COUNTY OF CRAVEN
MARCELLUS MOORE,
Petitioner,
v.
NORTH CAROLINA CRIMINAL JUSTICE EDUCATION AND TRAINING STANDARDS COMMISSION,
Respondent
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ADMINISTRATIVE HEARINGS
06 DOJ 1296
PROPOSAL FOR DECISION
This contested case was heard before the undersigned on Tuesday, October 17, 2006 in the Craven County Courthouse, New Bern, North Carolina. In accordance with North Carolina General Statute §150B-40(e), Respondent Criminal Justice Education and Training Standards Commission 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.
APPEARANCES
Petitioner: Marcellus Moore, Pro Se
PO Box 93
Ernul, NC 28527
Respondent: Ashby T. Ray
Assistant Attorney General
N.C. Department of Justice
9001 Mail Service Center
Raleigh, North Carolina 27699-9001
ISSUE
Is Respondent’s proposed suspension of Petitioner’s correctional officer certification supported by the preponderance of the evidence.
RULES
12 NCAC 09G .0102
12 NCAC 09G .0504
12 NCAC 09G .0505
N.C.G.S. § 14-360(a)
STIPULATED FACTS
1. Both parties are properly before this Administrative Law Judge in that jurisdiction and venue are proper, both parties received notice of hearing, and the Respondent mailed the Petitioner a Notification of Probable Cause to Suspend Certification letter on June 12, 2006.
2. All parties have been correctly designated, and there are no questions as to misjoinder or nonjoinder of parties.
BASED UPON a preponderance of the admissible evidence, the undersigned makes the following:
FINDINGS OF FACT
1. Petitioner is a resident of Craven County, North Carolina and certified as a Correctional Officer with the North Carolina Department of Correction. Petitioner received his General Certification as a Correctional Officer (GNB XXXXX2086) on November 27, 2001. (Respondent’s Exhibit 15)
2. On or about November 29, 2005, a warrant for Petitioner was issued alleging that Petitioner had committed the Class 1 misdemeanor offense of “Cruelty to Animals”, in violation of N.C.G.S. § 14-360(a). (Respondent’s Exhibit 1).
3. As part of an agreement with the District Attorney’s office, the charge against the Petitioner was continued for a period of five (5) years upon the following conditions:
“Defendant to obtain assessment and comply with any recommended treatment. Defendant not to have ANY pets.* Defendant forfeit the dog “Mandingo” to the human[e] Society. Defendant to pay restitution in the amount of 1,713.56 within 6 months of todays [sic] date to the Animal Care Center on Hwy 175. * Defendant is not to own, possess, have under his control or in his household any animal.”
(Respondent’s Exhibit 2)
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4. The Petitioner properly reported this charge to his supervisor with the North Carolina Department of Correction. Based on that report, Edward J. Zapolsky, an Investigator with the Criminal Justice Training and Standards Division, conducted an investigation into the Petitioner’s actions.
5. Investigator Zapolsky reviewed the documentation from the North Carolina Department of Correction, as well as all relevant court documents and photographs taken by the Humane Society. Investigator Zapolsky compiled this information and presented it to the Respondent’s Probable Cause Committee in June of 2006. The Probable Cause Committee found probable cause to believe that the Petitioner had committed the offense of Cruelty to Animals, in violation of N.C.G.S. § 14-360(a). As a result of the finding of probable cause, the Probable Cause Committee proposed a suspension of the Petitioner’s Correctional Officer Certification for a period of not less than three years. (Respondent’s Exhibit 3)
6. In 1998, the Petitioner was given a dog by his then wife. This dog was a two month old Rottweiler named, “Mandingo.”
7. In June of 2001, the Petitioner and his wife separated. The Petitioner moved to an apartment that did not permit pets such as “Mandingo.” Petitioner asked his father, Rev. Moore, to take care of Mandingo in June of 2001. In June of 2001, Rev. Moore took possession of “Mandingo” at his residence.
8. Rev. Moore resided at 1602 Hill Neck Road, Ernul, North Carolina while he possessed “Mandingo.”
9. In August of 2004, the Petitioner moved to 1550 Hill Neck Road, Ernul, North Carolina, which was located a couple of hundred yards from where Rev. Moore lived. “Mandingo” continued to live in Rev. Moore’s back yard until the middle of October of 2005.
10. Sometime in September or October of 2005, Rev. Moore notified the Petitioner that “Mandingo” appeared to be losing weight. Rev. Moore indicated that there appeared to be a green mucous oozing from “Mandingo’s” eyes.
