State of North Carolina s92

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF GUILFORD 04 DOJ 0889 04 DOJ 1203 04 DOJ 1204 04 DOJ 1205

MEL DOWNING, ) TRITON SPECIAL POLICE ) DEPARTMENT, INC, and KENNETH ) HECKSTALL, ) Petitioner, ) PROPOSAL FOR DECISION ) v. ) ) COMPANY POLICE AGENCY, ) Respondent. )

APPEARANCES

Petitioner: Jason M. Goins Amiel J. Rossabi Attorney for Petitioners FORMAN ROSSABI BLACK, P.A. 3723 North Elm Street, Suite 200 P. O. Box 41027 Greensboro, NC 27404-1027

Respondent: Ashby T. Ray, Assistant Attorney General Attorney for Respondent N. C. Department of Justice 9001 Mail Service Center Raleigh, North Carolina 27699-9001

This matter came on for a hearing and was heard before the undersigned Administrative Law Judge presiding at the administrative session held on December 6 and 7, 2004. Petitioners were represented by Jason M. Goins and Amiel J. Rossabi, and Respondent was represented by Ashby T. Ray. After hearing testimony and the arguments of counsel, the Court identifies and finds the following issues for determination, findings of fact and conclusions of law:

ISSUES FOR DETERMINATION

1. Is the suspension of Petitioner Mel Downing’s company police officer commission supported by a preponderance of the evidence? 2. Is the suspension of Petitioner Kenneth Heckstall’s company police officer commission supported by a preponderance of the evidence?

3. Is the suspension of Petitioner Triton Special Police Department’s agency certification supported by a preponderance of the evidence?

FINDINGS OF FACT

1. Respondent Triton Special Police Department, Inc. (“Triton”) is a police agency certified by North Carolina’s Company Police Agency.

2. Respondent Mel Downing (“Downing”) is an employee and the chief of Triton. Accordingly, Downing sets the standard policy and operating procedure for Triton.

3. Respondent Kenneth Heckstall (“Heckstall”) is an employee of Triton and has been a commissioned police officer since 1998.

4. Triton provides police and security services to low income, and often high crime, neighborhoods. As a result, Triton employs commissioned police officers to perform its police functions and non-commissioned individuals to monitor lease violations and maintenance concerns.

5. Between April 1997 and October 2003, Triton entered into contracts with and has performed such police security services for the following neighborhoods:

a. Thomasville Church Homes; b. Trinity Gardens Apartments c. Asheboro Housing Authority d. Woodview Apartments e. Washington Terrace Apartments f. New Reidsville Housing Authority g. St. James Homes; and h. Lexington Housing Authority (all of the above neighborhoods will be referred to collectively hereinafter as the “Properties”).

6. It is part of Triton’s standard operating procedure to explain to the property manager or agent of all contracting neighborhoods before the parties enter into a contract that it performs both police and security services, and both sworn police officers and unsworn security employees will patrol the respective neighborhoods. Such representations were made to the manager or agent of each of the Properties.

7. Each of the Properties also signed a contract with Triton, and in no such contract does Triton promise only to perform police services or only to provide sworn police officers to patrol the respective Property. Triton did, in fact, provide both sworn police officers and unsworn individuals to patrol the Properties.

8. It also is Triton’s stated policy to provide different uniforms to its sworn and unsworn employees so as to clearly distinguish between them. Thus, there were occasions on which the

2 sworn police officers and unsworn police officers wore different colors of uniforms, but there also were some occasions in which sworn and unsworn police officers wore uniforms of the same color. However, on all occasions, sworn police officers wore badges showing them to be “police” officers, while unsworn individuals wore badges showing them to be “security” officers. Sworn police officers were issued shirts with the word “police” placed across them, while unsworn individuals were issued hats showing them to be “security” personnel.

9. Pursuant to N.C. Gen. Stat. § 74E-3, Triton purchased liability insurance from the Western Heritage Insurance Company in 1998. Because it patrols high risk neighborhoods, Triton pays higher liability insurance premiums than an average company police agency.

10. On December 19, 2003, Triton’s policy lapsed for the first and only time in its history. After being notified of the lapse on May 11, 2004 by Respondent’s representative, Vickie Huskey, Triton voluntarily shut down its operations for a one-week period while it acquired a new policy. On May 18, 2004, Triton acquired a new liability insurance policy and continues to operate under that same policy.

11. All certified Company Police Agencies are required to have liability insurance in compliance with N.C. Gen. Stat. § 74E-3.

12. Triton was insured through Steed Insurance Company of Greensboro, North Carolina

13. Jim Steed is the issuing agent who worked with Triton.

14. In November 2003, Mr. Steed received notice from the underwriters for Triton’s liability policy that the policy would be canceled sometime in December 2003.

15. Mr. Steed contacted Downing to inform him of the termination of his insurance policy.

16. Downing requested that Mr. Steed shop around to see if he could find the required coverage at an affordable price.

17. In January 2004, Mr. Steed presented options to Downing, who declined to take out any policies through Mr. Steed.

18. In May 2004, Mr. Steed sent correspondence to the Company Police Administrator, Vickie Huskey, notifying her that Triton had its liability insurance canceled in December 2003.

