Opinion
No. CV 07 4013885S
June 17, 2008
MEMORANDUM OF DECISION
This is an appeal by Eloise Ruiz, named plaintiff, and seventeen other plaintiffs from a March 27, 2007 final decision of the Department of Consumer Protection, Liquor Control Commission (Commission). The plaintiffs filed a remonstrance opposing an application for a liquor permit by William Sweedler (Sweedler) and Stew's Wines Spirits of Newington, LLC (Stew's Wines) as backer.
The following facts are not in dispute. William Sweedler and Stew's Wines have opened a liquor store in Newington, CT. The sole member of Stew's Wines is the Stuart J. Leonard Jr. Family Trust (Trust). The Trust is an irrevocable trust created by Stuart J. Leonard Jr. (Leonard) for the benefit of his children. The parties have stipulated that Leonard already has an interest in two other liquor permits. In their opposition to the application, the plaintiffs raised the following objections:
A. Granting the liquor permit will give Leonard an interest in more than two liquor permits in violation of Connecticut General Statutes § 30-48a;
The relevant portion of § 30-48a is as follows: (a) No person, and no backer as defined in section 30-1, shall, except as hereinafter provided, acquire an interest in more than two alcoholic beverage retail permits . . . a person shall be deemed to acquire an interest in a retail permit if an interest is owned by such person, such person's spouse, children, partners, or an estate, trust, or corporation controlled by such person or such person's spouse, children, or any combination thereof. The provisions of this subsection shall apply to any such interest without regard to whether such interest is a controlling interest.
B. The permittee, Sweedler, was not delegated full authority and control of the premises pursuant to § 30-47(6).
The relevant portion of § 30-47(6) reads: (a) The Department of Consumer Protection may, in its discretion, suspend, revoke or refuse to grant or renew a permit for the sale of alcoholic liquor if it has reasonable cause to believe: (6) that the applicant or permittee has not been delegated full authority and control of the permit premises and of the conduct of all business on such premises.
Return of Record (ROR) at 8, p. 1.
The commission held a hearing on February 8, 2007 "as a result of a legally sufficient remonstrance . . ." Id. According to their final decision, the commission's finding of facts was limited to the following: "Liquor Control Agent Finnegan conducted a thorough investigation in connection with the new application and the remonstrance. He found nothing questionable about the applicant or the proposed location based upon his investigation. There is proper zoning approval." Id.
In the agency's final decision, the commission found Sweedler to be a suitable applicant for a liquor permit. On the issue of holding more than two permits, the commission relied on an earlier Attorney General's opinion (Nov. 28, 2000) regarding a similar factual situation in reaching their decision. The commission interpreted the opinion to say that "30-48a may bar a liquor permit if it is found that the trust in question was controlled by disqualified members of the family of the existing permit holder." ROR at 8, p. 2. The commission decided that "In reviewing the details of the trust, we do not believe that any family members of Stewart J. Leonard, Jr. have control of the trust." Id. at p. 2. The commission further found that Sweedler had been delegated full authority and control over the premises. The commission denied the remonstrance and granted the liquor permit to Sweedler and Stew's Wines. ROR at 8, p. 2. This appeal by the plaintiffs followed.
In response to the plaintiffs' appeal, Defendant Sweedler raised the issue of whether there was proper aggrievement. The plaintiffs argue that they have pled proper statutory aggrievement under §§ 30-39(c) and 30-60.
The statutes provides, in relevant part, that: Any ten persons who are at least eighteen years of age, and are residents of the town within which the business for which the permit or renewal thereof has been applied for . . . may file with the department . . . a remonstrance containing any objection to the suitability of such applicant or proposed place of business.
The relevant portion states that: [A]ny ten residents who have filed a remonstrance pursuant to the provisions of section 30-39 and who are aggrieved by the granting of a permit by the department may appeal therefrom in accordance with section 4-183.
"It is well settled that pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is therefore fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved . . ." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-39, 833 A.2d 883 (2003). "Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Bingham v. Dept. Public Works, 286 Conn. 698, 702, 945 A.2d 927, 929 (2008). Missionary Soc. of Connecticut v. Board of Pardons and Paroles, 278 Conn. 197, 202, 896 A.2d 809, 813 (Conn. 2006). "[A]ny resident taxpayer of a town who feels aggrieved at the granting of a license for the sale of liquors therein, has the right of appeal . . . and that he is not bound to show any grievance or interest in the matter peculiar to himself . . ." Beard's Appeal, 64 Conn. 526, 534, 30 A. 775, 776 (1894); Loulis v. Liquor Control Commission, Superior Court, judicial district of Fairfield, Docket No. 0320627 (July 8, 1997, Levin, J.) [20 Conn. L. Rptr. 63].
