Opinion
No. CV 09 4020833S
March 17, 2011
MEMORANDUM OF DECISION
On February 11, 2010, the court issued an order in this administrative appeal by the plaintiff Restaurant Consultants, Inc. from a sanction issued by the defendant department of consumer protection (the department). The order found that the plaintiff did not contest the factual basis of the penalty, that patrons of the plaintiff's restaurant exited the premises and went onto a beach that adjoins the restaurant with alcoholic beverages.
The sole issue raised by the plaintiff in its appeal was that in 1979, when the plaintiff received its permit, a representative of the department's predecessor, the liquor control commission (commission), gave permission to the plaintiff under its permit to serve alcohol outdoors, both on the restaurant's patio and on the beach itself. The court, as stated in the order, remanded the matter to the department for further consideration of this issue, especially as there was indication that the extent of a "premises" was a factual issue prior to October 1979.
On August 10, 2010, the department made supplemental findings in reply to the court's remand. It found among other things that prior to October 1979,
5. . . . [R]estaurant premises were confined within the four walls of the building.
. . .
7. Prior to October 1, 1979, premises would not include the outside portion of the building.
8. Prior to October 1, 1979, premises with . . . restaurant permits were not allowed outdoor service of alcohol.
9. If an agent [of the commission] observed the outdoor service of alcohol, a violation of the Liquor Control Act would be charged by the agent for alleged "off-premises consumption."
. . .
11. There were no permanent patio approvals from the Liquor Control Commission prior to October 1, 1979.
. . .
13. While prior to October 1, 1979, restaurant . . . patrons may have been in possession of alcohol outside the legal premises, it would not have been sanctioned or with permanent approval of the [commission] prior to the enactment of the patio law on October 1, 1979.
14. Prior to October 1, 1979, except for isolated incidents for the benefit of a charity, outdoor service of alcohol at a café [or restaurant] was not allowed.
15. [There were no restaurant permits for outside service of alcohol], although service of food was allowed outside the premises.
16. [The plaintiff's] file . . . contained no permanent patio approvals and at least two temporary, one-day patio approvals.
17. [The commission's] agent . . . was aware that outside service of alcohol was expressly prohibited by regulations or laws.
18. . . . A supervising agent would have no authority or ability to make representations that would bind the commission.
The department concluded that prior to October 1979, a restaurant's premises was "defined as the space within the building or portion of a building in which the permitted business operated." The department also found that "prior to October 1979, the [commission] did not grant permanent approval for the outdoor service of alcohol to any café or restaurant." The department finally found that in 1979, "a liquor control agent had absolutely no authority to bind the [commission]."
When the appeal returned to this court, it was again remanded for the department to indicate its position on two additional matters:
1. Did the map of the premises have any bearing on the decision on remand and, if so, what were the [department's] conclusions regarding the map?
2. Did the testimony regarding the requirement of the chain link fence and subsequent inspection of the installed fence have any bearing on the decision on the remand and, if so, what were the [department's] conclusions regarding the fence?
The department responded on February 1, 2011. On issue 1, the department stated that the map had been considered in its decision on remand. "We find the map in question was received by the [commission] on January 26, 1979 . . . We find that the outdoor area designated by the chain link fence was for the service of food by the permit premises, but was not for any service of alcohol. While a premises could have something known as a patio for the service of food, the service of alcohol outdoors was not allowed . . . Prior to October 1, 1979, the [commission] often received sketches for applications for liquor permits that included patios on such sketches even though there was no legal service of alcohol outdoors.
On issue 2, the department stated that it was aware of testimony that an agent of the commission had recommended to the plaintiff that it erect a six-foot chain link fence and that the fence be such that a shot glass could not pass through it. Further, the agent had returned to the plaintiff's premises after its construction to inspect the fence. This testimony did not alter its findings relative to the outside service of alcohol prior to October 1, 1979. The department did not give this testimony weight, but favored the testimony of other witnesses that the commission had not, under the restaurant permit, authorized the service of alcohol within the area of the chain link fence. In addition, even if the commission's agent had recommended construction of the fence so that alcohol might be so served, he had no authority to bind the commission itself.
The court, having received the department's responses of August 10, 2010, and February 1, 2011, may now rule on the claim of the plaintiff, namely that the restaurant permit issued to the plaintiff in April 1979 authorized the service of alcohol in the area set forth on the "temporary map," exhibit A submitted at the March 5, 2010 hearing before this court.
The court rules under the following standard: "[The court] 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 . . . or in abuse of its discretion. . . . It is not the function of the Superior Court to retry the case . . . 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 action . . . The question that the Superior Court must answer is whether the record before the commission supports the action taken . . . We review the issues raised by the plaintiff in accordance with the limited scope of judicial review afforded by the UAPA . . . Under § 4-183(j)(5) and (6) of the UAPA, judicial review of administrative fact-finding is governed by the substantial evidence rule . . . 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." (Citations omitted; internal quotation marks omitted.) Rivera v. Liquor Control Commission, 53 Conn.App. 165, 168-69, 728 A.2d 1153 (1999). See also Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 955 A.2d 15 (2008); Livingston v. Dept. of Consumer Protection, 120 Conn.App. 92, 991 A.2d 570 (2010).
The court must defer to the factual findings of the department that the commission did not allow any outdoor service before October 1, 1979 and that plaintiff's permit did not authorize service of alcohol in the area shown on the map. Therefore the appeal is dismissed.