DocketNumber: No. 36 70 92
Citation Numbers: 1991 Conn. Super. Ct. 2219
Judges: STENGEL, J.
Filed Date: 3/28/1991
Status: Non-Precedential
Modified Date: 4/18/2021
This is an appeal, pursuant to Conn. Gen. Stat.
In a Notice and Particulars dated June 27, 1989, the Department charged the plaintiffs with four violations of Conn. Dept. Reg.
In a motion to dismiss dated August 15, 1989, plaintiffs moved to dismiss a hearing on the first charge on the ground that the department lacked jurisdiction of it under Conn. Gen. Stat.
On August 15, 1989, a hearing of the Department's charges against the plaintiffs took place before three Commissioners of the Department. (RR. 7, Transcript). In a Notice of Decision dated August 17, 1989, the Department made findings of fact and held that Conn. Dept. Reg.
Conn. Gen. Stat.
It is fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved. Connecticut Business Industries Assn., Inc. v. CHHC,
Conn. Gen. Stat.
Conn. Gen. Stat.
In this case, notice of the Department's decision was mailed on August 17, 1989 (RR. 5, Notice of Decision) and plaintiff filed this appeal in the Superior Court on September 12, 1989, (Court File, Item 101, Appeal Petition), within the forty-five day requirement. Copies of the appeal petition were served on the agency and all parties of record on September 8, 1989 (Court file, Item 101, Sheriff's Return), also within the forty-five day requirement. Therefore, this appeal is both timely filed and served.
It is axiomatic that the burden of proof to demonstrate that the Department acted improperly is upon the plaintiff. Viola v. Liquor Control Commission,
A. Conn. Gen. Stat.
In their memorandum, plaintiffs argue that the Department did not have jurisdiction to hold a hearing pursuant to Conn. Gen. Stat.
Conn. Gen. Stat.
Although the parties dispute the meaning of this statute, "[a] statute does not become ambiguous solely because the parties disagree as to its meaning." Ford Motor Credit Co. v. B. W. Beardsley, Inc.,
Conn. Gen. Stat.
Sec.
30-55 . Revocation or suspension of permits; hearing; appeal to stay proceedings. The department of liquor control may, of its own motion, revoke or suspend any permit upon cause found after hearing, provided ten days' written notice of such hearing has been given to the permittee setting forth, with the particulars required in civil pleadings, the charges upon which such proposed revocation or suspension is predicated and provided no permit shall be suspended or revoked for any violation of this chapter of of which the permittee or his servant or agent was finally found not guilty by, or received dismissal in, a court having jurisdiction thereof, and no disciplinary action shall be taken thereafter by said department against the backer or such permittee, servant or agent, and provided the department shall not initiate hearing proceedings pursuant to this section based upon any arrest which has not resulted in a conviction. CT Page 2223 Any appeal from such order of revocation or suspension shall be taken in accordance with the provisions of section4-183 .
Mr. DiPersio was arrested for promoting obscenity. That criminal charge was nolled. It was not dismissed nor was there a finding of not guilty in that there was no trial.
Also Mr. DiPersio was arrested for promoting obscenity and the disciplinary proceedings were based upon nude conduct at the Pompei Restaurtant, which was an alleged violation of the regulation not the penal statutes.
The Department did not proceed on the basis that Mr. DiPersio was arrested; rather it proceeded because it was alleged that a nude dancer performed at the restaurant and such conduct was in violation of regulation
Therefore, it is found that
Also the plaintiffs have failed to meet their burden of proof for establishing the applicability of Conn. Gen. Stat.
B. Sufficiency of Evidence in the Record Justifying the
Penalty of Revocation.
In their memorandum, plaintiffs argue that the penalty of revocation imposed by the Department was draconian, unduly harsh, not in accord with the usual punishment and not justified by the record. Specifically, plaintiffs, contend that because the violations caused no harm the punishment was unusually harsh and without support in the record. Plaintiffs also contend the harsh punishment of revocation has been reserved in the past for criminal acts in violation of statutes but not used in situations where violations have been found similar to the plaintiffs' violations.
The plaintiff has made no claim that there was insufficient evidence to support the Department's finding of violations of Conn. Dept. Reg.
As long as the decision is supported and the penalty CT Page 2224 does not exceed that allowable by statute, the court may not substitute its judgment. Sumara v. Liquor Control Commission,
3. Departments Review of Licensee's Record of Violations in Considering Which Penalty to Impose.
In their memorandum, plaintiffs argue that Pompei Cafe's record with the Department was considered by the Department without any notice to the plaintiffs and without any opportunity to contest or explain it. Specifically, plaintiffs contend that the Department's consideration of their prior record is a direct violation of Conn. Gen. Stat.
Plaintiff's further contend that the Department's reliance on "extra-record" evidence requires exclusion in the decision making process because the plaintiffs had no opportunity to rebut it or cross-examine its proponents. Plaintiffs rely on the rule that reliance on extra record evidence for important facts in deciding a case demonstrates substantial are judice and requires a remand. Connecticut Natural Gas Corporation v. PUCA,
Lastly, plaintiff contends that the failure of the Department to allow plaintiff to respond and present evidence on their past record constituted a violation of plaintiffs' due process rights. Plaintiffs have failed to cite any legal authorities in support of this allegation and issues not briefed are considered abandoned. State v. Ramsundar
The plaintiffs have failed to meet their burden of proof to demonstrate that the Department acted illegally, arbitrarily CT Page 2225 or in abuse of its discretion in considering the plaintiffs' record relative the disposition of the proceedings against the plaintiff.
For the reasons set forth, the Department's decision is affirmed and the appeal is dismissed.
Stengel, J.
Sumara v. Liquor Control Commission , 165 Conn. 26 ( 1973 )
Viola v. Liquor Control Commission , 158 Conn. 359 ( 1969 )
Hartford Distributors, Inc. v. Liquor Control Commission , 177 Conn. 616 ( 1979 )
Connecticut Natural Gas Corp. v. Public Utilities Control ... , 183 Conn. 128 ( 1981 )
Dadiskos v. Liquor Control Commission , 150 Conn. 422 ( 1963 )