STATE OF NORTH CAROLINA - DOC 3 by cYzNZE4

VIEWS: 7 PAGES: 5

									STATE OF NORTH CAROLINA                                         IN THE OFFICE OF
                                                            ADMINISTRATIVE HEARINGS
COUNTY OF RUTHERFORD                                                02 DOJ 1696

Joshua Steven McCraw,                           )
              Petitioner,                       )
                                                )
       v.                                       )                   DECISION
                                                )
North Carolina Sheriff’s Education and          )
Training Standards Commission,                  )
              Respondent.                       )

       This case came on for hearing on April 11, 2003 before Administrative Law Judge James
L. Conner, II, in Hendersonville, North Carolina. This case was heard after Respondent
requested, 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.

                                         APPEARANCES

Petitioner:           Garland F. Byers, Jr.
                      Attorney for Petitioner
                      P. O. Box 943
                      Rutherfordton, NC 28139

Respondent:           Lorrin Freeman
                      Attorney for Respondent
                      Department of Justice
                      P. O. Box 629
                      Raleigh, NC 27602-0629

                                             ISSUE

        Is the Respondent’s proposed denial of the Petitioner’s application for certification as a
justice officer supported by substantial evidence?

                                     FINDINGS OF FACT

                                        STIPULATED FACTS
1.       Both parties are properly before this Administrative Law Judge in that jurisdiction and
venue are proper, that both parties received proper notice of hearing required pursuant to
N.C.G.S. 150B-38, and that Petitioner received notice of the Proposed Denial of his application
for his justice officer certification mailed by Respondent on September 27, 2002.

2.    The North Carolina Sheriffs’ Education and Training Standards Commission
(Respondent) has the authority granted under Chapter 17E of the North Carolina General
Statutes and Title 12 of the North Carolina Administrative Code, Chapter 10, Subchapter 10B,
to certify justice officers as either deputy sheriffs or jailers, and to deny, revoke or suspend such
certification.

3.      That Rule 12 NCAC 10B.204(d)(2) provides “The 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 (2) a crime or unlawful
act defined in 12 NCAC 10B.0103(10)(b) as Class B misdemeanor within the five-year period
prior to the date of appointment.

4.      That Sell/Give Malt Beverage to a Person Less than 21 years of age in violation of
N.C.G.S. § 18B-302(a)(1) is a Class B. misdemeanor as defined in 12 NCAC 10B .0103(10(b).
That the offense of Unlawfully and Willingly Selling Alcoholic Beverages Without a Permit, in
violation of 18B-304(a) is a Class B misdemeanor as defined in 12 NCAC 10B.0103(10)(b).

5.      That Petitioner was appointed to a position with the Rutherford County Sheriff’s Office
effective December 20, 2001. This was within five years of the incident giving rise to this
action.

6.      Petitioner completed the orientation block of Basic Law Enforcement Training on two
occasions: August 23, 2000 at Isothermal Community College and August 20, 2001 at Western
Piedmont Community College. As part of the orientation block, Petitioner received instruction
on the requirements for law enforcement certification. This information included instruction on
disqualification as set out in 12 NCAC 10B .204(d)(2). Petitioner executed and signed an
Acknowledgement of Certification or Prerequisites in which he stated that he understood the
requirements for certification as set out in the Course Orientation block of instruction.

                                 ADJUDICATED FACTS
                          TESTIMONY OF OFFICER JOSH HAMLIN

7.      Josh Hamlin testified that he was the officer who charged the Petitioner with the offenses
stipulated and that, at the time of the incident, he was employed as an officer with the Isothermal
Narcotics Task Force. He is now an officer with the Gaston County Police Department.

8.     Officer Hamlin was working undercover in the parking lot of Chase High School in
Forest City, North Carolina, and heard an unknown person say something about a party at Mrs.
McCraw’s residence. Officer Hamlin testified that Mrs. McCraw, who is the Petitioner’s
mother, was of his own knowledge a local school teacher in the public school system.

9.      Officer Hamlin stated that he and another officer went to Mrs. McCraw’s residence in
order to investigate any violations of the North Carolina Criminal law.

10.    Upon arrival, Officer Hamlin stated that he encountered a person that he later came to
know as the Petitioner who told him that if he wanted to drink beer at the party there was a $5.00
charge to get in. Officer Hamlin said that he paid the charge and entered the field where the
party was being held. He observed two kegs of beer from which people were drinking. Officer
Hamlin said that he observed persons whom he believed to be under the legal drinking age at the
party whereupon he disclosed his identity as a law enforcement officer and terminated the party.


                                                 2
11.    Officer Hamlin subsequently charged the Petitioner with underage possession of a malt
beverage and sell/give a malt beverage to a person less than 21 years of age.

12.     The Petitioner entered into a deferred prosecution agreement with the State of North
Carolina requiring the payment of $186.00 and the performance of 24 hours of community
service in exchange for a dismissal of the charges.

                      TESTIMONY OF CHIEF DEPUTY C. PHILLIP BYERS
                      RUTHERFORD COUNTY SHERIFF’S DEPARTMENT

13.     Charles Phillip Byers testified that he is the Chief Deputy of the Rutherford County
Sheriff’s Department (RCSD) and that he has over 10 years of law enforcement experience.

