STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF DAVIE 11 DOJ 6782

Clarence Carroll Hill, ) Petitioner, ) vs. ) PROPOSAL FOR DECISION NC Sheriffs’ Education and Training Standards ) Commission, ) Respondent. )

This matter came on for hearing before Administrative Law Selina M. Brooks on December 1, 2011, in High Point, North Carolina.

APPEARANCES

For Petitioner: David P. Ferrell, Esq. Vandeventer Black LLP Post Office Box 2599 Raleigh, North Carolina 27602-2599

For Respondent: William P. Hart, Jr. Assistant Attorney General NC Department of Justice 9001 Mail Service Center Raleigh, NC 27699-9001

ISSUES

1. Whether Respondent had probable cause to deny Petitioner justice officer certification for an indefinite period pursuant to 12 NCAC 10B.0204(d)(5)?

2. Whether extenuating circumstances exist to warrant the reduction or suspension of the sanction pursuant to 12 NCAC 10B.0205?

STIPULATED FACTS

1. Petitioner Clarence Carroll Hill (“Petitioner” or “Hill”) is an applicant for justice officer certification with the Respondent North Carolina Sheriffs’ Education and Training Standards Commission (“Respondent” or “Commission”).

2. On or about March 31, 2011, Petitioner was notified that the Commission found probable cause exists to believe his application for justice officer certification should be denied.

3. Petitioner timely requested an administrative hearing, and the Commission thereafter requested the assignment of an administrative law judge to hear the contested case.

4. The Office of Administrative Hearings has jurisdiction over the subject matter and over both parties in this case, and venue is proper.

5. Petitioner was found guilty for and convicted of the following misdemeanor criminal offenses in Forsyth County:

a. False Report to Police Station [N.C.G.S. § 14-225] File No. 1995 CR 31476 Offense Date: August 23, 1995 Conviction Date: September 1, 1995

b. Discharge Firearm in City [Local Ordinance] File No. 1995 CR 24780 Offense Date: August 8, 1995 Conviction Date: August 24, 1995

c. Violation of Noise Ordinance [Local Ordinance] File No. 1991 CR 18695 Offense Date: April 26, 1991 Conviction Date: June 6, 1991

d. Violation of Noise Ordinance [Local Ordinance] File No. 1990 CR 22312 Offense Date: June 14, 1990 Conviction Date: July 16, 1990

6. Petitioner properly and completely disclosed these four misdemeanors to the Commission on his application for certification. Petitioner was candid and honest with this Court in describing the four misdemeanors.

7. Petitioner at all relevant times cooperated with the Respondent during Respondent’s investigation and consideration of this matter.

8. As defined in 12 NCAC 10B .0103(10)(b), the offense of False Report to Police Station in violation of N.C.G.S. § 14-225 was classified as a Class B misdemeanor when committed by Petitioner. The other three offenses listed in Paragraph 5 above are defined as Class A misdemeanors under 12 NCAC 10B .0103(10)(a).

9. Accordingly, Petitioner has 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.” 12 NCAC 10B .0204(d)(5). Petitioner’s application for justice officer certification is subject to denial in the Commission’s discretion pursuant to 12 NCAC 10B .0205(3)(d).

10. Petitioner’s application for justice officer certification is subject to denial for an indefinite period under 12 NCAC 10B .0205(3)(d).

11. The four misdemeanors described herein are the sole basis for the sanction imposed by the Respondent.

12. Pursuant to 12 NCAC 10B .0205(3):

The Commission may either reduce or suspend the periods of sanction where revocation, denial or suspension of certification is based upon Subparagraphs .0204(d)(3), (d)(4), and (d)(5) or substitute a period of probation in lieu of revocation, suspension or denial following an administrative hearing. This authority to reduce or suspend the period of sanction may be utilized by the Commission when extenuating circumstances brought out at the administrative hearing warrant such a reduction or suspension.

13. At the hearing in this matter, Petitioner may present such evidence as may be admissible and relevant to prove extenuating circumstances as permitted under 12 NCAC 10B . 0205(3). The Commission may challenge Petitioner’s evidence and may present such rebuttal evidence as may be admissible and relevant to the Commission’s determination whether extenuating circumstances, if any, warrant a reduction or suspension of the sanction set forth in 12 NCAC 10B .0205(3)(d).

