ALJDEC decisions subject to certification as final

06-240758-CWP · Department of Public Safety - Concealed Weapons Permit Unit · 2007-02-26

STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 30, 2007

APPEARANCES: Permit Holder Michael Petramala appeared on his own behalf; the Arizona Department of Public Safety was represented by Assistant Attorney General Lisa Maxie-Mullins.

WITNESSES: For the State: Michael Kline, Concealed Weapons Permit Unit, Arizona DPS.

For Permit Holder: Michael Petramala testified on his own behalf.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

The State of Arizona seeks to revoke Michael Petramala’s (hereinafter “Permit Holder”) Concealed Weapon Permit on the basis of a determination by the United States Department of Justice that Permit Holder has been “adjudicated as a mental defective.“ The parties presented evidence[1] and testimony[2] at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding that the State has shown grounds to suspend but not revoke the permit held by Permit Holder.

. . .

FINDINGS OF FACT 1. Michael Petramala is the holder of Concealed Weapon Permit 06494276. The permit allows him to carry a concealed weapon, as long as he also carries the permit at all times that he is in actual possession of a concealed weapon.[3] 2. In September 2004, arising out of a misdemeanor charge pending in Scottsdale City Court, Permit Holder was declared incompetent to stand trial.[4] Court-appointed mental health experts had examined Permit Holder and filed reports. The Maricopa County Superior Court, to whom the issue of competency had been referred, found that Permit Holder was “unable to understand the nature of the proceedings and/or [was] unable to assist counsel in [his] defense. . . .”[5] The court also found that there was no substantial probability that Permit Holder would be restored to competency within fifteen months.[6] Therefore, the charges were dismissed. 3. Michael Kline of the Arizona Department of Public Safety (“DPS” or “the Department”) Concealed Weapon Permit Unit testified that on August 28, 2006, the Maricopa County Sheriff’s Office sent him a copy of the court’s Minute Entry from September 2004 in which the finding of Permit Holder’s incompetence to stand trial was documented. That Minute Entry is admitted as Exhibit 1. Mr. Kline forwarded Exhibit 1 to the United States Department of Justice’s National Instant Criminal Background Check System (NICS) to determine if it would render Permit Holder a prohibited possessor of a firearm. 4. The Federal Bureau of Investigation, which oversees NICS, determined that Permit Holder was a prohibited possessor under a provision in federal law that prohibits possession of a firearm by those who have been “adjudicated as a mental defective.”[7] Permit Holder was then placed on the National Index of Prohibited Possessors. 5. The Department then sent Permit Holder a certified letter stating that his permit was revoked due to his status as a prohibited possessor.[8] The Department relied solely on the determination of the FBI for its action, and referred Permit Holder to the FBI “for information on any appeal process that may be available. . . .”[9] 6. Permit Holder wrote back to the Department and requested an administrative hearing on the Department’s action.[10] He stated that he was also filing an appeal with the FBI NICS system. 7. There is evidence in the record that Permit Holder challenged the FBI determination of his status as a prohibited possessor. Exhibit 7 is a copy of an unsigned, and perhaps pro forma, letter from FBI NICS to Permit Holder dated October 31, 2006. The letter notes that Permit Holder has been found to be a person who has been “adjudicated as a mental defective . . .”and notes two ways that this may be challenged: (1) by obtaining certified court documentation that “may nullify” the FBI’s determination, and (2) by contacting Maricopa County Superior Court and challenging the accuracy of the record upon which the denial is based. 8. Permit Holder testified at the hearing that he has challenged the FBI determination by filing, in January 2007, an application for relief from the “prohibited possessor” determination to the United States Attorney General’s Office.[11] However, he did not supply supporting documentation. CONCLUSIONS OF LAW 1. In order to suspend or revoke a permit, the State generally bears the burden of proving that a person who holds a permit has violated a requirement for holding that permit.[12] Even though Permit Holder requested the hearing in this matter, it is long-settled that a person who holds a license does not bear the burden of proof when a regulatory agency alleges a violation of statute or rule. As the Arizona Supreme Court has pointed out, there is a significant difference between an applicant for initial licensure and a license holder: It seems to us that the learned trial court failed to draw a distinction between appeals by (1) an applicant for a license, and (2) a person whose license has been revoked. In the first case it would be incumbent upon the applicant to assume the burden of proof and show that he had complied with all of the requirements. . . . Whereas in the case at bar the superintendent of liquor control asserted the affirmative, i.e., that the licensee had violated certain rules. It then became incumbent upon the state, both in the hearing before the superintendent and on appeal before the superior court to present its case first and bear the burden of proof.[13]

