ALJDEC

01A-24821146-CWP · Department of Public Safety - Concealed Weapons Permit Unit · 2001-11-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 15, 2001 at 1:30 p.m. APPEARANCES: Permit Holder John Ernest Mancini did not appear; the Arizona Department of Public Safety, Concealed Weapons Permit Unit appeared through Dennis Carpenter, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

The Arizona Department of Public Safety/Concealed Weapons Permit Unit (“DPS/CWPU”) presented evidence and testimony with respect to the factual issue of whether Mr. Mancini’s Concealed Weapon Permit should be revoked because he failed to return it in a timely manner, such as to comply with Arizona Administrative Code (“A.A.C.”) R13-9-111(I)(1). 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 August 20, 1999, DPS issued Concealed Weapon Permit #24821146 to Mr. Mancini after it ascertained he had met the eligibility requirements set forth in Arizona Revised Statute (“A.R.S.”) § 13-3112(E) and A.A.C. R13-9- 104. Mr. Mancini’s concealed weapon permit was entered into the Arizona Criminal Justice Information System, to which Arizona law enforcement agencies had access. On June 25, 2001, during a routine review of Mr. Mancini’s continued eligibility, DPS/CWPU Supervisor Sergeant W.A. Whalen received information via facsimile from the Phoenix Police Department that a valid order of protection had been entered against Mr. Mancini. The Phoenix Police Department informed Sergeant Whalen that it had checked the NCIC computer, which confirmed that, on March 9, 2001, Susan Mancini had obtained an order of protection against Mr. Mancini that rendered him a prohibited possessor of firearms and ammunition. Sergeant Whalen subsequently obtained a copy of the Order of Protection entered on March 9, 2001 in Maricopa County Superior Court Case No. DR- 9817136. In Paragraph 6 of that Order, the court found that Mr. Mancini “represents a credible threat to the physical safety of [Mrs. Mancini]” and that, “[u]pon service of this Order, [Mr. Mancini] shall not possess, receive and/or purchase firearms or ammunition.” Sergeant Whalen also obtained a copy of the affidavit of service, which indicated that the Order of Protection entered in Maricopa County Superior Court Case No. DR-9817136 had been served on Mr. Mancini at 3:00 p.m. on March 9, 2001. On June 29, 2001, Sergeant Whalen sent a certified letter to Mr. Mancini, informing him as follows: It has come to our attention that you are named in a protection order, which stipulates that you are a prohibited possessor of firearms. This prevents our office from issuing a concealed weapon permit to you by order of federal law Title 18, U.S.C., Section 922.

As of today’s date, your current concealed weapon permit is suspended by court order from the Maricopa Superior Court, until at such time you can provide proof that your prohibited possessor status has been changed. 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, either 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 Arizona Revised Statutes § 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 within fifteen (15) calendar days from receipt of this notice. . . .

The return receipt for Sergeant Whalen’s June 29, 2001 letter indicates that Mr. Mancini signed to receive the letter on July 3, 2001. Mr. Mancini did not request a hearing on the suspension within fifteen calendar days or return his concealed weapon permit to DPS/CWPU within five business days of Sergeant Whalen’s June 29, 2001 letter. On July 16, 2001, Sergeant Whalen sent a second certified letter to Mr. Mancini, as follows: On June 29, 2001, a letter was sent to you advising you that your concealed weapon permit had been suspended and advised you to return your permit to our office. As of this date we have not received your permit. Therefore your concealed weapon permit has now been REVOKED, pursuant to Arizona Administrative Rule R13-9-111(I).

This revocation is effective immediately. The carrying of a concealed weapon from this date forward is punishable under Arizona Revised Statutes § 13-3102.

Pursuant to Arizona Administrative Rule 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 within fifteen (15) days after receiving this notice. . . .

