IN THE MATTER OF THE APPEAL OF LOUIS F. GARABO FROM THE DENIAL FOR NEW JERSEY FIREARMS PURCHASERS I.D. CARD AND PERMIT TO CARRY A HANDGUN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE APPEAL

OF LOUIS F. GARABO FROM THE

DENIAL FOR NEW JERSEY FIREARMS

PURCHASERS I.D. CARD AND PERMIT

TO CARRY A HANDGUN.

______________________________________________________

October 28, 2013

Submitted August 20, 2013 Decided

Before Judges Graves and Simonelli.

On appeal from Superior Court of New Jersey,

Law Division, Ocean County.

Shackleton & Hazeltine, attorneys for

appellant (Richard J. Shackleton, on the

brief).

Starkey, Kelly, Kenneally, Cunningham &

Turnbach, attorneys for respondents

(Kevin N. Starkey, on the brief).

PER CURIAM

Louis F. Garabo appeals from a Law Division order dated June 11, 2012, which upheld a decision by Joseph Giberson, the Stafford Township Chief of Police (Chief Giberson), to deny his application for a permit to purchase a handgun and a firearms purchaser identification card. N.J.S.A. 2C:58-3(a) and (b). After reviewing the record, briefs, and law in light of the contentions advanced on appeal, we affirm.

Garabo's application was initially denied in a letter from the Stafford Township Police Department dated November 8, 2011. The letter stated

As I am sure you are aware, the issuance of firearms related permits in the State of New Jersey is taken very seriously. The safety and interests of the public health and welfare are considered paramount and therefore receive primacy as deciding factors in cases. In your situation the initial background investigation has shown individually you should no doubt qualify according to the State statutes to be approved for your request. After extensive consideration however, this agency has determined that we must consider all circumstances surrounding your current residency status as part of our determining factors. As we discussed and you have stated, your son Louis [Darron] Garabo currently resides at your residence. As you know on December 12, 2003, he was found guilty of aggravated assault in the Ocean County Superior Court. In the State of New Jersey this is an indictable offense. This agency would be remiss in our efforts to ensure public safety to the best of our ability if we failed to place due consideration on all facts surrounding your request.

To that end, following an extensive meeting with Chief Giberson regarding your application, it was decided that your request should be DENIED pursuant to N.J.S.A. 2C:58-3(c)(5), or more specifically "to any person where the issuance would not be in the interest of public health, safety or welfare."

After his application was rejected, Garabo requested a hearing in the Superior Court pursuant to N.J.S.A. 2C:58-3(d) and N.J.A.C. 13:54-1.12(a). In a supporting affidavit, Garabo acknowledged that his son was convicted of aggravated assault, was sentenced to five years imprisonment, and was residing with him. However, Garabo also stated that his son would not have access to any firearms

3. Being sensitive to the mandates of the New Jersey Legislature I had already purchased a gun safe in which to store any guns which I might purchase pursuant to the permits which I sought and do assure the court that if my application is granted, any and all guns which I might purchase will be kept secured in the gun safe and that my son, Louis Darron Garabo, will be unable to have any access to the contents of the gun safe and that only I or my wife will have the ability to access the gun safe.

4. In addition in order to further assure the court that my son will not have access to any guns which I may purchase, I agree that any gun which I purchase will be equipped with a trigger lock and will always be kept with trigger locking devices in accordance with the Keep Safe Program as set forth in N.J.S.A. 2C:58-17 . . . .

In addition, Garabo's son submitted an affidavit, stating he had been out of prison for over four years and had completed supervised probation

While I have now been out of prison just a little over four (4) years and have completed my supervised probation for a little over one (1) year, I have continued to model my life on that which I learned while in prison and wish to assure the court that under no circumstances would I be a danger to persons or property whether I was living with my father or not and certainly that I am no danger to anyone public or private as a result of living in my father's home if he is granted the permission to purchase and possess firearms.

Francine Marie Carney, the former wife of Garabo's son, also submitted an affidavit. She stated

11. I can state honestly that I have no concern about Louis F. Garabo getting his Firearm Purchasers Permits, which he is seeking despite the fact that his son, my former husband, Louis Darron Garabo, is living in his home.

