lazurek objection to motion to terminate stay

8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay

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NO. HHB-CV-14-6026730S

COMMISSIONER, STATE OF : SUPERIOR COURT

CONNECTICUT DEPARTMENT OF :

EMERGENCY SERVICES AND :PUBLIC PROTECTION :

Plaintiff : JUDICIAL DISTRICT OF NEW BRITAIN

: AT NEW BRITAINv. :

:

BOARD OF FIREARMS PERMIT :

EXAMINERS AND SCOTT LAZUREK :Defendants : NOVEMBER 24, 2014

PLAINTIFF'S OBJECTION TO SCOTT LAZUREK'S

MOTION TO TERMINATE STAY

The plaintiff, the Commissioner of the Department of Emergency Services and Public

Protection (the "Commissioner of DESPP" or the "Commissioner"), hereby objects to defendant

Scott Lazurek's Motion to Terminate Stay, filed on November 7, 2014. [Docket Entry Nos.

105.00 and 106.00].

At issue in this appeal is whether the Board of Firearms Permit Examiners (the "Board")

erred when it reinstated Lazureks firearms permit even though Lazurek, while openly carrying a

loaded pistol on a crowded boardwalk, refused a police officers repeated requests to show his

firearms permit and later asserted to the Board that he would continue to defy such police

requests in the future. On October 3, 2014, in the absence of any objection, this court granted the

Commissioner's motion to stay enforcement of the Boards decision reinstating Lazurek's permit

pending the resolution of this appeal. [Doc. No. 101.01]. Lazurek now seeks to terminate the

stay, notwithstanding his insistence that he will continue to flout Connecticuts firearms


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permitting laws by refusing to cooperate with any police officer who asks to see his permit

Because this attitude invites more conflict between Lazurek and law enforcement officers that is

avoided by the stay, and a balancing of the equities favors the Commissioner, Lazureks motion

to terminate the stay should be denied.

FACTUAL BACKGROUND

The facts in this matter are undisputed. On June 2, 2013, at approximately 9 p.m., Scott

Lazurek and Timothy Jones were walking on the boardwalk in West Haven, Connecticut

(Petition for Administrative Appeal, 5; Doc. No. 100.31). Each man was carrying an exposed

loaded pistol on his hip. (Id. 6). Carrying firearms outside of one's home or business is a felony

in Connecticut unless the person doing so has first obtained a permit pursuant to Conn. Gen. Stat

29-28 or one of the statutes limited exceptions applies. See Conn. Gen. Stat. 29-35(a), 29-

37(b). Connecticut law further explicitly requires that the permit holder carry his permit on his

person while carrying his firearm. Conn. Gen. Stat. 29-35(b).

Two uniformed West Haven police officers who were patrolling the boardwalk on June

2nd approached Lazurek and Jones and asked them to show their permits to confirm that they

were legally carrying their weapons. (Id. 7). Jones complied with the request, but Lazurek

refused. (Id. 7). Lazurek was subsequently arrested for interfering with a police officer in

violation of Conn. Gen. Stat. 53a-167a. (Id. 8-9).

On June 27, 2013, the Commissioner of DESPP revoked Lazurek's firearms permit. (Id.

10). The criminal charges against Lazurek were dismissed on July 9, 2013, and on August 16,

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2013, Lazurek appealed the Commissioner's decision to the Board of Firearms Permit Examiners

pursuant to Conn. Gen. Stat. 29-32b. (Id. 12).

The Board held a hearing on July 24, 2014, at which Lazurek admitted that he was openly

carrying a loaded pistol on the crowded West Haven boardwalk and that he refused to allow the

police officer to determine whether he was legally carrying his pistol by producing his valid

pistol permit. (Id. 13). Lazurek further testified that if faced with similar circumstances in the

future, he would again refuse to produce his permit. (Id. 14).

On August 1, 2014, based on a tied 3-3 vote of the Board members, the Board issued a

written decision reversing the Commissioner and reinstating Lazurek's permit. (Id. 13)

According to the Board, Lazurek was a "suitable person" to possess a handgun permit. (Id. 13

Petition Ex. A).

On September 12, 2014, the Commissioner filed the present appeal from the Board's

decision pursuant to Conn. Gen. Stat. 4-183 and 29-32b(f), and, on the same date, filed a

motion for stay of enforcement. [Doc. No. 101.00]. In the absence of any objection, the court

granted the stay on October 3, 2014. [Doc. No. 101.01]. On November 7, 2014, Lazurek moved

to terminate the stay, arguing that he was denied an opportunity to be heard and a balancing of

the equities favored termination. This court scheduled argument on the motion for November 17

2014, which was rescheduled at Lazurek's request to December 9, 2014. DESPP opposes the

motion to terminate the stay.

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ARGUMENT

I. LAZUREK HAD THE OPPORTUNITY TO OBJECT TO THE MOTION FOR

STAY, BUT FAILED TO DO SO.

Lazurek's argument that the stay granted by this court on October 3, 2014, should be

terminated because he was not afforded an opportunity to be heard before the stay was granted is

totally meritless. He had the opportunity to be heard by filing an objection to the motion to stay,

but failed to do so. Lazurek and his attorney of record before the Board, John Drapp, were each

served with the motion for stay, which they received on September 18, 2014, and September 15

2014, respectively. [Doc. No. 104.00]. The Board was also served with a copy. [Id.] Having been

notified of the motion, Lazurek could have filed an objection at any time, but as of October 3,

2014, he had done nothing. Having received no opposition either from Lazurek or the Board

there was no need for the court to expend resources on a hearing. Accordingly, the court simply

granted the motion for stay "absent objection." [Doc. No. 101.01]. Under the circumstances

Lazurek's claim that he had no opportunity to be heard is completely unfounded and provides no

basis for terminating the stay.

II. A BALANCING OF THE EQUITIES FAVORS THE COMMISSIONER.

Terminating the stay is not warranted for the further reason that a balancing of the

equities favors the Commissioner.

In an administrative appeal under Conn. Gen. Stat. 4-183, the court may stay an agency

decision "upon appropriate terms." Conn. Gen. Stat. 4-183(f). "The provision for 'a stay upon

appropriate terms' gives the court broad authority to fashion appropriate relief to protect the

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interests of all those involved during the pendency of an administrative appeal." Griffin Hospital

v. Commission on Hospitals and Health Care, 196 Conn. 451, 455 (1985).

In determining whether to grant or terminate a stay, the Connecticut Supreme Court has

approved the use of a balancing of the equities test. Griffin Hospital, 196 Conn. at 458. Although

"[i]t is not possible to reduce all of the considerations involved in stay orders to a rigid formula,"

id. at 458, the Court has indicated that some of the factors to be considered include: "(1) the

likelihood that the appellant will prevail; (2) the irreparability of the injury to be suffered from

immediate implementation of the agency order; (3) the effect of a stay upon other parties to the

proceeding; and (4) the public interest involved." Id. at 456. In the present case, these factors

counsel against terminating the stay.

A. The Commissioner Is Likely To Prevail On Appeal.

First, contrary to Lazurek's claim, there is a serious argument that the Board abused its

discretion when it concluded that Lazurek was a suitable person to possess a firearms permit

despite his openly defiant attitude towards compliance with law enforcement and the State's

firearms permit laws. Given Lazureks utter contempt for the law, which readily distinguishes

this case from that of McWhorter in Commissioner of Public Safety v. Board of Firearms Permit

Examiners, 129 Conn. App. 414, cert. denied, 302 Conn. 918 (2011), on which Lazurek relies

the Commissioner is likely to prevail.

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1.

Under Connecticut Law, A Firearms Permit May Be Revoked If TheHolder Is Not A "Suitable Person" To Possess A Firearm.

The U.S. Supreme Court has held that a gun, whether loaded or not, "is a dangerous

weapon." McLaughlin v. U.S. 476 U.S. 16, 17 (1986). "[T]he use for which it is manufactured

and sold is a dangerous one, . . . [and] the display of a gun instills fear in the average citizen, . . .

creat[ing] an immediate danger that a violent response will ensue." Id. at 17-18.

Given the inherent danger that firearms pose, and the "vital public safety concern that

only responsible citizens be allowed to carry lethal weapons," Farmington v. Board of Firearms

Permit Examiners, CV-95-0550258S, 1996 WL 106842 at *3 (Conn. Superior Ct. Feb. 23,

1996), Connecticut has adopted a carefully designed firearms permitting scheme, set forth in

Conn. Gen. Stat. 29-28 through 29-38, that is intended "to protect the safety of the general

public from individuals whose conduct has shown them to be lacking the essential character or

temperament necessary to be entrusted with a weapon." Dwyer v. Farrell, 193 Conn. 7, 12

(1984). Connecticut's interest in ensuring that firearms are kept out of the hands of those who

lack the essential character or temperament necessary to be entrusted with a weapon is "strong

and compelling." Kuck v. Danaher, 600 F.3d 159, 166 (2d. Cir. 2010); see also Rabbitt v

Leonard, 36 Conn. Supp. 108, 116 (1979)(recognizing Connecticut's "extraordinary" interest in

gun control legislation).

