STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 03 DOJ 0503
GREGORY L. SWICEGOOD, JR., )
)
Petitioner, )
)
)
v. ) PROPOSAL FOR DECISION
)
)
NORTH CAROLINA ALARM SYSTEMS )
LICENSING BOARD, )
)
Respondent. )
)
______)
This contested case was heard before Senior Administrative Law Judge Fred G. Morrison Jr. on April 29, 2003, in Raleigh, North Carolina.
APPEARANCES
Petitioner was represented by attorney Larry Gillen, Larry Gillen, P.A., 3447 Robinhood Road, Winston-Salem, North Carolina 27106.
Respondent was represented by attorney Bradford A. Williams.
WITNESSES
Petitioner – Petitioner testified on his own behalf. Also testifying on Petitioner’s behalf were Lee Tarn, Catherine Phipps, Jenelle Coby, and Mica Stoltz
Respondent – Field Services Supervisor Rodney White testified for the Board.
ISSUES
Whether grounds exist for Respondent to deny Petitioner’s application for an alarm registration permit for falsification of the application.
BURDEN OF PROOF
Respondent has the burden of proving that Petitioner’s application for an alarm registration permit should be denied for “[k]nowingly making any false statement or misrepresentation in an application made to the Board for a license or registration” as set forth in N.C.G.S. §74D-6(5). 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:
G.S. 74D-2;
74D-6;
74D-8;
74D-9;
74D-10;
12 NCAC 11 §§ .0100;
.0200;
.0300.
FINDINGS OF FACT
1. Respondent Board is established pursuant to N.C.G.S. 74D-1 et seq. and is charged with the duty of licensing and registering individuals engaged in the alarm systems business.
2. Petitioner applied for an alarm registration permit. Respondent’s Exhibit A.
3. On his application for an alarm registration permit, Petitioner checked “NO” to all subparts of question one on the application which asked, “Have you ever pled guilty to any crime (Felony or Misdemeanor)”; “Have you ever been convicted of any crime (Felony or Misdemeanor)”; “Served Time” or “Been Paroled or Been on Probation”, even though he had served six years on probation. He admitted that if had had said “yes” to being on probation, he would have had to say “yes” to the other questions.
4. Respondent Board performed an initial criminal background check on Petitioner, which consisted of having Respondent Board’s employee, Gina Batchelor, search the AOC computer records in Rowan, Surry and Davidson Counties in North Carolina.
5. As a result of Respondent Board’s initial criminal background check on Petitioner, on or about January 14, 2003, Respondent Board denied Petitioner’s application. Respondent’s Exhibit E.
6. On or about April 10, 2003, Respondent Board obtained from the offices of the Clerk of Superior Court for Rowan County, North Carolina, and Surry County, North Carolina, copies of Petitioner’s criminal record check from those counties. Respondent’s Exhibit B and Respondent’s Exhibit C, respectively. On or about April 17, 2003, Respondent Board obtained from the office of the Clerk of Superior Court for Davidson County, North Carolina, a copy of Petitioner’s criminal record check from Davidson County. Respondent’s Exhibit D.
7. On March 31, 2003, Respondent Board issued Notice Of Hearing in the above-captioned to Petitioner in care of Petitioner’s attorney.
8. Respondent Board did not provide to Petitioner copies of the criminal record checks from Rowan, Surry and Davidson Counties prior to the hearing on April 29, 2003, nor did Respondent Board notify Petitioner of the grounds for its denial of Petitioner’s application in any way other than the January 14, 2003, denial letter (Respondent’s Exhibit E) and the March 31, 2003, Notice of Hearing.
9 Based on the initial criminal background check on Petitioner, Field Services Supervisor Rodney White determined that Petitioner: 1) pled guilty in Surry County on October 15, 1991, to the charge of felony manufacture marijuana and felony sell or deliver marijuana, which was consolidated with the manufacture marijuana charge; 2) pled guilty in Rowan County on August 10, 1999, to misdemeanor simple worthless check; and 3) found listed, but with no disposition, in Davidson County on April 23, 1992, a misdemeanor fail to return rental property charge.
10. Petitioner is twenty-nine years old. He was born in North Carolina. He has resided in Davidson County, North Carolina, at the address shown on the application submitted to Respondent Board since December 1994.