14.    Chief Byers has known the petitioner since the Petitioner began working as an Animal
Control Officer with the RCSD.

15.    The Petitioner has not had any disciplinary problems since he began work at the RCSD.
There have been no complaints filed by anyone against the Petitioner.

16.   The Petitioner does his job in a very professional manner and is considered by the Chief
Deputy to be an asset to the Sheriff’s Department.

17.    Chief Byers testified that he wanted to keep the Petitioner as an officer with his
department and that the petitioner is a credit to the law enforcement profession.

18.    Chief Byers said that he was not under subpoena to attend the administrative hearing in
this matter and that he was present because he felt so very strongly that the Petitioner should be
allowed to continue his career in law enforcement and that his certification should not be denied.

                           TESTIMONY OF P. J. BYERS, JR.
             LIEUTENANT – RUTHERFORD COUNTY SHERIFF’S DEPARTMENT

19.     Perry Jeffery Byers, Jr., testified that he was a Lieutenant with the RCSD and that he is
currently assigned as the Department’s Training Officer and as the Commander of the Sheriff’s
Emergency Response Team. Lt. Byers has over 25 years of law enforcement experience and
service.

20.     Lt. Byers testified that he has known the Petitioner all of the Petitioner’s life. He testified
that the Petitioner is of good moral character and that he should be allowed to continue his career
in law enforcement without any detrimental action by the Commission.

21.     Lt. Byers said that he was also not under subpoena and that he was present for the
administrative hearing to voice his concern and to support the Petitioner because he believed that
the Petitioner is a fine young man and officer and a credit to his department.

                        TESTIMONY OF DAVID PHILBECK
             CAPTAIN – RUTHERFORD COUNTY SHERIFF’S DEPARTMENT



                                                  3
22.    David Philbeck is currently serving as a Captain with the RCSD with over 30 years of
law enforcement experience and service.

23.   Captain Philbeck is currently the Petitioner’s commanding officer at the County Sheriff’s
Department.

24.     Captain Philbeck testified that he has known the Petitioner since the Petitioner began
working at the RCSD and that the Petitioner has been an exemplary officer. He said that the
Petitioner has had no disciplinary problems or complaints since he began working at the RCSD.

25.     The Captain testified that he believes the Petitioner should not be denied certification and
that the Petitioner is a fine officer and an asset to his department. He said he was present
voluntarily at the hearing as were the other command officers with his department.

                              TESTIMONY OF THE PETITIONER

26.    The Petitioner is currently serving as an Animal Control Officer with the RCSD.

27.     The Petitioner testified that when he was eighteen (18) years of age he had a birthday
party at his residence. He said that over 100 people attended and that some of the persons in
attendance were less than 21 years of age.

28.     No one checked the identification of persons who were provided alcoholic beverages on
that evening.

29.    The Petitioner sold cups for $2.00 per cup to persons who wanted to buy one. It was not
necessary for persons to purchase a cup from the Petitioner in order to consume alcoholic
beverages on the night of the Petitioner's birthday party.

                                     CONCLUSIONS OF LAW

1.      This matter is properly before the undersigned Administrative Law Judge, and
jurisdiction and venue are proper.

2.      Pursuant to 12 NCAC 10B .0204(d)(2), the Commission may revoke, suspend, or deny
the certification of a justice officer when the Commission finds that the certified officer has
committed or been convicted of a crime or unlawful act defined in 12 NCAC 10B.0103(10)(b) as
a Class B misdemeanor within the five-year period prior to the date of appointment.

3.     Petitioner committed the Class B misdemeanor of unlawfully and willingly selling
alcoholic beverages, to wit Beer, without a permit in violation of G.S. 18B-304 on or about
October 16, 1998, when he sold alcoholic beverages at a birthday party on said day in Rutherford
County, North Carolina.

4.     Petitioner committed the aforementioned Class B misdemeanor on the date specified
above, and the Court finds that the Petitioner admitted this fact by entering into a Deferred
Prosecution Agreement with the State of North Carolina in the District Court of Rutherford
County.


                                                 4
                                                ORDER

        Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby
recommended that Petitioner’s certification be denied for the commission and conviction of the
Class B misdemeanor offense, Unlawful Selling Alcoholic Beverages, to wit Beer, without a
permit under N.C. Gen. Stat. § 18B-304(a). It is further recommended that the aforementioned
denial of certification be stayed and that the Petitioner be placed on a period of probation for
nine (9) months on the condition that he violate no laws of the State of North Carolina or of any
other State or of the United States. Upon completion of the probationary period, it is further
recommended that the Petitioner’s certification be continued in effect and that he be allowed to
serve as a law enforcement officer in this State as permitted by such certificate. Additionally, it is
recommended that the Petitioner continue to be allowed to serve in his present capacity, or in any
other capacity permitted by his current certification, during the period of his aforementioned
probation.

                                              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 G.S. 150B036(b)(b1)
and (b2). 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. G.S. 150B-36(a).

       The agency that will make the final decision in this contested case is the N.C. Sheriffs’
Education and Training Standards Commission.


       This the 1st day of December, 2003.



                                               _______________________________________
                                               James L. Conner, II
                                               Administrative Law Judge




                                                  5

								
To top