June 19, 2013
IN THE MATTER OF THE APPLICATION OF SCOTT BOARDMAN TO APPEAL THE DENIAL OF A FIREARMS PURCHASER ID CARD.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 19, 2013
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. G-04-12.
Jacob & Chiarello, LLC, attorneys for appellant Scott Boardman (Joseph M. Chiarello, on the briefs).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent State of New Jersey (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
Before Judges Alvarez, Waugh and St. John.
Scott Boardman appeals from the April 30, 2012 Law Division order denying his application for a duplicate firearms purchaser identification card (FPIC). See N.J.S.A. 2C:58-3. Boardman had moved to a different address since obtaining the initial FPIC, and lost his card. We affirm.
At the hearing to review the denial of his FPIC conducted at Boardman's request, Lindenwold Police Chief Thomas Brennan testified that Boardman disclosed on his application that he was an alcoholic. Boardman included with the form a handwritten prescription pad page from David Neidorf, M.D., stating: "To whom it may concern, this [patient] has a history of alcohol abuse in the past but has been abstaining for many years. His labwork shows NORMAL liver function. He is cleared medically for a gun permit."
Brennan also testified that John Dinning, Boardman's first reference, responded to the questionnaire that he had known Boardman since 1957, and that he was an alcoholic. Jim Farrell, his second reference, responded that he had known Boardman for two years, and answered the question whether Boardman was an alcoholic in the negative.
Brennan further testified that Boardman had been convicted of driving while intoxicated in 1974, 1978, and 2010. The incident which led to his conviction in March 2010, occurred in December 2009.
Brennan, who coincidentally was one of the responding officers, testified that on April 14, 2010, while Boardman was serving the six-month jail sentence imposed on the 2010 DWI conviction, the police were called to his home because of a report that Boardman's roommate, James Phillips, was despondent and threatening to harm himself. When the police arrived, they were denied entry to the home but heard a voice saying that the speaker was "fine." An officer cracked the front door open and saw Phillips sitting in a chair, holding a gun under his chin, surrounded by weaponry and empty alcohol containers. The police immediately retreated and heard a single gunshot as Phillips killed himself.
According to Brennan, when he entered Boardman's home, he saw the house in a "pretty serious state of disarray." A shotgun and rifle were found at Phillips's feet, along with a large kitchen knife, empty beer cans and cases, and a bottle of liquor on a nightstand. Brennan recalled that fourteen shotguns and rifles, as well as the handgun Phillips used to commit suicide, were taken from the scene. None of the weapons were secured in gun safes or had trigger locks or other safety devices.
Sean Williams, who had been with the Lindenwold Police Department for nineteen years before joining the Camden County Sheriff's Department, also testified about the incident. He was responsible for securing the fifteen weapons and ammunition found scattered throughout the house, including the attic. Williams said some of the weapons were "very dirty, unkempt, things of that nature." He verified that none had trigger devices or other security devices. His "impression" was "that the person [who] owned the home was a hoarder because there w[ere] numerous items — clothing, the amm[unition], full alcohol containers, used alcohol containers, dirty dishes . . . some type of pet food that was strewn about." Williams found ammunition scattered throughout the house for the shotguns and the handgun.
Boardman testified that he had not consumed alcohol for thirty years prior to drinking on the one occasion resulting in the December 2009 DWI charge. As he explained it, on the night in question "I went out on a date and had a good time." Boardman also said that when he was incarcerated in 2010, he left his house "orderly enough, " and his weapons were in padlocked gun cases under his bed.
During the hearing, however, neither officer mentioned, nor were they asked, about whether there were empty gun cases in the house. Brennan introduced several photographs taken of the incident scene, and we see no mention in the record of any empty gun cases depicted in them.
Boardman testified the keys to the gun cases were in a jewelry box on his dresser and that he later found the keys in Phillips's bedroom. He estimated that there may have been a couple of unsecured shotguns in the attic and one inoperable fourteen-gauge shotgun in the basement, but he insisted all the other weapons were in cases. Boardman also maintained that the steps leading to the attic, where police found open boxes of ammunition, had only some fishing poles and videotapes on them at the time he was jailed.
