South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

Carol W. Johnson vs. SCLED

South Carolina Law Enforcement Division

Carol W. Johnson

South Carolina Law Enforcement Division

Michael Ray Ellisor, Esquire, for Petitioner

Caroline Callison Tiffin, Esquire, Assistant Attorney General, for Respondent




This matter comes before the Administrative Law Judge Division ("Division") pursuant to the request of Carol W. Johnson ("Petitioner") for review of the decision of the Respondent, South Carolina Law Enforcement Division ("SLED" or "Respondent") denying Petitioner's application for armed security guard registration pursuant to S.C. Code Ann. § 40-17-120 (Supp. 1998). A hearing was held on February 8, 1999, at the offices of the Administrative Law Judge Division in Columbia, South Carolina, after notice to the parties.

After a thorough review of the evidence and applicable law, I find that the Division has jurisdiction to review denials and nonrenewals of applications for armed security guard registrations, and that Petitioner's application should be granted.


Having carefully reviewed the evidence and exhibits placed into the record and having judged the credibility of the witnesses, by a preponderance of the evidence, I make the following Findings of Fact:

1. This Division has personal and subject matter jurisdiction.

2. Notice of the date, time, place and nature of the hearing was given to all parties.

3. Petitioner was convicted of Housebreaking and Larceny on June 29, 1976. He also carries the following convictions on his record: public drunk in 1973 and 1976; driving under the influence, third offense, and driving under suspension, third offense, in 1976; disorderly conduct and disorderly conduct in jail in 1977; driving under the influence, fourth offense and driving under suspension in 1978; disorderly conduct in 1979; and fraudulent check in 1980.

4. Petitioner was pardoned by the South Carolina Probation, Parole and Pardon Board on March 14, 1989, for public drunk, housebreaking, driving under the influence (more than first offense), driving under suspension (more than first offense), three counts of disorderly conduct, and fraudulent check. Petitioner has not been arrested or convicted for any offenses since 1980.

5. The Petitioner has been employed as a security guard for approximately two years. On March 19, 1997, his application for registration as an unarmed security guard, pursuant to S.C. Code Ann. § 40-17-80 (Supp. 1998), was approved. Petitioner then applied for a permit to carry a firearm, pursuant to S.C. Code Ann. § 40-17-120 (Supp. 1998). This application was approved on April 24, 1997.

6. When Petitioner's armed security guard registration came up for renewal, SLED treated the renewal as a new application, pursuant to a recently enacted policy. Upon conducting a background check of Petitioner, his prior convictions came to light. Subsequently, Petitioner's application for renewal of his armed security guard registration, dated March 10, 1998, was rejected by SLED in a letter dated March 27, 1998, on the ground that Petitioner had been convicted of housebreaking.

7. Petitioner's request for reconsideration of the denial of his armed security guard registration was denied on June 23, 1998, by the Chief of SLED. The grounds for denial were Petitioner's conviction for housebreaking and SLED's reliance on a 1996 Attorney General's opinion which stated that a pardon did not restore the right to possess a firearm. Thereafter, Petitioner was advised by SLED that the matter could not be appealed further.

8. On November 18, 1998, Petitioner filed a request for injunctive relief with the Division, seeking an Order directing SLED to transmit his case to the Division for a contested case hearing.


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


SLED contends that, because the statutes governing the issuance and revocation of security guard registrations do not specifically provide for a hearing to review the denial or nonrenewal of an application for armed security guard registration, Petitioner has no right to a contested case hearing before the Division. The statute governing the suspension or revocation of security guard registrations, S.C. Code Ann. § 40-17-140(A) (Supp. 1998) provides in pertinent part: "The division [SLED], after hearing, may suspend or permanently revoke a license or registration issued under this chapter if it determines that the holder of the license or registration has. . . (11) committed an act which is a ground for denial of an application for license or registration under this chapter. . . ." There is no doubt that, had Petitioner's license been suspended or revoked, this case would be a "contested case" pursuant to the Administrative Procedures Act, which defines a "contested case" as "a proceeding, including, but not restricted to ratemaking, price fixing, and licensing, in which the legal rights, duties or privileges of a party are required by law to be determined by an agency after an opportunity for a hearing." S.C. Code Ann. § 1-23-310(2) (Supp. 1998). Therefore, the Division would have jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-600(B) (Supp. 1998), which gives the Division jurisdiction to hear contested cases "involving the departments of the executive branch of government in which a single hearing officer is authorized or permitted by law or regulation to hear and decide such cases. . . ." Although this case involves a "renewal" rather than a "suspension" or "revocation," the effect of SLED's action in refusing to renew Petitioner's application is the same as that of a revocation. Under either scenario, Petitioner has been deprived of the previously granted right to earn a living as an armed security guard. Therefore, I conclude that Section 40-17-140(A) should apply to this case, and that the Administrative Law Judge Division has jurisdiction to hear this matter as a "contested case" under the Administrative Procedures Act.

