STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA

COUNTY OF AVERY

JASON TIMOTHY WINTERS,

Petitioner,

v.

NORTH CAROLINA SHERIFFS’

EDUCATION AND TRAINING

STANDARDS COMMISSION,

Respondent.

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IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

11 DOJ 4825

DECISION

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THIS MATTER was commenced by a request filed on 6 April 2011, in the Office of Administrative Hearings. Notice of Contested Case and Assignment and Order for Prehearing Statements were filed on 29 April 2011. A teleconference was held by the Undersigned with the parties in which the parties requested that the Administrative Law Judge determine this matter on the stipulated facts as stated below. Respondent’s Exhibits 1-19 were accepted into evidence by stipulation of the parties.

APPEARANCES

Petitioner: Pro se

Respondent: Catherine F. Jordan, Assistant Attorney General

ISSUE

Does substantial evidence exist to deny Petitioner’s application for certification as a deputy sheriff with the Avery County Sheriff’s Office?

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 Justice Officer Certification letter mailed by the Respondent on 1 April 2011.

2. The North Carolina Sheriffs’ Education and Training Standards Commission (hereinafter “the Commission”) has the authority granted under Chapter 17E of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 10B, to certify justice officers and to revoke, suspend, or deny such certification.

3. Pursuant to 12 NCAC 10B .0204(d)(2), the Commission may revoke, suspend, or deny the certification of a justice officer when the Commission finds that the certified officer has committed or been convicted of:

(2) a crime or unlawful act defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor within the five-year period prior to the date of appointment.

4. On 26 May 2010, the Avery County Sheriff’s Office submitted a Report of Appointment Form F-4 on behalf of Petitioner to the Commission for Petitioner to be certified as deputy sheriff. (Respondent’s Exhibit 1)

5. On 26 May 2010, Petitioner submitted a Personal History Statement Form F-3 to the Commission. (Respondent’s Exhibit 2)

6. Question 42 on Petitioner’s Personal History Statement asks: “Have you ever been arrested by a law enforcement officer or otherwise charged with a criminal offense? (As used in this question, the term “charged” includes being issued a citation or criminal summons.) If YES, complete the following and provide documentation of each offense listed.” (Respondent’s Exhibit 2) Petitioner answered “Yes” to Question 42 and listed the following charges:

Offense Charged: Carrying Concealed weapon

Law Enforcement Agency: ALE

Date: 02/13/2010

Disposition: Guilty - Prayer for Judgment

Offense Charged: Weapons on educational property

Law Enforcement Agency: ALE

Date: 02/13/2010

Disposition: Dismissed

Offense Charged: Unsealed wine/liquor in passenger area

Law Enforcement Agency: ALE

Date: 02/13/2010

Disposition: Dismissed

Offense Charged: Possession of beer/wine on educational property

Law Enforcement Agency: ALE

Date: 02/13/2010

Disposition: Dismissed

Offense Charged: Speeding

Law Enforcement Agency: NCSHP

Date: 06/10/2010

Disposition: Dismissed

Offense Charged: Possession of beer/wine on

unauthorized premises

Law Enforcement Agency: ALE

Date: 02/13/2010

Disposition:

7. A criminal records search indicates that on 13 February 2010, Petitioner was charged with unsealed wine/liquor in the passenger area, possession/consumption of beer/wine on unauthorized premises, carrying a concealed weapon, and weapons on educational property. (Respondent’s Exhibits 3-6)

8. A North Carolina Uniform Citation form shows that around 12:10 a.m. on Saturday, 13 February 2010, Petitioner was charged with “carry concealed about the Defendant’s person while off the Defendant’s own premises a gun, a Glock 9 millimeter handgun (G.S. 14-269(A))” and “possess a Glock 9 millimeter handgun, on educational property, Avery County High School. (G.S. 14-269.2).” (Respondent’s Exhibit 7)

a. ALE Officer Buchanan’s comments on Petitioner’s citation for carrying a concealed weapon and possessing a weapon on educational property states that “when I asked if he had a firearm in the vehicle, he admitted he did, he told me where it was, and gave me permission to retrieve it. It was under the center console where Megan Farthing was seated. Defendant checked .04 on the Alco Sensor. Defendant was spinning circles in the front parking lot of the high school prior to the stop and he had a left rear tail light out. Tim Winters, his dad, stated the gun belonged to him.” (Respondent’s Exhibit 7)

b. Petitioner’s citation stated that Petitioner pled guilty to carrying a concealed weapon, and that Petitioner’s judgment was “PJC Indefinite - Defendant has complied.” (Respondent’s Exhibit 7)

