SC Administrative Law Court Decisions

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. § 1-23-600(B) (Supp. 2007). The South Carolina Law Enforcement Division (“SLED”) sent a Notice of Intent to revoke the Respondent’s concealed weapon permit based on his being arrested for and charged with multiple offenses. The Respondent, Roger S. Wood (“Wood”), requested a contested case hearing. After notice to the parties, the court held a hearing on April 3, 2008. All parties appeared at the hearing. Evidence was introduced and testimony presented. After carefully weighing all the evidence, this court finds that Wood’s permit should not be revoked during the pendency of the criminal proceeding stemming from the offenses for which he was arrested.

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 January 27, 2008, Wood was arrested for and charged with multiple offenses. On February 1, 2008, SLED notified Wood of its intent to revoke Wood’s concealed weapon permit, based on Wood’s charges stemming from his January 27th arrest.

Captain Clifton Weir, who testified for SLED, is in charge of the regulatory section of SLED, which is responsible for concealed weapon permits. SLED policy requires revocation of a permit if a permit holder is charged with any offense, which, upon conviction, would require SLED to revoke his permit. See S.C. Code Ann. § 23-31-215(J)(4) (Supp. 2007). Weir testified that Wood was charged with “Unlawful Weapon (Gun),” “Resisting Arrest,” “Public Drunkenness,” and “Disorderly Conduct.” Wood did not testify at the hearing.

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 § 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 permit matter at issue. See S.C. Code Ann. § 1-23-600(B); Brown v. S.C. Dep’t of Health & Envtl. Control, 348 S.C. 507, 512, 560 S.E.2d 410, 413 (2002); 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). SLED has the burden to justify revocation. ALC Rule 29(B) (stating that the agency has the burden of proof in enforcement actions).

2. Concealed Weapon Permits

SLED has the authority to revoke a concealed weapon permit when the registered individual has “been charged with an offense that, upon conviction, would prohibit the person from possessing a firearm.” S.C. Code Ann. § 23-31-215(J)(4). “However, if the person subsequently is found not guilty of the offense, then his permit must be reinstated at no charge.” Id. An individual’s permit must be revoked by SLED when he or she is convicted of taking a concealed weapon into an establishment where alcohol is served. See S.C. Code Ann. § 16-23-465 (“[A] person convicted of carrying a pistol or firearm into a business which sells alcoholic liquor, beer, or wine for consumption on the premises . . . must have his concealed weapon permit revoked.”).

3. Conclusions

The court finds that Wood’s concealed weapon permit should not be revoked pending the outcome of the criminal case stemming from the incident on January 27, 2008. Wood does not dispute that he has been arrested and charged with certain offenses. Captain Weir testified generally that Wood had been charged with four offenses including “Unlawful Weapon (Gun),” “Resisting Arrest,” “Public Drunkenness,” and “Disorderly Conduct.” SLED did not establish at the hearing the statutes or ordinances upon which the charges against Wood were based or the penalties associated with them. Nor did SLED cite any other legal authority that would prohibit a person from possessing a firearm if convicted of one of those four offenses. SLED conceded that Wood had not been charged with § 16-23-465, which expressly requires revocation of a concealed weapon permit. See S.C. Code Ann. § 16-23-465 (“[A] person who violates this section while carrying a concealable weapon pursuant to Article 4, Chapter 31, Title 23, must have his concealed weapon permit revoked.”).

               Consequently, SLED did not carry its burden to show that any of the charges against Wood would prohibit Wood from possessing a firearm if he were to be convicted.  Compare, e.g., S.C. Code Ann. § 16-23-20 (Supp. 2007) (unlawful carrying of a handgun) & § 16-23-50(A)(2) (Supp. 2007) (providing penalties for the misdemeanor offense of unlawful carrying of a handgun as a fine up to $1000 or imprisonment up to one year, or both); § 16-17-530 (2003) (providing penalties for the misdemeanor offense of public disorderly conduct or intoxication as a fine up to $100 or imprisonment up to thirty days); Columbia, S.C., Code § 14-98 (1998) (providing penalties for the misdemeanor offense of public drunkenness as a fine up to $500 or imprisonment up to thirty days, or both); § 16-9-320 (2003) (providing penalties for the misdemeanor offense of resisting arrest as a fine between $500-$1000 or imprisonment up to one year, or both) with, e.g., § 16-23-465 (providing for revocation of a person’s concealed weapon permit when the permittee is convicted of carrying a pistol or firearm into a business that sells alcoholic liquor, beer, or wine for consumption on the premises); 18 U.S.C. § 922(g)(1) (providing that anyone convicted of a crime punishable by imprisonment for a term exceeding one year may not possess a firearm).  

Because the evidence did not show that Wood has been charged with an offense that, upon conviction, would prohibit him from possessing a firearm, the court finds revocation of Wood’s permit to be unwarranted under § 23-31-215(J)(4).

ORDER

Based upon the Findings of Fact and Conclusions of Law stated above, it is

ORDERED that SLED’s decision to revoke Wood’s concealed weapon permit during the pendency of his criminal case pursuant to S.C. Code Ann. § 23-31-215(J)(4) is overturned.

IT IS SO ORDERED.

______________________________________

PAIGE J. GOSSETT

Administrative Law Judge

April 11, 2008

Columbia, South Carolina