Therefore, in this instance the State bears the burden of proving by a preponderance of the evidence that Permit Holder has violated a requirement of his certification.[14] The State has done so. 2. The Department has authority to promulgate rules for the purpose of implementing and administering a concealed weapon permit program.[15] The Department has done so in Arizona Administrative Code (A.A.C.) Title 13, Chapter 9. The Department has consistently asserted that it is proceeding against Permit Holder’s permit in this action on the basis of A.A.C. R13-9-401(A), which allows for suspension of a permit if a permit holder becomes a prohibited possessor: The Department 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. § 13-3112, or if the permittee is a prohibited possessor. The Department shall restore the permit under the conditions specified in A.R.S. § 13-3112(C).[16]

Thus, the Department must show that Permit Holder is a prohibited possessor within the meaning of A.A.C. R13-9-401(A). 3. A “prohibited possessor” is defined by the Department as, among others, “any person to whom it would be unlawful to sell or otherwise dispose of a firearm under 18 U.S.C. § 922(d).”[17] The federal law cited prohibits, in relevant part, selling a firearm to someone who has been “adjudicated as a mental defective. . . .”[18] A different section of that same law prohibits anyone “who has been adjudicated as a mental defective . . .” from possessing a firearm.[19] Thus, one who has been “adjudicated as a mental defective” is a prohibited possessor under Arizona law.[20] 4. The phrase “adjudicated as a mental defective” has been defined by federal regulation as including “persons found incompetent to stand trial. . . .”[21] 5. Therefore, one who is found incompetent to stand trial may be declared by the FBI to be a person who has been “adjudicated as a mental defective” and therefore a prohibited possessor. As a prohibited possessor, the Department would then have grounds to suspend the person’s Concealed Weapon Permit. 6. That is what happened in this case. Permit Holder was found incompetent to stand trial in September 2004. When the FBI was informed of this in August 2006, it determined that Permit Holder had been “adjudicated as a mental defective” and declared him to be a prohibited possessor. This then gave grounds to the Department to suspend Permit Holder’s permit. 7. Note, however, that the Department’s authority in this instance is to suspend the permit, not revoke it. The State’s insistence throughout the proceedings that it can revoke the permit in this circumstance is not supported by the authority that it has relied upon, namely A.A.C. R13-9- 401(A). That rule allows only for suspension.[22] Ostensibly, if Permit Holder can persuade the FBI to take him off the prohibited possessor list, his suspended permit can be re-instated. 8. The evidence, then, supports the suspension of Permit Holder’s permit. First, Permit Holder was declared a prohibited possessor by the FBI based on the determination that he had been found incompetent to stand trial. The FBI’s determination then gave the Department grounds to suspend the permit. 9. Permit Holder has made a number of arguments, many of which are patently frivolous and not worthy of consideration. A few of his arguments, however, are at least plausible. These will be addressed. 10. First, Permit Holder argues that “adjudicated as a mental defective” refers to mental retardation and not mental illness on the basis of United States v. Hansel, 474 F.2d 1120 (8th Cir. 1973). In that case, the court looked at the prohibited possessor provision of federal law, specifically the phrase “adjudicated as a mental defective,” and determined that it could not include persons with a history of mental illness, but meant to include only those who suffer from mental retardation.[23] However, the court expressly took on the task of defining the phrase because there was not at that time a definition of the phrase in the law.[24] As pointed out above, there is now a definition of the phrase in federal regulation. For that reason, the Hansel case no longer has value on the issue; the federal government has defined the term to include those found incompetent to stand trial. 11. Second, Permit Holder has avenues of redress with the federal authorities who made the determination to put him on the prohibited possessor list. He apparently already filed a challenge with the NICS system, as noted in Finding of Fact 7 above. And he testified, noted in Finding of Fact 8 above, that he is appealing his case to the United States Attorney General under 18 U.S.C. § 925(b). These are avenues of redress by which Permit Holder can present evidence and argument directly to the authorities that have put him on the prohibited possessor list. 12. The Department is following its statutory mandate to take action when a person holding a Concealed Weapon Permit becomes a prohibited possessor by reason of a determination of the FBI NICS system. According to the provision cited by the State, A.A.C. R13-9-401(A), the permit shall be suspended if a permit holder becomes a prohibited possessor. Thus, the law requires that Permit Holder’s permit be suspended. The permit may be restored if Permit Holder’s status as a prohibited possessor changes. 13. According to A.A.C. R13-9-401(H), Permit Holder must immediately cease carrying a concealed weapon and return his permit to the Department within five working days upon receipt of a final administrative decision suspending his permit. DECISION Based on the above findings and conclusions, IT IS RECOMMENDED that the Director of the Arizona Department of Public Safety suspend indefinitely Concealed Weapon Permit 06494276, issued to Michael Petramala. IT IS FURTHER RECOMMENDED that the Department immediately notify Michael Petramala of the final administrative order suspending his permit so that he must return his permit within five working days of receipt of the notification.

