STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 11 DOJ 09436

______

JOHN FOREST DUPREE, )

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 July 26, 2011, 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 proposals, memorandum or other material. Mailing time was allowed for submission on the thirtieth day and the record was closed on September 1, 2011.

APPEARANCES

FOR PETITIONER: John Forest Dupree, pro se

1772 Kinsaul Willoughby Road

Greenville, NC 27834

FOR RESPONDENT: M. Denise Stanford, Attorney at Law

Bailey & Dixon, LLP

P.O. Box 1351

Raleigh, North Carolina 27602

EXHBITS

FOR PETITIONER: Petitioner’s Exhibits A and B

FOR RESPONDENT: Respondent’s Exhibits #1 through #6

ISSUE

Whether grounds exist for Respondent to deny Petitioner’s application for unarmed registration based on Petitioner’s demonstration of intemperate habits or lack of good moral character for multiple misdemeanor simple worthless check convictions.

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.

WITNESSES

FOR PETITIONER: John Forest Dupree on his own behalf

FOR RESPONDENT: Anthony Bonapart

Deputy Director

Private Protective Services Board

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.  Petitioner has waived the required 15 days notice and stipulates to adequate notice of the hearing.

2.  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 business.

3.  By application dated March 5, 2010, Petitioner applied to Respondent Board for an unarmed registration permit. (Respondent’s Exhibit 2). On the application, Petitioner answered “yes” to the following question: “Have you ever pled guilty or been convicted of any crime (Felony or Misdemeanor)?”

4.  Petitioner disclosed on his application that he had multiple worthless check convictions on his criminal record.

5.  As part of the application process, a criminal record check was obtained from Craven County which listed 12 convictions for misdemeanor simple worthless checks between 2001 and 2008. (Respondent’s Exhibit 3).

6.  By letter dated March 18, 2011, Respondent denied Petitioner’s unarmed registration “For Cause” based on the criminal convictions for simple worthless checks. (Respondent’s Exhibit 4).

7.  The Board subsequently obtained a criminal record check from Beaufort County which listed one conviction for misdemeanor simple worthless check in 1999. (Respondent’s Exhibit 5).

8.  The Board subsequently obtained a criminal record check from Pender County which listed two misdemeanor simple worthless check convictions, one in 2006 and one in 2007. (Respondent’s Exhibit 6).

9.  Petitioner testified that he did not intentionally write the checks without funds to cover them. He testified that at the times he wrote these checks, he thought he would be able to deposit sufficient funds in the bank to cover them. Petitioner has accepted responsibility for his actions. He has paid restitution for the worthless checks and has paid all fines and fees. Petitioner stated, and it is believed, that he has learned from his mistakes and will not let this behavior happen any further.

BASED UPON the 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 to N.C.G.S. §74C-12(a)(25), Respondent Board may refuse to issue an unarmed guard registration permit for demonstration of intemperate habits.

2.  Case law speaking to intemperate habits is older, but still good law in North Carolina. Courts look to see if a “habit of doing a thing . . was done as usual, and, if clearly shown as a definite course of action is constantly admitted in evidence.” See Holcombe v. W.N. Watson Supply Co., 171 S.E. 604 (1933)

3.  Regarding intemperate one looks to “instances in which (a) habit may be thought to be obnoxious to the character rule, particularly a habit of carelessness or intemperance, and a habit of carelessness or negligence.” Id.

4.  Petitioner was convicted 15 times of misdemeanor simple worthless checks, some as recently as 2007 and 2008. N.C.G.S.§ 14-107 makes it “unlawful for any person, firm or corporation, to draw, make, utter or issue and deliver to another, any check or draft on any bank or depository, for the payment of money or its equivalent, knowing at the time of the making, drawing, uttering, or issuing and delivering the check or draft, that the maker or drawer of it has not sufficient funds on deposit in or credit with the bank or depository with which to pay the check or draft upon presentation.”

5.  Respondent Board’s evidence of Petitioner’s multiple convictions of misdemeanor simple worthless check demonstrates his intemperate habits for purposes of review under Respondent’s controlling statutes.

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 the finding of the Board in its initial decision to deny Petitioner’s application for unarmed security guard registration.

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 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 addressed 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.

This the 17th day of October, 2011.

______

Augustus B. Elkins II

Administrative Law Judge

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