STATEMENT OF THE CASE

This matter is before the Administrative Law Court (“ALC”) for a final order and decision following a contested case pursuant to S.C. Code Ann § 1-23-600(A) (as amended 2008).^[1] The South Carolina Law Enforcement Division (“SLED”) sent a Notice of Intent to Revoke the Petitioner’s Security Registration based on her being arrested for and charged with three criminal offenses. The Petitioner, Olga Estrada (“Estrada”), through her attorney, Andrew Johnston (“Johnston”), requested a contested case hearing. After notice to the parties, the court held a hearing on September 15, 2008. All parties appeared at the hearing. Evidence was introduced and testimony presented. After carefully weighing all the evidence, this court finds that Petitioner’s registration 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 or about May 23, 2008, Estrada was arrested for and charged with three (3) counts of “pointing and presenting firearms at a person.” On May 24, 2008. SLED notified Estrada of its intent to revoke her security registration based on the charges against her and the subsequent arrest. On June 5, 2008, Petitioner appealed the decision to the chief of SLED Regulatory Services. On June 30, 2008, Captain Weir of SLED notified Estrada and Johnston of its finding to uphold its decision to revoke Estrada’s security registration.

Lieutenant Ben Moore, who testified for SLED, is employed with the regulatory section of SLED, which is responsible for security officer registration. SLED’s policy requires revocation of a security officer registration if the registered individual is charged with a crime, which would, upon conviction, disqualify the person from registration. See S.C. Code Ann. § 40-18-130(A)(7). Lieutenant Moore testified that the crimes with which Estrada was charged are felonies. See S.C. Code Ann. § 16-23-410. SLED may issue a security registration to an individual who has not been convicted of a felony or a crime involving moral turpitude. See S.C. Code Ann. § 40-18-80(A)(4)(d). Therefore, based on SLED policy and South Carolina state law, SLED revoked Estrada’s registration based on her arrests because if she were to be convicted, she would be prohibited from registering under state law, as the charges are felonious.

At the hearing, Johnston declined to put forth a case on Estrada’s behalf and submitted no evidence for the court to review.

CONCLUSIONS OF LAW

Based on 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 standard of proof in proceedings before the ALC is a preponderance of the evidence. Anonymous v. State Bd. of Med. Exam’rs, 329 S.C. 371, 496 S.E.2d 17 (1998). 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, 417 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 registration matters at issue. See S.C. Code Ann. § 1-23-600(A) (as amended 2008); 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.                  Security Officer Registration

SLED has the authority to revoke a security officer’s registration when the registered individual has “been charged with an offense that, upon conviction, would disqualify the person from registration.” S.C. Code Ann. § 40-18-130(A)(7). However, if the person is subsequently found not guilty of the offense, the registration must be reinstated at no charge to the applicant. See S.C. Code Ann § 23-31-215(J)(4).

3.                  Conclusions

The court finds that Estrada’s security officer registration should be revoked pending the outcome of the criminal case stemming from the incidents that occurred on May 22, 2008. Whether or not Estrada has a meritorious defense to these charges is not the question before this court.^[2] Estrada did not present any evidence that she had not been arrested and charged with these offenses. Therefore, the court finds that the revocation of Estrada’s security officer registration is warranted under § 40-18-130(A)(7).

ORDER

Based upon the Findings of Fact and Conclusions of law stated above, it is ORDERED that SLED’s decision to revoke Estrada’s security officer registration during the pendency of her criminal case, pursuant to S.C. Code § 40-18-130(A)(7), is upheld. It is further ORDERED that in the event that Estrada is not convicted, her registration shall be immediately reinstated.

AND IT IS SO ORDERED.

_____________________

John D. McLeod

Administrative Law Judge

September 18, 2008

Columbia, South Carolina