Under Connecticut's statutory scheme, with only limited exceptions, it is a felony to carry

a pistol or revolver outside of one's house or business without first obtaining a firearms permit.

Conn. Gen. Stat. 29-35(a), 29-37(b). An application for a permit, which is initially submitted

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to local town authorities and later to the State, will only be issued after the issuing authority

determines that the applicant (1) does not intend to make unlawful use of the permitted firearm

(2) "is a suitable person to receive such permit;"and (3) is not subject to any of ten statutory

grounds for mandatory denial of an application. Conn. Gen. Stat. 29-28(b)(emphasis added)

An applicant who is issued a permit is required by statute to carry it on his person while carrying

his firearm. Conn. Gen. Stat. 29-35(b). Failure to do so is an infraction subject to a fine. Conn

Gen. Stat. 29-37(c).

Pursuant to Conn. Gen. Stat. 29-32(b), the Commissioner of DESPP may revoke a

firearms permit for cause, and must revoke a permit upon the occurrence of any event that would

have disqualified the holder from being issued a permit under Conn. Gen. Stat. 29-28(b)

Because a finding that a person is not "a suitable person to receive such permit" is sufficient to

disqualify an applicant from being issued a permit under 29-28(b), it is also a basis for

revoking a permit under 29-32(b).

While the term "suitable person" has not been statutorily defined, the Appellate Court has

held that the words "have a definite meaning in our law, and their use in the act furnishes a

standard by which the agency must be guided." Commissioner of Public Safety v. Board of

Firearms Permit Examiners, 129 Conn. App. 414, 422-423, cert. denied, 302 Conn. 918

(2011)(brackets omitted). According to the court, "[a] person is suitable who, by reason of his

character his reputation in the community, his previous conduct as a licensee is shown to be

suited or adapted to the orderly conduct of a business which the law regards as so dangerous to

public welfare that its transaction by any other than a carefully selected person duly licensed is

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made a criminal offense." Id. at 423, quoting Smiths Appeal from County Commissioners, 65

Conn. 135, 138 (1894). "Specifically, in the context of a firearms permit, General Statutes

29-28 through 29-38 clearly indicate a legislative intent to protect the safety of the general public

from individuals whose conduct has shown them to be lacking the essential character or

temperament necessary to be entrusted with a weapon." Id., quoting Dwyer v. Farrell, 193

Conn. 7, 12 (1984). A person is "unsuitable" where there are "facts sufficient to show generally

that he or she lacks 'the essential character or temperament necessary to be entrusted with a

weapon.'" Saviske v. Corradino, CV-10-6006014, 2011 WL 2536461 at *5 (Conn. Superior Ct

June 1, 2011), quoting Dwyer v. Farrell, 193 Conn. 7, 12 (1984).

2. The Commissioner Appropriately Determined That Lazurek Was Not

A "Suitable Person" To Possess A Firearm Permit.

In the present case, the Commissioner appropriately determined that Lazurek lacked the

essential character or temperament to be entrusted with a pistol permit after he exhibited

complete distain for law enforcement and Connecticut's permitting laws by refusing to show his

permit when requested by a police officer seeking to ascertain that he was legally carrying a

firearm. The Commissioners conclusion was reinforced when Lazurek expressed no regret to

the Board for obstructing the police officer's efforts to ascertain whether he was in compliance

with the law and, instead, defiantly asserted that if faced with a similar future request to show his

permit he would again flout Connecticut's laws by refusing to do so. Such conduct obstructs the

State's ability to protect public safety by ensuring that those who carry firearms, including loaded

firearms, as was the case here, are legally authorized to do so.

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Conn. Gen. Stat. 29-35(b) requires that "[t]he holder of a permit issued pursuant to

section 29-28 shall carry such permit upon one's person while carrying such pistol or revolver."

The legislature adopted this law in 1988 after hearing police testimony expressing frustration that

when a gun owner did not carry his permit it could be difficult for the police to confirm that he

was carrying his firearm legally, necessitating phone calls and, during off hours when

verification could not be obtained, confiscation of the weapon. See Conn. Joint Committee

Hearings, Public Safety, pp. 268-270 (Mar. 3, 1988)(remarks of Chief Thomas); see also 31

Conn. H. R. Proc., pt. 5, 1988 Sess. 1639-1640 (Mar. 30, 1988)(remarks of Rep. Migliaro)

Enabling officers to quickly and efficiently verify if a person carrying a gun is legally authorized

to do so is vital to protecting public safety.

Lazurek's position -- that the requirement that permit holders carry their permits when

carrying their weapons does notrequire them to show their permits if asked -- effectively negates

the purpose of the law. If there is no requirement that a permit holder show his permit to a police

officer when asked, then why require that permits be carried at all? There would be no point

The permit might as well be left at home in a drawer. In construing a statute, the court

presume[s] that the legislature did not intend to enact meaningless provisions. State v. Kevalis,

313 Conn. 590, 600 (2014). [C]ommon sense must be used and courts must assume that a

reasonable and rational result was intended. Lagueux v. Leonardi, 148 Conn. App. 234, 242

(2014). Here, the only rational construction of Conn. Gen. Stat. 29-35(b) that does not render

meaningless the requirement that a permittee carry his permit, is that the permittee must show his

permit when asked.

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Lazurek not only refused to show his permit and asserted he would continue to refuse to

show his permit, but also adopted the position that the police have no business even asking him if

he has a permit. See Lazurek's Memorandum of Law in Support of Motion to Terminate Stay,

pp. 9-10. Such contempt for law enforcement further compels the conclusion that Lazurek lacks

the essential character or temperament to be entrusted with a pistol permit. A gun is a

dangerous weapon, and the display of a gun instills fear in the average citizen, . . . creat[ing]

an immediate danger that a violent response will ensue. McLaughlin v. U.S., 476 U.S. 16, 17-18

(1986). Because a gun is inherently dangerous, Connecticut law requires a permit to carry a

handgun, and carrying a handgun without obtaining a permit is a felony. Conn. Gen. Stat. 29-

35(a), 29-37(b). Even with a permit, however, the right to carry a firearm openly outside the

home is not clearly established law in Connecticut. See Burgess v. Town of Wallingford, 569

Fed. Appx. 21, 23-24 (2d Cir. June 12, 2014)(summary order); petition for certiorari pending

There are no Connecticut statutes or decisions clearly establishing that Connecticut handgun

permit-holders can openly carry their weapons, and Connecticut courts have confirmed that

carrying a permitted firearm openly can lead to arrest when circumstances warrant. Id. at 23-24

citing Peruta v. Commissioner of Public Safety, 128 Conn. App. 777, 794 and n. 16, cert

denied, 302 Conn. 919 (2011).

Given this state of the law, courts have held that [p]olice officers who observe a person

carrying a . . . weapon are permitted to conduct a limited stop, rather than risk harm to

themselves and to bystanders, while they determine whether possession of the weapon is lawful.

U.S. v. Wiggan, 3:09-CR-51(SRU), 2010 WL 2698277 at * 12 (D.Conn. July 8, 2010), affd

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530 Fed. Appx. 51 (2d Cir. 2013)(summary order), cert. denied,134 S. Ct. 1565 (2014); see also

U.S. v. Lucas, 68 Fed. Appx. 265 (2d Cir. July 10, 2003)(summary order), cert. denied, 540 U.S.

1024 (2003)(officers observation of apparent gun justified a stop). In short, upon seeing Lazurek

openly carrying a handgun on a crowded boardwalk, the officers, in the interest of protecting

public safety, had a right to question him to determine whether he had a firearms permit, and

Lazurek, pursuant to Conn. Gen. Stat. 29-35(b), had an obligation to produce it.

By refusing to show his permit and asserting that he will continue to refuse to show his

permit in the future, Lazurek has effectively thumbed his nose at law enforcement and the state

legislature, and has adopted a position that obstructs the ability of the police to protect public

safety by being able to determine easily and efficiently whether a person carrying a handgun is

doing so legally. Under the circumstances, the Commissioner appropriately determined that

Lazurek lacked the essential character or temperament to be entrusted with a pistol permit and

properly revoked it.

3. The Board Abused Its Discretion In Finding Lazurek Suitable To

Possess A Firearms Permit.

