COUNTY OF GRAHAM
KYLE LANE MARCUS,
Petitioner,
v.
NORTH CAROLINA SHERIFFS’
EDUCATION AND TRAINING
STANDARDS COMMISSION,
Respondent.
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ADMINISTRATIVE HEARINGS
09 DOJ 0077
PROPOSAL FOR DECISION
THIS MATTER was commenced by a request filed under G.S. 150B-40(e), on January 9, 2009 in the Office of Administrative Hearings, for designation of an administrative law judge to preside at this contested case proceeding. Notice of Contested Case and Assignment and Order for Prehearing Statements (09 DOJ 0077) were filed on January 22, 2009. At the request of the parties, the Administrative Law Judge determines this matter on the stipulated facts, pleadings, and arguments of the parties.
The Petitioner proceeds pro se. The North Carolina Sheriffs’ Education and Training Standards Commission (hereinafter the Commission or Respondent) is represented by Special Deputy Attorney General, John J. Aldridge, III.
ISSUE
Whether Respondent’s proposed denial of Petitioner’s application for certification as a justice officer is supported by substantial evidence.
FINDINGS OF FACT
1. Petitioner received by certified mail the proposed Denial of Justice Officer’s Certification letter, mailed by Respondent Sheriffs’ Commission on December 17, 2008. The parties stipulated that both desired an expedited disposition of this matter.
2. The North Carolina Sheriffs’ Education and Training Standards Commission (hereinafter referred to as The Sheriffs’ Commission) has authority granted under Chapter 17E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 10B, to certify justice officers and to deny, revoke, or suspend such certification.
3. 12 NCAC 10B.0204(d)(2) states that the Sheriffs’ Commission may deny certification as a justice officer when the Commission finds that the applicant has committed or been convicted of:
(2) a crime or unlawful act defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor within the five year period prior to the date of appointment.
4. On April 14, 2008, Petitioner was appointed as a Detention Officer with the Graham County Sheriff’s Office.
5. As part of his application for certification through Respondent as a
detention officer with the Graham County Sheriff’s Office, Petitioner completed and signed a Personal History Statement (Form F-3) on April 14, 2008. In response to Question No. 47 of this form, Petitioner indicated that he had been charged on December 15, 2004 with the criminal offense of Spotlighting Deer.
6. When such charges are disclosed by an applicant, the
Respondent’s staff proceeded in due course to collect information relevant to these charges to determine if any bar to certification existed.
7. A review of Petitioner’s complete criminal history record revealed that
Petitioner criminally was charged by Officer T.D. Lominac of the North Carolina Wildlife Resources Commission on December 9, 2004 with the criminal offense of Spotlighting Deer.
8. The criminal offense of Spotlighting Deer, in violation of N.C.G.S. 113-294(e), constitutes a Class B misdemeanor under 12 NCAC 10B .0103(10)(b) and the Class B Misdemeanor Manual.
9. As to the charged offense from December 9, 2004, Petitioner pleaded guilty
to Spotlighting Deer on January 19, 2005, in violation of N.C.G.S. 113-294(e).
10. In response to a request from Respondent’s staff, Petitioner provided a
statement concerning the Spotlighting Deer charge. In this statement, Petitioner admits that on the night of December 9, 2004 he and a friend decided to go hunting around Martin’s Creek in Murphy, North Carolina. He indicated that the two used a spotlight that Petitioner had purchased earlier in the day as well as a Winchester 30-30 rifle that he had put in his truck that night. Petitioner explained that at some point while driving down the road, the two decided that they would stop near a field to shoot a deer. After shining the spotlight over the field, Petitioner stated that his friend picked one out and shot at it approximately five times until he hit it. Petitioner indicated that at that time, a light came on in a nearby house which prompted them to vacate the premises for about 30 or 40 minutes.
11. Upon returning to the field, Petitioner said that a set of headlights came
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on in the driveway of the house. Although Petitioner stated that he saw no blue lights from the vehicle at that time, he began to drive away but wrecked his vehicle while doing so. Petitioner indicated that the blue lights of the vehicle were activated as it arrived at the scene of the accident. Petitioner and his friend exited the vehicle and were asked a number of questions by the Officers. Upon being asked if a weapon was in the vehicle, Petitioner said, No. The Officers later discovered the weapon underneath the grass and leaves surrounding the vehicle. Petitioner was charged with the criminal offense of Spotlighting Deer and appeared before a Magistrate where he was given a court date and signed a written promise to appear.
12. Petitioner has the support of his employer, Sheriff Russell Moody of the Graham County Sheriff’s Office.
CONCLUSIONS OF LAW
1. Both parties properly are before this Administrative Law Judge and jurisdiction and venue are proper.
2. The North Carolina Sheriffs’ Education and Training Standards Commission has authority granted under Chapter 17E of the General Statutes, Title 12 of the North Carolina Administrative Code, Chapter 10B, to certify justice officers and to deny, revoke, or suspend such certification.
3. Under 12 NCAC 10B .0204(d)(2), the Commission may revoke, deny, or suspend the certification of a justice officer when the Commission finds that the applicant for certification has committed or been convicted of a crime or unlawful act defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor which occurred before the date of initial certification.
4. The offense of Spotlighting Deer in violation of N.C.G.S. 113-294(e) is a
Class B misdemeanor. A preponderance of the evidence supports the conclusion that on January 19, 2005, Petitioner was convicted of the offense of Spotlighting Deer.
5. Petitioner’s conviction for Spotlighting Deer constitutes a violation of 12 NCAC 10B.0204(d)(2). Respondent’s proposed denial of Petitioner’s application for certification is supported by substantial evidence.
PROPOSAL FOR DECISION
Based upon the foregoing FINDINGS OF FACT and CONCLUSIONS OF LAW, the undersigned recommends that Respondent deny Petitioner’s justice officer’s certification. Respondent should utilize its discretion, as it deems appropriate, to lessen or reduce any period of sanction in view of the facts of this case, including Petitioner’s clean record since the 2005 misdemeanor and Sheriff Moody’s personal support. This should include, but not be limited to, the staying of any period of suspension.
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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. N.C.G.S. 150B-40(e).
The Agency that will make the Final Decision in this contested case is the North Carolina Sheriffs’ Education and Training Standards Commission.
This the 27th day of February 2009.
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Beecher R. Gray
ADMINISTRATIVE LAW JUDGE
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