ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division (ALJD or Division) pursuant to S.C. Code Ann. § 40-18-130(C) (Supp. 2001) and S.C. Code Ann. §§ 1-23-310 et. seq. (1986 & Supp. 2001). The Petitioner appeals the South Carolina Law Enforcement Division’s (SLED) notice of intent to revoke his Security Concealed Weapons Permit. After timely notice to the parties, a hearing was held at the offices of the ALJD in Columbia, South Carolina on June 24, 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 is a licensed security company pursuant to S.C. Code Ann.§ 40-18-80 (Supp. 2001). The Petitioner also had a security concealed weapons pursuant to S.C. Code Ann.§ 40-18-100 (Supp. 2001).
3. On December 7, 2000, the Petitioner contends that he was simultaneously providing security for Nielsen’s Bar, Triple D Garage, and Ms. C. C. Barnes. Specifically, the Petitioner testified that he had an informal agreement with Vic Nielsen, the owner of Nielsen’s Bar, to provide security for the club, and that he was on duty for Nielsen on the night of December 7, 2000. He also claims that he was providing security for Ms. Barnes while she was out with her new boyfriend at Nielsen’s Bar. Additionally, the Petitioner testified that he would periodically leave the bar to check on the Triple D Garage
According to the Petitioner, law enforcement arrived and advised him to leave, but he had no idea why they would be asking him to do so. The officers secured him a taxi, which he took. While riding away in the taxi, he received an indecipherable page, which, for some reason, he interpreted as instructions to return to Nielsen’s Bar to either service his client Nielsen’s Bar, or his client Ms. Barnes, or both. He then told the taxi driver to go back to Nielsen’s Bar. Upon his arrival there, he was arrested for trespassing after notice and the weapons charge.
I find the Petitioner’s testimony at the ALJD hearing incredible. To the contrary, I find that Vic Nielsen never had an agreement, either formal or informal, with the Petitioner to provide security at the bar. Furthermore, I find that Ms. Barnes neither asked the Petitioner to come as her guest on December 7, 2000, nor that she requested that he provide her security that night. In fact, the written agreement the Petitioner presented to establish that he provided security for Ms. Barnes was a ruse to conceal his romantic/sexual relationship with Ms. Barnes prior to December 7, 2000.
Therefore, on the night of December 7, 2000, the Petitioner went to Nielsen’s Bar as a public customer of the bar. That night he was drinking heavily and causing a disturbance because he was upset that Ms. Barnes was dating someone else. In fact, because of his behavior, Ms. Barnes left with her new boyfriend. The Petitioner continued to create a disturbance and Michelle Frye, a bartender at Nielsen’s Bar, finally told the Petitioner to leave the bar or she would call the police. When the Petitioner refused, she called the police. After their arrival, the police ordered the Petitioner to leave the premises and secured him a cab. The Petitioner, however, came back. Ms. Frye again called the police. At that point, the police arrested the Petitioner and discovered that he had a small derringer pistol in his pocket. Consequently, on December 7, 2000, the Petitioner was present at Nielsen’s Bar, a nightclub in Sumter, South Carolina, and was in possession of a concealed firearm while not on duty.
4. Under the terms of the Petitioner’s permit, the Petitioner was entitled to carry a weapon, concealed or unconcealed, only when he was on duty rendering services as a security guard, and while he was proceeding to and from his various workplaces as a security guard. Consequently, his possession of a concealed weapon at Nielsen’s Bar while he was neither on duty nor proceeding to his workplaces as a security guard was in violation of a permit restriction. Furthermore, on June 11, 2002, the Petitioner was convicted in General Sessions Court of “carrying a pistol or firearm onto the premises of a business which sells alcoholic liquor, beer or wine for consumption on the premises” in violation of S.C. Code Ann. § 16-23-465 (Supp. 2001).
CONCLUSIONS OF LAW
Based upon the above findings of fact, this Court concludes the following as a matter of law:
1. S.C. Code Ann. § 40-18-130(C) (Supp. 2001) and S.C. Code Ann. §§ 1-23-310 et. seq. (1986 & Supp. 2001) grant jurisdiction to the Division 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 wrongfully revoked his Security Concealed Weapons Permit.
3. Here the Petitioner violated a permit condition by carrying a concealed weapon upon the premises of Nielsen’s while he was neither on duty nor proceeding to his workplace as a security guard. Furthermore, he was convicted of violating Section 16-23-465 in the General Sessions term of Circuit Court. Sections 40-18-130 (A)(5) and (7) provide that SLED may suspend or revoke a license of an individual who has “violated a permit restriction” or “been convicted of or plead guilty to a crime since becoming licensed . . . .” Section 40-18-130 (B) also provides that SLED may, in its discretion, impose a civil monetary penalty upon the holder of the license in lieu of suspension or revocation. That language grants discretion as to whether or not to suspend or revoke the Security Concealed Weapons Permit of an individual convicted of a crime. In other words, SLED has discretion to consider the facts of each individual case in making a revocation decision.
