVE MICHAEL GALLOWAY, JR,)

)

Petitioner,)

v.)

) PROPOSAL FOR DECISION

N.C. PRIVATE PROTECTIVE)

SERVICES BOARD,)

)

Respondent.)

______

THE ABOVE-ENTITLED MATTER was heard before the undersigned Augustus B. Elkins II, Administrative Law Judge, on January 31, 2012, in Raleigh, North Carolina. This case was heard pursuant to N.C.G.S. § 150B-40(e), designation of an Administrative Law Judge to preside at the hearing of a contested case under Article 3A, Chapter 150B of the North Carolina General Statutes. The Parties were given 30 days to submit all proposals, memorandum or other material. Mailing time was allowed for submission on the thirtieth day as well as time allowed for receipt by the Administrative Law Judge. The record was closed on March 9, 2012.

APPEARANCES

Petitioner appeared pro se.

Respondent was represented by attorney Jeffrey D. McKinney.

WITNESSES

For Petitioner:Petitioner testified on his own behalf.

For Respondent:Private Protective Services Board Deputy Director Anthony Bonapart testified for Respondent Board.

ISSUE

Whether grounds exist for Respondent to deny Petitioner’s application for unarmed registration for a lack of good moral characteror temperate habits on the basis of misdemeanor convictions for misrepresentation to obtain ESC benefit.

EXHIBITS

Petitioner’s Exhibits 1-3 were introduced and admitted

Respondent’s Exhibits 1-3 were introduced and admitted.

BURDEN OF PROOF

Respondent has the burden of proving that Petitioner lacks good moral character. Petitioner may rebut Respondent’s showing.

APPLICABLE STATUTES AND RULES

Official notice is taken of the following statutes and rules applicable to this case:

N.C.G.S. §§ 74C-3(a)(6); 74C-8; 74C-9; 74C-11; 74C-12; 12 NCAC 7D § .0700.

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents, and exhibits received and admitted into evidence, and the entire record in this proceeding, the undersigned Administrative Law Judge makes the following Findings of Fact by a preponderance of the evidence. In making these Findings of Fact, the Undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including, but not limited to the demeanor of the witnesses, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable and whether the testimony is consistent with all other believable evidence in this case.

FINDINGS OF FACT

  1. Respondent Board is established pursuant to N.C.G.S. 74C-1 etseq., and is charged with the duty of licensing and registering individuals engaged in the private protective services profession, including armed and unarmed security guards.
  1. On June 30, 2011, Petitioner applied to Respondent for an unarmed security guard registration. A copy of Petitioner’s application was introduced as Exhibit 1.
  1. Included in Petitioner’s application was a North Carolina statewide criminal record search. The criminal record search revealed eight misdemeanor charges for misrepresentation to obtain ESC benefit occurring between June of 2009 and January of 2010.
  1. On October 18, 2011, Petitioner sent, via facsimile, documents, including copies of judgments, showing the final disposition of six of themisdemeanor charges for misrepresentation to obtain ESC benefit. A copy of the October 18, 2011 facsimile was introduced and admitted into evidence as Exhibit 2. The judgments showed that Petitioner pled guilty to six of themisdemeanor charges for misrepresentation to obtain ESC benefit.
  1. Petitioner testified that at the time the events leading to the convictions occurred he was a single parent of two kids who had been unemployed for several months. After finally finding employment, he did not properly notify ESC. Thereafter, he continued to receive unemployment benefits. Petitioner testified that he needed those benefits to make ends meet and take care of his children.
  1. Petitioner testified that after ESC was alerted to his employment, he attempted to negotiate a payment plan. Petitioner introduced a letter to Nick Adams of ESC regarding this payment plan as Petitioner’s Exhibit 1. Petitioner testified that he and ESC were unable to reach a payment arrangement and ESC brought charges resulting in his convictions. The court ordered payment plan is very similar to what he was trying to negotiate. Petitioner pled guilty on advice of a court appointed attorney and is now working on getting his record expunged.
  1. Petitioner introduced letters from individuals who work with him, including a supervisor, who attested to his character. These letters were introduced as Petitioner’s Exhibits 2 and 3.
  1. Exhibit 2 is an email from Lt. Ed Harris who is the Biltmore Park Site Supervisor for G4S Secure Solutions. Lt. Harris relays that Petitioner is professional, “is always on time for shifts,” “is always available to step in if another officer calls out,” and takes lawful orders from supervisors without question. Further, Lt. Harris has found that Petitioner is a team player and one to whom other officers look to “for answers to different situations that they may be involved in.” Lt. Harris sees Petitioner as “a worthy officer” who “takes the lead and can carry through the situation without being checked on.”
  1. Exhibit 3 is a letter from Lieutenant Kansas C. McElroy who has known Petitioner for several years. Lt. McElroy relays that Petitioner is “fair, upright and honorable in his dealing with all he comes in contact with,” and that he has a reputation as a very trustworthy person. Further, Petitioner “shows a great level of dedication to his duties.” Petitioner “was recently promoted to a shift lead status after having been with a client only a few months,” and his reputation among supervisors has caused several to ask for him to be assigned to their clients.

