On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County.
Before Judges Newman, Axelrad and Holston, Jr.
The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2005
The issue before us is whether the failure to account for three firearms is sufficient evidence of"any danger to the public safety and welfare" under N.J.S.A. 2C:58-2 to justify denial of renewal of a New Jersey retail firearms dealer's license.
Sportsman's Rendezvous ("Sportsman") appeals from the denial of its application for renewal of its New Jersey retail firearms dealer's license. Pursuant to the recommendation of the investigating agency, based on a finding of unaccounted-for firearms and inadequate recordkeeping procedures and security at Sportsman's premises, the Law Division judge denied the application. Following an appeal of the summary denial, the Law Division judge conducted a plenary hearing in a de novo proceeding. The court determined the State had sustained its burden of proof that the applicant could not engage in business as a retail firearms dealer without"any danger to the public safety and welfare" under the provisions of N.J.S.A. 2C:58-2a. Accordingly, the court denied Sportsman's license to sell firearms and on August 26, 2003 entered the order which is the subject of this appeal.
On appeal, Sportsman contends the court erred in revoking its license based on a finding of only three unaccounted-for firearms, used the wrong standard in reaching its conclusion, shifted the burden of proof, and erred in deciding both the initial application and the appeal. Sportsman also contends the court's denial of its renewal application violates the doctrine of fundamental fairness. We are not persuaded by any of these arguments and affirm.
The following is a summary of the testimony and documentary evidence before the court. Sportsman has been a New Jersey firearms dealership for over ten years, continually possessing both federal and state licenses since it opened for business in l988. The store has been located at Sportsman's Plaza, 174 Route 31 in Flemington, since 1995. The business has always been subject to periodic inspections by both the New Jersey State Police and the Federal Bureau of Alcohol, Tobacco and Firearms (BATF). Between November 2002 and January 30, 2003, BATF agent Renee Repasky inspected the premises and audited Sportsman's books. On January 30, 2003, she notified Patrolman J.R. Canonica of the Raritan Township Police Department that Sportsman could not account for eighteen firearms in its inventory. She advised Canonica she did not believe the missing firearms involved a criminal issue, but likely resulted from clerical and record keeping errors. BATF apparently issued a written warning and Canonica filed a police information report.
On March 6, 2003, in accordance with N.J.S.A. 2C:58-2, Sportsman's owner, Gustavio Riccioni, submitted an application for renewal of his New Jersey firearms dealer license number 3250 which was due to expire on May 25, 2003.*fn1 On March 26, 2003, Detective John Soulias of the Firearms Investigation Unit of the State Police conducted a cursory inspection of Sportsman's premises. Solulias noted in his report that the firearms acquisition and disposition ledgers and ammunition sales had not been properly recorded, referencing the BATF inspection. The manager, David Riccioni ("Riccioni"), presented him with eleven federal form #4473's to resolve the disposition of eleven of the eighteen missing firearms.
The next day, Soulias and Sergeant Arsenio Gonzalez conducted an inspection of the entire firearms inventory, comparing every weapon on the rack with the acquisition and disposition ledger. They discovered that eleven additional firearms were missing -- three black powder guns and eight BB rifles. These items were not considered to be weapons under federal guidelines and were thus not noted in the BATF audit. Additionally, Riccioni was advised that security at the store did not meet requisite standards. Specifically, the long guns were not secured on the shelf with cable wire and the handguns were not secured with a wire cable or placed in a steel safe at night to prevent them from being stolen, and there were no bars on the windows or doors of the premises. These security procedures were not contained in a written rule; they were a response by the Firearms Investigation Unit to an incident occurring elsewhere in l995 or l996 to prevent an intruder from breaking a window and stealing weapons.*fn2 Riccioni indicated this was his first notice of these security requirements. He was not given a deadline for upgrade of his security system.
According to Soulias, the security problem had not been addressed as of his return visit on April 8, 2003, although the security improvements were completed and approved by a subsequent inspection on May 25, 2003. Soulias acknowledged that Riccioni was cooperative during their inspections. In fact, during the April visit, Riccioni advised Soulias that he had found in his files a permit for a handgun sold on August 4, 1995, which had been completed but never forwarded to the State Police or local law enforcement as required by law. Soulias took the record for filing purposes. At that time, Riccioni was able to locate the completed documentation for thirteen of the eighteen missing firearms noted in the initial BATF inspection, and all eleven missing rifles noted in the State Police inspection. According to Soulias, subsequent document searches by Riccioni further reduced the number of unaccounted-for firearms to four: a Remington 12-gauge shotgun, a Remington 7mm rifle, a Mossberg 12-gauge shotgun, and a Ruger 22-caliber rifle.*fn3 Riccioni testified that the Ruger had also been returned to the supplier but acknowledged that he was unable to locate any paper trail for the other three firearms. Riccioni believed, in all likelihood, the three weapons had been sold and proper records had been maintained and misfiled. However, Riccioni was unable to locate any documentation of the disposition of these three firearms as of the plenary hearing.
Soulias' testimony of Sportsman's recordkeeping was as follows:
[Sportsman's disposition records] were really, for lack of a better term, they were really a mess. There was no structure, no organization on how he maintained his records. I think that's why this situation escalated to where it did. His inability to maintain his records indicated why his firearms were in such a disarray, where he couldn't account for the weapons.....
With Mr. Riccioni, when you say, sir, I need to see this document [of a firearm transaction], he had no idea where the document was, he had no idea what file it was in, it was... just in disarray, how he maintains his records, or the inability of how he maintained them.....
[I]n this case, there was no method on how he maintained the records.
Q: Did he write on the permits where it was ...