SC Administrative Law Court Decisions

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). The 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 offices of the ALJD in Columbia, South Carolina on June 13, 2001.

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. On September 21, 2000, the Petitioner, Cleophus M. Thompson, applied for a concealed weapon permit. A question on the permit application asked, "Have you ever been convicted of a crime?" The Petitioner had originally checked "Yes" on the application. However, prior to submitting his application, the Petitioner requested a SLED background check which shows only South Carolina convictions. When the Petitioner received a negative SLED background check, he changed his answer to "No" and submitted the application along with a copy of his SLED background check.

However, the Petitioner was convicted of communicating threats, a misdemeanor under North Carolina law, in July of 1997. He contends that he asked for the SLED report because he was uncertain if he had been convicted of that crime in North Carolina. I find his contention implausible. The Petitioner not only appeared before a judge concerning the charge of communicating threats, but he also plead not guilty and was subsequently found guilty by the court. He was sentenced to fifteen days confinement with one year probation, and was ordered to pay court costs of $65.00.

The Petitioner does not have a favorable background based on his prior conviction for communicating threats and his falsification of his application regarding that prior conviction. Therefore, I find that his application for a concealed weapon permit was properly denied.

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. 2000) and S.C. Code Ann. § 1-23-600 (Supp. 2000) 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. 2000). 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. Under North Carolina law, the conviction of communicating threats is a misdemeanor which requires proof of the following:

(1) [The person] willfully threatens to physically injure the person or that

person's child, sibling, spouse, or dependent or willfully threatens to damage

the property of another;

(2) The threat is communicated to the other person, orally, in writing, or by any others means;

(3) The threat is made in a manner and under circumstances which would cause a reasonable person to believe that the threat is likely to be carried out; and

(4) The person threatened believes that the threat will be carried out.

N.C. Gen. Stat. § 14-277.1. In 1997, Mr. Thompson was convicted of communicating threats to his wife.

5. Under SLED policy and procedure for the evaluation of a concealed weapon permit, a criminal records background check may result in denial of the application when the background check demonstrates the applicant's background is not favorable for the issuance of a concealed weapon permit. Point 5 of the SLED policy and procedure further provides, in part, the following:

Such applications may be denied when a combination of circumstances leads to the conclusion that the applicant's background is not favorable. The circumstances to be considered include (a) the age of the conviction(s) or charge(s), (b) the number of convictions, (c) whether the charge(s) involved use or threat of use of violence or a weapon, or potential danger to an individual or the community, (d) whether the applicant falsified the application form as to criminal convictions, (e) whether the pending charge, if conviction results, would disqualify the applicant, under federal or state law, to purchase or possess a handgun, and (f) the recommendation of the sheriff of the county where the applicant resides.

Furthermore, pursuant to Point 11 of the SLED policy and procedure on the issuance of a concealed weapon permit, an application may be denied "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."

6. S.C. Code Ann. § 23-31-215(E)(4) requires that the applicant certify that "all information contained in his application is true and correct to the best of his knowledge."

7. SLED denied the application because:

(1) Mr. Thompson was convicted of a charge involving the use or threat of use of violence to an individual; and

(2) Mr. Thompson falsified his application form as to prior criminal convictions.

The authorization of a person to carry a concealed weapon on his person is the extension of a very serious privilege. Mr. Thompson answered falsely on the concealed weapon permit. Moreover, whether or not Mr. Thompson falsified his application, his background is not favorable because of his prior conviction for communicating threats. Therefore, I conclude that SLED acted within its discretion in denying the permit.

IT IS HEREBY ORDERED that the Petitioner's application for a concealed weapon permit is DENIED.

AND IT IS SO ORDERED.

___________________________

Ralph King Anderson, III

Administrative Law Judge

July 12, 2001

Columbia, South Carolina