STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 01 DOJ 1303

_________________________________________________________________________________

BENJAMIN SABBATH KRIZON, )

Petitioner, )

v. )

) PROPOSAL FOR DECISION

N. C. ALARM SYSTEMS LICENSING )

BOARD, )

Respondent )

This matter came on for hearing before Administrative Law Judge James L. Conner on August 30, 2001, in Raleigh, North Carolina.

APPEARANCES

Petitioner: David P. Ferrell

Hafer, Caldwell & Ferrell, P. A.

Post Office Box 27484

Raleigh, North Carolina 27611-7484

Attorney for Petitioner

Respondent: Bradford A. Williams

Holt, York & McDarris, LLP

4601 Six Forks Road, #207

Raleigh, North Carolina 27609

Attorney for Respondent

ISSUE

Did the Respondent err in denying the Petitioner’s application for an Alarm Systems Registration?

STATUTE AND RULES IN ISSUE

12 NCAC 11.0303(3)

N. C. Gen. Stat. 74D-2; 74D-6

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 the proceedings, the undersigned makes the following:

FINDINGS OF FACT

1. On May 11, 2001, Petitioner Krizon submitted an application for an Alarm Systems Registration to the Respondent Alarm Systems Licensing Board to work for Topline Systems.

2. To the question on the application, “Have you ever pled guilty and/or been convicted of any crime (felony on misdemeanor)?”, Petitioner Krizon answered “yes.” To the question on the application, “Served time?”, Petitioner Krizon answered “yes.” To the question on the application, “Been paroled or been on probation?”, Petitioner Krizon answered “yes.”

3. The application asked for further explanation if the answer to those questions was yes. In a separate letter, Petitioner Krizon wrote:

In regards to my appeal I would like to offer some explanations for my miss-conduct. While living in Cumberland County I was stationed at Fort Bragg. I enlisted in the army straight out of high school, and coming from a small town. Being young and out on my own for the first time I made some very poor choices. For starters, I thought that being a paratrooper made me ten feet tall and bullet proof. With this kind of thinking I managed to get two DWI’s. In both cases I was on my way home, and was stopped at a checkpoint. Not only did I pay high fines to the state, but also I lost my privilege to drive. It wasn’t until recently that I could get a decent insurance rate. In short, I have learned a valuable lesson at a steep price, and still to this day hardly touch alcohol except on occasions such as wedding toasts. I also have a spot on my background check for trying to obtain alcohol with a false I.D. That night I was only trying to get into a club that was for twenty-one and older only. I drew the low card that night, and was the designated driver. My only goal for that night was to be able to gain access to a club that my friends wanted to go to. It was just a stupid act so I could hang out with friends when I should have just waited at the barracks for them to call for a ride home. My biggest mistake was made before I got out of the army. In nineteen-ninety eight I was arrested for maintaining a place of residence for the distribution of a controlled substance. That night a couple of my friends had the law called on them while at my house. Since I owned the place of residence I was charge with them. At the hearing the judge took leniency on me. After explaining that I was unaware of what was going on, and being backed up by the other two I was given a misdemeanor sentence. The judge explained to me that even though I was unaware of what was happening I did know what sort or people were around me and what was cable of taking place. I’m not upset at the judge’s decision, only that it still follows me to this day. Along with my punishment from the civilians I received a general letter of reprimand. This letter in my army records denied me the privilege of ever reenlisting again. I think that was the worst thing that could have happened to me at the time. I was a good soldier, and an ever better paratrooper. Ever since I was a little boy the only dream I had was to become a soldier. Having my dream taken from me was my worse punishment until now.

After getting out of the army I moved to Winston-Salem, and got a job working on phone systems for Inter-Tel Technologies. Shortly after I met my wife. I’m still happily married, and have two children now. My family is all I live for now. All of the things in my background check are from almost four years ago, and longer. I’m not the same person, nor do I want to be ever again. Since taking this new position with Topline Systems I’ve made new friends, and found a job that I enjoy doing. I’m almost twenty-eight years old now, and I’m in the mindset that it’s time to find job to make a career out of. I’ve found that job at Topline Systems, and now am on suspension pending my appeal. I can honestly say that I feel that I’ve paid for dues in more than one way, and now I’m having my past hold be back from being a part of the Topline team.

