STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 02 DOJ 1260
JAMAAL AHKIEM GITTENS, )
Petitioner, )
)
v. ) PROPOSAL FOR DECISION
)
NORTH CAROLINA PRIVATE )
PROTECTIVE SERVICES BOARD, )
Respondent. )
This contested case was heard before Administrative Law Judge James L. Conner, II on December 20, 2002 in Raleigh, North Carolina.
APPEARANCES
Petitioner appeared pro se.
Respondent was represented by attorney Bradford A. Williams.
WITNESSES
Petitioner - Petitioner testified on his own behalf.
Respondent – Field Services Supervisor Rodney White testified for Respondent Board. Respondent called Petitioner to testify as an adverse witness.
ISSUES
Whether grounds exist for Respondent to deny Petitioner’s unarmed guard registration permit application for lack of good moral character or temperate habits.
BURDEN OF PROOF
Respondent has the burden of proving that Petitioner lacks good moral character or temperate habits. 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. 74C-2;
74C-3;
74C-8(d)(2);
74C-9;
74C-11;
74C-12(a)(25);
12 NCAC 7D § .0700.
FINDINGS OF FACT
1. Respondent Board is established pursuant to N.C.G.S. 74C-1 et seq., and is charged with the duty of licensing and registering individuals engaged in the private protective services profession, including unarmed guards.
2. Petitioner applied to Respondent Board for an unarmed guard registration permit.
3. In his application for an unarmed guard registration permit, Petitioner answered “Yes” to the question, “Have you EVER pled guilty to and/or been convicted of any crime (Felony or Misdemeanor).” He also attached to his application a hand-written statement in which he claimed to have been charged with “not listen[ing] to the police” and that he paid a fine for this charge.
4. After submitting his unarmed guard registration permit application, Petitioner sent Respondent Board a letter in which he wrote that he had been convicted of misdemeanor resisting arrest, open container of alcohol, driving while impaired, misdemeanor disorderly conduct and driving while license revoked.
5. Petitioner testified that the misdemeanor resisting arrest conviction occurred after he failed to follow the instructions of a police officer. According to Petitioner, he was driving his vehicle with the headlights turned off. Petitioner testified that he was angry at the time and wasn’t thinking clearly because he had just gotten into an argument with his girlfriend’s parents. He turned into his apartment complex without realizing that a police officer had been following him. The officer tried to get Petitioner’s attention, but Petitioner allegedly didn’t see the officer. When Petitioner failed to heed the officer and went straight to his apartment after parking his vehicle, the officer came to Petitioner’s apartment and arrested him for misdemeanor resisting arrest.
6. Petitioner admitted that the open container of alcohol incident occurred the same night as his arrest for misdemeanor resisting arrest.
7. With regard to the driving while impaired charge, Petitioner testified that the police stopped his vehicle because they received a complaint that he had pointed a gun at someone. The police found no weapon in Petitioner’s vehicle, but charged him with driving while impaired. Petitioner testified that he did not blow over the legal limit, but he pled guilty to driving while impaired nonetheless. He was not charged with any weapons violations because of this stop.
8. Petitioner testified that the disorderly conduct conviction arose out of a fight that occurred at his girlfriend’s residence between him and his girlfriend’s father. He claimed that the father began the fight, and that his girlfriend’s brother joined the altercation. Petitioner alleged that the father shot at him. Petitioner left his girlfriend’s residence and came back with his brother. When he and his brother arrived at the girlfriend’s house, the police were already there. Petitioner became agitated when he learned that the police were not going to charge the father. Petitioner argued with one of the responding officers and was charged with disorderly conduct.
9. Petitioner is twenty-six years old. He testified that all of his convictions are for incidents that occurred in 1997 and 1998. Since then, Petitioner has not been in trouble. He has an interest in being a parole or corrections officer. He is currently studying for the SAT and hopes to attend Barber-Scotia College in Concord, North Carolina.
10. Since 1998, Petitioner has worked at a number of temporary employment agencies. He has also worked for three security companies. Petitioner testified that he worked for Century Alert as an unarmed guard at a Food Lion location for approximately five months. He claimed to have filled out an unarmed guard registration permit application, but did not recall whether Century Alert ever mailed it in to Respondent Board. Petitioner left Century Alert because it was bouncing its paychecks.
11. Petitioner has also worked for Loss Prevention and Weiser Security Services as an unarmed guard. He worked for Loss Prevention at a Holiday Inn for approximately six months. His employment with Weiser ended when it was informed of Petitioner’s denial status with Respondent Board. Weiser has told Petitioner that it would hire him back if he receives his unarmed guard registration permit.
12. Petitioner explained that his troubles in 1997 and 1998 resulted from relationship problems and his difficulty in adjusting to North Carolina after having moved from New York City. He testified that he is a good kid who now has his priorities in order.
CONCLUSIONS OF LAW
Pursuant to G.S. 74C-12(a)(25), Respondent Board may refuse to issue an unarmed guard registration permit for lack of good moral character or temperate habits.
Pursuant to G.S. 74C-8(d)(2), convictions for crimes involving moral turpitude or the illegal use or possession of alcoholic beverages constitute prima facie evidence of an applicant’s lack of good moral character or temperate habits.
Respondent Board presented prima facie evidence of Petitioner’s lack of good moral character or temperate habits through his criminal record, which includes convictions for misdemeanor resisting arrest, open container of alcohol, driving while impaired and misdemeanor disorderly conduct. Petitioner, however, has rebutted Respondent Board’s presumption. The record reflects that Petitioner made mistakes when he was younger, but that he has matured into a responsible young adult. The evidence that Petitioner has remained free from trouble since 1998, that he has a history of stable employment, and that his convictions were for incidents that occurred within a year’s time establish that his criminal actions were simply isolated events that do not add up to a lack of good moral character or temperate habits.
Based on the foregoing, the undersigned makes the following:
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 REVERSE its initial decision to deny Petitioner’s application for an unarmed guard registration permit.
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 6th day of January, 2003.
______
James L. Conner, II
Administrative Law Judge
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