State of North Carolina s62

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF ONSLOW 05 DOJ 0482

RALPH ROBERT HINES, II, ) Petitioner, ) ) PROPOSAL FOR DECISION v. ) GRANTING SUMMARY JUDGMENT ) NORTH CAROLINA CRIMINAL ) JUSTICE EDUCATION AND ) TRAINING STANDARDS ) COMMISSION, ) Respondent. ) ______

THIS MATTER came on for a motions hearing on July 12, 2005 before Administrative Law Judge Augustus B. Elkins II (ALJ), in Bolivia, North Carolina. This case is before the Office of Administrative Hearings pursuant to N.C.G.S. § 150B-40(e), designation of an Administrative Law Judge to preside at the hearing of a contested case under Article 3A, Chapter 150B of the North Carolina General Statutes. Upon consideration of Respondent’s Motion for Summary Judgment filed on June 28, 2005, and upon receipt of testimony as to the issues set forth in Respondent’s Motion, the Undersigned hereby finds as set forth below.

APPEARANCES

Petitioner: John W. Ceruzzi Attorney for Petitioner Lanier & Fountain 114 Old Bridge Street Jacksonville, North Carolina 28540

Respondent: Lorrin Freeman Attorney for Respondent NC Department of Justice Law Enforcement Liaison Section 9001 Mail Service Center Raleigh, North Carolina 27699-9001

STANDARD OF REVIEW

The standard of review for summary judgment is whether there is a genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. See Kessing v. National Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). To entitle one to summary judgment, the movant must establish a legal bar to the nonmovant’s claim or complete defense to that claim. See Virginia Elec. and Power Co. v. Tillett, 80 N.C.App. 383, 385, 343 S.E.2d 188, 190-91, cert denied, 317 N.C. 715, 347 S.E.2d 457 (1986). FINDINGS OF FACT

1. The North Carolina Criminal Justice Education and Training Standards Commission has the authority granted under Chapter 17C of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 9, to certify law enforcement officers and to deny, revoke or suspend such certification.

2. Petitioner was issued General Certification (GNA 245254219) by the Respondent on November 16, 2001 to serve as a law enforcement officer with the Richlands (North Carolina) Police Department and has continuously held that certification since that time.

3. Pursuant to 12 NCAC 9E .0106(a), all certified law enforcement officers shall be required to qualify with their individual and department-approved service handgun(s) a minimum of once each calendar year.

4. 12 NCAC 9E .0107 provides that upon notification that an officer has failed to meet this requirement, the law enforcement officer’s certification shall be suspended until such time as the officer has complied with the requirements for reinstatement of certification. The requirements for reinstatement are that the officer complete the forty-eight hour block of firearms training provided for in Basic Law Enforcement Training within a twelve month period following suspension of certification and that the head of the agency with whom the officer is employed request that the officer’s certification be reinstated.

5. On January 25, 2005, Petitioner was sent a letter of Proposed Suspension of Law Enforcement Officer Certification from the Respondent based on Petitioner’s failure to complete annual firearms qualification as required by 12 NCAC 9E .0106(a).

6. On January 6, 2005, Respondent was sent notification from Chief of Police for the town of Richlands, that Petitioner had failed to complete the required annual firearm qualification.

7. Petitioner is currently working as an employee of Dyncorp, a private United States corporation who holds a contract with the United Stated Department of Justice and the Iraqi Ministry of the Interior to provide training for Iraqi police officers in Iraq. Petitioner is not on active military duty with any component of the United States Department of Defense.

8. Petitioner is not entitled to protection under the Soldiers’ and Sailors’ Civil Relief Act because his employment in Iraq does not fit the definition of uniformed service as set forth in that act.

9. Petitioner is not exempt from the annual firearms qualification requirement by the Commission’s adopted administrative policy providing for exemptions for military service because his employment is not with the United States military.

10. There are no recognized substitutions under the Respondent’s administrative rules for the firearm training requirements set forth in 12 NCAC 9E .0106(a).

2 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 parties are properly before the Office of Administrative Hearings and the Office of Administrative Hearings has subject matter and personal jurisdiction in this matter. All parties have correctly been designated and there is no question as to misjoinder or nonjoinder. The parties received proper notice of the hearing in the matter. To the extent that the findings of fact contain conclusions of law, or that the conclusions of law are findings of fact, they should be so considered without regard to the given labels.

2. A party moving for summary judgment satisfies its burden of proof (1) by showing an essential element of the opposing party's claim is nonexistent or cannot be proven, or (2) by showing that the opposing party cannot produce evidence to support an essential element of his or her claim or (3) the opposing party cannot surmount an affirmative defense which would bar the claim. See Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982). When ruling on summary judgment, the evidence is viewed in the light most favorable to the non-moving party, according that party the benefit of all reasonable inferences. See Bailey v. Blue Cross & Blue Shield of Virginia, 67 F.3d 53 (4th Cir. 1995) cert. denied, 516 U.S. 1159, 116 S.Ct. 1043, 134 L.Ed.2d 190 (1996).

3. Pursuant to 12 NCAC 9E .0107, Respondent shall summarily suspend a law enforcement officer’s certification upon receiving notification that the officer has failed to complete annual in-service firearm qualification as required by 12 NCAC 9E .0106.

4. Petitioner failed to qualify with his service weapon as required by 12 NCAC 9E . 0106 during calendar year 2004 and does not fall within any exception to any rule, law or regulation that would excuse his failure to qualify.

5. Based on the Petitioner’s failure to complete firearm qualification during the calendar year 2004, there are no litigable issues for the Administrative Law Judge to decide regarding whether or not the Petitioner has failed to meet and maintain minimum standards for certification. Respondent has carried its burden of proof in support of its Motion for Summary Judgment.

BASED UPON the foregoing Findings of Fact and Conclusions of Law, the Undersigned makes the following:

PROPOSAL FOR DECISION

NOW, THEREFORE, based on the foregoing, the Undersigned hereby finds proper authoritative support of the Conclusions of Law noted above. The Undersigned hereby grants Respondent’s Motion for Summary Judgment, and proposes that the same be adopted; and, that this hearing petition be dismissed, and Respondent suspend Petitioner’s law enforcement certification. 3 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.G.S. § 150B-40(e).

The agency that will make the final decision in this contested case is the North Carolina Criminal Justice Education and Training Standards Commission.

A copy of the final agency decision or order shall be served upon each party personally or by certified mail addresses to the party at the latest address given by the party to the agency and a copy shall be furnished to any attorney of record. N.C.G.S. § 150B-42(a). In accordance with N.C. Gen. Stat. § 150B-36(b), the agency shall serve a copy of the Final Decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, North Carolina, 27699-6714.

IT IS SO ORDERED.

This the 23rd day of August, 2005.

______Augustus B. Elkins II Administrative Law Judge