ORDERS:
FINAL ORDER AND DECISION
This matter is before the Administrative Law Judge Division (ALJD) pursuant to S.C. Code Ann. § 23-31-215(D) (Supp.
2000) and S.C. Code Ann. § 1-23-310 et seq (Supp. 2000). Petitioner appeals the South Carolina Law Enforcement
Division's (SLED) denial of his application for a concealed weapon permit. After timely notice to the parties, a hearing
was held at the ALJD on January 25, 2001. The application for the concealed weapon permit must be denied based on (1)
Mr. Dayse's unfavorable background check resulting from prior convictions for fraudulent checks, (2) the sheriff's
recommendation that the permit not be issued, and (3) Mr. Dayse's falsification of his application.
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. On June 20, 2000, Mr. Dayse applied for a concealed weapon permit.
2. Mr. Dayse was convicted on seven counts of drawing fraudulent checks ("bad checks") in March of 1986, two counts in
January of 1987, and one count in June of 1987. All incidents arose from Mr. Dayse's financial mismanagement and lack
of communication regarding the checking account shared with his wife. They have had separate accounts since then and
have had no further violations. Mr. Dayse promptly answered the warrants and paid the bad checks. He has had no bad
checks in the fourteen years since 1987. Mr. Dayse has no other criminal background. 3. On August 20, 2000, Charleston
County Sheriff Al Cannon recommended that SLED deny Mr. Dayse's application for a concealed weapon permit.
4. Captain Dorton of SLED is the head of the department that processes applications for concealed weapon permits. When
an application is received at SLED, an automatic electronic message is sent to the sheriff of the county from which the
application originated; the sheriff's response is received electronically within ten days. Captain Dorton testified that
Sheriff Cannon automatically recommends denial of these permits to anyone with any criminal convictions. Mr. Dayse
testified that Sheriff Cannon does not know him personally. In this case, the recommendation was not ostensibly based on
Mr. Dayse's character but was automatic, based on his prior convictions for fraudulent checks.
5. In answer to question number three on the concealed weapon permit application, "Have you ever been convicted of a
crime?", Mr. Dayse checked "No," based on his understanding of bad check laws and the fact that he had not been
previously precluded from purchasing pistols and other firearms. Mr. Dayse falsified his application based on a legitimate
misunderstanding, not misrepresentation. He testified that he would now answer the question differently based on his
understanding of the law.
6. Mr. Dayse's explanation for the convictions and falsifying his application were found by SLED and this tribunal to be
credible. Mr. Dayse participates in his community and his church, and serves as a mentor to young children.
7. Based on the totality of the circumstances, SLED denied Mr. Dayse's application for a concealed weapon permit. CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude the following as a matter of law.
1. S.C. Code Ann. § 23-31-215(D) (Supp. 2000) and S.C. Code Ann. § 1-23-600 (Supp. 2000) grants 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).
3. 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).
Petitioner has the burden of proving by a preponderance of the evidence that SLED abused its discretion in denying him a
concealed weapon permit. The preponderance of the evidence "is evidence which is of the greater weight or more
convincing than the evidence which is offered in opposition to it . . . ." Black's Law Dictionary 1182 (6th ed. 1990). "The
preponderance of the evidence means such evidence as, when considered and compared with that opposed to it, has more
convincing force and produces in the mind the belief that what is sought to be proved is more likely true than not true."
Sanders, supra, § 9:5 Quantum of Evidence in Civil Cases (2000), (citing Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225
(1955)).
4. The issuance of concealed weapon permits is within the discretion of SLED. S.C. Code Ann. § 23-31-215(B) (Supp.
2000) provides:
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. The sheriff must, within ten working
days after notification by SLED, 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.
By implication, in circumstances between those where SLED must issue the permit and those where it must not, the
issuance of the permit is within SLED's discretion as the agency charged with administering the statute.
