The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

JENNIFER M. GRANHOLM, ATTORNEY GENERAL


 CONCEALED WEAPONS:

 
CRIMINAL LAW:

FIREARMS:

County concealed weapon licensing board's authority to issue concealed pistol license to person convicted of crime

County concealed weapon licensing board's authority to revoke prior restoration of right to possess firearms

The Concealed Pistol Licensing Act, as amended, does not authorize a county concealed weapon licensing board, based merely upon its finding that issuing a concealed pistol license to an applicant is not detrimental to the safety of the applicant or to any other person, to issue a license to carry a concealed pistol to a person who has been convicted of: (1) a felony; (2) a misdemeanor described in section 5b(7)(h)(i)-(xxxvii) of the Concealed Pistol Licensing Act within the past eight years; or (3) any other misdemeanor within the past three years.

The Concealed Pistol Licensing Act, as amended, does not authorize a county concealed weapon licensing board to issue a concealed pistol license to an applicant convicted of a felony merely because the applicant has obtained relief from the disability to possess a firearm under both state and federal law and the board determines under section 5b(7)(o) of the Concealed Pistol Licensing Act that issuing a license to the applicant to carry a concealed pistol in this state is not detrimental to the safety of the applicant or to any other individual.

A county concealed weapon licensing board lacks the authority to revoke a restoration of firearm rights made under section 4 of the Concealed Pistol Licensing Act.


Opinion No. 7121

December 30, 2002

Mr. Charles H. Koop
Antrim County Prosecuting Attorney
1905 Courthouse
Bellaire, MI 49615-0280

You have asked several questions relating to the statutory powers of a county concealed weapon licensing board to issue licenses to carry concealed pistols. The Concealed Pistol Licensing Act (Act), 1927 PA 372, MCL 28.421 et seq, regulates the possession and carrying of concealed pistols. The Act prohibits persons from carrying a concealed pistol unless they have been licensed in accordance with the provisions of the Act.

Your first question asks whether the Concealed Pistol Licensing Act, as amended, authorizes a county concealed weapon licensing board, based merely upon its finding that issuing a concealed pistol license to an applicant is not detrimental to the safety of the applicant or to any other person, to issue a license to carry a concealed pistol to a person who has been convicted of: (1) a felony; (2) a misdemeanor specified in section 5b(7)(h)(i)-(xxxvii) of the Concealed Pistol Licensing Act within the past eight years; or (3) any other misdemeanor within the past three years.

Amendatory 2000 PA 381 made significant changes to the Act, including the addition of section 1a stating the purposes behind these changes:

It is the intent of the legislature to create a standardized system for issuing concealed pistol licenses to prevent criminals and other violent individuals from obtaining a license to carry a concealed pistol, to allow law abiding residents to obtain a license to carry a concealed pistol, and to prescribe the rights and responsibilities of individuals who have obtained a license to carry a concealed pistol . . . . [Emphasis added.]

The purpose of 2000 PA 381 was also identified in House Legislative Analysis, HB 4530 (H-2), June 8, 1999, at p 1, which states that:

Many citizens view as unfair current laws which grant county "gun boards" the entire authority for reviewing applications for carrying concealed weapons (CCW). . . . [S]ome county gun boards have liberal policies and grant thousands of licenses each year, [while] other boards are extremely restrictive in their policies and grant licenses only to certain citizens, such as elected officials or former police officers.

* * *

[E]ach of these gun boards should be required to use uniform standards [across the state] for granting CCW licenses. [Emphasis added.]

See also Senate Legislative Analysis, SB 460 (S-9), HB 4530 (S-1), September 23, 1999, at p 1.

The standards for determining a person's eligibility to receive a license to carry a concealed pistol are delineated in section 5b of the Act. Section 5b(7) provides that a license to carry a concealed pistol shall issue only if, upon receiving an application for licensure, "the concealed weapon licensing board determines that all of the following circumstances exist." (Emphasis added.) The required circumstances are set forth in subsections (a) through (o), which include among other things that: The applicant is at least 21 years old and a citizen or legal resident of the United States and has been a Michigan resident for at least 6 months; the applicant has successfully completed a specified gun safety course; the applicant is not subject to certain court orders or declared mentally or legally incapacitated; and issuing the license would not be detrimental to the safety of the applicant or another person. Pertinent to your first question, in order to receive a license, the concealed weapon licensing board must also determine that the applicant has "never been convicted of a felony in this state or elsewhere," and that a felony charge is not pending against the applicant in this state or elsewhere at the time the applicant applies for licensure. Section 5b(7)(f). (Emphasis added.)

In order for an applicant to be licensed, the licensing board must determine that the applicant "has not been convicted of a misdemeanor violation" of certain offenses enumerated in section 5b(7)(h)(i)-(xxxvii), in the eight years immediately preceding the date of the application for licensure. (Emphasis added.) For other misdemeanors not described in section 5b(7)(h), the licensing board must determine that the applicant "has not been convicted" of a misdemeanor in this state or elsewhere in the three years immediately preceding the date of the application for licensure. Section 5b(7)(i).

Licensure further requires that the concealed weapon licensing board determine that "[i]ssuing a license to the applicant to carry a concealed pistol in this state is not detrimental to the safety of the applicant or to any other individual." Section 5b(7)(o). This determination does not relieve the applicant from satisfying all the other requirements specified in section 5b(7)(a)-(n) of the Act. Rather, it is one of the uniform "standards" spelled out in section 5b(7), all of which a license applicant must satisfy.

