NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

WAKE COUNTY 07 DOJ 0531

LOUIS SYLVESTER SNYDER,
Petitioner,
vs.
N.C. ALARM SYSTEMS LICENSING BOARD,
Respondent. / PROPOSAL FOR DECISION

This contested case was heard before Donald W. Overby, Administrative Law Judge, on May 29, 2007 in the Office of Administrative Hearings. The Petitioner was represented by Reed N. Fountain, and the Respondent was represented by John Crook and Charles F. McDarris.

EXHIBITS

The undersigned received testimony from the following witnesses for Petitioner: Louis Sylvester Snyder, Daniel Comfort and George Lukei. The undersigned received into evidence with no objection from Respondent, a character reference letter written by Dean Micena offered on behalf of the Petitioner (Petitioner’s Exhibit 1). The undersigned also received testimony from Mark Poole on behalf of the Respondent. The undersigned also received into evidence with no objection from Petitioner the 1998 initial registration form signed by the Petitioner with Respondent (part of Respondent’s Exhibit 6), the Biannual Registration renewals for the years 2000, 2002, and 2004 filed by Petitioner with Respondent( collectively Respondent’s Exhibit 6), The Biannual Registration Renewal Application for 2006 (Respondent’s Exhibit 1), a letter of explanation from the Petitioner received by Respondent on July 27, 2006 (Respondent’s Exhibit 2),a letter of support from Daniel Comfort to Respondent dated July 24, 2006 (Respondent’ Exhibit 3), a September 1, 2006 denial letter from Respondent to Mr. Comfort (Respondent’s Exhibit 4), and September 27, 2006 Notice of Appeal submitted to Respondent by Petitioner (Respondent’s Exhibit 5).

ISSUE

Whether grounds exist for Respondent to deny Petitioner’s alarm registration permit renewal application for knowingly making a false statement or misrepresentation in an application made to the Board for a license or registration.

Based upon the preponderance of the evidence following an evaluation of the credibility of the witnesses for both parties, the undersigned makes the following:

FINDINGS OF FACT

1.  Petitioner is a citizen and resident of Person County, N.C.

2.  Respondent is an occupational licensing Board and agency of the State of North Carolina organized and existing under Chapter 74D of the North Carolina General Statutes with its principal office in Raleigh, North Carolina, and is charged with the duty of licensing and registering individuals engaged in the alarm systems business.

3.  On or about July 7, 1998 Petitioner submitted an initial, biannual registration form with the North Carolina Alarm Systems Licensing Board and in that application failed to disclose a 1978 conviction for robbery from the State of Ohio. Thereafter, Petitioner submitted biannual Registration forms for the years 2000, 2002, and 2004 without disclosing the conviction.

4.  Petitioner was registered and timely renewed for all relevant times from 1998- 2006.

5.  In his application for renewal for an alarm registration permit for 2006, the Petitioner answered “yes to the questions “Have you ever pled guilty to any crime (Felony or Misdemeanor); Served time; Been Paroled or Been on Probation.” In all previous applications, he had responded to those questions in the negative.

6.  His decision not to include that information in his initial application was based in part on the advice of his manager at the time, Jim Beach. Mr. Beach was subsequently fired from that employment for misconduct.

7.  Petitioner on his own accord made the decision to self-report the 1978 robbery conviction on his 2006 registration renewal. There was no on-going investigation being conducted by the Respondent. The Respondent obtains North Carolina criminal record checks and would not have found this conviction from Ohio but for the Petitioner’s self-report. The Respondent has offered no independent or corroborative evidence of the Petitioner’s conviction and the only evidence of the conviction comes from the Petitioner himself.

8.  Respondent has refused to renew the Petitioner for an Alarm Registrant Permit on the grounds that Petitioner lacked good moral character based on the conviction from Ohio and the failure to list that information on his applications.

9.  Petitioner, in accordance with the procedures detailed in N.C.G.S. section 150B et seq., properly appealed to the Office of Administrative Hearings.

