STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 01 DOJ 0997

______

DONNY LAMOR PHILLIPS )

Petitioner, )

)

v. ) PROPOSAL FOR DECISION

)

N.C. ALARM SYSTEMS LICENSING )

BOARD )

Respondent. )

______

On June 26, 2000, Administrative Law Judge Melissa Owens Lassiter heard this contested case in Raleigh, North Carolina.

APPEARANCES

For Petitioner: Donny Lamor Phillips, Pro Se

For Respondent: Edward K Roberts, Attorney at Law

William Crowe, Law Clerk

Holt York McDarris, LLP

4601 Six Forks Road, #207

Raleigh, NC 27609

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. §§ 74D-2, 6, 8-10

12 NCAC 11 .0100-.0200

ISSUE

Whether grounds exist for Respondent to deny Petitioner’s application for an Alarm Registrant Permit for lack of good moral character?

FINDINGS OF FACT

1. On or about November 15, 2000, Petitioner submitted an Alarm Registration Permit application to Respondent to work for Cotton Security in Charlotte, North Carolina.

2. Petitioner answered “yes” to each of the following application questions: “Have you EVER pled guilty to and/or been convicted of any crime (Felony or Misdemeanor) Served Time, Been Paroled or Been on Probation.”

3. Lou Rogers, Respondent’s Special Projects Coordinator, conducted a standard criminal background check on Petitioner.

4. A certified copy of Petitioner’s criminal record produced at hearing showed that Petitioner had been convicted of the following:

Gaston County –

a) November 3, 1989 Misdemeanor Intoxicated and disruptive

b) March 21, 1990 Misdemeanor Possess Marijuana up to ½ oz.

c) September 17, 1990 Speeding

d) November 7, 1990 Misdemeanor Intoxicated and Disruptive

Misdemeanor Resist/Obstruct Police Officer

e) October 12, 1990 Driving While Impaired

Cleveland County –

a) January 4, 1993 DWI- Level 2

b) November 5, 1999 Speeding

4. On February 7, 2001, Respondent denied Petitioner’s license application for:

(1) 2 correctable reasons for omitting place of birth and for being employed since October 30, 2000 without being properly registered, and (2) for cause due to his criminal history record indicating that he lacked the requisite good moral character.

5. On its letter denying Petitioner’s application, Respondent listed nine other criminal convictions and 2 civil driver’s license revocations as part of the basis Respondent denied Petitioner’s license application. However, these convictions were not supported by and/or listed on Petitioner’s certified criminal record presented to this Court.

6. As part of his punishment for the January 4, 1993 DWI conviction, the judge ordered Petitioner to undergo a drug/alcohol assessment and treatment at a state certified drug and alcohol rehabilitation facility.

7. At hearing, Petitioner admitted to his past criminal record and that he had a drug and alcohol problem prior to March 1999. He acknowledged that he was diagnosed with clinical depression in 1999, but did not immediately seek professional treatment.

8. Sometime between January and February 1999, pursuant to a court ordered drug/alcohol treatment, Petitioner began attending a drug treatment program called the “Wake Up” program in Gastonia, NC. After attending one-half of that program around the end of February 1999, Petitioner advised a counselor at that program that he was not getting the intense treatment that he needed from that program. Petitioner and his family decided that Petitioner would enter himself a Christian-based intensive drug and alcohol treatment program known as Christian Love Ministries in Murphy, NC. One week later, Petitioner entered a drug and alcohol treatment program at the Christian Love Ministries in Murphy, NC.

9. From March 8, 1999 through May 5, 1999, Petitioner attended the drug and alcohol treatment program at the Christian Love Ministries. This program was a Christian-based residential program where a counselor administered Petitioner a drug assessment and recommended that Petitioner attend the 10-week treatment program. During that program, Petitioner attended 4 hours per day of classroom training, group and one-on-one counseling, and completed course work.

10. Petitioner did not know if the Christian Love Ministries was certified by the state as a drug and alcohol assessment and/or treatment facility.

11. Since that program, Petitioner has attended and currently continues to regularly attend Alcoholic Anonymous meetings one-two times per week.

