ALJDEC

01A-23727271-CWP · Department of Public Safety - Concealed Weapons Permit Unit · 2001-11-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 16, 2001. APPEARANCES: Neil Charles Hamilton appeared on his own behalf. The Department of Public Safety was represented by Dennis Carpenter, Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________

FINDINGS OF FACT This matter was called for hearing on November 16, 2001 at 9:00 A.M. at the Office of Administrative Hearings in Phoenix, Arizona. The purpose of the hearing was to consider the propriety of the revocation of Neil Charles Hamilton’s concealed weapons permit. At the time set for hearing, Mr. Hamilton and his witness were present and Mr. Hamilton indicated he was ready to proceed. Counsel for the Department of Public Safety, Mr. Carpenter, indicated that he was unable to proceed as his only witness had failed to appear. Mr. Carpenter could not explain why the witness had failed to appear. Thereafter, a recess was taken and Mr. Carpenter attempted to contact his witness. He was unsuccessful in doing so. After waiting approximately twenty minutes for the witness to appear, the record was then opened again. Mr. Carpenter indicated that he could not proceed. Neither party moved to continue the proceeding to make further attempts to locate the witness. Accordingly, the undersigned then closed the record in this matter as the Department was unable to adduce any evidence to meet its burden of proof. . . .

CONCLUSIONS OF LAW 1. As the Department seeks to revoke the license of the license holder, the burden of proof is upon the Department to demonstrate that the revocation was proper. 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. In this matter, the Department failed to demonstrate that the permittee violated any regulation as the Department failed to present any evidence at the hearing. The Department having failed to present any evidence, the undersigned has no choice but to find that the revocation cannot be sustained. RECOMMENDED ORDER Based upon the foregoing, it is recommended that the Director rescind the revocation in this matter and, upon determining that Neil Charles Hamilton is otherwise qualified, reinstate the permit at issue in this case

Done this day, November 16, 2001.

______________________________________ Gregory L. Hanchett Administrative Law Judge 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