ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before this tribunal pursuant to S.C. Code Ann. § 23-31-215(D) (Supp. 2003)
and S.C. Code Ann. § 1-23-600(B) (Supp. 2003) for a contested case hearing. Petitioner Gary F. Jensen
challenges the decision of Respondent South Carolina Law Enforcement Division (SLED) to deny his
application for a permit to carry a concealable weapon because of his prior criminal conviction in
Minnesota for making terroristic threats. After timely notice to the parties, a hearing of this matter was
held on August 17, 2004, at the South Carolina Administrative Law Court in Columbia, South Carolina.
Based upon the evidence presented at that hearing, I find that SLED correctly determined that
Petitioner’s background is unfavorable for the issuance of a concealed weapon permit and properly
denied Petitioner’s application on that basis.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing of
this matter, 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.On December 16, 1997, Petitioner was convicted in Olmsted County, Minnesota, of
making “terroristic threats” in violation of Minn. Stat. § 609.713 (1997). In the Sentencing Order for
this conviction, District Judge James L. Mork required Petitioner to complete an “Aggression
Replacement Training Class” and instructed Petitioner to refrain from making any direct or indirect
contact with his victim and from exhibiting “assaultive behavior toward anyone.” Resp’t Ex. #1 at 2
(staying the imposition of a sentence upon Petitioner and placing him on probation, provided that he
comply with the requirements stated above, pay a fine and certain fees, and be incarcerated for thirty
days).
2.On March 3, 2004, SLED denied Petitioner’s application for a concealed weapon permit
based upon its determination that Petitioner’s background was not favorable for Petitioner to carry a
concealed weapon.
Petitioner now challenges that determination before this tribunal.
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. § 23-31-215(D) (Supp. 2003) and S.C. Code Ann. § 1-23-600(B) (Supp. 2003).
2.The terms and conditions governing the issuance of concealed weapon permits are set
forth in S.C. Code Ann. § 23-31-215 (Supp. 2003). Under subsection (B) of that statute, SLED, as the
agency responsible for the administration of the concealed weapon permitting process, see S.C. Code
Ann. §§ 23-31-205 et seq. (Supp. 2003), is required to determine whether an applicant for a concealed
weapon permit has a favorable background for the issuance of such a permit. That subsection provides,
in full:
Upon submission of the items required by subsection (A) of this section, SLED must
conduct or facilitate a local, state, and federal fingerprint review of the applicant.
SLED must also conduct a background check of the applicant through notification to
and input from the sheriff of the county where the applicant resides. The sheriff must,
within ten working days after notification by SLED, submit a recommendation on an
application. Before making a determination whether or not to issue a permit under this
article, SLED must consider the recommendation provided pursuant to this subsection.
The failure of the sheriff to submit a recommendation within the ten-day period
constitutes a favorable recommendation for the issuance of the permit to the applicant.
If the fingerprint review and background check are favorable, SLED must issue the
permit.
S.C. Code Ann. § 23-31-215(B) (Supp. 2003). In the case at hand, SLED determined that Petitioner’s
relatively recent conviction for making terroristic threats rendered his background unfavorable for the
issuance of a concealed weapon permit.
3.I find that SLED made the appropriate determination regarding Petitioner’s background.
While there is no evidence in the record to suggest that Petitioner had an unfavorable fingerprint review
or an unfavorable recommendation from his local sheriff, Petitioner’s 1997 conviction for making
terroristic threats provides a more than sufficient basis for the conclusion that his background is not
favorable for him to carry a concealed weapon. An individual who has made violent threats in an effort
to terrorize another person (or at least without regard for whether his threats will terrorize that person)
has clearly failed to demonstrate the temperament necessary to be entrusted with permission to carry
a firearm on his person. See Minn. Stat. § 609.713 (1997) (defining the offense of making “terroristic
threats”); see also, e.g., Manne v. Main, 778 N.Y.S.2d 210, 211 (N.Y. App. Div. 2004) (“It is settled
that ‘[t]he State has a substantial and legitimate interest . . . in insuring the safety of the general public
from individuals who, by their conduct, have shown themselves to be lacking the essential temperament
or character which should be present in one entrusted with a dangerous instrument.’”) (quoting Pelose
v. County Ct. of Westchester County, 384 N.Y.S.2d 499, 500 (N.Y. App. Div. 1976) (alterations in
original). Accordingly, I conclude that SLED properly denied Petitioner’s application for a concealed
weapon permit.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that SLED’s decision to deny Petitioner’s application for a permit
to carry a concealable weapon is SUSTAINED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
September 7, 2004
Columbia, South Carolina |
