Norman T. Gadomski, Jr. v. Joseph H. Tavares, Chief of Police for the City of East Providence

Supreme Court
No. 2014-72-M.P.
Norman T. Gadomski, Jr. :
v. :
Joseph H. Tavares, Chief of Police for the :
City of East Providence.
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island,
250 Benefit Street, Providence, Rhode Island 02903, at Telephone
222-3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2014-72-M.P.
Norman T. Gadomski, Jr. :
v. :
Joseph H. Tavares, Chief of Police for the :
City of East Providence.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Indeglia, for the Court. The petitioner, Norman T. Gadomski, Jr. (Gadomski or
petitioner), seeks review by petition for common law writ of certiorari of a decision of the
respondent, Joseph H. Tavares (Tavares or respondent), the Chief of Police for the City of East
Providence (city or East Providence), denying the petitioner’s application for a license to carry a
concealed weapon pursuant to G.L. 1956 § 11-47-11. On April 2, 2015, this case came before
the Supreme Court sitting at Rhode Island College in the City of Providence, for oral argument,
pursuant to an order directing the parties to appear and show cause why the issues raised in this
petition should not be decided without further briefing and argument. After considering the
parties’ submitted memoranda and oral arguments, we are satisfied that cause has not been
shown. Accordingly, we shall decide the petition at this time without further briefing or
argument. For the reasons set forth herein, the decision denying the petitioner’s application is
quashed. Further, the respondent is directed to issue a new decision on the petitioner’s
application not inconsistent with this opinion.
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I
Facts and Travel
In early 2012, Gadomski, a resident of East Providence, submitted to the East Providence
Police Department an application for a license to carry a concealed weapon. The application
indicated that Gadomski wanted a license because he occasionally works alone handling cash
and expensive tools and equipment, carries cash when purchasing firearms for his collection, and
because he camps, hikes, and bikes alone. The application also stated that Gadomski wanted a
license from this state, in which he resides, so that he could obtain a nonresident license from
Massachusetts, which would enable him to join a nearby gun club in Massachusetts. In response
to a question in the application asking if the applicant had ever been arrested, petitioner replied
in the affirmative, and attached his Criminal Offender Record Information (CORI) report from
Massachusetts. The CORI report indicated that petitioner had been arraigned on misdemeanor
charges twice as an adult. The first charge was for possession of alcohol by a minor, which was
dismissed with a payment into the Victim-Witness Fund and court costs. The second charge was
for destruction of property. Initially, a continuance without a finding was entered, and then later
the charge was dismissed, again with a payment into the Victim-Witness Fund and court costs.
On March 20, 2012, Gadomski was interviewed by Tavares regarding petitioner’s
application. Gadomski appeared at the interview without counsel. No record of the interview
was transcribed or otherwise recorded. On April 27, 2012, petitioner, through counsel, sent a
letter to Tavares regarding petitioner’s application. The letter indicated that petitioner had not
heard anything from Tavares since the interview and requested that a permit be issued to him.
On July 9, 2012, petitioner’s counsel sent a second letter to Tavares indicating that there still had
not been any response from the city regarding petitioner’s application. This second letter
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included copies of Gadomski’s concealed firearm permit issued by the State of Utah and his
federal firearm license to be a collector of curios and relics, which petitioner had acquired since
submitting his initial application. The petitioner asserts that there was no response to this letter.
On August 21, 2012, petitioner’s counsel sent a third letter to Tavares requesting copies
of certain records pursuant to G.L. 1956 § 38-2-2. The letter requested copies of all East
Providence records for the years 2007 through 2012 showing the number of applications for a
license to carry a concealed weapon, the number of applications for such a license that were
granted, and the time between receipt of an application and the issuance of a permit or denial of a
request. Subsequently, Gadomski’s counsel received a letter from Tavares responding to
petitioner’s requests. The response indicated that, to Tavares’s knowledge, no license to carry a
concealed weapon had been issued within the last decade and that, in order to receive a license,
all requirements of the application must be met. On September 11, 2012, petitioner’s counsel
sent another letter to Tavares indicating receipt of Tavares’s response and expressing frustration
with the handling of petitioner’s application. The letter requested the issuance of the license to
Gadomski or in the alternative, specification of the legal basis for refusal to do so. Tavares did
not respond to this letter.
