ALJDEC

01A-03708254-CWP · Department of Public Safety - Concealed Weapons Permit Unit · 2001-09-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 6, 2001. APPEARANCES: Sergeant W.A. Whalen appeared on behalf of the Department of Public Safety. Dennis Mayes appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________ At the hearing in this matter, both the Petitioner Dennis Mayes (hereinafter Mayes) and the representative of the Department of Public Safety ( hereinafter Department) stipulated that the issue pending before the undersigned was whether or not Mayes’ concealed weapons permit should be a revoked due to his alleged failure to return the permit to the Department within five days after the Department requested that the permit be surrendered. Based on the evidence adduced at the hearing, the following findings of fact, conclusions of law, and recommended decision are made. FINDINGS OF FACT 1. At all times pertinent to this matter, Mayes was the holder of a concealed weapons permit issued by the Department. 2. During May, 2001, the Department was notified that Mayes had been arrested on May 1, 2001 for domestic violence assault in violation of A.R.S. §13-1203 and A.R.S. §13 3601. As a result, pursuant to A.A.C. R13- 3112, the Department sent a letter to Mayes on May 8, 2001, notifying Mayes that his CCW permit had been suspended due to the arrest for domestic violence. The letter further informed Mayes that he must surrender his license to the department within five business days after receiving the letter. 3. The evidence shows, and Mayes confirmed, that he got the letter on May 14, 2001. Mayes testified that upon receiving the letter, he took his permit, placed it along with a letter requesting an appeal in an envelope, and promptly returned both his letter and the permit to the Department. 4. The letter and envelope in which Mayes indicates that he returned the permit was in fact received by the Department on May 17, 2001. According to the records log which the Department maintains, while the letter requesting the appeal was received, the permit was not. 5. Sometime prior to July 20, 2001, Sergeant Whalen and Mayes had a telephone conversation wherein Sergeant Whalen informed Mayes that the permit had not been returned and that it must be returned immediately. According to Mayes, he informed the sergeant that he had returned the permit. Mayes further testified that at that point Sergeant Whalen asked him if he was sure it had been sent. Mayes indicated that he was sure because he had put it in the envelope himself. Sergeant Whalen then asked Mayes if Mayes would look around and look in his wallet to see if he might have forgotten to send it. Mayes agreed that he would, but that he was sure he would not find it because he was sure he had sent the permit back to the Department. 6. On July 20, 2001, Mayes was tried and acquitted of the domestic violence charge in Pima county Justice Court. 7. On August 5, 2001, the Department notified Mayes that his license would be revoked as he had failed to return it to the Department in compliance with A.A.C. R13-9-111 (I)(1). CONCLUSIONS OF LAW 1. As the Department seeks to revoke the license of the license holder, the burden is upon the Department, as the Complainant, to demonstrate the violation in this matter. The complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). It "is evidence which is of greater weight or more convincing than the 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." Black's Law Dictionary, 1182 (6th ed. 1990). 2. Arizona Administrative Code R13-9-111(I)(1) provides that upon receipt of a suspension, “A permittee shall return the permit to the Department within 5 business days.” 3. In this matter, the undersigned finds the testimony of each of the witnesses to be equally credible. That being the case, the resolution of this matter turns on which party has the burden of proof. As indicated earlier, the Department bears the burden to prove in this matter that Mayes failed to return the permit in five days. Having found that both witnesses are highly credible, and the evidence being therefore equal, the undersigned must find that Department has failed in its burden of proof in this matter. 4. The Department having failed in its burden of proof, the determination to revoke the license cannot be sustained. CONCLUSIONS OF LAW Based upon the foregoing, it is recommended that the Director rescind the revocation in this matter and, upon determining that Mayes is otherwise qualified, reinstate the permit at issue in this case. Done this day, September 26, 2001.

______________________________________ Gregory L. Hanchett Administrative Law Judge

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Original transmitted by mail this ____ day of ____________, 2001, 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 ___________________________

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