[Emphasis in original.] The July 16, 2001 letter was mailed certified mail, return receipt requested, to the same address as the June 29, 2001 letter. The return receipt for the July 16, 2001 letter indicates that Mr. Mancini never accepted delivery of it. On August 16, 2001, DPS/CWPU administrative assistant Vicki Braband was alerted that Mr. Mancini had entered the secured area. Ms. Braband pulled Mr. Mancini’s file and reviewed the documents and correspondence summarized above. Ms. Braband went to talk to Mr. Mancini. He told her that he had never received the July 16, 2001 letter revoking his concealed weapon permit because he had been out of town and his wife did not pick up his mail. Mr. Mancini also informed Ms. Braband that the protective order had been lifted. He provided to Ms. Braband a copy of a hearing order dated August 15, 2001 in Maricopa County Superior Court Case No. DR98-17136 dismissing the order of protection that had issued on March 9, 2001. Ms. Braband asked if Mr. Mancini had his concealed weapon permit with him. He said he did, but refused to relinquish it because he said all that DPS/CWPU needed to know was that the protective order had been lifted. After Ms. Braband described Mr. Mancini’s visit to DPS/CWPU’s office to Sergeant Whalen, he informed Mr. Mancini over the telephone that his concealed weapon permit had been revoked for failure to return it after having been informed that he needed to do so. Sergeant Whalen told Mr. Mancini that his concealed weapon would remain revoked until he returned it to DPS/CWPU. On August 20, 2001, Mr. Mancini returned to DPS/ CWPU’s office and reluctantly tendered his concealed weapon permit to Sergeant Whalen. On September 7, 2001, Sergeant Whalen set a certified letter to Mr. Mancini, as follows: On June 29, 2001, a letter was sent to you advising you that your concealed weapon permit had been suspended due to your status as a prohibited possessor, and advised you to return your permit to our office. On August 16, 2001, you provided a copy of the court order dismissing the protection order, in person to Vicki Braband at the Department of Public Safety Headquarters. At that time you were advised that your permit was revoked for failure to return your permit and you refused to surrender the permit. On August 20, 2001, I advised you that your permit was revoked and to return your permit to this office. You did finally comply on August 20, 2001 at 1:40 p.m. At this time, your permit will remain revoked for the period of one (1) year beginning August 20, 2001. At which time it will be reinstated at your written request. [sic]

The return receipt for Sergeant Whalen’s September 7, 2001 letter indicates that Mr. Mancini signed to receive the letter on September 18, 2001. On September 27, 2001, Mr. Mancini requested a hearing for the following reasons: This action was undertaken because of a missed deadline not misconduct. Considering the fact that your department took nearly 4 months to act on a protection order “that should not have been issued” in the words of the commission Hoffman and that the protection order was dismissed.

Since the suspension was based upon a illegally issued protection order any action taken on the suspension was untimely and illegal.

Pursuant to A.A.C. R13-9-113, Mr. Mancini’s appeal was assigned to the Office of Administrative Hearings and, on October 5, 2001, DPS issued a notice of a hearing to be held on November 15, 2001. The notice of hearing was sent via certified mail, return receipt requested, to Mr. Mancini. He accepted delivery. Although the beginning of the duly noticed hearing was delayed fifteen minutes to allow Mr. Mancini additional travel time, he neither appeared, personally or through an attorney, contacted the Office of Administrative Hearings to request a continuance or that the time for the hearing be further delayed, nor presented any evidence at the hearing to controvert the case-in-chief presented by DPS/CWPU. Sergeant Whalen testified that A.A.C. R13-9-111(I) requires concealed weapon permit holders to return their permits if they become prohibited possessors of firearms to protect the public safety. The federal Brady law requires a person to pass a background check before he or she can purchase a firearm. However, if the person presents a concealed weapons permit, the law does not require a background check. CONCLUSIONS OF LAW 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] The evidence shows that Mr. Mancini was served with an order of protection, which was valid at the time it was served and which, by its terms, made him a prohibited possessor of firearms and ammunition. Applicable statutes and regulations require DPS to suspend a concealed weapons permit as soon as it discovers that the holder has become a prohibited possessor of firearms.[4] Applicable regulation also requires a permittee whose permit has been suspended to return the permit to DPS within five business days.[5] The dispositive factual issue is whether Mr. Mancini returned his Concealed Weapon Permit as required by statute and regulation after he became a prohibited possessor, not whether DPS should have restored the permit had Mr. Mancini complied with applicable statutes and regulations and returned his permit to DPS. The evidence at hearing established that protection of the public safety requires permittees who have become prohibited possessors to return their permits to DPS. Mr. Mancini’s refusal to return his permit also shows a lack of respect for the law and for law enforcement personnel. A preponderance of the evidence therefore establishes that Mr. Mancini did not comply with applicable law and supports DPS’ decision to revoke his concealed weapon permit for one year. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Director of the Department of Public Safety dismiss this appeal and affirm DPS’ revocation of Mr. Mancini’s Concealed Weapon Permit #24821146 from August 20, 2001 to August 20, 2002. Done this day, November 19, 2001.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of November, 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 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.A.C. R13-9-111(D); see also A.R.S. §§ 13-3101(6) (defining a “prohibited possessor”) and 13-3112(C) (requiring DPS to seize the permit of a permittee who has become a prohibited possessor).

[5] 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