19. Ms. Huskey contacted Downing and informed him of Triton’s lapse in insurance coverage.

20. In Downing’s letter to the Office of Administrative Hearings, dated May 24, 2004, he states:

Although this agency was without General Liability for a period of time, it was NOT the intent, NOR was it know [sic] that this agency was without such coverage. Subsequently, upon being informed of such a lapse in

3 coverage by you, I immediately contacted my insurance agent as well as other insurance agencies in order to secure such coverage. This agency was able to secure General Liability coverage within a short (5 days) time frame. During the time of notification from the Company Police Administrator, until coverage was secured, this agency did NOT work and was effectively “shut down.” (Resp. Exhibit 6)

21. Petitioner testified that Mr. Steed never told him Triton’s policy was canceled in December 2003.

22. In comparing the testimony of Mr. Steed and the testimony and written statement by Petitioner on this matter, Mr. Steed’s testimony is more credible.

23. Downing was aware of the fact that Triton’s insurance had lapsed in December 2003.

24. As a result of Downing’s failure to secure a liability insurance policy in December 2003, when he first became aware of the lapse, Triton was without the required liability insurance for almost five (5) months.

25. Part of Heckstall’s duties include patrolling the New Reidsville Housing Authority property. To assist Heckstall with his duties, Downing provided him with a map of the New Reidsville Housing Authority, itself provided to Downing by Robert Fields, Director for the New Reidsville Housing Authority. Jennifer Court, a street within that Housing Authority’s property, is privately owned by the New Reidsville Housing Authority and is not a public street.

26. On May 25, 2004, Heckstall was patrolling the New Reidsville Housing Authority property and was located on Jennifer Court when he began to follow a speeding vehicle driven by Marcus Walters (“Walters”).

27. Heckstall followed Walters from Jennifer Court onto Jeffrey Court, another privately- owned street. At Jeffrey Court, Heckstall activated his blue lights. Walters failed to stop and proceeded onto Third Avenue, a public city street. Walter stopped his vehicle at the intersection of Third Avenue and Lesley Court. When Heckstall exited his vehicle and proceeded to walk towards Walters, Walters sped away, turned onto another street, and disappeared from Heckstall’s sight.

28. Heckstall walked back to his car where he attempted to turn off his blue lights, and instead, he accidentally activated his siren before turning both off immediately thereafter. Heckstall did not reinitiate his pursuit of Walters; instead, he began driving slowly, at 35 miles per hour, endeavoring to locate Walters and record his license plate number for a report to the local police department.

29. Petitioners never have had a previous violation or other disciplinary action brought against them by Respondents throughout what have been exemplary and lifelong careers in law enforcement. Petitioners have worked with communities to reduce drug and gang infestation and are credited by managers of some of the Properties for rehabilitating their respective communities.

4 30. Triton and Downing’s contributions to the law enforcement community include assistance with the initiation of other company police agencies and mentoring those agency heads.

CONCLUSIONS OF LAW

1. Pursuant to Chapter 150B, the Office of Administrative Hearings has personal and subject matter jurisdiction of this contested case. Venue in Guilford County, North Carolina is proper.

2. Downing lacked the requisite intent to commit the crime of obtaining property through false pretenses; and therefore, his police officer commission should not be revoked, suspended, or denied pursuant to 12 NCAC 2I .0212.

3. Downing lacked the requisite intent to commit the crime of aiding and abetting the impersonation of a law enforcement officer, nor does the evidence show that any employee of Triton made the representations required by N.C. Gen. Stat. § 14-227(a). Therefore, Downing’s police officer commission should not be revoked, suspended, or denied pursuant to 12 NCAC 2I .0212.

4. Downing possesses the good character and integrity of a commissioned law enforcement officer. Therefore, Downing’s police officer commission should not be revoked, suspended, or denied pursuant to 12 NCAC 2I .0212 or .0213.

5. Heckstall initiated and continued the May 25, 2004 pursuit of Walters in accordance with N.C. Gen. Stat. § 74E-6 and 12 NCAC 2I .0304. Therefore, Heckstall’s police officer commission should not be revoked, suspended, or denied pursuant to 12 NCAC .0213.

6. Triton has violated N.C. Gen. Stat. § 74E-7 and 12 NCAC 2I .0304, .0306 by allowing its non-commissioned employees, on occasion, to wear the same color of clothing as the commissioned police officers it employs.

7. Triton has violated N.C. Gen. Stat. § 74E-3 by allowing its liability insurance policy to lapse.

DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby ORDERED, ADJUDGED, and DECREED:

1. Petitioner Mel Downing should maintain his police officer commission and Respondent’s contested case should be dismissed as insufficient to support a revocation or suspension.

2. Petitioner Kenneth Heckstall should maintain his police officer commission and Respondent’s contested case should be dismissed as insufficient to support a revocation or suspension.

5 3. Under N.C. Gen. Stat. § 74E-3 and 12 NCAC 2I .0211, the evidence in this case supports a suspension of Triton’s police agency certification for a period of three years.

4. Respondent shall serve a copy of its Final Decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714 in accordance with N.C. Gen. Stat.§ 150B-36(b).

NOTICE

The decision of the Administrative Law Judge in this contested case will be reviewed by the agency making the final decision according to the standards found in N.C. Gen. Stat. § 150B- 36(b), (b1), and (b2). Pursuant to N.C. Gen. Stat. § 150B-36(a), the agency making the final decision is required to give each party an opportunity to file exceptions to the decision of the Administrative Law Judge and to present written argument to those in the agency who will make the final decision. The agency is also required by N.C. Gen. Stat. § 150B-36(b) to serve a copy of the Final Decision to all parties and furnish a copy to each party’s attorney of record.

The agency that will make the final decision in this contested case is the North Carolina Department of Justice.

This the 4th day of March, 2005.

______Beecher R. Gray Administrative Law Judge