Thursday, October 30, 2014

SC Administrative Law Court Decisions

CAPTION:
Wilson F. Cooper, Jr. vs. SCLED

AGENCY:
South Carolina Law Enforcement Division

PARTIES:
Petitioners:
Wilson F. Cooper, Jr.

Respondents:
South Carolina Law Enforcement Division
 
DOCKET NUMBER:
08-ALJ-20-0044-CC

APPEARANCES:
For the Petitioner:
Pro se

For the Respondent:
Natalie Armstrong, Esquire
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter is before the Administrative Law Court (“ALC”) for a final order and decision following a contested case hearing pursuant to S.C. Code Ann. § 1-23-600(B) (Supp. 2007). The South Carolina Law Enforcement Division (“SLED”) denied the Petitioner’s application for a concealed weapon permit based on its finding that he has been convicted of three offenses for driving under suspension (“DUS”). The Petitioner, Wilson F. Cooper, Jr. (“Cooper”), requested a contested case hearing. After notice to the parties, the court held a hearing on May 19, 2008. All parties appeared at the hearing. Evidence was introduced and testimony presented. After carefully weighing all the evidence, this court finds that Cooper’s application should not be denied.

FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, and taking into consideration the burden of persuasion by the parties, the court makes the following Findings of Fact by a preponderance of the evidence.

On March 17, 2005, Cooper was arrested for driving under the influence (“DUI”). As a result of Cooper’s subsequent conviction for this offense, Cooper’s driver’s license was suspended for six months, from June 15, 2005 through December 15, 2005. On September 20, 2006, Cooper was arrested for DUS.[1] On December 21, 2007, SLED notified Cooper of its denial of Cooper’s application for a concealed weapon permit, based on Cooper’s conviction for a third DUS offense.

At the hearing, Cooper testified that he has been convicted of only one DUS charge. He provided a certified copy of his ten-year driving record, which shows that he was arrested for DUS on September 20, 2006, and subsequently convicted of that offense. Cooper testified that SLED’s information that he has committed three DUS offenses is incorrect.

Captain Clifton Weir is in charge of the regulatory section of SLED, which is responsible for concealed weapon permits, and testified on behalf of the Respondent. SLED policy requires denial of a concealed weapon permit if an applicant does not have a “favorable” background check. S.C. Code Ann. § 23-31-215(B) (Supp. 2007). SLED provided an uncertified copy of Cooper’s National Crime Information Center background check or “rap sheet,” which showed that Cooper had been arrested for two DUS offenses: one on September 20, 2006 and another on November 8, 2005. The September 20, 2006 offense was listed as “DUS . . . 3rd,” or a third offense of DUS, even though it was only the second DUS offense listed. Weir testified that it is the responsibility of the reporting law enforcement agency to enter the data into the system. He stated that the fact that only two DUS offenses appear on Cooper’s rap sheet does not mean Cooper’s September 20, 2006 offense was not his third DUS offense, as the reporting agency might not have entered the data into the system.

LAW

Based upon the foregoing Findings of Fact, the court concludes the following as a matter of law.

1. Jurisdiction and Review

Jurisdiction over this case is vested with the South Carolina Administrative Law Court pursuant to § 1-23-600(B). The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992). Furthermore, a trial judge who observes a witness is in the best position to judge the witness’s demeanor and veracity and to evaluate the credibility of his testimony. See, e.g., Cooperall v. Cooperall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990).

In presiding over this contested case, the court serves as the finder of fact and makes a de novo determination regarding the permit matter at issue. See S.C. Code Ann. § 1-23-600(B); Brown v. S.C. Dep’t of Health & Envtl. Control, 348 S.C. 507, 512, 560 S.E.2d 410, 413 (2002); Marlboro Park Hosp. v. S.C. Dep’t of Health & Envtl. Control, 358 S.C. 573, 577-79, 595 S.E.2d 851, 853-54 (Ct. App. 2004).

2. Concealed Weapon Permits

The issuance of a concealed weapon permit is governed by S.C. Code Ann. § 23-31-215. To be granted a concealed weapon permit, an applicant must be at least twenty-one years of age and not prohibited by state law from possessing a weapon. § 23-31-215(A). Further, the applicant must submit a completed and signed application, a full face color photograph, proof of residence, proof of the required vision rating, proof of training, an application fee, and a complete set of fingerprints. Id. Upon satisfaction of these requirements, SLED is required to conduct a fingerprint review and background check, and if favorable, SLED must issue the requested permit. § 23-31-215(B). However, if the fingerprint review or background check is unfavorable, then it is within SLED’s discretion whether to issue the permit. See id.

Federal law prohibits the possession of a firearm by any individual “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1). Conviction for a third DUS offense (where the suspension results from a DUI conviction) carries a penalty in South Carolina of up to three years’ imprisonment. S.C. Code Ann. § 56-1-460(A)(2). South Carolina law prohibits an individual who has been convicted of a violent crime from possessing a firearm. See S.C. Code Ann. § 16-23-30 (Supp. 2007) (stating it is unlawful for any person who has been convicted of a violent crime to possess a pistol); S.C. Code Ann. § 16-1-90(F) (Supp. 2007) (stating possession of a pistol by a person convicted of a violent crime is a Class F felony).

