ALJDEC decisions subject to certification as final

18A-01093082-CWP · Department of Public Safety - Concealed Weapons Permit Unit · 2018-08-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Denial of the Concealed Carry Weapon Permit to:

Joshua Herbert

APPLICATION No. 01093082.

No. 18A-01093082-CWP

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 30, 2018, at 8:30 a.m.

APPEARANCES: Joshua Herbert (“Applicant”) failed to appear; the Arizona Department of Public Safety (“the Department”) was represented by Mark Carl Brachtl, Esq., Assistant Attorney General

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Applicant filed an application for a concealed carry weapon permit with the Department. On May 29, 2018, the Department issued a Notice of Denial of the application.

Applicant requested a hearing on the denial. The Department referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing.

On July 18, 2018, the Department issued a Notice of Hearing, setting an evidentiary hearing on August 30, 2018, at 8:30 a.m. The Department sent the Notice of Hearing to Applicant at the address on the application by certified mail. According to the United States Postal Service’s records, the certified mail was delivered to Applicant’s address of record on July 21, 2018, at 11:12 a.m. and signed for by an individual at that address.

A hearing was held on August 30, 2018. The Department’s attorney and witness/party representative Donna Street appeared for the hearing.

Applicant did not request to appear telephonically at the hearing and did not request that the hearing be continued. Because OAH’s employees had worked from home on August 29, 2018 on Governor Ducey’s orders to accommodate the public who wished to come to the Capitol to view Senator John McCain’s casket, staff was required to review more than 24 hours’ of telephone messages to see if Applicant had attempted to contact OAH. Although the start of the duly noticed hearing was delayed more than 40 minutes, Applicant did not appear, personally or through an attorney. Consequently, Applicant did not present any evidence to contest the Department’s denial of his application for a concealed carry weapon permit.

The Department submitted twelve exhibits that it had previously electronically filed with OAH. The Administrative Law Judge stated that she would make a recommendation to the Director of the Department based on Applicant’s failure to prosecute his appeal.

CONCLUSIONS OF LAW

This hearing was conducted in accordance with A.R.S. § 41-1092.01 et seq. This matter lies with the Department’s jurisdiction.

The Notice of Hearing that the Department mailed to Applicant at the address that he provided on his application was reasonable and he is deemed to have received notice of the hearing.

Applicant bears the burden of proof to establish that he legally entitled to receive a concealed carry weapon permit by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

By failing to appear at the duly noticed hearing or to present any evidence to prosecute his appeal, Applicant failed to carry his burden of proving by a preponderance of the evidence that he is qualified to be granted a concealed weapon permit or that the Department’s denial of the application should be reversed.

ORDER

Based on the above, the Department’s denial of the Applicant Joshua Herbert’s Application No. 01093082 for a Concealed Carry Weapon Permit is affirmed.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification.

Done this day, August 30, 2018

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Frank L Milstead, Director

Department of Public Safety - Concealed Weapons Permit Unit