11. Rev. Moore spoke with a pharmacist and then administered to “Mandingo” an over-the-counter antihistamine in attempt to alleviate what he believed to be an allergy problem. At no time did Rev. Moore consult with or take “Mandingo” to a licensed veterinarian.
12. In the middle of October of 2005, the Petitioner took possession of “Mandingo” from Rev. Moore’s yard and staked him at 1560 Hill Neck Road, Ernul, North Carolina, which was an abandoned property owned by the Petitioner’s father and located immediately adjacent to1550 Hill Neck Road where the Petitioner resided.
13. “Mandingo” remained staked on the property immediately adjacent to the Petitioner’s residence from the middle of October of 2005 until November 21, 2005, a period of four to six (4-6) weeks. Lisa Lee, a representative of the Colonial Capital Humane Society, investigated a complaint of animal neglect and took possession of “Mandingo.”
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14. During the four to six (4-6) week period when “Mandingo” was staked at the property immediately adjacent to the Petitioner’s residence, the Petitioner observed the green mucous discharge from “Mandingo’s” eyes as well as the fact that “Mandingo” had lost weight.
15. The Petitioner testified that he spoke with a dog breeder who recommended a special brand of high calorie/high protein dog food for Mandingo. The Petitioner testified that he purchased some of this special brand dog food from the breeder and provided it for “Mandingo.”
16. The Petitioner asserted that during the four to six (4-6) week period when “Mandingo” was staked on the property immediately adjacent to the Petitioner’s residence, he fed “Mandingo” two to four (2-4) cups of this food twice a day. The credibility of Petitioner’s assertion is contradicted by the expert testimony of Dr. Steven Stelma, DVM. (Finding of Fact No. 39)
17. At no time during the four to six (4-6) week period when “Mandingo” was staked on the property immediately adjacent to the Petitioner’s residence did the Petitioner consult a licensed veterinarian about “Mandingo’s” condition or take “Mandingo” for treatment at a licensed clinic.
18. The Petitioner asserted that, although he removed “Mandingo” from his father’s yard and fed “Mandingo,” “Mandingo” remained as his father’s dog and that his father was therefore responsible for “Mandingo’s” care and feeding.
19. Rev. Moore believed that “Mandingo” was the Petitioner’s dog. Rev. Moore believed that after the Petitioner removed “Mandingo” from his residence, he was no longer responsible for feeding “Mandingo” on a regular basis and only occasionally took him table scraps.
20. Lisa Lee is a volunteer and Board Member with the Colonial Capital Humane Society (CHS) in Craven County, North Carolina. She has been a volunteer with Colonial Capital Humane Society for the last six years. As a volunteer she serves as a foster home for animals and also responds to neglect calls that come into the CHS from concerned citizens.
21. In November of 2005, the CHS received a telephone call from a concerned citizen that there was a dog on Hill Neck Road that had been curled up in a ball for two days. The caller believed the animal to be dead. Another volunteer responded to assess the situation. When the volunteer arrived, she called Ms. Lee for personal assistance.
22. Ms. Lee contacted the local sheriff’s office and requested a deputy sheriff to accompany her to investigate the complaint. When they arrived, Ms. Lee observed “Mandingo” staked in the yard immediately adjacent to the Petitioner’s residence. Ms. Lee and others attempted to assist “Mandingo” in standing but they were unsuccessful.
23. While Ms. Lee was attempting to get “Mandingo” to stand and walk, the Rev. Moore approached and stated to Ms. Lee that “Mandingo” was the Petitioner’s dog; and that he had been removed from Rev. Moore’s residence to his current location by the Petitioner; and that the Petitioner was at work, and they should contact the Petitioner if they had any questions.
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24. The Petitioner was contacted by phone and had a conversation with the deputy sheriff that had accompanied Ms. Lee. Toward the end of the telephone conversation, Ms. Lee spoke with the Petitioner and confirmed that the Petitioner was giving her permission to take possession of “Mandingo.” During this conversation, the Petitioner did not assert that “Mandingo” was his father’s dog.
