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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.
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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.
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.
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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."
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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.
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.
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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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