WAKE COUNTY
WILLIAM BRIAN MARTIN,
Petitioner,
v.
NORTH CAROLINA ALARM SYSTEMS LICENSING BOARD,
Respondent. / )))))))) / IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
07 DOJ 0929
DECISION
This contested case was heard before Administrative Law Judge Beecher R. Gray on September 25, 2007, in Raleigh, North Carolina.
APPEARANCES
Petitioner appeared pro se
Respondent was represented by attorney John T. Crook
WITNESSES
Petitioner – Petitioner testified on his own behalf, and also testifying for Petitioner was F. Todd Richardson.
Respondent – Alarm Systems Licensing Board Deputy Director Mark Poole (“Deputy Poole”) testified for Respondent Board
ISSUES
Whether grounds exist for Respondent to deny Petitioner’s new alarm registration permit application for lack of good moral character and conviction of a crime involving fraud.
BURDEN OF PROOF
Respondent has the burden of proving that Petitioner lacks good moral character or temperate habits, or that Petitioner has been convicted of a crime involving fraud. 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-5
74D-6
74D-8
12 NCAC 11 § .0300
FINDINGS OF FACT
1. The parties received notice of hearing by certified mail more than 15 days prior to the hearing and each stipulated on the record that notice was proper.
2. Respondent Board is established under 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.
3. Petitioner applied to Respondent Board for a new alarm registration permit. Petitioner’s application for a renewal of his alarm registration permit was introduced as Exhibit 1.
4. In his application for an alarm registration permit, Petitioner answered “yes” to the question, “Have you ever pled guilty to any crime (Felony or Misdemeanor)?” and indicated by circling an answer that Petitioner had pleaded guilty to a Misdemeanor. Petitioner, in response to the question as to whether he had, “Served time; Been Paroled; or Been on Probation,” indicated “no”.
5. Submitted with his application was a Criminal Record Check for Petitioner in Rockingham County, which Respondent introduced as Exhibit 2. Exhibit 2 indicated that Petitioner had been convicted for Misdemeanor Injury to Personal Property and Misdemeanor Simple Assault in 1995, for which he was given thirty-six months of probation.
6. Respondent introduced Exhibit 3, a “For Cause” denial letter from Respondent to F. Todd Richardson, indicating that Petitioner’s application would be denied based upon the two convictions set out in Exhibit 2, and for three further convictions in 2006: (M) Solicit to Embezzle; (M) Solicit to Obtain Property False Pretense; (M) Solicit to Obtain Property False Pretense.
7. Deputy Poole testified that upon receipt of Petitioner’s application, Respondent Board conducted its own investigation and determined that on November 2, 2006, Petitioner pled guilty to two counts of Misdemeanor Solicit to Obtain Property False Pretense and one count of Misdemeanor Solicit to Embezzle. A certified criminal record search from Guilford County for Petitioner showing that Petitioner was convicted of such misdemeanors was introduced and admitted as Exhibit 4.
8. Respondent introduced Exhibit 5, a letter from F. Todd Richardson, the owner of ARC Security & Fire Solutions, Inc., and a licensee with Respondent Board, requesting reconsideration of Respondent’s denial of Petitioner’s application. Deputy Poole testified that Respondent Board did consider Mr. Richardson’s explanation, but still denied Petitioner’s application.
9. Respondent introduced Exhibit 6, a letter from Petitioner offering an explanation of his recent convictions. In his letter, Petitioner indicated that his previous employer filed the charges against him, but that he was not guilty of any of the charges. Deputy Poole testified that the Board did consider Petitioner’s Explanation, but still denied Petitioner’s explanation.
10. F. Todd Richardson, a licensee with Respondent Board then testified on behalf of Petitioner. Mr. Richardson indicated that he did trust Petitioner, and that in his experience with Petitioner, Petitioner had proven himself to be trustworthy. Mr. Richardson also indicated that he believed that Petitioner’s former employer improperly filed the charges against Petitioner in an effort to ruin Petitioner’s reputation. Mr. Richardson did not speak with Petitioner’s former employer regarding the charges.
11. Petitioner testified that the charges against him which were not disclosed to Respondent Board in his application grew out of a dispute with a former employer, and that the property obtained by false pretense was gasoline for his own car purchased on account, and a drill which Petitioner testified he paid for. Petitioner also testified that property he allegedly embezzled was his own paycheck. Petitioner did admit that he pleaded guilty to these charges.
CONCLUSIONS OF LAW
1. The parties properly are before the Office of Administrative Hearings.
2. Under G.S. § 74D-6(2) Respondent Board may refuse to issue an alarm systems registration permit for conviction of a crime involving fraud.
3. Under G.S. § 14-100, obtaining property by false pretense is a crime involving fraud. Further, to prove the crime of solicitation the state must prove a request to perform every element of the underlying crime. See State v. Suggs, 117 N.C. App. 654, 661, 453 S.E.2d 211, 215 (1995).
4. Under G.S. § 74D-6(3), Respondent Board may refuse to issue an alarm systems registration permit for lack of good moral character or temperate habits.
5. Respondent Board presented evidence of Petitioner’s convictions of multiple crimes involving fraud. Respondent Board presented evidence of Petitioner’s lack of good moral character or temperate habits through Petitioner’s criminal record. Petitioner has partially rebutted the presumption that he lacks good moral character.
Based upon the foregoing findings of fact and conclusions of law, 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 Respondent Board in its discretion allow Petitioner’s application for a registration permit under a period of probation for twenty-four (24) months.
ORDER
It hereby is ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, North Carolina, 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 under 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 October, 2007.
______
Beecher R. Gray
Administrative Law Judge
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