STATE OF NORTH CAROLINA IN THE OFFICE OF
COUNTY OF HAYWOOD 03 LLB 1325
KENNETH ALLEN PACE, )
v. ) DECISION
NORTH CAROLINA LOCKSMITH )
LICENSING BOARD, )
This matter was heard before James L. Conner, II, Administrative Law Judge, on
Thursday, December 4, 2003, in Hendersonville, North Carolina. Petitioner provided proposed
Findings of Fact and Conclusions of Law on February 2, 2004, and Respondent did the same on
February 19, 2004.
For Petitioner: Judith Fraser
Waynesville, North Carolina
For Respondent: P. Bly Hall, Assistant Attorney General
Raleigh, North Carolina
Whether the North Carolina Locksmith Licensing Board (Board) should adopt the
recommendation of its Standards Committee that Petitioner’s application for a license as a
locksmith be denied for either or both of the following reasons:
a. Petitioner gave false information to or withheld information from the Board in attempting
to procure a license when he stated on his application that he had never been convicted of
a criminal offense other than a minor traffic violation.
b. Petitioner pled guilty to misdemeanor larceny by trick on August 30, 1999.
APPLICABLE STATUTES AND RULES
N.C. Gen. Stat. §§ 74F-2, 74F-7, and 74F-15
21 N.C.A.C. 29 .0402
S.L. 2001-369, s. 2
The following people testified:
Ann Pace - Wife of Petitioner
Kenneth Pace - Petitioner
Anna Bridgers - Associate Director; North Carolina Locksmith Licensing Board
Greg Wright - member of the Board and of the Standards Committee
The following exhibits were admitted into evidence:
R1 - Letter dated May 27, 2003, from Kenneth Allen Pace
R2 - Application for license from Kenneth Allen Pace
R3 - Judgment Suspending Sentence 99CR059019
R4 - Memorandum dated December 30, 2002, from Jim Scarborough; Department of
Corrections record for Kenneth Allen Pace; Judgment Suspending Sentence 99CR059019;
Warrant for arrest of Kenneth Allen Pace for embezzlement;
R5 - Handwritten information on letterhead of Pace’s Lock and Key; Memorandum dated
December 30, 2002, from Jim Scarborough; criminal record check, Haywood County; criminal
record check, Buncombe County
R6 - Letter dated May 21, 2003, to Kenneth Allen Pace from Joe McCann, Standards
ADDENDUM TO EXHIBITS
Cover letter from P. Bly Hall, Respondent’s attorney, dated January 20, 2004, with
fingerprint card of Kenneth Allen Pace, letter dated December 16, 2003, from Jim Scarborough
to the State Bureau of Investigation (SBI), and computerized criminal history of Kenneth Allen
Pace from the SBI.
FINDINGS OF FACT
Based upon the exhibits admitted into evidence, the sworn testimony of the witnesses,
and the addendum to the exhibits, the undersigned makes the following findings on the greater
weight of the evidence:
1. The North Carolina Locksmith Licensing Board is created by Chapter 74F of the
General Statutes (specifically by N.C. Gen. Stat. § 74F-5). The Board is empowered to
administer and enforce the provisions of the Act, to adopt rules to carry out the provisions of the
Act, to determine the qualifications and fitness of applicants for licensure, and to issue or deny
licenses to perform locksmith services in this State (N.C. Gen. Stat. § 74F-6).
2. Petitioner Kenneth Allen Pace is a resident of Waynesville, North Carolina.
3. Petitioner applied for a license as a locksmith under the “grandfather clause”
(Section 2 of Session Law 2001-369, s. 2). The “grandfather clause” exempts any person from
the examination requirement of N.C. Gen. Stat. § 74F-7 who was actively engaged as a
locksmith for at least two consecutive years before January 1, 2003, and who applies for a
license by that date. Petitioner’s application is dated December 6, 2002.
4. Question 15 of the application reads, “Have you ever been convicted or pled
guilty to a criminal offense other than a minor traffic violation? (Including convictions for
5. Petitioner’s answer to Question 15 was “no.”
6. The application requires the applicant to certify the answers and statements in the
application as correct. The certification states, “I hereby certify that all answers and statements
in this application and the supporting documents provided are true and accurate to the best of my
knowledge. I am aware that should an investigation disclose any misrepresentation or
falsification, my application for licensure may be denied or my license revoked.” Petitioner
signed this certification.
7. Petitioner included with his application a criminal record check from the office of
the Clerk of Superior Court, Haywood County, stating that no criminal record in Petitioner’s
name was indexed in that office (Haywood County record check).
8. A criminal record check from the office of the clerk of superior court of a county
reflects only convictions from that county.
9. Petitioner was charged in Buncombe County in 1999 with embezzlement of one
hundred twenty four dollars ($124) belonging to Asheville Lock. On August 30, 1999, he pled
guilty to larceny by trick of that sum of money (larceny conviction) and was sentenced to a term
of 45 days, placed on supervised probation for 24 months, and ordered to pay restitution and
costs. Defendant was represented by an attorney.
