STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 04 DOJ 0299

LINNELL DAVIS, JR., )

Petitioner, )

)

v. ) PROPOSAL FOR DECISION

)

NORTH CAROLINA PRIVATE )

PROTECTIVE SERVICES BOARD, )

Respondent. )

______________________________________________________________________________

THE ABOVE ENTITLED MATTER was heard before the undersigned Administrative Law Judge, Augustus B. Elkins II, on June 29, 2004 in Raleigh, North Carolina. This case was heard pursuant to N.C.G.S. § 150B-40(e) by designation of an Administrative Law Judge to preside at the hearing of a contested case under Article 3A, Chapter 150B of the North Carolina General Statutes.

APPEARANCES

For Petitioner: Linnell Davis, Jr., Pro se

For Respondent: Bradford A. Williams, Attorney

Shanda S. Setzer, Law Student

WITNESSES

Petitioner: Petitioner testified on his own behalf; The Reverend Joseph Oliver and Tonya Davis testified for Petitioner.

Respondent: Deputy Director Terry Wright and Investigator Sarah Conner testified for Respondent Board.

ISSUES

Whether grounds exist for Respondent to deny Petitioner’s application for a private investigator associate license for lack of good moral character or intemperate habits?

BURDEN OF PROOF

Respondent has the burden of proving that Petitioner’s application for a private investigator associate license should be denied. Petitioner may rebut the Respondent’s showing.

STATUTES AND RULES APPLICABLE

TO THE CONTESTED CASE

N.C. Gen. Stat. §§ 74C-1, 2, 3, 8, 11 and 12

12 NCAC 7D § .0400.

NCRCP 45(b)(1)

BASED UPON careful consideration of the testimony and evidence presented at the hearing, the documents and exhibits received 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 the evidence and has assessed the credibility of the witnesses by taking into account the appropriate and traditional factors for judging credibility, such as 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. Respondent Board is established pursuant to N.C.G.S. 74C-1 et seq., and is charged with the duty of licensing and registering individuals engaged in the private protective services profession, including private investigator associates.

2. Petitioner applied to Respondent Board for a private investigator associate license.

3. In his application for a private investigator associate license, Petitioner answered “yes” to the question, “Have you ever been involuntarily dismissed, fired or allowed to resign in lieu of firing.” During the course of her background investigation into Petitioner, Investigator Sarah Conner (Investigator Conner) learned that Petitioner’s employment with the Mecklenburg County Sheriff’s Department had been terminated.

4. The Mecklenburg County Sheriff’s Department no longer has personnel records dating to when Petitioner was employed by the department. Investigator Conner, therefore, could not ascertain the reason for Petitioner’s termination. Petitioner has claimed that his employment was terminated by the Mecklenburg County Sheriff’s Department because of political reasons.

5. Respondent Board obtained a credit report on Petitioner from Equifax Information Services, LLC as part of Respondent’s background investigation. The credit report was dated October 30, 2003. Investigator Conner determined from the credit report that Petitioner had nine unpaid collection items. These collection items totaled $4,655 dollars.

6. The October 30, 2003 credit report also revealed that Petitioner had several charged off accounts and several accounts that had been 150 days overdue.

7. Investigator Conner testified that she obtained a subsequent credit report to determine whether Petitioner’s credit had improved since the Board’s decision to deny him a private investigator associate license. That report, dated June 27, 2004, revealed 12 unpaid collection items totaling $5,083 dollars. Investigator Conner explained that the latest report indicated Petitioner’s bad debt had increased from October 2003 to June 2004.

8. The Reverend Joseph Oliver (Reverend Oliver) testified on Petitioner’s behalf. Reverend Oliver is Petitioner’s father-in-law. Reverend Oliver characterized Petitioner as an honest, respectful and responsible young man with good potential. He stated that Petitioner was a good father and that he was an honorable man with good character. Reverend Oliver stated he was not aware of Petitioner’s poor credit history.

9. Petitioner’s wife, Tonya Davis, also testified to Petitioner’s good moral character. Ms. Davis works for the Mecklenburg County Sheriff’s Department as a processing agent. Ms. Davis explained that although Petitioner has been actively pursuing employment, he has been unsuccessful in finding work for the past three and half years. Ms. Davis testified that Petitioner’s unemployment has been difficult on their family. Ms. Davis stated that Petitioner was a good father and an honest man.

