Thomas Newman v. New Hampshire State Police Permits and Licensing Unit

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0350, Thomas Newman v. New Hampshire
State Police Permits and Licensing Unit, the court on March 31,
2016, issued the following order:

Having considered the petitioner’s brief, the respondent’s memorandum
of law, and the record submitted on appeal, we conclude that oral argument is
unnecessary in this case. See Sup. Ct. R. 18(1). We affirm.

The petitioner, Thomas Newman, appeals an order of the Circuit Court
(Boyle, J.) upholding a decision of the respondent, the New Hampshire State
Police Permits and Licensing Unit, to deny his application for a nonresident
license to carry a loaded pistol or revolver. See RSA 159:6 (2014) (amended
2015). He argues that: (1) certain administrative rules deeming him not
suitable to be licensed are invalid; (2) the evidence was insufficient to support
the trial court’s decision; and (3) the trial court failed to recognize that his right
to carry a firearm was restored by a jurisdiction in which he was convicted of a
misdemeanor drug offense in 1997.

RSA 159:6 obligates the director of state police or the director’s designee
to grant a license to carry a loaded pistol or revolver to a nonresident applicant
if the following conditions are met: (1) the applicant “has good reason to fear
injury to the applicant’s person or property or has any proper purpose”; and (2)
the applicant “is a suitable person to be licensed.” RSA 159:6, I(a); see also
RSA 159:4 (2014); Garand v. Town of Exeter, 159 N.H. 136, 141 (2009) (stating
that under RSA 159:6, the licensing authority is required to determine only
whether the applicant has good reason to fear injury or any proper purpose
and whether the applicant is suitable). An applicant whose application has
been denied may appeal the denial by filing a petition in the circuit court. RSA
159:6-c (2014); see also RSA 490-F:3 (Supp. 2015) (granting circuit court
jurisdiction conferred upon former district courts).

In an appeal under RSA 159:6-c, the licensing authority bears the
burden of demonstrating by clear and convincing proof why the denial was
justified. RSA 159:6-c. “[T]he statute contemplates that the trial court will
hear evidence and make its own determination whether the petitioner is
entitled to a license.” DuPont v. Nashua Police Dep’t, 167 N.H. 429, 433 (2015)
(quotation and brackets omitted). We defer to the trial court’s factual findings
if they are supported by evidence in the record, and review its application of the
law to the facts de novo. Id. at 434.
 The New Hampshire Department of Safety has adopted certain
administrative rules governing the application process for nonresident licenses
to carry. See N.H. Admin. Rules, Safe-C chapter 2100; see also RSA 21-P:14,
II(f) (Supp. 2015). Among other requirements, a nonresident applicant must
disclose on the application whether he or she has ever been “[c]onvicted of a
misdemeanor crime which has not been annulled involving drugs or violence”
and, if so, to provide clarifying information on the reverse side of the
application. N.H. Admin. Rules, Safe-C 2102.02(e)(3) & (f). By signing the
application, the applicant “[c]ertifies that all the statements provided on the
application are true, correct and complete.” Id., Safe-C 2102.02(j)(3). The
rules provide that a license “shall be denied” if the applicant “was convicted of
a misdemeanor involving drugs or violence and the conviction date is less than
20 years from the date of application.” Id., Safe-C 2103.01(b)(3) & (b)(6). The
rules further provide that “[t]he application shall be denied . . . if it is
determined that the applicant intentionally made a false statement in response
to any question” on the application. Id., Safe-C 2103.02.

In this case, the record establishes that the petitioner, a New York
resident, was convicted by a New York court on April 22, 1997, of possession of
a controlled substance. The record further establishes that on May 16, 2005,
he was convicted by a New York court of conspiracies to engage in: (1) “criminal
sale of a controlled substance . . . in that . . . [the petitioner] obtained from
another Defendant a quantity of anabolic steroids”; and (2) “criminal sale of a
controlled substance . . . in that . . . [the petitioner] obtained a quantity of
cocaine from another defendant.” The petitioner concedes that the 2005
convictions were for misdemeanor crimes involving drugs. On his application,
the petitioner answered “yes” to whether he had “ever been convicted of a
misdemeanor involving drugs or violence,” and on the reverse side of the
application, where he was required to provide “complete details” of his
affirmative answer, he disclosed details of the 1997 conviction. He did not,
however, disclose the 2005 convictions. He signed the application, certifying
that all statements on it were “true, correct, complete and made in good faith.”

The respondent denied the application, finding that the 1997 conviction
rendered the petitioner not suitable to be licensed under Safe-C 2103.01. After
the petitioner filed his appeal pursuant to RSA 159:6-c, the respondent
discovered the 2005 convictions and supplemented its denial to include those
convictions, and the petitioner’s failure to disclose them, as additional grounds
to deny the application. With respect to the failure to disclose, the respondent
cited Safe-C 2103.02, the provision requiring that it deny an application if it
determines that the applicant made an intentional false statement on it.

