ALJDEC decisions subject to certification as final

07A-32351-CWP · Department of Public Safety - Concealed Weapons Permit Unit · 2007-12-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 9, 2007. Record held open for submission of Department’s Exhibits 2 and 3 and Legal Memorandum. Record closed on November 27, 2007. APPEARANCES: Richard Wayne Von Dane on his own behalf; Assistant Attorney General Lisa Maxie-Mullins on behalf of the Department of Public Safety ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ PROCEDURAL ISSUE During the hearing, the Arizona Department of Public Safety (“Department”) requested that documents marked and identified as Exhibits 2 and 3, containing criminal history background, remain confidential. In support of that request, the Department cited A.R.S. § 41-1750 but acknowledged that that statute did not provide authority for the Administrative Law Judge to either seal or keep confidential documents that are part of a public administrative hearing. Richard Wayne Von Dane (“Mr. Von Dane”) did not object to having the documents admitted as exhibits either under seal or in redacted form. The Administrative Law Judge kept the record open for the Department to submit a memorandum of law in support of its request that Exhibits 2 and 3 remain confidential. On November 27, 2007, the Department submitted a request that an order be issued to maintain the criminal history under seal citing the same statute it cited during the hearing. The Department has not provided any additional legal authority or argument other than what was presented during the hearing. The Administrative law Judge does not consider the legal authority cited by the Department to be persuasive or provide authority for this Tribunal to seal the criminal history records that constitute Exhibits 2 and 3 or to keep such documents confidential. Consequently, Exhibits 2 and 3 are admitted in their redacted form. FINDINGS OF FACT 1. Mr. Von Dane appealed the determination made by the Concealed Weapon Permit Unit (“CWPU”) of the Department that denied his application for a concealed weapon permit (“Application”). 2. On April 15, 2007, Mr. Von Dane submitted the Application (Exhibit 1) to the Department. In the Application, Mr. Von Dane answered “No” to the question which asked: “Are you currently under indictment for a felony arrest OR have you ever been convicted of a felony offense?” (Emphasis in original). Mr. Von Dane wrote next to his response: “See Attached.” 3. Lieutenant Laurence Burns (“Lieutenant Burns”), a CWPU supervisor, testified that as part of its review of the Application, the Department conducted a criminal history background check of Mr. Von Dane. The background check revealed that Mr. Von Dane was charged with selling narcotics, a felony, he was convicted of that offense on January 5, 1990, and was sentenced to five years of confinement, 5. The Department notified Mr. Von Dane in a letter dated May 1, 2007 (Exhibit 4), that the Application was being denied because of Mr. Von Dane’s felony conviction despite having his civil rights restored or the conviction expunged, set-aside, or vacated. 6. In the May 1, 2007 letter (Exhibit 4), CWPU informed Mr. Von Dane that “[i]n accordance with Arizona Administrative Rule R13-9-201.C, the Department shall not issue a concealed weapon permit to an individual who has been convicted of a felony even if the individual’s civil rights have been restored or the conviction has been expunged, set-aside, or vacated.”