25. Ms. Lee did not take “Mandingo” to her home because “Mandingo” appeared to have a skin infection. She did not want to infect other animals at her home. Instead, she made arrangements for “Mandingo” to be boarded at the local animal shelter until “Mandingo” could be transported to the office of a local veterinarian. Ms. Lee took a series of photographs of “Mandingo” two days after taking custody of him. (Respondent’s Exhibits 4-12) Ms. Lee transported “Mandingo” to the Animal Care Center of New Bern on November 23, 2005, where he was examined by Dr. Steven Stelma, DVM. (Respondent’s Exhibit 14)
26. In subsequent conversations, Petitioner told Ms. Lee Petitioner should not have moved “Mandingo” from his father’s back yard to the property immediately adjacent to Petitioner’s residence.
27. Ms. Lee has responded to complaints of animal neglect and abuse for the past three years. During that time she has investigated approximately 50 complaints per year. In the last three years Ms. Lee has not seen a canine in a worse condition than “Mandingo.”
28. Dr. Steven Stelma, DVM, testified as an expert in the field of comparative physiology in small animal veterinary medicine. Dr. Stelma has been a licensed veterinarian for 19 years. He received his Bachelor of Science degree with honors in Comparative Physiology from Michigan State University in 1984. Dr. Stelma received his Doctor of Veterinary Medicine (DVM) in 1987. He was licensed to practice as a veterinarian in Michigan in 1987. He completed an Internship in small animal veterinary medicine. Dr. Stelma was licensed to practice in North Carolina in May of 1988. He has been practicing with the Animal Care Center of New Bern since May of 1988.
29. Dr. Stelma specializes in the treatment of dogs, cats and other small animals. Dr. Stelma sees approximately 100 patients per week, roughly 45% of his patients are canine. During the last 19 years, he has treated hundreds of canines for malnutrition and neglect. Dr. Stelma has only seen approximately 6 dogs in a condition similar to “Mandingo’s” condition.
30. On November 23, 2005, Dr. Stelma was presented with “Mandingo” for examination. “Mandingo” was brought for treatment by the CHS. As part of his examination, Dr. Stelma conducted the following tests:
· Tested for internal or external parasites;
· Tested blood cell counts and blood chemistry;
· Measured weight;
· Conducted an assessment of body condition.
31. Based on his examination, Dr. Stelma reached the following conclusions about “Mandingo’s” condition:
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He was severely emaciated, with a body condition score of 1 out of 9. His ribs, pelvis, and spine, in fact his entire skeleton, is prominent. His eyes are sunk in due to dehydration and emaciation. His body weight of 54 pounds is perhaps 30 pounds lower than his ideal weight considering his breed, gender and size.
32. Dr. Stelma explained that body condition score is a nationally used subjective evaluation chart developed by a veterinary nutrition specialist. A score of 5 is considered normal. A score of 1 is extreme emaciation and 9 is extreme obesity. In conducting this evaluation, Dr. Stelma considered Mandingo’s body fat, the condition of the pelvis and organs with indicate loss of body mass.
33. Additionally, Dr. Stelma determined that “Mandingo” suffered from severe dermatitis on his head. Dr. Stelma explained that this was an inflammation of the skin caused by a bacterial infection. Exfoliative cytology revealed the presence of Demodectic mange mites. Dr. Stelma explained that this is a parasitic skin condition. “Mandingo” also suffered from severe superficial and deep pyoderma, or a bacterial infection in the superficial and deep layers of skin. His eyes were so swollen and sunken in that he was functionally blind. His sunken eyes were due to dehydration and a rapid loss of body fat.
34. Dr. Stelma testified that the cause of the above referenced conditions were the result of dehydration, emaciation, rapid loss of body fat to cause the eyes to sink back in the globe, and a bacterial infection secondary to Demodectic mange mites.
35. Dr. Stelma determined that “Mandingo” tested positive for hookworms, whipworms and heartworms. “Mandingo” also suffered from moderate anemia and severe leukocytosis. “Mandingo's” blood chemistry revealed severe hypoalbuminemia. Dr. Stelma explained that hookworms and whipworms are intestinal parasites, or worms that live in the intestines. Animals get them from exposure and if not treated can cause anemia, weight loss, diarrhea and vomiting. These parasites are easily treated with oral worm medications. Dr. Stelma explained that heartworms are spread by mosquito bites. Treatment of heartworms is complicated and has to be dealt with on a case by case basis. In Mandingo’s case, a semi-quantitative test detected the presence of numerous adult heartworms and due to his body condition, the disease was characterized as severe. Dr. Stelma explained that severe leukocytosis meant that “Mandingo” had a low white blood cell count and that “Mandingo’s” low blood albumin level, which measures a protein created by the liver, was caused by all the parasites in his system as well as his malnutrition.