STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF ALAMANCE 09 DOJ 5648

MICHAEL GRAY SOLOMON, JR., )

Petitioner, )

)

)

v. ) PROPOSAL FOR DECISION

)

NORTH CAROLINA SHERIFFS’ )

EDUCATION AND TRAINING )

STANDARDS COMMISSION, )

Respondent. )

In accordance with North Carolina General Statute §150B-40(e), Respondent requested the designation of an administrative law judge to preside at an Article 3A, North Carolina General Statute §150B, contested case hearing of this matter. Based upon Respondent’s request, Administrative Law Judge Beecher R. Gray heard this contested case in Raleigh, North Carolina on April 28, 2010. Respondent filed a draft Proposal for Decision on June 18, 2010.

APPEARANCES

Petitioner: Michael Gray Solomon, Jr.

2452 North NC Highway 87

Elon, North Carolina 27244

Respondent: Jane Ammons Gilchrist, Assistant Attorney General

N.C. Department of Justice

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

ISSUE

Whether Respondent’s proposed denial of Petitioner’s justice officer certification based upon Petitioner’s commission or conviction of any combination of four or more crimes or unlawful acts defined as Class A or Class B misdemeanors is supported by a preponderance of the evidence.

RULES AT ISSUE

12 NCAC 10B.0103(10)(a)

12 NCAC 10B.0103(10)(b)

12 NCAC 10B.0204(d)(5)

12 NCAC 10B.0205(3)(d)

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 Administrative Law Judge makes the following FINDINGS OF FACT.

In making the FINDINGS OF FACT, the undersigned Administrative Law Judge 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. The parties received notice of hearing by certified mail more than 15 days prior to the hearing and each stipulated on the record that notice was proper. Petitioner received the Notification of Probable Cause to Suspend Justice Officer Certification letter mailed by Respondent on September 29, 2009.

2. The North Carolina Sheriffs’ Education and Training Standards Commission has 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. 12 NCAC 10B .0204(d)(5) provides that 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 any combination of four or more crimes or unlawful acts defined in 12 NCAC 10B .0103(10)(a) as a Class A misdemeanor or defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor regardless of the date of commission or conviction.

4. 12 NCAC 10Bn .0205(3)(d) provides that 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)(5).

5. The Alamance County Sheriff’s Office submitted to the Sheriffs’ Standards Division on July 21, 2008 a Report of Appointment, Form 4, for Petitioner to be a detention officer. (Respondent’s Exhibit 1)

6. As a part of the application process with the Alamance County Sheriff’s Office, Petitioner completed a Personal History Statement, Form F-3, on February 20, 2008. (Respondent’s Exhibit 2)

7. Question 47 on the Personal History Statement Form F-3 asks, “Have you ever been arrested by a law enforcement officer or otherwise charged with a criminal offense?” (Respondent’s Exhibit 2)

8. In response to Question 47, Petitioner checked the box adjacent to "Yes." Petitioner listed that he had been charged with the following offenses: DWI; Simple Assault; DWLR; Misdemeanor Larceny. (Respondent's Exhibit 2)

9. Petitioner was allowed to amend the Form F-3 to add the following criminal charges: Possession of Stolen Goods; Communicating Threats.

10. Petitioner provided Respondent a written statement, dated December 15, 2008, explaining the following criminal charges: misdemeanor larceny; possession of stolen goods; communicating threats; simple assault; and DWI. (Respondent's Exhibit 3)

11. The statement (Respondent’s Exhibit 3) indicated the following with respect to the criminal charges:

a. Misdemeanor Larceny--took a CD from Walmart

b. Possession of Stolen Goods--was living with a friend who had street signs hanging in his house;

c. Communicating Threats--had an argument with guy that was dating my sister at the time;

d. Simple Assault--had a confrontation with the guy that was dating my sister;

e. DWI--had been drinking and decided to go see a friend at his house.

12. A criminal record search of Alamance County court records (Respondent’s Exhibit 4) indicates the following with respect to the criminal charges against Petitioner:

a. Misdemeanor Larceny--dismissed by the DA and Petitioner was ordered to pay court costs and C/S fee;

b. Communicating Threats--voluntarily dismissed, Dispute Settlement Center;

c. Simple Assault--voluntarily dismissed, Dispute Settlement Center

d. DWI--level 5, guilty.

1. Respondent’s Exhibit 5 is a copy of the citation issued to Petitioner for Driving While Impaired. The citation indicates that Petitioner pled guilty and was found guilty of Driving While Impaired on July 8, 2004.

