ALJDEC

00A-26429148-CWP · Department of Public Safety - Concealed Weapons Permit Unit · 2000-07-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 18, 2000 at 10:00 a.m. APPEARANCES: Mr. Geiger appeared on his own behalf; the Arizona Department of Public Safety (“DPS”) appeared through its attorney, Merri Goldberg, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

The parties presented evidence and testimony with respect to the factual issue of whether Mr. Geiger returned his Concealed Weapon Permit to DPS in a timely manner, such as to comply with Arizona Administrative Code (“A.A.C.”) R13-9-111(I). Based upon the entire record and applicable law, the undersigned makes the following Findings of Fact, Conclusions of Law, and Recommended Order. FINDINGS OF FACT On October 19, 1997, DPS issued CWP #26429148 to Mr. Geiger after it ascertained he had met the requirements set forth in Arizona Revised Statute (“A.R.S.”) § 13-3112(E) and A.A.C. R13-9-104. Sergeant W.A. Whalen, a Supervisor in DPS’ Concealed Weapon Permit Unit, subsequently received information that, on January 6, 2000, Mr. Geiger had been arrested for felony theft offenses. On April 12, 2000, Sergeant Whalen sent a certified letter to Mr. Geiger, informing him as follows: Pursuant to [A.R.S.] § 13-3112(C), your Concealed Weapon Permit has been SUSPENDED due to your being arrested for felony offenses. This suspension will remain in effect until the offenses are properly adjudicated.

In accordance with Administrative Rule R13-9-111(I), you must return your permit to this office within five business days after receiving this notice in person or by certified mail. An envelope is provided for your convenience. The carrying of a concealed weapon from this date forward without a valid permit may be a violation of [A.R.S.] § 13-3102(A)(1) and (A)(2).

Pursuant to [A.A.C.] R13-9-112, you have the right to request a hearing to appeal this action. Any request for appeal shall be in writing and personally delivered or sent certified mail, return receipt requested, to the following address wihtin fifteen (15) calendar days from receipt of this notice. . . .

[Emphasis in original.] Mr. Geiger did not request a hearing on the suspension. Mr. Geiger testified that the City of Glendale dismissed the criminal felony charges and transferred the case to the City of Phoenix. According to Mr. Geiger, prosecutors at the City of Phoenix reduced the charges to a misdemeanor and sentenced him to pay restitution and attend a Justice Services Class, which he has done. Mr. Geiger testified that he sent information concerning the disposition of the felony charges to Sergeant Whalen. Mr. Geiger also testified that he did not use the envelope that enclosed with the April 12, 2000 certified letter to mail his Concealed Weapon Permit to DPS. Instead, Mr. Geiger testified that, within five days of his receipt of the April 12, 2000 certified letter from DPS, he put the permit in a larger envelope with other documents concerning traffic tickets and other alleged infractions, wrote “Concealed Weapon Permit” and Sergeant Whalen’s name on the envelope, and hand-delivered it to “a colored lady” who works in the DPS Personnel Department, which is located through the south entrance of DPS’ headquarters. Mr. Geiger did not obtain a receipt or the lady’s name. Mr. Geiger originally testified that he delivered the envelope to the headquarters located in the 1400 block of West Encanto; however, after Sergeant Whalen testified that his office is on the first floor of a building located at 2102 West Encanto, Mr. Geiger testified that this must have been the address to which he hand-delivered the permit. Mr. Geiger finally testified that someone accompanied him to return the permit, but was unavailable to testify. Sergeant Whalen did not receive Mr. Geiger’s Concealed Weapon Permit in the time allowed. He has been working at the office at 2102 West Encanto for years and is well-known among the other DPS employees who work there. On April 28, 2000, Sergeant Whalen sent a second certified letter to Mr. Geiger, informing him that, because DPS had not received his Concealed Weapon Permit, his permit was revoked pursuant to A.A.C. R13-9-111(I), effective immediately. If Mr. Geiger continued to carry a concealed weapon, he would violate A.R.S. § 13-3102. On May 10, 2000, Sergeant Whalen received Mr. Geiger’s appeal and request for hearing because he had “previously hand delivered my permit in a sealed envelope.” A hearing was scheduled in due course and, pursuant to A.A.C. R13-9-113, assigned to the Office of Administrative Hearings. CONCLUSIONS OF LAW In this administrative proceeding, DPS bears the burden of proof and must establish a violation of applicable statute or regulation by a preponderance of the evidence.[1] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[2] A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”[3] Mr. Geiger does not dispute that he was arrested for a felony or that, as a result, DPS was required to suspend and he was required to return his Concealed Weapon Permit.[4] The dispositive factual issue, therefore, is whether Mr. Geiger returned his Concealed Weapon Permit as required by statute and regulation after he was arrested for a felony, not whether DPS would have restored the permit had it been returned. The undersigned therefore does speculate about whether DPS would have restored Mr. Geiger’s permit had there been no dispute about whether he returned it. A preponderance of the evidence establishes that Mr. Geiger did not return his Concealed Weapon Permit to DPS within five business days of receipt of its August 12, 2000 certified letter to him. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Director of the Department of Public Safety dismiss this appeal and affirm DPS’ April 28, 2000 revocation of Mr. Geiger’s Concealed Weapon Permit #26429148. Done this day, July 24, 2000.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of July, 2000, to:

Department of Public Safety - Concealed Weapons Permit Unit Dennis A. Garrett ATTN: Sgt. W.A. Whalen 2102 West Encanto Boulevard Phoenix, AZ 85009

By ___________________________

----------------------- [1] See A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996).

[2] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

[3] Black’s Law Dictionary at page 1064 (6th ed. 1990).

[4] See A.R.S. § 13-3112(C) (“The permit of a person who is arrested or indicted for an offense that would make the person unqualified under the provisions of § 13-3101, paragraph 6 of this section shall be immediately suspended and seized.” Section 13-3101(6) defines a “prohibited possessor” as “any person . . . [w]ho has been convicted . . . of a felony . . . .” A.A.C. R13-9-111(I) provides that, “[u]pon receipt of a notice of suspension or revocation . . . [a] permittee shall return the permit to [DPS] within 5 business days.”

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826