SC Administrative Law Court Decisions

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). Petitioner requested this contested case hearing to challenge the decision of the South Carolina Law Enforcement Division (SLED) to deny his application for a registration certificate as a private security officer. After timely notice to the parties, a hearing was held on April 9, 2002, at the ALJD in Columbia, South Carolina. Based upon the evidence presented and testimony offered at the hearing, I find that Petitioner's application for registration as a private security guard must be denied because of his prior criminal conviction in a Greenville, South Carolina municipal court and his failure to list his arrest and conviction for that offense on his renewal registration 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 make the following Findings of Fact by a preponderance of the evidence:

1. Petitioner Horst W. Wuestenhagen is 69 years old and has been employed as a private security guard for the past twelve years. Petitioner has worked for security firms such as Wells Fargo, American Security, and OnGuard Security. He was most recently employed by Barton Protective Services.

2. On October 5, 2000, Petitioner was arrested for violating Greenville, S.C., Code of Ordinances § 24-32 Molesting, disturbing or following persons (1997). The charge stemmed from an incident in which Petitioner inappropriately touched a female fellow employee at Barton security. Petitioner was convicted of the charge in the City of Greenville Municipal Court and fined $200 and court costs as punishment.

3. At Petitioner's arraignment on the charge, the presiding judge, The Honorable Brenda J. Binns, informed Petitioner of a pre-trial program through which he could have his record cleared of the charge against him. Petitioner, however, did not choose to participate in the pre-trial program and was found guilty of the charge at trial.

4. On June 2, 2001, Petitioner submitted an application to SLED for the annual renewal of his private security officer registration certificate. This application is incorporated by reference into the record in this matter.

5. Item #6 of the application, entitled "Criminal Record," requires the applicant to answer the following question: "Have you ever been arrested or charged with any violations? ( ) No ( ) Yes (List all such matters even if not formally charged, or no court appearance or found not guilty, or matter settled by payment of fine or forfeiture of collateral). List all traffic citations but not parking tickets." Petitioner checked "No" in response to this question and did not list his arrest and conviction for violating Greenville Ordinance § 24-32 in the space provided below the question.

6. Upon signing his application for registration as a private security officer, Petitioner certified that: "I understand that any License or Registration Certificate issued me will be contingent upon the result of a complete character and fitness investigation and I am aware that willfully withholding information or making false statements on this application will be basis for revocation or suspension by the South Carolina Law Enforcement Division."

7. SLED denied Petitioner's application on two grounds: (1) that Petitioner is not suitable for registration as a security officer as evidenced by his conviction for violating Section 24-32 of the Greenville Code of Ordinances, and (2) that Petitioner knowingly provided false information regarding his criminal record on his application form. ⁽¹⁾

8. With regard to the severity of his offense, Petitioner contends that his conviction resulted from a false charge made by a jealous fellow employee whom he had simply touched on the shoulder. As justification for failing to list the conviction on the application, Petitioner claims that an officer of the Greenville Municipal Court told him that, if he was found guilty of the charge, he would only be guilty of a misdemeanor and that, as such, the conviction would not appear on his criminal record.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:

1. This tribunal has jurisdiction over this matter 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).

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 Bd. of Med. Exam'rs, 329 S.C. 371, 496 S.E.2d 17 (1998).

3. Generally, in administrative proceedings, the burden of proof rests upon the party who asserts the affirmative of an issue. Leventis v. S.C. Dep't of Health & Envtl. Control, 340 S.C. 118, 132-33, 530 S.E.2d 643, 651 (Ct. App. 2000); 2 Am. Jur. 2d Administrative Law § 360 (1994); see also Alex Sanders & John S. Nichols, Trial Handbook for South Carolina Lawyers § 9.3, at 366-69 (2d ed. 2001) (stating that the burden of proof in civil matters is generally upon the party asserting the affirmative of an issue). Here, Petitioner contends that SLED should not have denied his application for registration as a private security officer. Therefore, Petitioner has the burden of proving by a preponderance of the evidence that SLED improperly denied his application.

4. Under S.C. Code Ann. § 40-18-30(A)(1) (Supp. 2001), SLED has the authority to determine the qualifications for applicants for licenses or registrations relating to private security and investigation agencies. S.C. Code Ann. § 40-18-80 (Supp. 2001) sets forth the requirements for obtaining a private security officer registration certificate, and S.C. Code Ann. § 40-18-130 (Supp. 2001) lists the grounds upon which SLED may deny, suspend, revoke, or refuse to renew a private security officer registration.