9. Another North Carolina Uniform Citation form shows that around 12:10 a.m. on Saturday, 13 February 2010, Petitioner was charged with “transport spirituous liquor in the passenger area of a motor vehicle in other than the manufacturer’s unopened original container. (G.S. 18B-401(A))” and “possess on the defendant’s person a malt beverage at Avery County High School, property owned or leased by the Avery County Board of Education, a local board of education, and used by that local board of education for school purposes. (G.S. 18B-301(F)(7)).” (Respondent’s Exhibit 8)

a. ALE Officer Buchanan’s comments on Petitioner’s citation for transporting spirituous liquor and possessing alcohol on school property stated that “defendant was observed driving a large black Dodge pickup in the parking lot of the high school spinning circles in the parking lot while several vehicles were parked in the lot. A snowstorm had cancelled the basketball game earlier in the evening and several cars were left. I stopped him at the intersection of High School Rd & N.C. 181. He had two mixed drinks in the front floorboard, red bull and vodka. He had a 750 ML bottle of Smirnoff open.” (Respondent’s Exhibit 8)

10. The District Attorney’s office dismissed Petitioner’s charges of unsealed wine/liquor in the passenger area, possession/consumption of beer/wine on unauthorized premises and weapons on educational property. Petitioner pled guilty to carrying a concealed weapon. (Respondent’s Exhibit 14-15)

11. On 21 February 2011, the Commission’s investigator, Mike McLaughlin, spoke with Petitioner about the events that occurred on 13 February 2010. (Respondent’s Exhibit 9) McLaughlin’s notes indicate the following:

[Petitioner] admitted to having the beers “with dinner.” He admitted that the firearm was in a console in the truck. The truck is registered and owned by his father as is the firearm. There is a point of clarification of who brought the vodka. At first [Petitioner] tells me what is in his statement that the girls brought the vodka and he brought the beer. I asked him if I found out any other information that would suggest he purchased the vodka would that information be wrong. There was a pause and he stated “let me get my story straight.” He stated he purchased the vodka in an ABC store in Johnson City Tennessee and he purchased the beer in a convenience store also in Johnson City Tennessee. He stated he purchased the alcohol because the two girls in the truck were “harassing him” to purchase the alcohol for their consumption. He stated he got tired of their harassment and purchased the alcohol. He stated he didn’t know what their intention with the alcohol was and he told them he could drop them off at their house to drink the alcohol but that would be “on them.”

12. On 5 February 2011, McLaughlin spoke with Agent Buchanan about the events that occurred on 13 February 2010. (Respondent’s Exhibit 10) McLaughlin’s notes indicate the following:

[Agent Buchanan] was in the high school area and saw the driver doing donuts in the parking lot around parked cars. He initiated the stop and discovered [Petitioner] with two females, one being the age of 17 and the other being the age of 19. . . . Agent Buchanan found [Petitioner] to be in possession of two “pony beers”, which are the smaller ten ounce beers. He conducted a breathalyzer on [Petitioner] and he blew a .04 so he was not charged with DUI.

. . . .

As he got everyone out of the vehicle, Agent Buchanan asked if there was any other alcohol in the car. One of the girls said no and the other girl said yes. He found two cups with liquid in them and he asked again if there was alcohol in the car and one of the girls reached in and pulled out a bottle of vodka. He was a little bit vague as to who was in the possession of the vodka. His recollection was that it was [Petitioner]’ s vodka and that he had purchased it for the girls . . . . Once he got everyone out of the car, he asked if there was a firearm in the car. [Petitioner] replied that there was and he went to retrieve it. Agent Buchanan stopped him and stated he would retrieve the firearm. There was a glock in the console. The glock was in the possession of [Petitioner]; however it was his father who had purchased the firearm (according to the ALE Agent) . . . . [Agent Buchanan] stated he did not charge for contributing to the delinquency of the two females because he had both of them blow on the alcohol sensor and neither one of them registered with any alcohol in their system.

13. On 15 February 2011, McLaughlin spoke with Amber Singleton about the events that occurred on 13 February 2010. (Respondent’s Exhibit 11) McLaughlin’s notes indicate the following:

[McLaughlin] asked if [Amber] brought the liquor to the vehicle. She stated she did not and that [Petitioner] had purchased the alcohol in Johnson City, Tennessee. [McLaughlin] asked if she was with him when he purchased the alcohol and she stated she was in the car when he purchased the fifth of vodka plus a six pack of beer for himself. . . . [Amber] stated she had not [consumed any alcohol] and referred to the breathalyzer that was conducted by the ALE agent as proof she hadn’t consumed any alcohol.

14. Petitioner’s father presented a statement that “[t]he gun that my son Jason Winters was charged for weapons on school property, a Glock serial # MBY850, is registered, bought and owned by me.” (Respondent’s Exhibit 12)

15. On 22 February 2011, McLaughlin spoke with Megan about the events that occurred on 13 February 2010. (Respondent’s Exhibit 13) McLaughlin’s notes indicate the following:

[Megan] stated that [Petitioner] had purchased [the vodka] at an alcohol store in Tennessee . . . . She stated it was everyone’s idea, but she and Amber had asked [Petitioner] to purchase it for them. [McLaughlin] asked her if they had anything to drink prior to the ALE agent stopping them and she said no. [McLaughlin] asked her if there was already mixed drinks in the cups and she confirmed that there were. [McLaughlin] asked her what the plan was to consume the alcohol. She stated that as they were riding around, they were going to drink the mixed drinks of vodka and red bull from the cups, but they had just not done so prior to being pulled over.