General Statutes § 30-60 permits any ten residents who have filed remonstrance under § 30-39(c) who are aggrieved by the granting of a permit to appeal that decision to the Superior Court. The plaintiffs filed a remonstrance petition with the commission listing at least ten residents of Newington, CT as remonstrants. ROR at 5, attach. 1. In its final decision, the commission stated that the February 8, 2007 hearing was held "in accordance with Section 30-39(c) . . . as a result of a legally sufficient remonstrance . . ." ROR at 8. p. 1. There are eighteen plaintiffs named in the petition for appeal (complaint). Under Count 1, paragraph 1 in the complaint, the plaintiffs alleged that they are "resident taxpayers of the Town of Newington, Connecticut" and the commission admitted this allegation in paragraph 1 of its answer. Accordingly, the court finds that there is sufficient statutory aggrievement.
The plaintiffs claim that the commission's decision to grant the liquor permit violates § 30-48a because the trust gives Leonard and his children (the beneficiaries of the trust) an interest in more than two retail liquor permits. § 30-48a states that "a person shall be deemed to acquire an interest in a retail permit if an interest is owned by . . . an estate, trust, or corporation controlled by such person or such person's spouse, children, or any combination thereof." Because it is stipulated that Leonard already has an interest in two other liquor permits, the outcome of this case turns on whether Leonard, his spouse or his children control the trust in connection with the Newington liquor permit.
The attorney general provided an opinion to the commission in response to a similar situation on November 28, 2000. In that opinion, written by then Assistant Attorney General Robert Vacchelli, the attorney general found that the question in this situation is whether the person at issue, their spouse or their children controlled the trust that holds the permit. The opinion listed a number of factors to be considered by the agency in determining whether there was control such as: whether the trust was irrevocable; whether the children as beneficiaries can receive or demand distribution; whether the person at issue, their spouse or their children have power of appointment over the trust principal; the relationship of the trustees to the person at issue; whether the person at issue, a spouse or their children have the power of appointment and/or removal of trustees and successor trustees; and whether the trust holds the majority of shares in the company that holds the liquor permit. The assistant attorney general advised the commission to make its determination in light of the tests he described and based on the facts in the record. The commission was to be solely responsible for fact finding in the record.
"Although an opinion of the attorney general is not binding on a court, it is entitled to careful consideration and is generally regarded as highly persuasive." Conn. Hosp. Ass'n v. Comm'n on Hospitals Health Care, 900 Conn. 133, 143, 509 A.2d 1050, 1055 (1986). This court agrees that the above-listed factors should be considered when determining whether a person at issue controls a trust for the purposes of § 30-48a.
Turning to the present case, the court concludes that the commission's findings of fact in its final decision are not sufficient for the court to render an opinion in this matter. "A trial court may . . . conclude that an administrative ruling is in some fashion incomplete and therefore not ripe for final judicial adjudication." Lisee v. Commission on Human Rights and Opportunities, et al., 258 Conn. 529, 538, 782 A.2d 670, 676 (2001), Johnson v. Galvin, Superior Court, judicial district of New Britain, Docket No. 05 4005388S (October 27, 2005, Shaban, J.) [40 Conn. L. Rptr. 235]; after remand (January 30, 2007, Owens. J.). Here, the commission's final decision is incomplete and this case is not ripe for judicial decision. When an agency's conclusions are not accompanied by findings of fact essential to the court's review, it is proper to remand the case for further proceedings. Friedman v. Connecticut Bar Examining Committee, 77 Conn.App. 526, 543, 824 A.2d 866, appeal dismissed, 270 Conn. 457, 853 A.2d 496 (2003).
The matter is remanded for clarification of the findings of fact that the commission relied on in its final decision that the trust is not controlled by Leonard or any members of his family. In light of the attorney general's opinion, the court looks to the commission to make findings regarding whether Leonard is a trustee of the trust; whether Leonard's business or personal relationship with the trustee and successor trustee will give Leonard control over the trust; whether Leonard, his spouse or his children have power to appoint or remove trustees; whether Leonard's children have control over the trust through their rights to receive or demand distribution; whether Leonard's children have access to and/or control over the corpus of the trust; and whether Leonard will obtain an interest in the Newington permit through his children as beneficiaries of the trust. Additionally, the court asks the commission to determine whether Leonard's children already hold an interest in two liquor permits as beneficiaries of trusts for the Norwalk and Danbury liquor stores. The matter is therefore remanded to the Commission for further proceedings, including further hearings in the commission's discretion. The Court retains jurisdiction.
The court does not reach the second issue regarding full authority and control in the permittee.
CT Page 10139