STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 04 DOJ 1296
NORTH CAROLINA ALARM )
SYSTEMS LICENSING BOARD, )
Petitioner, )
)
v. ) ) PROPOSAL FOR DECISION
BRIAN DOUGLAS DAVIS, )
Respondent. )
This contested case was heard before Senior Administrative Law Judge Fred G. Morrison Jr. on November 22, 2004, in Raleigh, North Carolina.
APPEARANCES
Petitioner Board was represented by attorney Charles F. McDarris.
Respondent Brian Davis was represented by attorney Robert Scott.
WITNESSES
Petitioner – Larry Liggins, Field Services Supervisor; Detective K.W. Gamble of the Kernersville Police Department; and Dana Caudill Jones.
Respondent – Respondent Davis did not testify but did introduce letters of support.
ISSUES
Two issues were presented for review. The first was whether a Summary Suspension Order issued by Petitioner’s Director Wayne Woodard on June 17, 2004, should be upheld. The second issue is whether grounds exist to uphold the recommendation of registration revocation issued by the Grievance Committee of the Alarm Systems Licensing Board. Petitioner filed a calendar request for October 26, 2004, seeking a review of Director Woodard’s Summary Suspension Order issued pursuant to G.S. 150B-3(c). The Honorable Julian Mann presided on October 26, 2004, but recommended that the matter be consolidated for hearing with the Board’s recommendation of revocation. Since the factual issues remain the same for both proceedings, the two cases were consolidated for hearing before the undersigned.
BURDEN OF PROOF
Respondent Board has the burden of proving by a preponderance of the evidence that the Summary Suspension was warranted and that the registration revocation of Brian Davis should be upheld.
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-5.1;
§ 74D-6(3);
§ 74D-8;
§ 74D-10(4), 74D-10(9), 74D-10(13);
12 N.C.A.C. 11 § .0300
150B-3(c).
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 profession.
2. On or about June 27, 1991, Respondent Davis was issued an alarm systems registration permit. Respondent is currently employed by Simplex Grinnell, Security Division, 4189 Eagle Hill Drive, High Point, North Carolina.
3. Respondent Davis was formerly employed by Caudill Electric. Caudill Electric is a burglar alarm company licensed by the Board.
4. Dana Caudill Jones was employed by Caudill Electric and knew Respondent Davis, who was employed as an installer with the company. Caudill Electric is owned by Ms. Jones’ family.
5. In 2003, Ms. Jones was contacted by a friend who had seen pictures of her on a YAHOO run website.
6. Ms. Jones looked at the website and determined that there were nine photographs of her posted under the website heading “ex lost to black man.” Ms. Jones determined that the photographs had been posted on July 21, 2002, by someone using the email address of . On further investigation, Ms. Jones was able to locate the individual profile of and found a photograph of Respondent Davis.
7. Ms. Jones recognized the photograph as being Respondent Brian Davis.
8. Ms. Jones had never given Mr. Davis any of the posted photographs but did recognize six of the photographs as being family photos. Ms. Jones testified that Mr. Davis had been inside her home on various occasions to work on the burglar alarm system that was installed in her home. Further, Mr. Davis had been in the homes of Ms. Jones’ father and father-in-law, also working on their burglar alarm systems. Mr. Davis had never been in their homes except to work on the burglar alarm systems.
9. Ms. Jones testified that she had little contact with Mr. Davis when he worked with her family’s company, she never had any type of personal relationship with him, and she does not understand why he posted photographs of her on the internet.
10. Ms. Jones stated that Mr. Davis left Caudill Electric in May 2001 under good circumstances.
11. Upon finding the photographs on the internet, Ms. Jones reported the matter to the Kernersville Police Department.
12. Detective K. W. Gamble conducted the investigation, during which time he interviewed Mr. Davis. Mr. Davis confessed that he had stolen photographs and negatives from the victim’s home, her father’s home, and her father-in-law’s home. Mr. Davis also admitted that he had scanned photographs of Ms. Jones into his computer and then had posted the photos on the YAHOO website.
