In re Application for Retail Firearms Dealer License Renewal

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: PER CURIAM
• Decision Date: 01 April 2019
• Docket Number: DOCKET NO. A-4042-17T3
• Citation: In re Application for Retail Firearms Dealer License Renewal, DOCKET NO. A-4042-17T3 (N.J. Super. App. Div. Apr 01, 2019)
• Parties: IN THE MATTER OF THE APPLICATION FOR RETAIL FIREARMS DEALER LICENSE RENEWAL BY CAYUSE, LLC, t/a WILD WEST CITY - LICENSE #2530.

IN THE MATTER OF THE APPLICATION FOR RETAIL FIREARMS DEALER LICENSE RENEWAL BY CAYUSE, LLC, t/a WILD WEST CITY - LICENSE #2530.

DOCKET NO. A-4042-17T3

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted March 18, 2019

April 1, 2019

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Before Judges Sabatino, Haas and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Sussex County.

Mary K. Stabile Benson, attorney for appellant Cayuse, LLC, t/a Wild West City, and Michael Stabile.

Francis A. Koch, Sussex County Prosecutor, attorney for respondent State of New Jersey (Shaina Brenner, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Appellant Cayuse, LLC, t/a Wild West City appeals from the Law Division's April 16, 2018 order denying its application for renewal of an expired retail firearms dealer license after a five-day plenary hearing. We affirm.

The essential procedural history and background facts of this case are set forth in our previous opinion,¹ and we incorporate that discussion here by reference. The parties are also fully familiar with the proceedings that followed our opinion and, therefore, only a brief summary is necessary here.

Michael Stabile is the sole owner, manager, and only member of Cayuse, LLC (Cayuse). For a number of years, Stabile has operated a western theme park known as "Wild West City"² which, among other things, features reenactments of gunfights put on by Stabile's employees. During this period, Stabile held retail firearms dealer licenses in his own name, and in the names of corporate entities he headed,³ including one called Western World, Inc.(Western). The retail firearms business was located on the theme park's property.⁴

Stabile permitted his employees to use real handguns during their performances even though most, if not all, of these employees did not possess the required permit to legally carry a firearm under N.J.S.A. 2C:39-5(b). Stabile provided some of these firearms to the employees, and claimed he was not aware that carry permits were required because he was operating a theme park. Stabile testified that he had safety protocols in place that prohibited the employees from using live ammunition during their performances. Instead, the employees were supposed to use "blanks."

These protocols were obviously not effective because, on July 7, 2006, one of the employees shot another worker in the head⁵ while using a real handgun with live ammunition during a performance at the theme park. As a result, a Sussex County grand jury returned a twenty-five count indictmentcharging Stabile, Western, Cheyenne, and two other individuals with a number of criminal offenses, including unlawful possession of a firearm as the result of Stabile permitting his employees to carry handguns without a permit.⁶

Thereafter, Stabile formed Cayuse to take over operations from Western. In August 2010, he filed an application to renew Western's retail firearms dealer license and transfer it to Cayuse.⁷ As discussed in our 2016 opinion, a Law Division judge denied the application on March 12, 2012 without first conducting a hearing. Cayuse, 445 N.J. Super. at 87-88. We vacated this order due to the judge's failure to hold a hearing, and stated that because the license had long since expired, Cayuse could file a new application for consideration in accordance with the review procedures we outlined in the opinion. Id. at 98.

On April 11, 2012, Western pled guilty to third-degree unlawful possession of a handgun in violation of N.J.S.A. 2C:39-5(b). Stabile executed the plea form, and also provided the plea allocution on Western's behalf. "Stabile stated in his allocution that [Western] provided operable handguns to [his employees] and, to the corporation's knowledge, they did not have carrypermits." Id. at 88.⁸ The remaining charges against Stabile, Western, and Cheyenne were dismissed, and Western was sentenced to one year of probation.⁹ Because Cayuse was now Western's successor in interest and alter ego, the sentencing judge required Cayuse to abide by all of the terms of probation imposed upon Western.

