ALJDEC

01A-24812288-CWP · Department of Public Safety - Concealed Weapons Permit Unit · 2001-05-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 25, 2001 at 9:00 a.m. APPEARANCES: Gary Stephen Youngblood did not appear; the Arizona Department of Public Safety appeared through Dennis Carpenter, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

The Arizona Department of Public Safety (“DPS”) presented evidence regarding its decision to suspend the Concealed Weapon Permit that had been issued to Gary Stephen Youngblood. 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 May 7, 1999, after DPS ascertained that Mr. Youngblood met the requirements set forth in Arizona Revised Statute (“A.R.S.”) § 13-3112(E) and Arizona Administrative Code (“A.A.C.”) R13-9-104, it issued CWP #24812288 to him. Sergeant W.A. Whalen, a Supervisor in DPS’ Concealed Weapon Permit Unit, testified that, on March 12, 2001, he ran a routine search of permittees in DPS’ automated criminal history database. Sergeant Whalen got a “hit” on Mr. Youngblood, indicating that, on March 7, 2001, he had been arrested and charged with five felony counts of discharging a firearm within city limits, in violation of A.R.S. § 13-3107(A).[1] The criminal history database did not show the disposition of the charges. On March 22, 2001, Sergeant Whalen sent a certified letter to Mr. Youngblood, 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 five (5) counts of Discharging a Firearm in City Limits on March 7, 2000, by the Phoenix Police Department. This suspension will remain in effect until the offenses are properly adjudicated and this office has received legal documentation for review and verification.

In accordance with [A.A.C.] 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 . . . within fifteen (15) calendar days from receipt of this notice. . . .

[Emphasis in original.][2] On March 24, 2001, Mr. Youngblood signed the return receipt for the letter.[3] On March 28, 2001, DPS received Mr. Youngblood’s attorney Brian F. Russo, Esq.’s request for a hearing to appeal suspension of Mr. Youngblood’s Concealed Weapon Permit.[4] On April 3, 2001, DPS sent a notice of hearing to Mr. Youngblood via certified mail, with a copy to Mr. Russo via regular U.S. Mail.[5] On April 7, 2001, Mr. Youngblood signed the return receipt for the notice.[6] Sergeant Whalen testified that, just prior to the hearing, he checked DPS’ automated criminal history database and confirmed that the felony charges against Mr. Youngblood were still pending. On May 25, 2001, a hearing was held. Although the beginning of the duly noticed hearing was delayed fifteen minutes to allow Mr. Youngblood additional travel time, he neither appeared, personally or through Mr. Russo, contacted the Office of Administrative Hearings to request a continuance or that the time for the hearing be further delayed, nor presented any evidence or argument at the hearing to dispute DPS’ evidence and legal argument to support suspension of his concealed weapon permit. CONCLUSIONS OF LAW DPS bears the burden of proof and must establish that Mr. Youngblood’s concealed weapon permit should be suspended by a preponderance of the evidence.[7] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[8] 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.”[9] The evidence establishes that Mr. Youngblood received actual notice of DPS’ intended suspension of his concealed weapon permit and of the hearing, which his attorney had requested. The evidence establishes that Mr. Youngblood has been arrested for and charged with five felonies and that these charges remain pending. Arizona law therefore requires DPS to suspend his Concealed Weapon Permit.[10] RECOMMENDED ORDER Based on the foregoing, it is recommended that the Director of the Department of Public Safety dismiss this appeal and affirm the March 22, 2001 suspension of Mr. Youngblood’s Concealed Weapon Permit # 24812288. Done this day, May 25, 2001.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of May, 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 ___________________________ ----------------------- [1] See DPS Exhibit 1.

[2] DPS Exhibit 2.

[3] See DPS Exhibit 3.

[4] See DPS Exhibit 4.

[5] See DPS Exhibit 5.

[6] See DPS Exhibit 6.

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

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

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

[10] See A.A.C. R13-9-111(B) (DPS “shall suspend a permit if the permittee is arrested or indicted for an offense that would make the permittee unqualified under the provisions of A.R.S. § 13-3101(6) or 13-3112.”) and (D) (DPS “shall suspend or revoke a permit if the permittee fails to maintain all of the conditions specified in A.R.S. § 3112(E).”); A.R.S. §§ 13-3101(6) (A “prohibited possessor” is “any person . . . [w]ho has been convicted . . . of a felony . . . .”), 13-3112(C) (“The permit of a person who is arrested . . . 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. . . .”) and 13-3112(E) (DPS “shall issue a permit to an applicant who . . . is not under indictment for . . . a felony.”).

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