In reversing the Commissioner and finding Lazurek suitable to possess a firearm permit

the Board abused its discretion. Although judicial review of administrative decisions is

deferential . . . [a] statutory right to appeal . . . must be meaningful. Gibbons v. Historic District

Commission, 285 Conn. 755, 766 (2008). Courts must not 'rubber-stamp . . . administrative

decisions that they deem inconsistent with a statutory mandate or that frustrate the [legislative]

policy underlying a statute.' Enquist v. General Datacom, 218 Conn. 19, 46 (1991)(Hull, J

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dissenting), quoting Bureau of Alcohol, Tobacco & Firearms v. Federal Labor Relations

Authority, 464 U.S. 89, 97 (1983); Muffler Shop of East Hartford, Inc. v. Dept. of Labor, No.

332678, 1990 WL 269179 at *3 (Conn. Superior Ct. July 20, 1990); see also Roto-Rooter

Services Co. v. Dept. of Labor, 219 Conn. 520 (1991)(reversing agency decision inconsistent

with legislative intent of statute). Thus, a court cannot take the view in every case that the

discretion exercised by the [administrative agency] must not be disturbed, for if it did the right of

appeal would be empty. Felician Sisters of St. Francis of Conn., Inc. v. Historic Dist. Commn

284 Conn. 838, 854 (2008)(holding that the defendant Commission abused its discretion); see

also Nicholson v. Bd. of Firearms Permit Examiners, No. CV-94-0541048, 1995 WL 584377

(Conn. Superior Ct. Sept. 28, 1995)(Board abused its discretion by incorrectly applying the law

to the facts). In the present case, the Board abused its discretion because the clear message of its

decision that a permit holder need not show his permit when asked for it by law enforcement

conflicts with the manifest legislative intent of the permit statute and frustrates the States public

policy of protecting public safety.

Although Lazurek argues that this appeal is governed by the court's decision in

Commissioner of Public Safety v. Board of Firearms Permit Examiners, 129 Conn. App. 414,

cert. denied, 302 Conn. 918 (2011), in which the court affirmed a decision of the Board reversing

the revocation of Griffess McWhorter's pistol permit, McWhorter's case bears little resemblance

to Lazurek's. McWhorter had consumed substantial amounts of alcohol, fallen asleep, and was

awakened by his wife in the early hours of the morning and asked to pick up his son who was

stranded in Hartford with a broken-down car. Id. at 416. McWhorter jumped in his car, realizing

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after he did so that he had a handgun in his pants pocket, and was subsequently arrested for

carrying a firearm while under the influence of alcohol and illegally possessing a firearm in a

motor vehicle. Id. The Commissioner revoked McWhorter's firearms permit, but the Board

reversed based on its findings that "McWhorter's possession of the handgun that morning was

accidental; he did not brandish or use the handgun; he appropriately alerted the arresting officer

that he was carrying the handgun; he has led an otherwise law-abiding life; and he was candid,

contrite and credible at his hearing." Id. at 424. Concluding that the Board reasonably inferred

that McWhorter's conduct was a "single, isolated incident," the court affirmed. Id.

In contrast to McWhorter, who accidentally violated the law and was "candid, contrite

and credible" at his hearing, Lazurek intentionally defied police authority and exhibited disdain

for the state's firearms permit law. Far from being a single, isolated incident as McWhorter's

was, Lazurek's conduct was, by his own assertion, only the firstincident. According to Lazurek

he will continue to defy any similar requests to show his permit to police in the future. Given the

stark contrast in attitude and temperament between McWhorter and Lazurek, McWhorter's case

has no bearing on Lazurek's. By reversing the revocation of Lazurek's permit, despite Lazurek's

disdain for law enforcement and the law, the Board abused its discretion. It sent a clear message

to Connecticut's gun owners that the statutory requirement that they carry their firearms permits

is meaningless. Under the circumstances, the Commissioner is likely to prevail on appeal.

B. The Remaining Factors Favor The Retention Of The Stay.

Absent a stay, the resulting reinstatement of Lazureks firearms permit would harm the

Commissioners ability to enforce Connecticuts firearms permit requirements and endanger

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public safety. It would open the door to repeat confrontations between Lazurek and law

enforcement -- particularly given his defiant attitude and his practice of openly carrying loaded

weapons -- and would send the clear message that gun owners need not bother to carry their

permits because there is no requirement that they show them. Without the ability to check a

permit on the spot, at any hour, it is far more difficult for state and local law enforcement officers

to verify that an individual carrying a gun is legally authorized to do so.

In contrast, continuation of the stay will not change Lazureks current situation. At the

time of his Board hearing, he had been without a permit for over a year, and yet he testified that

he would do it all again if the same situation presented itself. Given this attitude, being without a

permit must not be significantly hindering him in his employment or otherwise.

In sum, a balancing of the equities favors the Commissioner and a continuation of the

stay pending appeal. The Commissioner has a strong argument that the Board has abused its

discretion in this case, and terminating the stay now would present the very real possibility of

further confrontations between Lazurek and the police. Under the circumstances, the stay should

not be terminated.

CONCLUSION

For all of the foregoing reasons, Lazureks motion to terminate the stay should be denied.

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PLAINTIFFCOMMISSIONER, CONNECTICUTDEPARTMENT OF EMERGENCYSERVICES AND PUBLIC PROTECTION

GEORGE JEPSENATTORNEY GENERAL

BY: /s/ Jane R. Rosenberg_

Jane R. RosenbergAssistant Attorney GeneralJuris No. 08514155 Elm StreetP.O. Box 120Hartford, CT 06141-0120

Tel: (860) 808-5020

Fax: (860) [email protected]

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CERTIFICATION

I hereby certify that a copy of the foregoing was mailed, first class postage prepaid, this

24th

day of November, 2014 to:

DeAnn S. Varunes, AAG

Office of the Attorney General

110 Sherman StreetHartford, CT 06105

Tel: (860) 808-5450

Fax: (860) 808-5591Email: [email protected]

Richard A. Rochlin, Esq.Taboada Rochlin LLP

1224 Mill Street

Building D, Suite 200

East Berlin, CT 06023

Tel: (860) 357-5003Fax: (860) 218-9659

Email: [email protected]

/s/ Jane R. Rosenberg

Jane R. Rosenberg

Assistant Attorney General

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Burgess v. Town

o

Wallingford,

569

Fed.Appx.

2

(2014)

569 Fed.Appx. 21

This case was

not selected for

publication

in

the Federal Reporter.

Not

for Publication in

West's Federal Reporter.

RULINGS

BY

SUMMARY

ORDER

DO NOT

HA

VE

PRECEDENTIAL

EFFECT. CITATION

TO

A

SUMMARY

ORDER FILED ON OR

AFTER

JANUARY

1

2007, IS

PERMITTED

AND IS GOVERNED BY

FEDERALRULEOFAPPELLATEPROCEDURE

32.1

AND

THIS COURT'S LOCAL

RULE

32.1.1.

WHEN CITING

A SUMMARY

ORDER IN

A

DOCUMENT FILED WITH THIS

COURT, A PARTY

MUST

CITE EITHER THE FEDERAL

APPENDIX

ORAN

ELECTRONIC

DATABASE(WITH THE

NOTATION SUMMARY ORDER ). A PARTY CITING

A SUMMARY ORDER

MUST

SERVE A COPY

OF

IT

ON ANY

PARTY

NOT REPRESENTED

BY COUNSEL.

*

United

States Court of

Appeals,

Second

Circuit.

Richard E. BURGESS, Plaintiff-Appellant,

V.

TOWN

OF WALLINGFORD, Douglas L.

Dortenzio,

Chief, in his Individual and Official

Capacities, Anthony Martino, Lieutenant, in

his

Individual

and

Official Capacities,

Michael

Colavolpe,

Sergeant, in

his Individual and

Official

Capacities, Gabriel Garcia,

Officer,

in

his Individual Capacity, Devin Flood, Officer, in

his

Individual

Capacity, Defendants-Appellees,

*

Mark Vanaman,

Defendant.

The Clerk

of

the Court

is

directed to amend the caption

as set forth above.

No.

13-2369-CV.

June

12,

2014.

Synopsis

Background:

Arrestee brought 1983 action against town

and police officers, alleging violations

of

his constitutional

rights stemming from arrest on charges

of

disorderly conduct.

Defendants moved for summary judgment.

The

United States

District Court for the District of Connecticut, Tucker L.

M e l a n ~ o n ,

J.,

2013 WL 4494481, granted motion. Arrestee

appealed.

Holdings:

The

Cami of

Appeals held that:

[ l] police officers were entitled to qualified immunity from

arrestee's Second Amendment claims, and

[2]

officers were entitled to qualified immunity on arrestee's

claims for false arrest and unlawful seizure.

Affirmed.

22

UPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, ADmDGED,

AND

DECREED that the

judgment

of

the district court is AFFIRMED.

Attorneys and Law Firms

Rachel M. Baird, Rachel M. Baird & Associate, Torrington,

CT, for Plaintiff-Appellant.

