STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA

WAKE COUNTY

DAVID ALAN MOORE,

Petitioner,

v.

NORTH CAROLINA PRIVATE PROTECTIVE SERVICES BOARD,

Respondent. |

)))))))

))) |IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

08 DOJ 1264

PROPOSAL FOR DECISION | |

This contested case was heard before Administrative Law Judge Fred G. Morrison Jr., on June 24, 2008, in Raleigh, North Carolina.

APPEARANCES

Petitioner appeared pro se.

Respondent was represented by attorney John T. Crook and Jeffrey McKinney.

WITNESSES

Respondent – Private Protective Services Board Field Services Supervisor Larry Liggins testified for Respondent Board.

Petitioner – Petitioner testified on his own behalf.

ISSUES

Whether grounds exist for Respondent to deny Petitioner’s unarmed guard registration permit application for lack of good moral character or temperate habits.

BURDEN OF PROOF

Respondent has the burden of proving that 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:

G.S. 74C-2;

74C-3;

74C-8(d)(2);

74C-9;

74C-11;

74C-12(a)(25);

12 NCAC 7D § .0700.

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 unarmed guards.

2. Petitioner applied for an unarmed guard permit with Respondent in July of 2007. A copy of Petitioner’s application was introduced as Exhibit 1.

3. In his application for an unarmed guard registration permit, Petitioner answered “yes” to the questions “Have you ever plead guilty to any crime (Felony or Misdemeanor)?” and “Have you ever been convicted of any crime (Felony or Misdemeanor)?” Petitioner responded “no” to the questions “Served Time? Been Paroled or Been on Probation?”

4. On the reverse of Petitioner’s application, Petitioner provided an explanation of his responses cited above. Petitioner’s explanation was introduced and admitted as Exhibit 2. In Petitioner’s explanation, he wrote as follows:

“Misdemeanor – I think about 1991 – all I had to do was pay court cost and fine. No probation – no comm. service

Credit card fraud – found credit card slip of paper in parking lot of store. It had a number on paper. I tried to use the number and got caught.”

5. Respondent introduced as Exhibit 3 a statewide criminal record search submitted by Petitioner with his application. Exhibit 3 contained the following information:

A. Moore, David Allen, WM, 01/04/1951

94 CR 15879, convicted for (M) Misdemeanor Larceny

B. Moore, David Allen, WM, 01/04/1951

94 CR 15880, convicted for (M) Misdemeanor Larceny

C. Moore, David Allen, WM, 01/04/1951

94 CR 15881, convicted for (M) Misdemeanor Larceny

D. Moore, David Allen, WM, 01/04/1951

94 CR 15882, convicted for (M) Misdemeanor Larceny

6. Mr. Liggins testified that as punishment for the four convictions, Petitioner was sentenced to a period of probation. Mr. Liggins also testified that Petitioner failed to disclose that he was sentenced to a period of probation on his application. Mr. Liggins stated that pursuant to the Petitioner’s four convictions of larceny and the Petitioner’s false representation on his application that he had not been sentenced to a term of probation, Petitioner’s application was denied.

7. Respondent then introduced as Exhibit 4 a January 25, 2008, letter to Wayne Trachtenburg of Securitas Security Services USA, Inc., on which Petitioner received a carbon copy, denying Petitioner’s application for cause, pursuant to the four larceny convictions, and falsification of the application for failure to disclose that he was on probation.

8. Respondent then introduced as Exhibit 5 a handwritten letter written and signed by Petitioner and received by Respondent Board on February 6, 2008. In Exhibit 5, Petitioner stated that he did not know that he was on probation.

9. Respondent introduced as Exhibit 6 a handwritten letter written and signed by Petitioner and received by Respondent Board on November 26, 2007. In Exhibit 6, Petitioner stated that he had been employed by Securitas Security for three and a half years at the time the letter was written, and that in his file, a report came up showing “20 different counties”, that he did not know where the counties were, and that he had never been to many of them. In Exhibit 6, Petitioner sought information about how to get the counties taken off his report and to return to work.

10. Respondent introduced as Exhibit 7 a letter from David C. Arndt, a licensee with Respondent Board, in reference to the Petitioner’s application. In his letter, Mr. Arndt stated Petitioner was upfront about his criminal charges, and requested that the Respondent approve Petitioner’s application.

11. Respondent then introduced as Exhibit 8 an Unarmed Security Officer Training Certificate which was submitted with Petitioner’s application, certifying that Petitioner was properly trained to serve as an unarmed guard.

12. Respondent then introduced as Exhibit 9 an Authorization for Release of Records signed and notarized by Petitioner on November 27, 2007, and received by Respondent on December 4, 2007. Mr. Liggins testified that Exhibit 9 allowed Respondent Board to conduct its own investigation into the Petitioner’s criminal history.

13. Mr. Liggins testified that Respondent Board considered all documents submitted by Petitioner or on Petitioner’s behalf, but that the Board still decided to deny Petitioner’s request for an unarmed guard permit.

14. Petitioner then testified on his own behalf. Petitioner stated that he was never on probation. Petitioner did admit that his birthday was January 4, 1951, and that he was previously convicted of four counts of Misdemeanor Larceny. Petitioner further admitted that the file numbers contained in Exhibit 3, Petitioner’s criminal record check, corresponded with the file numbers enumerated on Exhibit 4, Respondent’s denial letter to Wayne Trachtenburg.

15. On questioning by Judge Morrison to counsel for Respondent, counsel stated that Respondent was in possession of evidence that indicated Petitioner was indeed sentenced to probation for his four consolidated larceny convictions, but that the evidence was privileged and that Respondent was obligated not to produce such evidence.

16. On July 7, 2008, Respondent petitioned the Office of Administrative Hearings to Open the Record to Submit Additional Evidence. Attached to Respondent’s Petition was a certified criminal record check for Petitioner showing that Petitioner was sentenced to eighteen (18) months of unsupervised probation for the four consolidated larceny convictions, each of which were listed on Respondent’s denial letter, Exhibit 4, to Licensee Wayne Trachtenburg. Respondent’s request was allowed.

CONCLUSIONS OF LAW

Pursuant to G.S. § 74C-12(a)(1), Respondent Board may refuse to issue an unarmed guard registration permit if the registrant makes any false statement or gives any false information in connection with any application for a registration or permit.

Pursuant to G.S. § 74C-12(a)(25), Respondent Board may refuse to issue an unarmed guard registration permit for lack of good moral character or temperate habits.

Pursuant to G.S. § 74C-8(d)(2), conviction of a crime involving larceny is prima facie evidence that the applicant does not have good moral character or temperate habits.

Respondent Board presented evidence that Petitioner made a false statement and gave false information in connection with his application for registration as an unarmed guard.

Respondent Board presented evidence of Petitioner’s lack of good moral character or temperate habits through Petitioner’s criminal record. Petitioner has failed to rebut the presumption that she lacks good moral character.

Based on the foregoing, the undersigned makes the following:

PROPOSAL FOR DECISION

The North Carolina Private Protective Services Board will make the final decision in this contested case. It is proposed that the Board UPHOLD its initial decision to deny Petitioner’s application for an unarmed guard registration permit.

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 North Carolina Private Protective Services Board.

This the 21st day of July, 2008.

_________________________________________

Fred G. Morrison Jr.

Administrative Law Judge

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