14. The Administrative Law Judge has the authority to enter a decision that Respondent should issue the certification with a period of probation in lieu of denial or that upholds the decision of the Respondent’s Probable Cause Committee, pursuant to 12 NCAC 10B .0205(3) and Article 3 of chapter 150B of the General Statutes.

15. The document constituting agency action and the Respondent’s responses to Petitioner’s discovery requests are submitted jointly by the parties as exhibits in this matter and are incorporated herein by reference.

16. The parties agree that Respondent’s investigator does not need to testify in order to establish the existence of the four misdemeanors at issue in this case or the decision of the Probable Cause Committee.

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. Petitioner is currently 38 years old. The four misdemeanors occurred over 15 years ago when he was under 23 years old.

2. The two noise ordinance violations in 1990 and 1991 occurred when Petitioner was in high school. He was playing his car stereo loud while “cruising” in downtown Winston-Salem along with many other youth. The cruising occurred after business hours and/or on the weekends when the retail businesses in downtown Winston-Salem were closed.

3. The discharge of a firearm in the city limits ordinance violation involved Petitioner’s “practice” shooting at targets in the backyard of his residence. He was alone at the time. There is no evidence he was doing it unsafely.

4. Petitioner’s explanation of the circumstances concerning filing a false police report is credible and the Undersigned has no reason to doubt Petitioner’s explanation. Petitioner explained that his wife had called 911 to report that someone was banging on the side of their mobile home. The responding officers came to the premises two times, but did not find any perpetrators and charged both Petitioner and his wife with filing a false report. Upon the advice of his attorney, Petitioner pled guilty to the charge.

5. The evidence is that Petitioner cooperated with law enforcement during the charges and related dealings regarding the four misdemeanors.

6. None of the misdemeanors involve moral turpitude or dishonesty.

7. Petitioner has learned from the mistakes he made early in life. Petitioner has shown responsibility in his personal, marriage, and professional life. Petitioner has been married for 17 years, owns several businesses, and is a manager for a roller skating rink. These actions show maturity and the demeanor to be a law enforcement officer.

8. After completing BLET, Petitioner was employed by the Davie County Sheriff’s Office.

9. Sheriff Stokes testified on Petitioner’s behalf. Sheriff Stokes sponsored Petitioner to go through BLET and he hired Petitioner to work for the Davie County Sheriff’s Office. Sheriff Stokes has observed Petitioner since he went to work for the Davie County Sheriff’s Office and, in his opinion, Petitioner has the character, the propensity for honesty, and the demeanor to be a successful law enforcement officer.

10. Petitioner testified that he has no problem enforcing the laws of this State.

11. Petitioner has met the criteria for his justice officer certification.

BASED UPON the above Stipulated Facts and Findings of Fact, the Undersigned makes the following: CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has jurisdiction over this matter and the parties pursuant to Chapter 150B of the North Carolina General Statutes, and venue is proper.

2. Petitioner timely requested an administrative hearing, and the Commission thereafter requested the assignment of an administrative law judge to hear the contested case.

3. 12 NCAC 10B.0204(d) provides that “[t]he 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 … (5) 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.” (emphasis added)

4. 12 NCAC 10B .0205(3) provides that “[t]he Commission may either reduce or suspend the periods of sanction where revocation, denial or suspension of certification is based upon Subparagraphs .0204(d)(3), (d)(4), and (d)(5) or substitute a period of probation in lieu of revocation, suspension or denial following an administrative hearing. This authority to reduce or suspend the period of sanction may be utilized by the Commission when extenuating circumstances brought out at the administrative hearing warrant such a reduction or suspension.” (emphasis added)

5. Respondent had probable cause to deny Petitioner justice officer certification for four misdemeanor convictions for an indefinite period.

6. There are extenuating circumstances that warrant the suspension of the period of sanction.

7. Petitioner has met the criteria for justice officer certification.

PROPOSAL FOR DECISION

NOW, THEREFORE, based upon the foregoing Findings of Fact and Conclusions of Law, the Undersigned recommends that the Respondent accept Petitioner’s application for justice officer certification without sanction.

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 and to present written arguments to the agency who will make the final decision or order. N.C. Gen. Stat. § 150B- 36(a). The agency is required by N.C. Gen. Stat. §150B-36(b3) to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorney of record and to the Office of Administrative Hearings. The agency that will make the final decision in this contested case is the North Carolina Sheriffs’ Education and Training Standards Commission. This the 12th day of December, 2011.

______Selina M. Brooks Administrative Law Judge