NORTH CAROLINA
WAKECOUNTY
______
FREDERICK CHARLES NEWINGHAM
PETITIONER,
V.
NORTH CAROLINA PRIVATE PROTECTIVE SERVICE BOARD,
RESPONDENT
______/ ))))))))))) / IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
09 DOJ 1103
PROPOSAL FOR DECISION

On May 25, 2010, Administrative Law Judge Melissa Owens Lassiter heard this contested case in Raleigh, North Carolina. On July 15, 2010, pursuant to the undersigned’s request, Respondent filed a proposed Proposal for Decision with the Office of Administrative Hearings.

APPEARANCES

For Petitioner:Frederick Charles Newingham, Pro se

P.O. Box 793

Maysville, NC28555

For Respondent:Jeffrey D McKinney

Bailey & Dixon, LLP

P.O. Box 1351

Raleigh, North Carolina27602-1351

ISSUES

Whether grounds exist for Respondent to deny Petitioner’s application for private protective services permit based on its previous denial of Petitioner’s application under N.C. Gen. Stat. § 74C-1 et seq., and for the grounds of lack of good moral character and temperate habits due to multiple convictions of Contributing to the Delinquency of a Juvenile, a conviction for Driving While Impaired, and a conviction for Second Degree Trespass?

OFFICIAL NOTICE TAKEN OF STATUTES AND RULES

N.C. Gen. Stat. §§ 74C-2; 74C-5; 74C-8; 74C-12; 12 NCAC 11 § .0300

EXHIBITS ADMITTED INTO EVIDENCE

For Petitioner:None

For Respondent:1 - 6

WITNESSES

For Petitioner – Petitioner

For Respondent – Anthony Bonapart, Deputy Director

FINDINGS OF FACT

  1. Pursuant to N.C. Gen. Stat. § 74C-1 et seq., Respondent Board is established, and is charged with the duty of licensing and registering individuals engaged in the armed and unarmed guard business.
  1. On August 14, 2009, Petitioner applied to Respondent Board for a renewed unarmed guard registration permit. (Respondent’s Exhibit A)
  1. On Respondent’s Exhibit A, Petitioner answered “yes” to the following questions: “Have you ever been convicted of any crime (Felony or Misdemeanor)?”, “Been Paroled or Been on Probation?”
  1. According to Anthony Bonapart, Deputy Director for Respondent, a criminal background check is conducted on each applicant. Petitioner also submitted a criminal background report with his application to Respondent.
  1. A Criminal Record Check from Onslow County, North Carolina revealed the following criminal convictions or charges for Petitioner:

a.Misdemeanor Driving While Impaired dated November 16, 2004,

b.Three Misdemeanor Convictions for Contributing to the Delinquency of a Juvenile dated January 16, 1996.

  1. During the course of its background investigation of Petitioner,Respondent discovered that Petitioner had an additional conviction for Second Degree Trespass dated May 1, 2000.
  1. By letter dated November 25, 2009, Respondent denied Petitioner’s application for registration for cause based on Petitioner’s four criminal convictions. (Resp Exh B)
  1. At the contested case hearing, Petitioner explained that in 1998, he returned from serving overseas in the US Marines, and visited Staff Sgt. Ricky Sawyers. Petitioner was charged with Contributing to the Delinquency of three Juvenilesafter he babysat three minor children for Sawyers, and Sawyers alleged that Petitioner made vulgar comments, in front of those kids, about the number of women Petitioner had.At hearing, Petitioner did not provide any other information about the substance of those allegations.

a.Petitioner thought Sawyers was a good friend of his, but later learned that he misjudged Sawyers, and learned that Sawyers was not a good role model.

b.In criminal court for these charges, Petitioner’s lawyer was late for court, and thus, Petitioner did not get a chance to present evidence for his case. Petitioner thought his attorney did not appeal his criminal convictions, because the attorney thought an appeal would hurt Petitioner’s military status. Within one week of his convictions, Petitioner was deployed to California to further serve in the military.

  1. Petitioner was charged with Driving While Impairedon November 16, 2004, after he had been drinking on Mother’s Day, and was driving home from the beach.
  1. Petitioner explained that on May 1, 2000, he was charged with Second Degree Trespass charge after he and his wife had been fighting, his wife went to a friend’s house, and Petitioner went onto the property of that friendto speak with his wife. Petitioner pled guilty to that charge.
  1. On December 27, 1999, Petitioner was honorably discharged from the military.
  1. Petitioner stated that his troubles came as a result of getting involved with the wrong people, and he has been clean since 2004.

CONCLUSIONS OF LAW

1.Pursuant to N.C. Gen. Stat. § 74C-12(25), Respondent Board may refuse to issue an unarmed guard registration permit for lack of good moral character or temperate habits.

2.In this case, Respondent Board presented sufficient evidence that Petitioner lacked good moral character or temperate habits, through Petitioner’s criminal record, to hold a renewed unarmed guard permit.

3.Petitioner has failed to rebut the presumption that he lacks good moral character to hold a renewed unarmed guard permit.

PROPOSAL FOR DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned proposes that Respondent Board UPHOLD its initial decision to deny Petitioner’s application for a renewed unarmed registration permit.

NOTICE AND ORDER

The N.C. Private Protective Services Board will make the Final Agency Decision in this contested case. That agency is required to give each party an opportunity to file exceptions to this proposed decision and to present written arguments to those in the agency who will make the final decision. N.C. Gen. Stat. § 150B-36(a). Pursuant to N.C. Gen. Stat. § 150B-36(b), Respondent is required to serve a copy of the Final Decision on all parties, and serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714.

This the 23rd day of July, 2010

______

Melissa Owens Lassiter

Administrative Law Judge

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