On October 5, 2012, Gadomski filed a petition for a writ of mandamus in the Providence
County Superior Court seeking an order requiring Tavares to rule on Gadomski’s application. In
the interim, while Gadomski’s mandamus petition was still pending, Gadomski sent Tavares a
copy of several other firearm-related certifications that he had acquired, including a
pistol/revolver license from the State of New Hampshire. On January 16, 2013, an East
Providence police officer hand-delivered a letter to Gadomski, which served as official notice
that Gadomski’s application for a license to carry a concealed weapon had been denied. In light
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of this development, on January 18, 2013, the Superior Court denied Gadomski’s mandamus
petition on the grounds that the denial had rendered the issue moot.
On February 15, 2013, Gadomski filed another action in the Superior Court, this time
seeking review of the denial of his application pursuant to the Administrative Procedures Act,
G.L. 1956 § 42-35-15, and later, added a request for mandamus relief. Finding that Mosby v.
Devine, 851 A.2d 1031 (R.I. 2004), was controlling, the Superior Court determined that it was
without subject matter jurisdiction to entertain petitioner’s appeal and, therefore, dismissed the
action.
The following year, on February 20, 2014, Gadomski filed a petition for writ of certiorari
with this Court, which we granted on June 12, 2014.
II
Standard of Review
In Mosby, 851 A.2d at 1048, we stated that “if a license is refused on the ground that a
person is not suitable, th[at] determination is subject to review by this Court on certiorari.”
Thus, petitioner has invoked the proper vehicle for judicial review of the denial of his
application.
It is well settled that “[o]ur review of a case on certiorari is limited to an examination of
the record to determine if an error of law has been committed.” Cruz v. Mortgage Electronic
Registration Systems, Inc., 108 A.3d 992, 995 (R.I. 2015) (quoting State v. Poulin, 66 A.3d 419,
423 (R.I. 2013)).
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III
Discussion
While the legal landscape surrounding the procurement of a license under the Firearms
Act, chapter 47 of title 11, is far from saturated, we do not write on an entirely clean slate. In
State v. Storms, 112 R.I. 121, 126-27, 308 A.2d 463, 466 (1973), this Court analyzed the
propriety of the delegation of legislative power to licensing authorities under the Firearms Act.
We noted that “our brief summary of some of the Act’s essential provisions clearly evidences
that the goal of the Legislature was to prevent criminals and certain other persons from acquiring
firearms generally and handguns in particular without at the same time making unduly difficult
such acquisition for other members of society.” Id. at 127, 308 A.2d at 466. We recognized that,
in order to effectuate that intent, among other provisions, the Firearms Act “established licensing
procedures and delineated the broad parameters within which those selected by it might
determine the facts upon which the right to be licensed to carry a handgun hinged.” Id. Further,
we acknowledged that certain determinations required under the Firearms Act “call[ ] for an
exercise of the fact-finding function.” Id. at 128, 308 A.2d at 466.
Over a quarter-century later, in Mosby, we commented further on the licensing scheme
established by the Firearms Act. There, we recognized that “[t]wo separate and distinct licensing
procedures are set forth in the Firearms Act.” Mosby, 851 A.2d at 1047. We observed that the
licensing procedure in § 11-47-18, which was at issue in Mosby, “provides for the discretionary
grant of a firearms license by the [D]epartment [of the Attorney General] ‘upon a proper
showing of need’ * * *.” Mosby, 851 A.2d at 1047 (quoting § 11-47-18). In contrast, we noted
that § 11-47-11, which grants local officials the power to issue licenses, “is mandatory—an
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applicant who meets the criteria set forth in § 11-47-11 is entitled to a gun permit.” Mosby, 851
A.2d at 1047.
There are three components to the statutory scheme set forth in § 11-47-11: (1) an age
and residency requirement; (2) a reason requirement; and (3) a suitability requirement. Each of
these components must be satisfied in order for a license or permit to be issued under § 11-47-11.
To satisfy the age and residency requirement, an applicant must be twenty-one years of age or
older and have either (i) a bona fide residence or place of business within the city or town where
applying, or (ii) a bona fide residence within the United States and a license or permit to carry a
pistol or revolver concealed upon his or her person issued by the authorities of any other state or
subdivision of the United States. The reason requirement demands that an applicant has either (i)
a good reason to fear an injury to his or her person or property, or (ii) any other proper reason for
carrying a pistol or revolver. Lastly, the suitability requirement necessitates that all applicants
must be a “suitable person” to be licensed.
