ALJDEC decisions subject to certification as final

2008-07708202-CWP · Department of Public Safety - Concealed Weapons Permit Unit · 2009-02-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 11, 2009 APPEARANCES: Assistant Attorney General Anni Foster on behalf of the Arizona Department of Public Safety; David Lewis Tullos on his own behalf ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. It was undisputed that the Concealed Weapons Unit of the Arizona Department of Public Safety ("DPS”) issued to David Lewis Tullos (“Mr. Tullos”) a concealed weapons permit, permit number 07708202 (the “Permit”) . 2. Ann Haas (“Ms. Haas”), an administrative assistant employed by DPS, reviews matters that come up involving the possibility of suspension or revocation of a concealed weapons permit. 3. According to Ms. Haas, when a concealed weapons permittee is arrested, and that information is entered into the DPS data base, a “hit sheet” is sent to the Concealed Weapons Unit notifying it of those permittees who have been entered into the criminal history data base of DPS. 4. Ms. Haas testified that information was brought to her attention through a “hit sheet” (Exhibit 1) that was created internally by DPS that showed that Mr. Tullos was arrested. See Exhibit 1. 5. After Ms. Haas discovered Mr. Tullos’ entry into the DPS criminal history database, she proceeded to obtain the criminal history information regarding Mr. Tullos to learn the nature of the arrest. 6. Ms. Haas learned from the criminal history background search that Mr. Tullos was arrested for the charge of Theft-Means of Transportation, a felony, and that the Court dismissed the matter. 7. On July 8, 2008, DPS sent Mr. Tullos a Notice of Summary Suspension of the Permit for the reason that “Records indicate that you were arrested for or charged with one count of Theft-Means of Transportation in or near Phoenix, AZ on or about June 23, 2008. “ Exhibit 3. 8. The above-mentioned letter also states that “as allowed by law, we will restore your concealed-weapons permit if you provide documentation from the court indicating that you were found not guilty or the charge was dismissed. You may also provide documentation from the county attorney indicating that no complaint was filed or the charge was dismissed.” Exhibit 3. The letter also informed Mr. Tullos of his right to appeal the suspension determination and request a hearing. 9. Ms. Haas explained that due to the limited space available on the criminal history background form, it is necessary for her to follow up with the Court to determine what happened in a particular case, i.e., whether the case was dismissed with prejudice, without prejudice or exactly what occurred. 10. On October 12, 2008, DPS received from Mr. Tullos copies of a Minute Entry entered in State of Arizona v. David Lewis Tullos, CR2008-129890-001- DT, which involved the charge of Theft-Means of Transportation, in which the Court granted the State’s Motion to Dismiss Without Prejudice. Exhibit 4. 11. On October 22, 2008, DPS sent Mr. Tullos a Notice of Suspension of Permit (Exhibit 5) advising him that court records indicate that he was arrested or indicted for a felony offense and that the prosecuting attorney’s office has 7 years in which to file a felony complaint or 1 year to file a misdemeanor complaint. The letter also stated that DPS will restore Mr. Tullos’ concealed weapons permit if Mr. Tullos provides documentation from the prosecuting attorney that no complaint will be filed within the above-mentioned time frame. The letter also informed Mr. Tullos of his right to appeal the suspension. 12. On November 4, 2008, Mr. Tullos filed an appeal (Exhibit 6) and requested an administrative hearing to contest the suspension of the Permit, resulting in this matter being set before the Office of Administrative Hearings, an independent state agency. Exhibit 7. 13. Ms. Haas testified that on the morning of the February 11, 2009 hearing, she contacted the Maricopa County Attorney’s Office to inquire as to whether any action has been taken by the Maricopa County Attorney’s office regarding the above-mentioned charge. She was informed by a supervising employee within the Maricopa County Attorney’s Office that the matter had been referred to the Maricopa County Sheriff’s Office to obtain more information so that the Maricopa County Attorney’s Office can determine what to do with the matter. APPLICABLE LAW 1. A.R.S. § 13-3112(C) provides: The permit of a person who is arrested or indicted for an offense that would make the person unqualified under section 13-3101, subsection A, paragraph 7 or this section shall be immediately suspended and seized. The permit of a person who becomes unqualified on conviction of that offense shall be revoked. The permit shall be restored on presentation of documentation from the court if the permittee is found not guilty or the charges are dismissed. The permit shall be restored on presentation of documentation from the county attorney that the charges against the permittee were dropped or dismissed.

