ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division (ALJD) pursuant to S.C. Code
Ann. § 23-31-215(D) (Supp. 2002) and S.C. Code Ann. § 1-23-310 et seq. (1986 & Supp. 2002).
The Petitioner appeals the South Carolina Law Enforcement Division’s (SLED) denial of his renewal
of a concealed weapon permit. After timely notice to the parties, a hearing was held at the offices
of the ALJD in Columbia, South Carolina on March 6, 2003.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing
in this case and taking into account the credibility and accuracy of the evidence, I find the following
facts by a preponderance of the evidence:
1.Notice of the date, time, place and subject-matter of the hearing was properly given
to all the parties.
2.The Petitioner was issued a concealed weapon permit in August 1998. On July 2,
2002, he applied for a renewal of his permit. A question on the permit application asked, “Have you
ever been convicted of a crime?” The Petitioner checked “No” to that question on the renewal
application as he had done in the original application. A subsequent investigation of the Petitioner’s
renewal application revealed the following traffic convictions:
a.Speeding 10 miles per hour (mph) or less in 1993;
b.Speeding 95 mph in a 65 mph zone in 1993;
c.Speeding 10 mph or less (three counts) in 1994;
d.Speeding 10 mph or less (two counts) in 1995;
e.Speeding 71 mph in a 55 mph zone in 1996;
f.Speeding 10 mph or less (two counts) in 1996;
g.Speeding 10 mph or less (two counts) in 1997;
h.Speeding 10 mph or less in 1998;
i.Speeding 10 mph or less (two counts) in 1999;
j.Speeding 76 mph in a 55 mph zone in 1999;
k.Speeding 10 mph or less (two counts) in 2000; and
l.Speeding 10 mph or less in 2001.
SLED must determine if an applicant has a favorable background and it considers all criminal
convictions, including traffic convictions, in making that determination. SLED reasons that numerous
violations of the traffic laws reflect poor judgment, a propensity to place the public at risk, and a
wilfulness to violate the law. Therefore, SLED found that the applicant’s background was not
sufficiently favorable to renew his permit based upon the false statement on the renewal application
concerning his convictions and the above traffic convictions.
However, though the Petitioner failed to report the speeding tickets he had received on his
application, he was not informed that those tickets were considered reportable offenses. Moreover,
after the Petitioner’s initial application and acceptance, SLED amended its policy which established
the type of criminal convictions it considered in determining whether an applicant has a favorable
background. The revised policy added traffic convictions as a consideration in SLED’s
determination. Consequently, Agent Dorton testified that the false statement is explainable. I
therefore find that the Petitioner’s statement that he had not been convicted of a crime was not an
attempt to mislead SLED concerning his past violations but rather a simple misunderstanding of the
reporting requirements. Accordingly, those misstatements do not unfavorably reflect upon his
character.
Furthermore, though the Petitioner has had numerous traffic violations in the last ten years,
only three of those violations would be considered severe -- one violation in 1993 for driving 30 mph
over the speed limit, another violation in 1996 for driving 16 mph over the speed limit, and a final
violation in 1999 for driving 21 mph over the speed limit. Additionally, since learning that traffic
violations are considered in determining whether to issue a concealed weapon permit, the Petitioner
has not had any traffic violations. His last violation was on November 9, 2001. Finally, the Petitioner
has not had any infractions relating to his possession of a concealed weapon and his local Sheriff
recommended that he receive the permit.
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. 2002) and S.C. Code Ann. § 1-23-600 (1986
& Supp. 2002) grant jurisdiction to the ALJD 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).
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 (2000). Therefore, the Petitioner has the
burden of proving by a preponderance of the evidence that SLED abused its discretion in denying him
a concealed weapon permit.
3.SLED is required to conduct a background check of an applicant for a concealed
weapon permit upon submission of required information and proof of training. S.C. Code Ann.
§ 23-31-215(B) (Supp. 2002). If an applicant’s fingerprint and background checks are favorable,
SLED must issue a concealed weapon permit to the applicant. Id. However, if SLED determines
that an applicant’s background is unfavorable, SLED may deny the concealed weapon permit.
4.S.C. Code Ann. § 23-31-215(F)(4) requires that the applicant certify that “all
information contained in his application is true and correct to the best of his knowledge.” Though
the applicant’s statements were false, the change in policy making traffic violations a consideration
is mitigating evidence concerning his misstatement.
5.The remaining issue for consideration in this case is whether the Petitioner’s renewal
application should be denied because he has had numerous traffic violations over the last ten years.
The authorization of a person to carry a concealed weapon on his person is the extension of a very
serious privilege. Moreover, numerous violations of the traffic laws can reflect poor judgment, a
propensity to place the public at risk, and a wilfulness to violate the law. Accordingly, because the
Petitioner’s background is questionable based on his past convictions for traffic violations, I find that
his renewal application for a concealed weapon permit was properly denied. Nevertheless, in light
of the fact that:
•The Petitioner has recently corrected his behavior concerning traffic violations;
•Only three of his traffic violations were considered serious (and the most serious of
those occurred approximately ten years ago);
• He has never had any infractions relating to his possession of a concealed weapon;
and
•The local Sheriff recommends that his permit be renewed,
I limit the finding that the Petitioner’s background is not favorable to November 1, 2004. In other
words, if the Petitioner continues to display “favorable” behavior during the period from the
date of this Final Decision until November 1, 2004, the Findings in this Decision would not
support a denial of another application for a concealed weapon permit.
ORDER
IT IS HEREBY ORDERED that the renewal of Petitioner’s concealed weapon permit is
DENIED.
AND IT IS SO ORDERED.
___________________________
Ralph King Anderson, III
Administrative Law Judge
May 27, 2003
Columbia, South Carolina |