Done this 26th day of February 2007.

Office of Administrative Hearings

______________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of February 2007 to:

Roger Vanderpool, Director Arizona Department of Public Safety Attn: Rene Wilson--Concealed Weapons Permit Unit 2102 West Encanto Boulevard Phoenix, AZ 85009

By _______________________________ ----------------------- [1] The evidence consists of the State’s Exhibits 1 through 5, and 7. The State’s proposed Exhibits 6 and 8 and all of Permit Holder’s proposed Exhibits were not admitted. [2]Witnesses are identified above. [3] See Arizona Revised Statutes (A.R.S.) § 13-3112(A). [4] Exhibit 1 (Minute Entry issued September 14, 2004, in State v. Petramala, No. CR2004-019118-001DT). [5] Id. [6] Id. See A.R.S. § 13-4510(C). [7] Exhibit 2, referring to 18 United States Code (“U.S.C.”) § 922(g)(4). [8] Exhibit 3. [9] Id. [10] Exhibit 4. [11] See 18 U.S.C. § 925(c). [12] See Brown v. White, 2 Ariz. App. 295, 298, 408 P.2d 228, *** (1965) (State must establish violation in order to suspend a license). See also, Arizona Revised Statutes (A.R.S.) §41-1001(10) (“license” is equivalent to “permit”). [13] Vazzano v. Superior Court, 74 Ariz. 369, 371-72, 249 P.2d 837, *** (1952), reaffirmed in Garza v. Industrial Comm’n, 17 Ariz. App. 525, 530, 498 P.2d 599, *** (1972). [14] Sherrill v. Dept. of Transportation, 165 Ariz. 495, 498, 799 P.2d 836, 839 (1990). [15] A.R.S. § 13-3112(T). [16] Emphasis added. While it is clear that this is the provision under which the Department is proceeding (see the Department’s Hearing Memorandum at 4-5), the Department created some confusion by continually requesting revocation rather than suspension of the permit. There are other provisions under which revocation is allowable, but A.A.C. R13-9-401(A) is not one of them. [17] A.A.C. R13-9-101(18). [18] 18 U.S.C. § 922(d)(4). [19] 18 U.S.C. § 922(g)(4). [20] This is because it would be unlawful, under § 922(d)(4), to sell a firearm to someone who has been “adjudicated as a mental defective.” [21] 27 C.F.R. § 478.11 [22] Other provisions in the rule provide for revocation of a permit, but the Department is not relying on those provisions. [23] Hansel, 474 F.2d at 1123 (construing 18 U.S.C. § 922(h)(1968)). [24] Id. The court even invited the federal government to define the phrase at page 1125.

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