Opinion
No. CV 09 4020006 S
July 7, 2009
MEMORANDUM OF DECISION
This is a declaratory judgment action where the plaintiff, Frederick Cornelius, relates in his February 23, 2009 complaint, paragraph 4(b), that the defendant department of banking (the department) "denied [his] application . . . [as a loan originator] for reasons of `material misstatement' on the application, and for inability to find the requisite `character and integrity' of the applicant." The plaintiff continues in paragraph 5 that he desires a judicial determination that the department's "refusal to register the Plaintiff as a loan originator is not supported by the facts in the record and is arbitrary and capricious." He continues that the facts show that there were no misstatements on the application, that there were no material misstatements on the application, and the reasons provided by the department under General Statutes § 36a-489(b) are insufficient to establish a lack of "character and integrity" of the plaintiff. He alleges in paragraph 6 that this judicial determination is necessary so that he will "no longer be deprived of his basic property right to pursue a chosen profession." He seeks as relief that the department's decision be "overturned" and that the registration issue. The department has moved to dismiss the plaintiff's complaint for failure to exhaust his administrative remedies.
The parties agree that this is not an administrative appeal from a final decision in a contested case. § 4-166(2), (3). This case stands or falls on whether this is a properly brought declaratory judgment action. See Southern New England Telephone Co. v. Dept. of Public Utility Control, 64 Conn.App. 134, 140, 779 A.2d 817 (2001), appeal dismissed, 260 Conn. 180, 799 A.2d 294 (2002). Therefore the court need not consider the department's argument that it lacks subject matter jurisdiction because an appeal has been taken from an uncontested case.
While the plaintiff contends otherwise, our Supreme Court has noted that "[t]here is no absolute right of appeal to the courts from a decision of an administrative agency . . . Appeals to the courts from administrative [agencies] exist only under statutory authority . . ." (Citations omitted.) Sastrom v. Psychiatric Security Review Board, 291 Conn. 307, 315 (2009) (allowing declaratory judgment under § 4-176). The right to appeal, including a declaratory judgment action, is derived from the provisions of the Uniform Administrative Procedure Act (UAPA), § 4-166 et seq. Id.
The plaintiff argues that he has a constitutional right to a declaratory judgment. His citations, however, are distinguishable because specific statutory process is provided by the Uniform Administrative Procedure Act (UAPA).
While the plaintiff purports to bring the declaratory judgment under Connecticut Practice Book § 17-54, when the UAPA applies, §§ 4-175 and 4-176 must be satisfied. Peruta v. Dept. of Public Safety, Superior Court, judicial district of New Britain, Docket No. CV 074015984 (April 22, 2009, Cohn, J.). These sections require the plaintiff to submit a request for a declaratory ruling to the agency before the court may address the issues raised in the declaratory judgment. Non-compliance with these sections is grounds for dismissal on the lack of subject matter jurisdiction for failure to exhaust administrative remedies. Pinchbeck v. Dept. of Public Health, 65 Conn.App. 201, 205, 782 A.2d 242 (2001); Southern New England Telephone Co. v. Dept. of Public Utility Control, 64 Conn.App. 134, 140, 779 A.2d 817 (2001), appeal dismissed, 260 Conn. 180, 779 A.2d 294 (2002).
The plaintiff has not taken steps to comply with § 4-176(b). Pursuant to this section, the department issued regulations setting forth the procedure to obtain a declaratory ruling on "the applicability to specified circumstances of any statutory provision, regulation or final decision of the [department] on a matter within the jurisdiction of the agency . . ." Reg. § 36a-1-83(a). The petition for declaratory ruling must "state the facts and arguments that favor the action the petitioner proposes by including such data, facts and arguments . . ." Reg. § 36a-1-83(b).
Here the plaintiff sent a letter on March 10, 2008 to the commissioner of the department asking for a "greater degree of certainty and exactitude" for finding that he lacked character and integrity as required by § 36a-485 to 36a-498. He posed a series of questions regarding the department's determination. The commissioner replied on March 25, 2008, that he stood by his original denial of February 21, 2008, for the reasons stated therein.
The plaintiff's letter does not constitute a petition for a declaratory ruling and it was not treated as such by the commissioner. See affidavit of Tina M. Daigle, June 16, 2009. Since the plaintiff has not satisfied §§ 4-175, 4-176, the declaratory judgment action must be dismissed for failure to exhaust administrative remedies. Housing Authority v. Papandrea, 222 Conn. 414, 610 A.2d 637 (1992); Manchester Health v. Dept. of Public Health, Superior Court, judicial district of New Britain, Docket No. CV 99 0498514 (March 28, 2000, Satter, J.) (even "thrust" of letter does not satisfy § 4-176); Peruta v. Dept. of Public Safety, Superior Court, judicial district of New Britain, Docket No. CV 07 4015984 (May 12, 2009, Cohn, J.) (letter to department of public safety not a petition for declaratory ruling).
An illustration of why the plaintiff did not, in his March 10 letter, petition for a declaratory ruling is as follows. The plaintiff claimed in court on July 1, 2009, at the hearing on the motion to dismiss, that he was entitled to raise in his declaratory judgment action the issue of the constitutionality of the denial of his registration. This was not raised in his March 10 letter. The agency must have an opportunity to consider each issue before the matter may be reviewed by the court. Connecticut Mobile Home Ass'n., Inc. v. Jensen's, Inc., 178 Conn. 586, 589, 424 A.2d 285 (1979); Liberty Mobile Home Sales, Inc. v. Cassidy, 6 Conn.App. 723, 727, 507 A.2d 499 (1986).
Therefore the motion to dismiss is granted.