Thomas R. Gerarde (Kristan M. Maccini, on the brief), Howd

Ludorf, LLC, Hartford, CT, for Defendants-Appellees.

PRESENT: B.D. PARKER, DEBRA ANN LIVINGSTON,

CHRISTOPHER F. DRONEY, Circuit Judges.

SUMMARY

OR ER

Plaintiff-Appellant Richard E. Burgess appeals from a

judgment

of

the United States District Court for the District

of

Connecticut (Melarn;on,

J. ,

entered May 15, 2013. The

district court granted summary judgment in favor

of

all

of

the defendants named in Burgess's complaint. Burgess's suit

brought claims against the Town of Wallingford and police

officers Douglas

L.

Dortenzio, Anthony Martino, Michael

Colavolpe, Gabriel Garcia, and Devin Flood (collectively,

the Defendants-Appellants ) under

4

U.S.C. 1983,

alleging violations

of

his constitutional rights stemming from

Burgess's arrest on charges

of

disorderly conduct.

1

We

assume the parties' familiarity with the underlying facts and

the procedural history

of

the case.

Burgess's complaint also contained a malicious

prosecution claim against Mark Vanaman, a private

individual. The district court, acting su sponte but after

requesting a response from Burgess, granted summary

judgment in Vanaman's favor on that claim. Burgess

has not appealed this portion

of

the judgment, and


18/51

Burgess

v.

Town of Wallingford, 569 Fed.Appx.

21

2014)

accordingly we do not address this claim. We also do not

address Burgess's First Amendment claim or his claim

against the Town

of

Wallingford for failure properly to

train its police officers, as Burgess has chosen not to

pursue those claims on appeal.

I

The doctrine of qualified immunity protects government

officials from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would

have known. Pearson

v.

Callahan, 555 U.S. 223,

23

l, 129

S.Ct. 808, l

72

L.Ed.2d 565 (2009) (internal quotation marks

omitted). This standard is forgiving and protects all but

the plainly incompetent or those who knowingly violate the

law.

Amore

l'.

Nomrro

624 F.3d 522, 530 (2d Cir.2010)

(internal quotation marks omitted). A police officer who has

an objectively reasonable belief that his actions are lawful is

entitled to qualified immunity. Okin

F.

Village

ofCornwall-

011-fl11Jwm Police

Dq/t

577 F.3d 415, 433 (2d Cir.2009);

see also S aucier v. Katz. 533 U.S. 194, 202,

121

S.Ct. 2151,

I 50 L.Ed.2d 272 (200 l) (stating that qualified immunity

attaches unless it would be clear to a reasonable officer that

his conduct was unlawful in the situation he confronted ),

overruled in

part

on

other

grounds by e m ~ w n 555 U.S. 223,

129

S.ct.

808, 172 L.Ed.2d 565 (2009). A police officer is

also entitled to qualified immunity if officers of reasonable

competence could disagree on the legality

of

the action

at issue in its particular factual context.

1 Valc:::yk v.

Rio,

496 F.3d 139, 154 (2d Cir.2007) (internal quotation marks

omitted).

The qualified immunity analysis has two portions. First, we

inquire whether, [t]aken in the light most favorable to the

*23 party asserting the injury, ... the facts alleged show

the officer's conduct violated a constitutional right. Saucier,

533 U.S. at 201,

121

S.Ct. 2151. The second question is

whether the right was clearly established, which must be

determined in light

of

he specific context

of

he case, not as a

broad general proposition.

Id.

In the course

of

this inquiry,

[o]nly Supreme Court and Second Circuit precedent existing

at the time

of

the alleged violation is relevant

in

deciding

whether a right is clearly established. Aioore v. Vega, 371

F.3d l I 0 114 (2d Cir.2004).

2

Although the Supreme Court formerly required lower

courts to examine these questions in order, the Court has

since ruled that the sequence is no longer mandatory. See

Pearson. 555 U.S. at 236, 129 S.Ct. 808.

II

11

The first issue Burgess raises on appeal concerns his

claim that his arrest on charges of disorderly conduct violated

his right to bear arms under the Second Amendment. We

need not reach the merits of this question, however, because

even if a right

of

Burgess's was violated, it was not clearly

established.

In District

of

Columbia v. Heller, the Supreme Court held that

the Second Amendment conferred an individual right to keep

and bear arms for self-defense sufficient to invalidate a law

that prohibited keeping firearms in one's home. 554 lJ.S. 570,

628-30,

128

S.Ct. 2783,

171

L.Ed.2d 637 (2008). But as the

Court also said, the right protected by the Second Amendment

is not unlimited.

IJ.

at 626,

128

S.Ct. 2783. Even at present,

we are unsure of the scope of that right. See Kacha/sky v.

Cnzv. ofTVesrchester, 701

F.3d 81, 89 (2d Cir.2012) ( [W]e

do not know ... the scope of [the Second Amendment] right

beyond the home and the standards for determining when

and how the right can be regulated by a government. This

vast

terra incognita '

has troubled courts since

Heller

was

decided. ), cert. denied sub nom. Kacha/sky

v.

Cacace,

U.S.---, 133 S.Ct. 1806, 185 L.Ed.2d 812 (2013). Thus, the

protection that Burgess claims he deserves under the Second

Amendment-the right to carry a firearm openly outside the

home-is

not clearly established law. See Saucier, 533 U.S.

at

201,

121

S.Ct. 2151. And as

of

Burgess's arrest on May

16

2010, this right was even less concrete, as the Supreme

Comt had not yet held that the Second Amendment right in

Heller applies to state governments; it did so shortly thereafter

in

McDonald v. City l Chicago, 561

U.S. 742, 130 S.Ct.

3020.

177

L.Ed.2d 894 (2010). Given this legal ambiguity,

Defendants-Appellants were entitled to qualified immunity,

and the district court correctly granted summary judgment in

their favor on Burgess's Second Amendment claim.

III

Burgess also brought a claim in the district court for false

arrest and unreasonable seizure of a handgun. He contends

that at the time of his arrest, Connecticut law clearly entitled

him to carry his firearm openly, and that the defendant

officers' decision to stop him and subsequently arrest him


19/51

Burgess v. Town o Wallingford, 569 Fed.Appx. 21 (2014)

on

charges

o

disorderly conduct was unreasonable in the

circumstances

o

this case. We disagree.

Connecticut statutory law governing the possession

o

handguns does not expressly prohibit or endorse the open

carry

o

properly licensed firearms, and Burgess has not

cited any legal decision clearly establishing that Connecticut

handgun permit-holders can openly carry their weapons.

Moreover, Connecticut courts have confirmed that carrying

a permitted firearm *24 openly can lead to arrest when

circumstances warrant.

See Perutu

v.

Comm'r

of

Pub.

Sakty.

128

Conn.App. 777, 20 A.3d 691, 702 & n. 16 (2011)

(stating that [d]epending on the specific circumstances, a

person who openly carries a pistol conceivably may be

subject to arrest for violating several statutes, including

the disorderly conduct statute, even i the statute governing

handgun licenses may not prohibit a permit holder from

carrying a pistol openly (footnote omitted)).

12

In this case, Burgess was arrested outside Yale Billiards,

a pool hall that serves liquor, when the defendant police

officers responded to the establishment after a verbal

altercation between Burgess and Mark Vanaman, another

patron, that arose

as

a result o Burgess's open carry

o

his

firearm and refusal to conceal it upon request. Vanaman

called

911

and reported that Burgess was then outside

the establishment with a handgun and two magazines o

ammunition. Robert Hilton, the owner o Yale Billiards,

also called

911

and stated that he had asked Burgess to

leave because he made some customers uncomfortable.

The dispatcher told responding officers that Burgess had

an exposed firearm and was pacing back and forth in

front o the billiards hall. Officer Devin Flood stated in a

subsequent memorandum that he believed ... based upon

the initial dispatch [that] there was a possibility that patrons

at Yale Billiards were in danger

o

serious physical injury

from a suspect pacing back and forth with an exposed

firearm, and once he reached the scene, he understood

based on his on-scene investigation that Burgess carried

his unconcealed weapon into a pool hall crowded with

patrons with the intention o causing a disturbance. Sergeant

Michael Colavolpe said that he saw the firearm on Burgess's

person upon approaching him, as well as the two magazines

on his waist. In a radio transmission during police response

to the scene, Sergeant Colavolpe reported to another officer

that Burgess had caused a disturbance at the pool hall and

that people were freaking out after the incident.

