RIVERA v. LIQUOR CONTROL COMM., 53 Conn. App. 165 (1999)

728 A.2d 1153

(AC 17946)Appellate Court of Connecticut

Landau, Schaller and Dupont, Js.

Syllabus
The plaintiff appealed to this court from the judgment of the trial court dismissing his appeal from the decision by the defendant liquor control commission denying his application for a cafe liquor permit. Held:

1. The trial court properly concluded that there were sufficient facts in the record to support the commission’s denial of the plaintiff’s application; there was a substantial basis for the conclusion that, given the number of similar permits in the area surrounding the plaintiff’s location and the character of the neighborhood, it would be detrimental to the public interest to grant the permit.

2. The plaintiff could not prevail on his claim that he was misled as to the nature of the commission hearing on his application; by citing the relevant statutory provisions and referencing the issues that would be considered, the commission adequately notified the plaintiff that the impact on the neighborhood would be considered.

Argued January 28

Officially released May 4, 1999

Procedural History
Appeal from the decision by the named defendant denying the plaintiff’s application for a cafe liquor permit, brought to the Superior Court in the judicial district of Hartford and tried to the court McWeeny, J.; judgment dismissing the appeal, from which the plaintiff appealed to this court. Affirmed.

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Alexander Aponte, for the appellant (plaintiff).

Robert F. Vacchelli, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).

Opinion
LANDAU, J.

The plaintiff, Angel Rivera, appeals from the judgment of the Superior Court dismissing his administrative appeal. The named defendant, the state liquor control commission (commission),[1] pursuant to General Statutes § 30-46 (a)(1) and (3),[2] denied the plaintiff’s application for a cafe liquor permit.[3] On appeal to this court, the plaintiff claims that the Superior Court improperly (1) concluded that there were sufficient facts in the record to deny the application and (2) found that notice of the hearing was adequate. We affirm the judgment of the Superior Court.

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The following facts are not in dispute. The plaintiff applied for a cafe liquor permit in August, 1995, for premises located at 58 Rockwell Avenue, New Britain, formerly the site of a cafe owned and occupied by another individual not involved in this action whose permit had been revoked by the commission. Residents of the neighborhood filed a remonstrance, pursuant to General Statutes § 30-39 (c), and eighteen letters of protest objecting to the proposed location of the establishment. The commission issued a notice of hearing, advising the plaintiff that he would be required to present facts and evidence in support of his application for the liquor permit.[4]

In its written decision, the commission made the following findings of fact with respect to the character of the neighborhood: “[T]he proposed premises [are] in the heart of a residential neighborhood that is struggling to revitalize and improve its quality of life; there are several churches and two parochial schools, including St. Matthew’s, First Lutheran, St. Peter’s, St. John’s Lutheran, and Arco de Regio Pentecostal; there [are] a methadone clinic, Salvation Army, and senior citizen housing, as well as child daycare centers; and both the hearing and the permit records of the commission, of which the commission takes notice, reveal there are liquor outlets within close proximity to the proposed establishment.” The commission found the proposed premises unsuitable and denied the application. Specifically, the commission concluded that “based upon the facts of this case, it is the considered judgment of the

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commission that the addition of one more full-service cafe, in light of the character of this neighborhood, is not in the public interest and would have a detrimental effect. . . . We believe that the saturation point has already been reached with the existing establishments.”

Thereafter, the plaintiff appealed to the Superior Court, pursuant to General Statutes § 4-183. See Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq.[5] The Superior Court dismissed the plaintiff’s appeal. It concluded that “the decision of the commission is amply supported by the evidence in the record.” Moreover, the Superior Court concluded that the plaintiff “received sufficient notice as to the issues of suitability of the premises with respect to its location.” From that judgment, the present appeal ensued.

“The function of the court in reviewing the commission’s denial of a permit for the premises is not to reach its own conclusions upon the subordinate facts but only to determine whether the conclusion of the commission on such facts is unreasonable or illogical”; Campisi v. Liquor Control Commission, 175 Conn. 295, 296, 397 A.2d 1365 (1978); or in abuse of its discretion. Dolgner v. Alander, 237 Conn. 272, 280, 676 A.2d 865
(1996). It is not the function of the Superior Court to retry the case Williams v. Liquor Control Commission, 175 Conn. 409, 414, 399 A.2d 834
(1978). “Courts are bound by the findings of subordinate facts and reasonable conclusions of fact made by an administrative tribunal. The General Assembly, in defining an administrative body’s duties, can ordinarily state only general rules for its guidance by defining certain ultimate facts which it must find to exist before taking the prescribed

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action.” Campisi v. Liquor Control Commission, supra, 296. The question that the Superior Court must answer is whether the record before the commission supports the action taken. Williams v. Liquor Control Commission, supra, 414.

We review the issues raised by the plaintiff in accordance with the limited scope of judicial review afforded by the UAPA. Dolgner v Alander, supra, 237 Conn. 280. Under § 4-183 (j)(5) and (6) of the UAPA, judicial review of administrative fact-finding is governed by the substantial evidence rule. Dolgner v. Alander, supra, 281. “An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Internal quotation marks omitted.) Id.

I
The plaintiff first argues that the Superior Court improperly concluded that there were sufficient facts in the record to support the commission’s denial of his application. We are not persuaded.

