New York Criminal Lawyer Blog
On 21 August 2006, petitioner applied for a premises residence handgun license. In the application, petitioner conceded that he had been arrested, and attached a copy of his plea agreement and a notarized explanation regarding the circumstances underlying the arrest.
On 20 March 2007, respondent as the Statutorily Designated Handgun Licensing Officer and as the Police Commissioner of the City of New York advised petitioner that the application had been disapproved for the following reasons: was issued a summons for disorderly conduct; was issued a traffic ticket for improper cell phone use; was arrested for speeding and driving with a suspended license; license was suspended as a result of receiving 3 speeding tickets within an 18 month period. A New York Sex Crimes Lawyer said the said circumstances cast grave doubt on the petitioner’s moral character in obeying the rules and regulations of a government agency.
Petitioner timely appealed the disapproval to the Director of the License Division but was denied. It found that petitioner’s: arrest history, history of moving violations and the history of domestic violence incidents made him an unacceptable candidate for a handgun license.
Petitioner subsequently commenced this special proceeding to annul and vacate respondent’s denial on grounds that respondent failed to weigh the positive aspects of his lifestyle and background against the negative, failed to recognize that Petitioner’s violations of the law were neither serious nor intentional, and held Petitioner to standards higher than those applied to other handgun license applicants; that the denial was arbitrary, capricious and an abuse of discretion. A New York Sex Crimes Lawyer said the petitioner seeks an order directing respondent to issue Petitioner the license or, in the alternative, remanding this matter back to respondent for further investigation into Petitioner’s background and character, and an administrative hearing.
In opposition, respondent contends that the denial is rationally based in law and fact and that Petitioner’s repeated violations, which include misdemeanor violations, suggest a pattern of disregard for duly enacted and enforced governmental rules and regulations and run afoul of the good moral character required for the issuance of a pistol license.
A Nassau Sex Crimes Lawyer asked, was the denial of license proper?
In an Article 78 proceeding, the scope of the court’s review is limited to whether the administrative agency’s determination is arbitrary and capricious or is supported by a rational basis in the record. In addition, the construction given statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld.
It is well settled that “possession of a handgun license is a privilege rather than a right”. The privilege is subject to reasonable regulation. Further, the police commissioner is vested with broad discretion, and has been granted “extraordinary power,” in granting licenses and regulating the possession of firearms within New York City.
In petitioning to vacate the denial of the handgun license application, Petitioner bears the burden of showing that there is “no good cause” for the denial. However, in the instant case, petitioner has failed to do so.
Petitioner seeks a premises handgun license. This type of license is restricted and is issued only for a specific business or residence location. A Queens Sex Crimes Lawyer said it also permits the holder to transport an unloaded handgun directly to and from an authorized small arms range. To qualify for a premises license, the applicant must be of good moral character and be an applicant concerning whom no good cause exists for the denial of such license.
The administrative record demonstrates the existence of sufficient good cause to deny Petitioner’s application.
The record includes Petitioner’s repeated violations of the law and an arrest that, as respondent correctly found, collectively suggest a pattern of disregard of duly enacted and enforced rules and regulations of a governmental agency and cast doubt on Petitioner’s good moral character.
Petitioner had several misdemeanor violations; and traffic violations. Petitioner does not deny the basis for these charges, but instead offers excuses for his behavior. The Court notes that many of these violations were either dismissed or resolved on pleas to lesser charges and by payment of a fine. However, respondent is not barred from considering the circumstances surrounding the incidents or from noting an overall pattern of disregard for governmental rules and regulations.
Contrary to Petitioner’s contention, his full-time employment in the family business and enrollment as a part-time college student, while laudable, do not render respondent’s denial of the handgun license application arbitrary or capricious.
Respondent, in its discretion, may refuse to issue or may revoke a handgun license even where arrest charges were dismissed and the Petitioner has a commendable career or holds other licenses that were not revoked.
Moreover, on the issue that handgun licenses have been issued to applicants with criminal records more serious than the petitioner’s record, the individuals referred to by demonstrate that their last negative contact with the law occurred three and four years prior to their submission of handgun license applications and that they had each taken responsibility for, and reformed, their previous negative behavior. By contrast, Petitioner’s most serious contacts, including his arrest for driving without a license, occurred within six months before his submission of the written application. Petitioner’s record thus evidences a pattern of disregard of governmental rules and regulations existing close in time to the submission date. Given this pattern of behavior, respondent’s denial of Petitioner’s application is rationally based in law and on the facts.
Next, petitioner contends that, to the extent that respondent’s denial after appeal is based on evidence of domestic violence incidents in Petitioner’s home that did not involve Petitioner; the denial is arbitrary, capricious and violated his due process rights.
Even assuming that respondent’s reference to domestic violence incidents in Petitioner’s home was not appropriate and does not form a rational basis for the denial, the petition would still be denied. Respondent’s denial is primarily based on Petitioner’s own behavior and contact with law enforcement agencies.
Therefore, while remand to an administrative agency for reconsideration of a license application is an appropriate remedy where the cited basis for the denial is not sufficient, remand is not necessary here, where a valid basis does exist and was cited by respondent.
The reference to domestic violence did not violate Petitioner’s due process rights. In general, procedural due process rights require that a deprivation of life, liberty or property be preceded by notice and an opportunity to be heard. Notice and an opportunity to be heard are mandated only where an individual has been deprived of a liberty or property interest subject to due process protection, i.e., one in which the individual has a legitimate claim of entitlement.
However, a handgun license is a privilege, rather than a right. Therefore, a license applicant or holder is entitled to reasonable notice and a fair opportunity to be heard, in accordance with the applicable statutes, with respect to the reasons for the denial or revocation. The record below amply demonstrates that Petitioner received reasonable notice by respondent’s written specific and concisely stated reasons for the denial and an opportunity to be heard.
Accordingly, the court finds that the denial was proper.
For more information on how to deal with situations similar to the above mentioned case, if you find yourself to be in one, contact Stephen Bilkis & Associates. Consult with a New York City Domestic Violence Attorney from our firm. With our free consultation, you will know more about the legal remedies available to you. You may also speak with a New York City Criminal Attorney from our firm to discuss the extent of criminal prosecutions possibly attached with your case. Call us and know your rights.