Opinion
No. CV-04-0525451 S
February 7, 2005
MEMORANDUM OF DECISION
This administrative appeal was heard on December 7, 2004. Thereafter, the parties submitted supplemental briefs. After considering the record, and the arguments and briefs of the parties, the court issues this memorandum of decision.
Background
The plaintiffs, One Way Fare, Obie Martin, Permittee; and Obie Martin Enterprises, Backer (hereinafter referred to collectively as the plaintiffs or as One Way Fare), appeal from the memorandum of decision, issued after administrative hearing, in Docket No. 03-1338, by the State of Connecticut Department of Consumer Protection (Department), dated December 16, 2003 (decision), which found them in violation of General Statute § 30-86, for the sale or delivery of alcohol to a minor. One Way Fare is a restaurant located in Simsbury, Connecticut.
[Editor's Note: Footnote 1, which recites the language of Section 30-86(b), has not been included in the reported opinion.]
The Department held a formal administrative hearing concerning the matter on July 10, 2003 and August 28, 2003, after which it rendered its decision. In the decision, the Department denied the plaintiffs' motion to dismiss. The Department found that the alleged violation came to the Department's attention through a police referral from the Town of Simsbury Police Department. The Department found that, on May 24, 2002, at approximately 9:30 p.m., Mary Elizabeth D'Onofrio entered One Way Fare as part of a "sting" operation; she was a minor at the time, her age being twenty years and just over ten months. The Department found that, at the time in question, she walked to the bar and ordered a Bud Light beer from the bartender, which was served to her. The Department also found that D'Onofrio was not asked for identification.
The Department stated that it was unpersuaded by One Way Fare's defense of entrapment to the charge of sale to a minor. See decision, p. 2. It noted that, since 1998, General Statute § 30-87(2) has authorized the "type of undercover enforcement activity, as conducted here . . ." See decision, pp. 2-3. The Department suspended One Way Fare's cafe permit for a period of three days and for an additional period of ten days. In lieu of the additional ten-day suspension, the Department stated that it would accept payment of a fine of $750.00. This appeal ensued.
Section 30-87(2) provides, "Any person who induces any minor to procure alcoholic liquor from any person permitted to sell such alcoholic liquor shall be subject to the penalties prescribed in section 30-113. The provisions of this section shall not apply to (1) the procurement of liquor by a person over age eighteen who is an employee or permit holder under section 30-90a where such procurement is made in the course of such person's employment or business, or (2) any such inducement in furtherance of an official investigation or enforcement activity conducted by a law enforcement agency. Nothing in this section shall be construed to prevent any action from being taken under section 30-55 or section 30-86, or both, against any person permitted to sell alcoholic liquor who has sold alcoholic liquor to a minor where such minor is participating in an official investigation or enforcement activity conducted by a law enforcement agency."
One Way Fare contends (1) that the defense of entrapment precludes the penalties issued by the Department; and (2) that the evidence was insufficient to find that a sale had taken place in violation of General Statute § 30-86. See Brief of Plaintiffs (#104), pp. 11-20. In response, the Department argues that there was substantial evidence adduced that One Way Fare violated § 30-86. In addition, the Department asserts that entrapment is not available as a defense to a permit enforcement action, and that, even if entrapment is available in such an administrative action, the plaintiffs fail to establish entrapment. See Defendant's Brief (#105), pp. 2-7. Additional references to the facts are set forth below.
In One Way Fare's administrative appeal, dated January 29, 2004, the plaintiffs contended that the alleged inducement by public servants, or by a person acting in cooperation with a public servant, to violate General Statute § 30-86, was in violation of rights guaranteed to them under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, and Article First Section 8 of the Connecticut Constitution. See administrative appeal, ¶ 33. Besides merely mentioning these constitutional claims in their brief, the plaintiffs did not develop them therein. See Brief of Plaintiffs, p. 10. They were also mentioned, but not developed, in the motion to dismiss which was presented to the Department (see Return of Record, Exhibit 4) and when the appeal was orally argued before the court. Therefore, the court deems them to be abandoned. See In re Jeffrey C., 261 Conn. 189, 197 n. 2, 802 A.2d 772 (2002); Bridgeport Hospital v. Commission on Human Rights Opportunities, 232 Conn. 91, 115, 653 A.2d 782 (1995); Hayes v. Smith, 194 Conn. 52, 66 n. 12, 480 A.2d 425 (1984). In addition, our Supreme Court has stated that "the defense of entrapment is not of constitutional dimension." (Internal quotation marks omitted.) State v. Grullon, 212 Conn. 195, 211, 562 A.2d 481 (1989).
II Standard of Review
General Statute 4-183(j) sets forth the standards to be applied by the court in an appeal from an agency decision. "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 decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (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." See General Statute 4-183(j).
