State of North Carolina s24

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF WAKE 01 DOJ 1497

FRANCES HOI CHAN, ) Petitioner, ) v. ) DECISION ) N.C. ALARM SYSTEMS ) LICENSING BOARD, ) Respondent. )

This contested case was heard before Administrative Law Judge Sammie Chess, Jr. on November 27 and 28, 2001 in Raleigh, North Carolina.

APPEARANCES For Petitioner: T. Byron Smith Thigpen, Blue, Stephens & Fellers

For Respondent: Bradford A. Williams Holt York McDarris, LLP

WITNESSES

Petitioner– Petitioner appeared and testified on his own behalf; Jack Li testified on behalf of Petitioner.

Respondent– Investigator Lisa Britton testified on behalf of the Board.

ISSUES DID PETITIONER ENGAGE IN CONDUCT THAT IS DEFINED UNDER NCGS §74D-2 AS ENGAGING IN THE "ALARM SYSTEMS BUSINESS" WITHOUT BEING LICENSED?

BURDEN OF PROOF

The Respondent has the burden of proof to show that Petitioner violated the Act. NCGS §74D-2(a) provides in part the following: (a) No person, firm, association, corporation, or department or division of a firm, association, or corporation, shall engage in or hold itself out as engaging in an alarm systems business without first being licensed in accordance with this chapter.

Subsection (a) defines "alarm system business" as "any person, firm, association, or corporation which sells or attempts to sell by engaging in a personal solicitation at a residence or business when combined with personal inspection of the interior of the residence or business to advise on specific types and specific locations of alarm system devices, installs, services, monitors or responds to electrical, electronic or mechanical alarm system devices, burglar alarms, television cameras or still cameras used to detect burglary, breaking and entering, intrusion, shoplifting, pilferages or theft." NCGS §74D-2(a)

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; 74D-8; 74D-10(a); 12 NCAC 11 §§ .0100, .0200, and .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 burglar alarm systems profession.

2. Petitioner applied to Respondent Board for a burglar alarm business license.

3. For an applicant to qualify for a burglar alarm business license, he or she must establish to Respondent Board’s satisfaction two years’ experience in the past five years in alarm systems installation, service, or alarm systems business management. In lieu of meeting these experience requirements, an applicant for a burglar alarm business license may qualify for a license by successfully passing an oral or written examination deemed by Respondent Board to measure an individual’s knowledge and competence in the alarm systems business.

4. In responding to a question on his burglar alarm business license application, Petitioner stated that “we [his company, Norina Electrical and Mechanical Company] are collaborating with other licensed companies installing security alarm, fire alarm, and closed circuit TV systems for schools and office buildings.”

5. Pursuant to Petitioner’s burglar alarm business license application, Investigator Lisa Britton (hereinafter “Investigator Britton”) conducted a background interview with the Petitioner. Investigator Britton testified that she conducted this interview with Petitioner on or around February 21, 2001, and that she intended to clarify Petitioner’s experience in the burglar alarm profession by asking him about his involvement in the burglar alarm business.

6. In her testimony, Investigator Britton stated that she has a master’s degree in public administration, that she has been employed by Respondent Board as an investigator for two years, five months, and that during her employment as an investigator with Respondent Board she has reviewed approximately 150 licensure applications and conducted personal interviews with the applicants.

2 7. Investigator Britton testified that, on February 21, 2001, when she inquired into Petitioner’s experience in the burglar alarm business, Petitioner stated that he had made bids on behalf of his company, Norina Electrical and Mechanical Company (hereinafter “Norina”), to provide electrical and security services in North Carolina. She further testified that Petitioner specifically identified the Town of Carrboro, North Carolina and the Charlotte-Mecklenburg County School System as entities for whom Norina has provided electrical, fire and security services.

8. According to Investigator Britton, Petitioner told her during their interview that Norina sub- contracted the security system work to licensed burglar alarm companies, but Petitioner admitted to her that he has assisted with these accounts by pulling wires, pulling conduit, and installing control panels. Investigator Britton stated that Petitioner also identified William Boyer of Carolina Alert as an individual with whom he assisted in the installation of a burglar alarm system at a job site in North Carolina. She, however, further testified that the licensee for Carolina Alert informed her that his company has not collaborated with Petitioner on any burglar alarm project in North Carolina.

9. Investigator Britton testified that she didn’t recall how long the interview with Petitioner lasted, but that she took notes of the conversation on approximately one half of a page of legal-sized notepaper.

10. Investigator Britton stated that she did not question Petitioner about his experience in the fire alarm business in North Carolina. She further stated that she decided not to conduct a follow-up investigation of Petitioner’s claims to have engaged in the burglar alarm business in North Carolina because she took Petitioner’s assertions at face value.

