NCPPSB/Clark/Proposed Order (00000029).DOC



NORTH CAROLINA

WAKE COUNTY

THOMAS BERNARD CLARK

Petitioner,

v.

NORTH CAROLINA PRIVATE PROTECTIVE SERVICE BOARD,

Respondent. |

)))))))))) |IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

09 DOJ 1009

PROPOSAL FOR DECISION

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On May 25, 2010, Administrative Law Judge Melissa Owens Lassiter heard this contested case in Raleigh, North Carolina. On July 16, 2010, Respondent filed a proposed Proposal for Decision with the Office of Administrative Hearings.

APPEARANCES

Petitioner appeared Pro se.

Respondent was represented by Denise Stanford, Bailey & Dixon, LLP

P.O. Box 1351, Raleigh, North Carolina 27602-1351

ISSUES

Whether grounds exist for Respondent to deny Petitioner’s application for private protective services permit based on Petitioner’s lack of good moral character and temperate habits based on a conviction of Felony Incest?

APPLICABLE STATUTES AND RULES

Official notice is taken of N.C. Gen. Stat. §§ 74C-2; 74C-5; 74C-8; 74C-12; 12 NCAC 11 § .0300

EXHIBITS ADMITTED INTO EVIDENCE

Petitioner: None

Respondent: 1 – 4

WITNESSES

Respondent: Anthony Bonapart, Deputy Director

Petitioner: Petitioner, Charlotte Clark Turpin, and Louis Martin

FINDINGS OF FACT

Respondent Board is established pursuant to N.C. Gen. Stat. § 74C-1, et seq., and is charged with the duty of licensing and registering individuals engaged in the armed and unarmed guard business.

In February 2009, Petitioner applied to Respondent Board for an unarmed guard registration permit by submitting an application dated February 14, 2009. (Respondent’s Exhibit 2) On his application, Petitioner answered “no” to the question: “Have you ever pled guilty or been convicted of any crime (Felony or Misdemeanor)?”

Respondent conducts a criminal background check for each applicant. In this case, Petitioner submitted a criminal background report with his application.

4. The Criminal Record Search for Petitioner from Pasquotank County, North Carolina showed that on June 8, 1993, Petitioner was convicted of Felony Incest. Attorney James A Beales, Jr represented Petitioner. (Respondent Exhibit 3) The Superior Court Judge suspended Petitioner’s sentence, and sentenced Petitioner to 5 years of supervised probation. (Respondent Exhibit 3) The Judgment also imposed the special condition that Petitioner:

[N]ot have any contact with this daughter, Fortina Clark, during period of probation and that he make arrangements with the Department of Social Services for the support of his child, Fortina Clark. That he undergo therapy and treatment for his sexual deviation. A copy of this order is to be sent to Wake Co. Dept. of Social Services.

(See Respondent Exhibit 3)

By letter dated October 9, 2009, Respondent notified Petitioner that it was denying his application for an unarmed guard permit “For Cause” based on Petitioner’s Felony Incest conviction. (Respondent Exhibit 4)

At hearing, Petitioner denied that he pled guilty to the Felony Incest conviction, but acknowledged that the Judge told him he would be on probation, imposed a fine, and required Petitioner undergo counseling sessions. Petitioner explained that he did not know about a plea arrangement, and that no trial was held. However, he admitted he agreed to take probation, and pay a fine. Petitioner explained that his daughter told a school counselor that he had touched her inappropriately. The school counselor told DSS, who then took over.

7. Brenda Clark has been married to Petitioner for 35 years. She described her husband as a great person who gets along with everyone. Grandkids spend time around her husband. She wants Petitioner to get a job, because she is the only person in their home who is employed. Petitioner’s daughter was 9 years old when she accused Petitioner of inappropriately touching her. After his conviction, Petitioner moved away from his daughter, and did not have any contact with his daughter for 5 years.

8. Petitioner’s sister, Charlotte Clark Turpin, opined that Petitioner is a good person, and deserves grace and mercy. She confirmed that Petitioner stayed away for 5 years, that the counseling helped, and that Petitioner needs to go back to work.

9. Louis Martin is Petitioner’s best friend, and has known Petitioner for 30 years. He and Petitioner are like brothers. Petitioner is a good person who appears to be a loving father and husband, and who has been respectful man over the years. However, Petitioner needs to go back to work. Martin opined that he did not understand the [incest] case, and that Petitioner’s daughter was very young at the time. He was unaware if Petitioner pled guilty, and has not seen the records from that case.

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. Respondent has the burden of proving that Petitioner lacks good moral character or temperate habits. Petitioner may rebut Respondent’s showing.

3. Respondent Board presented evidence that Petitioner lacked good moral character or temperate habits through Petitioner’s criminal record. Petitioner failed to rebut the presumption that he lacks good moral character.

PROPOSAL FOR DECISION

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

NOTICE

The Private Protective Services Board will make the final decision in this contested case. That agency 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).

ORDER

It is hereby ordered that the agency serve a copy of its Final Decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714, in accordance with G.S. 150B-36(b).

This the 23rd day of July 2010

________________________________

Melissa Owens Lassiter

Administrative Law Judge

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