As

in

Goldberg v. Toil'n

of

G astonbu1J',

453 Fcd.Appx. 40

(2d Cir.2011) (summary order), a prior nonprecedential order

in

which we concluded that a claim similar to Burgess's

was barred by qualified immunity, we cannot conclude

that the defendant officers acted unreasonably in believing

that they could stop and arrest Burgess. Burgess, like the

plaintiff in Goldberg, was wearing an exposed firearm in an

establishment open to the public. He engaged in a verbal

altercation with a customer inside, which resulted in two

separate 911 calls reporting a disturbance. As in Goldberg,

we conclude that reasonable officers could, at minimum,

disagree on whether there was probable cause to arrest

plaintiff ... , and accordingly the district court's qualified

immunity determination ought to be affirmed. fd. at 42.

Moreover, because we conclude that officers

o

reasonable

competence could disagree on the legality

o

the police

conduct here,

Walc:::yk

496 F.3d at 154 (internal quotation

marks omitted), we decline to address the merits o Burgess's

Fourth Amendment claim. In sum, the district court properly

granted summary judgment to Defendants-Appellants on the

claim o false arrest and unlawful seizure because the officers

are entitled to qualified immunity.

3

3

Burgess's complaint also claimed a violation o the

right to bear arms under the Connecticut Constitution.

The district court declined to exercise supplemental

jurisdiction on this claim after dismissing his causes

o action brought under federal law. See 28 U.S.C.

1367(c). We detect no abuse o discretion

in

the district

court's dismissal

o

these claims without prejudice.

See

Oneida Indian Nation tfN Y v. Aladison n ~ v . 665 F.3d

408.

43

7

2d

Cir.2011

).

25 We have considered all o Burgess's remaining

arguments and find them to be without merit. For the

foregoing reasons, the judgment o the district court is hereby

AFFIRMED.

End o Document

\)

2014 Thomson Reuters. No c aim

lo

original U.S. Government Works.


20/51

Muffler Shop

o

East Hartford, Inc. v. Department o Labor, Not Reported in A.2d 1990)

1990 WL 269179

1990 WL 269179

Only

the

Westlaw citation is currently available.

UNPUBLISHED OPINION. CHECK

COURT RULES BEFORE CITING.

Superior Court

of

Connecticut, Judicial

District of Hartford-New Britain, at

Hartford.

MUFFLER SHOP OF EAST HARTFORD,

INC., Muffler Shop of Rocky Hill, Inc.,

Muffler Shop of New Britain, Inc.,

v.

DEPARTMENT

OF

LABOR,

et

al.

No.

332678.

July

20 1990.

MEMOR NDUM

O

DECISION

HAMMER, Judge.

1

The plaintiffs have brought this action for a declaratory

judgment based on a ruling of the defendant labor

commissioner that their employees were not exempt under

31-76itg)

of

the General Statutes from the overtime pay

requirements

of

Sections 31-76b through 31-7qj of the

General Statutes.

The facts have been stipulated by the parties and may be

summarized as follows. Each

of

the plaintiffs' shops employ

mechanics and when a customer arrives at the shop, his car

is

assigned to a mechanic for inspection. After the mechanic has

made his inspection, he determines the repair work required

and completes a service agreement containing the repair work

proposed and estimated cost.

The mechanic then contacts the customer, discusses the work

proposed and obtains the customer's signed authorization for

the work. The authorized repair service is then performed by

the same mechanic.

He is paid a fixed percentage

of

the amount paid by the

customer for each type of repair service performed. There

is

a percentage rate

of

pay for exhaust work and a different

percentage rate of pay for all other work including brakes,

shocks and struts and front end work.

The overwhelming majority

of

each mechanic's earnings is

based on such percentages for the types

of

repair services

performed. His regular rate of pay determined by dividing

his earnings for the week from the percentages for the

repair services performed by the number of hours worked in

the week generally exceeds twice the minimum hourly rate

applicable

to

him under 31-58 of the General Statutes, and

he generally works less than fifty-four hours for a six day

work week.

Section 31-76i of the General Statutes provides for certain

exceptions from an employer's statutory duty under

31-76c

to

pay his employees for overtime work. Subsection (g)

provides that overtime pay requirements do not apply

to:

any employee except outside salesmen (

1

whose regular rate

of pay is in excess

of

two times the minimum hourly rate

applicable to him under section 31-58, (2) more than half of

whose compensation for a representative period, being not

less than one month, represents commissions on goods or

services, and (3) who does not work more than fifty-four

hours during a work week

of

seven consecutive calendar days.

In determining the proportion of compensation representing

commissions, all earnings resulting from the application

of

a bona fide commission rate shall be deemed commissions

on

goods or services without regard

to

whether the computed

commissions exceed the draw or guarantee.

The plaintiffs, by letters dated July 13, 1987, and November

3, 1987, asked the labor department for a declaratory ruling

pursuant to 4-176

of

the General Statutes. (Trial Exhibits A

and B). They summarized the underlying facts and requested

a ruling that the exception to the overtime pay requirements

of

3 l-76i(g) applies to the factual situation set forth herein.

The commissioner's declarat01y ruling dated May 4, 1988

(Trial Exhibit D, p. 12), stated that the second condition

of

the statuto1y exemption, which requires that commissions

comprise more than half

of

an employee's earnings, had

not been satisfied because the statutory language must

be

interpreted as limited to compensation for sales. She

concluded that [b]ecause the overwhelming majority of

earnings

of

petitioners' mechanics are derived from the

performance

of

services rather than sales according

to

[the

stipulation of facts] the requirement of 3 l-76i(g)(2) is not

met, and the exception to overtime pay requirements in

3 l-76i(g) does not apply to the mechanics.

Id

12.

2 The ruling noted that the word commissions is not

defined in the overtime statutes nor have the Connecticut

courts interpreted it in the context

of

the statutory scheme.


21/51

Muffler Shop of East Hartford, Inc. v Department of Labor, Not Reported in A.2d 1990)

1990 WL 269179

t

went on to state that based on dictiona1y definitions

which associate it with sales or transactions , and court

decisions from other states which give it the same general

meaning, commissions may be defined in terms

of

direct responsibility for generating income in a commercial

transaction and hence sales. Id

5.

The commissioner also stated that if the exception were

interpreted

to

extend beyond sales

to

any type

of

work

for which 'commissions' were allegedly paid such

as

the

production of goods or performance of services, widespread

abuse and circumvention of the purposes

of

the overtime

statutes would result.

Id 6.

She pointed out that an

employer could evade the statutory overtime requirements

by simply characterizing incentive payments for production

workers and percentage payments for service personnel

as

commissions.

The ruling also relied on the legislative history of the statute

(1969 Public Acts No. 548), including a statement by Senator

Miller who stated in reporting the bill out of committee that

it would exempt commission salesmen. The commissioner

also referred to the bill's statement ofpurpose which was to

remove a hardship on highly paid commission salesmen and

their employers, and its title, which was An Act Concerning

Commission Salesmen and Overtime. Id

9.

The commissioner, in support

of

her interpretation

of

the

statute, also cited an opinion

of

the attorney general dated

June 14, 1972, which had been consistently followed by

the department, that the statutory exemption is restricted to

commission salesmen who otherwise qualify. The opinion

stated that the phrase commissions on goods and services

is patently ambiguous and raises the question of whether

the legislature intended all or only some kinds of labor to be

compensable by way

of

commissions, and that

ifit

intended

to impose such a restriction which form

of

labor it intended

to place within the exemption from overtime.

In his 1972 opinion, the attorney general stressed that the

remedial nature

of

the overtime laws required that exceptions

be strictly construed. He also noted that a broad interpretation

of the word commissions as used in 31-76i(g) would not

only be contrary to the usual rule of strict interpretation of

exceptions to remedial legislation, but could lead to abuses

which would deny overtime compensation to those rightfully

entitled to it.

Subsequent to the hearing in this case, the court granted

the defendants' request that the parties be permitted to

file supplemental briefs concerning a recently enacted

amendment

of

31-76i(g)

of

the General Statutes. This

statutory change was made by Public Act No. 89-24 which

substituted the words any inside salesperson whose sole duty

is

to

sell a product or service in place

of

any employee

except outside salesmen.

3 The legislator who reported the amendment stated that

it was requested by the labor department to plug a gap

that came about in an attorney general's informal opinion in

June

of

1972, regarding salesmen. 32 Conn.H.R.Proc., Pt.

5, 1989 Sess. 1582 (March 22, 1989). The defendants claim

that the statutory change was made to clarify the exemption

in accordance with the labor department's prior interpretation

of the original statutory language.

The plaintiffs argue that the legislative history does not

support the defendants' claim that the amendment was

designed to clarify the prior law and that because it effects a

fundamental change in the scope of an overtime exemption it

cannot be applied retroactively to the plaintiff.

