Gossard v. Fronczak

Decision Date30 June 2016
Docket NumberCivil Action No. TDC-15-0850
Parties Bryon GOSSARD, d/b/a Gilbert Indoor Range, LLC, Petitioner, v. Michael FRONCZAK, Director of Industry Operations, U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, Respondent.
CourtU.S. District Court — District of Maryland

Athanasios T. Tsimpedes, Tsimpedes Law Firm, Washington, DC, for Petitioner.

Jane Elizabeth Andersen, United States Attorney's Office, Baltimore, MD, for Respondent.

MEMORANDUM OPINION

THEODORE D. CHUANG, United States District Judge

The Gun Control Act of 1968, ("GCA"), Pub. L. No. 90–618, 82 Stat. 1213 (1968), requires any individual seeking to engage in the business of selling firearms to first obtain a Federal Firearms License ("FFL") from the United States Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"). 18 U.S.C. § 923(a) (2012). Petitioner Bryon Gossard challenges the denial of his FFL application by Respondent Michael Fronczak, Director of Industry Operations for ATF's Baltimore Field Division.1 Pending before the Court is ATF's Motion for Summary Judgment. The Court held a hearing on the Motion on June 17, 2016. For the reasons set forth below, the Motion is GRANTED.

BACKGROUND

The following facts are presented in the light most favorable to Gossard, the nonmoving party:

I. Gilbert's ATF History

On June 8, 2012, Gossard applied for an FFL that would permit him to sell firearms at Gilbert Indoor Range (the "Range"), a shooting range located at 14690 Rothgeb Drive, Rockville, Maryland. At the time, Gossard worked at the Range. The Range is owned by Charles R. Gilbert, a former FFL holder whose GCA violations cost him the ability to sell firearms. ATF denied the application, in part, because of Gossard's relationship with Gilbert, so an overview of Gilbert's history with ATF is in order.

In 2003, Gilbert owned two business entities with FFLs, American Arms International ("AAI") and Gilbert Indoor Range, LLC ("GIR LLC"). Gilbert's businesses had a history of GCA violations dating back to 1984. A 2003 inspection by ATF revealed that Gilbert's businesses had lost track of several hundred firearms and committed hundreds of recordkeeping violations. Based on these violations, in 2006, ATF revoked AAI's FFL and denied GIR LLC's FFL renewal application. ATF's decision was upheld by the United States District Court for the District of Maryland in 2008, American Arms Int'l v. Herbert, No. CIV. DKC 2006–2468, 2008 WL 8098466 at *7 (D.Md. Feb. 19, 2008), at which point the revocation and denial went into effect and Gilbert was no longer a licensed firearms dealer. The United States Court of Appeals for the Fourth Circuit affirmed the district court's decision in 2009. American Arms Int'l v. Herbert, 563 F.3d 78, 87 (4th Cir.2009).

While Gilbert's challenge was pending, he worked to change zoning restrictions that prevented him from selling firearms at the Range. Those restrictions meant that only the paperwork for firearms transactions could be completed at the Range. The physical transfer of the weapon had to occur offsite. In 2006, the Montgomery County Board of Appeals granted Gilbert's petition for a special exception that enabled him to sell firearms at the Range to its members. In 2007, the Board of Appeals expanded the special exception to allow four businesses, including GIR LLC, to sell firearms at the Range. By that point, however, Gilbert was in the process of losing his FFLs, which would prevent him from taking advantage of the zoning exception. According to ATF, Gilbert sought to avoid that costly consequence by orchestrating several straw applications for FFLs. Between 2005 and 2007, Gilbert's business associate, John Bradley, and two employees, Jeffrey Freeze and Brian Penko, submitted FFL applications to sell guns at the Range. Bradley and Freeze withdrew their applications, and ATF denied Penko's application for omitting material information—specifically, not listing Gilbert as a person with the power to influence Penko's business.

After these applications came to naught and Gilbert lost his legal challenge to the revocation of his businesses' FFLs, Gilbert applied for an FFL in his own name in 2008. In 2009, ATF denied that application, finding that his businesses' GCA violations should be imputed to him and that Gilbert himself violated the GCA by selling firearms after his businesses' FFLs had been revoked. In 2011, the district court upheld that decision. Gilbert v. Bangs, 813 F.Supp.2d 669, 676–78 (D.Md.2011). The Fourth Circuit affirmed on June 6, 2012. Gilbert v. Bangs, 481 Fed.Appx. 52, 55 (4th Cir.2012).

II. GIR LLC's Federal Firearms License Application

Two days later, on June 8, 2012, Gossard became the third Range employee to apply for an FFL to sell guns at the Range. Gossard applied for an FFL on behalf of GIR LLC. About two months earlier, on April 12, 2012, he had purchased the right to use the name "Gilbert Indoor Range LLC" from Gilbert for one dollar. The FFL application required Gossard to list all "responsible persons" at GIR LLC. AR Ex. G-26, Gossard's Application at 3. The application's instructions defined a responsible person as "any individual possessing, directly or indirectly, the power to direct or cause the direction of the management, policies, and practices of the corporation, partnership, or association, insofar as they pertain to firearms." AR Ex. G-28, FFL Application Instructions at 1. Gossard identified himself as the only responsible person for GIR LLC. In response to another application question, Gossard stated that he was not an unlawful user of marijuana.

