SC Administrative Law Court Decisions

This matter is before the Administrative Law Court (ALC or Court) for a final order and decision following a contested case hearing pursuant to S.C. Code Ann. § 23-31-215(D) (Supp. 2008), S.C. Code Ann. §§ 1-23-310 et seq. (2008), and S.C. Code Ann. § 1-23-600(B) (Supp. 2008). Petitioner, Roger R. Dowdy (Petitioner), 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 timely notice to the parties, a hearing in this matter was held at the ALC in Columbia, South Carolina.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing in this matter, and taking into account the credibility and accuracy of the evidence, I find the following facts by a preponderance of the evidence:

1.                              Petitioner, Roger R. Dowdy, is over the age of twenty-one and a resident of Richland County, South Carolina. Petitioner is self-employed in the rug business and owns a garage and car lot. Petitioner asserts these are “cash businesses,” and when he receives payment for an automobile he must transport the cash to the bank. Therefore, he is seeking to carry a gun with him for protection in the operation of his businesses.

2.                              As part of the application process, Petitioner is required to answer the following question: “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, Petitioner checked the box for “yes.” Petitioner indicated that he had been arrested and/or found guilty of two (2) charges, disorderly conduct and leaving the scene of an accident.

3.                              However, upon receiving his application, SLED performed a background check on Petitioner which indicated that Petitioner had ten (10) previous arrests and/or convictions. The following table outlines the types of arrests or convictions and the years in which they occurred:

4.                              Petitioner presented facts at the hearing that established that he properly completed the gun safety training course pursuant to statute and submitted his application for a Concealed Weapons Permit to the Respondent.

5.                              Moreover, Petitioner did not remember all of the various traffic offenses when he was a teenager and in his early twenties and stated so on his application.

6.                              The oldest conviction on Petitioners record is over twenty years old when the Petitioner was twenty five. Petitioner is now forty-five years old and has not been convicted of a crime since 1987.

7.                              Taking into consideration the amount of time that has passed since Petitioner’s last conviction and the seriousness of the convictions, I find that Petitioner’s application for a Concealed Weapons Permit should be granted.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, the court concludes the following as a matter of law.

1. 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).

2. 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).

3. 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.

4. 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). Furthermore, 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).

5. S.C. Code Ann. Statute 23-31-215(B) states that:

Upon submission of the items required by subsection (A) of this section, SLED must conduct or facilitate a local, state, and federal fingerprint review of the applicant. SLED must also conduct a background check of the applicant through notification to and input from the sheriff of the county where the applicant resides or if the applicant is a qualified nonresident, where the applicant owns real property in this State. The sheriff within ten working days after notification by SLED, must submit a recommendation on an application. Before making a determination whether or not to issue a permit under this article, SLED must consider the recommendation provided pursuant to this subsection. The failure of the sheriff to submit a recommendation within the ten-day period constitutes a favorable recommendation for the issuance of the permit to the applicant. If the fingerprint review and background check are favorable, SLED must issue the permit.

6. The court finds that Dowdy’s application for a concealed weapon permit should not be denied. In this case, Petitioner’s criminal background record reflects that he was arrested and/or convicted of numerous crimes. However, the Petitioner testified to the circumstances surrounding his convictions and introduced his SLED Criminal Record Check into evidence. Moreover, the sheriff did not submit a recommendation within the ten-day period as required by statute; that constituted a favorable recommendation by the sheriff, which is also a factor to be considered by SLED in issuing permits.

7. Upon review of the SLED check and after hearing testimony from the Petitioner, it was revealed that the convictions were twenty one years ago. Moreover, it appears that Petitioner’s convictions are not statutory disqualifiers.

8. The Court recognizes the importance of Petitioner obtaining the concealed weapon permit for his protection, especially in light of the facts of this case. When taking into account the numerous circumstances surrounding his convictions and the length of time that has passed since Petitioner’s last conviction, Petitioner’s application for a concealed weapon permit is granted.

ORDER

            Because the evidence did not show that Dowdy 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 Dowdy’s permit to be unwarranted under § 23-31-215(B).  It is therefore 

ORDERED that SLED shall GRANT Dowdy’s application for a concealed weapon permit pursuant to S.C. Code Ann. § 23-31-215.

IT IS SO ORDERED.

___________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

April 7, 2009

Columbia, South Carolina