Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

BOARD LICENSE AND INSPECTION REVIEW v. JON S. MIROWITZ (02/02/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 2, 1987.

BOARD OF LICENSE AND INSPECTION REVIEW, APPELLANT
v.
JON S. MIROWITZ, APPELLEE

Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Jon S. Mirowitz v. Board of License and Inspection Review, No. 1557 October Term, 1984.

COUNSEL

Steven K. Ludwig, Assistant City Solicitor, with him, Flora Barth Wolf, Chief Assistant City Solicitor, Marguerite R. Goodman, Divisional Deputy City Solicitor, and Handsel B. Minyard, City Solicitor, for appellant.

Burton A. Rose, Peruto, Ryan & Vitullo, for appellee.

Judges Craig and Doyle, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 103 Pa. Commw. Page 416]

The Board of License and Inspection Review of the City of Philadelphia filed a notice of appeal to this court following an order of the Court of Common Pleas of Philadelphia County which reversed the board's order and directed that the board grant Mr. Mirowitz a license to carry a firearm.

The record indicates that the board granted Mr. Mirowitz, who is a practicing attorney, a license to carry a firearm in 1977, 1978 and 1979. The license granted in 1979 expired in December of 1980. During 1980, Mr. Mirowitz applied for an extension of that license, which the board denied.*fn1

The present appeal arises from the April 1984 refusal of the city's Department of Licenses and Inspections to grant Mr. Mirowitz's application for a permit to carry a firearm.

Before the passage of the Philadelphia Home Rule Charter, 351 Pa. Code §§ 1.1-100 to 12.12-503, section 109(a) of the Pennsylvania Uniform Firearms Act, 18 Pa. C.S. § 6109(a), controlled the issuance of gun licenses in the City of Philadelphia. That section provides:

The chief or head of any police force or police department of a city, . . . may, upon the application of any person, issue a license to such person to carry a firearm in a vehicle or concealed on or about his person within this Commonwealth for

[ 103 Pa. Commw. Page 417]

    not more than one year from date of issue, if it appears that the applicant has good reason to fear an injury to his person or property, or has any other proper reason for carrying a firearm, and that he is a suitable person to be so licensed.

However, section 5-1000 of the Philadelphia Home Rule Charter, 351 Pa. Code § 5.5-1000 now empowers "the Department of Licenses and Inspections [to] exercise the power and perform the duties related to licensing and inspection formerly exercised and performed by all officers, departments, boards and commissions of the city. . . ."

Consistent with that language, Section 5-1002 of the Philadelphia Home Rule Charter, 351 Pa. Code § 5.5-1002, provides:

The Department of Licenses and Inspections shall have the power and its duty shall be to perform the following functions:

(b) Issuance of licenses. The Department shall:

(1) Issue all forms for applications and receive all applications for any license;

(2) Determine whether the applicant is properly entitled to the license which he seeks;

Although the Philadelphia Home Rule Charter vests licensing power in the department, the charter, like the Pennsylvania Uniform Firearms Act, leaves with the Philadelphia Police Department the power to determine the criteria by which the Department of Licenses and Inspections shall issue gun licenses because the latter department is, in effect, acting for the police department.*fn2

[ 103 Pa. Commw. Page 418]

In the present case, the criteria certified by the Philadelphia Police Department are those two factors set forth in section 109(a) of the Pennsylvania Uniform Firearms Act: (1) The applicant must demonstrate good reason to fear injury to his person or property, or any other proper reason for carrying a firearm; (2) the applicant must demonstrate that he is a suitable person to be so licensed.

After a full hearing on appeal in the present case, the board found:

1. Appellant has not substantiated a need to carry a firearm.

2. Accordingly, the Department's denial of the permit to carry a firearm is hereby affirmed.

The board apparently did not reach a decision as to whether the applicant was unsuitable to be licensed to carry a firearm.

The trial court reversed the board's license denial and ordered the board to grant a license to Mr. Mirowitz. The court stated:

This Court finds the Board's view in the instant matter not supportive of the evidence. Clearly, Mr. Mirowitz is presently under the same condition that warranted the granting of a license eight years ago. . . . [S]ince Mr. Mirowitz's background has not changed and

[ 103 Pa. Commw. Page 419]

    since the Board does not present a basis for their decision, this Court is inclined to grant the Appellant a license.