11. With his burglar alarm business license application, Petitioner submitted a letter of recommendation from Jack Li, Norina’s manager, dated December 19, 2000. In this letter of recommendation, Mr. Li wrote that “in the past four years, Norina . . . has been collaborating with various alarm companies representing Siemens System, and Edwards Systems for the layouts and installations of alarm devices.” Mr. Li went on to identify Petitioner as the supervisor for these installation projects.

12. By way of letter dated April 14, 2001, Jack Li informed Respondent Board that when he made reference to “alarm system” in the letter included with Petitioner’s application that he meant “fire alarm system” not “burglary alarm system.” Mr. Li concluded the letter by asserting that Norina has not engaged in the burglar alarm business.

13. In his testimony on November 27, 2001, Mr. Li reiterated that he meant “fire alarm system” when he wrote, in the December 19, 2000 letter, that Norina “has been collaborating with various alarm companies . . . for the layouts and installations of alarm devices.” Mr. Li further testified that, as Norina’s manager for the past two years, he has worked primarily out of Norina’s office in Carrboro and not at the specific installation sites.

3 14. Mr. Li stated in his testimony that he remembered the Charlotte-Mecklenburg County School System job, in which Norina bid on a general electrical package project which included the installation of a burglar alarm system. Mr. Li also admitted that Norina has collaborated in the installation of burglar alarm systems, as stated in Petitioner’s burglar alarm business license application.

15. Petitioner submitted on April 14, 2001, prior to Respondent Board’s decision to deny his burglar alarm business license, a letter and memorandum explaining his experience in the burglar alarm business. According to this memorandum, Petitioner has in the past five years installed a security alarm system for a twelve-unit apartment that he owns. He has also installed a security system for his wife’s restaurant in Carrboro, North Carolina, and installed a security system for Norina’s office in Carrboro, with both projects completed within the past five years. According to Investigator Britton, Petitioner was exempted pursuant to Chapter 74 of the North Carolina General Statutes from the requirement of needing a license or registration from Respondent Board to complete these aforementioned projects.

16. In the memorandum submitted by Petitioner to Respondent Board on April 14, 2001, Petitioner wrote that in the past five years he has had experience installing closed circuit television systems, cameras, VCR, and switch boards, as well as repairing burglar alarm systems.

17. Petitioner clarified in his April 14, 2001 letter to Respondent Board that Jack Li meant “fire alarm system” when he wrote “alarm system” or “alarm devices” in his December 19, 2000 letter to Respondent Board. In this same letter, Petitioner wrote that Norina has not been involved in the burglar alarm business in North Carolina.

18. Petitioner testified on November 28, 2001 that he obtained an unlimited, North Carolina electrical license approximately four years ago. He further testified that he moved to North Carolina in 1972 from California, and that he co-founded Norina upon his move to this state. He also stated that he has an ownership interest in the trust that owns Norina, with his children being the beneficiaries of the trust upon his death.

19. Petitioner has a Ph.d. from the University of North Carolina at Chapel Hill, and he testified that when he was an undergraduate at San Diego State University in California that he worked various odd jobs, including at a fire alarm and security alarm company where he designed electronic devices.

20. According to Petitioner’s testimony, Norina began as a biomedical and medical equipment company. Petitioner stated that, in recent years, the company has moved into electrical contracting.

21. Petitioner admitted to installing and repairing burglar alarm systems during the past five years. He testified, however, that his work in the burglar alarm business has been confined

4 to the New York City area, except when he has installed burglar alarm systems in North Carolina for locations owned by himself or Norina.

22. Petitioner tendered as evidence a notarized letter from his brother-in-law in which his brother-in-law writes that Petitioner has assisted with the installation of Closed Circuit Television Systems when Petitioner has come to New York City to visit family.

23. Petitioner testified that, on behalf of Norina, he has bid projects involving the Town of Carrboro and the Charlotte-Mecklenburg County School System, but that Norina served as the prime contractor for the installation of burglar and fire alarm systems on both of these projects. According to Petitioner, Norina also served as the prime electrical contractor for the Charlotte-Mecklenburg County School System job.

24. With regard to the Town of Carrboro project, Petitioner alleged that Norina contracted out the burglar alarm system installation to Champion Systems, Inc. For the Charlotte- Mecklenburg County School System job, Petitioner stated that Norina contracted out the security system work to Siemens.

25. Petitioner testified that Norina was responsible for the work completed by Champion and Siemens on the aforementioned projects because Norina was the prime electrical contractor. As the supervisor for Norina, Petitioner stated that it was his job to make sure that the electrical wiring had been placed correctly, but testified further that he did not assist with the actual installation of the burglar alarm systems. According to Petitioner, Champion and Siemens technicians completed the burglar alarm systems installations.

