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Thread: McWhorter Appellate Court Decsion - SUITABILIYTY

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    McWhorter Appellate Court Decsion - SUITABILIYTY

    McWhorter Decision

    COMMISSIONER OF PUBLIC SAFETY v. BOARD OF FIREARMS PERMIT EXAMINERS ET AL.
    (AC 32595)

    DiPentima, C. J., and Bishop and Espinosa, Js.
    Submitted on briefs April 15—officially released June 14, 2011
    (Appeal from Superior Court, judicial district of New
    Britain, Schuman, J.)
    George Jepsen, attorney general, Richard Blumenthal,
    former attorney general, and Michael K. Skold and
    Robert W. Clark, assistant attorneys general, filed a brief
    for the appellant (plaintiff).
    George Jepsen, attorney general, and DeAnn S. Varunes,
    assistant attorney general, filed a brief for the
    appellee (named defendant).
    Opinion


    BISHOP, J. The plaintiff, the commissioner of public
    safety (commissioner), appeals from the judgment of
    the trial court dismissing his administrative appeal from
    the decision of the defendant state board of firearms
    permit examiners (board), reversing the commissioner’s
    decision to revoke the state pistol permit of the
    defendant Griffess McWhorter. On appeal, the plaintiff
    claims that the court improperly concluded that the
    board did not abuse its discretion in determining that
    McWhorter is a suitable person to hold a firearms permit.
    We affirm the judgment of the trial court.
    The record reveals the following undisputed facts
    and procedural history. McWhorter was issued a pistol
    permit in 2003. The commissioner revoked the permit
    on September 24, 2007, as a result of an incident in
    which McWhorter was found in possession of a weapon
    while operating a motor vehicle under the influence of
    alcohol. The relevant background facts are as follows.
    McWhorter was awakened by his wife in the early morning
    hours of August 12, 2007, when she informed him
    that their son was stranded in Hartford with a brokendown
    car. McWhorter had consumed substantial alcoholic
    beverages in his backyard during the prior evening.
    Intent on assisting his son, he quickly dressed,
    putting on the pants that he had been wearing the prior
    evening. As he got in his car and was leaving, he realized
    that he had a firearm in his pocket, which was later
    identified as a small silver and brown .32 caliber Derringer
    style handgun. The handgun was loaded with two
    bullets. At approximately 1:20 a.m., McWhorter was
    stopped by a Windsor police officer who had noticed
    that the rear registration plate light on his car was not
    illuminated. After observing his conduct, the officer
    requested that McWhorter exit the car to undergo a
    field sobriety test. He exited the car and informed the
    officer of the handgun in his pocket, which the officer
    confiscated. After failing the sobriety test, McWhorter
    was arrested and charged with possession of a weapon
    in a motor vehicle without a permit in violation of General
    Statutes § 29-38 and carrying a firearm while under
    the influence of intoxicating liquor or drugs in violation
    of General Statutes § 53-206d (a). Although he was
    cooperative at the scene, he was uncooperative and
    agitated during processing at the police station. A test
    of his blood alcohol content conducted at the station
    returned a result of 0.238. As a result of the incident,
    the commissioner revoked McWhorter’s pistol permit.
    All charges subsequently were nolled upon McWhorter’s
    successful completion of a pretrial alcohol education
    program.
    Following the commissioner’s revocation of his pistol
    permit, McWhorter appealed to the board pursuant to
    General Statutes § 29-32b (b),1 and a hearing was held
    on May 7, 2009, at which McWhorter and the arresting
    officer testified. In its subsequent memorandum of decision,
    the board reversed the commissioner’s decision
    to revoke the permit on the basis of its findings that
    the arrest was a single, isolated incident in McWhorter’s
    otherwise law-abiding life and that he was, therefore,
    a suitable person to hold a firearms permit. The commissioner
    appealed from the board’s decision to the Superior
    Court pursuant to § 29-32b (f).2 In a memorandum
    of decision filed July 13, 2010, the court dismissed the
    commissioner’s appeal, having found that the board’s
    decision neither violated the statutory scheme nor was
    arbitrary and capricious. This appeal followed.
    As a preliminary matter, we set forth the statutory
    scheme governing appeals from the revocation of firearms
    permits. Section 29-32b establishes a board of
    firearms permit examiners within the department of
    public safety whose function is to hear such appeals.
    Subsection (b) of § 29-32b provides in relevant part that,
    in hearing an appeal, ‘‘the board shall inquire into and
    determine the facts, de novo, and unless it finds that