In the circuit court, the petitioner argued that he was “suitable” because
he had received concealed firearms licenses from several jurisdictions,
including New York, because he is a federal firearms licensee, because he is a
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licensed private investigator and security guard and a certified firearms
instructor, and because he owns a security guard training school. He further
argued that, with respect to the 1997 conviction, his right to carry a gun had
been “restored” by New York. Although he acknowledged that he had not
disclosed the 2005 convictions, and that they were misdemeanor convictions
involving drugs for which the application required “complete details,” he
claimed in an unsworn memorandum that “he did not equate the inchoate
charge of conspiracy as something the State expected to be provided.” Finally,
he argued that the rules requiring him to disclose the misdemeanor drug
convictions, and deeming him unsuitable merely because of the convictions,
were invalid because “[i]t is unreasonable and absurd to make such
misdemeanor convictions a sole, per se basis for a denial of a license.”

In response, the respondent argued that the denial of the petitioner’s
application was plainly justified under Safe-C 2103.01(b)(6) because he had
been convicted of three separate misdemeanor drug crimes within less than a
twenty-year span, thereby rendering him not suitable to be licensed. The
respondent additionally argued that the denial was justified because the
petitioner’s failure to disclose the 2005 convictions “despite certifying that all of
the statements on the application were true, correct and complete” amounted
to an intentional false statement on the application under Safe-C 2103.02.
Finally, the respondent argued that the circuit court lacked jurisdiction to
determine the validity of the administrative rules.

The trial court upheld the denial of the application, ruling that,
“[a]lthough the petitioner’s rights have been restored in New York, the State did
not abuse its discretion by denying the [application] based upon 3 drug
convictions within the past 20 years and the petitioner’s failure to disclose two
of them.” We note that the petitioner does not argue on appeal that this ruling
is inconsistent with the standard of review under RSA 159:6-c. Within the
context of the relevant administrative rules and the parties’ arguments, we
construe this order as relying upon both the existence of the drug convictions,
and the petitioner’s failure to disclose the 2005 convictions, as independent
grounds to justify the denial of the application. See In the Matter of Salesky &
Salesky, 157 N.H. 698, 702 (2008) (stating that the interpretation of a trial court
order is a question of law, which we review de novo). This appeal followed.

We first address the petitioner’s argument concerning the validity of the
relevant administrative rules. The petitioner argues on appeal, as he did in the
trial court, that rules requiring him to disclose misdemeanor drug convictions,
and deeming him unsuitable if he has been “convicted of a misdemeanor
involving drugs” within twenty years, are invalid because those rules apply only
to nonresidents, and because “[i]t is unreasonable and absurd to make such
misdemeanor convictions a sole, per se basis” to deny a license. However, the
trial court relied upon both the misdemeanor convictions and the petitioner’s
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failure to disclose two of them as justifying the denial of his application. The
petitioner does not challenge the rules requiring that he “certif[y] that all the
statements provided on the application are true, correct and complete,” and
that his application be denied “if it is determined that [he] intentionally made a
false statement in response to any question.” N.H. Admin. Rules, Safe-C
2102.02(j)(3), 2103.02.

In this case, the respondent determined that the petitioner’s failure to
disclose the 2005 convictions, despite certifying that his answers were true,
correct and complete, amounted to an intentional false statement for purposes
of Safe-C 2103.02. In the trial court, the petitioner acknowledged that he failed
to disclose the convictions, and that they were misdemeanor drug convictions
for which the application required “complete details.” Although he claimed, in
an unsworn pleading, that “he did not equate the inchoate charge of conspiracy
as something the State expected to be provided under the application
question,” the trial court was not required to credit this assertion. Cf. In the
Matter of Aube & Aube, 158 N.H. 459, 465-66 (2009) (stating that we defer to
the trial court as to witness credibility, and that it is not required to believe
even uncontested evidence). Accordingly, the trial court’s order upholding the
denial of the application because the petitioner failed to disclose the 2005
convictions was both supported by the evidence and consistent with Safe-C
2103.02. See DuPont, 167 N.H. at 434. Under these circumstances, we need
not address whether the regulations requiring the petitioner to disclose the
convictions and deeming him unsuitable because of them are valid.

In light of the petitioner’s concession that he failed to disclose
convictions that were responsive to the application form, his argument that the
evidence was insufficient based upon his firearms-related background and
licenses misses the mark. Regardless of his background, the determination
that the petitioner intentionally failed to disclose the 2005 convictions entitled
the respondent to deny the application. N.H. Admin. Rules, Safe-C
2102.02(j)(3), 2103.02; cf. Silverstein v. Town of Alexandria, 150 N.H. 679,
682-83 (2004) (finding applicant’s failure to provide relevant criminal
background information requested by licensing authority supported denial of
application). As noted above, the evidence supports the trial court’s decision to
uphold the denial on that basis.

For the same reason, the petitioner’s argument that the trial court failed
to recognize that his right to carry a firearm was restored by New York with
respect to the 1997 conviction also misses the mark. In DuPont, the trial court
relied solely upon the applicant’s disqualification to possess a gun under
federal law due to a state law conviction to find that he was unsuitable under
RSA 159:6 to be licensed. See DuPont, 167 N.H. at 434. However, we
determined that the applicant’s civil right to possess a firearm had been fully
restored by the jurisdiction that had convicted him so as to remove the federal
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disqualification, thereby rendering the trial court’s reliance upon that
disqualification erroneous. See id. at 434-43. In this case, the trial court did
not rely upon a federal disqualification to uphold the decision to deny the
petitioner’s application, and any federal disqualification that might have arisen
from the 1997 conviction has nothing to do with whether the petitioner
provided an intentional false statement on his application.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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