ATF Industry Operations Investigator Gretchen Arlington was assigned to investigate Gossard's application. Arlington sought out details on how Gossard planned to operate GIR LLC, including by interviewing and requesting information from Gossard. At one point during the inquiry, Gossard forwarded to Gilbert an email from Gossard's attorney advising Gossard on how to respond to an ATF request for additional information about Gossard's application. On November 16, 2012, Arlington told Gossard that it "appeared likely" that the license "might be issued." Hearing Transcript at 321-22. That same day, two of Gossard's prospective competitors, Andrew Raymond and Theodore Sabate, contacted ATF to accuse Gossard of being a straw applicant for Gilbert and a marijuana user. The accusation of marijuana use was corroborated by Greg Miller, a former Range employee, who signed an affidavit claiming that he had smoked marijuana with Gossard at the Range on numerous occasions.

Arlington's investigation revealed that Gossard intended to run his business out of a portion of the Range's firearms vault. He executed a one-year lease with Burgundy Park Associates, LLC, a business controlled by Gilbert, which owns the building in which the Range is located. The lease could be terminated without cause upon 30 days' notice by either party. The lease entitled Gilbert to rent for the business a small desk in the vault, the immediate square footage around it, and a lockable wall display cabinet for $2,200 per month, provided that he obtained an FFL. There was no partition or divider between this space and the remainder of the vault. There was no separate security system for this space; it was covered by the security system for the Range, which was controlled by Gilbert. Because he used the vault to store his personal firearms as well as guns available for rent by members of the Range, Gilbert had full access to the GIR LLC space, with the possible exception of the lockable cabinet. Gossard told Arlington that he planned to buy some of Gilbert's personal firearms for resale. He stated, however, that Gilbert would have no role in the FFL business.

For start-up capital, Gossard deposited approximately $1,000 into a bank account he opened on behalf of GIR LLC. Gossard had no plans to purchase business insurance. According to Gossard, his plan was to order a firearm only after a customer put down a deposit, then collect the balance upon delivery. Under this model, Gossard would still need to have business funds to pay the full price of firearms up front. When interviewed by Arlington, Gossard was unfamiliar with the typical price markup on firearms.

Gossard did not plan to pay himself a salary and instead would remain an employee of the Range. He would not hire any employees of his own, but he planned to have Range employees assist with the business when he was not available, such as by receiving shipments, taking phone calls, and speaking to customers. Firearms sales would occur only when the Range was open and only for a portion of its operating hours, between 5:00 p.m. and 9:00 p.m., Monday through Friday.

During her interviews with Gossard, Arlington explained to Gossard the meaning of the term "responsible person" and the need to list all responsible persons on the application. She expressed concerns about Gilbert's involvement and gave Gossard ample opportunity to amend his application. Gossard did amend his application on one occasion, but he never changed his answer to the question about responsible persons.

III. Procedural History

On August 26, 2013, ATF issued a Notice of Denial of Application for License to Gossard on the grounds that he had not disclosed Gilbert as a responsible person and because of his unlawful drug use.

Gossard requested a hearing, which was held on May 13 and September 25, 2014. ATF called three witnesses. ATF Industry Operations Intelligence Specialist Lisa Reid testified about Gilbert's GCA violations and the previous applications for FFLs at the Range. Sabate testified that on one occasion Gossard entered Sabate's gun shop smelling of marijuana. Finally, Arlington testified about her investigation into Gossard's application and her conclusion that Gossard should have listed Gilbert as a responsible person. Greg Miller, the former Range employee who claimed to have smoked marijuana with Gossard, did not testify. He told ATF...

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3 cases
  • Gilbert v. U.S. Bureau of Alcohol, Tobacco, Firearms & Explosives
    • United States
    • U.S. District Court — District of Maryland
    • January 23, 2018
    ...firearms. His decade-long attempt to regain an FFL, either for himself or for a proxy, is recounted in detail in Gossard v. Fronczak , 206 F.Supp.3d 1053, 1055–56 (D. Md. 2016). This case is one of a long line of legal challenges brought by Gilbert in an effort to resuscitate his former fir......
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  • Gilbert v. U.S. Bureau of Alcohol
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • March 27, 2020
    ...decision relying solely on the "responsible person" omission. Gossard v. Fronczak, 701 F. App'x 266 (4th Cir. 2017); Gossard v. Franczak, 206 F. Supp. 3d 1053 (D. Md. 2016). While Gossard's petition for review of the agency decision was pending in the district court, Gilbert, Gossard, and t......

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