Boardman described Phillips, who had lived with him for approximately a year, as a retired Navy recruiter who, to his knowledge, never drank, and spent most of the day watching sports. Boardman described himself as a recovering alcoholic, who had attended two Alcoholics Anonymous (AA) meetings per week since approximately 1979 or 1980.
Boardman's attorney attempted to introduce a letter from Neidorf written after the original FPIC application. The prosecutor objected, arguing that it had not been submitted during the application process. The judge agreed, reasoning that the police chief bore the burden of proving by a preponderance of the evidence that good cause existed for denial, and that because the letter was not available to him at the time of decision, it should not be admitted for purposes of judicial review.
At the close of the hearing, the judge rejected Boardman's application. He observed that the doctor's prescription pad note was not the certification required by the statute, N.J.S.A. 2C:58-3(c)(3). It did not indicate that Boardman's disability would not prove to be an issue with his "handling of firearms." The judge opined that "[w]hen you're an alcoholic, this is not something that is cured. You're either an alcoholic or recovering alcoholic, but the problem is still there." Relying on Boardman's DUI convictions, his application, and Brennan's testimony, whom he found to be a credible witness, the judge held that he was "satisfied by clear and convincing evidence" that good cause existed to deny the FPIC.
Boardman now raises the following points for our consideration:
1. The Trial Court erred in finding Appellant is an alcoholic.
A. The Court erred in taking judicial notice of Appellant being an alcoholic.
I. [N.J.S.A.] 2:2[B]-8 defines alcoholic.
II. The Trial Court received no evidence of the Appellant not being a recovering alcoholic.
III. Lieutenant Brennan of the Lindenwold Police could not explain what it is to be dependent on alcohol.
B. The Trial Court erred in not considering the note or report of Dr. Neidorf.
I. The Court erred in holding the doctor's note did not meet the statutory standard.
II. The Court erred in failing to consider the report of April 19, 2012.
2. The Trial Court erred in finding that being an alcoholic prohibits Appellant from possessing a New Jersey Firearm Identification Card or Firearms.
A. Being a recovering alcoholic does not prohibit Appellant from possessing a firearm identification card or firearms.
I. Appellant is not a habitual drunkard.
II. Appellant's doctor stated that he was medically cleared for a gun permit.
III. There is no evidence that Appellant is presently drinking.
B. Alcoholism cannot bar issuance of a New Jersey Firearm Identification Card under [N.J.S.A.] 26:2[B]-21.
A Law Division judge conducts a de novo review of the chief of police's decision regarding the denial of an FPIC. Weston v. State, 60 N.J. 36, 45 (1972) ("De novo in this context contemplates introduction of relevant and material testimony and the application of an independent judgment to the testimony by the reviewing court. Such a judicial review compensates constitutionally for procedural deficiencies before the administrative official."); In re Osworth, 365 N.J.Super. 72, 77 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004); In re Boyadjian, 362 N.J.Super. 463, 475-76 (App. Div.), certif. denied, 178 N.J. 250 (2003). Furthermore,
[r]eview in the County Court of the Police Chief's action should follow a pattern consistent with the direction of the Legislature as to the right of the citizen to receive a firearms purchaser identification card unless good cause appears for the denial thereof within the reasons specified for disqualification under N.J.S.A. 2A:151-33. Accordingly . . . the existence of good cause for the denial must represent a burden to be carried by the Police Chief, and to be established by a fair preponderance of the evidence.
[Weston, supra, 60 N.J. at 46.]
N.J.S.A. 2A:151-33 is the predecessor to N.J.S.A. 2C:58-3.
Boardman disputes the trial judge's conclusion that he was an alcoholic, asserting that he does not meet the definition found in N.J.S.A. 26:2B-8:
any person who chronically, habitually or periodically consumes alcoholic beverages to the extent that:
a. such use substantially injures his health or substantially interferes with his social or economic functioning in the community on a continuing basis, or
b. he has lost the power of self-control with respect to the use of such beverages.
We note, however, that the statute is included in the section of our laws titled "Rehabilitation of Alcoholics" and not the relevant "Licensing of Firearms" chapter, N.J.S.A. 2C:58-1 to - 19.
Boardman also contends that the judge should not have reached the conclusion that he was an alcoholic in the absence of expert testimony. Even if the judge had a basis for such a finding, he argues nothing indicated that he was not "recovered, " and that therefore, the condition should not have prevented the issuance of a duplicate FPIC. When asked, Brennan said he had no "clinical knowledge" regarding the meaning of alcohol dependency. Therefore, Boardman reasons, Brennan's determination is insufficient to deny him a duplicate FPIC.
