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In re Application of De Fazio

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 16, 2008

IN RE THE APPLICATION OF EDWARD J. DE FAZIO, PROSECUTOR OF HUDSON COUNTY (1) TO REVOKE NEW JERSEY FIREARMS RETAIL LICENSE #3906 FOR DAVID J. MURRAY T/A DAVID'S SPORTING GOODS

On appeal from the Superior Court of New Jersey, Law Division, Hudson County.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 10, 2008

Before Judges Lintner and Parrillo.

David Murray, trading as David's Sporting Goods (appellant), appeals from a September 20, 2007 order of the Law Division revoking his retail firearms dealer's license. We affirm.

This matter was initiated by the Hudson County Prosecutor's Office, the investigating agency that moved to revoke appellant's New Jersey firearms retail license on June 12, 2007 for gross negligence in operating his retail firearms store. Several days earlier, on June 10, 2007, two individuals entered appellant's retail firearms store in downtown Jersey City.

While one of them asked for Murray's assistance in order to distract him, the other reached over the glass case, slid open the unlocked door and took out a starter pistol. When he noticed this, Murray told the man to put the pistol back and without then locking the display case, returned to the "customer" he had been assisting. Undeterred, the other man again reached over the case, grabbed a silver-colored Walther PPK .380 semi-automatic handgun, placed it in his pocket and walked out of the store. The first individual then ran out of the store. When he realized the gun was missing, Murray left the store unlocked and unattended, except for a friend he asked to stand by the door. Murray drove around looking for the duo, but was unsuccessful. He returned to the store and called 9-1-1.*fn1

An investigation of the incident was conducted by the State Police Firearms Investigation Unit. At the same time, Detective Donald Mundorf performed a regulatory inspection that uncovered numerous record-keeping mistakes as well as accounting violations. Appellant's acquisition and disposition ledger was not maintained in accordance with applicable rules. Appellant failed to enter the transfer of guns. There were missing and incorrect dates of transfer completed, missing certification dates and types of firearms transferred. Appellant was also not recording the correct information in the ammunition ledger including the address of purchaser, identification used, caliber or gauge of guns and dates of birth of purchasers. Detective Mundorff concluded that appellant was in violation of the New Jersey Retail Firearms statute, N.J.S.A. 2C:58-2 to -2.6, and Administrative Code, N.J.A.C. 13:54-3.14.

One month prior to this incident, appellant was the subject of another proceeding initiated by the Hudson County Prosecutor's Office on May 8, 2007, seeking to revoke his New Jersey Permit to Carry a Handgun and New Jersey Firearms Purchaser Identification Card. This action stemmed from a May 3, 2007 street encounter in which appellant, claiming he was attacked and assaulted, fired a black .357 magnum into the air three times. Consequently, his gun carry permit was revoked on June 14, 2007 and further action on his purchaser identification card was stayed pending grand jury disposition of the resulting criminal matter.*fn2

Following the August 21, 2007 hearing, the Law Division judge granted the prosecutor's motion to revoke appellant's retail firearms dealer's license. The judge reasoned:

In this case, we are unfortunately placed in a situation where we are not anxious about the possibility of missing guns in the wrong hands, but rather we know this had been the case. Mr. Murray's . . . flagrant, irresponsible actions and lack of security allowed a firearm to be stolen from his store. In addition, upon inspection of his premises after the incident, we note that Mr. Murray was found to be in violation of several of his accounting and record keeping duties.

We recognize but are not persuaded by the fact that these shortcomings were subsequently remedied and that the firearm was eventually recovered from the perpetrator of the robbery. Any actions subsequently taken by the applicant to mitigate the danger caused by his actions are irrelevant to this action.

The fact remains that Mr. Murray in failing to lock the case or otherwise secure the handguns in the display case after seeing the perpetrator reach into the case to grab the handgun moments earlier acted with extreme indifference to the safety of our community.

As recognized by the Appellate Division, the State of New Jersey is very concerned with ensuring the safety of its residents and effectuates . . . this public policy through the implementation of strict regulations upon not only retailers of firearms but also those who are merely permitted to purchase or carry a firearm. This type of lackadaisical security on the part of the retail dealer is repugnant to our public policy and unacceptable in a self-regulated industry that concerns the distribution of deadly weapons.

I would note that Mr. Murray has shown a severe lack of judgment in dealing with firearms in allowing that situation to escalate and then the extremely dangerous response that terminated it. The recklessly [sic] indifference to safety displayed by Mr. Murray not only in his own personal use of the firearm but also while operating his retail establishment are unacceptable. Certainly these behaviors constitute the potential . . . for danger contemplated and prohibited by the . . . statute and case law.

On appeal, appellant argues:

I. THE COURT BELOW ERRED IN REVOKING MR. MURRAY'S NEW JERSEY RETAIL FIREARMS DEALER'S LICENSE AS MR. MURRAY HAD, BY THE TESTIMONY OF THE STATE'S OWN WITNESS, PROPERLY MET EVERY LEGAL REQUIREMENT WITH WHICH A DEALER MUST COMPLY.