Petitioner's Suitability for Licensure

5. SLED cannot issue a private security officer registration certificate to an applicant unless it is "satisfied of the suitability of the applicant for employment." S.C. Code Ann. § 40-18-80(A)(3) (Supp. 2001). The determination of whether an applicant is "suitable" for employment as a security guard is within the discretion of SLED. See, e.g., Ballas v. Woodin, 231 A.2d 273, 275 (Conn. 1967) (holding that the "determination of suitability [of an applicant for a junk dealer's license] . . . calls for an exercise of judgment and reasoned discretion" on the part of the board authorized to issue the license); State v. Coppolla, 440 A.2d 465, 468 (N.J. Super. Ct. App. Div. 1981) (holding that the "use of the word 'suitable' implies a discretion in the receiving custodial officer . . . to determine suitable housing" under a statute governing the transportation of prisoners awaiting trial).

6. In the case at hand, SLED and Petitioner have widely divergent characterizations of the incident that led to Petitioner's arrest and conviction in the Greenville Municipal Court for "molesting, disturbing or following" a person. But, no matter how one characterizes the incident, the fact remains that Petitioner was arrested for, charged with, and convicted of an offense involving, at the very least, the serious disturbance of another individual. Moreover, the events giving rise to this offense occurred while Petitioner was engaged in his duties as a security officer. Therefore, I find that SLED did not abuse its discretion by determining that Petitioner was not suitable for registration as a private security officer based upon his municipal conviction for "molesting, disturbing or following" a person.

False Statements on Petitioner's Application

7. SLED may deny, suspend, revoke, or refuse to renew a private security officer registration if the registered individual or applicant has "made a false statement or given false information in connection with an application for or renewal or reinstatement" of the registration. S.C. Code Ann. § 40-18-130(A)(1) (Supp. 2001).

8. While the term "false statement" would include an intentionally misleading statement, a statement that is merely untrue is also a false statement. Black's Law Dictionary 618 (7th ed. 1999) (defining "false" as "untrue," "deceitful [or] lying," and "not genuine [or] inauthentic"). Therefore, SLED can deny, suspend, revoke, or refuse to renew a security officer registration for any false information found on the registration application, regardless of whether the applicant had intentionally sought to deceive SLED by making the false statements. See id. ("What is false can be so by intent, by accident, or by mistake.").

9. In the instant case, the evidence is clear that Petitioner provided false information to SLED on his registration application. The registration application clearly requires the applicant to state whether he has ever been arrested for or charged with a criminal violation. The application goes on to specify that any such matter should be listed, even those where the applicant was not formally charged, and to note that even traffic citations should be included. Here, Petitioner had been arrested for, charged with, and convicted of a criminal offense less than one year before he submitted his application, and yet he stated on the application that he had never been arrested or charged with a criminal violation. This statement was clearly untrue, and therefore, false. Further, this tribunal need not determine the genuineness of Petitioner's purported misunderstanding regarding the effect of his conviction on his criminal record. For, even if Petitioner honestly believed that he did not have to list his conviction on the application and genuinely did not intend to mislead SLED, his application contained an unquestionably untrue and false statement that entitled SLED to refuse to renew Petitioner's registration. ⁽²⁾

10. SLED did not abuse its discretion in refusing to renew Petitioner's registration based upon the false information regarding his criminal record Petitioner provided on his renewal application.

ORDER

The authorization of a person to serve as a private security officer is a very serious responsibility to which 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 law of South Carolina. Thus, while I recognize that Petitioner is in an unfortunate situation, I find that SLED acted well within its authority in refusing to renew his security officer registration and that SLED's decision must be upheld.

IT IS THEREFORE ORDERED that SLED's decision to deny Petitioner's application for a renewal of his private security officer registration certificate is SUSTAINED.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

April 30, 2002

Columbia, South Carolina

1. In its closing argument at the hearing of this matter, SLED further argued that Petitioner's application should be denied because the offense of which he was convicted, i.e., "molesting, disturbing or following persons," is a crime involving moral turpitude. See S.C. Code Ann. § 40-18-80(4)(d) (Supp. 2001). However, as SLED did not deny Petitioner's application on that basis (Letter from Delaney to Wuestenhagen of 7/30/01, at 1) and had not previously raised that ground for denial in these proceedings (SLED's Prehearing Statement ¶¶ 3, 5), this tribunal will not reach the issue of whether Petitioner's conviction constituted a conviction of a crime involving moral turpitude.

2. It should also be re-emphasized that the registration application requires the applicant not only to list any prior criminal convictions, but also to state whether he has ever been merely arrested for a criminal offense. Here, even if Petitioner was unclear on whether his conviction would appear on his record, he should have been well aware that he was arrested within the past year. See also S.C. Code Ann. § 40-18-80(A)(6) (Supp. 2001) (requiring a registered security officer who is arrested to report the arrest to SLED within 72 hours of the arrest). However, Petitioner listed neither his conviction nor his arrest on his application.