North Carolina



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 10 DOJ 5356

| |) | |

|Aaron R Taylor |)) | |

|Petitioner |))))| |

| |) | |

|vs. |) |PROPOSAL FOR DECISION |

| | | |

|Company Police Program | | |

|Respondent | | |

In accordance with North Carolina General Statute § 150B-23, Petitioner requested the designation of an administrative law judge to preside at an Article 3, North Carolina General Statute § 150B, contested case hearing of this matter. Based upon the Petitioner’s request, Administrative Law Judge Donald Overby heard this contested case in Raleigh, North Carolina on March 24, 2011.

APPEARANCES

Petitioner: Aaron Russell Taylor

c/o Andrew A. Vanore, III

Brown, Crump, Vanore & Tierney, L.L.P.

Post Office Box 1729

Raleigh, North Carolina 27602

Respondent: Ralf Haskell

Special Deputy Attorney General (retired)

Law Enforcement Liaison Section

North Carolina Department of Justice

9001 Mail Service Center

Raleigh, NC 27699-9001

ISSUE

Is the Respondent’s proposed denial of Petitioner’s company police officer commission, for the commission of felony offenses and for the lack of good moral character supported by substantial evidence?

RULES AT ISSUE

12 NCAC 02I.0212(a)(1)

12 NCAC 02I.0212(c)(1)

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents and exhibits received and admitted 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 all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to 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. Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, both parties received Notice of Hearing, and Petitioner received the notification of probable cause to deny company police commission letter mailed by the Respondent on August 6, 2010. (Respondent’s Exhibit 6).

2. Respondent has the authority granted under Chapter 74E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 21, to commission company police officers and to revoke, suspend or deny such certification.

3. Petitioner submitted an Application for Company Police Officer Commission on March 26, 2010. (Respondent’s Exhibit 1).

4. A Mandated Background Investigation Form (Form F-8) was completed by J. D. Parks, Chief of the Crabtree Valley Police Department, on March 19, 2010. This form was submitted as part of Petitioner’s Application. In response to the Applicant Interview Questions portion of the Mandated Background Investigation Form, Petitioner admitted to the following:

a. Under age drinking; stealing; steroid use; smoking marijuana; and, driving while impaired;

b. Breaking into a house at 14 to 15 years of age and taking jewelry from one of the bedrooms;

c. Vandalizing a truck at age 19 or 20 which he and a friend originally had planned to break into;

d. Purchase of marijuana approximately five times for his own personal use; and, sale of marijuana to friends no more than two times and only for his actual cost;

e. Use of the prescription drugs Valium, Percocet and Adavan for recreational use and without a valid prescription or under a doctor's supervision.

(Respondent's Exhibit 4)

5. Petitioner submitted to a polygraph examination on April 7, 2010, as part of the application process. During his pre-test interview with Special Agent T. M. Phillips, Petitioner admitted to the following:

a. He stole numerous items from Howell Theatre during his employment including extra uniform shirts; trash bags; cleaning chemicals; loose change from concession drawers totaling approximately $50.00; and, $10.00 after accidentally taking the money home in his pocket and spending it. Petitioner stated that he later repaid the money;

b. When he was approximately 20 years of age he helped a friend attempt to break into a parked vehicle to steal money from inside the vehicle. Petitioner used a hammer to strike the window of the vehicle but was unable to break it.

c. He broke into the home of a friend's neighbor in Clayton when he was 13 or 14 years of age. Petitioner crawled through the window of the home and stole jewelry, including two or three necklaces and a bracelet, with the intent of selling the items. Petitioner stated that he later threw the jewelry away and has since confessed to the victim of the crime and offered to pay them back for their loss;

d. He shoplifted caps for a cap gun when he was 7 or 8 years old. Petitioner also shoplifted pens from Food Lion when he was 13 or 14 years old; stole hunting clothing between five and ten times from Wal-Mart while in his mid to late teens; and stole a silver necklace that belonged to his aunt and uncle when he was young;