Boardman urges instead that Neidorf's prescription pad note proved he was not an alcoholic, as it was the only material evidence on the subject, and that in any event, the court should have admitted Neidorf's April 19, 2012 letter. Because his testimony was unrefuted that since 1978 he consumed alcohol on only one occasion, in December 2009, Boardman disputes the finding that he was an alcoholic. But the judge found Brennan to be the credible witness, not Boardman.
The judge correctly understood the statute to mean a person's alcoholism may not be a disability on proper certification by a medical doctor or psychiatrist. See N.J.S.A. 2C:58-3(c)(3). In this case, however, no certification was supplied.
Moreover, the doctor was apparently not aware of the 2009 DWI because he was under the misapprehension that Boardman had not consumed alcohol "for many years." The time lapse between the December 2009 DWI stop and the date of the note, June 16, 2011, was not "many years." Hence we agree with the Law Division judge that the note was entitled to little weight, based upon the doctor's lack of knowledge of an important fact that conflicted with his conclusion in addition to the fact it was an opinion rendered informally, not in the requisite certification.
Furthermore, Neidorf's note only stated that he was medically cleared to possess firearms. Medical clearance is only a portion of the information which must be supplied in order to obtain an FPIC.
Although not himself an expert, Boardman's own assessment of his present condition was revealed on the application. Given his own description of himself as an alcoholic, his prior DWIs, especially the one in 2009 after thirty years of apparent sobriety, and the opinion of one of his references, the judge's conclusion that Boardman was still an alcoholic within the meaning of N.J.S.A. 2C:58-3(c)(3) was fully justified. Indeed, this is one of those rare instances where expert proof that an individual is an alcoholic is not necessary for a fair determination. See State v. Freysinger, 311 N.J.Super. 536, 540 (Ch. Div. 1997) (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 597-99 (1988)), aff'd, 311 N.J.Super. 509 (App. Div. 1998).
Boardman also argues that denial of the duplicate FPIC is discriminatory because his alcoholism is a disability. Certainly, N.J.S.A. 26:2B-21 protects alcoholics from being denied constitutional entitlements, and alcoholism is included in the Law Against Discrimination, N.J.S.A. 10:5-1 to -4, see Clowes, supra, 109 N.J. at 593-94. Nonetheless, alcoholism is an exception to the right to obtain an FPIC specifically enumerated in the statute, as are other disabilities the Legislature has determined make it unsafe for an applicant to handle a firearm. See N.J.S.A. 2C:58-3(c). Our Legislature has decided that alcoholism should bar possession of an FPIC, even though, in virtually every other context, it is a disability that does not prevent him from enjoying rights and privileges in the same manner as any other citizen. See N.J.S.A. 2C:58-3(c)(3); Headen v. Jersey City Bd. of Educ., 212 N.J. 437, 449 (2012) ("We presume that the Legislature was aware of its own enactments and did not intend to create intentional conflict between the two statutory schemes without expressly overriding provisions."). It is the unique nature of gun ownership, and the public's interest in the safe handling of firearms, which explains the statutory impediments to the issuance of FPICs.
Nor do we agree that the trial court's exclusion of the April 19, 2012 letter from Neidorf was improper. It was not the certification permitted by the statute. It was a hearsay document which was properly excluded from consideration. See N.J.R.E. 802; Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 376-77 (2007). And its weight failed in the face of Boardman's DWI convictions, his own opinion of his status, his references, and the incident involving Phillips's suicide.
Boardman asserts that only habitual drunkards and active alcoholics should be precluded from possessing FPICs, that the trial judge did not properly weigh the evidence, and that because two of his three DWI convictions were from thirty years ago, the trial judge's decision was based on pure speculation. However the key issue is not whether Boardman is a habitual drunkard, but rather whether his alcoholism, established beyond any doubt by his 2009 DWI conviction despite thirty years of regular attendance at AA meetings, should act as a statutory impediment. In answering that question, Brennan had good cause to deny Boardman's application and the Law Division judge to affirm that decision on de novo review. We are satisfied the evidence was more than compelling.