In construing statutes, if the statutory language is unambiguous, then the clear intent of the Legislature must be implemented as written. Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). The standards for licensure set forth in section 5b(7)(f), (h) and (i) of the Act are plainly stated and must be given effect. Since there is no language in the statute authorizing a county concealed weapon licensing board to waive any of the statutory requirements, all the requirements must be met. This reading of legislative intent is also confirmed by House Legislative Analysis, HB 4530 (H-2), June 8, 1999, at pp 4-5, which explains this provision after listing the eligibility requirements for licensure.

In addition, the board would have to determine that issuing a license to the applicant would not threaten the safety of the applicant or any other person. [Emphasis added.]

It is my opinion, therefore, in answer to your first question, that the Concealed Pistol Licensing Act, as amended, does not authorize a county concealed weapon licensing board, based merely upon its finding that issuing a concealed pistol license to an applicant is not detrimental to the safety of the applicant or to any other person, to issue a license to carry a concealed pistol to a person who has been convicted of: (1) a felony; (2) a misdemeanor described in section 5b(7)(h)(i)-(xxxvii) of the Concealed Pistol Licensing Act within the past eight years; or (3) any other misdemeanor within the past three years.

Your second question asks whether the Concealed Pistol Licensing Act, as amended, authorizes a county concealed weapon licensing board to issue a concealed pistol license to an applicant convicted of a felony where the applicant has obtained relief from the disability to possess a firearm under both state and federal law1 and the board determines under section 5b(7)(o) of the Concealed Pistol Licensing Act that issuing a license to the applicant to carry a concealed pistol in this state is not detrimental to the safety of the applicant or to any other individual.

The Act authorizes a concealed weapon licensing board to restore certain firearm rights2 to a person who was prohibited from exercising such rights. The board may restore such rights five years after the person has paid all fines, served all terms of imprisonment, and completed all conditions of probation or parole for the violation that caused the prohibition. Section 4. The board must also determine that the person is not likely to act in a manner dangerous to the safety of others. Id.

Section 5b(7)(f) of the Act provides that to be eligible to receive a license to carry a concealed pistol an applicant must demonstrate that he or she "has never been convicted of a felony." (Emphasis added.) The Act contains no exception for a person who has been convicted of a felony but then obtains relief from his or her disability to possess a firearm under either state or federal law. Moreover, as explained above, the Act does not allow the board, merely by determining that issuing a license to the applicant would not be detrimental to the safety of the applicant or others, to ignore the applicant's failure to meet all of the Act's other requirements for obtaining a concealed pistol license.

It is my opinion, therefore, in answer to your second question, that the Concealed Pistol Licensing Act, as amended, does not authorize a county concealed weapon licensing board to issue a concealed pistol license to an applicant convicted of a felony merely because the applicant has obtained relief from the disability to possess a firearm under both state and federal law and the board determines under section 5b(7)(o) of the Concealed Pistol Licensing Act that issuing a license to the applicant to carry a concealed pistol in this state is not detrimental to the safety of the applicant or to any other individual.

Your third question asks whether a county concealed weapon licensing board has the authority to revoke a restoration of firearm rights made under section 4 of the Concealed Pistol Licensing Act.3

Section 4 of the Act authorizes a county concealed weapon licensing board to issue an order restoring certain enumerated firearm rights to a person who meets all of the requirements set forth in subsection (3)(a)-(c). Section 4, however, contains no provision authorizing a county weapon board to revoke a previous restoration of these rights that was properly granted under the Act. Although section 8 of the Act, as added by 2000 PA 381, does under certain circumstances authorize a county concealed weapon licensing board to revoke a previously issued license to carry a concealed pistol, that section applies only to the revocation of concealed pistol licenses. It does not authorize the revocation of the "written order[s]" issued under section 4(3) to restore the rights enumerated in that section.

A county concealed weapon licensing board is an administrative agency created by statute. It has only those powers conferred by statute. Telephone Ass'n of Michigan v Public Service Comm, 210 Mich App 662, 670; 534 NW2d 223 (1995). Neither the Act nor any other statute grants to a county concealed weapon licensing board the authority to revoke a restoration of the firearm rights made under section 4 of the Act.

It is my opinion, therefore, in answer to your third question, that a county concealed weapon licensing board lacks the authority to revoke a restoration of firearm rights made under section 4 of the Concealed Pistol Licensing Act.


JENNIFER M. GRANHOLM
Attorney General

Att.

118 USC 925(c) authorizes the Secretary of Treasury to grant relief to restore federal firearm privileges to persons convicted of certain offenses under federal and state law. McHugh v Rubin, 220 F 3d 53, 58 (CA 2, 2000), notes that this statute has been suspended since 1993 by virtue of the failure of Congress to appropriate funds to administer it.

2The rights include the right of a person to "possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm." Section 4(3).

3You have also inquired whether, upon the effective date of 2000 PA 381, July 1, 2001, the federal statutory disability to possess a firearm reattached to those persons previously convicted of felonies who had their firearms rights restored under section 4 of the Act. See 18 USC 921 and 922. A federal statute should be interpreted, in the first instance, by the federal agency that administers the statute rather than this office. In that regard, attached is an "OPEN LETTER TO THE MICHIGAN STATE POLICE AND ALL CONCERNED PERSONS" dated December 20, 2001. That letter sets forth the current interpretation of the federal statute by the Division Director of the Detroit Field Division of the Bureau of Alcohol, Tobacco and Firearms of the United States Department of the Treasury. It concludes that the federal statutory disability to possess a firearm did not reattach on July 1, 2001.