e. He estimated that he used marijuana approximately fifty times. Petitioner stated he first used marijuana at the age of 15, and that he was 20 or 21 years old when he last used it. Petitioner stated that on approximately five occasions he purchased marijuana or gave money to another person to purchase it while he was present. When asked by Special Agent Phillips if he ever sold marijuana, Petitioner initially responded “Yes.” Petitioner later stated he could not recall a specific occasion when he sold marijuana, but that he possibly gave marijuana to a friend to get rid of it and may have been paid between $5.00 and $10.00 on two or three separate occasions;

f. He has operated a vehicle after consuming between six and twelve beers on approximately ten occasions between the ages of 19 and 22. Petitioner stated that he last drove a vehicle while under the influence some time prior to May 2009. Petitioner stated that he believes he can consume approximately three beers and remain sober;

g. He attempted to grow one marijuana plant at his home when he was 16 or 17 years old;

h. He used steroids when he was 17 or 18 years old over a period of approximately one and one-half months. Petitioner stated that a partial bottle was given to him and a friend with whom he shared the drug. Petitioner further stated that he and the friend purchased a second full bottle. Petitioner contributed $50.00 or $60.00 toward the purchase of the second bottle of steroids.

(Respondent's Exhibit 3)

6. Petitioner submitted a handwritten statement dated April 12, 2010, to the Department of Justice, Company Police Program, in response to a request from Marvin Clark, Company Police Administrator, for additional information regarding Mr. Clark's background investigation for Petitioner's Application. In his letter, Petitioner admitted to the following:

a In 1999-2000 (spring or early fall), when he was approximately 14 years old, he entered an unlocked kitchen window of a home in Clayton; went into the master bedroom; and, took two necklaces and possibly a bracelet and two rings. He later disposed of the jewelry because he was afraid of getting into trouble.

b. He has used marijuana approximately fifty times; he has purchased marijuana about five times; he has given marijuana away without receiving anything in return; he does not recall ever selling marijuana; and, his history with marijuana was mostly social.

c. He used steroids when he was approximately 17 years old. He was given a vial by a friend containing approximately 8 ml. to try out, which he used every three days for about two weeks. He bought more from another individual, which he continued to use for three to four more weeks.

d. When he was approximately 20 years old he went catfishing with a friend at a river dock in Smithfield. After fishing they got into his friend's car. When they started to leave, his friend noticed a truck that had been parked near the river. His friend got out of his car and went over to the truck. His friend saw money and other items inside the truck he wanted and began to strike the front passenger window of the vehicle with a hammer. After three unsuccessful attempts by his friend to break the truck's window, Petitioner got out of the car; went over to the truck; took the hammer from his friend; and, struck the window two more times. The window did not break. Petitioner and his friend decided at that point the window could not be compromised and left;

e. When he was about 21 years old a friend of his stopped by his house and noticed that Petitioner's car was missing some hubcaps. The friend, who owed Petitioner about $40.00, told Petitioner that he knew where he could find hubcaps for Petitioner's car. Petitioner told his friend that if he got him a set of hubcaps he would consider the debt paid. About a week later Petitioner's friend came over to Petitioner's house with four hubcaps that fit Petitioner's car. Petitioner asked his friend where he got the hubcaps. Petitioner's friend replied that they had been stolen off a similar car. Petitioner admitted that he had accepted stolen hubcaps;

f. Toward the beginning of 2009 a friend of Petitioner who was in the Marine Corps came home from base and brought about five “Pentagon” flashlights. Petitioner's friend gave him a flashlight and asked if he would sell the others for him. Petitioner's friend told him that he went into the supply room on base and took the flashlights. Petitioner's friend further stated that only two of his friends knew about it. Petitioner accepted the flashlights and sold two or three of them for his friend;

g. Petitioner was employed at Howell Movie Theatre from about January 2006 through December 2009. During the course of his employment with Howell he took property from the theatre that did not belong to him, including paper towels; trash bags; candy; extra work shirts; pens and pencils; rubber bands; movie posters; and money.

(Respondent's Exhibit 5)

7. Petitioner, as a part of his original Application and by way of further explanation in his submission of April 12, 2010, candidly admitted to an incident that occurred when he was approximately 14 years old, where he and a friend entered a neighbor’s house when no one was home and took several pieces of jewelry. The neighbor was Geraldine A. Blinson. No police report was made and no charges were filed.

