Loglisci v. Liquor Control Commission ( 1937 )

The present case is an appeal taken to the Superior Court from an action of the liquor control commission in revoking a package store permit issued to Raffele Loglisci, the appellant. The case was referred to a state referee and in his report the following facts appear:

On August 10th, 1935, the liquor control commission issued a package store permit to Raffele Loglisci, the appellant, for premises located at 99 Richmond Hill Avenue, Stamford. — By letter dated March 17th, 1936, the permittee was summoned by the commission to appear for a hearing on the revocation of the permit on March 23d 1936. On March 24th, by letter dated that date, the commission informed the permittee that his permit had been revoked and stated as a cause therefor the following: "Unsuitability of person. (1) By reason of employing a minor in a package store in violation of Section 1066c of the Cumulative Supplement to the General Statutes, Revision of 1935; and (2) By reason of not assuming the responsibility imposed upon a permittee by the Liquor Control Act and Section 3 of the Regulations of the Commission."

The appellant had conducted the package store for about four years under permits granted by the commission. During this period, he was more or less ill, necessitating his being at home for short periods, sometimes for only an hour or two. He has a wife and two daughters, one of whom is twenty-four years of age and the other twenty-one, and a son, Frank, nineteen years old. All live at home with the appellant on the floor above the package store. When he was unable to be in attendance at the store, his wife or his eldest daughter would be there; more particularly the daughter. The son was out of work and spent part of his time each day in the store taking care of such books as the permittee kept in the conduct of his business and making out orders for merchandise which his sister, when present, would indicate to him should be made out. At times, he was in charge of the premises alone; at other times, when the daughter was present, he would assist her in finding certain merchandise which was called for, and which she herself could not readily locate. On February 26th, 1936, an inspector of the commission visited the premises and found Frank in charge; no other member of the family being present at the time. The appellant had been confined to his home by illness for about a week, but, on being informed of the presence of the inspector, came down to the store. So far as appeared, Frank received no compensation for such services as he rendered except that he lived with his father and was supported by him.

Upon these facts, the Superior Court rendered judgment finding that the appellant was a suitable person to sell alcoholic liquor within the class of permit revoked and sustained the appeal upon the grounds, first, that the law did not prohibit the employment of a minor in a "package store;" and, second, that the permittee, who had his home on the floor above the store, was substantially on the permit premises all of the hours during which the law permitted the sale of alcoholic liquor, and his temporary absence from the store by reason of unavoidable illness at the time of the inspection of the premises was not sufficient ground to justify the suspension of his permit. From this judgment, the commission has appealed.

The pertinent provisions of the Liquor Control Act are appended in the footnote.^* The basic question before the trial court as well as the one before the commission was as to the suitability of the permittee. In determining this question, the commission exercised a discretionary power. Murphy v. Bergin,118 Conn. 249, 260, 171 A. 433; Malmo's Appeal,72 Conn. 1, 43 A. 485; Moynihan's Appeal, 75 Conn. 358,364, 53 A. 903; Farrell's Appeal, 85 Conn. 701,703, 84 A. 102. The exercise of that power is subject to review by the court and if it finds that the commission acted arbitrarily, unreasonably, in the abuse of its power, or illegally, its action will be set aside. Wilks v. Liquor Control Commission, 122 Conn. 443,445, 190 A. 262; Gwiazda v. Bergin, 121 Conn. 705,185 A. 416; Huntington Telephone Co. v. Public Utilities Commission, 118 Conn. 71, 80, 170 A. 679; Lazarevich v. Stoeckel, 117 Conn. 260, 262,167 A. 823; Skarzynski v. Liquor Control Commission,122 Conn. 521, 525, 191 A. 98. An examination of the applicable statutes cited in the footnote, and particularly 1066c of the Cumulative Supplement of 1935, discloses that while the employment of a minor in a tavern is prohibited, there is no provision which prevents the employment of a minor in a package store in any capacity except in the handling or delivery of alcoholic liquor. While the report of the referee states that the appellant's son was at times in charge of the premises alone and did at times assist his sister in finding merchandise, that he ever actually handled alcoholic liquor is not found and we cannot assume that he did so. Upon this record his employment therein was within the law and the action of the commission in revoking the permit upon this ground was without authority of law and therefore beyond its powers.

The rules of the commission require permittees to be on the permit premises substantially all of the hours during which the law permits the sale of alcoholic liquors. By the sections of the Liquor Control Act appended in the footnote, Cum. Sup. 1935, 1019c, the commission is given power to enforce the provisions of the act and "to make all needful rules and regulations for that purpose" and "generally to do whatever is reasonably necessary for the carrying out of the intent" of the act; and Cum. Sup. 1935, 1020c, provides that "every regulation made by the commission . . . shall have the same force and effect as law, unless and until set aside by some court of competent jurisdiction or revoked by the commission. . . ." The authority of the administrative body acting under such grant of power, is limited to the making of reasonable rules and regulations within the scope of the power granted. Ingham v. Brooks, 95 Conn. 317, 329,111 A. 209. "The power conferred to make regulations for carrying a statute into effect must be exercised within the powers delegated, that is to say, must be confined to details for regulating the mode of proceeding to carry into effect the law as it has been enacted, and it cannot be extended to amending or adding to the requirements of the statute itself." 12 C. J. 845; Panama Refining Co. v. Ryan, 293 U.S. 388, 430,55 Sup. Ct. 241; A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 529, 55 Sup. Ct. 837.

The word "substantially" as used in the regulation is a term of some elasticity, permitting something less than the presence of the permittee on the premises at all times; its significance is relative, necessarily relating to the purpose of the regulation. That purpose obviously is to assure that the permittee, approved by the commission as a suitable person to hold a permit, shall be in a position where he can exercise a direct and immediate control over the conduct of the business except for reasonably brief intervals. Unless the regulation be so construed as to permit such absences for a reasonable cause, its validity might be doubtful. However that may be, the question whether or not a permittee is present upon the premises substantially all the time is one of fact. The referee has not found that the plaintiff violated the regulation of the commission and we cannot hold this to be so as matter of law. It follows that the action of the commission in revoking the permit upon the ground that the plaintiff violated the regulation lacks the necessary factual support. We conclude that the trial court did not err in setting aside the order of the liquor control commission vacating the appellant's permit.

There is no error.

In this opinion the other judges concurred.