2. Respondent’s Exhibit 6 is a copy of the Incident/Investigation Report completed by the Alamance County Sheriff’s Office regarding the assault committed by Petitioner. The narrative indicates that Jimmie Justice and Steven Pruitt advised the investigating officer that they had been assaulted by Petitioner. Pruitt told the officer that Petitioner entered the residence and accused him of telling lies. Petitioner got Pruitt on the floor, straddled him and began choking him. Petitioner struck Pruitt with his fist on the left side of Pruitt’s head. Justice tried to pull Petitioner off of Pruitt. Petitioner began hitting Justice with his fists, striking him twice in the face.

3. Steven Pruitt took out criminal charges against Petitioner for Communicating Threats and Simple Assault. (Respondent’s Exhibit 7) As a result of mediation, an agreement was reached and the criminal charges were dismissed.

4. Steven Pruitt testified that he was at a trailer with his friends, Ryan and JJ. Petitioner came to the trailer. Pruitt told Ryan not to go with Petitioner because Petitioner had been drinking. Petitioner swung at and hit Pruitt. Petitioner threatened Pruitt by saying something like, “I’ll kick your ass.” JJ took Petitioner into the kitchen and they started fighting. Pruitt went to the magistrate to take out criminal charges. The parties went to mediation and the charges were dismissed.

5. Ryan Justice testified that he is Petitioner’s cousin. Justice and Pruitt have been friends for years. Ryan was at the trailer with JJ Justice. Pruitt and Petitioner both came to the trailer and later that night got into an argument. Petitioner had Pruitt across the bed straddling him. Petitioner swung at Pruitt one time. JJ pulled Petitioner off of Pruitt.

6. Petitioner testified that he had no explanation for the misdemeanor larceny charge. He admitted that he picked up the CD and walked out with it. He intended to keep the CD permanently. The misdemeanor larceny charge was dismissed after he performed community service.

7. Petitioner testified that the communicating threats and simple assault charges resulted from a heated argument that escalated. Petitioner recalled striking Pruitt, he recalled JJ Justice breaking up the argument and he recalled getting in an argument in the kitchen with JJ. Petitioner recalled saying he would kick his ass but does not recall if he meant it. It was said in the heat of passion.

8. Petitioner received from Respondent, Notification of Probable Cause to Deny Justice Officer Certification, dated September 29, 2009, for the commission or conviction of any combination of four or more crimes or unlawful acts defined in 12NCAC 10B .0103(10)(a) as a Class A misdemeanor or defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor regardless of the date of commission or conviction. (Respondent's Exhibit 8) The proposed denial was based upon Petitioner’s conviction of the Class A misdemeanor offense in Alamance County of DWI--Level 5 on July 8, 2004.

9. The proposed denial also was based upon Petitioner’s commission of the Class A misdemeanor offense of communicating threats in violation of N.C. Gen. Stat. §14-277.1. On March 27, 2004 Petitioner unlawfully and willfully did threaten to physically injure Steven Daniel Pruitt. The threat was communicated to Steven Daniel Pruitt by Petitioner stating to him that Petitioner would “kill” him and the threat was made in a manner and under circumstances which would cause a reasonable person to believe the threat was likely to be carried out and the person believed the threat would be carried out.

10. The proposed denial also was based upon the commission of the Class A misdemeanor of simple assault in violation of N.C. Gen. Stat. § 14-33(a). On March 27, 2004 Petitioner unlawfully and willfully did assault and strike Steven Daniel Pruitt by striking Pruitt about his head with Petitioner’s fist.

11. The proposed denial also was based upon the commission of the Class B misdemeanor of misdemeanor larceny in violation of N.C. Gen. Stat. §14-72(a). On January 28, 2002 Petitioner took a compact disk (CD) from a Wal-Mart store in Burlington, North Carolina and put it in his back pocket. Petitioner took the CD knowing that he was not entitled to it and with the intention of permanently depriving the Wal-Mart store of this property. (Respondent’s Exhibit 8)

12. On October 8, 2009, Respondent received Petitioner’s written request for an administrative hearing in this matter. In his request for a hearing, Petitioner admitted that he had been charged with: Level 5 DWI; communicating threats and simple assault as the result of an argument that escalated into a fight; and misdemeanor larceny. (Respondent's Exhibit 9)

13. Petitioner responded to Request for Admissions submitted to him by Respondent. Petitioner admitted that he was found guilty of DWI-Level 5. He admitted that he stated to Steven Daniel Pruitt that he would “kick his butt” He further admitted that he struck Pruitt in the head with his fist. Petitioner also admitted that he took a compact disk from a Wal-Mart store in Burlington, North Carolina and put it in his back pocket without paying for it. Petitioner admitted that he intended to keep the CD. (Respondent's Exhibit 10)

14. Michael Westbrook testified that he is a lieutenant with the Alamance County Sheriff’s Office. Petitioner has done an excellent job under his supervision. He has had no disciplinary actions or write ups and no complaints.