In his supplemental reply brief, counsel for the defendants

asserts that the 1989 amendment was not intended to

influence the outcome of his litigation and that, in fact, he did

not become aware of the amendment until after the case was

argued. He has also submitted an affidavit from the director

of

the division

of

regulation

of

wages which states that he

was personally involved in the department's request for the

amendment and that it was designed to clarify the statute in

accordance with the Department's interpretation

of

the prior

statute, consistent with the amendment, as limited to inside

salespersons whose sole duty is to sell a product or a service.

The Uniform Administrative Procedure Act (UAPA)

empowers administrative agencies to issue declaratory

rulings based on their interpretation of statutes and mandates

that an administrative determination

of

such questions

of

law be made before judicial review can be obtained by

way

of

an action for declaratory judgment. General Statutes

4-175, 4-176. The administrative ruling as to the

meaning of the law has been made an integral part of the

process

of

statutory interpretation under the UAPA because

administrative agencies must necessarily interpret laws which

are made for their guidance and statutes cannot be read

in a vacuum but must be illuminated by the force

of


22/51

Muffler Shop of East Hartford, Inc.

v

Department of Labor, Not Reported in A.2d (1990)

1990 WL 269179

concrete, everyday pressures. Con11ccticut

Lif('

&

Health Ins.

Guarani\' Assn. I . Jackson, 173 Conn. 352, 356-57.

An agency's construction of a statute it is charged with

enforcing

is

entitled to deference

ifit is

reasonable

...

in light

of

the language, policies, and legislative hist01y

of

he Act

...

,

and is not in conflict with the expressed legislative intent.

United States

v.

Riverside Bayview Homes, Inc. 474 U.S.

455, 461 (1985). However, in order for reviewing courts

to

properly perform their function they should not stand aside

and rubber-stamp their affirmance of administrative decisions

that they deem inconsistent with a statutory mandate ... , or

that frustrate the legislative policy which underlies the statute.

NLRB v. Brown, 380 U.S. 278, 291 (1965).

The primary purpose of the minimum wage law is to require

the payment of fair and just wages [and like] our workmen's

compensation and unemployment compensation laws, the

minimum wage law should receive a liberal construction in

order that it may accomplish its purpose. West v. Egan,

142

Conn. 437

at

442. The burden rests on the employer

to

establish that his employees come within an exemption and

it is essential that exemptions

or

exclusions be strictly and

narrowly construed. Shell Oil Co. v. Ricciuti,

147

Conn. 277

at

283.

*4 The plaintiffs claim that the phrase commissions on

goods and services is plain and unambiguous, and that

it so clearly expresses the intention of the legislature to

exclude from entitlement for overtime pay any employee

who is paid on a commission basis that it is unnecessary

and inappropriate even to resort to the principles of statutory

construction. In effect, the plaintiffs' argument attributes to

the legislature an intention to

create an exemption

in

31-76i

unlike any of the other eleven statutory exceptions in that it is

based solely on the mode

of

payment chosen by the employer

rather than on the nature of the work that

is

performed by the

employee.

The plaintiffs' literal reading of the commissions exception

would have the further effect of making subsection (i),

which exempts household delivery route salesmen

of

milk

or bakery products who are paid on a commission basis,

entirely unnecessary. The exemption in subsection U of

salesmen primarily engaged in selling automobiles would

also be rendered virtually nugatory under the plaintiffs'

interpretation.

t

is

a basic rule

of

statutory construction that the legislature

is presumed to know all the existing statutes and that when it

enacts a law it does

so in

view of existing relevant legislation,

intending the statute enacted

to

be read with the pertinent

existing legislation

so

as to make one consistent body oflaw.

Jennings\'.

Connecticut Light

Power

Co.

140 Conn. 650 at

665-66. The court will not infer that the legislature intended

to

enact a significant change in existing law by importing a

new class into a statute which has always been limited in its

scope without an unequivocally expressed manifestation of

legislative intent. Kinney

v.

State, 213 Conn. 54, 66.

The argument that any form of compensation based on a

percentage of sales was a commission within the meaning

of the Fair Labor Standards Act (FLSA), was made and

rejected in Mechmet v. Four Seasons Hotels, Ltd., 825

F.2d 1173 (7th Cir.1987). The court stated that it would

not be sensible to decide whether banquet service charges

were commissions based on dictionary definitions or even

common legal usages because it did not want to create

an unintended loophole in the Act by a literal-minded

application of the exemption provision, and then proceeded

to

consider what interpretation would best advance the

legislative purpose. d at 1175.

Mechmet also refutes the plaintiffs' claim that the definition

of commissions may e found in the second sentence

of subsection (g) which states that [i]n determining the

proportion of compensation representing commissions, all

earnings resulting from the application

of

a bona fide

commission rate shall be deemed commissions on goods and

services. [Emphasis added]. The identical language appears

in the FLSA exemption for employees

of

retail and service

establishments; 29 U.S.C.

207(i); and was quoted and

construed in Mechmet without any suggestion by the court

that the prescribed method

of

computing the proportion

of

commissions had any definitional value with respect to the

meaning of commissions on goods or services.

*5

f a statute is silent or ambiguous on the question at

issue, the court does not simply impose its own construction

as

it

would

in

the absence

of

an administrative interpretation,

but rather, the question for the court is whether the agency's

answer is based on a permissible construction of the statute.

Chevron,

U.S.A .. Inc. 1>

Natural Resources Defense,

467

U.S. 837, 843 (1984). In resolving that question, the court

will defer to the executive department's construction of the

statutory scheme it is entrusted to administer, unless the

legislative history of the enactment shows with sufficient


23/51

Muffler Shop

of

East Hartford, Inc.

v

Department

of

Labor, Not Reported in A.2d 1990)

1990 WL 269179

clarity that the agency construction is contrary

to

the

legislative intent. Jap1 111 FV/11 1/ing

Association v American

Cetacean Society, 478 U.S. 221, 233 (1986 .

Ambiguity may be found to exist even where the legislature

has addressed itself to the precise question at issue but has

not clearly expressed its intent through its choice

of

statutory

language, thereby giving rise to reasonable but conflicting

interpretations.

Young

v.

Community Nutrition 11stit11te.

4 76

U.S. 974, 980 (l 986). Where the agency has advanced its own

interpretation of such an ambiguous statutory provision, the

court need not find that it is the only permissible construction

that the agency might have adopted, but only that it is a

sufficiently rational one to preclude a court from substituting

its judgment for that of the agency.

Id.

981.

The court finds, for the reasons just stated, that the phrase

commissions on goods and services is not so plain and

unambiguous as to exclude from entitlement for overtime

pay any employee who is paid on a commission basis and

that it is therefore necessary and appropriate for the court to

resort to principles of statutory construction to determine the

legislative intent.

Ordinarily, the construction of a statute on an issue that

has not previously been subjected to judicial scrutiny is

a question of law on which administrative rulings are not

entitled to special deference. Connecticut Light Power Co.

v. Department

of

Public Utility Control. 210 Conn. 349, 357.

Nevertheless, a practical construction placed on legislation

by an agency over many years will be accorded deference

but only when the agency has consistently followed its

construction over a long periodof ime, the statutory language

is ambiguous, and the agency's interpretation is reasonable.

Srate Medical Society v. Board ofErnminers, 208 Conn. 709

at 719.

The commissioner's declaratory ruling in this case that

the statutory language must be interpreted as limited to

compensation for sales rather than for the perfo1mance

of services was based on the attorney general's opinion

issued in 1972 which has been consistently followed

up

to the present time. Opinions of the attorney general are

usually regarded by courts as highly persuasive and entitled

to substantial weight ; Windham Cummuni{v Memorial

Ho.;pital v. 1-Villimantic,

166 Conn.

113

at 118; and although,

of course, such an opinion is not binding on the court, it

is entitled to careful consideration where an administrative

agency's interpretation of a statute is based upon, or is

consistent with his opinion.

Co1111ecticur Hospira Association

v. Commission on

Ho.1pita/s

Health Care, 200 Conn. 133,

143.

*6 The commissioner's ruling and the attorney general's

opinion relied on the legislative history

of

the statute,

including a statement by the legislator who reported the

bill that it would exempt commission salesmen. She also

cited the bill's statement of purpose which was to remove

a hardship on highly paid commission salesmen and their

employers, and its title which was An Act Concerning

Commission Salesmen and Overtime.

In construing a statute and determining the legislative intent,

the court may take judicial notice

of

statements made by

the legislators in moving for acceptance of

the committee's

report and passage

of

the bill, particularly where they are

the only members who speak on the bill.

Miller

v.

Board( /'

Education, 166 Conn. 189, 194. Where the only speaker on

the bill is its sponsor, his statements are an authoritative

guide to the statute's construction and may be accorded

substantial weight where they are the only reliable indications

oflegislat ive intent. North Haven Board )fEducation v. Bell.

456 U.S. 512, 526-27 l 982).

The title

or

caption

of

a bill before the legislature may

properly be considered in determining the legislative intent

where the statute is doubtful

or

ambiguous in meaning.

