ALJDEC

01A-26482293-CWP · Department of Public Safety - Concealed Weapons Permit Unit · 2001-09-10

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 9, 2001 APPEARANCES: Appellant : Lisa Gervase, Attorney at Law, represented Preston Bryant Johnson. Mr. Johnson testified in his own behalf. State : Dennis Carpenter, Jr., Assistant Attorney General, represented the Department of Public Safety (the “Department”). Testifying for the Department were Sgt. W.A. Whalen, CCW (Concealed Carry Weapons) Permit Unit Supervisor, and Officer D. L. Thompson. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________

This is a proceeding commenced by the Department of Public Safety (“Department” or “the State”), as authorized by Arizona Revised Statutes (“A.R.S.”) § 13-3112, to impose disciplinary sanction against Appellant Preston Bryant Johnson holder of Concealed Weapon Permit No. 29284293, Instructor Approval License No. 26482293, and Organization Authorization No. 29130326. Having heard the testimony of the witnesses and having read and considered the entire record,[1] Administrative Law Judge (“ALJ”) Gary B. Strickland submits this Recommended Decision and Order to the Director of the Department of Public Safety.

FINDINGS OF FACT 1. The Department submitted four exhibits, lettered A, B, C, and D; the Respondent offered one (1) exhibit. All exhibits were received either without objection or over an objection having been interposed. Further, each of the parties has filed a closing brief wherein has been set forth Proposed Findings of Fact and Proposed Conclusions of Law. 2. Respondent, Preston B. Johnson, holds a Concealed Weapon Permit No. 29284293. 3. Mr. Johnson further holds Instructor Authorization No. 26482293 and Organization Authorization No. 29130326. 4. As an instructor in the use of firearms and firearm safety, Mr. Johnson has trained over 550 students under the State of Arizona’s Concealed Weapon Permit program. The program is administered by the Arizona Department of Public Safety. 5. While assisting another Instructor prior to obtaining his own authorization so to instruct, Mr. Johnson trained an approximate additional 1,500 students. 6. As part of Mr. Johnson’s duties as a certified firearms safety Instructor, in addition to his duties as director of his own firearms safety training course, Mr. Johnson was required to certify that his students had, in fact, completed the required amount of training. This certification was made by the Instructor by affixing his signature to the trainee’s Concealed Weapon Permit application. 7. It is required that a trainee/applicant for a Concealed Weapon Permit satisfactorily complete sixteen (16) hours of instruction. 8. Respondent Johnson developed his training course so that instruction broke down into the following categories and for the following periods:

Subject Length of Period Firearms Three hours Ammunition Three hours Home defense Three hours Shooting technique Three hours Law Three hours

The course further allowed for a one hour clinical period at the shooting range. 9. Students applying for an initial Concealed Weapon Permit, as well as those seeking renewal thereof beyond sixty (60) days of expiration, are required by the Department to obtain the sixteen (16) hours training. Students who make application to renew their previously issued permits within sixty (60) days of expiration are required to undergo four (4) hours of training. 10. Mr. Johnson, who earned his bachelor of science degree (B.S.) from The Citadel and a master of arts (M.A.) from Northern Arizona University and who also is a retired Major, United States Marine Corps, sought employment with the Arizona Department of Public Safety in the spring of 2001. As a routine part of the application process for the post, Major Johnson was compelled to undergo a polygraph examination. During either a pre-polygraph questioning session or at the outset of the exam itself,[2] in response to a question put to him by the polygrapher concerning whether he had ever falsified records, the Major affirmed that on between five to ten DPS Concealed Weapon Permit applications he had certified training requirements contrary to fact. 11. This information was turned over to the Concealed Weapon Permit unit at DPS, specifically to Officer D.L. Thompson who proceeded to interview Respondent concerning the matter on June 1, 2001. At the interview, Respondent admitted that he may have certified applications for which certification was not merited. 12. Thereafter, on June 8, 2001, the Department forwarded, via certified mail, notice to Respondent that all three of his permits had been summarily suspended. 13. Respondent requested that he be afforded an evidentiary hearing. At the hearing, Mr. Johnson acknowledged by his testimony that he failed to maintain proper attendance records thereby inhibiting his ability, upon recollection, to swear that the applicant/trainees had actually satisfied the attendance requirement. However, Respondent Johnson denies having certified any student’s application with knowledge that the applicant/trainee had not satisfied application training requirements. The Appellant avers that his ostensible admissions to the polygrapher and to Officer Thompson were made because of his heightened sensitivity to truthfulness, nervousness, and the fact that he could not from independent recollection swear that each of his former trainees had satisfied requirements. 14. Upon interview conducted by Officer Thompson as part of his investigation of this matter, two applicant/trainees confirmed that Respondent Johnson had certified their attendance at all 16 hours of the training session contrary to reality. Each interviewee stated that they seemed to recollect that they had not attended the full 16 hours of training. 15. Both of the former applicant/trainees were interviewed by Officer Thompson a significant period of time (one and two years) after they had completed the course and had submitted their applications. 16. Neither former applicant/trainee testified at the hearing. 17. Neither former applicant/trainee was asked to provide an affidavit on the issue. 18. One of the interviewees was within the sixty (60) day grace period of renewal at the time that Major Johnson certified attendance. Therefore, that interviewee/applicant would have been accountable for only four (4) hours of training on the date of certification, albeit the individual appears to have filed the application beyond the sixty (60) day terminus ad quem. 19. This disciplinary action pertains to the Respondent’s alleged acts and/or omissions in his role as Instructor and his training organization, not as a Concealed Weapon Permit holder. 20. The weight and sufficiency of the evidence, when considered in light of testimony and records presented, fails to preponderate that Appellant Johnson has committed act(s) and/or omission(s) for which his various licenses granted under the authority of Title 13, Chapter 31 may be suspended or revoked. . . .

