Stratford Police Dept. v. Board of Firearms Permit Examiners

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STRATFORD POLICE DEPARTMENT v. BOARD OF
FIREARMS PERMIT EXAMINERS ET AL.
(SC 20580)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
Pursuant to statute (§ 29-28 (b)), certain officials or authorities may issue
a state pistol permit to an applicant if the official or authority determines
that such applicant is ‘‘a suitable person to receive such permit,’’ and
‘‘[n]o . . . permit . . . shall be issued’’ if the applicant ‘‘(2) has been
convicted of (A) a felony, or (B) on or after October 1, 1994, a violation
of section 21a-279 or section 53a-58, 53a-61, 53a-61a, 53a-62, 53a-63, 53a-
96, 53a-175, 53a-176, 53a-178 or 53a-181d [of the General Statutes] . . . .’’
The defendant L, who had submitted a state pistol permit application with the
plaintiff, the Stratford Police Department, appealed from the judgment
of the trial court, which reversed the decision of the named defendant,
the Board of Firearms Permit Examiners, to order the issuance of such
permit. The police department initially denied L’s application on the
basis of his prior conviction in New York of criminal possession of a
controlled substance, namely, ketamine. The police department con-
cluded that L’s conviction for possession of ketamine in New York was
equivalent to a conviction for possession of a controlled substance under
a Connecticut statute (§ 21a-279 (c)), and, because § 29-28 (b) (2) (B)
lists § 21a-279 as a crime that automatically disqualifies an applicant
from receiving a pistol permit if the applicant had been convicted there-
under, L was automatically disqualified from receiving a permit under
§ 29-28 (b). L then appealed to the board from the police department’s
denial of the permit. During an administrative hearing before the board,
the police department changed its position and asserted that, although
not a per se bar, L’s New York conviction rendered him unsuitable to
receive the permit under § 29-28 (b). During the hearing, the board
questioned L regarding his suitability, focusing on the circumstances
surrounding L’s prior arrest and conviction in New York, L’s history of
ketamine use, and L’s use of other drugs and alcohol. The board also
questioned L regarding the answers he provided in his appellant question-
naire, which he was required to submit to the board prior to the adminis-
trative hearing. The board ultimately decided that L was suitable to
receive a pistol permit and ordered that such a permit be issued. The
police department then filed an administrative appeal with the trial
court, which sustained the police department’s appeal. On appeal from
the trial court’s judgment in favor of the police department, held:
1. The trial court incorrectly concluded that § 29-28 (b) (2) (B) automatically
disqualifies a state pistol permit applicant with an out-of-state conviction
that is equivalent to a conviction under § 21a-279 from receiving such
a permit, as only a felony conviction or a conviction of those misdemean-
ors specifically enumerated in § 29-28 (b) (2) (B) constitutes a per se
bar to obtaining a state pistol permit under § 29-28 (b): the legislature
having previously used explicit language in other Connecticut statutes
to incorporate equivalent out-of-state convictions, this court concluded
that the absence of such language in § 29-28 (b) indicated that the
legislature intended that a conviction for one or more of the eleven
enumerated Connecticut offenses therein, but not a conviction for an
equivalent offense, would operate as a per se bar to obtaining a permit;
moreover, there was no merit to the police department’s claim that
reading § 29-28 (b) as barring permit applicants who have been convicted
of one or more of the eleven enumerated offenses, and not their out-
of-state equivalents, from receiving a pistol permit would lead to bizarre
and unworkable results insofar as it would result in different treatment
of individuals who pose the same risk to the public, as the legislature may
reasonably have intended to treat in-state and out-of-state convictions
differently and to have suitability determinations regarding out-of-state,
nonfelony convictions be made on a case-by-case basis; furthermore,
contrary to the police department’s claim, certain language in the statute
(§ 29-32) governing, inter alia, the revocation of existing pistol permits
did not require this court to read § 29-28 (b) to incorporate equivalent
misdemeanor convictions from extraterritorial courts of competent
jurisdiction.
2. The trial court improperly substituted its judgment for that of the board,
following the board’s determination, after a full hearing, that L was a
suitable person to obtain a state pistol permit, as this court could not
say that the board acted unreasonably, arbitrarily, illegally, or in abuse
of its discretion in making that determination: the record indicated
that the board considered and explicitly discussed the potential for
the different treatment of out-of-state offenders and of those offenders
convicted of similar crimes in Connecticut, the legislature’s purpose
in enacting § 29-28, and its own statutory interpretation analysis, and,
although the trial court, on the same record, may have come to a different
conclusion than that of the board, neither this court nor the trial court
may substitute its own judgment for that of the board with respect to
the weight of the evidence or questions of fact; moreover, there was
no merit to the police department’s claim that the board had abused
its discretion in determining that L was suitable to obtain a permit insofar
as his conduct, including the conduct that led to his drug conviction,
his confusing response to a question in the board’s appellant question-
naire, and his inability to explain to the board his response in the
questionnaire or to respond to simple inquiries during the hearing before
the board, demonstrated that he should not be entrusted with a weapon,
as the degree to which the board credited L’s responses to its questions,
L’s candidness regarding the answers in his appellant questionnaire, and
L’s overall comportment and demeanor were not for the trial court or
this court to second-guess.
Argued December 16, 2021—officially released April 26, 2022
Procedural History
Appeal from the decision of the named defendant
ordering the issuance of a temporary pistol permit to
the defendant Anthony Leo, brought to the Superior
Court in the judicial district of Fairfield and transferred
to the judicial district of New Britain, Tax and Adminis-
trative Appeals Session, where the case was tried to
the court, Cordani, J.; judgment for the plaintiff, from
which the defendant Anthony Leo appealed. Reversed;
judgment directed.
C.ChristianYoung,fortheappellant(defendantAnthony
Leo).
Alfred P. Bruno, for the appellee (plaintiff).