    such a . . . revocation . . . would be for just and
    proper cause, it shall order such permit or certificate
    to be . . . restored . . . .’’ To supply the meaning of
    ‘‘just and proper cause’’ for revocation, our state courts
    have looked to the grounds for revocation set forth in
    General Statutes § 29-32 (b), which provides in relevant
    part that a firearms permit ‘‘shall be revoked by [the]
    commissioner upon conviction of the holder of such
    permit of a felony or of any misdemeanor specified in
    subsection (b) of section 29-283 or upon the occurrence
    of any event which would have disqualified the holder
    from being issued the state permit or temporary state
    permit pursuant to subsection (b) of section 29-28.
    . . .’’ See, e.g., Williams v. Board of Firearms Permit
    Examiners, Superior Court, judicial district of New
    Haven, Docket No. CV-94-0358071 (June 28, 1995). General
    Statutes § 29-28 (b), in turn, specifies ten grounds
    for mandatory disqualification. It also, more generally,
    provides the issuing authority with discretion to deny
    a firearms permit if it finds that the applicant intends
    to make an unlawful use of a permitted firearm or is
    unsuitable to hold such a permit. See General Statutes
    § 29-28 (b).
    In the present case, because McWhorter was not subject
    to mandatory disqualification under § 29-28 (b), the
    board applied the discretionary standard and determined
    that he is a suitable person to hold a firearms
    permit.4 The commissioner claims on appeal that he had
    just cause to revoke McWhorter’s permit and, therefore,
    that the board abused its discretion in overruling the
    commissioner’s decision. Because the commissioner’s
    claim places at issue the statutory scope of the board’s
    review, which has not been subject to prior judicial
    scrutiny, we begin by interpreting the statutory scheme
    as it pertains to this issue.5
    Our standard of review of an agency’s construction
    of a statute is well settled. Where, as in the present
    case, the statutory language has not been subject to
    judicial review and the agency’s interpretation is not
    time-tested, our review is plenary. Vincent v. New
    Haven, 285 Conn. 778, 783–84, 941 A.2d 932 (2008). We
    turn, therefore, to our normal task of statutory interpretation
    uninfluenced by prior administrative gloss.
    ‘‘When construing a statute, [o]ur fundamental objective
    is to ascertain and give effect to the apparent intent
    of the legislature. . . . In other words, we seek to
    determine, in a reasoned manner, the meaning of the
    statutory language as applied to the facts of [the] case,
    including the question of whether the language actually
    does apply. . . . In seeking to determine that meaning,
    General Statutes § 1-2z6 directs us first to consider the
    text of the statute itself and its relationship to other
    statutes. If, after examining such text and considering
    such relationship, the meaning of such text is plain and
    unambiguous and does not yield absurd or unworkable
    results, extratextual evidence of the meaning of the
    statute shall not be considered. . . . When a statute is
    not plain and unambiguous, we also look for interpretive
    guidance to the legislative history and circumstances
    surrounding its enactment, to the legislative
    policy it was designed to implement, and to its relationship
    to existing legislation and common law principles
    governing the same general subject matter . . . .’’
    (Internal quotation marks omitted.) Dept. of Public
    Safety v. Board of Labor Relations, 296 Conn. 594,
    599–600, 996 A.2d 729 (2010).
    Section 29-32b (b) provides in relevant part that,
    when hearing an appeal from the denial, revocation or
    limitation of a firearms permit, ‘‘the board shall inquire
    into and determine the facts, de novo, and unless it
    finds that such a refusal, limitation or revocation . . .
    would be for just and proper cause, it shall order such
    permit or certificate to be issued, renewed or restored
    . . . .’’ The commissioner’s essential contention is that
    the placement of the words ‘‘de novo’’ after ‘‘facts’’ and
    before ‘‘just and proper cause’’ indicates that the board
    may find facts de novo but must limit its consideration
    of just cause to assessing the propriety of the commissioner’s
    action. The statute, however, does not direct
    the board to determine whether the commissioner’s
    action ‘‘was’’ for just and proper cause but, rather, to
    find whether the action ‘‘would be’’ for just and proper
    cause. In other words, the statute plainly provides for
    a present determination and not merely a historical
    review of the commissioner’s action.
    Not only does the plain meaning of the text support
    this interpretation, but this outcome is in harmony with
    the statutory scheme governing the issuance and regulation
    of firearms permits. It is apparent that the commissioner
    has the statutory authority unilaterally to deny