State

1'. Faro, 118 Conn. 267, 262. The statement of purpose ofa

bill may also be a valuable aid in determining the meaning

of

the law after its enactment. Zichichi v. Middlesex Memorial

Hospital,

204 Conn. 399, 405.

The defendants, in their post-trial briefs, have also asked the

court to consider the 1989 amendment to the statute (Public

Act No. 89-24) which substituted the words

any

inside

salesperson whose sole duty is to sell a product or service

in place of

any

employee except outside salesmen. The

plaintiffs assert that the court cannot properly consider this

belated legislative action as having any bearing on the intent

of

the legislature in enacting the prior statutory exemption.

It should be noted that the issue before the court as

framed

by

the plaintiffs' complaint is

not

the correctness

of the defendants' long-standing position that the statutory

exemption applies only to inside salespeople. The court is

only being asked to decide the validity of the ruling made

by the commissioner on the stipulated facts before her in this


24/51

Muffler Shop o East Hartford, Inc. v. Department o Labor, Not Reported in A.2d 1990)

1990 WL 269179

case based on her legal conclusion that the exemption must

be interpreted as limited to compensation for sales.

The rule in this state is that a subsequent legislative act may

throw light on the legislative intent

of

a prior related act

and an amendment which in effect construes and clarifies a

prior statute must be accepted as the legislative declaration

of the meaning of the original act. Har(f'ord v. S11f ield, 137

Conn. 341, 346. However,

in

this case, the 1989 amendment

is clearly a change rather than a clarification in that it does

more than merely incorporate the particular administrative

interpretation which is the subject of this action. Cf. Grant

Cen/cr Huspital

v.

Health Group,

538 So.2d 804,

81

O

(\fas.1988).

*7 Apart from the Mechmet case previously discussed in this

opinion, the court's research has uncovered only one reported

state court case dealing with a commissions exemption

from a state overtime law. The California appellate court in

that case, which involved automobile mechanics, reversed the

trial court and upheld the labor department's interpretation

that employees must be involved principally in selling a

product or service, not making the product or rendering the

service. Keyes Motors

v.

Division

o

Labor Standards, 242

Cal.Reptr. 873 (Cal.App.1987).

The employer argued in the trial court that his employees were

an integral part of the sales force because their specialized

knowledge allowed them to diagnose needed repairs, but

the appellate court rejected that contention on the ground

that they were rendering services, and were not engaged

in selling. Id. The 1990 supplement to Volume 7A of

Words and Phrases, basing its definition of commission

wages on the Keyes decision, states (p. 180) that [i]n

order for compensation scheme to constitute 'commission

wages' within meaning of the overtime requirements of state

labor laws, employees must be involved principally in

selling

product or service, not making product or rendering service,

and amount of heir compensation must be percent

of

price of

product or service. (Emphasis added).

The plaintiffs have also requested this court to determine

whether 3 l-76i(g) , as construed and applied by

Defendants, is unconstitutionally vague. Their constitutional

argument is flawed because of the general principle that the

Constitution does not require impossible standards

of

clarity

in

statutes or administrative regulations. l 6A Am.Jur.2d,

Constitutional Law 818.

Our supreme court, in West v. Egan.

142

Conn. 437 at

443, sustained the minimum wage law against constitutional

attack on due process grounds and also held that the labor

department's administrative determination that tips should be

considered as part of he statutory fair minimum wage was not

an unconstitutional exercise

of

legislative power. The court

held that the statute must necessarily be broadly applied to

include a wide variety

of

way and means for paying wages,

and that a statute could not possibly be drawn to meet every

exceptional situation because

of

the wide range in the type

and quality of the service rendered in a particular situation.

Id. 445.

The United States Supreme Court has said that when an

agency is charged with administering a statute part of the

authority it receives is the power to give reasonable content

to the statute's textual ambiguities , and in exercising that

authority it must accommodate the conflicting policies that

have been committed to the agency's care by the statute.

Dcpartmelll

o

Treasury

v.

FLRA. 110 S.Ct. 1623, 1629

( 1990). The court noted that [i]t is not a task we ought to

undertake on the agency's behalf in reviewing its orders. Id.

1630.

*8 Overtime pay exemptions must be narrowly construed

against the employers seeking to asse11 them.

Arnold

v.

Kanowski,

361

U.S. 388, 392. To extend an exemption to

other than those plainly and unmistakably within its terms and

spirit is to abuse the interpretive process

...

Phillips Co. v.

1-Valling,

324 U.S. 490 at 493

J

945).

For the foregoing reasons, a declaratory judgment is entered

as follows:

1 The declaratory ruling issued by the labor commissioner

on May 4, 1988, that 31-76i(g)(2J of the General Statutes

must be interpreted as limited to compensation for sales, and

that because more than half of the earnings of the plaintiffs'

employees are derived from the performance of services

rather than sales the requirement had not been met, was

correct.

2 The employees are not exempt under

31-76i(g) of the

General Statutes from the statutory requirements that the

employer compensate its employees for overtime work.

3. Section 3 l-76i(g), as construed and applied by the labor

department, is not unconstitutionally vague.


25/51

Muffler Shop

o

East Hartford, Inc. v. Department

o

Labor, Not Reported in A.2d 1990)

199

W

269179

End

o

Document

c12014

Tt1ornson Reuters. No ciaim to oriqinal U.S. Government Worl\c;.


26/51

Nicholson v. Board of Firearms Permit Examiners, Not Reported in A.2d 1995)

1995 WL 584377, 15 Conn. L Rptr. 193

KeyCite Yellow Flag - Negative Treatment

Distinguished by Reveron v. Board of F rcarms Permit Ex 1111incrs.

Conn.Super ., May 26, 2009

1995 WL 584377

UNPUBLISHED

OPINION.

CHECK COURT

RULES

BEFORE CITING.

Superior Court

of Connecticut,

Judicial

District

of

Hartford/New

Britain, at Haitford.

Michael

T.

NICHOLSON

v.

BOARD OF

FIREARMS

PERMIT EXAMINERS.

No. CV 94 054 10 48.

Sept.

28, 1995.

MEMOR NDUM O DECISION

MALONEY, Judge.

1 PlaintiffMichael T. Nicholson appeals the decision of he

defendant board

of

firearms permit examiners revoking his

permit to carry a pistol or revolver. The board acted pursuant

to Genl'ral Statutes

29-32b. The plaint iff appeals pursuant

to

4-183. The court sustains the appeal.

The facts essential to the court's decision are not in dispute.

The

plaintiff had held a permit to carry a handgun, issued

by

the state police, for about thirty years. On March 4, 1994, the

state police revoked the permit.

In

the notice of revocation,

the police stated that the basis

of the revocation were two

incidents: the plaint iffs conviction

in

1964 on a misdemeanor

involving stolen property and his arrest

in

July 1993 on felony

charges of assault and risk of injury to a minor. The 1993

criminal charges were nolled

by

the state on

March

17, 1994.

The plainti ff appealed the revocation to the defendant board

in accordance with General Statutes 29-32b. The board held

a hearing de novo on the revocation at which the plaintiff

appeared and testified. A representative of the state police

also appeared and testified as did a detective from the Enfield

Police Department.

Following the hearing, the board rendered its final decision

affirming the revocation of the plaintiffs permit. n its

decision, the board made the following findings

of

fact:

1.

The appellant was arrested for Assault 2nd and Risk

of

Injury to a Minor. The charges were based on a complaint

that he beat his son with a belt. Both charges were nailed

on 3/17/94.

2.

The son has a history

of

difficult behavior and is

enrolled in a school for children with difficulties run by the

Newington Children's Hospital.

3. The appellant admits he hit his son with the belt but

claims most

of

the bruises came from his son falling

off

a

skate board. The evidence makes clear the bruises but not

their source.

4. The appellant held a permit for about 30 years without

any difficulties prior to this incident.

Based on those findings, the board concluded

that

there is

just and

proper cause for the revocation

of

a pistol permit

because based upon the facts produced at the hearing, the

appellant is not a suitable person.

n

accordance with its

findings and conclusions, the board affirmed the revocation

of

the

plaintiffs

permit.

The

plaintiff advances two arguments

in

support

of

his

appeal: (I) that the board wrongfully admitted and relied upon

hearsay evidence; and (2) that the board's decision constituted

an abuse of its discretion.

At the hearing before the board, a state police detective

testified as to the contents of the report of an Enfield police

officer and affidavits made in support of the warrant for the

plaintiffs arrest. An Enfield police officer also testified as to

the contents of

those documents.

The

reports and affidavits

themselves were not admitted in evidence and the author of

the police reports and the affiants

were not

present

at

the

hearing.