In April 2016, one month after our decision in Cayuse, Stabile filed an application to renew License #2530 to be held in the name of Cayuse.¹⁰ In accordance with the procedures outlined in that opinion,¹¹ the application was first considered by Detective Michael Kassey and Lieutenant Glenn Ross of the New Jersey State Police. Following their investigation, the State Policerecommended that the application be denied. Lieutenant Ross testified that based upon the serious shooting incident that occurred at the theme park and Western's conviction for permitting employees to carry handguns without a permit, Stabile, who was responsible for operations at the theme park and who now owned and managed Cayuse, had demonstrated that he could not "engage in business as a retail dealer of firearms . . . without any danger to the public safety, health and welfare" under N.J.S.A. 2C:58-2(a).

After Detective Kassey and Lieutenant Ross testified at the hearing about their investigation, Stabile took the stand as Cayuse's only witness. As noted above, Stabile testified about his role in managing Western leading up to the 2006 shooting and, as the trial court found in its oral decision at the conclusion of the hearing, Stabile was aptly described as "the 'chief, cook, and bottle washer'" at Western because he was "in charge of the whole enterprise on a day-to-day basis." This included the retail firearms business and the theme park.

Stabile did not dispute that he permitted employees to carry and use real handguns during the simulated gun fights. The transcript of his plea allocution on behalf of Western was also admitted in evidence. In testifying on behalf of Western during that proceeding, Stabile admitted that handguns were distributed to Western's employees "to be used during reenactments and skits as part of theday-to-day corporation's operations[.]" Stabile also stated that these handguns were given to employees on the day of the near-fatal shooting, even though it was known that the employees did not hold the permits required to carry handguns under N.J.S.A. 2C:39-5(b).

Stabile claimed that he had safety protocols in place that prohibited the use of live ammunition in the handguns that were distributed to the unpermitted employees. However, other than providing a "Wild West City Gun Safety Review" sheet¹² to his employees, and sometimes requiring them to participate in a "Gun Safety Seminar" on "handling, loading, unloading and proper discharge technique of revolvers and shotguns used" at the theme park, Stabile did not further identify or explain these protocols. Thus, for example, nothing in the record indicates that Stabile ever checked each employee's handgun prior to a performance to ensure it was properly loaded with blanks rather than live ammunition.

On the basis of these undisputed facts, Judge William J. McGovern, III rendered a comprehensive oral opinion denying Cayuse's application for a retail firearms dealer license. The judge found that Cayuse, through Stabile, failed todemonstrate that it could engage in the business of selling and storing firearms "without any danger to the public safety, health and welfare" as required by N.J.S.A. 2C:58-2(a).

In this regard, Judge McGovern relied upon this court's seminal opinion in In re Sportsman's Rendezvous Retail Firearms Dealer's License, 374 N.J. Super. 565 (App. Div. 2005). In that case, the applicant had operated as a licensed firearms dealer for over ten years. Id. at 568. An investigation revealed that the applicant was unable to account for three firearms out of the 4300 sales it completed during that lengthy period. Id. at 574. The trial judge concluded that even one recordkeeping mistake of this nature was unacceptable given the highly regulated nature of the retail firearms industry, and denied the applicant's request for a license renewal. Id. at 574-75.

We affirmed the trial judge's decision. Id. at 567-68. In her oft-cited, and well-reasoned opinion on behalf of the court, our former colleague, Judge Francine Axelrad, explained that the focus under N.J.S.A. 2C:58-2(a) must be on whether the applicant could engage in the retail firearms business "without any danger to the public safety, health or welfare." Id. at 578. In this regard, the judge made crystal clear that

the Legislature chose to use the adjective "any" in the . . . requirement for issuance of a license, i.e., if thejudge finds the applicant can be permitted to engage in business as a retail dealer of firearms "without anydanger to the public safety, health or welfare." N.J.S.A. 2C:58-2(a) (emphasis added). Considering the common-usage of "any" as "one or some, regardless of sort, quantity, or number," Webster's II New College Dictionary, 51 (1995), in the context of our State policy construing the licensing requirements to limit the availability of weapons, clearly suggests an intent by the Legislature to give this provision broad application.

[Ibid.]

Thus, Judge Axelrad held:

It is not acceptable for the applicant to demonstrate it can engage in the business of retailing firearms with little danger, some danger, or even minor danger; the standard is that it must operate without anydanger. We find completely unavailing Sportsman's argument that because the three missing firearms have not turned up stolen, been linked to a crime, or recovered under dubious circumstances, they do not pose a danger to the public. "Any" danger includes potential danger.

[Ibid.]

Applying these same principles, Judge McGovern found that Cayuse and Stabile, as its owner, had not demonstrated that they could operate a retail firearms business...