    or revoke a permit without giving the aggrieved party
    the benefit of a hearing. See General Statutes §§ 29-28
    (b) and 29-32 (b). The opportunity for a hearing, subject
    to procedural safeguards, arises only if the aggrieved
    party timely appeals to the board, whose sole purpose
    is to hear such appeals. See General Statutes § 29-32b.
    It is, therefore, logical that § 29-32b directs the board
    to find facts de novo, given that a hearing in which
    aggrieved parties may present evidence and argument
    was not available to the issuing authority when it denied
    or revoked a firearms permit. It also follows logically
    that the legislature intended for the board to be able
    to draw its own conclusions as to whether the denial
    or revocation of a permit ‘‘would be for just and proper
    cause’’ from this more developed record. We conclude,
    therefore, that § 29-32b (b) plainly and unambiguously
    does not limit the board to a deferential review of the
    judgment of the issuing authority.
    Mindful of the board’s statutory mandate, we turn to
    the merits of the commissioner’s claim that the board
    abused its discretion in finding that McWhorter is a
    suitable person to hold a firearms permit and, therefore,
    that revocation would not be for just cause. We are
    not persuaded.
    ‘‘According to our well established standards,
    [r]eview of an administrative agency decision requires
    a court to determine whether there is substantial evidence
    in the administrative 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 evidence, whether the agency, in issuing
    its order, acted unreasonably, arbitrarily, illegally or in
    abuse of its discretion. . . . [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. Board of Labor Relations,
    supra, 296 Conn. 598–99.
    To determine whether the board abused its discretion
    in finding that McWhorter is a suitable person to hold
    a firearms permit, we look to the meaning of the phrase
    ‘‘suitable person.’’ Although not statutorily defined,
    ‘‘[t]he words ‘suitable person’ have a definite meaning
    in our law, and their use in the act furnishes a standard
    by which the [agency] must be guided.’’ State v. Vachon,
    140 Conn. 478, 485, 101 A.2d 509 (1953). ‘‘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 made a
    criminal offense. It is patent that the adaptability of
    any person to such a business 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.’’
    Smith’s Appeal from County Commissioners, 65 Conn.
    135, 138, 31 A. 529 (1894) (affirming grant of liquor
    license). 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.’’ (Internal quotation marks omitted.) Dwyer v.
    Farrell, 193 Conn. 7, 12, 475 A.2d 257 (1984).
    The commissioner argues that McWhorter’s conduct
    demonstrates that he lacks the essential judgment to
    be entrusted with a firearm, particularly in light of the
    fact that he carried a loaded handgun while under the
    influence of alcohol. Although the charges against him
    were nolled, McWhorter’s conduct, as charged, has
    been defined as criminal under § 53-206d. Moreover,
    McWhorter compounded his dangerous conduct by
    operating a motor vehicle while armed and intoxicated
    and by becoming agitated and uncooperative at the
    police station. We do not disagree with his own characterization,
    at the hearing before the board, that he felt
    ‘‘ashamed’’ of his behavior during the episode in
    question.
    Nevertheless, despite the gravity of McWhorter’s conduct
    and the charges that arose as a consequence, his
    conduct does not fall within any of the express statutory
    grounds for revocation or denial of a permit. There are
    ten grounds for mandatory disqualification in § 29-28
    (b), none of which pertains here. Although it may or
    may not be a matter of legislative oversight, we note
    that even if McWhorter had been convicted of carrying
    a firearm while under the influence of alcohol under
    § 53-206d, such a conviction is not enumerated as one
    of those that invokes mandatory disqualification under
    § 29-28 (b) (2).
    Additionally, we note that our decisional law posits
    that the determination of suitability to hold a permit
    depends largely on the sound judgment of the board.
    See Smith’s Appeal from County Commissioners,
    supra, 65 Conn. 138. Thus, for this court, on appeal,
    to conclude that McWhorter’s conduct demonstrated
    unsuitability per se would be to substitute our judgment
    for that of the board, which we may not do. See Dept.
    of Public Safety v. Board of Labor Relations, supra,
    296 Conn. 598.
    The board reversed the commissioner’s decision to
    revoke the permit on the basis of its following findings.
    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. We conclude that the board reasonably inferred that McWhorter’s dangerous conduct was a single, isolated incident and, therefore, did not abuse its
    discretion in determining that McWhorter is a suitable person to hold a firearms permit.