Opinion
McDONALD, J. General Statutes § 29-28 (b) prohibits
the issuance of a permit to carry a pistol or revolver if
the applicant has been convicted of a felony or certain
enumerated offenses under the Connecticut General
Statutes but contains no language prohibiting the issu-
ance of a permit on the basis of out-of-state, nonfelony
convictions. See General Statutes § 29-28 (b) (2). The
applicant in the present case had been convicted in
New York of a misdemeanor crime that, had it been
committed in Connecticut, would have been among the
enumerated offenses precluding him from obtaining a
permit. In this appeal, we must decide whether § 29-28
(b) prohibits the issuance of a permit for a pistol or a
revolver to an applicant under these circumstances. In
light of the fact that the legislature has previously used
explicit language in other Connecticut statutes to incor-
porate equivalent out-of-state convictions, we conclude
that the absence of such language in § 29-28 (b) (2)
(B) indicates that the legislature intended only for the
enumerated Connecticut offenses to operate as a per
se bar to obtaining a state pistol permit.
The defendant Anthony Leo,1 appeals from the judg-
ment of the trial court, which reversed the decision of
the named defendant, the Board of Firearms Permit
Examiners, ordering the issuance of a pistol permit to
the defendant. On appeal, the defendant claims that the
trial court erroneously read § 29-28 (b) (2) (B) to include
extraterritorial misdemeanor convictions, in contraven-
tion of the statute’s clear language and enumeration of
specific offenses that constitute a per se bar to obtaining
a pistol permit in Connecticut. The defendant also
claims that the trial court improperly substituted its
own judgment for the board’s judgment when it over-
turned the board’s determination that the defendant
was of suitable character to obtain a pistol permit. We
agree with the defendant and, accordingly, reverse the
judgment of the trial court.
The record reveals the following undisputed facts
and procedural history. In 2016 or 2017, the defendant
applied for a state pistol permit. The plaintiff, the Strat-
ford Police Department, denied the defendant’s applica-
tion on the basis of his conviction of criminal possession
of a controlled substance, ketamine, ten years prior, in
New York.2 Specifically, the police department con-
cluded that the ‘‘New York charge for criminal posses-
sion of ketamine is equivalent to [the] Connecticut
charge of [General Statutes §] 21a-279 (c), possession
of [a] controlled substance.’’ Pursuant to § 29-28 (b),
‘‘[n]o state or temporary state permit to carry a pistol
or revolver shall be issued under this subsection if the
applicant . . . (2) has been convicted of (A) a felony,
or (B) on or after October 1, 1994, a violation of section
21a-279 . . . .’’ (Emphasis added.) Thus, according to
the police department, the defendant’s conviction for
possession of ketamine in New York was an automatic
disqualifier for a pistol permit in Connecticut. The
defendant timely appealed from this denial to the board
pursuant to General Statutes § 29-32b.
In 2018, the board held an administrative hearing, in
which it considered the defendant’s appeal de novo.
Detective Michael Panton, on behalf of the police
department, reiterated the department’s position that
the defendant was automatically disqualified from
receiving a pistol permit in Connecticut based on his
New York conviction. A member of the board informed
Detective Panton that the defendant’s New York convic-
tion ‘‘is not an automatic disqualifier in Connecticut.
. . . [F]or it to be an automatic disqualifier [in Connect-
icut], it has to be the exact statute number. Even though
it may be an equivalent charge in another state, it’s not
an automatic disqualifier in Connecticut unless it’s a
felony.’’ Detective Panton represented that he was ‘‘not
aware of that.’’ The chairman of the board went on to
add: ‘‘We’re restricted to the specific expressed lan-
guage of the statute, and the language of the statute does
not say if you committed one of these misdemeanors
or [its] equivalent . . . and specifically identifies Con-
necticut penal code sections. So, we’re restricted to
those being automatic disqualifiers.’’
The police department then changed its position and
argued, instead, that, although not a per se bar, the
defendant’s New York conviction rendered him unsuit-
able to receive the permit under § 29-28 (b). As a result,
the police department argued, the defendant did not
satisfy this separate statutory requirement, and, there-
fore, the board should still decline to order the issuance
of the permit. See General Statutes § 29-28 (b). The only
evidence the police department relied on to establish
that the defendant was unsuitable for the permit was
his prior New York conviction. The board proceeded to
question the defendant regarding his suitability. Board
members asked questions about the circumstances sur-
rounding the defendant’s arrest and subsequent convic-
tion in New York, the defendant’s history of ketamine
use, and the defendant’s use of other drugs and alcohol.
The board also questioned the defendant regarding the
answers he provided in his appellant questionnaire.3
The police department had the opportunity to cross-
examine the defendant. Ultimately, at the close of the
hearing, the board, having rejected the police depart-
ment’s interpretation of § 29-28 (b) (2) (B) and having
concluded that the defendant was suitable to receive
the permit, reversed the police department’s decision
and ordered the issuance of a pistol permit to the defen-
dant.
Pursuant to the Uniform Administrative Procedure
Act (UAPA), General Statutes § 4-166 et seq., the police
department appealed from the board’s decision to the
trial court, which, following a hearing, rendered judg-
ment sustaining the police department’s appeal. Ulti-
mately, the trial court rejected the board’s interpreta-
tion of § 29-28 (b), concluding that ‘‘§ 29-28 (b) (2) (B)
prohibits the issuance of a pistol permit to a person
convicted of possession of controlled substances as
provided for under § 21a-279 and equivalents thereof.’’
(Emphasis added.) The trial court also held that ‘‘the
board abused its discretion in finding that [the defen-
dant] was suitable to receive a Connecticut pistol permit
. . . .’’ The court specifically faulted the board for its
failure to consider certain ‘‘factors,’’ including ‘‘the leg-
islative intent, the danger posed by providing pistol
permits to persons known to abuse controlled sub-
stances, and the inappropriate differentiation between
similarly situated applicants.’’ The defendant appealed
from the judgment of the trial court to the Appellate
Court, and the appeal was thereafter transferred to
this court.
