Clemons v. Maine Dep't of Pub. Safety

• Court: Superior Court of Maine
• Decided: June 29, 2009
• Docket: SOMap-08-010
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION SOMERSET, ss. DOCKET NO. }\P-:08-0l0 II \ " ,

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'"{c-.. ~,. ~i\ r- l ' :.. :- ~ Wendy fA Robin~':;,. ROBERT CLEMONS, JR., .r~;:·,~ .: .:J ','}eU~:i Petitioner CIeri: ,'1' r:"UJ ,.' ~nt

v. DECISION

MAINE DEPARTMENT OF PUBLIC SAFETY,

Respondent

In troduction

In April 2008, the petitioner applied to the Commissioner of the Department

Public for a permit to carry a non-concealed firearm by a prohibited person pursuant to

the provisions of 15 M.R.S.A. § 393. The Commissioner denied this application on

October 10, 2008. The petitioner filed this 80C appeal in reference to that final action.

Facts

In late April 2008, the petitioner applied for a section 393 permit for hunting

purposes. On his application, he identified a 1986 conviction for rape, class A.

Pursuant to the provisions of section 393, the Commissioner notified law enforcement

officials and the Superior Court of the application, requested additional information

relative to the issuance of the permit, and requested that the recipients respond in

writing within 30 days of receipt of the notice if there any objection to the issuance of

the permit.

The Department of Public Safety received two objections within the 30-day time

period. The Attorney General's Office and the Chief Justice of the Superior Court

responded in writing objecting to the petitioner's request for a permit. 2

Based on the objections received by these entities, the Commissioner denied the

petitioner's application. In her decision, the Commissioner quoted section 393(4) which

indicated that if within 30 days of the sending of the notice, any person so notified

objects in writing to the issuance of the permit, none shall be issued.

The petitioner filed an 80C appeal relative to this final decision by the

Commissioner.

Standard of Review

This appeal is governed by the provisions of Title 15 M.R.S.A. § 393(5) and 5

M.R.S.A. §§ 11001-11008 and M.R. Civ. P. 80. Petitioner bears the burden of

demonstrating that there is no competent evidence in the record to support the

Commissioner's finding. Seider v. Bd. of Examiners of Psychologists, 762 A.2d 551, 555

(Me. 2000).

Discussion

The plain language of the statute and the Law Court's decision in Gonzales v.

Commissioner, Dep't of Public Safety, 665 A.2d 681 (Me. 1995) makes it very clear that the

Commissioner has no discretion and is required to deny the permit in light of the

objections. There is no requirement that the Commissioner review the reasons for the

objections; the statute simply states that if an objection is received from any of the

entities then no permit shall be issued.

The court finds that the Gonzales case is controlling and for this reason DENIES

the petitioner's 80C appeal and affirms the decision of the Commissioner of Public

Safety denying the petitioner's request for a permit for a non-concealed firearm. . x ' / " " " _ . " ' - '~-')

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Dated: June

Ju Date Filed 1 1 110 108 Somerset Docket No. AP-08-010 ~ County

Action 80C Appeal Petition for Review of Final Agency Action

,- ",' ,;'. ::.~ :WEUALLY /\SSIUNEC TO; -,(;~; iOSFPH M. .IABAR. Department of Public Safety Maine Robert Clemons Jr. YS. State Police Gaming and Weapons Sect. Plaintiff's Attorney Defendant's Attorney Lara Nomani, AAG John Wm. Martin, Esq. 6 State House Station PO Box 68 Augusta ME 04333-0006 Skowhegan ME 04976 Tel: 11626-8800 Tel: 11474-0015

Date of Entry

11/14/08 Petition for Review of Final Agency Action with attachments, Complaint Summary Sheet, $150.00 filing fee, and certificate of service received and filed 11/10/08.

Petition forwarded to the Office of the Attorney General this day and the Department of Public Safety Maine State Police Gaming and Weapons Section.

11/19/08 Entry of Appearance received and filed 11/14/08 by Lara Nomani, AAG on behalf of the Department of Public Safety.

12/15/08 Certification of Record received and filed 12/11/08.

Notice and Briefing Schedule forwarded to John Martin, Esq. and Lara Nomani, AAG this day.

01/26/09 Brief for Appellee received and filed 01/20/09.

02/26/09 Respondent's Brief received and filed 02/24/09 with attachments.

06/30/09 Decision entered. The court finds that Gonzales case is controlling qnd for this reason D~NIES the petitioner's 80C appeal and affirms the 'decision of the Commissioner of Public Saftey denying the petitioner's request for a permit for a non-concealed firearm. Dated 06/25/09 /s/ Joseph M. Jabar JSC cc: Martin & Nomani