NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 09 DOJ 5442

|Jeremy Mason Whitfield |) | |

|Petitioner |)) | |

| |))))| |

|vs. | |PROPOSAL FOR |

| | |DECISION |

|NC Alarm Systems Licensing Board | | |

|Respondent | | |

This contested case was heard before Temporary Administrative Law Judge Eugene J. Cella on October 27, 2009, in Raleigh, North Carolina.

APPEARANCES

Petitioner appeared pro se

Respondent was represented by attorneys John T. Crook and Jeffrey D. McKinney

WITNESSES

Respondent – Anthony Bonapart, Deputy Director, testified for Respondent Board

Petitioner – Petitioner testified on his own behalf. Ray Epperly, representative for Petitioner’s employer, testified on behalf of Petitioner.

ISSUES

Whether grounds exist for Respondent to deny Petitioner’s application for alarm system registration permit based on its previous denial of Petitioner’s application under N.C. Gen. Stat. § 74D-1 et seq. and Petitioner’s lack of good moral character and temperate habits based on a pattern of disregard for the law evidenced by several convictions of marijuana possession and cocaine possession.

BURDEN OF PROOF

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

STATUTES AND RULES APPLICABLE

TO THE CONTESTED CASE

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

N.C. Gen. Stat. §§ 74D-2; 74D-5; 74D-6; 74D-8; 12 NCAC 11 § .0300

FINDINGS OF FACT

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

2. Petitioner applied to Respondent Board for a new alarm registration permit. Petitioner’s initial application, dated August 11, 2007, was introduced as Respondent’s Exhibit A. Exhibit A was admitted as part of the record.

3. In Exhibit A, Petitioner answered “yes” to the following questions: “Have you ever pled guilty to any crime (Felony or Misdemeanor)?”; “Have you ever been convicted of any crime (Felony or Misdemeanor)?”; and, “Been Paroled or Been on Probation.” Petitioner responded “no” to the question: “Served Time?”.

4. Anthony Bonapart, Deputy Director for Respondent Board testified that for each application, a criminal background check is conducted for each applicant. Mr. Bonapart testified that a criminal background report was submitted by the Petitioner with his application.

5. Respondent Board then introduced as Exhibit B a Criminal Record Check from the Durham County. Exhibit B revealed the following criminal convictions for the Petitioner:

10/07/96: Possession Drug Paraphernalia

10/07/96: Possession Marijuana

6/12/01: Failure to Wear Seat Belt – Driver

6/12/01: Operate Vehicle with No Insurance

6/12/01: Unsafe Movement

[Eagle County] 08/04/2004: (M) Marijuana Possession 1-8 oz.

6. Respondent Board then introduced as Exhibit C a Criminal Record Check from the Person County. Exhibit C revealed the following criminal convictions for the Petitioner:

10/19/95: Possession Marijuana

7/11/96: (M) Possession F-WN/LQ/MXBV < 21

3/18/97: Felony Possession of Cocaine

12/5/96: Drive after Consuming < 21

7. Mr. Bonapart testified that pursuant to Petitioner’s criminal convictions, Petitioner’s application for registration was denied. Respondent Board introduced as Exhibit D a letter addressed to Mr. Thomas Brewer, with a copy to the Petitioner dated July 31, 2009, 2009. Exhibit D was admitted as part of the record.

8. Respondent then introduced as Exhibit E a letter from Petitioner to Respondent Board. Exhibit E was admitted as part of the record. In Exhibit E, Petitioner explains that the incident was an “isolated incident” during his “teenage years.” Petitioner further explained that he has since matured and has become a beneficial asset as an HVAC technician for his employer.

9. Mr. Bonapart testified that Respondent Board’s receipt of Exhibit E did not alter Respondent Board’s initial decision to deny the Petitioner’s application.

10. Respondent then introduced as Exhibit F a letter from Ray C. Epperly. In Exhibit F, Mr. Epperly notes that Petitioner explained that the charges occurred during his teenage years.

11. Petitioner then testified on his own behalf. With respect to the criminal convictions on his record, Petitioner explained that these charges occurred during a difficult period in his teenage years after his mother was diagnosed with cancer. Following these convictions, Petitioner was sent to a rehabilitation program. Petitioner testified that since going to the rehabilitation program, he has not had any further problems.

12. Petitioner further testified that he works as an HVAC technician for his employer and obtaining the license is a requirement of the company. Petitioner has continued to work, but has been supervised when entering the building.

13. Petitioner introduced as Petitioner Exhibits 1, 2, and 3, letters from former employers. All three letters attest to Petitioner’s character.

14. Petitioner also introduced Mr. Epperly as a witness. Mr. Epperly testified that Petitioner was an exemplary employee used in HVAC services. Mr. Epperly testified that he had known Petitioner since 2007.

CONCLUSIONS OF LAW

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

Pursuant to N.C. Gen. Stat. § 74D-6(3), conviction by a State court of any crime involving the illegal use, possession, sale, manufacture, distribution, or transportation of a controlled substance, drug, narcotic, or alcoholic beverages shall be prima facie evidence that the applicant does not have good moral character or temperate habits.

Respondent Board presented evidence of two serious criminal convictions thirteen years ago in 1996 (the 2001 incidents were motor vehicle offenses). Petitioner presented evidence that he has turned his life around and that he is strongly supported by his employer. In doing so he has rebutted the presumption that he lacks good moral character.

Based on the foregoing, the undersigned makes the following:

PROPOSAL FOR DECISION

The 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 an alarm registration permit and grant the application.

ORDER

It is hereby ordered that the agency serve a copy of the 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).

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).

The agency that will make the final decision in this contested case is the Alarm Services Licensing Board.

This the 21st day of December, 2009

_______________________________________

Eugene J. Cella

Temporary Administrative Law Judge

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