2. A.R.S. § 13-3101(A), in pertinent part, provides:

* * * 7. "Prohibited possessor" means any person:

* * * (b) Who has been convicted within or without this state of a felony or who has been adjudicated delinquent for a felony and whose civil right to possess or carry a gun or firearm has not been restored.

CONCLUSIONS OF LAW 1. This matter is a disciplinary proceeding wherein DPS must prove by a preponderance of the evidence that based on the applicable law regarding concealed weapons permits, grounds exist to suspend the Permit. See A.AC. R2-19-119. 2. A preponderance of the evidence is “evidence 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). 3. DPS referred to the provisions within A.R.S. § 13-3112(C) and represented its position that if a court finds a person not guilty of the charge or the case is dismissed with prejudice, the concealed weapons permit will be restored or in the event that the county attorney has either dismissed or dropped the charges, the concealed weapons permit will be restored. 4. According to DPS’ interpretation of A.R.S. § 13-3112(C), if a court dismisses a criminal matter without prejudice, such as in the instant matter, and the county attorney has not filed any document indicating that the charges are dropped or dismissed, then the charges are pending because the county attorney’s office may re-file the charges. 5. The term ”Dismissed Without Prejudice” when used regarding the dismissal of suit “[I]t is meant as a declaration that no rights or privileges of the party concerned are to be considered as thereby waived or lost except as expressly conceded or decided. “ Black’s Law Dictionary at 1777 (6th ed. 1990). 6. DPS expressed concern that if A.R.S. § 13-3112(C) was interpreted so as to restore a concealed weapons permit once a court dismisses a criminal matter, the county attorney may re-file charges within a certain time period and DPS would not be aware that such charges were filed because it is not notified by a county attorney when charges are re-filed. According to DPS, this would create a situation where the person would then hold a concealed weapons permit and be a prohibited possessor of a concealed weapons permit within the meaning of A.R.S. § 13-3101(A)(7). 7. In contrast to DPS’s concern, the result that would occur if the Administrative Law Judge adopts DPS’s interpretation is that for a person whose case is dismissed without prejudice, that person would not have the concealed weapons permit restored based upon the possibility that the county attorney may re-file a charge. 8. Despite DPS’s legitimate concern and the reason why it interprets the language in A.R.S. § 13-3112(C), the interpretation is contrary to the plain meaning of the language in the statute. Interpreting the statute in the manner as suggested by DPS makes it easier for DPS to perform its regulatory function in this area and avoid what can be perceived as an unintended consequence if the statute is interpreted other than as DPS suggests. This interpretation not only deprives a person of the ability to hold a permit indefinitely but also relies upon the fact that the county attorney must affirmatively dismiss or drop the charge within a proscribed time, which may never occur. Such an interpretation creates a harsh and unreasonable result. The Administrative Law Judge concludes that if the Legislature had intended the suspension of a concealed weapons permit to continue until final disposition when a case has been dismissed without prejudice, the statute could have been crafted with language to that effect. 9. In the instant situation, although a charge existed which brought a case before a court, once the case was dismissed, the charge no longer existed and the county attorney must re-file charges to bring the matter back before a court. Consequently, a charge can not be pending if there needs to be a re-filing of a charge. Therefore, the dismissal of a criminal matter without prejudice should result in the restoration of a concealed weapons permit until the charge is re-filed. 10. Based upon the evidence and legal authorities and arguments presented, as set forth above, the Administrative Law Judge concludes that DPS did not meet its burden of proving by a preponderance of the evidence that the suspension of the Permit is appropriate in light of the Court’s dismissal of the criminal matter upon which the suspension was based. . . . . . . . . .

ORDER Based on the above, the Permit shall be immediately restored. Done this day, February 26, 2009.

______________________________________ Lewis D. Kowal Administrative Law Judge

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