Section 30-46 (a) provides: “The Department of Consumer Protection may . . . refuse to grant or renew a permit . . . if it has reasonable cause to believe . . . that the number of permit premises in the locality is such that the granting of a permit is detrimental to public interest, and, in reaching a conclusion in this respect, the department may consider the character of, the population of, the number of like permits and number of all permits existent in, the particular town and the immediate neighborhood concerned, the effect which a new permit may have on such town or neighborhood or on like permits existent in such town or neighborhood. . . .” “That provision confers broad discretion upon the . . . commission to grant or deny permits. . . . In Biz v. Liquor Control Commission, 133 Conn. 556, 561, 53 A.2d 655 [1947], [our Supreme

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Court] in considering the provisions of § 30-46 (a)(3) noted that `[a] principle and purpose may be read into the act to prevent the issuance of too many permits in certain localities, depending upon the character and number of the population and upon the number of existing permits in the locality. We hold that these are factual matters properly left to the determination of the commission.’ The determination of what constitutes too many permits in certain localities or neighborhoods is thus a question of fact, within the discretion of the administrative agency. Moreover, because of the danger to public health and welfare inherent in liquor traffic, the police power to regulate the liquor trade runs broad and deep, more so than comparable regulatory powers over other activities.” (Citations omitted.) Williams v. Liquor Control Commission, supra, 175 Conn. 411-12.

We are cognizant that the legislature, in permitting an administrative agency to take prescribed action, contemplates allowing that agency to draw a line somewhere, and we see nothing arbitrary or illegal in such a ruling as long as it is supported by evidence and the proper application of the statute to the facts. See Biz v. Liquor Control Commission, supra, 133 Conn. 562. In this case, the commission drew its line within the circle of supporting evidence concerning the number of permits existing in the neighborhood. The record clearly reveals that the commission’s conclusion that granting the permit would be detrimental to the public interest was made after receiving considerable evidence. As to the number of permits in the locality, the commission received evidence that there are at least two other bars one block away from the proposed premises. Moreover, a package store is located in close proximity to the proposed establishment. The neighborhood at issue is residential and struggling to revitalize, having been a dangerous area plagued by various forms of

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criminal activity[6] during the time that the previous cafe occupied the site. There are several churches, schools and child care centers in the community, along with senior citizen housing and a methadone clinic.

We conclude, therefore, that there was a substantial basis from which the commission reasonably could have inferred that granting the permit would have been detrimental to the public interest under § 30-46 (a) (3). The same findings could also have led the commission reasonably to infer that the proximity of the premises would have a detrimental effect on the organizations located in the neighborhood. See General Statutes § 30-46 (a)(1).[7]

In support of his argument that there were insufficient facts on which the commission could have based its decision, the plaintiff claims that the commission relied on facts that were not supported by evidence. Specifically, the plaintiff claims that there was no evidence presented regarding the types of permits held by the other establishments in the neighborhood or the names or locations of those establishments. In support of that argument, the plaintiff relies on Crescimanni v. Dept. of Liquor Control, 41 Conn. App. 83, 674 A.2d 851 (1996). That reliance, however, is misplaced. In Crescimanni, the commission rejected an applicant but failed to make findings or conclusions as to the number

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of permits in the vicinity. Here, unlike in Crescimanni, the commission took notice of the existence of two other bars in the immediate area, establishments that have similar permits, and liquor outlets that are within close proximity. The commission, therefore, reasonably could have inferred that given the number of similar permits in the area surrounding that particular location and the character of the neighborhood, “the saturation point [had] been reached with the existing establishments.”

In view of the highly deferential standard of review accorded to the actions of an agency, we are persuaded that the record contained substantial evidence to support the commission’s denial of the application under either subsection.[8]

II
The plaintiff finally claims that the Superior Court improperly found that notice of the hearing was adequate. Specifically, the plaintiff asserts that he was not given notice that the commission was evaluating the application under the standards incorporated in § 30-46 (a)(1) and (3) and, thus, the commission violated the fundamental fairness rule. We disagree.

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“[T]he test of whether one is given adequate notice is whether it apprises [the plaintiff] of the claims to be defended against, and on the basis of the notice given, whether [the] plaintiff could anticipate the possible effects of the proceeding.” (Internal quotation marks omitted.)Fleischman v. Board of Examiners in Podiatry, 22 Conn. App. 181, 191, 576 A.2d 1302 (1990). The plaintiff was notified that he was required to furnish facts and evidence in support of his application “relative to suitability of . . . place as provided by Chapter 545 of the Connecticut General Statutes and the Regulations of Connecticut State Agencies.” Chapter 545 of the General Statutes, the Liquor Control Act, includes the section cited by the agency in its decision, § 30-46 (a)(1) and (3). Furthermore, the plaintiff was also notified that the agency would consider the issues of remonstrance and the suitability of the premises.[9] The remonstrance and letters objecting to the location of the cafe, which were part of the record, include references to the proximity of the location to various organizations in the neighborhood and references to past incidents at the location.

We are persuaded that the plaintiff had advance notice that the commission, in reviewing the appropriateness of his proposed location, would also consider the impact that it would have on the neighborhood. We cannot say, therefore, that the plaintiff was misled as to the nature of the hearing. See, e.g., Hart Twin Volvo Corp. v. Commissioner of Motor Vehicles, 165 Conn. 42, 44, 327 A.2d 588 (1973). By citing the relevant chapter of the General Statutes and referencing the issues that would be considered, the commission provided the plaintiff with sufficient notice. See General Statutes § 4-177 (b).[10] The plaintiff was accorded his common-law

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right to fundamental fairness in administrative hearings. See Grimes v Conservation Commission, 243 Conn. 266, 273, 703 A.2d 101 (1997).[11]
We cannot say that the commission’s decision to deny the application for a liquor permit was unreasonable so as to constitute an abuse of discretion. We conclude, therefore, that the Superior Court properly dismissed the plaintiff’s appeal.

The judgment is affirmed.

In this opinion the other judges concurred.