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In re Application of De Fazio

July 16, 2008


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

Per curiam.


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 ...

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