II. THE COURT USED IMPROPER CRITERIA TO MAKE ITS DECISION.

A. THE COURT MISREAD THE STATUTE IN ORDER TO FIND THAT REVOCATION WAS MANDATORY.

B. THE COURT USED FACTORS UNRELATED TO MR. MURRAY'S RETAIL FIREARM BUSINESS IN ITS DECISION.

We find no merit to these arguments. R. 2:11-3(e)(1)(A), (E). We affirm substantially for the reasons stated by Judge Theemling in his thoughtful oral opinion of September 14, 2007.

We add only the following comments.

N.J.S.A. 2C:58-2 establishes the conditions for issuance of a retail firearms license. Some of these conditions are designed to ensure the ability to fully track firearms sold by recording make, model, serial numbers, names, dates and descriptions. Thus, one of the conditions is set forth in N.J.S.A. 2C:58-2(a)(6), which provides in pertinent part:

The dealer shall keep a true record of every handgun sold, given or otherwise delivered or disposed of, in accordance with the provisions of subsections b. through e. of this section . . . .

See also N.J.A.C. 13:54-3.9(a)(6). More specifically, N.J.S.A.

2C:58-2(b) states:

Every person engaged in the retail business of selling, leasing or otherwise transferring a handgun, as a retail dealer or otherwise, shall keep a register in which shall be entered the time of the sale, lease or other transfer, the date thereof, the name, age, date of birth, complexion, occupation, residence and a physical description including distinguishing physical characteristics, if any, of the purchaser, lessee or transferee, the name and permanent home address of the person making the sale, lease or transfer, the place of the transaction, and the make, model, manufacturer's number, caliber and other marks of identification on such handgun and such other information as the superintendent shall deem necessary for the proper enforcement of this chapter.

The breach of any of these conditions "shall" subject the license holder to revocation. N.J.S.A. 2C:58-2(a). See also N.J.A.C. 13:54-3.9(a).

In addition, under N.J.S.A. 2C:58-2(a), to qualify for licensure, a retail dealer of firearms must be able to engage in the business "without any danger to the public safety, health and welfare." See also N.J.A.C. 13:54-2.10(a); N.J.A.C. 13:54- 1.5(a). We elaborated on this condition in In re Sportman's Rendezvous Retail Firearms Dealer's License, 374 N.J. Super. 565, 578 (App. Div. 2005):

It is not acceptable for the applicant to demonstrate it can engage in the business of retailing firearms with little danger, some danger, or even minor danger; the standard is that it must operate without any danger. We find completely unavailing Sportman's argument that because the three missing firearms have not turned up stolen, been linked to a crime, or recovered under dubious circumstances, they do not pose a danger to the public. "Any" danger includes potential danger.

Here, we are satisfied that appellant's record-keeping violations and gross negligence in the operation of his business on June 10, 2007 are disqualifying events evidencing a potential danger to the public and therefore warranting revocation of his retail firearms dealer's license. And the fact that the regulatory deficiencies may have since been remedied and the stolen gun recovered does not support a contrary conclusion. We rejected a similar argument in In re Sportman's Rendezvous Retail Firearms Dealer's License, supra, 374 N.J. Super. at 579:

Nor does the court's denial of Sportsman's renewal application violate the doctrine of fundamental fairness. The dispositive facts are not changed because [appellant] was forthcoming and cooperated with the authorities in their inspections of his premises and records, that he continued to search for missing records after the conclusion of the inspections, that he improved his record keeping with the lessons he learned, or that he promptly improved the security of his establishment as directed by the firearms investigators. As [the detective] testified, the basis for recommending denial of the renewal application had nothing to do with the character or integrity of [appellant]. Notwithstanding [appellant's] cooperation and subsequent security improvements, the way the business was conducted which resulted in three unaccounted for firearms, was what presented a danger to the public and was fatal to the renewal application.

We also discern no error in the Law Division's consideration of the precedent incident on May 3, 2007. Indeed, both the statute and administrative code condition retail firearms dealer licensure on continuing qualification to hold a permit to purchase a handgun or a firearm purchaser identification card. Thus, according to N.J.S.A. 2C:58-2(a):

No license shall be granted to any retail dealer under the age of 21 years or to any employee of a retail dealer under the age of 18 or to any person who could not qualify to obtain a permit to purchase a handgun or firearms purchaser identification card, or to any corporation, partnership or other business organization in which the actual or equitable controlling interest is held or possessed by such an ineligible person.

See also N.J.A.C. 13:54-3.9(a)(7). Certainly, under the statute, the May 3, 2007 incident is relevant to a determination of appellant's continuing qualification to hold a firearms purchaser identification card, which is, in itself, an essential criteria for eligibility to hold and retain a retail firearms dealer's license. In any event, the relevance of the May 3, 2007 incident, in which appellant fired his gun three times in the air, to his continuing suitability and qualification for a licensure with no tolerance for "any potential danger" is plain and obvious.

Affirmed.


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