12. Petitioner last drank an alcoholic beverage about two and one-half weeks before the date of this hearing.

13. Petitioner admitted that he had been convicted of all the criminal convictions listed on Respondent’s Exhibit D, including convictions not listed on the certified criminal record presented to this Court. These convictions including a March 21, 1990 misdemeanor marijuana possession, November 7, 1990 misdemeanor intoxicated and disruptive, October 12, 1990 DWI, December 5, 1995 misdemeanor marijuana possession, July 1, 1999 misdemeanor marijuana drug possession, September 29, 1999 misdemeanor marijuana drug possession, and July 1, 1999 misdemeanor drug paraphernalia. Petitioner explained that the July 1, 1999 and September 29, 1999 misdemeanor marijuana drug possession convictions and the July 1, 1999 misdemeanor drug paraphernalia conviction were charges that occurred before Petitioner’s participation in the Christian Love Ministries drug and alcohol treatment program in March 1999. These charges were continued and not heard in court until after Petitioner completed his treatment program.

14. Petitioner contended that he has made an honest effort to reorganize his life and move on.

15. Petitioner has been employed with Cotton Security pending the application process. Petitioner’s brother is an employee of Cotton Security and introduced Petitioner to the owner of Cotton Security, Joseph C. Cotton. Mr. Cotton hired Petitioner after 2 interviews. He learned about Petitioner’s criminal history through the license registration and application process.

Mr. Cotton has regularly declined employment to applicants with less of a criminal history than Petitioner. Although Mr. Cotton thought it would be difficult for Petitioner to obtain a license given his criminal record, he felt Petitioner is honest and has turned his life around. He has placed Petitioner in training sessions with Petitioner’s brother, and felt Petitioner was honest, straight-forward, performed excellent work, and was great with customers. Although his interaction with Petitioner is restricted to the work setting, Cotton trusts Petitioner explicitly, and feels confident about Petitioner.

16. It has been over 2 years since Petitioner attended a drug and alcohol treatment program. There is no evidence that he has any criminal convictions since then, other than those charges discussed in Finding of Fact 11.

CONCLUSIONS OF LAW

1. Pursuant to N.C. Gen. Stat. § 74D-2(d), the applicant shall be required to show that he meets all the following requirements and qualifications prerequisite to obtaining a license:

...That the applicant is of good moral character and temperate habits. The following shall be prima facie evidence that the applicant does not have good moral character or temperate habits...... conviction of a crime involving....larceny or any offense involving moral turpitude....

2. Pursuant to N.C. Gen. Stat. § 74D-6, Respondent may deny a permit application based upon the following grounds:

(3) Lack of good moral character or temperate habits. . . .

(5) Knowingly making any false statement or misrepresentation in an application made to the Board for a license or registration.

3. Respondent has established a prima facie showing of a lack of good moral character by Petitioner.

4. Petitioner may overcome the prima facie showing of lack of good moral character by rebutting the Board’s evidence.

5. Petitioner has rebutted Respondent’s prima facie showing of lack of good moral character by showing that he has made significant changes in his life since his convictions, and is respected and trusted by his potential employer, Joseph Cotton.

6. Petitioner possesses good moral character and temperate habits, and is a person of suitable character to hold an alarm installer registration permit.

PROPOSAL FOR DECISION

The undersigned proposes that Respondent REVERSE its initial denial of Petitioner’s application for an Installer Registration Permit and issue Petitioner an alarm installer permit on the conditions that (1) Petitioner not violate any federal or state laws for a period of 1 year, and (2) Petitioner work under the direct supervision of another registered alarm installer for a period of 1 year.

ORDER

It is hereby ordered that the agency making the final decision in this matter serve a copy of that decision on the Office of Administrative Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with N.C. Gen. Stat. § 150B-36(a).

NOTICE

The N.C. Alarms Systems Licensing Board will make the final decision in this contested case. It is required to give each party an opportunity to file exceptions to this proposed decision and to present written arguments to those in the agency who will make the final decision. N.C. Gen. Stat. § 150B-36(a).

N.C. Gen. Stat. § 150B-36(b) requires the Board to serve a copy of the Final Decision on all parties, and furnish a copy to the parties’ attorney of record and to the Office of Administrative Hearings.

This the 23rd day of July, 2001.

______

Melissa Owens Lassiter

Administrative Law Judge

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