ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This
matter is before the Administrative Law Court (“ALC”) for a final order and
decision following a contested case hearing pursuant to S.C. Code Ann. § 23-31-215(D)
(Supp. 2006), S.C. Code Ann. §§ 1-23-310 et seq. (2005), and S.C. Code
Ann. § 1-23-600(B) (Supp. 2006). The petitioner, Amir Muhammad (“Muhammad”),
applied for a concealed weapon permit pursuant to S.C. Code Ann. §§ 23-31-205 et
seq. Respondent South Carolina Law Enforcement Division (“SLED”) denied
the application pursuant to § 23-31-215(B). After notice to the parties, the
court held a hearing on October 11, 2007. All parties appeared at the
hearing. Evidence was introduced and testimony presented. After carefully
weighing all of the evidence, the court finds that the Petitioner’s application
for a concealed weapon permit should be granted.
FINDINGS
OF FACT
Having
observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, and taking into consideration the burden of persuasion
by the parties, the court makes the following Findings of Fact by a
preponderance of the evidence.
On
March 18, 2007, Muhammad applied for a concealed weapon permit. One of the
questions contained in the application asked, “Have you ever plead
guilty, been found guilty, paid a fine, forfeited bond, been jailed or placed
on probation for any offense?” In response to this
question, Muhammad checked the box for “No.” Upon receiving his application,
SLED performed a background check on Muhammad. The background check revealed a
criminal record report from the Federal Bureau of Investigation (“FBI”)
indicating that in 1967 Muhammad was convicted under the Military Selective
Service Act of “failing to report to hospital as ordered to fulfill military
obligation” and of “failure to report for civilian work.” As a result of these
convictions, Muhammad was sentenced to two years of confinement.
Captain
Clifton Weir, who testified for the Petitioner, is in charge of the regulatory
section of SLED, which is responsible for processing applications for concealed
weapon permits. SLED policy requires denial of an application if it contains falsified
information. SLED’s policy also is to deny applications for concealed weapon
permits if it determines that the applicant has been convicted of a felony. Based
on the information it received from the FBI in this matter, SLED determined
that Muhammad answered untruthfully about his prior convictions. Accordingly, SLED
denied Muhammad’s application for containing false information and based on his
previous convictions.
Muhammad
provided testimony explaining his response and admitting to the convictions. Based
on Muhammad’s testimony, the court finds that he did not intentionally provide
false information on his application. Muhammad readily admitted at trial that he
was convicted of these charges and served eighteen months in prison. He
explained that he was a conscientious objector during the Vietnam War because
of his religious beliefs. However, Muhammad was informed by authorities
following his prison term that he “wouldn’t have to report [these convictions].”
Muhammad has not been convicted of any other crimes since 1967 and pointed out
that he does not have so much as an outstanding parking ticket.
Muhammad
applied for a concealed weapon permit to protect himself. He testified that he
completed the required SLED training and that he believes his application
should be granted.
LAW
Based
upon the foregoing Findings of Fact, the court concludes the following as a
matter of law.
1. Jurisdiction and
Review
Jurisdiction
over this case is vested with the South Carolina Administrative Law Court pursuant
to § 23-31-215(D), §§ 1-23-310 et seq., and § 1-23-600(B). The weight
and credibility assigned to evidence presented at the hearing of a matter is
within the province of the trier of fact. See S.C. Cable Television
Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586,
589 (1992). Furthermore, a trial judge who observes a witness is in the best
position to judge the witness’s demeanor and veracity and to evaluate the
credibility of his testimony. See, e.g., Woodall v. Woodall, 322
S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace v. Milliken & Co.,
300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990).
In
presiding over this contested case, the court serves as the finder of fact and
makes a de novo determination regarding the licensing matters at issue. See S.C. Code Ann. § 1-23-600(B) (Supp. 2006); Marlboro Park Hosp. v.
S.C. Dep’t of Health & Envtl. Control, 358 S.C. 573, 577-79, 595 S.E.2d
851, 853-54 (Ct. App. 2004); Brown v. S.C. Dep’t of Health & Envtl.
Control, 348 S.C. 507, 512, 560 S.E.2d 410, 413 (2002).
2. Concealed
Weapon Permit Requirements
The
issuance of a concealed weapon permit is governed by § 23-31-215. To be
granted a concealed weapon permit, an applicant must be at least twenty-one
years of age and not prohibited by state law from possessing a weapon. §
23-31-215(A). Further, the applicant must submit a completed and signed
application, a full face color photograph, proof of residence, proof of the
required vision rating, proof of training, satisfaction of an application fee,
and a complete set of fingerprints. Id. Upon satisfaction of these
requirements, SLED is required to conduct a fingerprint review and background
check, and if favorable, SLED must issue the requested permit. §
23-31-215(B). However, if the fingerprint review or background check is
unfavorable, then it is within SLED’s discretion whether to issue the permit. See id.