26. With reference to William Boyer of Carolina Alert, Petitioner admitted in his testimony that Mr. Boyer worked on a Norina project in Durham, North Carolina, but Petitioner denied that he assisted Mr. Boyer in the installation of a burglar alarm system at this project site.

27. Petitioner also admitted in his testimony that he informed Investigator Britton, during their interview on February 21, 2001, that he has pulled wire, pulled conduit, and installed control panels for Norina accounts in North Carolina. He stated, however, that he has done this work solely for fire alarm systems.

28. Petitioner testified that, with regard to both the Town of Carrboro and Charlotte- Mecklenburg County School System projects, he pulled wire which connected the security systems to the rest of the electrical wiring in the buildings.

29. Investigator Britton testified that Petitioner has passed the alarm systems business examination.

30. Petitioner testified that as the prime electrical contractor he was responsible for insuring that both the fire alarm system and burglar alarm system was wired in accordance with the architects' plans. This meant making sure that the systems had a power supply to hook into e.g. providing the "raceway".

5 31. Petitioner testified that he has done burglar alarm systems in other states, but never in North Carolina. He admitted that he has bid as a prime contractor on projects for security systems. These systems had both a fire alarm component and a burglar alarm component.

32. Petitioner used subcontractors to install the burglar alarm systems. On the Mecklenburg County School project he used Champion Systems, Inc. On the Carrboro project he used Siemens.

33. Petitioner testified that he had been collaborating with various alarm companies for the layouts and installation of alarm devices. He stated that he was referring to his work with the subcontractors he used to install burglar alarm systems for projects he had been awarded via the bid process when he referred to collaborating with various alarm companies.

34. Chapter 74D-2 does not specifically exclude persons from "bidding" on projects for the installation of alarm systems nor does the chapter define "bidding" on projects as engaging in the "alarm systems business".

35. Neither Petitioner nor Respondent presented any evidence that Petitioner, while doing business in North Carolina, other than for his own businesses, "sold or attempted to sell by engaging in a personal solicitation at a residence or business when combined with personal inspection of the interior of the residence or business to advise on specific types and specific locations of alarm systems devices, installs, services, monitors or responds to electrical, electronic or mechanical alarm signal devices, burglar alarms, television cameras or still cameras used to detect burglary, breaking or entering, intrusion, shop lifting, pilferage, or theft." NCGS §74D-2(a).

CONCLUSIONS OF LAW

1. North Carolina General Statutes § 74D-2(a) provides in pertinent part that “no person, firm, association, corporation, or department or division of a firm . . . shall engage in or hold itself out as engaging in an alarm systems business without first being licensed in accordance with this Chapter.”

2. Pursuant to North Carolina General Statutes § 74D- 6(1), Respondent Board may deny a burglar alarm business license application when the applicant has committed an act for which Respondent Board may suspend or revoke the license or registration of a licensee or registrant.

3. Pursuant to North Carolina General Statutes § 74D-10(a)(7), Respondent Board may suspend or revoke a license or registration when the licensee or the registrant has “engaged in or permitted any employee to engage in any alarm systems business when not lawfully in possession of a valid license issued under the provisions of this Chapter.”

6 4. In essence, Respondent's case is that Petitioner admitted to "pulling wires" during his interview with Investigator Britton. Petitioner testified that he informed Investigator Britton that he pulled wires for fire alarm systems.

5. Respondent has not offered any evidence other than Petitioner's alleged admission.

6. In State v. Thompson, 287 N.C. 303, 214 S.E.2d 742 (1975), our Supreme Court stated that the long standing rule is that the State must introduce sufficient extrinsic corroborative evidence as will, when taken in connection with the accused's confession, show that the crime was committed and the accused was the perpetrator. Id. at 287 N.C. 303, 324, 214 S.E.2d 742, 755. "A naked extrajudicial confession is insufficient to prove that defendant committed the offense charged", State vs. Thomas, 241 N.C. 337, 341, 85 S.E.2d 300, 302 (1955). Here, the state has produced no corroborative evidence that Petitioner violated the statute. The state did not interview Champion Systems, Inc. or Siemens.

7. Thus, Respondent has failed to carry its burden to prove that Petitioner had engaged in prohibited activity.

Based on the foregoing Findings of Fact and Conclusion of Law, the undersigned makes the following:

DECISION

Respondent has failed to carry its burden of proof that Petitioner’s burglar alarm business license application should be denied.

IT IS HEREBY ORDERED that the Agency make the final decision in this matter, serve a copy of that decision on the Office of Administrative Hearings, P. O. Drawer 27447, Raleigh, North Carolina 27611-7447, in accordance with North Carolina General Statutes §150B-36A.

NOTICE

The Agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this proposed decision and to present written arguments to those in the Agency who will make the final decision. North Carolina General Statutes §150B-36A.

This the 31 day of December, 2001.

______Sammie Chess, Jr., Administrative Law Judge