SC Administrative Law Court Decisions

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 Robert F. Chick, Jr., challenges the decision of Respondent South Carolina Law Enforcement Division (SLED) to deny his application for a permit to carry a concealable weapon because he has been convicted of a significant number of traffic offenses within the past ten years. 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 Petitioner’s background is not unfavorable for the issuance of a concealed weapon permit and that SLED should, therefore, grant Petitioner’s application for such a permit.

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.Over the past ten years, Petitioner has been convicted of a number of moving traffic violations. These violations are as follows:

Resp’t Ex. #1. The record of these violations submitted by SLED lists the amount by which Petitioner exceeded the speed limit on three of his four speeding violations within the past ten years; in each of the three violations for which a speed is listed, Petitioner had been found to be driving sixteen miles per hour over the stated speed limit. However, the record submitted by SLED provides no indication whatsoever as to the conditions or circumstances leading to Petitioner’s several citations for careless or negligent driving. Further, there is no evidence that Petitioner has been involved in any motor vehicle accidents or other incidents upon the roadway, beyond these speeding and careless driving citations, during the past ten years. In rebuttal to the questions raised regarding his driving record, Petitioner submitted copies of his licensure by the Club Racing program of the Porsche Club of America and by Historic Sportscar Racing, Ltd., and testified to his participation in racing events sanctioned by those bodies.

2.By a letter dated February 4, 2004, SLED issued a final decision denying Petitioner’s application for a concealed weapon permit based solely upon Petitioner’s record of traffic offenses. In particular, SLED noted that “[a] significant record of traffic offenses creates an inference of a propensity to exercise poor judgment and to willfully and knowingly violate the law and place the general public at significant risk,” and reiterated its policy that “[d]epending upon the nature of the offenses, SLED consistently denies applications by persons who have amassed a record of more than seven traffic offenses during the past ten years.” Pet’r Ex. #6, at 2. Petitioner now challenges SLED’s decision 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 record of nine traffic violations over the past ten years rendered his background unfavorable for the issuance of a concealed weapon permit. Petitioner, however, contends that, despite his several traffic offenses, his background is favorable for him to carry a concealed weapon on his person.

3.The evidence presented at the hearing of this case does not support a finding that Petitioner has an unfavorable background for the permit he seeks. SLED is correct that an applicant’s significant record of serious traffic offenses can indicate a lack of judgment and a willingness to violate the law and place the public at risk such that the applicant’s background cannot be considered favorable for the issuance of a concealed weapon permit. And, courts have found an applicant’s record of traffic violations to be a relevant factor in assessing whether the applicant has a favorable background for a concealed weapon permit. See, e.g., Gutierrez v. Safir, 721 N.Y.S.2d 7, 8 (App. Div. 2001) (finding that a denial of an application for a pistol permit was appropriate based upon several factors, including “numerous summonses issued to petitioner for moving traffic violations”). Nevertheless, an applicant’s driving record cannot be considered as mechanically as SLED wishes. A determination of whether an applicant’s background is favorable simply cannot be reduced to a pure mathematical equation. Here, while Petitioner has committed more than seven traffic offenses within the past ten years, the record does not establish the nature or circumstances surrounding most of those convictions, and where the record does provide some detail, it only describes three relatively minor speeding violations. Without more information, this tribunal cannot conclude, from the mere naming of Petitioner’s traffic violations, that those violations indicate a significant lack of judgment or a willingness to place the public at risk such that Petitioner lacks the judgment and temperament necessary to carry a firearm on his person. Further, other than his questionable driving record, there is nothing in the record to suggest that Petitioner’s background is not favorable for the issuance of a concealed weapon permit.

ORDER

Therefore, as Petitioner’s driving record does not render his background unfavorable for the issuance of a concealed weapon permit, and as Petitioner is otherwise qualified for such a permit,

IT IS HEREBY ORDERED that SLED shall GRANT Petitioner’s application for a permit to carry a concealable weapon.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

September 10, 2004

Columbia, South Carolina