Opinion
CV185024432S
04-04-2019
Robert G. RAFFALO, Sr. v. BOARD OF FIREARMS PERMIT EXAMINERS et al.
UNPUBLISHED OPINION
OPINION
Cohn, J.T.R.
The plaintiff, Robert Raffalo, has appealed to this court from a decision of the board of firearms permit examiners (the board) upholding the town’s denial of a pistol permit to the plaintiff. On September 20, 2018, the board conducted a hearing, on the denial of a pistol permit by the town, with the plaintiff present and testifying. He was represented by an attorney.
The plaintiff also named as a defendant Michael Spera, chief of police of the Old Saybrook police department. Defendant Spera concurs in the position of the board.
At the conclusion of the hearing, a member of the board stated that the police department had denied the permit on the basis of "suitability." He further stated: "The [police department] had concerns of suitability based on [the plaintiff’s] temperament, based on several incidents." These included a parking issue where a police officer was concerned over the plaintiff’s temperament, an incident on Halloween involving children who allegedly took a bowl of candy, and an incident involving a welfare check dispute with raised voices (Transcript, pp. 91-92).
Another board member stated that while the plaintiff "could rub someone the wrong way or gets angry ... I don’t know that they rise to the level of unsuitability" (Id., p. 92). Another board member had "grave concerns about issuing a pistol permit. The propensity for anger over relativity small items and issues that are not really that important. It makes me think that he loses his judgment fairly easily and quickly. And for him to have unfettered use of a firearm to me would be not a wise move" (Id., p. 93).
Finally another board member stated: "This is not about his character. He has had a long life in dealing with good causes and kids. But all of us at some point in time have to look forward to the future. I did note what I consider to be a lack of focus on the questions which were being asked and the answers that were being given, that concerns me greatly. I have to agree with [the other board member] that there is a risk in giving him the permit. Will he forget where it is? Will he get angered at somebody parking in his driveway? Somebody could knock on his door someday and him not expected, is he going to get into an argument because, yeah, he is argumentative. Most of us are at one time or another. It’s a matter of controlling that urge. I don’t feel comfortable with giving him a permit" (Id., pp. 93-94).
At the conclusion of these statements, the chairman called for a vote. After the vote by the six members present, a board member inquired: "Mr. Chairman, that’s a tie vote, yes?" The chairman replied: "No, it isn’t." Another board member stated: "4-2." the chairman again: "It’s 4-2." Then the board member that now realized there was no tie stated: "All right." The chairman stated: "Thank you." The transcript reads: "Proceedings concluded" (Id., p. 94).
The vote tally is on page 92 of the transcript.
This administrative appeal was filed on November 15, 2018. The plaintiff has represented that he filed the appeal 44 days after a written notice was sent to his attorney by the board on October 3, 2018.
General Statutes 4-183(c) requires that an administrative appeal be both filed and served within 45 days of the mailing of the final decision or within 45 days of the personal delivery of the final decision, as set forth in § 4-180. The deadline of § 4-183(c) is a matter of subject matter jurisdiction. Glastonbury Volunteer Ambulance Association, Inc. v. Freedom of Information Commission, 227 Conn. 848 (1993).
The plaintiff notes in a motion filed on March 29, 2019, that the board has now allowed for the filing of a written decision. But an issue of subject matter jurisdiction has arisen that must be addressed first, regardless of the board’s filing. Sempy v. Stamford Hospital, 180 Conn.App. 605, 610 (2018).
The question here, on whether the 45-day deadline to file was met, is when the final decision was rendered. According to the plaintiff, the board did not issue a final decision until his attorney received a notice on October 3, 2018. Therefore the appeal was timely filed by November 15, 2018. The board and the police chief argue to the contrary that the decision was orally announced at the September 20, 2018 hearing of the board. Under the defendants’ theory, the plaintiff had to file his appeal by November 5, 2018.
This letter from the board secretary reads as follows: "At the September 20, 2018 hearing of the [board] and pursuant to Section 29-32b ... the Board considered your appeal. The Board has voted to uphold the decision of Chief Michael Spera ... the denial of a temporary permit to carry pistols and revolvers. Chief Spera, by copy of this letter is being informed of the decision of the Board."
In the case of Commission on Human Rights & Opportunities v. Windsor Hall Rest Home, 232 Conn. 181 (1995), our Supreme Court considered the relevance of § 4-180(c) in resolving this issue. Section 4-180(c) provides in part as follows: "A final decision in a contested case shall be in writing or orally stated on the record and, if adverse to a party, shall include the agency’s findings of fact and conclusions of law necessary to its decision, including the specific provisions of the general statutes or regulations adopted by the agency upon which the agency bases its decision."