10. On examination, Respondent Board’s Deputy Director, Terry Wright (Deputy Director Wright), recalled sending Petitioner a letter in April 2004 explaining to Petitioner that Respondent Board denied his application based on Petitioner’s unfavorable credit history and unfavorable employment history. Deputy Director Wright testified further that at the December 2003 Board meeting, Investigator Conner did not recommend denial, but recommended “discussion” regarding Petitioner’s unfavorable credit and employment history.

11. Petitioner testified it was his opinion that Respondent Board denied his application because of his prior arrest for domestic violence. Petitioner claimed the domestic violence charge had been fabricated. A criminal record check on Petitioner showed that the domestic violence charge had been dismissed.

12. Petitioner testified that if the December 17, 2003 denial letter had stated denial due to bad credit history instead of denial for “lack of good moral character,” then Petitioner would not have appealed Respondent Board’s decision to deny his application. Petitioner stated he was not a person of bad moral character, which he saw as what a man was made of. He stated he does not lie, cheat or steal.

BASED UPON the foregoing Findings of Fact and upon the preponderance of the evidence in the whole record, the Undersigned makes the following Conclusions of Law.

CONCLUSIONS OF LAW

1. Pursuant to G.S. 74C-12(a)(25), Respondent Board may refuse to issue a private investigator associate license for intemperate habits or lack of good moral character.

2. Poor credit is not prima facie evidence of a lack of good moral character. Respondent presented no evidence that Petitioner engaged in any act cited in G.S. 74C-8(d) which would set forth prima facie evidence that Petitioner does not have good moral character. The Undersigned concludes that Petitioner appears to be a man of good moral character and that he has a will to be guided by honest actions in that no evidence was presented that Petitioner has any convictions related to moral turpitude.

3. G.S. 74C-12(a)(25) does however allow Respondent to deny, suspend or revoke a license, registration or permit under its authority where the applicant, licensee, registrant, or permit holder has exhibited acts of “intemperate habits.” American Heritage Dictionary reveals that intemperate means not self restraining or not in moderation and that intemperate habits would be actions that show repeated conditions of intemperance. Intemperate habits do not necessarily rise to the level of lack of good moral character and based upon the wording of the controlling statutes do not have to in order to be nonetheless grounds for denial of a Private Investigator Associate License.

4. Respondent’s investigation revealed a credit report dated October 30, 2003 that Petitioner had nine unpaid collection items totaling $4,655 dollars. A second report dated June 27, 2004, revealed 12 unpaid collection items totaling $5,083 dollars.

5. The nature and extent of Petitioner’s credit record falls squarely within the bounds of the statutory language regarding intemperate habits and weighs heavily in favor of the Board’s decision to deny Petitioner a private investigator associate license.

6. Respondent Board presented evidence of Petitioner’s lack of temperate habits through Petitioner’s negative credit history. Therefore, it was within the Board’s discretion to find Petitioner currently ineligible for a private investigator associate license because of concerns involving the potential for handling client funds based on an unfavorable credit history.

7. Respondent’s December `17, 2003 letter notifying Petitioner that his application was denied because of lack of good moral character with no further explanation is unfortunate and inaccurate. Perhaps the experience of this case will result in a more detailed explanation to recipients whose applications are denied as this Petitioner testified that if the December 17, 2003 denial letter had stated denial due to bad credit history instead of denial for “lack of good moral character,” then Petitioner would not have appealed Respondent Board’s decision to deny his application.

BASED UPON the foregoing Findings of Fact and Conclusions of Law the Undersigned makes the following:

PROPOSAL FOR DECISION

The Undersigned holds as his proposal that the Board UPHOLD its decision to deny Petitioner’s application for a private investigator associate license but delete its reasoning of lack of moral conduct and adjust its reasoning of denial to reflect that Petitioner’s denial is based upon intemperate habits with an explanation as to the foundation of that denial being unfavorable and/or negative credit history.

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 Private Protective Services Board.

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).

This the 25th day of August, 2004.

_______________________________

Augustus B. Elkins II

Administrative Law Judge

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