On appeal to this court, the defendant argues that
the trial court improperly wrote an ‘‘equivalency test’’
into § 29-28 (b) (2) (B), requiring the issuing authority to
compare any out-of-state misdemeanor to the automatic
disqualifiers enumerated in the statute. The defendant
argues that the plain and unambiguous language of § 29-
28 (b) (2) (B) and the legislature’s failure to include
out-of-state equivalency language in the statute, when
it has done so in other statutes, demonstrate that the
legislature did not intend for out-of-state misdemeanor
convictions to constitute a per se bar to the issuance
of a pistol permit. Thus, the defendant contends, pursu-
ant to § 29-28 (b) (2) (B), his misdemeanor conviction
in New York is not a per se bar to obtaining a pistol
permit in Connecticut. The defendant also contends
that the trial court improperly substituted its judgment
for that of the board in determining that the defendant
was unsuitable to obtain his pistol permit under § 29-
28 (b).
The police department argues that the trial court
properly rejected the board’s interpretation of § 29-28
(b) (2) (B) as precluding only those persons convicted
of the offenses enumerated in the statute, and not their
out-of-state equivalents, from obtaining a pistol permit
in Connecticut. The police department argues that,
‘‘[w]hen read in context . . . § 29-28 (b) is decidedly
not plain and unambiguous . . . but instead requires
a fair and reasonable interpretation that avoids absurd
and unworkable results.’’ (Internal quotation marks
omitted.) The defendant’s interpretation, according to
the police department, would lead to bizarre and
unworkable results, as it would create ‘‘two classes of
defendants with regard to the issuance of a state permit
for the carrying of a pistol or revolver,’’ namely, ‘‘those
with out-of-state convictions and those with in-state
convictions.’’ The police department further argues that
the trial court correctly concluded that the board
abused its discretion in determining that the defendant
was suitable to receive a Connecticut pistol permit,
as ‘‘[i]t is clear from the hearing transcript that the
defendant should not be entrusted with a weapon
. . . .’’ We agree with the defendant and reverse the
judgment of the trial court.
I
We begin with the defendant’s claim that the trial
court erroneously interpreted § 29-28 (b) (2) (B) as pro-
hibiting the issuance of a pistol permit to a person with
an out-of-state conviction equivalent to a conviction
under § 21a-279. ‘‘This court reviews the trial court’s
judgment pursuant to the [UAPA] . . . . Under the
UAPA, it is [not] the function . . . of this court to retry
the case or to substitute its judgment for that of the
administrative agency.’’ (Internal quotation marks omit-
ted.) Meriden v. Freedom of Information Commission,
338 Conn. 310, 318, 258 A.3d 1 (2021). Although courts
generally afford ‘‘deference to the construction of a
statute applied by the administrative agency empow-
ered by law to carry out the statute’s purposes’’; (inter-
nal quotation marks omitted) Dept. of Public Safety v.
Freedom of Information Commission, 298 Conn. 703,
716, 6 A.3d 763 (2010); ‘‘[courts] do not defer to [an
agency’s] construction of a statute—a question of law—
when . . . the [provisions] at issue previously [have]
not been subjected to judicial scrutiny or when the
[agency’s] interpretation has not been [time-tested].’’
(Internal quotation marks omitted.) Dept. of Public Safety
v. State Board of Labor Relations, 296 Conn. 594, 599,
996 A.2d 729 (2010). When, as here, the statutory lan-
guage has not been previously subject to judicial review
and the agency’s interpretation is not time-tested, our
review is plenary. See, e.g., id., 600.
Whether § 29-28 (b) automatically bars an applicant
from obtaining a pistol permit based on an out-of-state
misdemeanor conviction presents a question of statu-
tory interpretation. We review § 29-28 (b) in accordance
with General Statutes § 1-2z and our familiar principles
of statutory construction. See, e.g., Vincent v. New
Haven, 285 Conn. 778, 784–85, 941 A.2d 932 (2008).
Section 29-28 (b) authorizes the issuance of pistol per-
mits in Connecticut under specified conditions. It pro-
vides in relevant part: ‘‘Upon the application of any
person having a bona fide permanent residence within
the jurisdiction of any such authority, such chief of
police, warden or selectman may issue a temporary
state permit4 to such person to carry a pistol or revolver
within the state, provided such authority shall find that
. . . such person is a suitable person to receive such
permit. No state or temporary state permit to carry a
pistol or revolver shall be issued under this subsection
if the applicant . . . (2) has been convicted of (A) a
felony,5 or (B) on or after October 1, 1994, a violation
of section 21a-279 or section 53a-58, 53a-61, 53a-61a,
53a-62, 53a-63, 53a-96, 53a-175, 53a-176, 53a-178 or 53a-
181d . . . .’’ (Footnotes added.) General Statutes § 29-
28 (b).
The first sentence of § 29-28 (b) gives the issuing
authority the power to issue a pistol permit to an appli-
cant only if the authority determines that such applicant
is ‘‘a suitable person to receive such permit,’’ which
is a factual determination to be made by the issuing
authority. See, e.g., Smith’s Appeal from County Com-
missioners, 65 Conn. 135, 138, 31 A. 529 (1894) (explaining
that determination as to whether given person is suit-
able ‘‘depends [on] 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 [on] the sound judgment
of the selecting tribunal’’); see also, e.g., Commissioner
of Public Safety v. Board of Firearms Permit Examin-
ers, 129 Conn. App. 414, 419, 21 A.3d 847 (noting that
issuing authority has discretion to deny firearms permit
‘‘if it finds that the applicant . . . is unsuitable to hold
such a permit’’), cert. denied, 302 Conn. 918, 27 A.3d 369(2011). The statute goes on to identify certain classes
of persons who are unsuitable per se, namely, those
who have been convicted of a felony or any of the eleven
offenses listed in § 29-28 (b) (2) (B).
Significantly, the eleven enumerated automatic dis-
qualifiers are all Connecticut statutory provisions. Sec-
tion 29-28 (b) (2) (B) makes no reference to out-of-
state equivalent offenses and does not contain language
providing that applicants who have committed out-of-
state crimes that have the same essential elements as
the crimes enumerated in § 29-28 (b) (2) (B) shall be
statutorily barred from obtaining a pistol permit in Con-
necticut. We find this omission significant, particularly
in light of the fact that the legislature has previously
used such explicit language in other Connecticut stat-
utes to incorporate equivalent out-of-state convictions.
