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In re Appeal of Denial of Application By Broking for a Permit to Carry a Handgun

November 14, 2005

IN THE MATTER OF THE APPEAL OF DENIAL OF APPLICATION BY RONALD S. BROKING FOR A PERMIT TO CARRY A HANDGUN.


On appeal from the Superior Court of New Jersey, Monmouth County, Law Division, Docket No. GP-2005-02-005.

The opinion of the court was delivered by: Yannotti, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted October 24, 2005

Before Judges Alley, C. S. Fisher and Yannotti.

Ronald S. Broking appeals from an order entered in the Law Division on February 25, 2005, which affirmed a determination of the Superintendent of State Police (Superintendent) denying Broking's application pursuant to N.J.S.A. 2C:39-6(l) for a permit to carry a handgun. We reverse.

The facts are relatively straightforward. Broking was a law enforcement officer and he was a member of the Police and Firemen's Retirement System (PFRS). Broking filed an application in or around January 2004 for accidental disability retirement pursuant to N.J.S.A. 43:16A-7(1). That statute provides that a member of the PFRS may be retired on an "accidental disability retirement allowance," provided that the medical board certifies, after an examination, that the member is permanently and totally disabled as a direct result of a traumatic event occurring during and as a result of the performance of his regular or assigned duties and that such disability was not the result of the member's willful negligence and that such member is mentally or physically incapacitated for the performance of his usual duty and of any other available duty in the department which his employer is willing to assign to him. [Ibid.]

The member's application must be approved by the Board of Trustees (Board) which is vested with authority for the "proper operation" of the PFRS. N.J.S.A. 43:16A-13(1). The Board's regulation provides in pertinent part that, "A member's retirement application becomes effective on the first of the month following receipt of the application unless a future date is requested." N.J.A.C. 17:4-6.1(a).

The Board approved Broking's application on August 9, 2004 and in a letter dated August 10, 2004, advised Broking that his application was approved effective February 1, 2004. On September 12, 2004, Broking filed an application with the Superintendent pursuant to N.J.S.A. 2C:39-6(l)(1) for a permit to carry a handgun.

The Superintendent informed Broking by letter dated January 24, 2005 that his application was denied because Broking retired as of February 1, 2004 and he failed to file the application "within six months after retirement," as required by N.J.S.A. 2C:39-6(1)(1). The letter noted that Broking could apply for a permit to carry a handgun pursuant to N.J.S.A. 2C:58-4, by submitting an application with the chief law enforcement officer of the municipality in which he resides.

Broking appealed the Superintendent's determination to the Superior Court pursuant to N.J.S.A. 2C:39-6(l)(5). The Law Division judge upheld the Superintendent's decision. Ruling from the bench, the judge noted that N.J.S.A. 2C:39-6(1)(1) provides that a retired law enforcement officer "shall" make application in writing "within six months after retirement." The judge determined that the statute did not confer upon the court any discretion to alter the timeframe within which the application must be filed. The judge found that because Broking had not filed the application within six months of the effective date of his retirement on February 1, 2004, his application was untimely.

On this appeal, Broking argues that the six month limitations period in N.J.S.A. 2C:39-6(l)(1) began to run when he was informed that the Board had approved his application for retirement, rather than the February 1, 2004 effective retirement date. Broking contends that, until the Board acted on August 9, 2004, he was still an active member of the PFRS and therefore was not "retired." Broking alternatively argues that, if he is deemed to have retired on February 1, 2004, the deadline for filing the permit application should be tolled until the date when the Board approved his retirement.

Our primary goal in interpreting a statute is to discern and give effect to the legislative intent in light of the language used and the objects sought to be achieved by enactment of the statute. Burns v. Belafsky, 166 N.J. 466, 473 (2001) (citing State v. Hoffman, 149 N.J. 564, 578 (1997)). The search for legislative intent begins with the language of statute. First Resolution Inv. v. Seker, 171 N.J. 502, 511 (2002). "If the statute is clear and unambiguous on its face and admits of only one interpretation, we need delve no deeper than the act's literal terms to divine the Legislature's intent."

State v. Thomas, 166 N.J. 560, 567 (2001)(quoting State v. Butler, 89 N.J. 220, 226 (1982)). However, if the language of the statute is ambiguous, we consider extrinsic sources such as the statutory context in discerning the correct meaning of the statute. Hoffman, supra, 149 N.J. ...


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