ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division ("Division") pursuant to
S.C. Code Ann. § 23-31-215(D) (Supp. 1998) and S.C. Code Ann. § 1-23-600 (Supp. 1998) upon
Ronald J. Jones' ("Petitioner") request for a contested case hearing after the South Carolina Law
Enforcement Division ("Respondent") denied his application for a concealed weapon permit.
After notice to all parties, a hearing was conducted on March 30, 1999 at the offices of the
Administrative Law Judge Division in Columbia, South Carolina.
Based on the evidence presented, Petitioner's application for a concealed weapon permit is
denied.
FINDINGS OF FACT
After consideration and review of all the evidence and testimony 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 the parties.
3. In 1989, Petitioner was convicted of distribution of marijuana, a felony, and simple
possession of marijuana, a misdemeanor.
4. Petitioner was pardoned by the South Carolina Probation, Parole and Pardon Board
on November 17, 1992 for the above convictions. Petitioner has not been convicted of any crimes
since 1989.
5. Petitioner applied to the Respondent for a concealed weapons permit on September
28, 1998.
6. A question on the permit application asked, "Have you ever been convicted of a
crime?" Petitioner checked "No."
7. On December 3, 1998, Respondent issued a written denial of Petitioner's permit
application because the application contained false information and Petitioner's background check
was unfavorable.
8. Petitioner appealed the denial to the Chief of SLED pursuant to S.C. Code Ann. § 21-31-215(D) (Supp. 1998).
9. On December 8, 1998, Chief Robert M. Stewart affirmed the December 3, 1998
denial. Chief Stewart affirmed the denial because the application contained false information, the
Petitioner's background check was unfavorable, and the sheriff of Petitioner's county recommended
disapproval of the application. Chief Stewart relied on a 1996 Attorney General's opinion which
stated that a conviction is not expunged by a pardon and the conviction still exists. Therefore,
Petitioner was untruthful when he failed to acknowledge his convictions on the application.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
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. 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. The trier of fact must weigh and pass upon the credibility of evidence presented. See
S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586
(1992). The trial judge who observes a witness is in the best position to judge the witness's demeanor
and veracity and evaluate their testimony. See, e.g., McAlister v. Patterson, 278 S.C. 481, 299
S.E.2d 322 (1982).
4. 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. 1998).
5. If an applicant's background check is favorable, SLED must issue a concealed
weapon permit to the applicant. S.C. Code Ann. § 23-31-215(B) (Supp. 1998).
6. If SLED determines that an applicant's background is unfavorable, the determination
of whether to issue a concealed weapon permit is within SLED's discretion. See S.C. Code Ann.
§ 23-31-215(A) and (B) (Supp. 1998).
7. The concealed permit application form must require the applicant to certify that all
information contained in the application is true and correct to the best of the applicant's knowledge.
S.C. Code Ann. § 23-32-215(F)(4) (Supp. 1998).
8. A 1988 Attorney General Opinion stated that a person who receives a pardon would
still be required to list the fact that he had been convicted because there is "no law which says a
pardon would expunge the fact a felony has been committed." 88 Op. Atty. Gen. 8 (1988).
Therefore, Petitioner did not truthfully complete his permit application when he stated that he had
no prior convictions. The failure to disclose this information on the application suggests that he
falsely certified that the answers on the application were true and correct.
9. SLED properly denied a concealed weapon permit to Petitioner because he submitted
false information on his permit application. SLED properly cited this as a ground for denial of the
permit. See S.C. Code Ann. § 23-31-215(F)(4) (Supp. 1998)(the permit application form must
require the applicant to certify that all information contained in the application is true and correct
to the best of the applicant's knowledge).
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that Petitioner's application for a concealed weapon permit is denied.
AND IT IS SO ORDERED.
__________________________
Marvin F. Kittrell
Chief Judge
May 17, 1999
Columbia, South Carolina |
