STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

WAKE COUNTY 04 DOJ 1244

MARCUS FULLER)

Petitioner)

)

v.) PROPOSAL FOR DECISION

)

N.C. PRIVATE PROTECTIVE )

SERVICES BOARD)

Respondent )

This contested case was heard before Senior Administrative Law Judge Fred Morrison Jr. on September 8, 2004, in Raleigh, North Carolina.

APPEARANCES

Petitioner was represented by attorney Daron D. Satterfield, Nichols & Satterfield, PLLC.

Respondent was represented by attorney Bradford A. Williams, Holt York McDarris & High, LLP.

WITNESSES

Petitioner- Petitioner testified on his own behalf. Ray Alston, Frank Moore, Marcella Teeters, Robin Petty-Franks, Dean Pierce and George L. Corbett also testified for Petitioner.

Respondent- David Meyers, Larry Liggins (PPSB Investigator) and J.D. White testified for respondent Private Protective Services Board.

ISSUE

Whether grounds exist for Respondent to revoke Petitioner’s Firearm’s Trainer Certification for failing to complete firearms training on a course approved by the Private Protective Services Board and the Attorney General, for conducting firearms training with more than six armed security guard applicants per one instructor on the firing line at the same time, and for failing to retain a copy of the required firearms training documents.

BURDEN OF PROOF

Respondent has the burden of showing that Petitioner violated provisions of the Act that would justify a revocation of Petitioner’s Firearm’s Trainer Certification.

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; 74C-9; 74C-12; 74C-13;

12 N.C.A.C. 7D.0807(c), .0807(f), .0906.

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.
  1. Respondent received a complaint from David Myers that Petitioner may be instructing security guard officers for night training in a facility that was not dark enough and that Petitioner conducted firearms training with more than six security guards on the firing line.
  1. Petitioner performed firearms training for security officers on September 27 and September 28, 2003. Petitioner performed this instruction at the gun range located at Jim’s Gun Jobbery (JGJ) in Fayetteville, NC. JGJ houses a pawn shop and gun shop in the same building. JGJ also houses a gun range. The gun range has a series of windows along the front wall where the gun range is entered.
  1. Petitioner used the indoor gun range for night firing instruction. He prepped the firing range for night firing by turning off the lights inside the gun range.
  1. Investigator Liggins visited the gun range at JGJ with Petitioner after a complaint filed with PPSB against Petitioner based on his September 27 and 28, 2003, firearms training sessions. While at the range, Investigator Liggins asked JGJ’s personnel to turn off the lights in the gun range. Investigator Liggins then informed Petitioner that the lighting was not dark enough for night firing.
  1. Petitioner testified that he decided to use the gun range at JGJ only after asking Mr. J.D. White, witness for Respondent, about a gun range which was available the weekend of September 27, 2003. Mr. White referred Petitioner to JGJ.
  1. Mr. J. D. White testified that he used the gun range at JGJ to engage in day and night firearms instruction when he was licensed by the NC Private Protective Services Board (PPSB) as a firearm’s instructor. Mr. White testified he was not reprimanded by the PPSB for engaging in night firearm training at JGJ’s gun range.
  1. Mr. White testified that when he performed night firearms training at JGJ’s gun range, he required his trainees to wear sunglasses to reduce the trainees’ light intake. Mr. White also testified PPSB did not require him to have his trainees wear sunglasses during their night firing training.
  2. Marcella Teeters, a security guard officer with Eagle Technologies, Inc., testified that she received night firing training by Mr. White at JGJ’s gun range prior to September 2003. During her training, Mr. White did not require Ms. Teeters or any of her fellow trainees to wear sunglasses when they were undergoing night firing training. Mr. White did not ask JGJ’s personnel to place cardboard over the gun range windows to limit light intake into the gun range during the night firing instruction.
  1. Robin Petty-Franks, a security guard instructor with Eagle Technologies, Inc., also testified that she received firearms training at JGJ’s gun range prior to September 2003.
  1. Mr. J. D. White testified that he provided night firing instruction to Petitioner on September 22, 2003, at JGJ. Petitioner testified that Mr. White provided night firing instruction to him on September 22, 2003. During Petitioner’s September 22, 2003, training session with Mr. White, White prepped the gun range for night firing training by turning off the lights. Mr. White did not require Petitioner or any of his fellow trainees to wear sunglasses while they were participating in the night firing training. Mr. White did not ask JGJ’s personnel to place cardboard over the gun range windows to limit light intake into the gun range during the night firing instruction.
  1. Investigator Liggins testified that the PPSB does not have a procedure to approve gun ranges on which night firing training is to take place before the actual training begins.
  1. Investigator Liggins testified that PPSB does not have a master list of gun ranges which can be used to conduct night firing instruction.
  1. The NC Private Protective Services Board, as per the PPS Night Handgun Qualification Course, requires that night firing instruction occur in “total darkness.”
  1. Pursuant to the Firearms Instructor Trainer Course manual, the lesson purpose of night firing training is “To provide the participant with the skills required to successfully engage in a target in a reduced light situation with or without the use of a flashlight.”
  1. Mr. George L. Corbett videotaped JGJ’s gun range under conditions similar to those existing when Petitioner engaged in night firing training on September 27 and 28. Mr. Corbett testified he videotaped the gun range while the lights were turned off. Mr. Corbett testified that when the lights were off, the range was extremely dark and that light which shone through the range’s windows had little effect in illuminating the gun range.
  1. Dean Pierce, a security officer with Eagle Technologies, Inc., and trained by Petitioner during the September 27, 2003 weekend, testified that when Petitioner performed his night firearms training, the gun range was extremely dark and that light which shone through the range’s windows had little effect in illuminating the range.
  1. The NC Private Protective Services Board (PPSB) allows night firing instruction to occur on gun ranges on outdoor ranges. The PPSB does not regulate what time these ranges can be used for night firing instruction, nor does it mandate during what season of the year these ranges can be used.
  1. Mr. J.D. White testified that outdoor gun ranges are not totally dark at night. Mr. White also testified that there is no way to create total darkness on an outdoor gun range.
  1. The PPSB does not set a minimum level of lumens for gun ranges where night firearms training will occur.
  1. Pursuant to Investigator Liggins’ investigation, Liggins audited Petitioner’s file and requested Petitioner to submit his trainees’ B-27 targets or the trainees’ Certified Firearm’s Trainer’s Documentation. Petitioner did not submit to Investigator Liggins his trainees’ B-27 target nor the trainees’ Certified Firearm’s Trainer’s Documentation.
  1. During the weekend of September 27, 2003, Petitioner was engaged in weapons changeover firearms instruction. This was the first weapons changeover instruction for which Petitioner had ever participated.
  1. According to Liggins, weapons changeover firearms instruction is very rare.
  1. Investigator Liggins testified that Petitioner called him prior to submitting the training documents for his weapons changeover training session. Investigator Liggins testified that Petitioner sought instruction with regard to document retention for the weapons changeover.
  1. Investigator Liggins testified that he informed Petitioner he could use the Firearms Training Certificate form and write “Weapon Change” on the form.
  1. Investigator Liggins testified that he gave Petitioner no other instructions with regard to records retention for the weapons changeover. Pursuant to Investigator Liggins’ instructions, Petitioner wrote “Weapon Change” on his trainees’ Firearms Training Certificate.
  1. Investigator Liggins testified that the instruction to write “Weapon Change” on the Firearms Training Certificate is not required per North Carolina General Statute, the North Carolina Administrative Code, or the Firearms Instructor Trainer Course manual.
  1. Petitioner testified that he believed the North Carolina Administrative Code’s record retention requirements were for four (4) hour and twenty (20) hour courses only and not for weapon changeover courses.
  1. Investigator Liggins testified that neither North Carolina General Statutes, the North Carolina Administrative Code or the Firearms Instructor Trainer Course manual specifically addresses record retention with regard to weapons changeover.
  1. Petitioner testified that he relied on Investigator Liggins advice and wrote “Weapon Change” on the Firearms Training Certificate. Petitioner did not retain his trainees’ B-27 targets or their Certified Firearms Trainer’s Documentation record because he did not think it necessary to do so for a weapons changeover training course.
  1. Petitioner admitted to the final violation. During Petitioner’s September 28, 2003, training session at JGJ, Petitioner allowed eight trainees on the firing line during the last course of fire. Petitioner allowed eight trainees on the firing line only once.
  1. Security Officers Ray Alston, Frank Moore, Marcella Teeters, Dean Pierce and Robin Petty-Franks testified that they were all instructed by Petitioner on the weekend of September 27, 2003. They all testified to the following with regard to Petitioner’s instruction during that weekend: 1. Petitioner’s commands and instructions were clear and given in a manner that they could all understand, 2. Petitioner explained proper handgun operation and maintenance, 3. They believe that Petitioner provided them with the requisite knowledge and skills to safely handle their weapon and to deliver with accurate fire during shooting situations.
  1. Petitioner has no prior disciplinary history.

