STATE OF NORTH CAROLINA by RD12MB

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									STATE OF NORTH CAROLINA                                           IN THE OFFICE OF
                                                              ADMINISTRATIVE HEARINGS
COUNTY OF WAKE                                                       02 DOJ 0945

MARVIN RAY JOHNSON,                           )
               Petitioner,                    )
                                              )
       v.                                     )               PROPOSAL FOR DECISION
                                              )
NORTH CAROLINA PRIVATE                        )
PROTECTIVE SERVICES BOARD,                    )
               Respondent.                    )

       This contested case was heard before Administrative Law Judge Fred G. Morrison Jr. on
July 30, 2002, in Raleigh, North Carolina.

                                         APPEARANCES

       Petitioner appeared pro se.

       Respondent was represented by attorney Benjamin R. Kuhn.

                                           WITNESSES

       Petitioner - Petitioner testified on his own behalf.

       Respondent – Former Investigator Brad Cranford testified for Respondent Board.

                                              ISSUES

        Whether to uphold Respondent’s decision to levy a civil penalty in the amount of
$2,000.00 against Petitioner for alleged violations of the rules and regulations of the Private
Protective Services Board.

                                      BURDEN OF PROOF

        Respondent has the burden of demonstrating that the civil penalty should be upheld.
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. 74C-2; 74C-3; 74C-12(7); 74C-12(20); 12 NCAC 7D § .0400.
                                     FINDINGS OF FACT

1.    Respondent Board is established pursuant to N.C.G.S. 74C-1 et seq., and is charged with
      the duty of licensing and registering individuals engaged in the private protective services
      profession, including private investigators.

2.    Petitioner was issued a Private Investigator’s License on February 23, 1988 (#1067).

3.    In February 1995, Mr. Hussein Gholami approached Petitioner to retain his services in
      locating his missing wife and child.

4.    From February 8, 1995, to September 1, 1995, Petitioner conducted an investigation into
      the whereabouts of Mr. Gholami’s wife and child. Petitioner was ultimately unable to
      locate Petitioner’s wife and child.

5.    Mr. Gholami paid Petitioner a $500.00 retainer fee on February 2, 1995, $1,500.00 on
      February 8, 1995, and $1,000.00 on February 17, 1995.

6.    On or about September 1, 1995, Mr. Gholami sent a letter to Petitioner effectively
      terminating his investigative services. In this letter, Mr. Gholami also requested that
      Petitioner forward a copy of his file and all information obtained during the investigation
      to Mr. Gholami’s attorney Mr. Ray Colton Vallery at 596 Executive Place, Suite 101-102
      Corporate Centre, P.O. Box 53689, Fayetteville, NC 28305. Mr. Gholami also requested
      an accounting of the money he paid to Petitioner.

7.    Petitioner sent a letter dated September 30, 1995, to Mr. Vallery, explaining the efforts
      made to locate Mr. Gholami’s wife and child, the results of his search, and attached six
      pages attempting to document his efforts and search (the “Report”).

8.    On July 8, 1996, PPSB Investigator Brad Cranford initiated an investigation into a
      complaint filed by Mr. Gholami against Petitioner. The complaint alleged that Petitioner
      failed to render services contracted for and failed to provide a written report to his client
      within 30 days of a written request. If proven true, these alleged actions would be in
      violation of N.C.G.S. 74C-12(7) and 74C-12(20), respectively.

9.    Subsequently, on July 9, 1996, Mr. Gholami sent a certified letter to Petitioner requesting
      the Report.

10.   In response to Mr. Gholami’s July 9, 1996 letter, Petitioner sent a copy of the Report
      directly to Mr. Gholami.

11.   On July 30, 2002, Investigator Cranford testified that, in his opinion, Petitioner did
      conduct an investigation into the whereabouts of Mr. Gholami’s wife and child, timely
      issued the Report to Mr. Vallery as directed by his client, and upon a subsequent specific
      request also sent the Report directly to Mr. Gholami.




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                                    CONCLUSIONS OF LAW

         Pursuant to N.C.G.S. 74C-12(7) and 74C-12(20), Respondent Board may assess fines or
penalties against a licensed private investigator for failing to conduct an investigation for a client
or failing to provide a report to a client detailing the results of any investigation within 30 days
of receipt of a written request thereof.
         Respondent Board failed to show by the greater weight of evidence that Petitioner did not
conduct an investigation as required by N.C.G.S. 74C-12(7). Further, Respondent Board failed
to prove by sufficient evidence that Petitioner did not timely provide a report upon request as
required by 74C-12(20).

       Based on the foregoing, the undersigned makes the following:

                                   PROPOSAL FOR DECISION

        The North Carolina Private Protective Services Board will make the final decision in this
contested case. It is proposed that the Board REVERSE its initial decision to assess a $2,000.00
civil penalty against Petitioner for the alleged violations of N.C.G.S. 74C-12(7) and 74C-12(20).

                                              ORDER

       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, N.C. 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
Private Protective Services Board.

       This the 6th day of August, 2002.



                                               __________________________________________
                                               Fred G. Morrison Jr.
                                               Senior Administrative Law Judge




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