Even if this case were not a "contested case," however, I nonetheless conclude that fundamental principles of due process entitle Petitioner to a hearing to review SLED's decision. Article I, Section 22 of the South Carolina Constitution provides:

No person shall be finally bound by a judicial or quasi-judicial decision of an administrative agency affecting private rights except on due notice and an opportunity to be heard. . . and he shall have in all such instances the right to judicial review.

In this case, Petitioner's right to hold specific employment was affected by SLED's decision. This right is within the liberty and property interests protected by the due process clause. Brown v. S.C. State Bd. of Education, 301 S.C. 326, 391 S.E.2d 866 (1990). Therefore, Petitioner was entitled to a hearing at which he could present evidence and cross examine witnesses regarding the merits of his case. Stono River Environmental Protection Ass'n v. S.C. Dept. of Health and Envtl. Control, 305 S.C. 90, 406 S.E.2d 340 (1991). Accordingly, this Court will treat this matter as a contested case.

General Conclusions

1. S.C. Code Ann. § 1-23-600 (Supp. 1998) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 40-17-80 (Supp. 1998) provides for the registration of security guards. No person may be approved for registration under that section if he has been convicted of a felony or a crime involving moral turpitude that would tend to question his honesty and integrity, is an alcoholic, a drifter, a vagrant, or a person with a record of mental illness and has not been restored to legal capacity, has been discharged from military service under other than honorable conditions, or has been refused a license under Chapter 17 of Title 40 for other than minimum experience, or whose license has been revoked or is under suspension. Registration is for a period of one year.

3. Pursuant to S.C. Code Ann. § 40-17-120 (Supp. 1998), SLED may grant to a person licensed or registered as a security guard a permit to carry a pistol, revolver, or other firearm.

4. S.C. Code Ann. § 16-23-30 (1976) provides:

It shall be unlawful for any person to knowingly sell, offer to sell,deliver, lease, rent, barter, exchange or transport for sale into this State any pistol to:

(a) Any person who has been convicted of a crime of violence in any court of the United States, the several states, commonwealths, territories, possessions or the District of Columbia or who is a fugitive from justice or a habitual drunkard or a drug addict or who has been adjudicated mentally incompetent.

(b) Any person who is a member of a subversive organization.

(c) Any person under the age of twenty-one, but this shall not apply to the issue of pistols to members of Armed Forces of the United States, active or reserve, National Guard, State Militia or R.O.T.C., when on duty or training or the temporary loan of pistols for instructions under the immediate supervision of a parent or adult instructor.

(d) Any person who by order of a circuit judge or county court judge of this State has been adjudged unfit to carry or possess a pistol, such adjudication to be made upon application by any police officer, or by any prosecuting officer of this State, or sua sponte, by the court, by any person who shall be the subject of such an application shall be entitled to reasonable notice and a prior hearing prior to any such adjudication.

(e) It shall be unlawful for any person covered in (a), (b), (c) or (d) of this section to possess or acquire pistols within this State.

(f) No person shall knowingly buy, sell, transport, pawn, receive or posses any stolen pistol or one from which the original serial number has been removed or obliterated.

(Emphasis added).

5. The reason given by SLED for the nonrenewal of Petitioner's registration is a recent change in policy based on the informal opinion of the Attorney General dated April 23, 1996. This opinion reasons that one who has been convicted of a violent crime under South Carolina law, and subsequently pardoned, is not eligible to carry a weapon, because S. C. Code Ann. §16-23-30 makes possession of a pistol by such a person unlawful (see Informal Opinion at pages 11 and 12).

Definition of "Crime of Violence"

6. S.C. Code Ann. § 16-23-10(c) (1976) defines the term "crime of violence" as used in Section 16-23-30. It provides:

(c) The term "crime of violence" means murder, manslaughter (except negligent manslaughter arising out of traffic accidents), 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 of more than one year.

