Opinion
No. CV04 400 26 80
May 24, 2005
MEMORANDUM OF DECISION
I. FACTS
The Board of Firearms Permit Examiners ("the Board") denied plaintiff's application for a pistol permit. In 1995, he was arrested while being pursued by the husband and father of his girlfriend and he brandished a gun. He was arrested on charges of threatening, reckless endangerment, and risk of injury to a minor. On June 18, 1995, he pled nolo contendere to a charge of creating a public disturbance in violation of C.G.S. § 53a-181a. The plaintiff's pistol permit was revoked in July 1995. Again on October 18, 1997 in Wallingford, while his permit was still revoked, it was alleged that the plaintiff entered a private residence without permission and that a disturbance ensued. It was alleged that while being arrested he physically resisted and mace was used to restrain him. Again, he pled nolo contendere to a charge of disorderly conduct in violation of C.G.S. § 53a-182(a)(3), a Class C misdemeanor. It should be noted that the first offense is an infraction. However, the second conviction is a misdemeanor.
As a result of the June 1995 arrest, plaintiff's pistol permit was revoked. In October of 2001 he reapplied for a pistol permit with the Hamden Police Department. On January 8, 2002 the plaintiff was advised that his application was denied because he was deemed unsuitable based on the arrest records, his prior permit revocation, and reports submitted to the Connecticut State Police.
The plaintiff appealed this decision on January 21, 2002. After the hearing on October 24, 2002 the Board denied plaintiff's appeal and determined that he was an unsuitable person to possess a pistol permit. In making its determination the Board found as follows:
1. The plaintiff failed to truthfully complete questions on his application for a pistol permit, in the criminal history section, with regard to prior arrest and convictions;
2. The plaintiff showed poor judgment when he displayed a confrontational manner during an incident on June 18, 1995 and as a result was subsequently arrested; and
3. The plaintiff has a previous 1997 conviction of disorderly conduct. (ROR, Exhibit B).
The plaintiff petitioned the Board for reconsideration and after a "reconsideration hearing" was held on December 4, 2003 wherein he testified on his own behalf and was given an opportunity to submit documentary evidence the Board again voted unanimously to uphold its October 28, 2002 determination. Plaintiff argues that the Board's denial is contrary to the facts and is thus arbitrary or unreasonable in light of the evidence presented.
II. STANDARD OF REVIEW
Judicial review of an administrative agency's action is governed by the Uniform Administrative Procedure Act (General Statutes, c. 54, §§ 4-166 through 4-189) and the scope of that review is very restricted. State Board of Labor Relations v. Freedom of Information Commission, 244 Conn. 487, 494, 709 A.2d 1129 (1998). General Statute § 4-183(j) states: "The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decision are: . . . (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion . . ." General Statutes § 4-183(j). "If the administrative record provides substantial evidence upon which the hearing officer could reasonably have based his finding . . . the decision must be upheld." Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 601, 590 A.2d 447 (1991). "Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred." Office of Consumer Counsel v. Department of Public Utility Control, 244 Conn. 18, 36 (1998). Conclusions of law reached by the administrative agency must stand if the Court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts." State Board of Labor Relations v. Freedom of Information Commission, 244 Conn. 495.
III. DISCUSSION A. Whether the Board erred in determining that the plaintiff was not a suitable person to hold a permit to carry a pistol within the meaning of C.G.S. § 29-28 et seq.The Board did not err. "In order to deem a person `unsuitable' to continue to hold a pistol permit, the law requires that there be facts sufficient to show generally that he or she lacks `the essential character or temperament necessary to be entrusted with a weapon.'" Fellows v. Board of Firearms Permit Examiners, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 558357 (February 7, 1997, Maloney, J.) ( 18 Conn. L. Rptr. 688), quoting Dwyer v. Farrell, 193 Conn. 7, 12, 475 (1984); Rabbitt v. Leonard, 36 Conn.Sup. 108, 115-16, 413 A.2d 489 (1979). The plaintiff claims that he was not confrontational during the July 18, 1995 incident. However, the plaintiff fails to address that the arrest itself contributed to the Board's finding that the plaintiff showed poor judgment, therefore rendering him unsuitable to possess a pistol. It does not make a difference that the plaintiff was confrontational during this incident. The fact that the plaintiff was even involved in this incident gave a basis for the Board to question his judgment and deem him unsuitable.
With regards to the 1997 disorderly conduct conviction, the Board did not base its decision on this conviction alone. This incident contributed to the Board's original determination that the plaintiff was not a suitable individual to possess a permit.
The Board is given the power to determine whether a person is suitable. Suitability "is not defined by the law so that its application can be determined as mere matter of eye-sight, but it is left necessarily to be determined solely by the judgment of the commissioners based upon inquiry and information." Batters v. Dunning, 49 Conn. 479, 480 (1882). There was substantial evidence in the record to support the Board's finding that the plaintiff was not a suitable person to hold a pistol permit. The plaintiff was arrested on two occasions. Both of these incidents seriously question the plaintiff's temperament and judgment. Additionally, the plaintiff did not give complete responses to the questions on the application with regard to prior arrests and convictions.
B. Whether the Board erred by concluding that the plaintiff failed to truthfully complete questions on his application in the criminal activity section with regard to prior arrests and convictions thus resulting in the revocation of his pistol permit.The plaintiff admits that he did not list two arrests and subsequent convictions on his application. The Plaintiff claims that he did not realize that a nolo contendere plea amounted to a criminal conviction and that the Board denied him the opportunity to explain his confusion in this regard. (Plaintiff's Brief, pp. 5-6.)
The plaintiff was given the opportunity at both Board hearings to testify on his own behalf and offer any exhibits to support his position. The record clearly reflects this. The plaintiff argued about his confusion regarding the meaning of his nolo contendere pleas at length. (ROR, Exhibits A and E.) The Board did not act improperly by not giving credit to the plaintiff's argument. The Board has the power to determine the credibility of witnesses and determine issues of fact. Williams v. Liquor Control Commission, 175 Conn. 409, 414 (1978).
IV. CONCLUSION
The Board did not err when it denied plaintiff's application for a pistol permit. The Board's determination is clearly based on all the criteria set forth in this opinion.
OWENS, J.T.R.