The CHRO in Windsor Hall argued "that, under the specific statutes and regulations governing its procedures, an order of the presiding officer dismissing a complaint must be in writing"(Id. at 186). The Supreme Court rejected this argument as follows: "There can be no question that the [Uniform Administrative Procedure Act] recognizes an appeal from an oral decision of an agency ... We conclude that this oral decision of the commission’s presiding officer was the ‘final decision’ of the commission that triggered the forty-five-day appeal period under the UAPA, and that neither the statutes nor the regulations regarding the commission take precedence over the UAPA by clearly mandating a written decision to trigger the right to appeal ...
"Section 4-180(c) specifically contemplates an oral decision precisely like that rendered in this case. As previously noted, the oral decision was stated ‘on the record’ in the presence of all interested parties, and it included ‘the agency’s findings of fact and conclusions of law necessary to its decision’ ... It was transcribed, and there is no suggestion that it was not based ‘exclusively on the evidence in the record and on matters noticed.’ "
In footnote 8, the Court continues: "In this respect, this procedure of the UAPA is analogous to that in other areas of the civil law. Pursuant to General Statutes § 51-53 and Practice Book § 4009, the time for taking an appeal runs from the rendering of a civil judgment in a nonjury case in open court in the presence of counsel." See also Freeport Motor Casualty Co. v. Tharp, 94 N.E.2d 139, 141 (Ill. 1950): "... There is a well-recognized distinction between rendering a judgment and entering a judgment" (emphasis in original).
In the plaintiff’s submission to the board of October 15, 2018, he acknowledges that he had "listened to the recording of the testimony given by all the parties."
Here the relevant statute of the board and its regulations support the result in CHRO v. Windsor Hall . Section 29-32b states that "decisions of the board shall be by majority vote and shall be communicated in writing to the appellant and to the issuing authority [the police department] within twenty days after the rendering of the decision." (Emphasis added.) Board regulation § 29-32b-12 provides: "Decisions of the Board ... shall be communicated in writing to the appellant and the issuing authority ... except when the decision is rendered and communicated to the parties at a time when the parties are in the presence of the Board ..."
In the case of DeBlasi v. Board of Firearms Permit Examiners, Superior Court, judicial district of New Britain, Docket No. CV 12 5015701S (April 2013) , the chairman announced the vote upholding the denial of the permit and stated "that is the order of the board; if you want to appeal to the Superior Court, let us know and we’ll give you a detailed Memorandum of Decision" (DeBlasi, transcript at 129-30). The court held that the oral decision stated at the hearing of the board was the final decision and the plaintiff was obliged to appeal within 45 days from that date. "No further written communication was necessary."
Moreover, both the statute and the regulation discuss time limits for the board to meet after the "rendering" of the decision. In deciding what the word "rendering" means, the court must employ the basic principle that "no word within a statute is to be rendered as mere surplusage." Germain v. Manchester, 135 Conn.App. 202, 209 (2012) (citations omitted).
The word "rendering" is a form of the verb "render." It means "To transmit or deliver ... to deliver formally." Black’s Law Dictionary, Tenth Edition. Webster’s 3rd New International Dictionary (1969) defines "Render" as "To hand down (a legal judgment)." See also Bogaert v. Zoning Board of Appeals, 162 Conn. 532, 535 (1972): "A judgment is in fact rendered in a cause tried to the court when the trial judge officially announces his decision orally in open court ..."
Here the chairman made no reference to the possibility of an appeal. However, the chairman called for a vote and announced the result in the presence of the plaintiff and the attorney that was representing him at the hearing. The plaintiff heard the discussion of the reasoning of the board, and later had a recording of the proceedings.
In DeBlasi, the chairman only mentioned an appeal after the vote for the possibility that the appellant would want to request a written decision. He gave no caution that the board had issued a final decision for purposes of an appeal.
Therefore the court concludes that the September 20, 2018 vote was the date on which the final decision was "rendered." The final decision was orally rendered on that date and the 45-day jurisdictional time period began to run on that date. The October 3, 2018 notice was not relevant to the calculation and the filing of the administrative appeal on November 15, 2018 was untimely.
As in DeBlasi, the plaintiff made no request for a written decision and none was issued. See the board’s response of March 5, 2019. The court does not have to consider what the effect the board’s possible issuance of a written decision would have upon its subject matter jurisdiction.
The plaintiff also argues that, pursuant to § 4-181a, a petition for reconsideration was filed, thus giving him an extension to appeal. It is true that under § 4-183(c)(2), the plaintiff would not have to file his appeal until the reconsideration was denied. The plaintiff sent an email to the chairman on October 15, 2019, indication that he had listened to the audio transcript and was outraged by the final decision. He stated that he considered this email to present new evidence. The board did not respond to this email.
While this email may constitute a request for reconsideration, a petition for reconsideration under § 4-181a must be filed within 15 days of the final decision. Here the petition was not timely filed within 15 days of the final decision on September 20th. Greco v. Commissioner of Motor Vehicles, 61 Conn.App. 137, 143 (2000) ("The plaintiff’s failure to file [the petition for reconsideration] in a timely manner implicates the court’s subject matter jurisdiction"). Therefore the petition was invalid and does not extend the time to appeal.
Therefore the appeal is dismissed as untimely.