ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
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.
FINDINGS OF FACT
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.
DISCUSSION AND CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
Jurisdiction
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)
ORDER
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
IT IS SO ORDERED.
__________________________
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). |