See, e.g., General Statutes § 14-227a (g) (in context of
driving under influence statute, ‘‘a conviction in any
other state of any offense the essential elements of
which are determined by the court to be substantially
the same as [certain provisions] of this section . . .
shall constitute a prior conviction for the same offense’’
(emphasis added)); General Statutes § 17b-750 (‘‘[n]o
child care subsidy shall be paid to an unlicensed child
care provider if such provider has been convicted of
any crime involving sexual assault of a minor or serious
physical injury to a minor or any crime committed in
any other state or jurisdiction the essential elements
of which are substantially the same as such crimes’’
(emphasis added)); General Statutes § 38a-660 (n)
(insurer or agent must notify Insurance Commissioner
in writing upon learning that ‘‘surety bail bond agent
has been arrested for, pleaded guilty or nolo contendere
to, or been found guilty of, a disqualifying offense in
this state or an offense in any other state for which
the essential elements are substantially the same as
a disqualifying offense’’ (emphasis added)); General
Statutes § 46b-59b (‘‘no court shall make an order grant-
ing the right of visitation to a parent who has been
convicted of murder under [enumerated sections of the
Connecticut General Statutes], or in any other jurisdic-
tion, of any crime the essential elements of which are
substantially the same as any of such crimes’’ (empha-
sis added)); General Statutes § 53a-40 (a) (1) (defining
‘‘persistent dangerous felony offender’’ as individual
who stands convicted of certain crimes and was pre-
viously convicted of certain crimes enumerated in spe-
cific provisions in Connecticut General Statutes, or ‘‘in
any other state, any crimes the essential elements of
which are substantially the same as any of the crimes’’
(emphasis added)); General Statutes § 54-56g (a) (1)
(providing that certain individuals are per se ineligible
for pretrial alcohol education program, including per-
sons who have been convicted of certain violations of
Connecticut General Statutes and persons ‘‘convicted
in any other state at any time of an offense the essential
elements of which are substantially the same as [those
enumerated in Connecticut statutes]’’ (emphasis added)).
Because the legislature has explicitly stated in other
Connecticut statutes that out-of-state equivalent stat-
utes must be considered, we conclude that the absence
of such language in § 29-28 (b) (2) (B) indicates that
the legislature intended only for the enumerated Con-
necticut statutory provisions to stand as a per se bar
to obtaining a pistol permit in Connecticut. See, e.g.,
General Statutes § 1-2z (requiring courts to consider
statute in relationship to other statutes to discern its
meaning); Dept. of Public Safety v. State Board of Labor
Relations, supra, 296 Conn. 605 (it is well settled that
‘‘[this court is] not permitted to supply statutory lan-
guage that the legislature may have chosen to omit’’
(internal quotation marks omitted)). Had the legislature
intended for issuing authorities to consider out-of-state
equivalent convictions, it could have said so expressly,
as it did in the aforementioned statutes. See, e.g., Dept.
of Public Safety v. State Board of Labor Relations,
supra, 605–606; Felician Sisters of St. Francis of Con-
necticut, Inc. v. Historic District Commission, 284
Conn. 838, 851, 937 A.2d 39 (2008); Stitzer v. Rinaldi’s
Restaurant, 211 Conn. 116, 119, 557 A.2d 1256 (1989).
Reading the enumeration of automatic disqualifiers to
include out-of-state equivalent convictions ‘‘would con-
travene the doctrine of expressio unius est exclusio
alterius—the expression of one thing is the exclusion of
another—[under which] we presume that when the leg-
islature expresses items as part of a group or series, an
item that was not included was deliberately excluded.’’6
(Internal quotation marks omitted.) Mayer v. Historic
District Commission, 325 Conn. 765, 776, 160 A.3d 333(2017). Applying these principles, we decline to read
an equivalency provision into § 29-28 (b) (2) (B) when
the legislature did not include such a provision and,
accordingly, conclude that a conviction of a felony or
of only those enumerated Connecticut offenses consti-
tutes a per se bar to obtaining a pistol permit in Connect-
icut.
At oral argument before this court, the police depart-
ment conceded that the language of § 29-28 (b) is ‘‘clear
on paper’’ but nevertheless contends that reading the
provision as barring applicants who were convicted of
only the eleven enumerated offenses—and not their
out-of-state equivalents—from receiving a pistol permit
would lead to ‘‘bizarre and unworkable results,’’ as it
would result in differential treatment of defendants who
pose the same risk to the public. The police department,
quoting the trial court’s memorandum of decision, fur-
ther argues that such an interpretation ‘‘would allow
persons who engaged in prohibited controlled sub-
stance abuse to receive pistol permits, thereby failing
to protect the public from the dangers sought to be
eliminated by the legislature pursuant to the statute.
The foregoing interpretation would be discriminatory
because it would discriminate against persons who
were convicted [for] violating § 21a-279 in Connecticut,
while favoring persons who were convicted [for] identi-
cal behavior in any of the forty-nine other states. Lastly,
the foregoing interpretation would be dangerous
because it would not limit the danger associated with
providing pistol permits to people known to abuse con-
trolled substances.’’ (Internal quotation marks omitted.)
We are not persuaded.
In choosing not to extend the automatic disqualifica-
tion parameters to include outside jurisdictions, our
legislature may reasonably have intended to treat in-
state and out-of-state convictions differently because it
is aware of the significance of a conviction under the
eleven specific statutes set forth in § 29-28 (b) (2) (B),
and how such a conviction reflects on the applicant’s
suitability for licensure. For example, in Connecticut,
persons charged with a violation of § 21a-279 may be
eligible for a pretrial drug education and community
service program; see General Statutes § 54-56i (a); and,
upon successful completion, the charges against them
are dismissed. See General Statutes § 54-56i (f). Indeed,
a defendant may be eligible for participation in this
program multiple times before facing a conviction. See
General Statutes § 54-56i (b). Thus, a conviction may
reflect a kind of recidivism that the legislature deemed
disqualifying in the context of firearm licensure. Our
legislature may not have possessed the same certitude
with respect to out-of-state, nonfelony convictions, and
so decided to leave suitability determinations regarding
those crimes to a case-by-case basis. There is significant
divergence, after all, in each state’s penal laws and
accompanying statutory, plea bargaining and sentenc-
ing schemes, and a conviction for a violation of any
one of the eleven enumerated statutes in Connecticut
can carry very different implications than a conviction
for the same conduct in another jurisdiction. This is
because the laws of each state reflect the values, beliefs,
and judgments of the people of that state, codified by
the state’s legislature. See, e.g., State v. DiPaolo, 88
Conn. App. 53, 59, 868 A.2d 98 (‘‘[t]he various states
have different [penal] laws that reflect their people’s
judgments’’), cert. denied, 273 Conn. 935, 875 A.2d 544(2005). Thus, a conviction under § 21a-279 in Connecti-
cut, for example, may not hold the same weight or carry
the same concerns in another jurisdiction.