5. Under the fraudulent check law, prima facie evidence of fraudulent intent arises from drawing a check for valid
consideration without sufficient funds on deposit for the bank to honor the check on presentation. S.C. Code Ann. §34-11-60 (Supp. 2000). In essence, knowledge that there are not sufficient funds to cover the check is presumed from the drawing
of the check in combination with the failure to keep the necessary funds on deposit to cover the amount of the check. Even
where, as here, the fraudulent checks resulted from mistake or mismanagement, the statute presumes fraudulent intent from
the drawing and dishonoring of the check.
6. The South Carolina Supreme Court in State v. Harrison held that any crime with an element of fraud is a crime of moral
turpitude; the court reasoned that the check law by its very terms entailed the element of fraud and was thus a crime of
moral turpitude. (1) Moral turpitude is defined as:
an act of baseness, evilness, or depravity in the private and social duties which man owes to his fellow man or to society in
general, contrary to the customary and accepted rule of right and duty between man and man. State v. Major, 301 S.C. 181,
391 S.E.2d 235 (1990). In determining whether a crime is one involving moral turpitude, the court focuses primarily on the
duty to society and fellow man which is breached by the commission of the crime.
Alex Sanders, et al., South Carolina Trial Handbook § 13:13 Impeachment by Crimes of Moral Turpitude (1994). Because
any violation of the fraudulent check law is a crime of moral turpitude, Mr. Dayse's background check must be considered
unfavorable for purposes of the concealed weapon permit. The result in the present case may be harsh, but the law is
settled.
7. On the "Pistol Purchase and Application" and the "Firearms Purchase and Application", the question regarding prior
crimes is more narrowly tailored than that on the application for a concealed weapon permit. (2) Mr. Dayse has previously
been permitted to purchase guns; based on prior background checks not precluding him from purchasing guns, Mr. Dayse
mistakenly answered falsely on the concealed weapon permit. While Mr. Dayse is not statutorily precluded from
purchasing firearms and pistols under S.C. Code Ann. §23-31-20 and §23-31-140 (Supp. 2000), he is precluded from
carrying a concealed weapon under S.C. Code Ann. §23-31-215 (Supp. 2000), as this tribunal must conclude that his
background is not favorable. Therefore, I conclude that SLED acted within its discretion in denying the permit.
CONCLUSION
The authorization of a person to carry a concealed weapon on his person is the extension of a very serious privilege to
which the most stringent standards are applied. In reaching a decision in this matter, I am constrained by the record of
evidence as developed by the parties and the applicable laws of South Carolina in reaching my conclusion.
THEREFORE, IT IS HEREBY ORDERED that SLED's denial of the concealed weapon permit is proper, and
Petitioner's application for a concealed weapon permit is therefore DENIED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
March 24, 2001
Columbia, South Carolina
1. "S.C. Code Ann. § 34-11-60 (1987) provides that it is unlawful to draw or utter a fraudulent check. An element of the
crime is the 'intent to defraud.' Any crime in which fraud is an ingredient is a crime of moral turpitude. In re Sipes, 377
S.E.2d 574 (S.C. 1989); State v. Horton, 271 S.C. 413, 414, 248 S.E.2d 263 (1970). A conviction for uttering a 'fraudulent
check' by its very terms recognizes that an element of fraud is involved. Accordingly, there is no question that a fraudulent
check conviction is one for a crime of moral turpitude. . . ." State v. Harrison, 298 S.C. 333, 336, 380 S.E.2d 818, 819
(1989).
2. The pistol purchase and application form contains the following question: "Have you ever been convicted in any court
of a felony or a crime punishable by imprisonment for a term exceeding one year?" The firearms purchase and application
form contains the following question: "Have you ever been convicted, entered a plea of guilty, or plea of nolo contendere,
or forfeited bond on any one or more of the following crimes of violence: MURDER, MANSLAUGHTER, RAPE,
MAYHEM, KIDNAPPING, BURGLARY, ROBBERY, HOUSEBREAKING, ASSAULT WITH INTENT TO KILL,
COMMIT RAPE, OR ROB, ASSAULT WITH A DANGEROUS WEAPON, OR ASSAULT WITH INTENT TO
COMMIT ANY OFFENSE PUNISHABLE BY IMPRISONMENT FOR MORE THAN ONE YEAR." See Attachments
to Petitioner's Prehearing Statement. |
