STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 01 DOJ 1495

DONALD WALTER THOMPSON, JR. )

Petitioner, )

)

v. ) PROPOSAL FOR DECISION

)

NORTH CAROLINA PRIVATE )

PROTECTIVE SERVICES BOARD )

Respondent. )

THE ABOVE ENTITLED MATTER was heard before the undersigned Augustus B. Elkins II on October 23, 2001 in Raleigh, North Carolina. This case was heard pursuant to N.C.G.S. § 150B-40(e) by designation of an Administrative Law Judge to preside at the hearing of a contested case under Article 3A, Chapter 150B of the North Carolina General Statutes.

APPEARANCES

For Petitioner: Pro se

For Respondent: Bradford A. Williams

Holt York McDarris, LLP

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. §§ 74C-2, 3, 8, 9, 11 and 12

12 NCAC 7D § .0700

WITNESSES

For Petitioner: Petitioner testified on his own behalf.

For Respondent: NC Private Protective Services Board Investigator Helen Parker.

EXHIBITS

For Petitioner: None.

For Respondent: Respondent’s Exhibits A through D.

ISSUE

Whether grounds exist for Respondent to deny Petitioner’s application for an unarmed security guard registration permit for lack of temperate habits and for lack of good moral character.

BURDEN OF PROOF

Respondent has the burden of proving that Petitioner’s application for an unarmed security guard registration permit should be denied for lack of good moral character or temperate habits. Petitioner may rebut Respondent’s showing.

BASED UPON careful consideration of the testimony and evidence presented at the hearing, the documents and exhibits received into evidence, and the entire record in this proceeding, the Undersigned makes the following findings of fact. In making the findings of fact, the Undersigned has weighed the evidence and has assessed the credibility of the witnesses by taking into account the appropriate and traditional factors for judging credibility, such as the demeanor of the witness, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case.

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, which includes unarmed security guards.

2. Petitioner applied to Respondent Board for an unarmed security guard registration permit.

3. Respondent Board’s background investigation of the Petitioner reflected Petitioner’s criminal record from Alamance County. Investigator Helen Parker (hereinafter “Investigator Parker”) determined that Petitioner on January 9, 1992 was convicted of the following in Alamance County: felony breaking and/or entering, felony larceny after break/enter, misdemeanor breaking or entering, and two counts of misdemeanor attempted breaking and entering.

4. Further, from a background investigation of the Petitioner, which included a criminal record check from Guilford County, Investigator Parker determined that Petitioner received a conviction on a misdemeanor larceny charge on February 21, 1992. The Petitioner also was convicted in Guilford County on March 27, 1992 of misdemeanor giving false information to obtain a North Carolina Driver’s License.

5. Respondent denied Petitioner’s application for: (1) the “correctable reason” of “has been working without being properly registered,” and (2) the “for cause” reason that he had the above convictions and infractions, and therefore lacked good moral character and temperate habits.

6. The offenses of which Petitioner was convicted as cited in Paragraph 3 and 4 above are among those listed in N.C. Gen. Stat. §74C-8(d)(2). Therefore, the convictions are prima facie evidence that Petitioner lacks good moral character.

7. Respondent also found in the criminal record check from Guilford County that Petitioner on July 6, 1998 pled responsible to a charge of improper equipment, and that on February 15, 2000 he was convicted of speeding. According to the applicable statute these are not prima facie evidence that the applicant does not have good moral character or temperate habits.

8. The most recent of the convictions upon which the denial was based occurred over nine and a half years ago. And the series of convictions took place over the short time period of January 9 to March 27, 1992 based on incidents that occurred during the period 1991 to1992 when the Petitioner was approximately sixteen (16) years old. Even during that time he turned himself in regarding some of the incidents.

9. The Petitioner, Mr. Thompson, during the 1991 to 1992 time period and before, was without his mother or father and was being raised by his grandmother. The series of convictions as well as Petitioners admissions to the Undersigned are clear evidence of lack of temperate habits during the time up to 1992. After his convictions, however, he went to live with his uncle who was instrumental and one of several factors that changed his life around.

10. Over nine and a half years have elapsed since this series of teenage larceny and related offences and Petitioner is now almost twenty-seven years old. During this time he has lived a very commendable life holding responsible jobs and taking seriously his responsibilities as a husband to his wife of six years. His is currently a client services manager for one of the largest security companies in the world. There is no showing that Petitioner is currently acting or has recently acted in accordance with his teenage behavior of nine and a half years ago.

11. Respondent has not shown that Petitioner has any current or recent intemperate habits or that he currently lacks good moral character. To the contrary Petitioner’s evidence establishes that he is a man of good moral character and temperate habits.

BASED UPON the foregoing Findings of Fact and upon the preponderance or greater weight of the evidence in the whole record, the undersigned makes the following Conclusions of Law:

CONCLUSIONS OF LAW

1. The Petitioner bears the burden of proving the claims alleged in the petition by a preponderance of evidence in this case.

2. The Office of Administrative Hearings had jurisdiction of this contested case pursuant to Chapters 74C and 150B of the North Carolina General Statutes

3. This is an application under N.C. Gen. Stat. § 74C-8 and the requirements of that statute, require the applicant to show that he meets all the requirements and qualifications prerequisite to the issuance of a license, including that the applicant is of good moral character and temperate habits.

4. Pursuant to N.C. Gen. Stat. § 74C-12(a)(25), the Respondent may deny an application for an unarmed security guard registration permit when the applicant lacks good moral character or has intemperate habits.

5. There are a number offenses listed in §74C-8(d)(2) that are prima facie evidence of lack of good moral character including unlawful breaking or entering and larceny. Petitioner was convicted of these offenses over nine and a half years ago when he was approximately sixteen (16) years old.

6. In the nine and a half plus years since 1992 and to date there is no showing that Petitioner, Donald Walter Thompson, Jr. has any current or recent intemperate habits or that he currently lacks good moral character. In fact, based on the whole record, the Undersigned finds that Petitioner has a successful marriage of approximately six years to date and that Petitioner has demonstrated responsible behavior in both his work and personal life understanding right from wrong and abiding by the general principals of right conduct.

7. Though Respondent established a prima facie case in accord with the statutes that Petitioner lacked good moral character, the Undersigned finds that Petitioner through the evidence and testimony in this case has successfully rebutted that presumption and is in fact a man of good moral character and temperate habits.

BASED UPON the foregoing Findings of Fact and Conclusions of Law the Undersigned makes the following:

PROPOSAL FOR DECISION

The following proposal for decision is fact specific to this case and to this Petitioner.

It is recommended that the North Carolina Private Protective Services Board find that the Petitioner is an individual of good moral character and temperate habits. Further, based on all the evidence, including testimony and exhibits provided at the above-captioned case, the Undersigned recommends the Respondent reverse its initial denial of Petitioner’s application and that the Petitioner’s request for an unarmed security guard registration permit be allowed.

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 Private Protective Services Board.

A copy of the final agency decision or order shall be served upon each party personally or by certified mail addresses to the party at the latest address given by the party to the agency and a copy shall be furnished to his attorney of record. N.C.G.S. § 150B-42(a). It is requested that the agency furnish a copy to the Office of Administrative Hearings.

IT IS SO ORDERED

This the 14th day of November, 2001.

______

Augustus B. Elkins II

Administrative Law Judge

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