ALJDEC

01A-28186207-CWP · Department of Public Safety - Concealed Weapons Permit Unit · 2001-09-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 6, 2001 at 10:30 a.m. APPEARANCES: John Michael Shane did not appear; the Arizona Department of Public Safety appeared through Sergeant W.A. Whalen. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

The Arizona Department of Public Safety (“DPS”) presented evidence regarding its decision to suspend and revoke the Concealed Weapon Permit that had been issued to John Michael Shane. 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 Mr. Shane submitted a renewal application to DPS to renew his Concealed Weapons Permit. Sergeant W.A. Whalen, a Supervisor in DPS’ Concealed Weapon Permit Unit, testified that DPS subsequently performed a background check on Mr. Shane that revealed cause for concern. Sergeant Whalen subsequently performed research that revealed that Mr. Shane was a career criminal. Mr. Shane had submitted three fingerprint cards to various law enforcement agencies showing the same prints but having three different names. The Federal Bureau of Investigation’s rap sheet showed 2 aliases. Mr. Shane had been incarcerated in California and Utah following felony convictions. On July 19, 2001, Sergeant Whalen sent a letter via certified mail to Mr. Shane, denying his application for renewal of and suspending and revoking his concealed weapon permit. Mr. Shane signed the receipt, acknowledging that he had received the letter. As instructed in the letter, Mr. Shane returned his concealed weapon permit to DPS. Mr. Shane timely appealed the denial, suspension, and revocation, in a letter dated July 20, 2001. On July 13, 2000, DPS sent via certified mail a notice of hearing to Mr. Shane at the same address to which Sergeant Whalen had sent the July 19, 2001 letter. Mr. Shane’s signature appears on the certified letter receipt. On September 6, 2001, a hearing was held. Although the beginning of the duly noticed hearing was delayed fifteen minutes to allow Mr. Shane 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 or argument at the hearing to support his eligibility to continue carrying a concealed weapons permit. CONCLUSIONS OF LAW DPS bears the burden of proof and must establish that Mr. Shane does not meet statutory and regulatory qualifications to carry a concealed weapon 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] The evidence establishes that Mr. Shane received notice of the hearing. The evidence establishes that Mr. Shane has been convicted of felonies in California and Utah. He therefore is a prohibited possessor of a firearm and unqualified for a concealed weapons permit.[3] Mr. Shane also submitted “false, incomplete, or misleading information” to DPS in failing to disclose his aliases, which is also ground for revocation or suspension.[4] RECOMMENDED ORDER Based on the foregoing, it is recommended that the Director of the Department of Public Safety dismiss this appeal and affirm DPS’ denial of the application to renew, suspension and revocation of Concealed Weapon Permit #28186207, previously issued to John Michael Shane. Done this day, September 6, 2001.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of September, 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] See A.A.C. R13-9-111(B) (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 . . . .”), and 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. . . .”).

[4] See A.A.C. R13-9-111(E)(3).

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