Perhaps recognizing these variances in each states’
laws, our legislature has chosen to exclude out-of-state
equivalency language in similar statutory schemes. For
example, General Statutes § 14-111, which governs the
suspension or revocation of a motor vehicle operator’s
license, provides separate channels through which the
Commissioner of Motor Vehicles may suspend an opera-
tor’s license. Subsection (a) gives the commissioner the
authority to suspend or revoke an individual’s motor
vehicle operator’s license ‘‘for any cause that he deems
sufficient . . . .’’ General Statutes § 14-111 (a). Subsec-
tion (b) enumerates certain offenses that, upon convic-
tion, result in the automatic suspension of an individu-
al’s motor vehicle operator’s license for a specified
period of time. See General Statutes § 14-111 (b).7 Like
the list of Connecticut crimes in § 29-28 (b) (2) (B), the
provision at issue in the present appeal, the enumerated
list of Connecticut offenses in § 14-111 (b) does not
contain out-of-state equivalency language. When con-
fronted with the issue of whether an out-of-state convic-
tion is a ground for the suspension of an operator’s
license in Connecticut, this court answered in the affir-
mative, stating that an out-of-state conviction can be
considered as part of the commissioner’s discretionary
authority to suspend an individual’s motor vehicle oper-
ator’s license ‘‘for any cause that he deems sufficient.’’
(Internal quotation marks omitted.) Hickey v. Commis-
sioner of Motor Vehicles, 170 Conn. 136, 139–40, 365
A.2d 403 (1976) (quoting General Statutes (Rev. to 1973)
§ 14-111 (a)), overruled in part on other grounds by
Tele Tech of Connecticut Corp. v. Dept. of Public Utility
Control, 270 Conn. 778, 855 A.2d 174 (2004). We did
not, however, conclude that an out-of-state conviction
is, per se, grounds for such suspension and must, in all
circumstances, be analyzed and evaluated in the same
manner as an equivalent Connecticut conviction. See
id., 142–43. Instead, we left it to the discretion of the
relevant authority—in that case, the commissioner—to
fashion an appropriate remedy. Id., 142.
Although not a per se bar to the issuance of a pistol
permit in Connecticut, an out-of-state conviction never-
theless may still be considered as part of the issuing
authority’s suitability determination. As we explained,
in order to be issued a pistol permit in Connecticut,
§ 29-28 (b) requires, among other things, that the issuing
authority conclude that a given applicant is suitable.
The legislature has determined that certain applicants,
namely, those persons who have been convicted of a
felony, or an offense in violation of § 21a-279 or General
Statutes §§ 53a-58, 53a-61, 53a-61a, 53a-62, 53a-63, 53a-
96, 53a-175, 53a-176, 53a-178 or 53a-181d, are unsuitable
per se. See General Statutes § 29-28 (b) (2). Individuals
who are not unsuitable per se may, nevertheless, be
denied a pistol permit if the issuing authority deter-
mines, in exercising its discretion, that such person is
unsuitable. See, e.g., Commissioner of Public Safety v.
Board of Firearms Permit Examiners, supra, 129
Conn. App. 419. Neither party disputes that the issuing
authority may consider an out-of-state conviction as
part of its discretionary suitability determination. In this
case, the police department made this very argument.
When the police department changed its position—from
arguing that the defendant’s New York conviction auto-
matically disqualified him from obtaining a permit pur-
suant to § 29-28 (b) (2) (B) to contending that the defen-
dant was unsuitable—the board proceeded on the
suitability theory; most of its questioning, to that end,
centered on the defendant’s New York conviction. Thus,
although the issuing authority may not treat an out-of-
state conviction as a per se bar, it is within its province
to consider any conviction that has not been specifically
enumerated by our legislature in § 29-28 (b) (2) (B) as
part of its discretionary suitability determination. We
therefore reject the police department’s contention that
reading § 29-28 (b) by its clear and unambiguous terms
to bar out-of-state equivalency comparisons would lead
to bizarre or unworkable results.
The police department also argues that the defen-
dant’s interpretation of § 29-28 (b) is inconsistent with
an entirely separate provision, General Statutes § 29-
32, which is located in the same chapter of the General
Statutes as § 29-28. Section 29-32 deals with, among
other things, the revocation of existing pistol permits
and not, like § 29-28 (b), the issuing of permits. Relevant
to the police department’s argument, subsection (a)
defines a ‘‘conviction’’ as ‘‘the entry of a judgment of
conviction by any court of competent jurisdiction.’’
General Statutes § 29-32 (a). Subsection (b) provides
in relevant part that a pistol permit shall be revoked
by the Commissioner of Emergency Services and Public
Protection ‘‘upon conviction of the holder of such per-
mit of a felony or of any misdemeanor specified in
subsection (b) of section 29-28 . . . .’’ General Statutes
§ 29-32 (b). The police department argues that, ‘‘if [this
court] were to accept the defendant’s limited interpreta-
tion of the ‘automatic disqualifiers,’ there would be no
need to define ‘conviction’ in § 29-32 (a)’’ because ‘‘the
only court of competent jurisdiction with respect to
‘any misdemeanor specified in subsection (b) of section
29-28’ would be in Connecticut . . . .’’ (Emphasis omit-
ted.) To avoid an interpretation that would render the
definition of ‘‘conviction’’ in § 29-32 (a) meaningless,
the police department argues, we must read § 29-28 (b)
as incorporating equivalent misdemeanor convictions
from extraterritorial courts of ‘‘competent jurisdiction.’’
