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FINAL
ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the
Administrative Law Court (ALC or Court) pursuant to S.C.
Code Ann. § 23-31-215(D) (Supp. 2004) and S.C. Code Ann.
§§ 1-23-310 et seq. (2005). The Petitioner challenges the
South Carolina Law Enforcement Division’s (SLED) denial
of his application for a Concealable Weapons Permit. After
timely notice to the parties, a hearing in this matter was
held on March 23, 2005 at the ALC in Columbia, South Carolina.
FINDINGS OF FACT
Having carefully
considered all testimony, exhibits, and arguments presented
at the hearing in this matter, and taking into account the
credibility and accuracy of the evidence, I find the following
facts by a preponderance of the evidence:
1. The ALC has personal
and subject matter jurisdiction.
2. Notice of the
date, time, place and subject matter of the hearing was
properly given
to all parties.
3. Petitioner is
over the age of twenty-one and is a resident of Charleston
County, South Carolina. He is not prohibited from possessing
a weapon by any state law.
4. On July 10, 2004,
Petitioner applied for a Concealable Weapons Permit from
SLED. Petitioner owns, along with several others, a property
investment company which is engaged in acquiring real properties
in the Charleston area for renovation and rental (Section
8 housing). Petitioner testified that many of these properties
are in distressed neighborhoods and that he is seeking a
Concealable Weapons Permit to ensure his safety.
5. On February 18,
2000, Petitioner pled guilty and was convicted of the charge
of "Harassment" in the New Jersey Superior Court.
He was ordered to pay a $500.00 fine and to have no contact
with the victim.
6. Petitioner testified
at the hearing to the circumstances surrounding the 2000
conviction. He testified that on December 17, 1999, while
living in New Jersey, he became angry with one of his friends,
Patrick Brown. Petitioner believed his friend was trying
to "break up him and his girlfriend." He left
a message on his friend’s cellular telephone during which
he threatened to kill Mr. Brown the next time he saw him.
At that time Mr. Brown was 19 years old and Petitioner was
20 years old. Mr. Brown reported the matter to the Raritan
Township Police Department and Petitioner was arrested on
December 18, 1999. Petitioner acknowledged that he made
threats to beat up Brown because he was agitated at the
time but that he has since remained friends with Mr. Brown.
7. Petitioner’s 2003
conviction for "Reckless Driving" stemmed from
an incident where Petitioner did a "wheelie" while
riding his motorcycle. He was required to pay a fine of
$350.00.
8. Petitioner was
also ticketed for "Speeding" in 2003 in North
Carolina. He testified that he was traveling seventy-five
(75) miles per hour in a sixty (60) mile per hour zone and
that the charge was reduced to a two point violation.
9. By letter dated
October 20, 2004, Captain E. Weir of SLED notified Petitioner
that his application for a Concealable Weapons Permit was
denied due to his conviction of "Harassment" in
1999 and convictions for "Reckless Driving" and
"Speeding" in 2003. In the letter, he further
stated that "Sheriff J. Al Cannon recommended that
your application not be approved." Petitioner testified
that he has never had any relationship with nor met Sheriff
Cannon.
10. Agent James Craig
Perry, an employee with SLED for twenty-eight (28) years
and the Senior Agent assigned to its Regulatory Division,
testified on behalf of SLED at the hearing. Agent Perry
testified that SLED has a written denial policy which it
applies to each applicant for a concealable weapons permit.
The policy is defined as "Concealable Weapons Permit
Program-Denial Policy." Agent Perry stated that the
policy had not been sent to the legislature for promulgation
as a regulation and he testified that the policy is applied
in a discretionary manner to an application request.
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11. Agent Perry did
not participate in the decision to deny Petitioner’s permit
application and testified that, upon his review of the file,
he was unable to state a specific reason for SLED’s denial
of Petitioner’s permit application other than SLED making
the determination that Petitioner had an "unfavorable
background." Agent Perry did state that SLED’s practice
is to consider the potential "threat and danger to
the public" in enforcing its policy to deny Concealable
Weapons Permits. However, he testified that he could not
say that Petitioner would pose a threat to the safety of
any citizen of Charleston County or the state of South Carolina
based upon the conviction of "Harassment" in New
Jersey in 2000. Furthermore, he testified that he does not
know when a conviction is no longer considered by SLED in
denying a permit.
12. On July 10, 2004,
Petitioner satisfactorily completed an eight hour handgun
training course with Henry T. Wooten, a certified instructor
by SLED in providing Concealable Weapons Permit training.
CONCLUSIONS OF LAW
Based upon the above
Findings of Fact, I conclude the following as a matter of
law:
1. S.C. Code Ann.
§ 23-31-215(D)(Supp. 2004) and S.C. Code Ann. § 1-23-600(B)(2005)
grant jurisdiction to this Court to hear this contested
case.
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); Stephen Bates and Randolph Lowell, South Carolina
Administrative Practice and Procedure "The Contested
Case Before the ALJD," Chapter 3, § V.2., p. 199 (2004).
Furthermore, in civil cases, generally, the burden of proof
rests upon the party who asserts the affirmative of an issue.
29 Am.Jur. 2d Evidence § 127 (1994); Alex Sanders, et al.,
South Carolina Trial Handbook § 9:3 Party With Burden, Civil
Cases (2001). Therefore, the Petitioner has the burden of
proving by a preponderance of the evidence that SLED erred
in denying him a concealed weapons permit.
3. SLED is required
to conduct a background check of an applicant for a Concealable
Weapons Permit upon submission of required information and
proof of training. S.C. Code Ann. § 23-31-215(B) (Supp.