In conclusion, all I’m asking for is a chance to forget the past and get on with making a future for my family and myself. Thank you for giving me this chance at an appeal.

4. As required by the Board, Petitioner Krizon submitted documentation of these offenses from the Cumberland County and Hoke County Superior Court Clerk’s Offices.

5. On June 18, 2001, the Board wrote to Topline Systems that Petitioner Krizon’s application had been denied.

6. Petitioner Krizon wrote to the Board requesting an appeal.

7. Petitioner Krizon was charged with a DWI Level 2 on November 14, 1994 in Cumberland County. Petitioner Krizon was 21 years old at the time of the offense. Petitioner Krizon was with several friends at a bar in Fayetteville, North Carolina in the hours preceding this charge. Petitioner Krizon consumed a few beers, and was “pacing himself” throughout the evening. Since the friends that he was with at the bar had consumed much more alcohol than he had, he determined that he was the only one that could drive them home from the bar. Therefore, he drove his friends home from the bar. A law enforcement officer stopped Petitioner Krizon for speeding. Petitioner Krizon disclosed to the law enforcement officer that he had consumed a few beers that evening. Petitioner Krizon does not remember exactly what his blood-alcohol content was, but remembers it to be around .10 (the legal limit is .08).

8. Petitioner Krizon was charged with attempting to obtain alcohol with another’s identification on February 1, 1995 in Cumberland County. Petitioner Krizon was 21 years old at the time of the offense. Petitioner Krizon was the designated driver for several friends on the night of February 1, 1996. Petitioner Krizon accompanied these friends to a bar in Fayetteville, North Carolina. He borrowed a friend’s identification in order to get into the bar so that he could be with his friends. He was not going to drink alcohol that evening, but was just going to hang out with his friends. The person at the door of the bar stopped Petitioner Krizon and caught him with the identification of another. Petitioner Krizon was charged with attempting to obtain alcohol with another’s identification.

9. Petitioner Krizon was charged with a DWI Level 2 on February 23, 1995 in Hoke County. Petitioner Krizon was 21 years old at the time of the offense. Petitioner Krizon was the designated driver for some friends of his on February 23, 1995. Petitioner Krizon consumed a few beers that evening, and thought he was fine to drive his friends home. On the way home, Petitioner Krizon went through a law enforcement checkpoint. When the law enforcement officer asked Petitioner Krizon if he had any alcohol that evening, he responded “yes.” Petitioner Krizon does not remember exactly what his blood-alcohol content was, but remembers it to be around .09 (the legal limit is .08).

10. These criminal acts all took place within a 2 1/2 month period at the end of 1994 and beginning of 1995. At that time, Petitioner Krizon was in the military, stationed at Fort Bragg. Petitioner Krizon enlisted in the army straight out of high school. Petitioner Krizon was a paratrooper in the army. Jumping out of airplanes and taking part in other dangerous activities made Petitioner Krizon feel that he was “ten feet tall and bullet proof.” Petitioner Krizon was young and made some poor choices during this period of his life. Petitioner Krizon realizes that he made some bad decisions during this period of time in his life. Petitioner Krizon is sorry for these mistakes, has learned from these mistakes he made over 6 1/2 years ago, and began living his life differently, more responsibly.

11. Petitioner Krizon was charged with maintaining a place for controlled substances on January 10, 1998 in Cumberland County. Petitioner Krizon did not know that the substance involved in this matter was an illegal drug. Petitioner Krizon lived by himself in Fayetteville, North Carolina. One of Petitioner Krizon’s friends from the army, Jeff Groom, had been taking what Petitioner Krizon thought was some sort of weightlifting supplement. Petitioner Krizon had witnessed Jeff Groom consume the substance by mixing this liquid substance with water or other drinks. Petitioner Krizon witnessed Jeff Groom freely mixed this “drink” in public places, to include restaurants and weightlifting gyms. Jeff Groom told Petitioner Krizon that this “drink” was a pick-me-up, and was good to take right before lifting weights. Petitioner Krizon often witnessed Jeff Groom use this substance while lifting weights.

12. On the evening of January 10, 1998, Jeff Groom had taken a few portions of this substance to Petitioner Krizon’s apartment, and told Petitioner Krizon to take the substance that evening before lifting weights. Petitioner Krizon mixed the substance in water and consumed the substance. Petitioner Krizon does not remember much about the evening of January 10, 1998 after consuming the substance. The next thing Petitioner Krizon remembered was a married couple that was staying with him asking him if he was alright. In addition, law enforcement officers were at his apartment. Petitioner Krizon does not know why the law enforcement officers were at his apartment.