16. On 27 August 2010, Petitioner made the following statement (Respondent’s Exhibit 16):

At the time of the incident I was in Basic Law Enforcement Training at Mayland Community College. I regret while in this training I made some terrible decisions and wish I could take them back. I was with a couple of girls I met, and it was and had been snowing. We wanted a safe place to spin my truck around in the snow and I knew no one was at the high school. I went into the parking lot and spun around in the snow and an ALE officer was sitting across the road and saw me and pulled me over. I had drunk a couple of “pony beers” and I had alcohol on my breath but was not under the influence. The ALE officer charged me with Possession of Beer/Wine on Education Property, and Open container. The Open Container was a bottle of Vodka which belonged to the girls which were with me...I gave the ALE officer permission to search my vehicle, which is registered to my father who is a deputy sheriff. My father had his gun in the console of the truck and the ALE officer charged me with Carrying a Concealed weapon and having a Weapon on School Property.

All the charges were dismissed by the District Attorney except carrying a concealed weapon, which I received a PJC. I know I was wrong in letting the girls into my truck with an open bottle of alcohol, and should not have been spinning in the parking lot, but I knew the ball game had been cancelled due to weather and though there were cars in the lot I came no where near them. I knew I was not above the legal limit to drive as I had just had a couple of small beers. I knew my father kept his firearm in the truck at times and had seen it earlier, but had no opportunity to take it home before I got stopped.

I know this is not the way to start out a career in law enforcement, but I can now tell others of how easy it is to have a mistake potentially ruin your chosen career. This incident has caused me to be more aware of my circumstances and the fact I am and should be held to a higher standard. Sheriff Frye of Avery County is still willing to hold my certification because he knows my character and reputation and knows this is not consistent with either.

17. On 1 March 2011, the Commission’s Deputy Director, Diane Konopka, submitted a memorandum to the Commission’s probable cause committee alleging that on 13 February 2010, Petitioner committed the Class B misdemeanors of Possess/Consume Beer/Wine on Unauthorized Premises, Weapons on Educational Property, and Aiding and Abetting Underage Possession/Consumption of Alcohol, which may also be considered with his misdemeanor conviction of Carry Concealed Weapon. (Respondent’s Exhibit 17)

18. On 1 April 2011, the Commission’s probable cause committee determined that probable cause exists to deny Petitioner’s application for certification because on 13 February 2010, he committed the Class B misdemeanor of Aiding and Abetting Underage Possession/Consumption of Alcohol in violation of N.C.G.S. § 18B-301(c)(2). (Respondent’s Exhibit 18)

19. On 6 April 2011, Petitioner provided notice of his request for an administrative hearing. (Respondent’s Exhibit 19) Sheriff Kevin Frye of Avery County has expressed his support for Petitioner and wishes to retain him in the Sheriff’s Office.

CONCLUSIONS OF LAW

1. Both parties are properly before this Administrative Law Judge and jurisdiction and venue are proper.

2. The North Carolina Sheriffs’ Education and Training Standards Commission has the authority granted under Chapter 17E of the General Statutes, Title 12 of the North Carolina Administrative Code, Chapter 10B, to certify justice officers and to deny, revoke or suspend such certification.

3. Pursuant to 12 NCAC 10B .0204(d)(2), the Commission may revoke, suspend or deny the certification of a justice officer when the Commission finds that the applicant for certification or the certified officer has committed or been convicted of a crime or unlawful act defined in 12 NCAC

10B .0103(10)(b) as a Class B misdemeanor within the five-year period prior to the date of appointment.

4. Pursuant to 12 NCAC 10B .0205(3)(d), when the Commission suspends, revokes, or denies the certification of a justice officer, the period of sanction shall be for an indefinite period, but continuing so long as the stated deficiency, infraction, or impairment continues to exist, where the cause of sanction is commission or conviction of offenses as specified in 12 NCAC 10B .0204(d)(2), (3), (4) and (5).

5. Pursuant to N.C.G.S. §18B-301(c)(2), 12 NCAC 10B .0103(10)(b) and the Class B Misdemeanor Manual adopted by the Respondent, the crime of Aiding and Abetting Underage Possession/Consumption of Alcohol constitutes a Class B misdemeanor.

6. Petitioner committed the Class B misdemeanor of Aiding and Abetting Underage Possession/Consumption of Alcohol on 13 February 2010 when he unlawfully, willfully and purposefully purchased vodka, an alcoholic beverage, in Johnson City, Tennessee for the possession and consumption of by Amber Singleton, age 19, and Megan Farthing, age 17.

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends Respondent deny Petitioner’s justice officer certification for a period of five years running from the date of the Class B misdemeanor offense date of 13 February 2010.

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 Sheriffs’ Education and Training Standards Commission.

This the 27th day of July, 2011.

__________________________________

Selina M. Brooks

Administrative Law Judge

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