We disagree.
The police department’s argument regarding the stat-
utory definition of ‘‘conviction’’ is flawed in two important
respects. First, the police department focuses only on
the latter portion of the definition of conviction, namely,
‘‘any court of competent jurisdiction,’’ at the expense
of the first portion of the definition, ‘‘the entry of a
judgment of conviction . . . .’’ General Statutes § 29-
32 (a). The import of the definition of ‘‘conviction,’’ as
set forth in § 29-32 (a), is that a state permit for carrying
a pistol or revolver may be revoked only once a judg-
ment of conviction is rendered. See General Statutes
§ 29-32 (b). Second, even focusing squarely on the lan-
guage ‘‘any court of competent jurisdiction,’’ the defini-
tion of ‘‘conviction’’ in § 29-32 (a) would not be rendered
superfluous if Connecticut courts are the only courts of
‘‘competent jurisdiction’’ to render a judgment of convic-
tion of any offense specified in § 29-28 (b). Plainly, a
family court or probate court in Connecticut, for instance,
would not be of ‘‘competent jurisdiction’’ to render a
judgment of conviction of any of the enumerated offenses
in § 29-28 (b) (2) (B). Cf. Levin v. State, 329 Conn. 701,
706, 189 A.3d 572 (2018) (‘‘[a] court lacks discretion to
consider the merits of a case over which it is without
jurisdiction’’ (internal quotation marks omitted)). In
sum, we reject the police department’s interpretation
of § 29-28 (b) (2) (B) and decline to read an equivalency
provision into the statute. We conclude that only a felony
conviction or a conviction of those offenses enumerated
in § 29-28 (b) (2) (B) constitutes a per se bar to obtaining
a state pistol permit.
We cannot say with certainty why the legislature
chose not to include an equivalency provision in that
statute, but what we can say with certainty is that the
policy decision to incorporate such an equivalency pro-
vision rests with that branch of government, not this
one. See, e.g., Castro v. Viera, 207 Conn. 420, 435, 541
A.2d 1216 (1988) (‘‘[I]t is up to the legislatures, not courts,
to decide on the wisdom and utility of legislation. . . .
[C]ourts do not substitute their social and economic
beliefs for the judgment of legislative bodies, who are
elected to pass laws.’’ (Internal quotation marks omit-
ted.)).
II
We turn, next, to the defendant’s claim that the trial
court improperly substituted its judgment for that of
the board, following the board’s determination—after
a full hearing—that the defendant was a suitable person
to obtain a pistol permit. We agree with the defendant.
As we have explained, judicial review of an adminis-
trative decision in an appeal under the UAPA is limited.
See, e.g., Murphy v. Commissioner of Motor Vehicles,
254 Conn. 333, 343, 757 A.2d 561 (2000). ‘‘According to
our well established standards, [r]eview of an adminis-
trative agency decision requires a court to determine
whether there is substantial evidence in the administra-
tive record to support the agency’s findings of basic
fact and whether the conclusions drawn from those
facts are reasonable. . . . Neither this court nor the
trial court may retry the case or substitute its own
judgment for that of the administrative agency on the
weight of the evidence or questions of fact. . . . Our
ultimate duty is to determine, in view of all of the evi-
dence, whether the agency, in issuing its order, acted
unreasonably, arbitrarily, illegally or in abuse of its dis-
cretion. . . . [A]n agency’s factual and discretionary
determinations are to be accorded considerable weight
by the courts.’’ (Internal quotation marks omitted.)
Dept. of Public Safety v. State Board of Labor Relations,
supra, 296 Conn. 598–99.
‘‘The ‘substantial evidence’ rule governs judicial
review of administrative fact-finding under the UAPA.’’
Dolgner v. Alander, 237 Conn. 272, 281, 676 A.2d 865(1996). ‘‘An administrative finding is supported by sub-
stantial evidence if the record affords a substantial basis
of fact from which the fact in issue can be reasonably
inferred. . . . The substantial evidence rule imposes
an important limitation on the power of the courts to
overturn a decision of an administrative agency . . .
and to provide a more restrictive standard of review
than standards embodying review of weight of the evi-
dence or clearly erroneous action. . . . The United
States Supreme Court, in defining substantial evidence
in the directed verdict formulation, has said that it is
something less than the weight of the evidence, and
the possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative
agency’s finding from being supported by substantial
evidence.’’ (Citations omitted; internal quotation marks
omitted.) Id.Our decisional law posits that the determination of
whether a given applicant is suitable to hold a permit—
save for the automatic disqualifiers listed in § 29-28
(b) (2)—depends largely on the sound judgment of the
issuing authority, in the first instance, and the board,
on appeal. See Smith’s Appeal from County Commis-
sioners, supra, 65 Conn. 138. Furthermore, although
‘‘suitable person’’ is not defined in § 29-28, ‘‘[t]he words
‘suitable person’ have a definite meaning in our law,
and their use in the [statute] furnishes a standard by
which the [agency] must be guided.’’ State v. Vachon,
140 Conn. 478, 485, 101 A.2d 509 (1953). This court has
previously defined a ‘‘suitable person’’ as one ‘‘who by
reason of his character—his reputation in the commu-
nity, 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 made a criminal
offense. It is patent that the adaptability of any person
to such a business depends [on] facts and circum-
stances 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
[on] the sound judgment of the selecting tribunal.’’
(Emphasis added.) Smith’s Appeal from County Com-
missioners, supra, 138.
In light of the evidence in the record, we cannot say
that the board acted unreasonably, arbitrarily, illegally
or in abuse of its discretion in concluding that the defen-
dant was a ‘‘suitable person’’ to receive a pistol permit.
Although the board did not issue a written decision
explaining the bases on which it determined that the
defendant was suitable to receive a pistol permit, there
is substantial evidence in the administrative record to
support its conclusion.