Notwithstanding the mandatory nature of § 11-47-11, there are certain individuals who
may not be issued a license as a matter of law. See §§ 11-47-5, 11-47-6, 11-47-7, and 11-47-15. 1
Further, while issuance of a license under § 11-47-11 is mandatory if an applicant has satisfied
the statutory criteria, whether an applicant has satisfied such criteria “involves an exercise of
discretion” on the part of local officials. Mosby, 851 A.2d at 1048. In Mosby, 851 A.2d at
1047-48, we identified the key discretionary component of § 11-47-11 as the determination of
whether an applicant has met the suitability requirement. In Storms, 112 R.I. at 128, 308 A.2d at
467, we opined that the Legislature vested local licensing authorities with the power to make
such a determination because such individuals “by reason of their training and experience and
1
General Laws 1956 § 11-47-5 (persons convicted of crime of violence or who are fugitives
from justice); § 11-47-6 (mental incompetents and drug addicts); § 11-47-7 (illegal aliens); § 11-
47-15 (persons who have failed to meet minimum firing qualification score).
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the facilities at their command [are] probably more competent than any others to exercise the
delegated power.” Accordingly, if the local licensing authority determines that an applicant is
unsuitable, Ҥ 11-47-11 vests the local licensing authority with discretion to reject [the]
application * * *.” Mosby, 851 A.2d at 1047-48.
Nonetheless, in Mosby, 851 A.2d at 1050, we proclaimed that “[a]s a matter of policy,
this Court will not countenance any system of permitting under the Firearms Act that would be
committed to the unfettered discretion of an executive agency.” Indeed, we noted that any rights
flowing from article 1, section 22 of the Rhode Island Constitution2 would be “illusory, of
course, if [they] could be abrogated entirely on the basis of an unreviewable unrestricted
licensing scheme.” Mosby, 851 A.2d at 1050. To prevent such an occurrence, we opined that
“certain procedural steps must be employed to allow a meaningful review” of licensing decisions
by this Court. Id. at 1051. Specifically, we held that, under § 11-47-18, “[a] rejected applicant is
entitled to know the evidence upon which the department based its decision and the rationale for
the denial.” Mosby, 851 A.2d at 1051. It follows a fortiori that a rejected applicant under § 11-
47-11 is also entitled to such information.
Here, while respondent has provided slightly more substance in his denial letter than the
denial letter 3 in Gendreau v. Canario, No. 2013-55-M.P., 2013 WL 6230071, at *1 (R.I., Sept.
18, 2013) (mem.), the denial letter proffered by respondent is still not a model of thoroughness.
2
Article 1, section 22 of the Rhode Island Constitution provides: “The right of the people to
keep and bear arms shall not be infringed.”
3
The letter in Gendreau v. Canario, No. 2013-55-M.P., 2013 WL 6230071, at *1 (R.I., Sept. 18,
2013) (mem.), stated in pertinent part:
“After carefully reviewing the application and receiving a recommendation from
the panel which interviewed you with regards to your application for a concealed
weapon permit, it is with regret that I advise you that I feel that you do not meet
the criteria outlined in 11-47-11 of the General Laws of Rhode Island as amended,
as well as Bristol Police Department’s guidelines which would justify me issuing
you a concealed weapons permit.”
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A local licensing authority need not write a decision rivaling War and Peace 4 in length, but its
decision must still address the salient reasoning for the denial of a license. In doing so, the
necessary findings to support the determination must be made, and “[t]hose findings must, of
course, be factual rather than conclusional.” Bernuth v. Zoning Board of Review of New
Shoreham, 770 A.2d 396, 401 (R.I. 2001) (quoting Irish Partnership v. Rommel, 518 A.2d 356,
358 (R.I. 1986)). Further, when there is a “fail[ure] to state findings of fact, the court will not
search the record for supporting evidence or decide for itself what is proper in the
circumstances.” Id. (quoting Irish Partnership, 518 A.2d at 359). It is imperative that the local
authority acts as a “finder of fact, not a master of puppets.” Mosby, 851 A.2d at 1050.
In its entirety, Tavares’s denial letter stated:
“This letter will serve as official noticed [sic] that your application for license to
carry a concealable weapon has been denied. Your disqualification was based
upon the fact that you failed to show good reason to fear an injury to yourself or
property. You failed to show a proper reason for carrying a pistol or revolver that
would allow me to issue you a license to carry a concealable firearm.
“Based upon the above mentioned reasons, coupled with the fact that you have
previously engaged in criminal behavior that resulted in your arrest, I do not find
you, at this time, a suitable person to be issued a license to carry a concealable
weapon.”
The statements that Gadomski failed to show a good reason to fear injury and failed to show a
proper reason 5 for carrying a pistol or revolver are nothing “more than the recital of a litany.”
