STATE OF NORTH CAROLINAIN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE12 DOJ 00761

DAVID LEN NEALY,)

Petitioner,)

v.)PROPOSAL FOR DECISION

N.C. PRIVATE PROTECTIVE)

SERVICES BOARD,)

Respondent.)

______)

This contested case was heard before the Honorable Administrative Law Judge Joe Webster on February 28, 2012, in Raleigh, North Carolina.

APPEARANCES

Petitioner appeared pro se.

Respondent was represented by attorney M. Denise Stanford.

WITNESSES

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

Petitioner testified on his own behalf.

ISSUE

Whether grounds exist for Respondent to deny Petitioner’s application for unarmed registration for committing an unlawful assault.

BURDEN OF PROOF

Respondent has the burden of proving that Petitioner lacks good moral character. 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:

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

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 April 20, 2011, Petitioner applied to Respondent for an unarmed security guard registration. A copy of Petitioner’s application was introduced as Exhibit 1. In connection with Petitioner’s application, Petitioner authorized the release of criminal records to Respondent.
  1. A copy of this criminal record search was introduced and admitted into evidence as Exhibit 4. Petitioner’s criminal record revealed a prayer for judgment was entered on November 9, 2006 to a Misdemeanor charge of Assault on a Female.
  1. On November 4, 2011, Respondent Board informed Petitioner that his registration for an unarmed registration had been denied. A copy of the denial letter was introduced and admitted into evidence as Exhibit 3.
  1. Mr. Bonapart testified that he discussed the criminal charge with Petitioner. Petitioner told him that the assault charge was filed by his ex-wife when a dispute arose over their daughter. Petitioner’s ex-wife granted custody of their daughter to Petitioner, but later changed her mind. Petitioner’s ex-wife tried to physically take the daughter away from Petitioner. As a result, Petitioner grabbed his ex-wife’s arm and left a bruise. The ex-wife filed the assault against a female charge against him. Petitioner went to court and agreed to the entry of a prayer for judgment.
  1. Petitioner testified that he agreed to the entry of the prayer for judgment because he did not want to put his daughter through the ordeal of testifying in court. Petitioner further testified that there had been no other incidents before or after this one.
  1. Petitioner testified that on March 31, 2008, he had been registered with the Board as an armed security guard after disclosing the prayer for judgment to the Board. Petitioner testified that he is disabled, works part-time, and is in school to obtain a degree which will allow him to make a career change.

CONCLUSIONS OF LAW

  1. Under G.S. §74C-12(a)(9), Respondent Board may refuse to grant a registration if it is determined that the applicant has committed an unlawful assault.
  1. Respondent Board presented evidence that Petitioner had committed an unlawful assault through his criminal record revealing a Prayer for Judgment entry to a Misdemeanor charge of Assault on a Female.
  1. Petitioner presented sufficient evidence to disprove that he had committed an unlawful assault.

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 unarmed security guard registration.

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, NC 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 21st day of March, 2012.

______

Joe L. Webster

Administrative Law Judge

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