At the defendant’s administrative hearing, members
of the board extensively questioned the defendant about
his 2006 conviction of possession of ketamine. The
board asked the defendant several questions about his
ketamine use and learned that the defendant had recre-
ationally used ketamine as a ‘‘club drug’’ when he was a
young man, twelve years prior. The defendant indicated
that he used ketamine only three times and that he had
never used any other drug. He also indicated that he
does not drink alcohol. From the defendant’s answers
to the appellant questionnaire and the testimony
adduced at the hearing, the board further learned that
the defendant was then employed and had a family. As
noted by the defendant’s attorney, the board was also
able to ‘‘judge [the defendant’s] character by appear-
ances, by voice, [and] by the way he tried to answer
[its] questions as best he could without getting rattled
or without becoming hostile . . . .’’ Thus, given the
substantial evidence contained in the record to support
the board’s conclusion, we cannot conclude that the
board acted unreasonably, arbitrarily, illegally or in
abuse of its discretion when it determined that the
defendant is a suitable person to hold a pistol permit.
The trial court nevertheless concluded that the board
had abused its discretion when it found the defendant
suitable, despite his conviction for possession of a con-
trolled substance in New York, because it ‘‘did not prop-
erly consider . . . the legislative intent, the danger
posed by providing pistol permits to persons known
to abuse controlled substances, and the inappropriate
differentiation between similarly situated applicants.’’
We disagree.
Our review of the transcript of the defendant’s admin-
istrative hearing reveals that the board did, in fact,
discuss these various considerations. Following the par-
ties’ closing remarks and prior to voting, one of the
board members, who cast the sole vote against the
defendant, stated: ‘‘The legislature in Connecticut has
decided that certain misdemeanors would statutorily
bar someone from having a pistol permit if they
occurred after October 1, 1994. Now, I guess we have
to ask ourselves, why did [it] do that? In my opinion
. . . [the legislature] did it because the underlying
behavior that would result [i]n those convictions is so
egregious [that] someone should not have a pistol per-
mit, and, in effect, they are unsuitable. Now, we go
to New York, where the [defendant] in this case has
committed the exact same behavior that would result
in a disqualifying conviction in Connecticut, and just
by the chance that it happened to be a few miles over
the border, I don’t see how we can say he is suitable.
And my vote will . . . [be based on] the underlying
behavior and the legislative intent that, [if] that behavior
is unsuitable in Connecticut, to me, it is certainly unsuit-
able if it happens in another state.’’
The chairman of the board, in response to the afore-
mentioned board member’s comment, remarked: ‘‘I
don’t know what the legislative intent was to include
[§ 21a-279] as an automatic disqualifier. And it very well
may have been the underlying conduct which leads to
that arrest and that conviction that the legislature is
saying it makes a person unsuitable. But the burden,
in that case, is on the legislature to clarify the language.
We are required to make our findings based on the strict
interpretation of the language, expressed language of
all the statutes. And the language [of § 29-28 (b) (2)
(B)], as I mentioned earlier, does not say these charges
or their equivalent. And, if the legislative intent was to
zero in on the underlying [conduct that] leads to the
arrest and convictions of those automatic disqualifiers,
the burden is on the legislature to say, ‘or their equiva-
lent,’ or some such language. . . . I do understand the
argument that, if the legislature felt that the underlying
conduct made the person disqualified, then we can infer
from that that similar conduct in another jurisdiction
is proof, or at least a prima facie argument, that a person
is unsuitable. But all of those prima facie arguments
are rebuttable, and the question is, on a case-by-case
basis, whether they have been rebutted.’’
Subsequently, another board member commented:
‘‘[The] Connecticut legislature does not make law for
the state of New York; the state of New York does not
make legislation for the state of Connecticut. They are
two separate, distinct, individual states with . . . sets
of laws, rules and regulations.’’
Despite the trial court’s conclusion to the contrary,
our review of the record indicates that the board consid-
ered—and explicitly discussed—the potential for differ-
ent treatment of out-of-state offenders versus those con-
victed of similar crimes in Connecticut, the legislature’s
purpose in enacting § 29-28, and its own statutory inter-
pretation analysis. Although the trial court, on the same
record, may very well have come to a different conclu-
sion than that of the board, we emphasize that ‘‘[n]either
this court nor the trial court may retry the case or
substitute its own judgment for that of the administra-
tive agency on the weight of the evidence or questions
of fact.’’ Dolgner v. Alander, supra, 237 Conn. 280.
Finally, the police department argues that the board
abused its discretion in determining that the defendant
was suitable because the defendant’s conduct demon-
strates that he should not be entrusted with a weapon,
particularly in light of his ‘‘drug conviction and com-
plete, utter inability to adequately explain to the board
his responses to the board appellant questionnaire or
respond to simple inquiries.’’ The police department
further contends that the defendant’s answers to ques-
tions posed by the board were ‘‘incomprehensible and/
or contradictory,’’ that the defendant ‘‘was not credi-
ble,’’ and that the defendant ‘‘stumble[d] through . . .
his direct examination at the hearing . . . .’’ We are
not persuaded.8
The police department’s argument on this point stems
from the defendant’s response to question 19 in the
appellant questionnaire, which asked the applicant to
state any additional facts that would support his case.
The defendant answered: ‘‘My current employment
requires travel to Brooklyn, [New York]. Additionally,
I am married with [two] small children residing in a
home with several other family members, therefore
being away during the day from the home, it would be
prudent and wise to be allowed to maintain a firearm
in the home for protection, when I’m there.’’ Members of
the board expressed confusion regarding this response,
and the chairman inquired: ‘‘If you’re permitted, if this
board votes in your favor, and you are permitted to
carry a handgun, do you plan to carry that into Brooklyn,
New York?’’ The defendant indicated that he did not,
and the chairman asked: ‘‘Then why did you put that
down here as additional facts which support your
case?’’ The defendant replied that he ‘‘most likely just
read the question wrong,’’ and that his thoughts when
answering the question were to ‘‘restat[e] that, you
know, to have a firearm in the home, you know, for
protection, not to carry it to work with me.’’