4
First published in 1869, Leo Tolstoy’s classic is commonly regarded as one of the greatest
pieces of literature and has also garnered significant notoriety for being one of the longest works
of all time.
5
Additionally, it should be noted that in Mosby v. Devine, 851 A.2d 1031, 1047 (R.I. 2004),
after observing that the petitioner held “several gun licenses from other states” and was “[a]n
avid gun collector,” we stated that the petitioner “ha[d] a proper reason for carrying a pistol or
revolver.” Therefore, it appears that Gadomski, who also has gun licenses from other states and
is a licensed gun collector, may have proffered at least one proper reason under the statute.
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Bernuth, 770 A.2d at 401 (quoting Irish Partnership, 518 A.2d at 358-59). Such bare, rote
conclusions are insufficient.
While Tavares’s denial letter refers, albeit in a perfunctory manner, to the components of
§ 11-47-11, there appears to have been error in respondent’s underlying analysis. As conceded
by respondent’s counsel at oral argument, an incorrect standard was utilized in conducting the
review of petitioner’s application. Indeed, a perusal of East Providence’s written policy on the
carrying of weapons reveals that it is an inappropriate amalgamation of §§ 11-47-11 and 11-47-
18. As we have said, “[t]wo separate and distinct licensing procedures are set forth in the
Firearms Act.” Mosby, 851 A.2d at 1047. Yet, the policy asserts that an applicant must
demonstrate a proper showing of need and lists verbatim the same factors that are considered by
the Attorney General in assessing whether an applicant has made such a showing of need.
Demonstration of a proper showing of need, which is a requirement under § 11-47-18, is not a
component of § 11-47-11.
Additionally, on appeal, respondent avers that petitioner is unsuitable, contending that
petitioner was untruthful in his application regarding his reasons for seeking a permit. The
respondent alleges that he questioned Gadomski’s employment supervisor, who indicated that
concealed weapons are not required for petitioner’s work and that no other employee carries a
concealed weapon. However, no documentation of this questioning can be found in the record.
Further, we must note that petitioner’s written application does not assert that a concealed
weapon was required for his work. Rather, the application expresses petitioner’s desire to have a
concealed weapon for certain reasons, which happen to include two work-related reasons.
Moreover, petitioner’s application also includes three nonwork-related reasons why petitioner
wants a concealed weapon permit.
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Lastly, the respondent asserts that the determination that Gadomski is unsuitable is
bolstered by what the respondent has characterized as the petitioner having “engaged in criminal
behavior that resulted in [the petitioner’s] arrest.” The petitioner asserts that any consideration
of his misdemeanor charges, which were ultimately dismissed, was erroneous, arguing that no
conclusions may be drawn from a mere arrest in the absence of a subsequent conviction. The
respondent concedes that the existence of the charges, by themselves, would not render an
applicant unsuitable, but still argues that the petitioner has failed to provide sufficient
supplementary documentation explaining or mitigating the charges. The record, which contains
a copy of the petitioner’s CORI report indicating that the charges were dismissed close to a
quarter-century ago, belies this argument. Given the remoteness of the matters, the nature of the
charges (especially the first), the petitioner’s forthright disclosure in his application, and the
ultimate disposition of the cases, the denial could not properly be predicated on these events.
IV
Conclusion
Accordingly, for the reasons set forth in this opinion, the petition for writ of certiorari is
granted and the respondent’s decision denying the petitioner’s application for a license to carry a
concealed weapon is quashed. Additionally, the respondent, or his successor, is directed to issue
a new decision on the petitioner’s application within ninety days of the date of this opinion and
to set forth therein the findings and conclusions upon which the decision is based. The new
decision should take into account any supplemental material that was submitted in connection
with the application. This Court holds that if the petitioner is aggrieved by the new decision, he
may file an amended petition for writ of certiorari within sixty days of the issuance of the
decision. In that event, no additional filing fee will be required.
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: Norman T. Gadomski, Jr. v. Joseph H. Tavares, Chief of Police for
the City of East Providence.
CASE NO: No. 2014-72-M.P.
COURT: Supreme Court
DATE OPINION FILED: April 22, 2015
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: Associate Justice Gilbert V. Indeglia
SOURCE OF APPEAL: N/A
JUDGE FROM LOWER COURT:
N/A
ATTORNEYS ON APPEAL:
For Petitioner: David J. Strachman, Esq.
For Respondent: Robert E. Craven, Esq.