8. Petitioner contacted Ms. Blinson on or about April 2, 2010, to confess his actions and offer to reimburse Ms. Blinson. Ms. Blinson refused. Marvin Clark interviewed Ms. Blinson by telephone as a part of the investigative process. Ms. Blinson supported Mr. Taylor’s Application into the Company Police Program and advised Mr. Clark that if she needed a police officer, she would want Mr. Taylor to be the person who would respond. Ms. Blinson supplied a statement to Respondent’s counsel on December 17, 2010, in support of Mr. Taylor’s Application into the Company Police Program. (Respondent’s Exhibit 11).

9. Petitioner freely disclosed and did not attempt to hide the facts and circumstances surrounding this incident involving Ms. Blinson.

10. As a part of Petitioner’s Application and subsequent submission of April 12, 2010, Petitioner disclosed that while working for Mr. Mickey Buffalo at Howell Movie Theater between January, 2006 and December, 2009, that he took property from the theater that did not belong to him, including several instances where he left the theater with money in an amount less than $100.00. (Respondent’s Exhibits 4 and 6).

11. In early 2010, Petitioner contacted Mr. Buffalo and advised Mr. Buffalo what he had done. Petitioner offered to repay Mr. Buffalo, and he refused.

12. Mr. Clark, as a part of his investigation, contacted Mr. Buffalo by telephone. Like Ms. Blinson, Mr. Buffalo was highly supportive of Mr. Taylor’s application in to the Company Police Program. Mr. Buffalo advised Mr. Clark that the things Petitioner had done were things that Mr. Buffalo and other employees have done. They did not affect Mr. Buffalo’s opinion as to Mr. Taylor’s qualifications or good moral character. (Petitioner’s Exhibit 1).

13. As a part of Petitioner’s Application and submission of April 12, 2010, Petitioner openly and freely disclosed various conduct in his past which would bear on his moral character, including the following:

a. the use of marijuana;

b. attempting to grow a marijuana plant at his home when he was a teenager;

c. the use of prescription drugs while consuming alcohol;

d. the receipt of property in payment for a debt when that property may have been stolen;

e. petitioner was with another individual when petitioner was approximately 20 years old, when there was an attempt to break the glass of the window of a motor vehicle, in an effort to gain entry; and

f. the operation of a motor vehicle after consuming alcohol.

14. Based upon his investigation, Marvin Clark issued a letter dated August 6, 2010, to Petitioner, denying Petitioner’s Application for Company Police Officer Commission submitted to Crabtree Valley Mall Special Police. (Respondent’s Exhibit 6). The basis of the denial was that Petitioner had committed felony offenses involving Ms. Blinson and Mr. Buffalo. Additionally, Mr. Clark denied the Application for the lack of good moral character.

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

1. The Office of Administrative Hearings has personal and subject matter jurisdiction over this contested case. The parties received proper notice of the hearing in this matter. To the extent that the Findings of Fact contain Conclusions of Law, or that the Conclusions of Law are Findings of Fact, they should be so considered without regard to the given labels.

2. Respondent has the authority granted under Chapter 74E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 21, to commission company police officers and to revoke, suspend or deny such certification.

3. 12 NCAC 02I.0212 states in part as follows:

(a) A company police commission shall be revoked or denied upon a finding that the officer has committed or been convicted of:

(1) any felony unless granted an unconditional pardon of innocence; or

(2) any crime for which the authorized punishment could have been imprisonment for more than two years.

(b) A company police commission shall be revoked or denied upon a finding that:

(1) the officer lacks good moral character as referred to in G.S. 17C-10(c) and 12 NCAC 02I.0202(a)(9);

4. 12 NCAC 021I.0213(a) states that:

PERIOD OF SUSPENSION, REVOCATION OR DENIAL.