2004). If an applicant’s fingerprint and background checks
are favorable, SLED must issue a permit to the applicant.
Id. However, if SLED determines that an applicant’s background
is unfavorable, SLED may deny the permit and shall issue
a written statement to the applicant specifying its reasons
for denying the permit. The statutes and regulations do
not provide any guidelines for SLED to follow in denying
a concealable weapons permit. To assist in this function,
SLED has written policies that it uses in evaluating each
concealable weapons permit.
4. As a normal rule,
policy documents prepared by an agency must be promulgated
as regulations pursuant to S.C. Code Ann. § 1-23-120. Subsection
(A) of Section 1-23-120 states that "all regulations
except those specifically exempted under this section must
be submitted to the General Assembly for review in accordance
with this article…." S.C. Code Ann. § 1-23-10 (A) defines
regulation as "each agency statement of general public
applicability that implements or prescribes law or policy
or practice requirements of any agency." Furthermore,
the subsection states that "policy or guidance issued
by an agency other than in a regulation does not have the
force of effect of law."
5. In this case,
SLED denied Petitioner’s application because they found
his background to be "unfavorable." In denying
the application, SLED relied on its written "Concealable
Weapons Permit Program-Denial Policy" to determine
if Petitioner’s background was or was not "favorable."
According to the evidence presented at the hearing, the
policy is applied to each concealable weapons permit application.
However, SLED has not promulgated this written policy document
as a regulation, and, therefore, it is not binding on the
Court. If it is the intent of SLED to make its policy applicable
to each application, it has a duty to promulgate this policy
document as a regulation. Captain’s Quarters Motor Inn,
Inc. v. S.C. Coastal Council, 306 S.C. 488, 490, 413 S.E.2d
13, 14 (1991). Furthermore, the APA requires SLED to promulgate
this policy document as a regulation if it is to have the
force and effect of law in the permitting process. See S.C.
Code Ann. § 1-23-10 (2005). Because the policy document
does not have the force and effect of law and is not binding
on the Court, it will be considered together with all other
relevant factors and evidence in determining whether the
concealable weapons permit should be granted or denied.
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The evidence presented
at the hearing by SLED does not support a denial of the
Concealable Weapons Permit. In its denial letter, SLED listed
Petitioner’s "Reckless Driving" and "Speeding"
violations among the reasons for denying Petitioner’s application.
Petitioner has had two (2) traffic violations in the last
three (3) years. This fact does not establish that Petitioner
is a person who is violent or would do harm to the citizens
of this State. In fact, the policy document of SLED under
Item 5(a) only treats traffic violations as grounds for
denial of the permit if the applicant has had "at least
seven (7) traffic violations with a ten (10) year period."
Therefore, Petitioner cannot be denied a permit based upon
his traffic violations under SLED’s policy. I conclude that
these traffic violations are insufficient grounds for the
denial of the permit.
Item 11 of the policy,
entitled "Violent Acts/Threats," provides that
the Special Agent in Charge can deny a permit when the applicant
has committed documented acts of violence, or made documented
verbal or physical threats of violence toward another person,
whether or not charged or convicted of a crime in connection
with the acts. It further provides that "documentation
must be established by police incident reports or statements
under oath from persons having personal knowledge of the
alleged actions and declaring that, if the permit was issued,
the applicant would pose a threat to the safety of a person
or community." It is true that Petitioner did make
a threatening telephone call to a friend in December 1999.
However, he admitted his wrongdoing, went to court, paid
the fine and eventually resumed his friendship with Mr.
Brown. There is nothing in the Record that would show that
Petitioner is a threat to the safety of a person or to the
community he lives in.
Furthermore, under
Item 5 of the policy, entitled "Criminal Record-General-Unfavorable
Background," the Special Agent in Charge is required
to consider the age of the conviction, whether it involved
the use or threat of use of violence or a weapon and the
potential danger to an individual or the community, whether
the applicant falsified the application form, as well as
a favorable or unfavorable recommendation of the sheriff
of the county where the applicant resides. In this instance,
the conviction is now five (5) years old. The incident which
led to the conviction in New Jersey occurred when Petitioner
was young and lacked maturity. Since that time, he has been
gainfully employed and has not been convicted of any crime
other than traffic violations. Furthermore, the conviction
involved an incident with a friend which consisted solely
of a phone call, not some physical altercation. As to the
unfavorable recommendation by the Charleston County Sheriff,
this is entitled to little weight since the Sheriff was
not at the hearing and was not available for questioning
by either party or the Court. Furthermore, without any direct
testimony by the agent in charge for his reasoning for denying
the application, the Court is unable to determine whether
SLED properly exercised discretion in denying the application.
Therefore, I conclude that the nature and age of this conviction
do not provide sufficient grounds for denying the permit.
Accordingly, even if SLED’s policy had the force and effect
of law, it does not support a denial of the permit.
6. For all the above
reasons, Petitioner’s application for a Concealable Weapons
Permit is granted and SLED must within thirty (30) days
of the date of this Order issue a Concealable Weapons Permit
to Petitioner.
ORDER
IT IS HEREBY ORDERED
that Petitioner’s application for a Concealable Weapons
Permit is GRANTED; and
IT IS FURTHER ORDERED
that SLED must issue the permit to Petitioner within thirty
(30) days from the date of this Order.
AND IT IS SO ORDERED.
Marvin F. Kittrell
Chief Administrative Law
Judge
April 22, 2005
Columbia, South Carolina
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