3. Burden of Proof

As the Petitioner in this case, Cooper has the burden of proof. See Stephen P. Bates, The Contested Case Before the ALJD, in South Carolina Administrative Practice & Procedure 161, 200-01 (Randolph R. Lowell & Stephen P. Bates eds., 2004) (discussing generally the burden of proof in ALC cases) (“In non-enforcement cases, the burden of proof [] rests with the non-agency petitioner to prove by a preponderance of the evidence that the agency action is incorrect.”). To resolve the issue currently before the court, however, a careful analysis of the concept of “burden of proof” is required. “The term ‘burden of proof’ has been used to describe two related but distinct concepts: the burden of production and the burden of persuasion.” 29 Am. Jur. Evidence § 155 (1994); see also Dir., Office of Workers’ Comp. Programs, Dep’t of Labor v. Greenwich Collieries, 512 U.S. 267, 272 (1994). The burden of persuasion refers to the duty to prove the truth of an issue by the quantum of evidence the law demands in the case in which the issue arises.[2] Alex Sanders & John S. Nichols, Trial Handbook for South Carolina Lawyers § 9.1 at 387 (4th ed. 2007). The burden of production, or burden of going forward with the evidence, refers to the obligation of a party to proceed with evidence, at any stage of the trial, to make or meet a prima facie case. Id. Prima facie evidence is evidence sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted. LaCount v. Gen. Asbestos & Rubber Co., 184 S.C. 232, 240, 192 S.E. 262, 266 (1937). “The words [‘prima facie evidence’] import that the evidence produces for the time being a certain result; but that result may be repelled.” Mack v. Branch No. 12, Post Exch., Fort Jackson, 207 S.C. 258, 272, 35 S.E.2d 838, 844 (1945).

As a trial progresses, the burden of production may shift from one side to the other as the respective parties present evidence. Sanders & Nichols, supra, § 9.1 at 387. The burden of persuasion, however, does not generally shift. Id. at 369. South Carolina courts have recognized that once a party establishes a prima facie case, the burden of production shifts to the opposing party. See, e.g., Browning v. Browning, 366 S.C. 255, 262, 621 S.E.2d 389, 392 (Ct. App. 2005). Thus, once Cooper establishes a prima facie case of compliance with the statutory requirements for a concealed weapon permit, the burden of production shifts to SLED to present evidence, by cross-examination or otherwise, that supports one or more of the statutory reasons for denial. See id. at 262, 621 S.E.2d at 392.

4. Conclusions

The court finds that Cooper’s application for a concealed weapon permit should not be denied. Here, Cooper presented evidence that he meets all of the statutory requirements for a permit; specifically, he introduced probative evidence via his certified ten-year driving record that he has only one conviction for DUS.[3] He denied having been convicted of any other DUS offenses. It was therefore incumbent upon SLED to meet Cooper’s prima facie case by coming forward with admissible evidence establishing that Cooper has in fact been convicted of a third offense for DUS. SLED produced an uncertified copy of Cooper’s rap sheet, which contained only two DUS offenses (although one of those is listed as “DUS . . . 3rd”). Captain Weir testified, without personal knowledge and based solely on the hearsay rap sheet, that Cooper has been convicted of three DUS offenses. This evidence is insufficient to rebut Cooper’s prima facie case of eligibility for a concealed weapons permit. SLED did not provide admissible evidence that Cooper has been convicted of a crime—DUS 3rd—that would prohibit him from possessing a firearm. Cf. Rule 803(22), SCRE (providing a hearsay exception for final judgments of previous convictions).

ORDER

            Because the evidence did not show that Cooper has been convicted of an offense that would prohibit him under state law from possessing a firearm or that he otherwise has an unfavorable background, the court finds denial of Cooper’s permit to be unwarranted under § 23-31-215(B).  It is therefore 

ORDERED that SLED shall GRANT Cooper’s application for a concealed weapon permit pursuant to S.C. Code Ann. § 23-31-215.

IT IS SO ORDERED.

______________________________________

PAIGE J. GOSSETT

Administrative Law Judge

June 6, 2008

Columbia, South Carolina



[1] Although not entirely clear from the record, it appears Cooper’s license remained suspended due to his DUI until he paid the necessary fines. On September 20, 2006, Cooper had still not paid his DUI fines, and thus his driver’s license had not been reinstated.

[2] In an administrative hearing, the burden of proof is generally a preponderance of the evidence. Anonymous (M-156-90) v. State Bd. of Med. Exam’rs, 329 S.C. 371, 375, 496 S.E.2d 17, 19 (1998).

[3] Unsurprisingly, DUS is not classified under South Carolina law as a violent crime. See S.C. Code Ann. § 16-1-90.


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