10. The Board’s staff, pursuant to the Board’s usual procedures, checked the
Department of Correction records that are available on-line and discovered that these records
reflected Petitioner’s larceny conviction. The staff wrote Petitioner on December 30, 2002, and
requested the original of the Haywood County record check and a criminal record check from
Buncombe County. Petitioner complied with this request.
11. The December 30, 2002, request from the staff also asked Petitioner to provide
“the date of final completion of all aspects of sentence.” Petitioner responded that his sentence
was completed on August 30, 2001.
12. The Board’s Standards Committee is composed of four, now three, members of
the Board. The Standards Committee is charged with reviewing applications and making a
recommendation to the Board whether to allow or deny an application. If the Standards
Committee determines that an applicant should not be licensed, the Standards Committee sends
the applicant a letter indicating the preliminary denial, the reason for it, and the applicant’s right
to a hearing. The members of the Standards Committee then recuse themselves from
participation in any further action on that application by the Board as a whole.
13. The burden is on an applicant to show that he or she is qualified for a license.
14. N.C. Gen. Stat. § 74F-7, at the time Petitioner applied for a license, required (and
still requires) applicants to be of good moral and ethical character.
15. The Board has adopted 21 N.C.A.C. 29 .0402 (Establishment of Moral and
Ethical Character) under its rulemaking authority (N.C. Gen. Stat. § 74F-6) and N.C. Gen. Stat. §
74F-7. Paragraph (b) of this rule requires an applicant to disclose and provide complete
information in answering the questions on the application and further that failure to make full
and accurate disclosure is grounds for immediate application denial. Paragraphs (c) and (d)
categorize applicants with criminal histories according to a schedule. Misdemeanor larceny is a
Category IV offense. Paragraph (e) requires the Board to determine whether a conviction is
directly related to the duties and responsibilities of a locksmith, taking into consideration four
specific factors. Paragraphs (f) and (g) provide alternatively that if the conviction is not related,
the Board is to process the application using standard procedures but if it is related, the Board
must evaluate the individual’s present fitness to provide locksmith services. Paragraph (h)
contains a schedule providing a minimum amount of time for each conviction category for which
an applicant with a conviction in that category is ineligible for licensure. Paragraph (h) requires
an individual with a Category IV conviction to have “at least three years since the applicant has
completed all aspects of his or her sentence . . . to be eligible for licensure.”
16. Larceny by trick is a form of misdemeanor larceny.
17. Petitioner completed all aspects of his sentence on August 30, 2001.
18. N.C. Gen. Stat. § 74F-15, at the time Petitioner applied for a license, authorized
the Board among other things to deny a license (i) if the applicant gave false information to or
withheld information from the Board in attempting to procure a license or (ii) if the applicant
pled guilty to a crime that involves moral turpitude or indicates that the applicant has deceived or
defrauded the public. The latter clause has since been amended and now authorizes the Board to
deny a license if the applicant has pled guilty to any of the crimes listed in N.C. Gen. Stat. § 74F-
18(a)(2), which includes larcenies.
19. The Standards Committee reviewed Petitioner’s application and determined that
the application should be denied at that time. The Standards Committee notified Petitioner of its
determination and the reasons therefor in a letter dated May 21, 2003.
20. As stated in the Standards Committee’s May 21, 2003, letter, the Standards
Committee determined that Petitioner was not eligible for licensure for two reasons: first,
Petitioner has a conviction for misdemeanor larceny, a Category IV conviction, and it has not
been three years since he completed all aspects of his sentence, and second, Petitioner was
dishonest in his application by indicating that he had not ever been convicted or pled guilty to a
criminal offense other than a minor traffic violation.
21. By letter dated May 27, 2003, Petitioner requested a hearing.
22. Pursuant to Petitioner’s request, the Board requested the Office of Administrative
Hearings to hear this contested case pursuant to N.C. Gen. Stat. § 150B-40(e).
23. At the hearing on December 4, 2003, Ann Pace, Petitioner’s wife, testified that
she commonly fills out paperwork for Petitioner and that she filled out his application for
licensure for his signature. When the Haywood County record check failed to reflect a criminal
conviction, she assumed that it was correct and that it applied to the entire state. She testified
that she did not realize until notified by the Board that the Haywood County record check only
applied to Haywood County.
24. Ms. Pace admitted knowing about Petitioner’s conviction and sentence in
Buncombe County but said she forgot about it when she was filling out the application.
25. Petitioner reviewed and signed the application after his wife filled it out. He
testified that he thought Question 15 applied only to the county in which he lived, that is,
Haywood County. In Petitioner’s letter to the Board requesting a hearing, dated May 27, 2003,
he also said that it was over three years since the charge and he thought it had been cleared off
26. Petitioner admitted that Question 15 does not in fact say that it applies only to the
county in which he lives and that it asks if the applicant has “ever” been convicted or pled guilty.
27. Petitioner filed his application less than 16 months after his probation ended.
28. Except for a two-year interval, Petitioner has had a locksmith business since 1990.
However, at one point, he worked for the Department of Corrections.