11. Petitioner testified that he did not knowingly falsify his application because: 1) Petitioner was seventeen years old when he pled guilty to the marijuana charge and he thought his juvenile record had been expunged automatically upon completion of his probation because his attorney, David White of Dobson, North Carolina, had so informed him and because he had checked his criminal record in Davidson County several years ago and the marijuana charge did not appear on that criminal record check; 2) Petitioner paid complete restitution in to the court in Rowan County on the worthless check charge to cover not only the check, in the amount of $68.92, but all court costs and bank fees and, as a result, thought that was the end of the matter (Petitioner was not represented by counsel when he appeared in court on the worthless check charge); and 3) Petitioner had never heard of the failure to return rental property charge until looking into it following denial of his application to Respondent Board.
12. Petitioner testified that he was a seventeen-year-old juvenile when he was arrested on the marijuana charge. Petitioner explained that the charge had resulted from a brief time in Petitioner’s youth during which he fell in with the wrong crowd while working in a pool hall during his senior year in high school. The owner of the pool hall had asked Petitioner to hold approximately 1/8 of an ounce of marijuana and, when an undercover female law enforcement officer approached Petitioner seeking to purchase some marijuana as part of a sting operation against the pool hall owner, Petitioner offered to sell the officer what he had. Petitioner admitted to having smoked marijuana several times at that point in his life, but testified that he never became a habitual user and that he has not smoked marijuana since his arrest and has passed any drug test he has ever taken as a condition of probation, for employment or otherwise.
13. Petitioner further testified that he does not use other drugs and rarely drinks alcohol. When not working, he enjoys spending his time with his daughter, his fiancé and her daughter, his friends and other family members and/or training and playing with his dogs.
14. Petitioner has a four-year-old daughter and is engaged to be married to Jenelle Coby (who testified for Petitioner at the hearing in this matter). Ms. Coby corroborated Petitioner’s testimony as to his current lifestyle and testified that Petitioner is a doting father and family man not only with his own daughter but also with Ms. Coby’s child. Ms. Coby called Petitioner her “best friend.”
15. Petitioner’s testimony about the marijuana charge was corroborated by his long-time friend (i.e., since they met in sixth grade), Lee Tarn. Mr. Tarn, testifying on Petitioner’s behalf, stated that although he (Mr. Tarn) never fell in with the same crowd, he maintained his friendship with Petitioner and knew of the circumstances surrounding the charges. Mr. Tarn testified that the charges caused Petitioner to evaluate what he was doing with his life at the time and to take action to get back on the right path. Mr. Tarn testified that he has not known Petitioner to abuse drugs or alcohol and that he’s an excellent father and friend.
16. Petitioner testified as follows concerning his application to Respondent Board: 1) he began employment with Secure One, Inc., on September 2, 2003; 2) prior to beginning employment, he interviewed with Robert Hall of Secure One who told Petitioner not to be concerned with minor things in his criminal background because “as long as you haven’t killed anyone” the Respondent Board would not care about any convictions and to disclose on Respondent Board’s application only very serious matters; 3) Petitioner completed the application on the form provided by Secure One and turned it in to Secure One’s secretary along with a copy of his criminal record check from Davidson County for submittal to Respondent Board; 4) Petitioner has no knowledge of what Secure One did with the application or the criminal record check after he submitted them.
17. Mr. Mica Stoltz testified on behalf of Petitioner. Mr. Stoltz was Petitioner’s direct supervisor during the period that Petitioner was employed by Secure One. Mr. Stoltz testified that Petitioner was an excellent employee, a quick study and was destined for advancement within the company. Mr. Stoltz further testified that Secure One would rehire Petitioner if the Respondent Board granted him his license. See Petitioner’s Exhibit 1.
CONCLUSIONS OF LAW
1. Pursuant to G.S. 74D-6(5), the Board may deny an application for an alarm registration permit because of the applicant “[k]nowingly making any false statement or misrepresentation in an application made to the Board for a license or registration.”
2. Further, pursuant to G.S. 74D-6, conviction of any crime “involving the illegal use, possession, sale, manufacture, distribution, or transportation of a controlled substance, drug, narcotic, or alcoholic beverages” may constitute prima facie evidence of an applicant’s lack of good moral character or temperate habits.
Respondent Board presented substantial evidence showing that Petitioner failed to disclose in his application to Respondent Board that he had a criminal record while a teenager.
Petitioner’s evidence amply demonstrates his current good moral character and temperate habits and that Petitioner has otherwise met the requirements for licensure or registration as set forth in G.S. 74D-6.
Based on the foregoing, the undersigned makes the following:
PROPOSAL FOR DECISION
The North Carolina 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 unless, in the exercise of its discretion, it decides to grant a license subject to probationary conditions because of Petitioner’s evidence showing that his character has improved since his transgressions.
ORDER
It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center, 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 North Carolina Alarm Systems Licensing Board.
This the 16th day of May, 2003.
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Fred G. Morrison Jr.
Senior Administrative Law Judge
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