In

his

brief

to this court on appeal, and with some

justification, the pla intiff characterizes the allowance of this

testimony as revealing

a

complete and utter disregard for any

form

of

evidentiary protocol.

2

The problem with the plaintiffs objection to the board's

allowance of the police officers' testimony concerning the

contents

of

the documents is that it comes too late. General

Statutes 4-178 provides that (a)ny oral

or

documentary

evidence

may be

received

at

the administrative hearing

of

a contested case, and our courts have held that this includes

even hearsay evidence so long as

it

is reliable

and

probative.

Cassella

v

Civil Service Commission 4 Conn.App. 359, 362


27/51

Nicholson

v

Board of Firearms Permit Examiners, Not Reported in A.2d 1995)

1995 WL 584377, 15

Conn.

L

Rptr.

193

( 1985); affd202 Conn. 28. 33

t

1987). Furthermore, and with

particular relevance for this case, [w ]hen hearsay statements

have come into a case

without objection

they may be relied

upon by the trier, in proof of the matters stated therein,

for whatever they were worth on their face. (Citations and

internal quotation marks omitted; emphasis added.)

Volek v.

Mu::io

204 Conn. 507. 518 ( 1987).

In the present case, the record clearly shows that the plaintiff

made no objection to the testimony of the police officers at

the hearing. In his testimony, he did attempt to contradict

what they said, but he never objected to the admissibility of

their statements. In his brief

on

appeal, he points out that

he

was not represented by counsel at the hearing. He makes no

claim, however, that

he

was in any way denied the right or

opportunity to be represented. The court concludes that, in the

absence of any objection by the plaintiff at the hearing, it was

not error for the board to admit the testimony, including the

hearsay statements.

The plaintiff next contends that the board's ultimate decision

constituted an abuse of its discretion. In essence, the plaintiff

argues that the board had legally insufficient grounds for

revoking the plaintiffs permit even assuming the validity

of

its factual findings. In this regard, the plaintiff argues that the

board revoked the plaintiffs permit because it did not agree

with the plaintiffs means of parental discipline ...

t

is not

the duty of the board to revoke pistol permits as a means

of

governing family values. (Plaintiffs brief, pp. 13-14.) The

plaintiffs argument requires the court to review the board's

statutory authority to revoke handgun permits.

General Statutes 29-35 prohibits anyone from carrying a

pistol or revolver outside his or her home or business without

a permit issued pursuant to 29-28. That statute sets forth

the criteria and procedure for obtaining a permit to carry a

handgun. t is a two-step procedure under which the applicant

first obtains from the appropriate local official a permit to

carry a pistol in his or her town

of

residence and then obtains

a state-wide permit from the state police, acting in behalf

of

the commissioner

of

public safety. The statute provides,

in relevant part, that the local official will grant the permit

provided such authority shall find that such applicant intends

to make no use

of

any pistol or revolver which he may be

permitted

to c ny ...

other than a lawful use and that such

person is a suitable person to receive such pennit . The statute

provides no criteria for issuance

of

the state-wide permit by

the state police but provides, merely, that the commissioner

may, upon application, issue to any holder

of

any [local]

permit, a permit

to

carry a pistol or revolver within the state.

3 General Statutes 29-32 establishes the summary

procedure by which either the local authority or the

commissioner may revoke a permit. Any permit for the

caiTying of any pistol or revolver may be revoked by the

authority issuing the same for cause and shall be revoked by

the authority issuing the same upon conviction of the holder

of such permit of a felony or specified misdemeanor (not

applicable in this case).

General Statutes 29-32b(b) sets forth the standards for the

defendant board to follow in reviewing a revocation of a

permit by the local authority or the commissioner. On such

appeal the board shall inquire into and determine the facts, de

novo, and unless it finds that such

...

revocation ... would be

for just and proper cause, it shall order such permit to be ...

restored ...

As the board indicates in its decision, and argues in its brief to

this court, it considers that a determination that an individual

is not a suitable person, in the language of 29-28, is just

and proper cause for revocation of a permit under 29-32.

In the present case, the board concluded as a matter oflaw that

the plaintiff is an unsuitable person. The term suitable is

nowhere specifically defined in the pistol permit laws. The

term unsuitable person ,

as

used in the Board's decision,

also does not appear anywhere in the applicable statutes. In

its brief to the court on this appeal, the board cites Smith s

Appeal j wn County Commissio11e1:s 65 Conn. l 35,

138

(1894) holding:

The word suitable as descriptive

of

an applicant for license under

the statute, is insusceptible

of

any

legal definition that wholly excludes

the personal views

of

the tribunal

authorized to determine the suitability

of the applicant. A person is suitable

who by reason of his character

his reputation in the community, his

previous conduct as a licensee-is

shown to be suited or adapted to the

orderly conduct of [an activity] which

the law regards as so dangerous to

public welfare that its transaction by

any other than a carefully selected

person duly licensed is made a


28/51

Nicholson v. Board

of

Firearms Permit Examiners, Not Reported in A.2d 1995)

1995 WL 584377, 15

Conn. L Rptr.

193

criminal offense. It is patent that the

adaptability of any person to such

[an activity] depends upon facts and

circumstances that may be indicated

but cannot be fully defined by law,

whose probative force will differ in

different cases, and must in each

case depend largely upon the sound

judgment

of

the selecting tribunal.

(Emphasis added).

Since Smith's Appeal, there has been relatively little judicial

light shed on the scope of the term unsuitable person

as

employed by the board in determining whether a person

should continue to hold a handgun permit. In Rabbitt v

L onanl, 36 Conn.Sup. I08, 115, (1979), cited by the board

in

its brief, the Superior Court (Saden,

l

observed that the

governmental interest here is to protect the safety of the

general public from individuals whose conduct has shown

them to be lacking the essential character or temperament

necessary

to

be entrusted with a weapon. (Emphasis added.)

In Srurace v lv ariano, 35 Conn.Sup. 28 (1978 , cited by the

plaintiff in his brief, the Court of Common Pleas sounded

a similar note. In that case, the plaintiff, an employee of

Fairfield Hills Hospital, disobeyed the instructions

of

his

supervisor regarding the storage ofhis pistol on the grounds of

the hospital. The court, contrary to the findings of the board,

concluded that the plaintiffs insubordination did not render

the plaintiff unsuitable to hold a pistol permit. In reaching

this conclusion, the com1 noted that the record fails to show

any danger to inmates or to the public

or

other grounds for

upholding the revocation. Id., 33.

*4 These cases impose a special responsibility on agencies

such as the board, which must determine an individual's

suitability to hold a license. As indicated y the Supreme

Court of Errors in Smith's Appeal, supra, 65 Conn. 138,

the personal views

of

the agency members are necessarily

a factor in the decision, and similar facts and circumstances

will have varying probative force in different cases. In

accordance with General Statutes 4- l 83(i)( 6), however, the

board must avoid decisions which are arbitrary or capricious

or characterized by abuse of discretion or clearly unwarranted

exercise of discretion. As this court has previously held,

It

is incumbent on the agency in such cases ... to be reasonably

precise in stating the basis of ts conclusion that an individual

is 'unsuitable.' Otherwise, the decision on its face will be

susceptible to the interpretat ion that it is unduly subjective, an

essentially arbitrary act. Wend

v

oard

o f

Firearms Permit

Examiners, Superior Court, judicial district

of

Hartford/New

Britain at Hartford, Docket No. CV92

051

86 55 (May 28,

1993).

The court presumes that the tenn unsuitable as used by the

board means not suitable to hold a pistol permit within the

meaning

of

29-28, the statute governing the issuance of

such permits. In accordance with the Rabbitt v Leonard and

Starace v Mariano cases, supra, an unsuitable person under

that statute is one whose conduct indicates that he or she is

potentially a danger to the public if entrusted with a handgun.

In Smith's Appeal, the court indicates that the board may take

into account the person's reputation in the community and

his previous conduct

as

a licensee.

In the present case, the board sets forth very limited findings

of fact in support of its conclusion that the plaintiff is not

suitable to hold a permit. In essence, the facts that the board

states are the basis of its conclusion are that the plaintiff beat

his son with a belt on one occasion and was arrested as a

result.

All of the other facts set forth in the board's written decision

are either not probative or favor the plaintiff.

The court is well aware

of

he basic principle ofadministrative

law that the scope

of

the com1's review of an administrative

agency's decision is very limited. General Statutes

4-

l83U)

provides that (t)he court shall not substitute its judgment

for that of the agency as

to

the weight

of

the evidence

on questions of fact ... The court shall affirm the decision

of

the agency unless the court finds that substantial rights

of the person appealing have been prejudiced because the

administrative findings, inferences, conclusions, or decisions

are ... clearly erroneous in view of the reliable, probative,

and substantial evidence on the whole record. Nevertheless,

where the issue is one of law, the court has the broader

responsibility of determ

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