ALJDEC decisions subject to certification as final

09-10163231-CWP · Department of Public Safety - Concealed Weapons Permit Unit · 2009-04-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 15, 2009. APPEARANCES: James Gooch appeared personally. The Arizona Department of Public Safety was represented by Assistant Attorney General Anni Foster. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order:

FINDINGS OF FACT 1. James Gooch (“Appellant”) is the holder of Concealed Weapon Permit No. 10163231 issued by the Arizona Department of Public Safety (“DPS”). 2. On January 7, 2009, Appellant submitted his Concealed Weapon Permit renewal application (“Application # 495789”) to DPS. In Application # 495789, Appellant answered “No” to the following question: “Have you been adjudicated as mentally incompetent or committed to a mental institution? If YES, you are disqualified from obtaining a permit.” 3. On February 4, 2009, DPS staff performed a search of the National Crime Information Center’s (“NCIC”) database as part of its investigation of Appellant’s Application # 495789. That search revealed that Appellant had been “adjudicated mental defective/committed to a mental institution…disqualified under 18 U.S.C. 922G4.” 4. On February 9, 2009, DPS issued Appellant a NOTICE OF SUSPENSION, which read as follows: Your concealed weapons permit was SUSPENDED because you have been adjudicated as a mental defective or committed to a mental institution. As a result, you are classified under federal law as a prohibited possessor.

Records indicate you were placed on the Federally Prohibited Index as a prohibited possessor in accordance with United States Code Title 18 Section 922(G)(4) as a result of a mental defect adjudication on July 26, 2004 by the State of Washington.

As a result of the suspension and as required by law, you must return the permit to us within five business days. A return envelope has been provided for your convenience.

You may submit official court documentation refuting this adjudication, to the below address, within 20 days of this notice. After receipt of additional documentation, the Department of Public Safety will review the status of the court ordered treatment and may reconsider its decision.

You have the right to appeal this suspension by requesting a hearing under ARS Title 41, Chapter 6, Article 10. If you would like to exercise your right to appeal please review the appeals process and submit your written request to the Department within days of this notice to the address listed below.

5. By separate letter dated February 9, 2009, DPS issued a NOTICE OF DENIAL of Application # 495789 because Appellant was a prohibited possessor under state or federal law. 6. By letter dated February 13, 2009, Appellant requested an appeal of DPS’ determinations. 7. DPS issued a Notice of Hearing advising the parties of the time, date, and location of the hearing in this matter before the Office of Administrative Hearings, an independent agency. 8. On January 7, 1987, the Pierce County Superior Court of the State of Washington issued an Order that Appellant be detained “for 14 days involuntary treatment at Western State Hospital.” 9. On January 9, 1987, the Pierce County Superior Court Issued an Order Detaining Respondent detaining Appellant “for 90 days under the following conditions: 1) Attend all regularly scheduled therapy sessions. 2) Follow the treatment plan set forth by therapist – James R. Thompson, Ph.D. at Crossroads Counseling Clinic. 3) Leave all guns at brother’s home (Jack Gooch).

CONCLUSIONS OF LAW 1. DPS has jurisdiction over Appellant and the subject matter in this case. 2. Pursuant to 18 USC 922(G)(4) and A.R.S. § 13-3112(E) and (N), Appellant is ineligible to hold a concealed weapon permit due to having been adjudicated mentally defective by the Pierce County Superior Court on January 7, 1987 and January 9, 1987.

RECOMMENDED ORDER The appeal in Docket No. 09-10163231-CWP shall be dismissed, and DPS’ suspension of Concealed Weapons Permit #10163231 and denial of Concealed Weapons Permit Application # 495789 are upheld and affirmed.

Done this day, April 29, 2009.

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

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

By ___________________________ -----------------------

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