ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the Administrative Law Court (ALC or Court) pursuant to S.C.
Code Ann. § 23-31-215(D) (Supp. 2004) and S.C. Code Ann. §§ 1-23-310 et seq. (2005). The
Petitioner challenges the South Carolina Law Enforcement Division’s (SLED) denial of his
application for a Concealable Weapons Permit. After timely notice to the parties, a hearing in
this matter was held on March 23, 2005 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.The ALC has personal and subject matter jurisdiction.
2.Notice of the date, time, place and subject matter of the hearing was properly
given
to all parties.
3.Petitioner is over the age of twenty-one and is a resident of Charleston County,
South Carolina. He is not prohibited from possessing a weapon by any state law.
4.On July 10, 2004, Petitioner applied for a Concealable Weapons Permit from
SLED. Petitioner owns, along with several others, a property investment company which is
engaged in acquiring real properties in the Charleston area for renovation and rental (Section 8
housing). Petitioner testified that many of these properties are in distressed neighborhoods and
that he is seeking a Concealable Weapons Permit to ensure his safety.
5.On February 18, 2000, Petitioner pled guilty and was convicted of the charge of
“Harassment” in the New Jersey Superior Court.
He was ordered to pay a $500.00 fine and to
have no contact with the victim.
6.Petitioner testified at the hearing to the circumstances surrounding the 2000
conviction. He testified that on December 17, 1999, while living in New Jersey, he became
angry with one of his friends, Patrick Brown. Petitioner believed his friend was trying to “break
up him and his girlfriend.” He left a message on his friend’s cellular telephone during which he
threatened to kill Mr. Brown the next time he saw him. At that time Mr. Brown was 19 years old
and Petitioner was 20 years old. Mr. Brown reported the matter to the Raritan Township Police
Department and Petitioner was arrested on December 18, 1999. Petitioner acknowledged that he
made threats to beat up Brown because he was agitated at the time but that he has since remained
friends with Mr. Brown.
7.Petitioner’s 2003 conviction for “Reckless Driving” stemmed from an incident
where Petitioner did a “wheelie” while riding his motorcycle. He was required to pay a fine of
$350.00.
8.Petitioner was also ticketed for “Speeding” in 2003 in North Carolina. He
testified that he was traveling seventy-five (75) miles per hour in a sixty (60) mile per hour zone
and that the charge was reduced to a two point violation.
9.By letter dated October 20, 2004, Captain E. Weir of SLED notified Petitioner
that his application for a Concealable Weapons Permit was denied due to his conviction of
“Harassment” in 1999 and convictions for “Reckless Driving” and “Speeding” in 2003. In the
letter, he further stated that “Sheriff J. Al Cannon recommended that your application not be
approved.”
Petitioner testified that he has never had any relationship with nor met Sheriff
Cannon.
10.Agent James Craig Perry, an employee with SLED for twenty-eight (28) years
and the Senior Agent assigned to its Regulatory Division, testified on behalf of SLED at the
hearing. Agent Perry testified that SLED has a written denial policy which it applies to each
applicant for a concealable weapons permit.
The policy is defined as “Concealable Weapons
Permit Program-Denial Policy.” Agent Perry stated that the policy had not been sent to the
legislature for promulgation as a regulation and he testified that the policy is applied in a
discretionary manner to an application request.
11.Agent Perry did not participate in the decision to deny Petitioner’s permit
application and testified that, upon his review of the file, he was unable to state a specific reason
for SLED’s denial of Petitioner’s permit application other than SLED making the determination
that Petitioner had an “unfavorable background.” Agent Perry did state that SLED’s practice is
to consider the potential “threat and danger to the public” in enforcing its policy to deny
Concealable Weapons Permits. However, he testified that he could not say that Petitioner would
pose a threat to the safety of any citizen of Charleston County or the state of South Carolina
based upon the conviction of “Harassment” in New Jersey in 2000. Furthermore, he testified
that he does not know when a conviction is no longer considered by SLED in denying a permit.
12.On July 10, 2004, Petitioner satisfactorily completed an eight hour handgun
training course with Henry T. Wooten, a certified instructor by SLED in providing Concealable
Weapons Permit training.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1.S.C. Code Ann. § 23-31-215(D)(Supp. 2004) and S.C. Code Ann. § 1-23-600(B)(2005) grant jurisdiction to this Court to hear this contested case.
2.The standard of proof in administrative proceedings is a preponderance of the
evidence, absent an allegation of fraud, or a statute or court rule requiring a higher standard.
Anonymous v. State Board of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998); Stephen
Bates and Randolph Lowell, South Carolina Administrative Practice and Procedure “The
Contested Case Before the ALJD,” Chapter 3, § V.2., p. 199 (2004). Furthermore, in civil
cases, generally, the burden of proof rests upon the party who asserts the affirmative of an issue.
29 Am.Jur. 2d Evidence § 127 (1994); Alex Sanders, et al., South Carolina Trial Handbook § 9:3
Party With Burden, Civil Cases (2001). Therefore, the Petitioner has the burden of proving by a
preponderance of the evidence that SLED erred in denying him a concealed weapons permit.
3.SLED is required to conduct a background check of an applicant for a
Concealable Weapons Permit upon submission of required information and proof of training.