7. Petitioner argues that the definition of "crime of violence" in Section 16-23-10(c), which includes the crime of housebreaking, has been supplanted by the definition of "violent crime" contained in S.C. Code Ann. § 16-1-60 (Supp. 1997), which is a later enactment. That section provides:

For purposes of definition under South Carolina law a violent crime includes the offenses of murder (Section 16-3-10); criminal sexual conduct in the first and second degree (Sections 16-3-652 and 16-3-652 and 16-3-653); criminal sexual conduct with minors, first and second degree (Section 16-3-655); assault with intent to commit criminal sexual conduct, first and second degree (Section 16-3-656); assault and battery with intent to kill (Section 16-3-620); kidnapping (Section 16-3-910); taking of a hostage by an inmate (Section 24-13-450); voluntary manslaughter (Section 16-3-50); armed robbery (Section 16-11-330(A)); attempted armed robbery (Section 16-11-330(B)); drug trafficking as defined in Sections 44-53-370(e) and 44-53-375(C); arson in the first degree (Section 16-11-110(A)); arson in the second degree (Section 16-11-110(B)); burglary in the first degree (Section 16-11-311); burglary in the second degree (Section 16-11-312(B)); engaging a child for a sexual performance (Section 16-3-810); homicide by child abuse (Section 16-3-85(A)(1)); aiding and abetting homicide by child abuse (Section 16-3-85(A)(2)); accessory before the fact to commit any of the above offenses (Section 16-1-40); and attempt to commit any of the above offenses (Section 16-1-80). Only those offenses specifically enumerated in this section are considered violent offenses.

Clearly, housebreaking is not listed as a violent crime under this section. Therefore, at first glance it would appear that the two sections are in conflict. However, the two definitions serve two different purposes. Section 16-23-10 defines "crime of violence" only for purposes of Article 1, Chapter 23 of Title 16. It is a definitional section which is specific to offenses involving weapons. On the other hand, Section 16-1-60 is a broader definitional section which was enacted as part of the Omnibus Crime Bill of 1986. It defines the term "violent crime" for purposes of South Carolina law involving, inter alia, the determination of parole eligibility, e.g., S.C. Code Ann. §§ 21-21-610, 24-21-645, and 24-21-650; the determination of who may be considered for pretrial intervention, S.C. Code Ann. § 17-22-50, and the determination of eligibility for shock incarceration, S.C. Code Ann. § 24-13-1310. Not only are the terms defined completely different ("crime of violence" as opposed to "violent crime"), but the application of Section 16-23-10 is limited to determining who may lawfully possess pistols, while Section 16-1-60 has broad application. I therefore find no conflict between the two statutes. Moreover, to hold that Section 16-1-60 is controlling requires a finding that that section impliedly repealed the earlier definition in Section 16-23-10. Repeals by implication are not favored by the courts, and to repeal a statute on account of an asserted conflict or repugnancy with another statute, the repugnancy must not only be plain, but the provisions of the two statutes must be incapable of any reasonable reconcilement. City of Rock Hill v. S.C. Dept. of Health and Environmental Control, 302 S.C. 161, 394 S.E.2d 327 (1990). As a general rule, a statute of a specific nature is not to be considered as repealed in whole or in part by a later general statute, unless there is a direct reference to the former or the intent of the legislature to repeal it is explicitly implied therein. Id.; Restaurant Row Associates v. Horry County, 327 S.C. 383, 489 S.E.2d 641 (Ct. App. 1997). The rule of statutory construction, that repeal by implication is not favored and will not be indulged if there is any other reasonable construction, is applicable to statutes relating to crimes. Strickland v. State, 276 S.C. 17, 274 S.E.2d 430 (1981). Furthermore, a lawmaking body's construction of its language by means of definitions of the terms employed should be followed in the interpretation of the act to which it relates and is intending to apply. Fruehauf Trailer Co. v. S.C. Elec. & Gas Co., 223 S.C. 320, 75 S.E.2d 688 (1953). Where a statute contains its own definition of a term used therein, the term may not be given the meaning in which it is employed in another statute, although the two may be in pari materia. 73 Am. Jur. 2d Statutes § 225 (1974). As discussed above, I find that the two sections are not in direct conflict. Therefore, Section 16-23-10(c), which includes the crime of housebreaking within its definition of "crime of violence," is controlling in this instance. See also 1989 Op. S.C. Att'y Gen. 3354, 1989 WL 508539 (concluding that Section 16-23-10(c) remains valid and is controlling in defining what offenses constitute "crimes of violence" for purposes of weapons regulation). Petitioner's conviction for housebreaking, therefore, prevents him from being eligible for registration as an armed security guard unless his pardon removes the ineligibility.

