NORTH CAROLINA
WAKECOUNTY
______
DAVID STEVEN NORRIS,
Petitioner,
v.
NORTH CAROLINA PRIVATE
PROTECTIVE SERVICES BOARD,
Respondent.
______/ ))))))))))) / IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
07 DOJ 1256
PROPOSAL FOR DECISION
GRANTING RESPONDENT’S CROSS MOTION FOR SUMMARY JUDGMENT

Respondent requested the designation of an administrative law judge to preside at an Article 3A, North Carolina General Statute § 150B, contested case hearing of this matter. Based upon the Petitioner’s request, the matter was docketed before Judge Selina M. Brooks in August 2007. It was removed from that calendar and assigned to Administrative Law Judge Augustus B. Elkins II, to be heard in late October 2007, in Raleigh, North Carolina. Before hearing, Petitioner requested ruling be made based on the file in his absence, which the Undersigned designated as a Motion for Summary Judgment. Respondent made a Cross Motion from Summary Judgment. The record was left open for submission of materials by the parties. After filing by Respondent,the record was held open for any further filing by Petitioner and closed on March 11, 2008.

APPEARANCES

Petitioner did not appear.

Respondent was represented by attorney John T. Crook

WITNESSES

Respondent – Private Protective Services Board Deputy Director Mark Poole 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. Further, on the parties’ cross-motions for summary judgment, whether the pleadings, admissions on file, together with affidavits show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.

BURDEN OF PROOF

Respondent has the burden of proving that the grounds for denial of Petitioner’s application were proper and valid. Petitioner may rebut Respondent’s showing for lack of good moral character or temperate habits.

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-11; 74C-12; and

12 N.C.A.C. 7D § .0300.

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 unarmed guards.
  1. Petitioner applied to Respondent Board for an unarmed guard registration permit. A true copy of the application submitted by the Petitioner to Respondent Board was introduced and admitted as Exhibit 1 on the record.
  1. In his application for an unarmed guard registration permit, Petitioner responded “yes” to the questions, “Have you ever pled guilty to and/or been convicted of any crime (Felony or Misdemeanor); Served Time; Been Paroled or Been on Probation.”
  1. Respondent introduced Exhibit 2, which was submitted to Respondent Board along with Petitioner’s application. In Exhibit 2, Petitioner explains the circumstances regarding his criminal record. Petitioner explained that in 2000 he began having marital problems, and acting “on emotional distress,” had several misdemeanor charges brought against him. He stated he was guilty of only two of the charges but in order to save his children “the embarrassment of having all the details of the problems brought out in open court,” he pled guilty to all charges. Private Protective Services Board Deputy Director Mark Poole (Deputy Director Poole) testified that the Respondent Board did take the Petitioner’s explanation into account in considering whether to register Petitioner as an unarmed guard with Respondent Board.
  1. Respondent introduced Exhibit 3, which was a criminal record check from WilkesCounty. Deputy Director Poole testified that pursuant to Petitioner’s criminal record, that the Petitioner had the following convictions as set forth below:

01-24-01: (M) Communicating Threats; Guilty;

01-24-01: (M) Assault on a Female; Guilty;

01-24-01: (M) Larceny; Guilty;

01-24-01: (M) Breaking and Entering; Guilty;

01-24-01: (M) Assault on a Female; Guilty;