CONCLUSIONS OF LAW

Based on the foregoing, the undersigned makes the following:

Pursuant to G.S. § 74C-12(a)(3), the Board may suspend a license for violation of any rule promulgated by the Board.

Pursuant to 12 NCAC 07D.0807(c), all armed security guard training shall be successfully completed on a firearms range qualification course adopted by the Board and the Attorney General.

Pursuant to 12 NCAC 07D.807(f), no more than six new or renewal armed security guard applicants per one instructor shall be placed on the firing line at any one time during firearms training.

Pursuant to 12 NCAC 07D.0906, a Certified Firearms trainer shall retain the following in the individual’s armed certification file:

(1)a copy of the summary sheet listing the name(s) of individual(s) qualifying for armed security guard registration, and hour(s) of training, weapon qualification scores and any other information thereon; and

(2)a copy of the individual’s Firearm Training Certificate; and

(3)the individual’s B-27 target or the Certified Firearms Trainer’s Documentation Record.

Pursuant to G.S. § 74C-17(c), the Board may issue a civil penalty of not more than two thousand dollars ($2,000) against any person or business who violates any provision of the Chapter or rules.

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 dismiss the charges alleging violations of 12 NCAC 07D.0807(c) and 12 NCAC 07D.0906 and vacate their decision to indefinitely revoke Petitioner’s Firearms Trainer Certification. The Board should suspend Petitioner’s Firearms Trainer Certification for thirty (30) days; however, the suspension should be suspended on the condition Petitioner pays a $1,000.00 civil penalty and has no further violations during the 30 day time frame that the suspension is suspended.

NOTICE AND ORDER

N.C. Private Protective Services Board is the agency that will make the Final Decision in this contested case. As the final decision-maker, that agency 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).

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).

This the 12th day of November, 2004

Fred G. Morrison Jr.

Senior Administrative Law Judge

1