7. Upon request for reconsideration, the Department in a letter dated July 10, 2007 (Exhibit 6) informed Mr. Von Dane that the Application was denied on the same basis as previously determined. 8. By letter dated July 12, 2007 (Exhibit 7), Mr. Von Dane notified CWPU that there is no basis in law for CWPU to deny the Application that he is appealing the denial determination, and requesting an administrative hearing. 9. During the hearing, Mr. Von Dane acknowledged that he pled guilty to the charge of sale of narcotics, a felony, in January 1990. The Court imposed a fine in the amount of $2,740.00 and sentenced Mr. Von Dane to five years of confinement. Mr. Von Dane’s sentence ended January 4, 1995. 10. The evidentiary record reflects that on March 16, 2007, an Order was issued in Maricopa County Case Number CR1989-000115 (Exhibit 5) restoring Mr. Von Dane’s civil rights, restoring Mr. Von Dane’s right to possess a firearm, vacating the judgment of guilt regarding the sale of narcotics, and dismissing the charges against him in that matter. 11. Mr. Von Dane presented into evidence a letter from the United States Department of Justice dated June 25, 2007 (Exhibit E) showing that he has been determined eligible to purchase or redeem a firearm. 12. According to Mr. Von Dane, pursuant to A.R.S. § 13-907(A), the Order that vacated the judgment of guilt in CR1989-0000115 has the effect of there being no felony conviction for the Department to consider. Mr. Von Dane also asserted that because he can carry a firearm, he should be able to obtain a concealed weapon permit. 13. Mr. Von Dane contended that the Department’s reliance on A.A.C. R13-9- 210(C) does not support the Department’s position because the rule is invalid and the Department did not have the authority to promulgate the rule. CONCLUSIONS OF LAW 1. A.R.S. § 13-3112(E)(3) includes among the qualifications for a concealed weapon permit that the applicant not have been convicted in any jurisdiction of a felony. 2. A.A.C. R13-9-201(C) states that the Department “shall not issue a concealed weapon permit to any person who has been convicted of a felony even if the person’s civil rights have been restored and the conviction expunged, set aside, or vacated.” 3. Mr. Von Dane bears the burden of proof and must establish that he is qualified to be granted a concealed weapon permit by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(1); A.A.C. R2-19-119. 4. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence ( 5 (1960). It is “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.” Black’s Law Dictionary 1182 (6th ed. 1990). 5. The issue in dispute is whether the above-mentioned January 5,1990 felony conviction can be considered a felony conviction in determining whether to grant or deny the Application in light of the fact that Mr. Von Dane had that conviction expunged and has had his civil rights restored, including the right to carry a firearm. 6. Mr. Von Dane did not present any evidence that showed that A.R.S. § 13-3112(E)(3) or A.A.C. R13-9-201(C) were invalid. Consequently, the Administrative Law Judge must give effect to a valid statue or rule and determine whether the Department appropriately applied the law. 7. A.R.S. § 13-907 states in pertinent part: A. Except as otherwise provided in this section, every person convicted of a criminal offense, on fulfillment of the conditions of probation or sentence and discharge by the court, may apply to the judge, justice of the peace or magistrate who pronounced sentence or imposed probation or such judge, justice of the peace or magistrate's successor in office to have the judgment of guilt set aside. The convicted person shall be informed of this right at the time of discharge. * * * C. If the judge, justice of the peace or magistrate grants the application, the judge, justice of the peace or magistrate shall set aside the judgment of guilt, dismiss the accusations or information and order that the person be released from all penalties and disabilities resulting from the conviction other than those imposed by: 1. The department of transportation pursuant to section 28-3304, 28-3306, 28-3307, 28-3308 or 28-3319, except that the conviction may be used as a conviction if such conviction would be admissible had it not been set aside and may be pleaded and proved in any subsequent prosecution of such person by the state or any of its subdivisions for any offense or used by the department of transportation in enforcing section 28-3304, 28- 3306, 28-3307, 28-3308 or 28-3319 as if the judgment of guilt had not been set aside.

8. A.R.S. § 13-904(E) provides:

E. A person shall not be disqualified from employment by this state or any of its agencies or political subdivisions, nor shall a person whose civil rights have been restored be disqualified to engage in any occupation for which a license, permit or certificate is required to be issued by this state solely because of a prior conviction for a felony or misdemeanor within or without this state. A person may be denied employment by this state or any of its agencies or political subdivisions or a person who has had his civil rights restored may be denied a license, permit or certificate to engage in an occupation by reason of the prior conviction of a felony or misdemeanor if the offense has a reasonable relationship to the functions of the employment or occupation for which the license, permit or certificate is sought.

9. Mr. Von Dane’s argument that he has been determined eligible for purpose of purchasing or redeeming a firearm is not persuasive or relevant to the issue as to whether he should be issued a concealed weapon permit under Arizona law. 10. The Administrative Law Judge concludes that reading A.R.S. § 13- 907(A) and (C) in conjunction with A.R.S. § 13-904(E), and consideration being given to A.R.S. § 13-3221(E)(3) and A.A.C. R13-9-201(C), the Department could consider Mr. Von Dane’s felony conviction for the sale of narcotics in 1990 and grounds exist for the Department to deny the Application. 12. Mr. Von Dane failed to meet his burden of proving by a preponderance of the evidence that he is qualified to be granted a concealed weapon permit or that the denial of the Application should be reversed. ORDER Based on the above, the denial of the Application is affirmed. Done this day, December 5, 2007.

______________________________________ Lewis D. Kowal Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Department of Public Safety - Concealed Weapons Permit Unit Roger Vanderpool 2102 West Encanto Boulevard Phoenix, AZ 85005-6638

By ___________________________

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