STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 02 DOJ 0530

BENITA KEE LUCKEY )

Petitioner, )

)

v. ) PROPOSAL FOR DECISION

)

NORTH CAROLINA PRIVATE, )

PROTECTIVE SERVICES BOARD, )

Respondent. )

THIS MATTER coming before the undersigned Augustus B. Elkins II, Administrative Law Judge, a hearing was conducted on June 25, 2002, in Raleigh, North Carolina. Appearing for the Respondent was attorney, Bradford A. Williams. The Petitioner did not appear nor did any representative for the Petitioner appear. The Undersigned having considered the entire record finds that the matter of disposing of this case by default in accordance with N.C. GEN. STAT. § 150B-41 is ripe for disposition.

STANDARD OF REVIEW

N.C. GEN. STAT. § 150B-40 provides that the provisions of Article 3A of Chapter 150B shall govern a contested case in which the North Carolina Private Protective Services Board requests an administrative law judge (ALJ) from the Office of Administrative Hearings (OAH). That same N.C. GEN. STAT. § 150B-40 (under 40(e)) states that the administrative law judge assigned to hear a contested case under Article 3A shall sit in place of the agency and “shall have the authority of the presiding officer in a contested case” under Article 3A. Again in N.C. GEN. STAT. § 150B-40 it is stated in 40(c) that the presiding officer may “regulate the course of the hearings, set the time and place for continued hearings , and fix the time for filing of briefs and other documents.”

Moreover, under N.C. GEN. STAT. § 150B-41(c) “disposition may be made of a contested case” by several cited methods, one of which is default. According to Black’s Law Dictionary (Fifth Edition), default as it applies to the disposition or judgment of a case cites that when a party against whom affirmative relief is sought has failed to plead or otherwise defend, “he is in default and a judgment” may be entered.

Whether a party has manifested an intent to thwart the progress of an action or has engaged in some delaying tactic may be inferred from the facts surrounding the delay in the prosecution of the case. See Link v. Wabash R.R. Co., 370 U.S. 626, 633, 82 S.Ct. 1386, 1393, 8 L.Ed.2d 734, 739-40 (1962).

PROPOSED FINDINGS OF FACT

1. Petitioner applied for an Associate Private Investigator license with the Respondent. Respondent denied Petitioner’s application. Petitioner appealed the denial of her application and this action commenced.

2. Respondent applied to the Office of Administrative Hearings to schedule a hearing date in Raleigh, North Carolina on April 23, 2002 at 2:00 p.m. The case was rescheduled and reassigned to the Undersigned and a notice of hearing for June 25, 2002 was sent to Petitioner on or about May 30, 2002. Petitioner received notice of this hearing by certified mail at her residence more than fifteen days from the date of the hearing.

3. The undersigned Administrative Law Judge, the requested Hearing Assistant and the Respondent's attorney and witnesses were present at the hearing location at 2:00 p.m. on June 25, 2002, but Petitioner failed to appear for the contested case hearing.

4. The undersigned Administrative Law Judge allowed over an hour and a half to permit Petitioner time to appear for the contested case hearing. The Petitioner failed to appear at the contested case hearing and no representative for the Petitioner appeared. Further no communication from Petitioner was made to explain her absence.

5. The Petitioner has engaged in a failure to prosecute her claims and his contested case by failing to advance her action toward its conclusion. The Petitioner has manifested an intention to thwart the progress of this contested case by her failure to appear for hearing after official notice.

6. The Undersigned has considered actions less drastic for disposing of this contested case and determines that less drastic actions will not suffice. The lack of any response whatsoever to the Office of Administrative Hearings prohibits even an examination by the ALJ of excusable neglect by Petitioner. Therefore, no less drastic action than disposing of this case by default and finding on behalf of the Respondent would be effective in serving the interests of justice.

PROPOSED CONCLUSION OF LAW

Disposition of this case by default in accordance with N.C. GEN. STAT. § 150B-41 and a granting of the Petition favorable to the Respondent is proper and lawful because Petitioner after being properly notified of the contested case hearing in this matter, failed to appear at such hearing, offering no explanation for her absence.

PROPOSAL FOR DECISION

NOW, THEREFORE, based on the foregoing, the Undersigned hereby finds proper authoritative support of the Conclusion of Law noted above. It is hereby proposed that this contested case be granted in favor of Respondent and that Respondent’s denial of Petitioner’s application was proper and lawful.

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 any 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 12th day of July, 2002.

______

Augustus B. Elkins II

Administrative Law Judge

3