Effect of Pardon

8. Petitioner contends that even if his conviction of the crime of housebreaking made him ineligible to carry a concealed weapon, the pardon for that crime on March 14, 1989 nullifies his conviction of housebreaking for purposes of Section 16-23-30(a). SLED argues that a pardon from the State of South Carolina has not restored to Petitioner the right to lawfully possess a pistol. There is no case law directly on point in South Carolina as to the effect of a pardon on a citizen's ability to lawfully possess a pistol. However, there are two statutes which specify the effects of a pardon. S.C. Code Ann. § 24-21-940 (A) (1989) defines a pardon as follows:

"Pardon" means that an individual is fully pardoned from all the legal consequences of his crime and of his conviction, direct and collateral, including the punishment, whether of imprisonment, pecuniary penalty or whatever else the law has provided.

(Emphasis added). In addition, S. C. Code Ann. §24-21-990 (Supp. 1997) provides:

A pardon shall fully restore all civil rights lost as a result of a conviction, which shall include the right to:

(1) register to vote;

(2) vote;

(3) serve on a jury;

(4) hold public office, except as provided in Section 16-13-210;

(5) testify without having the fact of his conviction introduced for impeachment purposes to the extent provided by Rule 609(c) of the South Carolina Rules of Evidence;

(6) not have his testimony excluded in a legal proceeding if convicted of perjury; and

(7) be licensed for any occupation requiring a license.

(Emphasis added).

The wording of these two statutes is broad, clear and unambiguous. The General Assembly obviously intended that a pardon restore all the rights of a citizen and remove all legal impediments resulting from his conviction. No exception is made for a citizen's right to possess a firearm. Moreover, although the right to possess and carry a weapon is not listed in Section 24-21-990, the language of that section is inclusionary rather than exclusionary, and it is clear that a pardon restores all rights lost as a result of a conviction, not just those specified in the statute.(1) Where the terms of a statute are clear and unambiguous, there is no room for construction and a court must apply them according to their literal meaning. Duke Power Co. v. S.C. Tax Comm'n, 292 S.C. 64, 354 S.E.2d 902 (1987); McMillan Feed Mills, Inc. of S. C. v. Mayer, 265 S.C. 500, 220 S.E.2d 221 (1975); State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660 (1991). Furthermore, the words of a statute must be given their plain and ordinary meaning without resorting to subtle or forced construction to limit or expand the statute's operation. Rowe v. Hyatt, 321 S.C. 366, 468 S.E.2d 649 (1996). In this case, the meaning of the statutes is manifest and this court may not deviate from their terms.

Notwithstanding the clear import of these statutes, SLED argues that, according to the informal opinion of the Attorney General issued on April 23, 1996, a pardon does not erase a person's conviction for a crime of violence, and therefore the prohibition of Section 16-23-30 remains in effect. While the fact of the conviction may remain on a pardoned person's records and may be used as a prior offense for charging and sentencing purposes on subsequent criminal charges, I cannot agree with the Attorney General's conclusion that the person therefore cannot regain the right to possess and carry a weapon, in view of the fact that the opinion refers only to Section 24-21-990, which pertains only to "civil rights," and does not take into consideration the language of Section 24-21-940(A), which is far broader. The General Assembly clearly intended that a pardon remove all disabilities resulting from a conviction and restore the pardoned person to full rights of citizenship. Accordingly, I conclude that Petitioner's pardon restored his right to possess and carry a weapon, and, concomitantly, his qualifications to be registered as an armed security guard.(2)


Based upon the foregoing Findings of Fact, Discussion and Conclusions of Law, it is hereby:

ORDERED that the decision by SLED to deny the Petitioner's renewal application for registration as an armed security guard is reversed; and it is further

ORDERED that upon request made by Petitioner, SLED must grant him registration as an armed security guard, contingent upon Petitioner continuing to satisfy the requirements of S.C. Code Ann. §§40-17-80 and 40-17-120; and



Marvin F. Kittrell

Chief Judge

April 1, 1999

Columbia, South Carolina

1. Although it is questionable whether the right to carry a firearm is a "civil right" which would be restored by Section 24-21-990, Section 24-21-940(A), which states that a pardon removes all legal impediments resulting from a conviction, would certainly restore that right.

2. SLED also argued at the hearing that Petitioner's record as a whole, not just his housebreaking conviction, constituted grounds for denying Petitioner's renewal application. However, I note that, although SLED denied Petitioner registration as an armed security guard, it did grant him registration in an unarmed status. Accordingly, SLED must have determined that Petitioner met the character requirements of S.C. Code Ann. § 40-17-80(A) (Supp. 1998).

Brown Bldg.






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