13. As it turns out, the substance that Petitioner Krizon had witnessed Jeff Groom use, and that Jeff Groom left at his apartment, was an illegal drug. The officers found two portions of the substance at Petitioner Krizon’s apartment, and charged Petitioner Krizon with maintaining a place for controlled substances. Petitioner Krizon cooperated with the law enforcement officers on the night of January 10, 1998. Petitioner Krizon cooperated with the District Attorney’s Office by providing names and information about Jeff Groom and another person associated with Jeff Groom, to aid in the investigation. Petitioner Krizon cooperated with the Cumberland County Superior Court by telling the court the truth about what happened on January 10, 1998. As a result, Petitioner Krizon was only convicted of a misdemeanor in this matter. Due to this misdemeanor conviction, Petitioner Krizon received a general letter of reprimand from the army, and is prohibited from re-enlisting in the army.

14. Petitioner Krizon truly did not know that the substance that he consumed on January 10, 1998, and that was left at his apartment by Jeff Groom, was an illegal drug. Petitioner Krizon would not have allowed that substance to be left in his apartment, nor would he have taken the substance, if he had known that it was an illegal drug.

15. Petitioner Krizon’s testimony regarding the circumstances surrounding the January 10, 1998 charge, as well as his testimony regarding the other criminal convictions, is truthful, credible, and was not contradicted.

16. Petitioner Krizon has not committed a criminal violation since January 1998, over 3 1/2 years ago. Except for this January 10, 1998 charge, where Petitioner Krizon was not aware that the substance was an illegal drug, Petitioner Krizon has not committed a criminal violation since February 1995, over 6 1/2 years ago.

17. Shortly after the January 10, 1998 charge, Petitioner Krizon moved to Winston-Salem, North Carolina. Petitioner Krizon began working with Inter-Tel Technologies, Inc. in Winston-Salem. Petitioner Krizon started with Inter-Tel Technologies as a cable installation technician. Over the course of his employment with Inter-Tel Technologies, Petitioner Krizon obtained additional education, became certified on the company’s equipment, and began to perform telephone system service calls for customers and perform telephone system maintenance at customers’ businesses.

18. Petitioner Krizon interacted with customers on a daily basis. Petitioner Krizon went into customers’ businesses and homes, usually by himself, to install and update telephone systems. At various times, Petitioner Krizon was near medicine cabinets in doctors’ offices, was in bank vaults, attorney offices, and other professional businesses. Petitioner Krizon was responsible for transporting and accounting for expensive computer and telephone equipment. Petitioner Krizon was placed in a position of trustworthiness, and he exhibited trustworthiness in his dealings with Inter-Tel Technologies and its customers.

19. C. E. Poindexter, the operations manager for Inter-Tel Technologies, submitted a letter of recommendation on behalf of Petitioner Krizon. This letter of recommendation stated that Petitioner Krizon was a dependable and trustworthy individual, and that Mr. Poindexter would recommend Petitioner Krizon without hesitation for a similar occupation.

20. Earlier this year, Inter-Tel Technologies had to layoff eight (8) employees, including Petitioner Krizon. Petitioner Krizon then sought employment with Topline Systems.

21. Mike O’Byrne, owner of Topline Systems, believes that Petitioner Krizon is an excellent person, hard working, dependable, trustworthy, honest and that he would succeed in working for Topline Systems. Mike O’Byrne hired Petitioner Krizon and is looking forward to Petitioner Krizon’s expertise as a member of Topline’s team.

22. Petitioner Krizon is married and has two children, ages 8 years old and 8 months old.

23. Petitioner Krizon is a devoted family man, who spends most of his free time with his wife and two children.

24. Petitioner Krizon and his family attend Saint Oakes Baptist Church. Petitioner Krizon’s 8 year old boy attends school and church regularly, and attends church camp. Petitioner Krizon’s 8 month old child goes to church day care.