10.  Petitioner, on examination, admitted the existence of a felony conviction for robbery.

11.  Respondent stipulated that contrary to its letter of denial, the basis for the decision of non-renewal (Exhibit 4) was only the robbery charge and not the reckless driving charge and unpaid parking fine referenced in Exhibit 4. The undersigned has due process concerns with regards to Exhibit 4 and its failure to list the 1978 conviction under the “For Cause” section but instead under the Correctable Reason” section, but both parties stipulate and agree to waive any defects in order to dispose of any and all issues concerning Petitioner’s renewal application.

12.  The acts underlying the conviction for robbery were the result of a combination of immaturity, intoxication and parental pressure. He was nineteen years old and with his father and another adult at the time the robbery was committed, and all of them had been drinking alcohol.

13.  Petitioner contends that the robbery conviction was an isolated event during his youth that was inconsistent with his moral character, that he is now a more mature, well-grounded person with good moral character, and that he now places a high value on the trust and respect of others because of this unfortunate learning experience. He served approximately 6 months in jail for the conviction, which included work release. There have been no subsequent criminal convictions in the intervening almost 30 years.

14.  Petitioner testified that his conscience and the influence of his recent studies of the bible had compelled him to come forward to disclose the 1978 conviction.

15.  Daniel Comfort a licensee of the Respondent and manager with supervisory responsibilities over Petitioner and George Lukei, a manager with supervisory responsibilities over Petitioner both testified on behalf of the Petitioner. Each has a high opinion of the Petitioner’s work ethic, trustworthiness and good moral character. Mr. Comfort has known and worked with Petitioner since 1998. Mr. Lukei testified that he has known and worked with Petitioner for four years. Both Mr. Comfort and Mr. Lukei indicated that Petitioner has been entrusted with security equipment maintenance and confidential information during nearly 9 years on assignment at the IBM RTP facility and he has never abused those privileges. The customer has been well served and is appreciative of the service provided by the Petitioner. Both Mr. Comfort and Mr. Lukei are aware of the Petitioner’s conviction, and both are familiar with his overall character. They support the Petitioner's request to be permitted to register and have no regrets about hiring and continuing to employ the Petitioner.

16.  Petitioner's Exhibit 1, a character reference letter written by Dean Micena, a service manager with direct supervisory responsibilities over Petitioner detailed his workplace interactions with Petitioner over a 7 year period and concluded that Petitioner was inter alia, “honest and respectful” and supported his request for renewal.

Based on the foregoing Findings of Fact, the undersigned makes the following:

CONCLUSIONS OF LAW

1.  The Office of Administrative Hearings has jurisdiction over this contested case, pursuant to Chapters 150B and 74D of the North Carolina General Statutes.

2.  The Respondent carried its burden in establishing it prima facie case that Petitioner violated N.C.G.S. section 74D-6, 10.

3.  The Respondent presented evidence that Petitioner knowingly made false statements and misrepresentations in his initial application made to the Board for the issuance of an alarm registration permit and on three subsequent biannual renewal applications.

4.  The false statements and misrepresentations were initially made at the suggestion and direction of his supervisor. But for the Petitioner’s honesty and self-reporting, it is likely the Respondent would never have known of the Petitioner’s conviction, and he could have continued to be licensed as an alarm registrant permittee.

5.  The criminal conviction which the Petitioner failed to report happened almost thirty years ago and the Petitioner has demonstrated good moral character and sound moral judgment since that time.

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned:

PROPOSAL FOR DECISION

Proposes that the Respondent, in its discretion, allow Petitioner's request for a renewal of his registration for an Alarm Registrant Permit, and further, the renewal be probationary for a period of two years and conditioned on the Petitioner having no conviction of a Class 1 misdemeanor or any felony.

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, NC 27699-6714, in accordance with N.C.G.S. section 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 and proposed findings of fact and to present oral and written arguments to the Agency. N.C.G.S. Section 150b-40(e).

A copy of the agency’s Final Decision Order shall be served upon each party personally or by certified mail addressed to the party’s latest address as given to the Agency and a copy shall be furnished to his attorney of record. N.C.G.S. Section 150b-42(a). It is requested that the Agency furnish a copy to the Office of Administrative Hearings.

The Agency that will make the Final Decision in this contested case is the North Carolina Alarm Systems Licensing Board.

This the 3rd day of July, 2007.

______

Donald W. Overby

Administrative Law Judge Presiding

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