    The judgment is affirmed.


    In this opinion the other judges concurred.
    1 General Statutes § 29-32b (b) provides in relevant part: ‘‘Any person
    aggrieved by any refusal to issue or renew a permit or certificate under the
    provisions of section 29-28 or 29-36f, or by any limitation or revocation of
    a permit or certificate issued under any of said sections . . . may, within
    ninety days after receipt of notice of such refusal, limitation or revocation
    . . . and without prejudice to any other course of action open to such
    person in law or in equity, appeal to the board. On such appeal the board
    shall inquire into and determine the facts, de novo, and unless it finds that
    such a refusal, limitation or revocation . . . would be for just and proper
    cause, it shall order such permit or certificate to be issued, renewed or
    restored . . . .’’
    2 General Statutes § 29-32b (f) provides: ‘‘Any person aggrieved by the
    decision of the board may appeal therefrom in accordance with the provisions
    of section 4-183.’’
    3 General Statutes § 29-28 (b) provides in relevant part: ‘‘Upon the application
    of any person having a bona fide residence or place of business within
    the jurisdiction of any such authority, such chief of police, warden or selectman
    may issue a temporary state permit to such person to carry a pistol
    or revolver within the state, provided such authority shall find that such
    applicant intends to make no use of any pistol or revolver which such
    applicant may be permitted to carry under such permit other than a lawful
    use and 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 (1) has failed to successfully complete
    a course approved by the Commissioner of Public Safety in the safety and
    use of pistols and revolvers including, but not limited to, a safety or training
    course in the use of pistols and revolvers available to the public offered by
    a law enforcement agency, a private or public educational institution or a
    firearms training school, utilizing instructors certified by the National Rifle
    Association or the Department of Environmental Protection and a safety
    or training course in the use of pistols or revolvers conducted by an instructor
    certified by the state or the National Rifle Association, (2) has been convicted
    of a felony or of a violation of subsection (c) of section 21a-279, section
    53a-58, 53a-61, 53a-61a, 53a-62, 53a-63, 53a-96, 53a-175, 53a-176, 53a-178 or
    53a-181d, (3) has been convicted as delinquent for the commission of a
    serious juvenile offense, as defined in section 46b-120, (4) has been discharged
    from custody within the preceding twenty years after having been
    found not guilty of a crime by reason of mental disease or defect pursuant
    to section 53a-13, (5) has been confined in a hospital for persons with
    psychiatric disabilities, as defined in section 17a-495, within the preceding
    twelve months by order of a probate court, (6) is subject to a restraining
    or protective order issued by a court in a case involving the use, attempted
    use or threatened use of physical force against another person, (7) is subject
    to a firearms seizure order issued pursuant to subsection (d) of section 29-
    38c after notice and hearing, (8) is prohibited from shipping, transporting,
    possessing or receiving a firearm pursuant to 18 USC 922 (g) (4), (9) is an
    alien illegally or unlawfully in the United States, or (10) is less than twentyone
    years of age. . . .’’ (Emphasis added.)
    4 The commissioner also claimed before the trial court that the board
    improperly failed to determine, pursuant to § 29-28 (b), whether McWhorter
    intended to make an unlawful use of a permitted firearm. He has not raised
    this claim, however, in the present appeal.
    5 We note that the commissioner raised this issue before the trial court
    by asserting in his petition that the board’s findings were in excess of its
    statutory authority. The trial court’s memorandum of decision does not
    explicitly address the scope of the board’s review, but it appears to have
    assumed that the board has broad discretion.
    6 General Statutes § 1-2z provides: ‘‘The meaning of a statute shall, in the
    first instance, be ascertained from the text of the statute itself and its
    relationship to other statutes. If, after examining such text and considering
    such relationship, the meaning of such text is plain and unambiguous and
    does not yield absurd or unworkable results, extratextual evidence of the
    meaning of the statute shall not be considered.’’

  2. #2
    Regular Member Rich B's Avatar
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    Sounds like a fair resolution to me. It is a bit scary that the commissioner is that hell bent on enforcing his own 'laws' though, but this should be a good start to teaching him how it is going to be.

  3. #3
    Regular Member
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    I'm Impressed

    Or should I say, it's sad that it takes an Appellate court Judge to tell the Commissioner of Public Safety, whose duties are defined by law, what the law says. Overall it is a good outcome.
    “The Constitution shall never be construed... to prevent the people of the United States who are peaceable citizens from keeping their own arms.” —Samuel Adams

    "Here sir, the people govern." -- Alexander Hamilton (speech in the New York ratifying convention, 17 June 1788) Reference: The Debates of the Several State..., Elliot, vol. 2 (348)

    "I would rather be exposed to the inconveniencies attending too much liberty than to those attending too small a degree of it." -- Thomas Jefferson

  4. #4
    Regular Member Joeygee23's Avatar
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    Indeed the outcome is good. However; we as permitholders can not "slip up" and allow these things to happen. I realize he was helping his son, but whether it's a joint, a pint, or a 6 pack. Lock the gun up. Nothing good can happen with weapons and impairment. Again, I am pleased with the end result, not the the road taken to it.

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