This court must reverse the trial court because we conclude that the board's findings are in fact supported by substantial evidence.*fn3

The one-year time limit on a gun license under the Pennsylvania Uniform Firearms Act, as applied here by the department, mandates regular reevaluation of the situations of those who desire authorization to carry a firearm. Accordingly, even unchanged circumstances, as found here by the trial court, cannot conclusively entitle a former licensee to a new license.

In Lovering v. Dettre, 41 D. & C. 716, 718 (1941), a gun licensing case, the court observed:

No fixed or certain rule or regulation for issuing such a license can be laid down, because the fitness of every applicant and the reasons advanced are varied and different, so that necessarily every application must be decided upon its own individual facts; and where discretion is vested in an official there usually is a difference of opinion.

In support of the trial court's reasoning, the applicant cites Hotchkiss Liquor License Case, 169 Pa. Superior Ct. 506, 83 A.2d 398 (1951), in which the

[ 103 Pa. Commw. Page 420]

Pennsylvania Liquor Control Board (LCB) initially denied a hotel liquor license based upon a protest by the membership of an adjacent church.*fn4 In its order, the LCB specifically referred to that protest as the sole reason for its refusal. When the hotel reapplied for a license the following year, the church again filed a protest. This time, the LCB, without opinion, granted the license. The trial court reversed.

The Superior Court affirmed that reversal, concluding that the trial court had not substituted its discretion for that of the LCB. Rather, the court stated that the trial court had corrected the LCB's abuse of its own discretion. Noting the trial court's finding of fact that "[t]he hotel is 181 feet, 6 inches from the . . . [church]," the Superior Court stated:

There was no change in the location of the hotel or the church between the first and second applications, and since the board refused the original application because of the proximity of the hotel to the church -- and for that reason alone so far as disclosed by the record -- if it had any reason for reversing its decision on the second application it should have said so.

169 Pa. Superior Ct. at 508-09, 83 A.2d at 399.

However, in Lovering, the unchanging key factor -- the distance between the hotel and church -- stood alone as the sole basis for license refusal. By contrast, in this case, the earlier license grant and latest refusal

[ 103 Pa. Commw. Page 421]

    separately depended upon an array of factors affecting need. The factors which the board could consider in assessing the need for a firearm do not consist of a single objective measure, such as a precise linear distance, as in Hotchkiss, but involve subjective evaluation. Additionally, nothing in the present record assures us that the facts here are identical to those included in the previous application.

In its decision, the board discussed the evidence presented at the hearing by the applicant and by a detective from the Philadelphia Police Department. The detective, supporting the department's conclusion that the applicant failed to meet the standard certified by the police department -- good reason to fear injury to person or property -- testified that the applicant's principal bank is located in an area considered "good" by the police, that the applicant is not on the appointment list for criminal cases, and that the police department strongly opposes the issuance of a gun license for outdoor recreational activities other than hunting and fishing. In support of the application, the applicant testified that he now banks at a different location, and expounded upon his need to carry a gun, specifically, for self-defense while making investigations and visiting clients, when transporting cash related to client matters and bank transactions, and for protection from wildlife while hiking and camping.

The board was entitled to exercise its discretion in reevaluating those subjective factors.

Furthermore, because the board set forth findings to support its decision, we distinguish the present case from Goodman v. Commonwealth, 98 Pa. Commonwealth Ct. 371, 511 A.2d 274 (1986), which the applicant suggests requires the board to set forth with greater specificity its reason for denying the license. However, in Goodman, unlike here, this court remanded to

[ 103 Pa. Commw. Page 422]

    the board for a finding of the applicant's need for a gun because the trial court, on de novo review, made no finding on that issue, and the trial court's affirmation of the board's conclusion on the other issue, the applicant's suitability to be licensed, was supported by inadmissible hearsay.

The order of the court of common pleas is reversed.

Order

Now, February 2, 1987, the order of the Court of Common Pleas of Philadelphia County, dated September 3, 1985, at No. 1557 October Term 1984, is reversed.

Disposition

Reversed.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.