Proposed Proposal for Decision/Buckner/ASLB/OAH (00321611)

STATE OF NORTH CAROLINAIN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 11 DOJ 8429

GLEN THOMAS BUCKNER,)

)

Petitioner,)

v.)PROPOSAL FOR DECISION

N.C. ALARM SYSTEMS LICENSING BOARD,)

)

Respondent.)

______)

This contested case was heard before Administrative Law Judge Donald W. Overby on August 23, 2011, in Raleigh, North Carolina.

APPEARANCES

Petitioner appeared pro se.

Respondent was represented by attorney M. Denise Stanford.

WITNESSES

Respondent – Alarm Systems Licensing Board Deputy Director Anthony Bonaparte testified for Respondent Board.

Petitioner – Charles Smith, the owner of AAA Security and Electronics testified on behalf of Petitioner. Petitioner testified on his own behalf.

ISSUE

Whether grounds exist for Respondent to deny Petitioner’s application for alarm registration based on Petitioner’s lack of good moral character or temperate habits.

STATUTES AND RULES APPLICABLE TO THE CONTESTED CASE

Official notice is taken of the following statutes and rules applicable to this case:

N.C.G.S. §§ 74D-2; 74D-6; 74D-8; 74D-10; 12 NCAC 11 .0300.

FINDINGS OF FACT

Respondent Board is established pursuant to N.C.G.S. 74D-4 etseq., and is charged with the duty of licensing and registering individuals engaged in the alarm systems business.

By application dated August 4, 2010, Petitioner applied to Respondent Board for an alarm registration. (Respondent’s Exhibit 2). On Respondent’s Exhibit 2, Petitioner answered “yes” to the following question: “Have you ever pled guilty or been convicted of any crime (Felony or Misdemeanor)?”

A criminal record search from GranvilleCounty revealed that Petitioner had been convicted on May 22, 1995 of Felony Attempted Second Degree Rape, 94 CRS 005195. (Respondent’s Exhibit 3). The date of offense was July 2, 1993.

By letter dated January 20, 2011, Respondent denied Petitioner’s alarm registration “For Cause” based on the above criminal conviction. (Respondent’s Exhibit 4).

At the hearing, Deputy Director Bonapart testified that he interviewed Petitioner about the conviction. Petitioner told him that at the time of the offense, Petitioner had just turned 18 and was about to join or was already enlisted in the United States Air Force. The victim in this case was his 16 year old stepsister. The girl’s grandmother found out about the situation and pressed charges against him. Petitioner took a plea deal and pled guilty to a reduced charge of attempted second degree rape. Petitioner was initially given a suspended sentence with supervised probation, but asked to have the sentence activated for a period of incarceration.

He was listed as a sex offender and received a general discharge from the U.S. Air Force. Petitioner is eligible to come off of the registry in April 2011.

There is no evidence of Petitioner even being charged with a misdemeanor or felony either prior to or subsequent to the date of offense in 1993—eighteen years ago.

Petitioner testified that Mr. Bonapart’s testimony was accurate and that he made a mistake years ago.

Charles Smith, owner of AAA Security and Electronics, testified that Petitioner has worked for him for a year. Petitioner has always been honest with him about the conviction. Petitioner has learned from his mistake, and his record has been clean since the conviction. Petitioner has a great attitude and a good work ethic, his work is exemplary, and Mr. Smith has received nothing but compliments about the Petitioner.

Petitioner presented a notarized statement of support from his step-mother, Sandra Buckner, stating that he had not been in trouble in the last 10 or 11 years. (Petitioner’s Exhibit 1). Ms. Buckner is the biological mother of the victim in the case for which he was convicted.

Petitioner presented a notarized statement of support from Bobby Martin, one of his computer customers, attesting to his strong and stable character. (Petitioner’s Exhibit 2).

Petitioner presented a notarized statement of support from his pastor, Reverend M. Bryan Pierce, attesting to his reliability and character. (Petitioner’s Exhibit 3).

CONCLUSIONS OF LAW

Pursuant to N.C. Gen. Stat. §74D-6(3), Respondent Board may refuse to grant a registration for lack of good moral character or temperate habits.

Conviction of a crime involving an act of violence or of any offense involving moral turpitude is prima facie evidence that the applicant does not have good moral character or temperate habits under N.C. Gen. Stat. §74D-6(3).

Respondent Board presented evidence of Petitioner’s lack of good moral character and temperate habits through the criminal conviction. There is no question that Petitioner exercised lack of judgment and lacked good moral character at the time of the offense in July 1993.

Petitioner has the burden of proving that he has good moral character or temperate habits. Petitioner presented sufficient evidence to explain the conviction and to rebut the evidence of lack of good moral character and temperate habits. There has been an intervening eighteen years since the offense and Petitioner has had no other criminal convictions of any kind. There is no other evidence of lack of good moral character other than the single offense. Petitioner has shown support from members of the community including the biological mother of the victim.

Based on the foregoing, the undersigned makes the following:

PROPOSAL FOR DECISION

The North Carolina Alarm Systems Licensing 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 alarm registration.

ORDER

It is hereby ordered that the agency serve a copy of the final decision on the Office of

Administrative Hearings, 6714 MailServiceCenter, Raleigh, NC 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).

This the 9th day of September, 2011.

______

Donald W. Overby

Administrative Law Judge