The Respondent contends that the Petitioner’s Security Conceal Weapons Permit must be revoked pursuant to18 U.S.C. § 922 (g)(1). SLED contends that since Section 922 (g)(1) makes it unlawful for an individual who has been convicted under Section 16-23-465 to possess a gun, allowing the Petitioner to hold a Security Concealed Weapons Permit would abet the commission of a federal crime. Section 922 (g)(1) provides in pertinent part as follows:
It shall be unlawful for any person, who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any fire arm or ammunition or receive any fire arm or ammunition which has been shipped or transported in interstate or foreign commerce.
In United States v. Bostic, 168 F. 3rd 718 (4th Cir. 1999), the Fourth Circuit interpreted the application of Section 922 (g). The Court held that “Section 922(g) expressly requires the government to prove that the firearm was ‘ship[ped] or transport[ed] in interstate or foreign commerce’; was ‘possess[ed] in or affect[ed] commerce’; or is received after having been ‘shipped or transported in interstate or foreign commerce.’ 168 F. 3rd 718, 723 (quoting, in part, 18 U.S.C. § 922(g)). Therefore, “[t]he existence of this jurisdictional element, requiring the Government to show that a nexus exists between the firearm and interstate commerce to obtain a conviction under § 922(g), . . . satisfies the minimal nexus required for the Commerce Clause.” United States v. Wells, 98 F.3d 808, 811 (4th Cir.1996).
The Petitioner was convicted of a crime that carries a penalty of up to three years imprisonment. See S.C. Code Ann. § 16-23-465. However, the Petitioner is not automatically guilty of a violation of 18 U.S.C. § 922 (g)(1) by merely possessing a firearm pursuant to his Security Concealed Weapons Permit, after his conviction under Section 16-23-465. Rather, as explained in Bostic, in order to be guilty of a violation of this federal statute, the government would also have to prove that the firearm possessed by the Petitioner pursuant to his Security Concealed Weapons Permit or otherwise, was shipped or transported in interstate or foreign commerce, or was possessed in or affected interstate commerce, or was received after having been shipped or transported in interstate or foreign commerce. Therefore, since any possession of a gun does not necessarily implicate the required nexus to the Commerce Clause, revocation of the Petitioner’s Security Concealed Weapons Permit is not mandatory to prevent an ongoing violation of Section 922 (g)(1). Accordingly, the simple fact that the Petitioner was convicted under Section 16-23-465 does not mandate that his Security Concealed Weapons Permit be revoked based on Section 922 (g)(1). It is, rather, a factor to consider in determining the appropriate penalty based upon all the facts.
In this case, the Petitioner had a small derringer pistol in his pocket when he entered the premises of Nielsen’s Bar. While in Nielsen’s, he began drinking heavily and causing a disturbance while also in possession of that weapon. Nevertheless, the Petitioner has not had any previous violations and there was no evidence of past reckless behavior. Furthermore, the Petitioner did not pull the weapon from his pocket, present, point or brandish it, or in any way attempt to use it, or even tell anyone that he had the weapon on his person. Therefore, even though the Petitioner’s actions constituted a violation of S.C. Code Ann. § 16-23-465 (along with irresponsible behavior), imposition of the maximum penalty of revocation of the Petitioner’s Security Concealed Weapons Permit is slightly excessive. I find and conclude that under the facts of this particular case, the Petitioner’s permit should be suspended for one hundred eighty (180) days. However, any further violations by the Petitioner would warrant most serious consideration as to whether he possesses the character to hold a Security Concealed Weapons Permit.
ORDER
IT IS HEREBY ORDERED that the Petitioner’s Security Concealed Weapons Permit is suspended for a period of one hundred eighty (180) days.
AND IT IS SO ORDERED.
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Ralph King Anderson, III
Administrative Law Judge
August 13, 2003
Columbia, South Carolina
The Petitioner occasionally walked the waitresses of Nielsen’s Bar to their cars and helped them lock-up the bar at closing. Nevertheless, his services in that regard were completely voluntary.
I did not find the “agreement” signed by Ms. Barnes to be persuasive in this case as it appeared it could have been altered after it was signed.
The Petitioner testified that at that point he sensed that she no longer required his services, though he remained at the bar.
At the outset of this hearing, the Respondent in essence stipulated that it was not seeking to invoke the principle of res judicata or collateral estoppel. Rather, the Respondent requested this Division to make its own findings of fact and conclusions of law in accordance with its view of the preponderance of the evidence.
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