ALJDEC

99A-25468312-CWP · Department of Public Safety - Concealed Weapons Permit Unit · 2000-03-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 7, 2000 APPEARANCES: Assistant Attorney General Lisa Stelly - on behalf of the Arizona Department of Public Safety (“Department”); Attorney Michael J. Dew - on behalf of Donald Kevin Anderson (the “Respondent”). ADMINISTRATIVE LAW JUDGE: Casey J. Newcomb _____________________________________________________________________ On March 7, 2000, a hearing was held on the Department’s suspension of the Respondent’s Concealed Weapon Permit. Evidence and testimony were presented. Based upon a review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Decision are made.

FINDINGS OF FACT 1. On or about May 23, 1999, the Complainant submitted a Concealed Weapon Permit/ Firearms Safety Training Instructor Approval Application (the “Application”) to the Department. See State’s Exhibit 1. This was a renewal Application. Id.

2. On the Application, the Respondent answered “No” to the following question:

Are you currently under indictment for any felony or been convicted of any felony or misdemeanor domestic violence offense in the United States or elsewhere: See State’s Exhibit 1, page 1.

3. Sergeant W.A. Whalen is the Supervisor of the Department’s Concealed Weapon Permit Unit. Sergeant Whalen has been employed with the Department for nineteen years. Sergeant Whalen reviewed the Respondent’s Application in June of 1999. Sergeant Whalen testified that he inputted the Respondent’s data into the Department’s computer to determine if the Respondent had a criminal record. Sergeant Whalen testified that the computer showed that the Respondent had been convicted in the City of Phoenix Municipal Court for domestic violence assault on April 24, 1990. See State’s Exhibit 2.

4. Sergeant Whalen testified that the Department obtained a police report concerning the Respondent’s misdemeanor conviction for domestic violence. See State’s Exhibit 4. However, the Department was not able to obtain the court documents pertaining to the Respondent’s conviction. See Respondent’s Exhibit B. Unfortunately, it is the policy of the City of Phoenix Municipal Court to purge its data bases and court files five to seven years after a misdemeanor conviction. Id.

5. On or about July 27, 1999, Sergeant Whalen sent a letter to the Respondent stating that the Respondent’s Application had been denied due to his misdemeanor domestic violence assault conviction in 1990. See State’s Exhibit 6. Sergeant Whalen further wrote: Pursuant to a recently enacted amendment to the Federal Gun Control Act of 1968 [it is] unlawful for any person convicted of a misdemeanor crime of domestic violence to ship, transport, possess, or receive firearms or ammunition. See Id.[1]

6. On December 15, 1999, Sergeant Whalen sent a letter to the Respondent stating, in part: Based on the discovery of a misdemeanor Domestic Violence conviction in your criminal history background, your Concealed Weapon Permit has been SUSPENDED pursuant to Arizona Administrative Code R13-9-111.

See State’s Exhibit 7.[2]

7. Sergeant Whalen testified that the grounds for the suspension included (1) the Respondent’s misdemeanor domestic violence conviction and (2) that the Respondent provided false information on his Application by not disclosing the misdemeanor conviction. However, the undersigned Administrative Law Judge finds that Sergeant Whalen’s July 27, 1999 and December 15, 1999 letters to the Respondent do not refer to the Respondent’s failure to disclose his misdemeanor conviction on his Application as a reason for denying the Application or for suspending the Respondent’s Concealed Weapon Permit. Furthermore, the Notice of Hearing in this matter does not state or refer to the Respondent’s failure to disclose his misdemeanor conviction as a reason for suspending the Respondent’s Concealed Weapon Permit.

8. On or about December 27, 1999, the Respondent requested a hearing in this matter concerning the suspension of his Concealed Weapon Permit. See State’s Exhibit 8. At the hearing in this matter, the Respondent conceded that he was convicted in 1990 of a misdemeanor crime for domestic violence. However, the Respondent testified that he was not represented by counsel at his domestic violence assault trial. The Respondent testified that the judge never informed him that he had a right to counsel. The Respondent further testified that he never waived his right to counsel at the trial.

9. The Respondent testified that he answered “No” to the above referenced question on the Application because the judge told him that his misdemeanor conviction would be expunged if he kept his record clean for six months. The Respondent testified that he assumed that his misdemeanor conviction had been expunged because he maintained a clean record for the mandatory six month period. APPLICABLE LAW

1. A.R.S. §13-3112(E) provides the qualifications for a person to hold a concealed weapon permit. A.R.S. §13-3114(A) and A.R.S. §13-3112(G) require that the Department conduct a criminal background check to determine “whether purchases, sales or transfers of firearms to any person” would violate any federal or state law.

2. 18 U.S.C. §922(d)(9) states the following, in part: (d) It shall be unlawful for any person to sell . . . any firearm or ammunition to any person knowing or having reasonable cause to believe that such person- . . . (9) has been convicted in any court of a misdemeanor crime of domestic violence. 18 U.S.C. §922(d)(9).

