State of North Carolina s82

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF WAKE 06 DOJ 0227

KIMBERLY K. ENNIS, ) Petitioner, ) ) v. ) PROPOSAL FOR DECISION ) NORTH CAROLINA ALARM SYSTEMS ) LICENSING BOARD, ) Respondent. ) ______)

This contested case was heard before Senior Administrative Law Judge Fred G. Morrison Jr. on February 28, 2006, in Raleigh, North Carolina.

APPEARANCES

Petitioner appeared pro se.

Respondent was represented by attorney Charles F. McDarris.

WITNESSES

Petitioner – Petitioner testified on her own behalf. Jim Debevec, Kevin Boehm, and Jill Wade also testified for Petitioner.

Respondent – Deputy Director Terry Wright testified for the Board.

Whether grounds exist for Respondent to deny Petitioner’s alarm registration permit application for knowingly making false statements in the application.

BURDEN OF PROOF

Respondent has the burden of proving that Petitioner’s application for an alarm registration permit should be denied. 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. 74D-2; 74D-6(3); 74D-6(5); 74D-8; 74D-9; 74D-10; 12 NCAC 11 §§ .0100; .0200; .0300.

FINDINGS OF FACT

1. Respondent Board is established pursuant to N.C.G.S. 74D-1 et seq. and is charged with the duty of licensing and registering individuals engaged in the alarm systems business.

2. Petitioner is a 41 year old married female. She is currently employed with Simplex Grinnell as a receptionist. Simplex Grinnell is engaged in numerous activities that do not require an alarm systems business license. Company representatives testified that Petitioner is segregated from the alarm division and that the company understands that any individual exposed to the alarm division is required to be licensed or registered.

3. Petitioner applied to Respondent Board for an alarm registration permit. Petitioner provided the following responses on the application: Have you ever pled guilty to any crime (Felony or Misdemeanor)? – “No.” Have you ever been convicted of any crime (Felony or Misdemeanor)? – “No.” Been Paroled or Been on Probation? – “No.”

4. Petitioner submitted a criminal record check from Wake County showing that no criminal record existed for Kimberly Kelly Ennis.

5. In her application for an alarm registration permit, Petitioner checked “NO” to all subparts of the question which asked, “Have you ever pled guilty to any crime (Felony or Misdemeanor);” “Have you ever been convicted of any crime (Felony or Misdemeanor);” “Served time;” and “Been paroled or been on probation.”

6. Respondent Board performed a standard criminal background check on Petitioner pursuant to her application. The Board determined from a check of the database maintained by the Administrative Offices of the Courts that Petitioner had been convicted in Wake County in 1984 of Felony Possession of Cocaine [1983 CRS 74036].

7. Petitioner’s application was subsequently denied for falsification of the application.

8. Petitioner testified that when she went to get her criminal record check she asked the assistant in the Clerk of Superior Court’s Office if the check showed all convictions. The Clerk responded “yes.” Petitioner submitted a criminal record check for Kimberly Kelly Ennis showing no criminal record.

9. Petitioner acknowledged that in 1984 she was not married and went by her maiden name of Kimberly Dawn Kelly. She stated that she asked the Clerk’s office to run a check with her maiden name and it came up negative. She did not submit to the court or Board a check showing no convictions under her maiden name.

2 10. Petitioner testified that she was associated with the wrong crowd in 1984 and that a friend of hers was caught selling cocaine. Petitioner was driving the car when her friend was caught. The police charged both and her car was subsequently confiscated by the police.

11. Petitioner testified that she spent a night in jail and that her father had to put up his house as collateral for her bond.

12. Petitioner testified that she did not remember the specific details as to whether she was convicted or not.

13. Petitioner stated that she has never lied about the incident and as recent as a year ago she applied for a position with the United States Postal Service, and she indicated to them that she had the conviction.

14. Petitioner stated that she believed that the matter was behind her and had been removed from her record when she received the Wake County criminal record check that showed she had no convictions. She subsequently checked “No” to the questions about her criminal history.

15. Jim Debevec, District General Manager in Raleigh for Simplex Grinnell, testified that Petitioner is a model employee. She is dependable and they are interested in keeping her employed. Mr. Debevec did not know Petitioner prior to her employment.

16. Kevin Boehm is the licensee and office manager for Simplex Grinnell. He also testified and gave support for Petitioner’s registration.

17. Jill Wade is Petitioner’s immediate supervisor and testified that she has found Petitioner to be honest and fair and a model employee. She finds her character to be good.

CONCLUSIONS OF LAW

Pursuant to G.S. 74D-6(5), Respondent Board shall deny an applicant’s request for an alarm registration permit when the applicant has knowingly made any false statement or misrepresentation in his or her registration application to the Board.

Respondent Board presented evidence of Petitioner’s falsified application.

In her alarm registration permit application, Petitioner answered “no” to the questions, “Have you ever pled guilty to any crime (Felony or Misdemeanor);” “Have you ever been convicted of any crime (Felony or Misdemeanor);” “Been paroled or been on probation.”

Petitioner’s statements to the Court that she had asked the Clerk whether the conviction would appear on her criminal record check, that she reported the conviction on her application to the US Postal Service, and that she was pleased to see her Wake County criminal record check did not show the 1984 conviction, is all evidence that she was aware of the 1984 conviction.

3 Therefore, Petitioner knowingly made false statements in her alarm registration permit application concerning her criminal record.

Based on the foregoing, the undersigned makes the following:

PROPOSAL FOR DECISION

The North Carolina Alarm Systems Licensing 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 alarm registration permit.

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, NC 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 Alarm Systems Licensing Board.

This the 14th day of March, 2006.

______Fred G. Morrison Jr. Senior Administrative Law Judge