NORTH CAROLINA
WAKECOUNTY
EMMANUEL ARINZE OSSAI
Petitioner,
v.
NORTH CAROLINA PRIVATE PROTECTIVE SERVICE BOARD,
Respondent. / )))))))) / IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
09 DOJ 2450
PROPOSAL FOR DECISION

This contested case was heard before Administrative Law Judge Melissa Lassiter on November 17, 2009, in Raleigh, North Carolina. On December 28, 2009, the undersigned issued an Order finding sufficient evidence to support Respondent’s denial of Petitioner’s unarmed guard registration permit application.

APPEARANCES

Petitioner - Perry Mastromichalis, Esq.

343 E. Six Forks Rd.

RaleighNC27609

Respondent - Jeffrey D. McKinney

Bailey & Dixon LLP

PO Box 1351

RaleighNC27602

ISSUES

Whether Respondent properly denied Petitioner’s application for a private protective services permit for lack of good moral character and temperate habits based on a pattern of convictions including DWI charges, Larceny charges, Operating a Vehicle with No Insurance, and Felony Hit and Run?

APPLICABLE STATUTES AND RULES

Official notice is taken of: N.C. Gen. Stat. §§ 74C-2; 74C-5; 74C-8; 74C-12; 12 NCAC 11 § .0300

BURDEN OF PROOF

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

WITNESSES

Petitioner – Petitioner

Respondent – Anthony Bonapart, Deputy Director

FINDINGS OF FACT

  1. Respondent Board is established pursuant to N.C. Gen. Stat. § 74C-1, et seq., and is charged with the duty of licensing and registering individuals engaged in the armed and unarmed guard business.
  1. On April 4, 2008, Petitioner submitted an application for an unarmed guard registration permit to Respondent. (Respondent’s Exhibit 1)
  1. In response to question number 1 of the application, Petitioner answered “yes” to the following questions:

Have you ever pled guilty to any crime (Felony or Misdemeanor)?, Have you ever been convicted of any crime (Felony or Misdemeanor)?, Been Paroled or Been on Probation?.

  1. According to Anthony Bonapart, Deputy Director for Respondent, a criminal background check is conducted on each applicant. Petitioner also submitted a criminal background report with his application to Respondent.
  1. A Criminal Record Check from WakeCountyrevealed the following criminal convictions or charges for Petitioner:

[Wake](M) Misdemeanor Larceny – Guilty - 2/19/08

[Wake](T) DWI-Level 4 - Guilty - 9/5/96

[Wake](T) Civil Revocation Drivers License

[Wake](M) DWI-Level 2 - Guilty -9/2/04

[Wake](T) DWI-Level 1 - Guilty - 11/5/03

[Wake](T) Operating a Vehicle with No Insurance – Guilty - 6/26/06

[Wake](T) Fict/Cncl/Rev Reg Car/Tag– Guilty - 6/26/06

[Wake](F) Felony Hit-Run Fail Stop

Must submit official disposition10/5/03

6.On December 9, 2008, Respondent notified Petitioner that based on Petitioner’s criminal history, it was denying his application for cause. (Respondent’s Exhibit 2)

7.At the administrative hearing, Petitioner explained that he enjoys working as a guard, and that he does a good job. He noted that the felonious hit and run charge was dismissed and he has no felony convictions. He also alleged that some of the charges listed on the criminal background check are not his charges. However, Petitioner failed to present sufficient evidence showing which criminal charges on his criminal background check did not belong to him.

CONCLUSIONS OF LAW

1.Pursuant to N.C. Gen. Stat. § 74C-12(a)(25), Respondent may refuse to issue an armed guard registration permit for lack of good moral character or temperate habits.

2.Pursuant to N.C. Gen. Stat. § 74C-8(d)(2), convictions for crimes involving the illegal use, possession, sale, manufacture, distribution, or transportation of an alcoholic beverage; felonious assault; acts of violence; unlawful breaking or entering; burglary; larceny; any offense involving moral turpitude, or history of addiction to alcohol or a narcotic drug shall constitute prima facie evidence of an applicant’s lack of good moral character or temperate habits.

3.At the contested case hearing, Respondent presented sufficient evidence that Petitioner lacked good moral character or temperate habits through Petitioner’s criminal record. Petitioner failed to rebut the presumption that he lacks good moral character.

PROPOSAL FOR DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned proposes the Respondent Board UPHOLD its initial decision to deny Petitioner’s application for an unarmed guard registration permit.

ORDER

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 MailServiceCenter, 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 2nd day of February, 2010

______

Melissa Owens Lassiter

Administrative Law Judge

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