3. 18 U.S.C. §922(g)(9) states the following, in part: (d) It shall be unlawful for any person- . . . 9) who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport . . . or possess . . . any firearm or ammunition; or to receive any firearm or ammunition . . . U.S.C. §922(g)(9).

4. 18 U.S.C. §921(33)(A) defines “misdemeanor crime of domestic violence.” However, “a person shall not be considered to have been convicted of such an offense for purposes of this chapter” unless - The person was represented by counsel in the case, or knowingly and intelligently waived the right of counsel in the case; . . . U.S.C. §921(33)(B)(i)(I).

5. A.A.C. R13-9-111(E)(3) states the following, in part: E. The Department may suspend or revoke a permit . . . if the permittee . . . . . . 3. Provides false, incomplete, or misleading information to the Department. See A.A.C. R13-9-111(E)(3).

6. A.A.C. R13-9-113 states the following, in part: A. The Department shall grant a hearing to an individual . . . filing a timely application for a hearing under R13-9-112(B). B. The Department shall notify the requester at least 20 calendar days before the hearing date. The notice shall include: . . . 3. Reference to the particular sections of the statutes and rules involved; and 4. A statement of issues or matters involved.

See A.A.C. R13-9-113(A) & (B). CONCLUSIONS OF LAW

1. The Department has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). It "is evidence which is 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). Failure to Disclose

2. The Department argued that the Respondent’s Concealed Weapon Permit should be suspended because the Respondent failed to disclose his misdemeanor conviction on his Application. See A.A.C. R13-9-111(E)(3). However, the Respondent argued that he did not have proper notice that his permit was being suspended pursuant to R13-9-111(E)(3). The Respondent argued that he was not aware of this alleged violation (i.e., the failure to disclose his misdemeanor conviction on his Application) until the day of the hearing in this matter. Accordingly, the Respondent argued that the Notice of Hearing in this matter does not satisfy the requirements of A.C.C. R13-9-113(B). The undersigned Administrative Law Judge concludes that the Respondent did not have proper notice that his permit was being suspended pursuant to A.A.C. R13-9-111(E)(3). Due process mandates that the Department must follow the notice requirements set forth in A.A.C. R13- 9-113(B).

Misdemeanor Crime

3. The Department next argued that federal law mandates that a firearm cannot be carried by a person convicted of a misdemeanor crime of domestic violence. 18 U.S.C. §922(d)(9) & (g)(9). The Department further argued that the Respondent is a “prohibited possessor” in Arizona because he cannot carry a firearm under federal law. Accordingly, the Department argued that the Respondent’s Concealed Weapon Permit must be suspended.

4. The Respondent argued that he was not represented by counsel during his trial in 1990. The Respondent further argued that he never waived his right to counsel in 1990. Accordingly, the Respondent argued that federal law expressly excludes his 1990 misdemeanor conviction from the definition of “misdemeanor crime of domestic violence”. See 18 U.S.C. §921(33)(B)(i)(I).

5. The Department has presented no evidence rebutting the Respondent’s statements that he was not represented by counsel at his 1990 trial and that he did not waive his right to counsel at this trial. Therefore, the undersigned Administrative Law Judge concludes that the Respondent’s 1990 misdemeanor conviction is excluded from the definition of “misdemeanor crime of domestic violence” for purposes of 18 U.S.C. §922(d)(9) & (g)(9). Accordingly, the undersigned Administrative Law Judge concludes that the Respondent is not a “prohibited possessor” under Arizona law.

6. Based upon the foregoing, the undersigned Administrative Law Judge concludes that grounds do not exist to suspend the Respondent’s Concealed Weapon Permit pursuant to 18 U.S.C. §922 and A.R.S. §13-3112. However, the Department may attempt to suspend the Respondent’s permit pursuant to A.A.C. R13-9-111(E)(3) for the failure of the Respondent to disclose his misdemeanor conviction on the Application. The Department must provide proper notice pursuant to A.A.C. R13-9-113(B).

RECOMMENDED DECISION Based upon the foregoing, the undersigned Administrative Law Judge recommends that the Department’s decision to suspend the Respondent’s Concealed Weapon Permit Number 25468312 be reversed.

Done this day, March 27, 2000.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of March, 2000, to:

Dennis A. Garrett Department of Public Safety - Concealed Weapons Permit Unit ATTN: Sgt. W.A. Whalen 2102 West Encanto Boulevard Phoenix, AZ 85009

By ___________________________

----------------------- [1] The status of the denial of the Respondent’s Application is not clear from the record. It can only be assumed that the Respondent’s Application was approved at a later date prior to the suspension. [2] On December 29, 1999, the Respondent’s permit was revoked for failing to timely return his permit. However, this issue is not before this Administrative Law Judge.

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