lazurek objection to motion to terminate stay
TRANSCRIPT
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
1/51
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
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
2/51
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,
2
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
3/51
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.
3
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
4/51
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
4
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
5/51
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.
5
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
6/51
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
6
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
7/51
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
7
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
8/51
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.
8
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
9/51
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.
9
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
10/51
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
10
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
11/51
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
11
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
12/51
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
12
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
13/51
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
13
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
14/51
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.
14
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
15/51
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]
15
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
16/51
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
16
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
17/51
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
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
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
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
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.
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
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.
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
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
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
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
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
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
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
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.
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
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;.
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
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
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
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
-
8/10/2019 Lazurek OBJECTION to Motion to Terminate Stay
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