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. §
1-23-600(B) (Supp. 2007). The South Carolina Law Enforcement Division (“SLED”)
denied the Petitioner’s application for a concealed weapon permit based on its
finding that he has been convicted of three offenses for driving under
suspension (“DUS”). The Petitioner, Wilson F. Cooper, Jr. (“Cooper”),
requested a contested case hearing. After notice to the parties, the court
held a hearing on May 19, 2008. All parties appeared at the hearing. Evidence
was introduced and testimony presented. After carefully weighing all the
evidence, this court finds that Cooper’s application should not be denied.
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 17, 2005, Cooper was arrested for driving under the influence (“DUI”).
As a result of Cooper’s subsequent conviction for this offense, Cooper’s
driver’s license was suspended for six months, from June 15, 2005 through
December 15, 2005. On September 20, 2006, Cooper was arrested for DUS.
On December 21, 2007, SLED notified Cooper of its denial of Cooper’s application
for a concealed weapon permit, based on Cooper’s conviction for a third DUS
offense.
At
the hearing, Cooper testified that he has been convicted of only one DUS
charge. He provided a certified copy of his ten-year driving record, which
shows that he was arrested for DUS on September 20, 2006, and subsequently
convicted of that offense. Cooper testified that SLED’s information that he
has committed three DUS offenses is incorrect.
Captain
Clifton Weir is in charge of the regulatory section of SLED, which is
responsible for concealed weapon permits, and testified on behalf of the
Respondent. SLED policy requires denial of a concealed weapon permit if an
applicant does not have a “favorable” background check. S.C. Code Ann. § 23-31-215(B) (Supp. 2007). SLED
provided an uncertified copy of Cooper’s National Crime Information Center background
check or “rap sheet,” which showed that Cooper had been arrested for two DUS
offenses: one on September 20, 2006 and another on November 8, 2005. The
September 20, 2006 offense was listed as “DUS . . . 3rd,” or a third offense of
DUS, even though it was only the second DUS offense listed. Weir testified
that it is the responsibility of the reporting law enforcement agency to enter
the data into the system. He stated that the fact that only two DUS offenses
appear on Cooper’s rap sheet does not mean Cooper’s September 20, 2006 offense
was not his third DUS offense, as the reporting agency might not have entered
the data into the system.
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., Cooperall v. Cooperall, 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).
2. Concealed
Weapon Permits
The
issuance of a concealed weapon permit is governed by S.C. Code Ann. §
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, 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.
Federal
law prohibits the possession of a firearm by any individual “who has been
convicted in any court of, a crime punishable by imprisonment for a term exceeding
one year.” 18 U.S.C. § 922(g)(1). Conviction
for a third DUS offense (where the suspension results from a DUI conviction)
carries a penalty in South Carolina of up to three years’ imprisonment. S.C.
Code Ann. § 56-1-460(A)(2). South Carolina law prohibits an individual who has
been convicted of a violent crime from possessing a firearm. See S.C.
Code Ann. § 16-23-30 (Supp. 2007) (stating it
is unlawful for any person who has been convicted of a violent crime to possess
a pistol); S.C. Code Ann. § 16-1-90(F) (Supp. 2007) (stating possession of a pistol by a person
convicted of a violent crime is a Class F felony).
3. Burden
of Proof
As
the Petitioner in this case, Cooper has the burden of proof. See Stephen P. Bates, The Contested Case Before the ALJD, in South
Carolina Administrative Practice & Procedure 161, 200-01 (Randolph R.
Lowell & Stephen P. Bates eds., 2004) (discussing generally the burden of
proof in ALC cases) (“In non-enforcement cases, the burden of proof [] rests
with the non-agency petitioner to prove by a preponderance of the evidence that
the agency action is incorrect.”). To resolve the issue currently before the
court, however, a careful analysis of the concept of “burden of proof” is
required. “The term ‘burden of proof’ has
been used to describe two related but distinct concepts: the burden of
production and the burden of persuasion.” 29 Am. Jur. Evidence § 155
(1994); see also Dir., Office of Workers’ Comp. Programs,
Dep’t of Labor v. Greenwich Collieries, 512 U.S. 267, 272 (1994).
The burden of persuasion refers to the duty to prove the truth of an
issue by the quantum of evidence the law demands in the case in which the issue
arises. Alex
Sanders & John S. Nichols, Trial Handbook for South Carolina Lawyers § 9.1 at 387 (4th ed. 2007). The burden of production, or burden of
going forward with the evidence, refers to the obligation of a party to proceed
with evidence, at any stage of the trial, to make or meet a prima facie case. Id.
Prima facie evidence is evidence sufficient in law to raise a presumption of
fact or establish the fact in question unless rebutted. LaCount v. Gen.
Asbestos & Rubber Co., 184 S.C. 232, 240, 192 S.E. 262, 266 (1937).
“The words [‘prima facie evidence’] import that the evidence produces for the
time being a certain result; but that result may be repelled.” Mack v.
Branch No. 12, Post Exch., Fort Jackson, 207 S.C. 258, 272, 35 S.E.2d 838,
844 (1945).
As
a trial progresses, the burden of production may shift from one side to the
other as the respective parties present evidence. Sanders & Nichols, supra,
§ 9.1 at 387. The burden of persuasion, however, does not generally shift. Id. at 369. South Carolina courts have recognized that once a party establishes a
prima facie case, the burden of production shifts to the opposing party. See, e.g., Browning v. Browning, 366 S.C. 255, 262, 621 S.E.2d 389,
392 (Ct. App. 2005). Thus, once Cooper establishes a prima facie case of compliance
with the statutory requirements for a concealed weapon permit, the burden of
production shifts to SLED to present evidence, by cross-examination or
otherwise, that supports one or more of the statutory reasons for denial. See id. at 262, 621 S.E.2d at 392.
4. Conclusions
The
court finds that Cooper’s application for a concealed weapon permit should not be
denied. Here, Cooper presented evidence that he meets all of the statutory
requirements for a permit; specifically, he introduced probative evidence via his
certified ten-year driving record that he has only one conviction for DUS.
He denied having been convicted of any other DUS offenses. It was therefore
incumbent upon SLED to meet Cooper’s prima facie case by coming forward with admissible
evidence establishing that Cooper has in fact been convicted of a third offense
for DUS. SLED produced an uncertified copy of Cooper’s rap sheet, which
contained only two DUS offenses (although one of those is listed as “DUS . . .
3rd”). Captain Weir testified, without personal knowledge and based solely on
the hearsay rap sheet, that Cooper has been convicted of three DUS offenses.
This evidence is insufficient to rebut Cooper’s prima facie case of eligibility
for a concealed weapons permit. SLED did not provide admissible evidence that
Cooper has been convicted of a crime—DUS 3rd—that would prohibit him from
possessing a firearm. Cf. Rule 803(22), SCRE (providing a hearsay
exception for final judgments of previous convictions).
ORDER
Because the evidence did not show that Cooper has been convicted of an offense that would prohibit him under state law from possessing a firearm or that he otherwise has an unfavorable background, the court finds denial of Cooper’s permit to be unwarranted under § 23-31-215(B). It is therefore
ORDERED that SLED shall GRANT Cooper’s application for a concealed weapon permit
pursuant to S.C. Code Ann. § 23-31-215.
IT IS SO
ORDERED.
______________________________________
PAIGE J. GOSSETT
Administrative Law Judge
June 6, 2008
Columbia, South Carolina
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