Edward Peruta
Regular Member
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.’’
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.’’
