NORTH CAROLINA
WAKECOUNTY
WILLIE HORNE
Petitioner,
v.
NORTH CAROLINA ALARM SYSTEMS LICENSING BOARD,
Respondent. / ))))))))))) / IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
09 DOJ 5065
PROPOSAL FOR DECISION

This contested case was heard before Administrative Law JudgeDonaldOverby on December 15, 2009, in Raleigh, North Carolina.

APPEARANCES

Petitioner appeared pro se

Respondent was represented by Jeffrey D. McKinney

WITNESSES

Respondent – Anthony Bonapart, Deputy Director, testified for Respondent Board

Petitioner – Petitioner testified on his own behalf.

ISSUES

Whether grounds exist for Respondent to deny Petitioner’s application for alarm system registration permit based on its previous denial of Petitioner’s application under N.C. Gen. Stat. § 74D-1 et seq. and Petitioner’s lack of good moral character and temperate habits based on a pattern of convictions, including a conviction for Misdemeanor Larceny, three convictions for Driving While Impaired, a Flee/Elude Arrest conviction, a Solicit for Prostitution conviction and an Assault on a Female conviction.

BURDEN OF PROOF

Respondent has the burden of proving that the Petitioner lacks good moral character or temperate habits. 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. Gen. Stat. §§ 74D-2; 74D-5; 74D-6; 12 NCAC 7§ .0700

FINDINGS OF FACT

  1. Respondent Board is established pursuant to N.C. Gen. Stat. § 74D-1, et seq., and is charged with the duty of licensing and registering individuals engaged in the alarm systems business.
  1. Petitioner applied to Respondent Board for a new alarm registration permit. Petitioner’s initial application, dated January 27, 2009, was introduced as Respondent’s Exhibit 1. Exhibit 1 was admitted as part of the record.
  1. In Exhibit 1, Petitioner answered “yes” to the following question: “Have you ever pled guilty or been convicted of any crime (Felony or Misdemeanor)?”.
  1. Anthony Bonapart, Deputy Director for Respondent Board testified for the Respondent.For each application, a criminal background check is conducted. A criminal background report was submitted by the Petitioner with his application.
  1. Respondent Board introduced as Exhibit 2 a Criminal Record Check from MecklenburgCounty. Exhibit 2 revealed the following criminal conviction for the Petitioner:

[Mecklenburg] 01/12/00(M) Flee/Elude Arrest W/MV

[Mecklenburg]01/12/00(T) Driving While ImpairedGuilty

[Mecklenburg]09/06/98(T) Driving While ImpairedGuilty

[Mecklenburg]10/23/96(M) Misdemeanor LarcenyGuilty

[Mecklenburg]06/10/99(T) Driving While ImpairedGuilty

[Mecklenburg]08/21/03(M) Solicit for ProstitutionGuilty

[Mecklenburg]11/28/01(M) Intoxicated and Disruptive

[Mecklenburg]11/28/01Assault on a FemaleGuilty

  1. In addition, Petitioner was convicted of the Class 1 misdemeanor of driving while license revoked with the dates of offense on 1/12/99, 5/10/00, and 4/22/01, as well as traffic infractions. While recognizing that dismissals are not convictions it is worthy of note that Petitioner had six (6) driving while license revoked, two (2) driving while impaired and one (1) habitual driving while impaired charges and several other misdemeanor charges dismissed.
  1. Pursuant to Petitioner’s criminal convictions, Petitioner’s application for registration was denied. Respondent Board introduced as Exhibit 3 a “For Cause” denial letterwith a copy to the Petitioner dated June 17, 2009. Exhibit 3 was admitted as part of the record.
  1. The Board conducted a teleconference with Petitioner to give Petitioner a chance to explain why his application should not be denied.
  1. Petitioner’s explanation during the teleconference did not alter Respondent Board’s initial decision to deny the Petitioner’s application.
  1. Petitioner testified on his own behalf. With respect to the criminal convictions on his record, Petitioner explained that a majority of the charges occurred when he was younger and struggling with some emotional problems. Petitioner testified that he went to theBehavioralCenter as part of a court order to help curb his alcohol abuse problem. Petitioner’s letter from the BehavioralCenter is a part of Exhibit 1, and is undated and not even addressed to Petitioner. It is a form letter that is submitted after a court ordered assessment and treatment to comply with DWI convictions so that a defendant can apply to have his or her driver’s license restored.
  1. Petitioner testified that the Solicit for Prostitution was a result of a “sting” operation taking place in his neighborhood. Petitioner explained that a female approached him and started a conversation. Petitioner stated that he responded to this female in jest and then walked away before being arrested.
  1. Petitioner contends that the Assault on a Female occurred as a result of him acting in self-defense. According to the record attached to Exhibit 1, Petitioner plead not guilty and was found guilty at trial.

CONCLUSIONS OF LAW

Pursuant to N.C. Gen. Stat. § 74D-6(3), Respondent Board may refuse to issue an alarm systems registration permit for lack of good moral character or temperate habits

Pursuant to N.C. Gen. Stat. § 74D-6(3),conviction by a State court of any crime involving an act of violence, conviction for larceny, or a history of addiction to alcoholshall be prima facie evidence that the applicant does not have good moral character or temperate habits.

Respondent Board presented evidence that Petitioner lacked good moral character or temperate habits through Petitioner’s criminal record. Petitioner has failed to rebut the presumption that he lacks good moral character.

Based on the foregoing, the undersigned makes the following:

PROPOSAL FOR DECISION

The Alarm Systems Licensing Board will make the final decision in this contested case. It is proposed that the Board UPHOLD its initial decision to deny Petitioner’s application for an alarm 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 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 Alarm Services Licensing Board.

This the 5th day of January, 2010.

______

The Honorable DonaldW. Overby

Administrative Law Judge

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