12. The incident which caused Louis Darron Garabo to go to prison was an assault on me which was uncharacteristic of him and I believe was an aberration which is very unlikely to reoccur.

On May 31, 2012, the court heard testimony from Garabo regarding his application and Detective Frank Heim, who investigated the application. Following testimony, the court denied Garabo's appeal. In an oral decision, the court stated

In the present case, the applicant resides with his son, Louis [Darron] Garabo. On December 12, 2003, Louis [Darron] Garabo was found guilty of the aggravated assault in Ocean County Superior Court.

Even though the applicant is of good character and repute and is not subject to any of the disabilities [set forth] in N.J.S.A. 2C:58-3[,] [h]e resides with his son, Louis, who has a prior criminal conviction. Additionally, the applicant asserts that the gun he seeks to purchase will be secured within his residence which is the same residence that Louis resides. As a result, Louis would have access to the handgun.

The court has heard that it'll be locked, it'll be secured. The court has also again reviewed all the certificates regarding the anger management and substance abuse, but there's always the prospect of relapse. Since it's within the public interest to prevent individuals with criminal convictions access to firearms, the applicant in this case should be denied his appeal requesting the firearm purchaser identification and a permit to purchase a handgun.

The court is satisfied that the police chief has established by a fair preponderance of the evidence for the denial of Mr. Garabo's application.

Accordingly, the court denies this applicant's appeal of a denial of an application for firearms purchaser identification card and permit to purchase a handgun.

The court did it reluctantly, but that is the court's decision.

On appeal, Garabo primarily argues "the denial by the court below was arbitrary and capricious," "the right of qualified people to obtain purchasers permits for both handguns and long guns" is a "right not a privilege," and the "chief of police did not sustain his burden by the credible evidence." We do not agree.

The findings by a trial judge are "binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483 (1974). We will "'not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). Nevertheless, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

N.J.S.A. 2C:58-3(c) directs the issuance of a permit to purchase a handgun and a firearms purchaser identification card to any person of "good character and good repute" who is not subject to any of the enumerated exceptions. The statute provides "[n]o handgun purchase permit or firearms purchaser identification card shall be issued: . . . To any person where the issuance would not be in the interest of the public health, safety or welfare." N.J.S.A. 2C:58-3(c)(5).

The hearing in the Law Division is de novo, which "'contemplates introduction of relevant and material testimony and the application of an independent judgment to the testimony by the reviewing court.'" In re Osworth, 365 N.J. Super. 72, 77 (App. Div. 2003) (quoting Weston v. State, 60 N.J. 36, 45 (1972)), certif. denied, 179 N.J. 310 (2004). "The chief has the burden of proving the existence of good cause for the denial by a preponderance of the evidence." Ibid.

"[T]he statutory design is to prevent firearms from coming into the hands of persons likely to pose a danger to the public." State v. Cunningham, 186 N.J. Super. 502, 511 (App. Div. 1982). The broad catch-all provision of section (5) relates "'to cases of individual unfitness, where, though not dealt with in the specific statutory enumerations, the issuance of the permit or identification card would nonetheless be contrary to the public interest.'" Osworth, supra, 365 N.J. Super. at 79 (quoting Burton v. Sills, 53 N.J. 86, 91 (1968)).

"The statutes regulating firearms are designed toward preventing criminal and other unfit elements from acquiring firearms, while enabling the fit elements of society to obtain them with minimal burdens and inconveniences." In re Clark, 257 N.J. Super. 152, 154 (Law Div. 1992) (citing Burton, supra, 53 N.J. at 101). In In re Clark, the court held that a wife's application for a firearms purchaser identification card could be denied when her husband had a prior conviction for burglary and would have access to any handgun kept in their shared residence. Id. at 153.

In this case, as the trial court recognized, "it's within the public interest to prevent individuals with criminal convictions access to firearms." We only note that the denial is without prejudice to Garabo's right to submit a new application if and when he and his son no longer share a residence.