29. Petitioner pled guilty to larceny by trick on advice of his attorney. In 1999,
Petitioner was working with an Asheville locksmith, Tony Robinson. Petitioner was supposed to
be paid on commission, and Robinson fell behind in paying him. On one occasion, according to
Petitioner’s testimony, Robinson told him to get sixty dollars ($60) that Petitioner claimed
Robinson owed him out of the cash register as Petitioner left. A security camera videotaped
Petitioner taking this money out of the cash register. He stopped working with Robinson about
three weeks later, and Robinson subsequently accused him of embezzling the money. Petitioner
pled guilty because of the videotape and the expense of a trial.
30. Petitioner characterizes his conviction as a dispute with another locksmith; despite
his guilty plea, Petitioner claims he was not guilty. Petitioner also claims that he only took sixty
dollars ($60) and not one hundred twenty four dollars ($124).
31. Although the signed judgment states that Petitioner has two prior convictions,
Petitioner testified that he has no other convictions.
32. At the time of Petitioner’s application, the Board was not authorized to obtain a
computerized criminal history from the SBI (SBI record check). In the 2003 legislative session,
the General Assembly gave the Board this authority. The SBI charges a fee, which the Board
requires the applicant to pay.
33. At the close of the hearing, Petitioner requested that the Board request an SBI
record check and tendered a check for the required sum. Petitioner agreed to postpone a
proposed decision in this matter until after receipt of the SBI record check. The Board’s staff
duly requested the SBI record check by letter dated December 16, 2003. The SBI reply was
received by the Board’s office sometime during the week of January 12, 2004. It was forwarded
to the Board’s attorney, who filed it with the Office of Administrative Hearings, and sent a copy
to Petitioner’s attorney, on January 20, 2004. The SBI record check and accompanying
documentation was submitted as an addendum to the exhibits. The SBI record check reflects no
34. Paragraph (e) requires the Board to use the following four factors in
determining whether a conviction is directly related to the duties and responsibilities of a
(1) The nature and seriousness of the crime;
(2) The relationship of the crime to the purposes for requiring a license as a
(3) The extent to which a license might offer an opportunity to engage in
further criminal activity of the same type;
(4) The relationship of the crime to the ability, capacity, or fitness required to
perform the duties and discharge the responsibilities of a licensed
35. Larceny by trick is theft where the possession of the goods was obtained by a
trick or fraud.
36. N.C. Gen. Stat. § 74F-2 (Purpose) states:
Locksmiths have the knowledge and tools to bypass or neutralize security
devices in vehicles, homes, and businesses. The laws of this State do not protect
citizens from the unscrupulous use and abuse of this knowledge and these tools by
persons who . . . have criminal intent. Therefore the licensing of locksmiths is
necessary to protect public health, safety, and welfare.
37. Members of the public invite locksmiths into their homes and businesses in the
course of having locksmith services performed, which can allow a locksmith to acquire
knowledge of the client’s possessions and information on the measures the client has taken and
any security devices used to safeguard them.
38. To the Board’s knowledge, no other applicant has falsified information on any of
the applications received by the Board as of the date of the hearing. Although some other
applicants have had criminal histories, none were still within the exclusionary periods set out in
CONCLUSIONS OF LAW
1. Petitioner knowingly signed, certified as correct, and submitted an application that
falsely stated that he had never been convicted of a criminal offense other than a minor traffic
2. Petitioner knew or should have known that a misrepresentation or falsification on
his application was cause for denial of the application.
3. Petitioner pled guilty on August 30, 1999, to misdemeanor larceny by trick, a
crime involving a trick or fraud.
4. A crime involving fraud or deception is a crime involving moral turpitude.
5. Petitioner pled guilty to a crime involving moral turpitude.
6. Petitioner is bound by his guilty plea.
7. Considering the factors in Paragraph (e), Petitioner’s larceny conviction is
directly related to the duties and responsibilities of a locksmith and the Board is required to
determine his present fitness to provide locksmith services.
8. Paragraph (h) applies to Petitioner’s larceny conviction and makes Petitioner
ineligible for a license until August 30, 2004, at the earliest.
9. Petitioner’s application for a license should be denied because he gave false
information to the Board in attempting to procure a license and because he pled guilty to a crime
involving moral turpitude, either of which is a sufficient reason in itself to deny Petitioner’s
On consideration of the record as a whole, it is recommended that the Board adopt the
recommendation of the Standards Committee and deny Petitioner’s application for a license.
The agency that will make the final decision in this contested case is the North Carolina
The agency is required to give each party an opportunity to file exceptions to this
decision and proposed findings of fact and to present oral and written arguments to the Board.
N.C. Gen. Stat. § 150B-40(e) (2003). The agency is also required by N.C. Gen. Stat. § 150B-
42(a) to serve a copy of the final decision on each party personally or by certified mail addressed
to the party at the latest address given by the party to the agency and to furnish a copy to each
party’s attorney of record. It is requested that the agency furnish a copy to the Office of
This the 24th day of March, 2004.
James L. Conner, II
Administrative Law Judge