BASED UPONthe foregoing findings of fact and upon the preponderance or greater weight of the evidence in the whole record, the Undersigned makes the following:

CONCLUSIONS OF LAW

  1. Pursuant toN.C.G.S. §74C-12(a)(25), Respondent Board may refuse to grant a registration if it is determined that the applicant lacks good moral character or has demonstrated intemperate habits. Acts that are prima facie evidence of intemperate habits or lack of good moral character are found under N.C.G.S. § 74C-8(d)(2). They include conviction of any crime involving the illegal use, carrying, etc. of a firearm; illegal use, sale, etc. of a controlled substance; conviction of a crime involving felonious assault or other act of violence; conviction of burglary, larceny, etc.; or a history of addiction.
  1. Petitioner so admitted and has misdemeanor convictions for misrepresentation to obtain ESC benefit. This action is not prima facie evidence of intemperate habits or lack of good moral character.
  1. The United States Supreme Court has described the term “good moral character” as being “unusually ambiguous.” In Konigsberg v. State, 353 U.S. 252, 262-63 (1957), the Court explained: The term good moral character...is by itself...unusually ambiguous. It can be defined in an almost unlimited number of ways for any definition will necessarily reflect the attitudes, experiences, and prejudices of the definer. Such a vague qualification, which is easily adapted to fit personal views and predilections, can be a dangerous instrumentfor arbitrary and discriminatory denial.... Police administrators, officers and others have considerable differences of opinion as to what constitutes good moral character.”
  1. Because of concerns about the flexibility and vagueness of the good moral character rule, any denial, suspension or revocation based on an allegation of a lack of good moral character should be reserved for clear and severe cases of misconduct. See Jonathan Mims v. North Carolina Sheriff's Education and Training Standards Commission, 02 DOJ 1263, 2003 WL 22146102
  1. Good moral character has been defined as “honesty, fairness, and respect for the rights of others and for the laws of state and nation.” See Daniel Brannon Gray v. N.C. Sheriffs Education and Training Standards Commission, 09 DOJ 4364 (March 15, 2010 citing In Re Willis, 299 N.C. 1, 10 (1975).
  1. Petitioner presented evidence sufficient to explain the misdemeanor convictions and to rebut the evidence of lack of good moral character and temperate habits.
  1. Though Petitioner’s actions are not condoned, there is insufficient evidence in the record to support Respondent’s denial of registration based on the reasons set forth in the October 21, 2011 letter from the Private Protective Services Board.

BASED UPON the foregoing Findings of Fact and Conclusions of Law the Undersigned makes the following:

PROPOSAL FOR DECISION

The Undersigned finds and holds that there is sufficient evidence in the record to properly and lawfully support the Conclusions of Law cited above. The weight of the evidence in this case sustains a holding,and the Undersigned so proposes, that the Board REVERSE its initial decision to deny Petitioner’s application for an Unarmed Permit.

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. N.C.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.

A copy of the final agency decision or order shall be served upon each party personally or by certified mail addresses to the party at the latest address given by the party to the agency and a copy shall be furnished to his attorney of record. N.C.G.S. § 150B-42(a). It is requested that the agency furnish a copy to the Office of Administrative Hearings.

IT IS SO ORDERED.

This is the 20th day of April, 2012.

______

Augustus B. Elkins II

Administrative Law Judge

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