Opinion
106424/04.
Decided December 2, 2004.
Petitioner Hector Sanchez brings this Article 78 proceeding challenging the actions of respondent Police Commissioner, Raymond Kelly, in his capacity as the handgun licensing officer for the City of New York, in refusing to accept for processing petitioner's application for a "target/recreational" license and for an order directing respondent to issue to petitioner a handgun license pursuant to Penal Law § 400.00 (2) (f).
Petitioner became the holder of a "Target" handgun license in 1978. On June 30, 2001, the New York City's Rules and Regulations [38 RCNY § 5-01] governing the issuance of handgun licenses were amended. As a result, petitioner's "Target" license was administratively converted to a "Premises — Residence" License. The Premises — Residence License "is a restricted handgun license, issued for a specific * * * residence location" and which allows the licensee to safeguard their firearms at their residence address and to transport their "unloaded handgun directly to and from an authorized small arms range/shooting club [within the City of New York], secured unloaded in a locked container" separate from its ammunition [38 RCNY § 5-01 (a)].
On or about August 26, 2002, petitioner made application to renew his converted license, by submitting a standard form application which he altered to add the word "Target", although, this type of license had been eliminated by the June 30, 2001 amendment. Despite petitioner's alteration of the application form, respondent licensing authority accepted the application and issued petitioner a renewed Premises — Residence License. This license is currently in effect and does not expire until December 18, 2005.
Then, on April 26, 2004, petitioner attempted to apply for an unrestricted "carry" permit pursuant to Penal Law § 400.00 (2) (f). This time, petitioner altered the standard form application by crossing out the printed word "Business" in the description of the type of license and substituting the word "Target" to read "Carry Target." Currently, there is no provision for such a license under the Rules and Regulations of the City of New York. In addition, petitioner did not provide the personal information called for by Questions "1", "2", "5" and "6" of the application [entitled "Letter of Necessity"]. The information sought by the Letter of Necessity is required of all applicants for a Carry Business License. Instead, petitioner tailored his answers to support his request for the non-existent "Carry Target" license. On this occasion, the respondent licensing officer refused to accept petitioner's application for processing because of the alteration of the form and the lack of the requisite information. In response and in an effort to challenge respondent's action in refusing to accept the application, petitioner sought to commence proceedings before the Supreme Court, New York County. Petitioner made several unsuccessful attempts at commencing a proceeding by presenting orders to show cause on August 21, 2003, September 26, 2003 and October 10, 2003; however, all of these proposed orders were declined by the justices to whom they were presented. On February 23, 2004, Justice Carol Edmead signed an order to show which sought the commencement of an article 78 proceeding, but later that court directed petitioner to withdraw the order without prejudice and to re-file in the form a of notice of petition and petition. On June 15, 2004, petitioner re-filed by presenting the instant petition which was made returnable on July 30, 2004 and, subsequently, assigned to this court.
Under subdivision (2) (f) of section 400.00 of the Penal Law, a licensing officer is empowered to issue the so-called "carry license", which authorizes a licensee to have a pistol or revolver and carry it concealed, "when proper cause exists for the issuance thereof". The analogous provision under New York City law is 38 RCNY § 5-01 (b), a "Carry Business License" which provides for the unrestricted possession of a handgun.
None of petitioner's prior applications are pending before the court.
Petitioner argues, unpersuasively, that he has demonstrated "proper cause" for the issuance of the requested license and, therefore, the court should direct respondent to accept his application pursuant to Penal Law § 400.00 (4) (a) and to issue petitioner a license pursuant to Penal Law § 400.00 (2) (f). In addition, petitioner challenges New York City's handgun law insofar as it restricts a licensee, like himself, from transporting his handguns outside of the City of New York. Petitioner claims he is a member of a Mount Vernon shooting club and a firearms instructor and that the restriction placed on Premises — Residential licenses prevents him from transporting his handguns to Westchester County, or elsewhere within the state, for the purpose of engaging in target or recreational shooting. Petitioner also contends that since he has been licensed to possess a handgun for more than 20 years, there is no good cause for denying him an unrestricted carry license pursuant to Penal Law § 400.00 (2) (f).
See 38 RCNY Section 5-01 (a).
