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(A) (as amended 2008). 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 two criminal offenses. The Respondent, Kasper F. Fulghum (“Fulghum”),
requested a contested case hearing. After notice to the parties, the court
held a hearing on May 28, 2008. All parties appeared at the hearing. Evidence
was introduced and testimony presented. After carefully weighing all the
evidence, this court finds that Fulghum’s permit should be revoked during the
pendency of the criminal proceeding regarding the criminal charges.
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
December 6, 2006, Fulghum was arrested for and charged with “crack cocaine –
possession < 1g 1st offense.” On April 17, 2007, Fulghum was arrested for
and charged with “possession of less than one gram of cocaine base – 1st
offense.” On January 24, 2008, SLED notified Fulghum of its intent to revoke his
concealed weapon permit based on the charges against Fulghum stemming from these
arrests.
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 prohibit the carrying of a
weapon. See S.C. Code Ann. § 23-31-215(J)(4)
(Supp. 2007). Captain Weir testified that the crimes with which Fulghum
was charged each carries a maximum sentence of more than one year. Therefore,
based on SLED policy, it revoked Fulghum’s permit based on his arrests because,
if Fulghum is convicted, he would be prohibited under federal law from
possessing a firearm.
At
the hearing, Fulghum testified concerning his arrests. Fulghum admitted that
both of these arrests occurred; however, he explained the circumstances that
gave rise to each of them. Fulghum is semi-retired business owner who in the
past two years has started assisting young people on work release from prison
with vocational rehabilitation. Fulghum explained that the arrests stemmed
from contraband that was left in his car and his home by some of the young
people he attempts to help. He has obtained affidavits from those individuals
stating that the contraband was theirs and not Fulghum’s. Fulghum acknowledged
that he should have handled these situations differently and that, as a result
of these incidents, he is now extremely cautious with the young people he is
helping.
Finally,
Fulghum explained that he requires this permit when situations arise at the
business he owns. For example, he recently had to respond after hours to a
burglary at his business. Fulghum explained that his business is in a high
crime area located on the city and county line. Due to confusion over which
department has jurisdiction over that area, sometimes both the sherriff’s
department and the city police department respond to calls and other times no
one responds. As a result, Fulghum stated that he needs to be able to quickly
respond to curtail thefts, and he needs to have his weapon with him.
Revonda
Hammond testified on Fulghum’s behalf. She has been working for Fulghum as a
secretary for two months and has not seen any evidence of any poor practices.
Hammond is one of the individuals that Fulghum has assisted while they are on
work release or vocation rehabilitation. Hammond stated that Fulghum has
helped her considerably and that Fulghum should be permitted to keep his
concealed weapon permit.
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(A) (as amended 2008). 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(A) (as amended 2008); 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
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.
3. Conclusions
The
court finds that Fulghum’s concealed weapon permit should be revoked pending
the outcome of the criminal case stemming from the incidents on December 6, 2006
and April 17, 2007. While Fulghum provided extensive testimony regarding the
circumstances surrounding the charges, whether or not Fulghum has a meritorious
defense to these charges is not the question before this court.
Fulghum does not dispute that he has been arrested and charged with offenses that, upon conviction, would prohibit him from possessing a
firearm. Therefore, the court finds revocation of Fulghum’s permit to be warranted 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 Fulghum’s concealed weapon permit during the
pendency of his criminal case pursuant to S.C. Code Ann. § 23-31-215(J)(4) is upheld. It is further
ORDERED that in the event that Fulghum is not convicted, his permit shall be
immediately reinstated.
IT IS SO
ORDERED.
______________________________________
PAIGE J. GOSSETT
Administrative Law Judge
June 30, 2008
Columbia, South Carolina
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