ALJDEC

02A-07342224-CWP · Department of Public Safety - Concealed Weapons Permit Unit · 2002-05-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 30, 2002 APPEARANCES: Joseph Robert Cox failed to appear. Assistant Attorney General Dennis Carpenter represented the Arizona Department of Public Safety. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The Arizona Department of Public Safety (“DPS”) presented evidence regarding its decision to suspend the Concealed Weapon Permit that had been issued to Joseph Robert Cox. 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 19, 2000, after DPS ascertained that Mr. Cox met the requirements set forth in Arizona Revised Statutes (“A.R.S.”) § 13-3112(E) and Arizona Administrative Code (“A.A.C.”) R13-9-104, it issued Concealed Weapon Permit (“CWP”) #07342224 to him. Sergeant W.A. Whalen, a Supervisor in DPS’ CWP Unit, testified that on February 13, 2002, he ran a routine search of permittees in DPS’ automated criminal history database. The search indicated that on February 8, 2002, Mr. Cox had been arrested and charged with felony aggravated DUI. The criminal history database did not show the disposition of the charges. On February 13, 2002, Sergeant Whalen sent a certified letter to Mr. Cox, 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 aggravated DUI. This suspension will remain in effect until the offenses are properly adjudicated.

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).

[Emphasis in original.][1] 4. On March 4, 2002, DPS received Mr. Cox’s attorney Wendy Edwards, Esq.’s request for a hearing to appeal suspension of Mr. Cox’s concealed weapon permit.[2] Enclosed within the request for hearing was Mr. Cox’s concealed weapon permit. 5. On March 12, 2002, DPS sent a notice of hearing to Mr. Cox via certified mail. Mr. Cox 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. Cox were still pending. 7. On April 30, 2002, a hearing was held. Although the beginning of the duly noticed hearing was delayed fifteen minutes to allow Mr. Cox additional travel time, he neither appeared, personally or through Ms. Edwards, nor 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 to prove by a preponderance of the evidence that Mr. Cox’s concealed weapon permit should be suspended.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] 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.”[5] The evidence established that Mr. Cox received actual notice of DPS’ intended suspension of his concealed weapon permit and of the hearing, which his attorney had requested. The evidence established that Mr. Cox has been arrested for and charged with felony aggravated DUI and that these charges remain pending. Arizona law therefore requires DPS to suspend his concealed weapon permit.[6] RECOMMENDED ORDER Based on the foregoing, it is recommended that the Director of the Department of Public Safety dismiss this appeal and affirm the February 13, 2002 suspension of Mr. Cox’s Concealed Weapon Permit # 07342224. Done this day, May 7, 2002.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of May, 2002, to:

Dennis A. Garrett, Director Department of Public Safety - Concealed Weapons Permit Unit ATTN: Sgt. W.A. Whalen 2102 West Encanto Boulevard Phoenix, AZ 85009

By ___________________________

----------------------- [1] DPS Exhibit 3.

[2] See DPS Exhibit 5.

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

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

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

[6] 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