13. Mr. Davis consented to a search of his home at which time Detective Gamble recovered the photos that had been scanned and placed on the website, as well as other photographs of Ms. Jones. In total, Detective Gamble recovered twenty-six photographs.
14. Detective Gamble later obtained a search warrant and went back to Mr. Davis’ residence and seized CD-R’s, 3.5 Diskettes, video tapes, and computer equipment. Detective Gamble met with Special Agent Rick Cullop of the North Carolina SBI. Further analysis was conducted and an additional photograph was found. It was apparently scanned from the Kernersville News in August 2003. Mr. Davis had typed sexual statements around the photograph; however, it was never confirmed that the photograph had been posted on the internet.
15. Detective Gamble obtained three warrants on Mr. Davis for Possession of Stolen Goods. Mr. Davis pled guilty to two counts of Possession of Stolen Goods and was given a PJC on May 19, 2004.
16. Ms. Jones reported the matter to Larry Liggins with the Alarm Systems Licensing Board, at which time Mr. Liggins filed a complaint against Mr. Davis. The matter was investigated by the Board. The Board determined, based upon the police investigation and statements of Ms. Jones, that the theft of the photographs occurred while Respondent was on duty with Caudill Electric and engaged in the repair of the burglar alarm systems.
17. After completing the investigation, Director Woodard issued a Summary Suspension of Mr. Davis’ registration permit on June 17, 2004, pursuant to G.S. 150B-3(c).
18. On September 16, 2004, the Grievance Committee of the Alarm Systems Licensing Board issued a recommendation that Mr. Davis’ registration permit be revoked.
19. Mr. Davis presented six exhibits showing that since he left Caudill Electric he has had a very good work record with his company and is held in high regard by fellow employees. His treating clinical psychologist reported Mr. Davis took full responsibility for his actions and that they were an aberration relative to the broader characteristics of his other relationships and conduct. Dr. Noble believes that Mr. Davis can continue to function in his licensed capacity without jeopardizing the public health, safety and welfare.
CONCLUSIONS OF LAW
- The North Carolina Alarm Systems Licensing Board is an agency of the State of North Carolina and is created pursuant to the North Carolina Alarm Systems Licensing Act, N.C.G.S. § 74D-1 et seq.
- The position of Director of the North Carolina Alarm Systems Licensing Board is created pursuant to N.C.G.S. § 74D-5.1.
- Pursuant to N.C.G.S. § 74D-10(4), 74D-10(9), 74D-10(13), 74D-6(3), the Board may revoke a registration permit if an applicant has been convicted of a crime involving moral character.
- Pursuant to N.C.G.S. § 74D-6(3), “conviction” is defined as “the entry of a plea of guilty, plea of no contest, or a verdict rendered in open court by a judge or jury.”
- Pursuant to N.C.G.S. § 74D-5.1, the Director shall administer the directives contained in the Alarm Systems Licensing Act and the rules promulgated by the Board in order to actively police the industry.
- Respondent Davis has been issued a valid alarm registration permit and as such, the Board has jurisdiction over his registration permit.
- Respondent Davis pled to two counts of Possession of Stolen Goods on May 19, 2004, and received a Prayer for Judgment Continued by the Court.
- Respondent Davis’ pleas to two counts of Possession of Stolen Goods on May 19, 2004, does evidence a lack of good moral character pursuant to G.S. § 74D-6(3). See Britt v. N.C. Sheriff’s Education & Training Standard Commission, 348 NC 573, 501 S.E.2d 75 (1998).
- Based upon the guilty pleas referenced above, the Board has authority to suspend or revoke the alarm registration permit of Respondent Davis, but Mr. Davis has submitted letters indicating that his behavior was an aberration, that he has reformed, and he is not a current threat to public health, safety or welfare.
PROPOSAL FOR DECISION
The North Carolina Private Protective Services Board will make the final decision in this contested case. It is proposed that the Board suspend the suspension or revocation of the permit for two years upon condition that Mr. Davis have no further contact with Ms. Jones or her family, and otherwise maintain good behavior and moral character.
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 Private Protective Services Board.
This the 24th day of December, 2004.
______
Fred G. Morrison Jr.
Senior Administrative Law Judge
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