ALJDEC

98-29057195-CWP · Department of Public Safety - Concealed Weapons Permit Unit · 1998-06-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 8, 1998 APPEARANCES: Appellant appeared on his own behalf and the Arizona Department of Public Safety (hereinafter referred to as “Department”) was represented by Assistant Attorney General, Bill Jameson. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Evidence of record demonstrated that on February 20, 1998 Department revoked Appellant’s instructor authorization to teach firearms safety training programs for concealed weapon permit applicants. As a direct result of said revocation, Appellant requested the instant hearing. 2. The following salient facts were adduced at the hearing and are very important to note: a. Appellant was convicted of a felony for aggravated battery in 1977. b. The above-described conviction was expunged by order of the Superior Court on April 30, 1980 wherein the Court specifically vacated the judgment of guilt, dismissed the charges against Appellant, and restored Appellant’s civil rights. c. In 1994 (some 14 years after the aforementioned expungement and years after the original conviction date) Appellant made application to Department for a concealed weapons permit and also for authorization to act as a training instructor for a firearms safety class for applicants for concealed weapons permits (hereinafter referred to as “instructor” ). d. Due to the aforementioned expungement of his felony conviction Appellant, in an apparent good faith belief that he no longer had to reveal said felony on any application seeking prior felony information, indicated on Department’s application form for concealed weapon permit and instructor that he had never been convicted of a felony. Nevertheless, Department received information regarding the aforementioned felony and denied both applications. e. Appellant appealed Department’s denial of the concealed weapon permit and authorization for instructor status to the Superior Court. The Court only ruled on the issue of a concealed weapon permit, ruling in favor of Department. f. Notwithstanding the fact that the Superior Court did not rule on the appeal of the denial of instructor authorization and despite Department’s knowledge of Appellant’s 1977 felony conviction, for reasons unknown to the parties at the instant hearing, Department ultimately issued Appellant an approval to be an instructor on or about October 11, 1994. g. Appellant was actively involved as an instructor from 1994 until such time as he received the revocation of Department’s approval for instructor status in 1998. There was no evidence of any complaints regarding his performance as a training instructor during this period of time and it is interesting to note that he trained, among other individuals, the staff for the Arizona Supreme Court. h. There was no showing that Appellant has had any other felony convictions since 1977. i. There is no renewal required for an instructor approval. In the latter part of 1997, Department was merely looking into further training programs for instructor and, at that time, reviewed Appellant’s application and again became aware that Appellant was approved to be an instructor, notwithstanding the fact that he had a prior felony conviction. j. Although A.A.C. R13-9-109D(1) was adopted on October 12, 1995 and said rule basically provides that one who seeks approval as an instructor must meet the same requirements (i.e. no felony conviction) as those provided for issuance of a concealed weapon permit, Department waited until February 1998 to revoke Appellant’s instructor approval, thereby allowing Appellant over 2 more years to act in the capacity of an instructor. It is important to note that prior to enactment of this rule, there was no statute or promulgated rule stating that the requirements for instructor shall be the same as those for a concealed weapon permit.

CONCLUSIONS OF LAW

1. A.A.C.R13-9-111E(1) provides in pertinent part, “The Department may...revoke a…firearms safety instructor approval if the…instructor…violates or fails to meet any requirement of A.R.S. §13- 3112….” (emphasis added). Thus, the provision allowing Department to revoke an instructor approval is merely discretionary and not mandatory. All of the salient facts of the instant case, including the fact that the felony in question is 21 years old, it was expunged 18 years ago, Appellant has no other felony convictions, and the fact that he has been an instructor for almost 4 years with no complaints, militate for the conclusion that Department abused its discretion in electing to revoke the approval for Appellant to act as an instructor. 2. There was no showing that A.A.C. R13-9-109D(1) was intended by the Legislature to have a retroactive effect and absent such a showing it is determined that said rule is merely prospective in nature and therefore, should not have been applied to Appellant who had received approval for instructor status prior to the enactment of this rule. 3. Department should be estopped to complain of Appellant’s 1977 felony conviction at this point in time due to the fact that Department had issued the approval for instructor status to Appellant with full knowledge of his 1977 felony conviction and had allowed him to participate in said business status for almost four years. 4. Evidence of record, along with the applicable law, supports a finding that the prior action of Department in revoking the approval for instructor status for Appellant should be reversed.

. . .

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Department quash the prior revocation of Appellant’s eligibility to instruct an authorized firearms safety training program for concealed weapon permit applicants and thereby reinstate the 1994 approval.

Done this day, June 16, 1998.

_______________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of June, 1998, to:

Joe Albo, Director Department of Public Safety - Concealed Weapons Permit Unit ATTN: Mike Bonin 2102 W. Encanto Phoenix, AZ 85009

By _______________________________

-----------------------

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826