15. Rickey Derhan testified that he is a Captain with the Alamance County Sheriff's Office. His observation is that Petitioner does his job very well. Petitioner has had no complaints. Petitioner has a good career with the Alamance County Sheriff’s Office. Derhan can call on Petitioner and does not have to go behind him.

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.

2. A preponderance of the evidence supports a conclusion that Petitioner applied for certification from the Respondent in July, 2008.

3. A preponderance of the evidence supports a conclusion that Petitioner committed or was convicted of four or more crimes or unlawful acts defined in 12 NCAC 10B .0103(10)(a) as a Class A misdemeanor or defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor.

4. A preponderance of the evidence supports a conclusion that Petitioner was convicted of the Class A misdemeanor offense of DWI--Level 5 on July 8, 2004.

5. A preponderance of the evidence supports a conclusion that Petitioner committed the Class A misdemeanor offense of communicating threats in violation of N.C. Gen. Stat. §14-277.1 on March 27, 2004 when he threatened to physically injure Steven Daniel Pruitt.

6. A preponderance of the evidence supports a conclusion that Petitioner committed the Class A misdemeanor offense of simple assault in violation of N.C. Gen. Stat. § 14-33(a) on March 27, 2004 when Petitioner did assault and strike Steven Daniel Pruitt about his head with Petitioner's fist.

7. A preponderance of the evidence supports a conclusion that Petitioner committed the Class B misdemeanor offense of misdemeanor larceny in violation of N.C. Gen. Stat. §14-72(a) on January 28, 2002 when Petitioner took a compact disk (CD) from a Wal-Mart store in Burlington, North Carolina knowing that he was not entitled to it and with the intention of permanently depriving the Wal-Mart store of this property.

8. The Respondent properly may suspend Petitioner’s certification under 12 NCAC 10B .0204(d)(5) for the commission or conviction of any combination of four or more crimes or unlawful acts defined in 12 NCAC 10B .0103(10)(a) as a Class A misdemeanor or defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor regardless of the date of commission or conviction. Under 12 NCAC 10B .0205(3)(d), 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)(5).

9. The actions of Respondent are within the statutory authority of the agency, made upon lawful procedure, not effected by error of law, supported by substantial evidence, and are not arbitrary, capricious, or an abuse of discretion.

10. The findings of the Probable Cause Committee of Respondent are supported by substantial evidence and are not arbitrary and capricious.

11. The party with the burden of proof in a contested case must establish the facts required by G.S. § 150B-23(a) by a preponderance of the evidence. N.C. Gen. Stat. §150B-29(a). The administrative law judge shall decide the case based upon a preponderance of the evidence. N.C. Gen. Stat. §150B-34(a).

12. Petitioner has the burden of proof in the case at bar. (See Overcash v. N.C. Dep't of Env't & Natural Res., 179 N.C. App. 697, 704, 635 S.E.2d 442, 444, rev denied 361 N.C. 220, 642 S.E.2d 445 (2007)). Petitioner has failed to meet this burden. Petitioner has failed to show by a preponderance of the evidence that Respondent's proposed suspension of Petitioner's justice officer certification is not supported by substantial evidence. Petitioner has failed to show that he did not commit or was not convicted of any combination of four or more crimes or unlawful acts defined in 12 NCAC 10B .0103(10)(a) as a Class A misdemeanor or defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor.

13. Respondent has shown by a preponderance of the evidence that Petitioner committed or was convicted of four or more crimes or unlawful acts defined in 12 NCAC 10B .0103(10)(a) as a Class A misdemeanor or defined in 12 NCAC 10B .0103(10)(b) as a Class B misdemeanor. Respondent’s proposed suspension of Petitioner’s justice officer certification is supported by a preponderance of the evidence.

PROPOSAL FOR DECISION

NOW, THEREFORE, based upon the foregoing FINDINGS OF FACT and CONCLUSIONS OF LAW, the undersigned Administrative Law Judge recommends that Respondent grant Petitioner’s justice officer certification with a two year probationary period on condition that Petitioner continue his good behavior and commit no criminal offenses other than minor traffic offenses.

NOTICE AND ORDER

The North Carolina Sheriffs’ Education and Training Standards Commission is the agency that will make the Final Decision in this contested case. As the final decision-maker, 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 N.C. Gen. Stat. §150B-40(e).

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 N.C. Gen. Stat. §150B-36(b).

IT IS SO ORDERED.

This the 30th day of June, 2010.

Beecher R. Gray,

Administrative Law Judge

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