As we have explained, ‘‘it is the exclusive province
of the trier of fact to make determinations of credibility
. . . . Questions of whether to believe or to disbelieve
a competent witness are beyond our review. As a
reviewing court, we may not retry the case or pass on
the credibility of witnesses. . . . We must defer to the
trier of fact’s assessment of the credibility of the wit-
nesses that is made on the basis of its firsthand observa-
tion of their conduct, demeanor and attitude.’’ (Internal
quotation marks omitted.) Frank v. Dept. of Children &
Families, 312 Conn. 393, 412, 94 A.3d 588 (2014). As
the finder of fact in this case, determinations regarding
the defendant’s credibility were squarely within the
province of the board. Despite the fact that the defen-
dant’s response to the appellate questionnaire, and sub-
sequent explanation to the board, might appear confus-
ing, we emphasize that the degree to which the board
credited the defendant’s responses to its questions, his
candidness regarding the answers in his appellant ques-
tionnaire, and his overall comportment and demeanor
are not for the trial court—or this court—to second-
guess. See Commissioner of Public Safety v. Board of
Firearms Permit Examiners, supra, 129 Conn. App.
424 (concluding that, when defendant’s conduct did
not fall within any of express statutory grounds for
revocation or denial of firearms permit, and board
determined that defendant was suitable person to hold
firearms permit, for court, on appeal, to conclude that
defendant’s conduct demonstrated unsuitability per se
‘‘would be to substitute [its] judgment for that of the
board, which [an appellate tribunal] may not do’’). We
therefore disagree with the police department’s con-
tention that the board abused its discretion in finding
that the defendant was suitable to obtain a pistol permit
in Connecticut on this basis.
The judgment is reversed and the case is remanded
with direction to render judgment sustaining the defen-
dant’s appeal.
In this opinion the other justices concurred.
1
The named defendant, the Board of Firearms Permit Examiners, did not
submit a brief or participate in oral argument before this court. Thus, any
references to the defendant are solely to Leo.
2
The defendant was convicted of misdemeanor possession of a controlled
substance in New York, in violation of New York Penal Law § 220.03, which
provides in relevant part: ‘‘A person is guilty of criminal possession of a
controlled substance in the seventh degree when he knowingly and unlaw-
fully possesses a controlled substance. . . .’’ N.Y. Penal Law § 220.03(McKinney 2000). At the time of the defendant’s New York arrest, ketamine
was classified as a schedule III controlled substance in New York. N.Y. Pub.
Health Law § 3306 (McKinney 2002).
3
As required by statute, the defendant timely submitted a letter to the
board requesting an appeal. See General Statutes § 29-32b (b). The defendant
also completed an appellant questionnaire and submitted the questionnaire
to the board. See State of Connecticut, Office of Governmental Accountabil-
ity, Board of Firearms Permit Examiners, ‘‘How Do I Appeal?,’’ available
at https://portal.ct.gov/BFPE/General/General/How-do-I-Appeal (last visited
April 18, 2022); see also General Statutes § 29-32b (c) (‘‘[t]he board . . .
may request such additional information from the appellant . . . as it deems
reasonably necessary to conduct a fair and impartial hearing’’).
4
Following the issuance of a temporary pistol permit, ‘‘the local authority
shall forward the original application to the [Commissioner of Emergency
Services and Public Protection]. Not later than sixty days after receiving a
temporary state permit, an applicant shall appear at a location designated
by the commissioner to receive the state permit. The commissioner may
then issue, to any holder of any temporary state permit, a state permit to
carry a pistol or revolver within the state.’’ General Statutes § 29-28 (b).
5
We note that, pursuant to federal law, it is unlawful for a person convicted
of a felony to possess a firearm. See 18 U.S.C. § 922 (g) (2018) (‘‘[i]t shall
be unlawful for any person . . . who has been convicted in any court of,
a crime punishable by imprisonment for a term exceeding one year . . .
to . . . possess . . . any firearm’’ (emphasis added)).
6
We acknowledge that, like all canons of construction, the expressio
unius est exclusio alterius canon is not always useful in deciphering the
legislature’s intent. See, e.g., In re William D., 284 Conn. 305, 312–13 n.6,
933 A.2d 1147 (2007). In the present case, the police department argues that
the canon is inapplicable to our interpretation of § 29-28 (b) because the
circumstances do not support an inference that the terms left out, namely,
out-of-state equivalent convictions, were meant to be excluded. See, e.g.,
National Labor Relations Board v. SW General, Inc., U.S. , 137 S.
Ct. 929, 940, 197 L. Ed. 2d 263 (2017). We disagree.
In order for the expressio unius canon to apply to a statutory listing or
grouping, ‘‘the items expressed [must be] members of an associated group
or series . . . .’’ (Internal quotation marks omitted.) Barnhart v. Peabody
Coal Co., 537 U.S. 149, 168, 123 S. Ct. 748, 154 L. Ed. 2d 653 (2003). In
this case, the automatic disqualifiers enumerated in § 29-28 (b) (2) (B)
are members of an associated group; they are all Connecticut statutes.
Furthermore, we conclude that the circumstances do support an inference
that out-of-state equivalent convictions were meant to be excluded from
§ 29-28 (b) (2) (B), given that the General Statutes are replete with provisions
in which the legislature included out-of-state equivalency language. See, e.g.,
Mayer v. Historic District Commission, 325 Conn. 765, 777, 160 A.3d 333(2017) (‘‘[I]t is well settled that the legislature . . . is presumed to have
acted with knowledge of existing statutes and with an intent to create one
consistent body of law. . . . The General Assembly is always presumed to
know all the existing statutes and the effect that its action or [lack thereof]
will have [on] any one of them. And it is always presumed to have intended
that effect which its action or [lack thereof] produces.’’ (Internal quotation
marks omitted.)).
7
For example, General Statutes § 14-111 (b) (1) provides in part: ‘‘For a
first violation of subsection (a) or subdivision (1) of subsection (b) of section
14-224 or section 14-110, 14-215 or 53a-119b, for a period of not less than
one year and, for a subsequent violation thereof, for a period of not less
than two years . . . .’’
8
We note that, prior to the administrative hearing, the police department
did not assess the defendant’s suitability pursuant to its discretionary author-
ity to make a suitability determination, as it based its denial of the defendant’s
permit solely on his New York conviction.