APPLICABLE STATUTES AND RULES

A.R.S. § 13-3112 provides, in relevant part::

A. The department of public safety shall issue a permit to carry a concealed weapon to a person who is qualified under this section. The person shall carry the permit at all times when the person is in actual possession of the concealed weapon and shall present the permit for inspection to any law enforcement officer on request. ***

E. The department of public safety shall issue a permit to an applicant who meets all of the following conditions:

6. Satisfactorily completes a firearms safety training program approved by the department of public safety pursuant to subsection N of this section. This paragraph does not apply to a person who is an active duty Arizona peace officer standards and training board certified or federally credentialed peace officer or who is honorably retired as a federal, state or local peace officer with a minimum of ten years of service.

F. The application shall be completed on a form prescribed by the department of public safety. The form shall not require the applicant to disclose the type of firearm for which a permit is sought. The applicant shall attest under penalty of perjury that all of the statements made by the applicant are true. The applicant shall submit the application to the department with a certificate of completion from an approved firearms safety training program, two sets of fingerprints and a reasonable fee determined by the director of the department. ***

K. A permit issued pursuant to this section is renewable every four years. Before a permit may be renewed, a criminal history record check shall be conducted pursuant to section 41-1750 within sixty days after receipt of the application for renewal.

*** L. Applications for renewal shall be accompanied by a fee determined by the director of the department of public safety. A certificate of completion of a four-hour refresher firearms safety training program approved by the director of the department is required before a renewal permit may be issued and shall accompany an application for renewal.

M. The department of public safety shall suspend or revoke a permit issued under this section if the permit holder becomes ineligible pursuant to subsection E of this section. The department of public safety shall notify the permit holder in writing within fifteen working days after the revocation or suspension and shall state the reasons for the revocation or suspension.

N. An organization shall apply to the department of public safety for approval of its firearms safety training program. The department shall approve a program that meets the following requirements:

1. Is at least sixteen hours in length.

2. Is conducted on a pass or fail basis.

3. Addresses all of the following topics in a format approved by the director of the department:

(a) Legal issues relating to the use of deadly force.

(b) Weapon care and maintenance.

(d) Safe handling and storage of weapons.

(e) Marksmanship.

(f) Judgmental shooting.

4. Is conducted by instructors who submit to a background investigation, including a check for warrants and a criminal history record check.

*** P. The proprietary interest of all approved instructors and programs shall be safeguarded, and the contents of any training program shall not be disclosed to any person or entity other than a bona fide criminal justice agency, except upon an order from a state or federal court.

Q. If the department of public safety rejects a program, the rejected organization may request a hearing pursuant to title 41, chapter 6, article 10.

R. The department of public safety shall maintain information comparing the number of permits requested, the number of permits issued and the number of permits denied. The department shall annually report this information to the governor and the legislature.

S. The director of the department of public safety shall adopt rules for the purpose of implementing and administering the Concealed Weapon Permit program, including fees relating to permits issued pursuant to this section.

(Emphasis added).

*** A.A.C. R13-9-111(E) provides:

The Department may suspend or revoke a permit, firearms safety instructor approval, or firearms safety program approval if the permittee, instructor, or organization : 1. Violates or fails to meet any requirement of A.R.S. ( 13-3112 or of this Article; 2. Fails to continuously maintain any condition or requirement necessary for the issuance of a permit or granting of approval under A.R.S. ( 13-3112 or this Article; or 3. Provides false, incomplete, or misleading information to the Department.

