ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division (Division) 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
application for a Concealable Weapons Permit. After timely notice to the parties, a hearing was held
at the offices of the Division in Columbia, South Carolina on October 15, 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.The Division has personal and subject matter jurisdiction.
2.Notice of the date, time, place and subject-matter of the hearing was properly given
to all the parties.
3.On January 27, 2003, the Petitioner applied for a Concealable Weapons Permit. A
question on the permit application asked, “If this is a new application have you been convicted of a
crime?” Petitioner only reported a 1998 charge of Assault and Battery, which was eventually
dismissed, and an unsigned expungement order for that charge.
4.A few days prior to submitting his application, Petitioner requested a SLED
background check which shows only South Carolina convictions. The background check only
reported the 1998 charge of Assault and Battery.
5.A subsequent investigation of Petitioner’s application revealed that Petitioner had two
prior convictions which Petitioner failed to disclose on his application. These convictions were for
federal offenses and, therefore, were not reported on the SLED background check requested by
Petitioner.
6.In 1971, Petitioner was convicted in the United States District Court, Columbia, South
Carolina of 15 U.S.C. § 645(c), Concealing Property With Intent to Defraud, to which he plead nolo
contendere and was sentenced to four (4) years probation. This conviction resulted from the
concealment of equipment by Petitioner which had been mortgaged to secure a loan from the Small
Business Administration. The Small Business Administration foreclosed on the loan and Petitioner
failed to turn over the collateral equipment for sale.
7.In 1977, Petitioner was convicted on a misdemeanor charge of Assaulting a Federal
Officer and was sentenced to confinement in a federal prison for six (6) months. This conviction
arose from an incident during which a deputy United States Marshal attempted service of process on
Petitioner at Columbia Metropolitan Airport in connection with Petitioner’s failure to comply with
a federal court order. Petitioner served approximately 3 ½ months of this sentence.
8.Petitioner has not received a pardon for either the conviction of Concealing Property
With Intent to Defraud or Assaulting a Federal Officer.
9.On February 27, 2003, SLED issued a letter to Petitioner denying his application for
a Concealable Weapons Permit. SLED determined that Petitioner had an unfavorable background
based on the fact that Petitioner had been convicted of crimes and the fact that Petitioner reported
false, inaccurate, or incomplete information on the application.
10.By letter to SLED dated March 26, 2003, Petitioner appealed the denial of his
application and asked for reconsideration. On July 1, 2003, SLED issued a subsequent letter to
Petitioner affirming the denial of Petitioner’s Concealable Weapons Permit application.
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 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 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) (Supp. 2002) requires that the applicant certify that
“all information contained in his application is true and correct to the best of his knowledge.”
5.S.C. Code Ann. Regs. 73-340(B)(2)(Supp. 2002) provides that “[f]alsification of any
document or information submitted in accordance with these Regulations or S.C. law may result in
denial, suspension or revocation of a permit.”
6.An act in which fraud is an ingredient involves moral turpitude. State v. Horton, 271
S.C. 413, 414, 248 S.E.2d 263 (1970); See also In re Sipes, 377 S.E.2d 574 (1989). Further, moral
turpitude is defined as:
...an act of baseness, vileness, or depravity in the private and social
duties which a man owes to his fellow man, or to society in general,
contrary to the accepted and customary rule of right and duty between
man and man... Horton at 414.
Petitioner’s two convictions, Concealing Property With Intent to Defraud and Assaulting a
Federal Officer, which are on his record, occurred many years ago. The circumstances involved in
these charges are of great concern. The offense of Concealing Property With Intent to Defraud
demonstrates a wilfulness to violate the law, and this crime involves the element of fraud. Although
Concealing Property With the Intent to Defraud is not specifically defined as a crime of moral
turpitude by the South Carolina Supreme Court, it involves the sort of fraud and breach of societal
duties that exemplifies acts of moral turpitude. Moreover, Petitioner’s conviction for Assaulting a
Federal Officer stemmed from Petitioner’s failure to follow a federal court order to turn over the
collateral equipment he possessed that secured his loan from the Small Business Administration.
Petitioner also failed to disclose either of these convictions on his application.
The authorization of a person to carry a concealable weapon on his person is the extension
of a very serious privilege. Based upon Petitioner’s prior criminal record, I find that Petitioner’s
background is unfavorable for the purposes of issuing a Concealable Weapons Permit. Furthermore,
Petitioner provided false, inaccurate, and incomplete information on his application. Therefore, for
all of the above reasons, I conclude that Petitioner’s application for a Concealable Weapons Permit
should be denied.
ORDER
IT IS HEREBY ORDERED that the Petitioner’s application for a Concealable Weapons
Permit is DENIED.
AND IT IS SO ORDERED.
___________________________
Marvin F. Kittrell
Chief Administrative Law Judge
October 29, 2003
Columbia, South Carolina |