In opposing the petition, respondent contends that he is not required to accept petitioner's application because it was "defaced" by petitioner's alteration of the standard form and because petitioner failed to answer the questions in a manner to supply the information necessary to properly process the application. Consequently, respondent cross-moves to dismiss the petition on the grounds that there is another action pending between the parties and that the petition fails to state a cause of action (CPLR 3211 [a] [4] and [a] [7]).
The respondent's cross-motion to dismiss the petition is granted. The determination of the respondent licensing officer to reject petitioner's application and to deny petitioner's request for a "carry" type permit pursuant to Penal Law § 400.00 (2) (f) was rationally based.
"It is well settled that the possession of a handgun license is a privilege, not a right, the issuance of which is committed to the broad discretion of the New York City Police Commissioner ( Kaplan v. Bratton, 249 AD2d 199, 201; Fondacaro v. Kelly, 234 AD2d 173, 177), to deny, revoke or limit pistol licenses (see Matter of Eddy v. Kirk, 195 AD2d 1009, 1010, affd 83 NY2d 919; also Sewell v. City of New York, 182 AD2d 469, 472) in accordance with the provision of Penal Law Section 400.00 and the New York City Administrative Code Section 10-131 (a) (1). Indeed, the licensing officer's has been described as possessing "[E]xtraordinary power" in such matters ( Matter of O'Brien v. Keegan, 87 NY2d 436, 439-440; Trimis v. New York City Police Dept., 300 AD2d 162). Hence, the "only issue for consideration by the court is whether the administrative decision to [reject petitioner's application and request for a carry license] was arbitrary and capricious or an abuse of discretion" ( Matter of Goldstein v. Brown, 189 AD2d 649, 651; Fondacaro v. Kelly, 234 AD2d at 177; see also Matter of Pell v. Board of Education, 34 NY2d 222; Matter of Sullivan County Harness Racing Assn. v. Glasser, 30 NY2d 269, 277).
Petitioner's novel request for a "carry target" permit so that he can legally engage in target and recreational shooting throughout the State, is not in conformity with the existing local law and regulatory scheme. Thus, petitioner's incongruous request, itself, provides a sufficient rational basis for rejecting the application for processing. Contrary to petitioner's bare assertion, this court finds no logic in requiring respondent to accept for processing an application that is deficient on its face and lacking the necessary documentation.
"[T]he burden of establishing "proper cause" for the issuance of a carry permit is on the applicant ( Goldstein v. Brown, 189 AD2d at 651; Matter of Bernstein v. Police Dept., 85 AD2d 574). Moreover, "[e]ligibility for a license in the first instance * * * is contingent upon an investigation by the licensing officer, and a finding that all statements in the application are true [and further that] the investigation of an applicant for a carry * * * license must yield "proper cause" to the licensing offer's satisfaction" ( O'Brien v. Keegan, 87 NY2d at 439; see also Sarro v. Smith, 8 AD3d 395) for the license to issue. Where as here, the denial of the application is based on a failure or refusal to provide the information necessary for the licensing officer to determine proper cause, the determination to deny a license will not be disturbed (see e.g., Reale v. Kelly, 222 AD2d 338; Tartaglia v. Kelly, 215 AD2d 166, 167). In this case, petitioner has intentionally sought a handgun license classification that no longer exists in the City of New York. Moreover, Sanchez has intentionally and deliberately failed to furnish any demonstration that would tend to qualify him for an unrestricted handgun license. This court is unpersuaded by petitioner's arguments for the issuance of his individualized handgun license. Said arguments were disingenuous and totally devoid of merit. The Appellate Division, First Department has upheld the Police Commissioner's elimination of the handgun target license with the replacement of handgun premises license (see, Matter of Murad v. City of New York, ___ AD3d ___, 2004 NY Slip Op. 07967; DeIlly v. Kelly, 6 AD2d 217). Additionally, it must be noted that RCNY § 5-23(a)(3) permits the licensee to transport his or her handgun, unloaded in a locked container, directly to and from an authorized small arms/shooting club. Therefore, the determination of respondent will not be overturned. Accordingly it is
ORDERED AND ADJUDGED that petitioner's application is, in all respects, denied and it is further
ORDERED AND ADJUDGED that respondent's cross-motion is granted and the petition is dismissed. The foregoing constitutes the decision and judgment of the court.