(Emphasis added). ***

CONCLUSIONS OF LAW 1. The Arizona Department of Public Safety has authority to suspend or revoke a license permit issued under A.R.S. ( 13-3112 if the holder of the permit becomes ineligible.[3] 2. Organizations may be approved to implement training in firearms safety by satisfying certain requirements, inter alia, the provision of a hour training course.[4] 3. The burden of proof generally at an administrative hearing falls to the party asserting a claim, right or entitlement or seeking to impose a penalty.[5] Further, the standard of proof is that of the “preponderance of the evidence”.[6] Proof by a preponderance means that the evidence is sufficient to persuade the finder of fact that the proposition is “…more likely true than not.”[7] The evidence taken as a whole must convince the decision maker that the party who bears the burden is more probably correct on the issue(s) in dispute.[8] Preponderance requires “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.”[9] 4. In this proceeding, the State has the burden of establishing that grounds exist upon which the Department has properly suspended the Appellant’s license(s). 5. The Arizona state legislature has directed that statutes be liberally construed in an effort to effect their objects and promote justice.[10] 6. The Department has not established that it has authority to discipline Mr. Johnson’s Concealed Weapon Permit under this set of facts. 7. The Department did not have statutory authority to summarily suspend Mr. Johnson’s Concealed Weapon Permit, instructor authorization, or organization authorization. A.R.S. ( 13-3112(B) and (C) allow for summary suspension in situations where a permittee fails to have a permit on his person when carrying a concealed weapon or if the permittee is arrested or indicted for certain offense(s). That is not what occurred here. Neither is it alleged that this is what occurred here. A.R.S. ( 13-3112(M) allows the Department to suspend or revoke in instances where the permittee has become ineligible under the provisions of subsection (E). No facts were alleged indicative that Mr. Johnson had made himself ineligible by failing the requirements of (E). 8. It has not been established, by a preponderance of reliable evidence, that Mr. Johnson violated the provisions of A.A.C. R13-9-111(E). The foundation upon which the Department seeks to establish that Mr. Johnson certified permit applications knowing that the applicants had not met the requirements of A.R.S. ( 13-3112(N)(1) is qualitatively deficient and is therefore accorded slight weight. No written statement was provided by either of the applicants upon whom the Department relied, let alone statements made under oath. No opportunity was provided the Appellant to cross-examine the declarants. No corroboration for the hearsay was submitted other than the statements that Appellant had made to the polygrapher and Officer Thompson. Appellant has clarified under oath the intent of those corroborating statements. And - there is no indication that Mr. Johnson was given access to the trainee interview statements prior to the hearing that were offered by Officer Thompson, or that the declarants were even identified beforehand so as to enable Mr. Johnson to subpoena their attendance at the hearing. Hearsay that lacks sufficient assurance of truthfulness does not constitute substantial evidence. The hearsay presented by the Department is ambiguous and vague and lacking in foundation. 9. Further, the Department violated Mr. Johnson’s due process rights by not affording him an opportunity for a hearing prior to imposition of suspension on June 8, 2001.[11] Summary suspension is limited by the statute to Concealed Weapon Permittee violations.[12] No such violation is asserted here. Further, the Department has not alleged that summary suspension of the permits was necessitated by public safety considerations requiring emergency action.[13]

RECOMMENDED ORDER IT IS RECOMMENDED that the Department of Public Safety vacate the prehearing suspensions of Appellant Johnson’s Concealed Weapon Permit, Instructor license, and Organization license, and that the Department retroactively reinstate those licenses/permit to June 8, 2001.

Submitted this 19th day of September in the year 2001. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Gary B. Strickland Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

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

By ___________________________ ----------------------- [1] The parties stipulated that the official record consists of that record having been electronically recorded by the Office of Administrative Hearings of the testimony and argument set forth by the parties’ witnesses and their representatives, respectively, along with the exhibits that were offered at the hearing and documentation in the Department’s case file. [2] The evidence is unclear on the timing of the asserted admission. [3] A.R.S. ( 13-3112(M). [4] A.R.S. ( 13-3112(N)(1). [5]Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997); See also Ariz. Admin. Code R2-19-119 (B). [6] Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); See also Ariz. Admin. Code R2-19-119 (A). [7] In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). [8] Morris K. Udall, ARIZONA LAW OF EVIDENCE, ( 5 (1960). [9] BLACK’S LAW DICTIONARY 1182 (6th ed. 1990). [10] A.R.S. ( 1-201(B). [11] A.R.S. ( 41-1092.11(B). [12] A.R.S. ( 13-3112(B)(C) and (M). [13] A.R.S. ( 41-1092.11(B).

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