3. Pardon
The federal
constitution grants the President of the United States the power to grant
pardons for offenses against the United States, except in cases of impeachment.
U.S. Const. art. II, § 2. Pardons relieve individuals from the legal consequences
of their crimes and the associated convictions. See, e.g., S.C. Code
Ann. § 24-21-940 (2007) (defining pardon to mean that “an individual is fully pardoned from all the legal consequences of
his crime and of his conviction, direct and collateral, including the
punishment, whether of imprisonment, pecuniary penalty or whatever else the law
has provided”). Legal consequences may include disqualifications, such as
denial of a concealed weapon permit. See, e.g., Brunson v. Stewart, 345 S.C. 283, 547 S.E.2d 504
(Ct. App. 2001) (holding
that upon receiving a pardon for a violent crime an individual is not precluded
from owning a gun); 67A C.J.S. § 21 (2002) (“[W]here the effect of a pardon is
to obliterate the conviction, a license cannot be denied to an individual on
the basis of the conviction for which he was pardoned. Also, a pardon which
removes both punishment and the disabilities consequent upon the conviction may
include the disability to receive a permit to carry a weapon.”) (citations
omitted).
On January
21, 1977, President James E. Carter, Jr. granted a full pardon to individuals
who were convicted of violating the Military Selective Service Act, with two
exceptions. The proclamation granting this pardon provides:
Acting pursuant to the grant of authority in Article
II, Section 2, of the Constitution of the United States, I, Jimmy Carter,
President of the United States, do hereby grant a full, complete and
unconditional pardon to: (1) all persons who may have committed any offense
between August 4, 1964 and March 28, 1973 in violation of the Military
Selective Service Act or any rule or regulation promulgated thereunder; and (2)
all persons heretofore convicted, irrespective of the date of conviction, of
any offense committed between August 4, 1964 and March 28, 1973 in violation of
the Military Selective Service Act, or any rule or regulation promulgated
thereunder, restoring to them full political, civil and other rights.
This pardon does not apply to the following who are
specifically excluded therefrom:
(1) All persons convicted of or who may have committed
any offense in violation of the Military Selective Service Act, or any rule or
regulation promulgated thereunder, involving force or violence; and
(2) All persons convicted of or who may have committed
any offense in violation of the Military Selective Service Act, or any rule or
regulation promulgated thereunder, in connection
Presidential Proclamation of Pardon, 42 Fed. Reg. 4391 (Jan. 21, 1977) (“Proclamation 4483”).
Presidential pardons have the force and effect of law. See Indep. Meat Packers Ass’n v. Butz, 526 F.2d 228 (8th Cir.
1975) (“Presidential proclamations and orders have the force and
effect of laws when issued pursuant to a statutory mandate or delegation of
authority from Congress.”), cert. denied, 424
U.S. 966 (1976); see also U.S. Const. art. II, § 2 (granting the President the
authority to grant pardons for offenses against the United States, except in
cases of impeachment).
4. Conclusions
After
carefully weighing the evidence and applying the law as discussed above, the
court finds that Muhammad’s application for a concealed weapon permit should be
granted.
Although Muhammad was convicted of two crimes in 1967 which
generally might preclude him from obtaining a concealed weapon permit, these
crimes were unconditionally pardoned by presidential proclamation in 1977.
Further, Proclamation 4483 unequivocally states that individuals which were
granted this pardon were restored to “full political, civil and other rights.” Presidential Proclamation of Pardon, 42 Fed. Reg. 4391 (Jan. 21, 1977). Neither of the
exceptions in Proclamation 4483 appears to apply to Muhammad’s convictions.
Since pardons
have the effect of removing the legal consequences of the conviction, the court
finds that Muhammad did not falsify his application. Other than the two
convictions that were pardoned, there was no evidence presented that Muhammad
has an unfavorable background. Accordingly, the court finds that SLED must
grant the requested concealed weapon permit. See § 23-31-215 (stating that once the applicant has submit the
items required by subsection (A), SLED must conduct a background check and
“[i]f the fingerprint review and background check are favorable, SLED must
issue the permit.”); see also Brunson, 345 S.C. 283, 547 S.E.2d
504 (holding
that upon receiving a pardon for a violent crime an individual is not precluded
from owning a gun).
ORDER
Based upon the Findings of Fact and Conclusions of Law stated
above, it is
ORDERED that the Department shall GRANT Muhammad’s application for a concealed
weapon permit in accordance with § 23-31-215.
IT IS SO ORDERED.
______________________________________
PAIGE J. GOSSETT
Administrative Law Judge
December 10, 2007
Columbia, South Carolina
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