01-24-01: (M) Domestic Violence Protective Order Violation; Guilty

01-24-01: (M) Assault on a Female; Guilty

  1. Deputy Director Poole testified that based on the contents of the Petitioner’s criminal record, that Respondent Board decided to deny Petitioner’s application. Respondent Board introduced Exhibit 4, a “For Cause” denial letter indicating that Respondent Board was denying Petitioner’s application for an unarmed guard registration permit. The Petitioner’s criminal convictions which were obtained from the Petitioner’s criminal record are listed on Exhibit 4, under the heading of “For Cause”.
  1. Respondent Board introduced Exhibit 5, which was an explanation submitted by the Petitioner to the Respondent Board in response to the Board’s “For Cause” denial of Petitioner’s application. Deputy Director Poole testified that the Board considered the Petitioner’s explanation in his request for reconsideration of the Board’s denial, but that the explanation was insufficient to overcome Petitioner’s criminal record.
  1. Respondent Board introduced Exhibit 6, which was a letter submitted to Respondent Board by James Delaney, Jr., a licensee with Respondent Board and the qualifying agent for DSI Security Services. In Exhibit 6, Mr. Delaney requests that Respondent Board reconsider its prior denial of the Petitioner’s application. Mr. Delaney stated that Petitioner was “very dependable, knowledgeable, and trustworthy as a security officer,” and that he was “a great asset to our company.” Deputy Director Poole testified that the Board considered Mr. Delaney’s request, but that Mr. Delaney’s request was insufficient to overcome Petitioner’s criminal record.
  1. Respondent Board introduced Exhibit 7, which was a letter written by Steve Whitmill, the Area Security Manager, East Coast, for Tyson Foods, Inc. In Exhibit 7, Mr. Whitmill requests that the Board reconsider its previous denial of Petitioner’s application. Mr. Whitmill stated that Petitioner’s “integrity, and dedication to duty have been exemplary,” and that he would not hesitate to recommend Petitioner “for any position requiring integrity and trust.” Deputy Director Poole testified that the Board did consider Mr. Whitmill’s request for reconsideration but determined that Mr. Whitmill’s request was insufficient to overcome Petitioner’s criminal record.

CONCLUSIONS OF LAW

1.The Office of Administrative Hearings and the undersigned Administrative LawJudge have personal and subject matter jurisdiction of this contested case pursuantto N.C. Gen.Stat. §150B. All parties have been correctly designated and there is no question as to misjoinder or nonjoinder. The parties received proper notice of the hearing in the matter. To the extent that the Findings of Fact contain conclusions of law, or that the Conclusions of Law are findings of fact, they should be so considered without regard to the given labels.

2.Pursuant to G.S. § 74C-12(a)(9), Respondent Board may refuse to issue an unarmed guard registration permit if an applicant has committed an unlawful breaking or entering.

3.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.

4.Pursuant to G.S. § 74C-8(d)(2), convictions for offenses involving acts of violence constitute prima facie evidence of an applicant’s lack of good moral character or temperate habits.

5.Pursuant to G.S. § 74C-8(d)(2), a “conviction” includes the entry of a plea of guilty.

6.Respondent Board presented evidence of Petitioner’s lack of temperate habits through Petitioner’s criminal record. Given the evidence presented by Respondent Board, the documents of record, and admissions on file, there is no genuine issue as to any material fact in this contested case.

7.The Petitioner’s motion for summary judgment pursuant to G.S. § 1A-1, Rule 56 is hereby denied and Respondent’s cross-motion for summary judgment pursuant to Rule 56 is hereby allowed.

PROPOSAL FOR DECISION

There is sufficient evidence in the record to properly and lawfully support the Conclusions of Law cited above. The Undersigned finds and holds that the Board's procedures for applications and for issuing a permit are reasonable and were followed in this case. Respondent’s actions were in accordance with all applicable State laws and rules. Based on those conclusions and the facts in this case, Respondent has not exceeded its authority, acted erroneously, or failed to use proper procedure. Respondent’s denial of Petitioner’s application for an unarmed guard registration permit was lawful.

NOTICE

Per the North Carolina General Statutes, the agency that will issuea final decision in this contested case is the North Carolina Private Protective Services Board.

The agency is required to give each party an opportunity to file exceptions to thisProposal for Decision, to submit proposed Findings of Fact, and to present oral and writtenarguments to the Board pursuant to N.C. Gen.Stat. § 150B-40(e).

A copy of the final decision or order shall be served on each party personally or bycertified mail addressed to the party at the latest address given by the party to the agency and acopy shall be furnished to each party's attorney of record if any. The agency shall furnish a copyof the final decision to the Office of Administrative Hearings.

IT IS SO ORDERED.

This the 14th day of April, 2008.

______

Augustus B. Elkins II

Administrative Law Judge

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