25. Petitioner Krizon also spends some of his free time working on his step-father’s farm.

26. 12 NCAC 11.0303(3) provides as follows:

(3) be of good moral character and temperate habits. Any of the following shall be prima facie evidence that the applicant does not have good moral character or temperate habits: conviction by any local, state, federal, or military court of any crime involving the illegal use, carrying, or possession of a firearm; conviction of any crime involving the illegal use, possession, sale, manufacture, distribution, or transportation of a controlled substance, drug, narcotic, or alcoholic beverage; conviction of a crime involving felonious assault or an act of violence; conviction of a crime involving unlawful breaking and/or entering, burglary, larceny, any offense involving moral turpitude; or a history of addiction to alcohol or a narcotic drug; provided that, for purposes of (3) of this Rule, “conviction” means and includes the entry of a plea of guilty, plea of no contest, or a verdict of guilty.

Based on the above Findings of Fact, the undersigned makes the following:

CONCLUSIONS OF LAW

1. Respondent has established a prima facie showing of a lack of good moral character.

2. Petitioner Krizon has put forth sufficient evidence to rebut the prima facie showing of a lack of good moral character. Petitioner Krizon introduced a letter of recommendation from a former employer, C. E. Poindexter of Inter-Tel Technologies, Inc., who stated that Petitioner Krizon is dependable and trustworthy. Mike O’Byrne, owner of Topline Systems, hired Petitioner Krizon to install alarm systems. Mike O’Byrne testified that Petitioner Krizon is an excellent person, hardworking, dependable, trustworthy, honest, and that he would succeed as an employee of Topline Systems. The evidence is uncontradicted that Petitioner Krizon has not had a criminal violation since January 1998, over 3 1/2 years ago. The criminal violation in January 1998 was based on a misunderstanding in that Petitioner Krizon was not aware that the substance involved was an illegal drug. Petitioner Krizon’s testimony regarding the circumstances surrounding this criminal charge is credible. Except for this January 1998 charge, Petitioner Krizon has not had a criminal violation since February, 1995, over 6 1/2 years ago.

3. The undersigned is persuaded that Petitioner Krizon is in fact a family man, a good father and husband, and a person of good moral character.

4. Petitioner Krizon has aided his cause by explaining the facts and circumstances surrounding the criminal convictions that occurred during the 2 1/2 month period at the end of 1994 and beginning of 1995. Petitioner Krizon was 21 years old at the time of these offenses. Petitioner Krizon was truthful and cooperative with the law enforcement officers and with the court regarding all three charges. At that time, Petitioner Krizon was in the military, stationed at Fort Bragg. Petitioner Krizon enlisted in the army straight out of high school. Petitioner Krizon was a paratrooper in the army. Jumping out of airplanes and taking part in other dangerous activities made Petitioner Krizon feel that he was “ten feet tall and bullet proof.” Petitioner Krizon was young and made some poor choices during this period of his life. Petitioner Krizon realizes that he made some bad decisions during this period of time in his life. Petitioner Krizon is sorry for these mistakes, has learned from these mistakes, and began living his life differently, more responsibly.

5. Petitioner Krizon has aided his cause by explaining the facts of circumstances surrounding the charge he received on January 10, 1998 related to maintaining a place of controlled substance. Petitioner Krizon was truly in the wrong place at the wrong time. Petitioner Krizon was given a substance by a friend that he thought was a weightlifting substance. As it turns out, the substance was an illegal drug. Petitioner Krizon would not have taken the substance or allowed the substance at his apartment if he had known that it was an illegal drug. Petitioner Krizon was truthful and cooperative with law enforcement officers, the District Attorney’s office, and with the court regarding this charge.

6. Petitioner Krizon’s testimony regarding the circumstances surrounding his criminal convictions was truthful, credible, and was not contradicted.

7. Petitioner Krizon truthfully and completely disclosed these criminal convictions to the Alarm Systems Licensing Board and this Court during the application process.

8. The issue is whether these old convictions which Petitioner Krizon admitted amount to a lack of good moral character for the purposes of qualifying for an Alarm Systems Registration.

9. The undersigned concludes that Petitioner Krizon has rebutted the Respondent’s prima facie showing. Petitioner Krizon has good moral character.

Based upon the above, the undersigned makes the following:

PROPOSED DECISION

That the Board allow Petitioner’s application for an Alarm Systems Registration.

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 North Carolina General Statute 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. N. C. Gen. Stat. 150B-40(e).

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

This the 14th day of September, 2001.

_________________________________

James L. Conner, II

Administrative Law Judge

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