(a) When the Attorney General, or his designee, suspends or denies the commission of a company police officer, the period of sanction shall not be less than three years. However, the Attorney General, or his designee, may either reduce or suspend the period of sanction under 12 NCAC 2I.0212(b) or substitute a period of probation in lieu of suspension of a commission following an administrative hearing, where the cause of sanction is:

(1) commission or conviction of a crime other than those listed in Paragraph (a) of Rule .0212;

(2) refusal to submit to the application or lateral transferee drug screen required by 12 NCAC 2I.0202(7);

(3) production of a positive result on a drug screen reported to the Company Police Administrator where the positive result cannot be explained to the Company Police Administrator’s satisfaction;

(4) material misrepresentation of any information required for company police commissioning.

(5) obtaining, attempting to obtain, aiding another person to obtain, or aiding another person attempting to obtain credit, training or commissioning as a company police officer by any means of false pretense, deception, defraudation, misrepresentation or cheating; or

(6) failure to make either of the notifications as required by 12 NCAC2I.0202 (8).

(b) When the Attorney General, or his designee, suspends or denies the commission of a company police officer, the period of sanction shall be continued so long as the stated deficiency, infraction, or impairment continues to exist, where the cause of sanction is:

(1) failure to meet or satisfy all basic training requirements;

(2) failure to meet or maintain the minimum standards of employment specified in 12 NCAC 2I.0202(8);

(3) discharge from a criminal justice agency for impairment of physical or mental capabilities; or

(4) failure to meet the in-service training requirements as prescribed by the North Carolina Criminal Justice Education and Training Standards commission.

5. The Petitioner has the burden of proof. As to the incident involving Ms. Blinson, the Undersigned finds that any offense committed while the Petitioner was under the age of 16 would be considered a delinquent act and not a felony. Accordingly, the Undersigned finds that the incident involving Ms. Blinson should not have been considered by the Department of Justice as a felony under 12 NCAC 02I.0212(a)(1).

6. With respect to the incidents involving the Howell Movie Theater, the Undersigned finds that such taking should not be considered a felony, as the employer acknowledged doing the same thing and had condoned the practices in the past. Accordingly, the Undersigned finds that the incidents involving the Howell Movie Theater should not have been considered by the Department of Justice as a felony under 12 NCAC 02I.0212(a)(1).

7. With respect to Petitioner’s moral character, Petitioner has failed to show, by a preponderance of the evidence, that Respondent improperly proposed to deny his Company Police Officer Commission.

8. The Respondent’s proposed denial of the Petitioner’s Company Police Officer Commission is supported by substantial evidence, as it relates to Petitioner’s moral character.

9. Petitioner has presented substantial evidence that rebuts the presumption that he currently lacks good moral character and has demonstrated the likelihood that he will have good moral character in the near future.

PROPOSAL FOR DECISION

NOW, THEREFORE, based upon the foregoing Findings of Fact and Conclusions of Law, the Undersigned recommends that the Respondent deny the Petitioner’s company police officer commission for a period of three years. The Undersigned recommends a stay of all but six months of the active suspension, during which time Petitioner will be placed on probation on the condition that the Petitioner not violate any laws of North Carolina or any other state’s laws (other than infractions and minor traffic offenses) and not violate this Commission’s rules or the rules of any other regulatory agency. The six month active suspension will begin upon the Company Police Administrator’s acceptance of this proposed Decision.

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 and to present written arguments to the agency that will make the final decision or order. N.C. Gen. Stat. § 150B-36(a). The agency is required by N.C. Gen. Stat. § 150B-36(b3) to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorney of record and to the Office of Administrative Hearings.

The agency that will make the final decision in this contested case is the North Carolina Department of Justice.

IT IS SO ORDERED.

This the _____ day of _________________, 2011.

____________________________________

DONALD OVERBY

ADMINISTRATIVE LAW JUDGE

A copy of the foregoing was mailed to:

Andrew A Vanore III

Brown Crump Vanore & Tierney LLP

PO Box 1729

Raleigh, NC 27602

ATTORNEY FOR PETITIONER

Ralf F. Haskell

Special Deputy Attorney General

NC Department of Justice

Law Enforcement Liaison Section

9001 Mail Service Center

Raleigh, NC 27699-9001

ATTORNEY FOR RESPONDENT

This the 27th day of May, 2011.

____________________________________

Office of Administrative Hearings

6714 Mail Service Center

Raleigh, NC 27699-6714

(919) 431 3000

Fax: (919) 431-3100

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