ALJDEC

18F-188752-AH · Department of Public Safety - Concealed Weapons Permit Unit · 2000-08-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 28, 2000 at 9:00 a.m. APPEARANCES: Robin Ann Painter did not appear; the Arizona Department of Public Safety (“DPS”) appeared through its attorney, Lisa C. Stelly, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

DPS presented evidence regarding its decision to suspend the Concealed Weapon Permit that had been issued to Robin A. Painter. 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 April 20, 1999, Ms. Painter applied to DPS for a Concealed Weapon Permit. Approximately a week later, after ascertaining that Ms. Painter met the requirements set forth in Arizona Revised Statute (“A.R.S.”) § 13- 3112(E) and Arizona Administrative Code (“A.A.C.”) R13-9-104, DPS issued CWP #29977190 to Ms. Painter. Sergeant W.A. Whalen, a Supervisor in DPS’ Concealed Weapon Permit Unit, testified that DPS subsequently ran a search on Ms. Painter in its computer database and received information that, on June 21, 2000, she had been arrested for and subsequently charged with aggravated assault and domestic violence.[1] Sergeant Whalen subsequently obtained Phoenix Police Department Report Nos. 01082491 and 01082182, prepared by Phoenix Police Officers Alan Mayo, Alex Mers, and Patricia Fimbres.[2] The reports stated that, after Officers Mayo and Mers were called to 6817 N. 14th Place on June 21, 000 at 2200 hours for a domestic violence complaint, they arrested Ms. Painter for domestic violence/assault against her step-daughter and husband.[3] When Officer Fimbres attempted to search Ms. Painter, Ms. Painter attempted to and actually did kick Officer Fimbres.[4] As a result of the officers’ investigations and observations of Ms. Painter on June 21, 2000, DPS’ computer database showed she was charged with aggravated assault on a law enforcement officer, a felony violation of A.R.S. § 13-1204(A)(5), and two counts of assault/domestic violence, misdemeanor violations of A.R.S. § 13-1204(A)(3).[5] On June 27, 2000, Sergeant Whalen sent a certified letter to Ms. Painter at her home address, 6817 North 14th Place, Phoenix, Arizona 85014. Sergeant Whalen’s letter informed Ms. Painter: Pursuant to [A.R.S.] § 13-3112(C), your Concealed Weapon Permit has been SUSPENDED due to your being arrested for misdemeanor domestic violence charges: assault—intent/reckless/injure, aggravated assault—enter residence, criminal damage—deface and felony charge aggravated assault—law enforcement officer. This suspension will remain in effect until the offenses are properly adjudicated.

A recently enacted amendment to the Federal Gun Control Act of 1968, makes it unlawful for any person convicted of a misdemeanor crime of domestic violence to ship, transport, possess, or receive firearms or ammunition. Subject to law, concealed weapon permits are denied to any applicant who has a misdemeanor domestic violence conviction until such time as the applicant has regained eligibility. The Act did provide means for obtaining relief from the firearms disability. You may want to contact an attorney to discuss what avenues may be available to you.

In accordance with Administrative Rule R13-9-111(I), you must return your permit to this office within five business days after receiving this notice. 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).

Pursuant to [A.A.C.] R13-9-112, you have the right to request a hearing to appeal this action. Any request for appeal shall be in writing and personally delivered or sent certified mail, return receipt requested, to the following address within fifteen (15) calendar days from receipt of this notice. . . .

[Emphasis in original.][6] Ms. Painter signed for receipt of the letter. On July 10, 2000, DPS received Ms. Painters’ request for a hearing to appeal suspension of her Concealed Weapon Permit.[7] On July 13, 2000, DPS sent via certified mail a notice of hearing to Ms. Painter at the same address to which Sergeant Whalen had sent the June 27, 2000 letter.[8] Ms. Painter’s signature appears on the certified letter receipt. Sergeant Whalen testified that he called the arresting officer and confirmed that the charges were pending on August 26, 2000. On August 28, 2000, a hearing was held. Although the beginning of the duly noticed hearing was delayed fifteen minutes to allow Ms. Painter additional travel time, she neither appeared, personally or through her attorney, 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. CONCLUSIONS OF LAW In this administrative proceeding, DPS bears the burden of proof and must establish a violation of applicable statute or regulation by a preponderance of the evidence.[9] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[10] 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.”[11] The evidence establishes that Ms. Painter received notice of the hearing. The evidence establishes that Ms. Painter has been arrested for and charged with a felony and that these charges remain pending. Arizona law therefore requires DPS to suspend her Concealed Weapon Permit.[12] RECOMMENDED ORDER Based on the foregoing, it is recommended that the Director of the Department of Public Safety dismiss this appeal and affirm DPS’ June 27, 2000 suspension of Ms. Painter’s Concealed Weapon Permit # 29977190. Done this day, August 28, 2000.

______________________________________ Diane Mihalsky Administrative Law Judge Original transmitted by mail this ____ day of August, 2000, to: Joe Albo, Director Department of Public Safety Concealed Weapons Permit Unit 2102 West Encanto Boulevard Phoenix, AZ 85009 ATTN: Sgt. W.A. Whalen

By ___________________________

----------------------- [1] See DPS Exhibit 1.

[2] See DPS Exhibit 2.

[3] See id.

[4] See id.

[5] See DPS Exhibit 1. [6] DPS Exhibit 3.

[7] See DPS Exhibit 5.

[8] See DPS Exhibit 4.

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

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

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

[12] 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