S.C. Code Ann. § 23-31-215(B) (Supp. 2004). If an applicant’s fingerprint and background
checks are favorable, SLED must issue a permit to the applicant. Id. However, if SLED
determines that an applicant’s background is unfavorable, SLED may deny the permit and shall
issue a written statement to the applicant specifying its reasons for denying the permit. The
statutes and regulations do not provide any guidelines for SLED to follow in denying a
concealable weapons permit. To assist in this function, SLED has written policies that it uses in
evaluating each concealable weapons permit.
4.As a normal rule, policy documents prepared by an agency
must be promulgated
as regulations pursuant to S.C. Code Ann. § 1-23-120. Subsection (A) of Section 1-23-120
states that “all regulations except those specifically exempted under this section must be
submitted to the General Assembly for review in accordance with this article….” S.C. Code
Ann. § 1-23-10 (A) defines regulation as “each agency statement of general public applicability
that implements or prescribes law or policy or practice requirements of any agency.”
Furthermore, the subsection states that “policy or guidance issued by an agency other than in a
regulation does not have the force of effect of law.”
5.In this case, SLED denied Petitioner’s application because they found his
background to be “unfavorable.” In denying the application, SLED relied on its written
“Concealable Weapons Permit Program-Denial Policy” to determine if Petitioner’s background
was or was not “favorable.” According to the evidence presented at the hearing, the policy is
applied to each concealable weapons permit application. However, SLED has not promulgated
this written policy document as a regulation, and, therefore, it is not binding on the Court. If it is
the intent of SLED to make its policy applicable to each application, it has a duty to promulgate
this policy document as a regulation. Captain’s Quarters Motor Inn, Inc. v. S.C. Coastal
Council, 306 S.C. 488, 490, 413 S.E.2d 13, 14 (1991). Furthermore, the APA requires SLED to
promulgate this policy document as a regulation if it is to have the force and effect of law in the
permitting process. See S.C. Code Ann. § 1-23-10 (2005). Because the policy document does
not have the force and effect of law and is not binding on the Court, it will be considered
together with all other relevant factors and evidence in determining whether the concealable
weapons permit should be granted or denied.
The evidence presented at the hearing by SLED does not support a denial of the
Concealable Weapons Permit. In its denial letter, SLED listed Petitioner’s “Reckless Driving”
and “Speeding” violations among the reasons for denying Petitioner’s application. Petitioner has
had two (2) traffic violations in the last three (3) years. This fact does not establish that
Petitioner is a person who is violent or would do harm to the citizens of this State. In fact, the
policy document of SLED under Item 5(a) only treats traffic violations as grounds for denial of
the permit if the applicant has had “at least seven (7) traffic violations with a ten (10) year
period.” Therefore, Petitioner cannot be denied a permit based upon his traffic violations under
SLED’s policy. I conclude that these traffic violations are insufficient grounds for the denial of
the permit.
Item 11 of the policy, entitled “Violent Acts/Threats,” provides that the Special Agent in
Charge can deny a permit when the applicant has committed documented acts of violence, or
made documented verbal or physical threats of violence toward another person, whether or not
charged or convicted of a crime in connection with the acts. It further provides that
“documentation must be established by police incident reports or statements under oath from
persons having personal knowledge of the alleged actions and declaring that, if the permit was
issued, the applicant would pose a threat to the safety of a person or community.” It is true that
Petitioner did make a threatening telephone call to a friend in December 1999. However, he
admitted his wrongdoing, went to court, paid the fine and eventually resumed his friendship with
Mr. Brown. There is nothing in the Record that would show that Petitioner is a threat to the
safety of a person or to the community he lives in.
Furthermore, under Item 5 of the policy, entitled “Criminal Record-General-Unfavorable
Background,” the Special Agent in Charge is required to consider the age of the conviction,
whether it involved the use or threat of use of violence or a weapon and the potential danger to
an individual or the community, whether the applicant falsified the application form, as well as a
favorable or unfavorable recommendation of the sheriff of the county where the applicant
resides. In this instance, the conviction is now five (5) years old. The incident which led to the
conviction in New Jersey occurred when Petitioner was young and lacked maturity. Since that
time, he has been gainfully employed and has not been convicted of any crime other than traffic
violations. Furthermore, the conviction involved an incident with a friend which consisted
solely of a phone call, not some physical altercation. As to the unfavorable recommendation by
the Charleston County Sheriff, this is entitled to little weight since the Sheriff was not at the
hearing and was not available for questioning by either party or the Court. Furthermore, without
any direct testimony by the agent in charge for his reasoning for denying the application, the
Court is unable to determine whether SLED properly exercised discretion in denying the
application. Therefore, I conclude that the nature and age of this conviction do not provide
sufficient grounds for denying the permit. Accordingly, even if SLED’s policy had the force and
effect of law, it does not support a denial of the permit.
6.For all the above reasons, Petitioner’s application for a Concealable Weapons
Permit is granted and SLED must within thirty (30) days of the date of this Order issue a
Concealable Weapons Permit to Petitioner.
ORDER
IT IS HEREBY ORDERED that Petitioner’s application for a Concealable Weapons
Permit is GRANTED; and
IT IS FURTHER ORDERED that SLED must issue the permit to Petitioner within
thirty (30) days from the date of this Order.
AND IT IS SO ORDERED.
___________________________
Marvin F. Kittrell
Chief Administrative Law Judge
April 22, 2005
Columbia, South Carolina |