Our Supreme Court recently reiterated the standard of review in an appeal from an agency decision. "Our review of an agency's factual determination is constrained by General Statutes § CT Page 2939 4-183(j), which mandates that a 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 decisions are . . . clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record . . . This limited standard of review dictates that, [w]ith regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency . . . An agency's factual determination must be sustained if it is reasonably supported by substantial evidence in the record taken as a whole . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review . . . The burden is on the plaintiffs to demonstrate that the [agency's] factual conclusions were not supported by the weight of substantial evidence on the whole record . . . With respect to questions of law, [w]e have said that [c]onclusions 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." (Internal quotation marks omitted and citation omitted.) Board of Education of the City of Norwalk v. Commission on Human Rights and Opportunities, 266 Conn. 492, 503-04, 832 A.2d 660 (2003).
"In determining whether an administrative finding is supported by substantial evidence, a court must defer to the agency's assessment of the credibility of the witnesses and to the agency's right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part." (Internal quotation marks omitted.) Connecticut Building Wrecking Co., Inc. v. Carothers, 218 Conn. 580, 593, 590 A.2d 447 (1991). "The credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency, and [the] court cannot disturb the conclusions reached by the commissioner if there is evidence that reasonably supports his decision." (Internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 347 n. 16, 757 A.2d 561 (2000).
"Ultimately, the question is not whether the trial court would have reached the same conclusion but whether the record before the [agency] supports the action taken . . ." (Internal quotation marks omitted.) Slootskin v. Commission on Human Rights and Opportunities, 72 Conn.App. 452, 459, 806 A.2d 87, cert. denied, 262 Conn. 910, 810 A.2d 275 (2002).
Discussion A Entrapment 1. Applicability
"Entrapment has been defined as the inducement of one to commit a crime not contemplated by him for the mere purpose of instituting [a] criminal prosecution against him." (Internal quotation marks omitted.) State v. Whitney, 157 Conn. 133, 135-36, 249 A.2d 238 (1968). The Department contends that entrapment is an available defense only in a criminal proceeding, and not in this administrative enforcement action, which was brought pursuant its statutory authority. See General Statute § 30-6. In support, it cites General Statute § 53a-15, which provides, "In any prosecution for an offense, it shall be a defense that the defendant engaged in the proscribed conduct because he was induced to do so by a public servant, or by a person acting in cooperation with a public servant, for the purpose of institution of criminal prosecution against the defendant, and that the defendant did not contemplate and would not otherwise have engaged in such conduct."
[Editor's Note: Footnote 4, which recites the language of Section 30-6, has not been included in the reported opinion.]
Section 53a-15, which was adopted in 1969, "codifies prior Connecticut caselaw." State v. Lee, 229 Conn. 60, 81, 640 A.2d 553 (1994). While § 53a-15 applies only to criminal proceedings, our Supreme Court previously considered the defense of entrapment to be applicable in the context of a civil, administrative proceeding concerning the unlicensed practice of dentistry. See Jones v. Dental Commission, 109 Conn. 73, 76-77, 145 A. 570 (1929). More recently, in an administrative appeal concerning the suspension of a driver's license, the court in Simonelli v. Goldberg, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV93 0520158 (July 19, 1993, Maloney, J.), considered the defense of entrapment, and rejected the plaintiff's contention that the police had induced him into driving while under the influence.
In State v. Marquardt, 139 Conn. 1, 4-7, 89 A.2d 219 (1952), our Supreme Court applied entrapment to criminal proceedings, prior to the passage of § 53a-15. Our Supreme Court stated, concerning entrapment, "We did hold in a civil proceeding for the revocation of a dentist's license that the facts were insufficient to sustain such a defense," id., 139 Conn. 5, citing Jones v. Dental Commission, supra. It also cited an earlier civil matter, Dennis v. Dennis, 68 Conn. 186, 195-96, 36 A. 34 (1896), in which it "applied the principle which underlies the defense of entrapment." State v. Marquardt, supra, 139 Conn. 6. In Dennis v. Dennis, supra, our Supreme Court affirmed the trial court's denial of the granting of a divorce based on adultery, where the plaintiff/wife's attorney's detectives hired a woman to lure the defendant/husband into committing adultery.
Our Supreme Court, in State v. Marquardt, supra, 139 Conn. 6, cited the concurring opinion of Justice Roberts of the United States Supreme Court in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), wherein he discussed the applicability of the defense of entrapment in civil matters, stating that "the true foundation of the doctrine [is] in the public policy which protects the purity of government and its processes. Always the courts refuse their aid in civil cases to the perpetration and consummation of an illegal scheme. Invariably they hold a civil action must be abated if its basis is violation of the decencies of life, disregard of the rules, statutory or common law, which formulate the ethics of men's relations to each other. Neither courts of equity nor those administering legal remedies tolerate the use of their process to consummate a wrong. The doctrine of entrapment in criminal law is the analogue of the same rule applied in civil proceedings. And this is the real basis of the decisions approving the defense of entrapment though in statement the rule is cloaked under a declaration that the government is estopped or the defendant has not been proved guilty." (Footnote omitted.) Sorrells v. United States, supra, 287 U.S. 455.
In view of the public policy basis for the entrapment defense, and the fact that our Supreme Court has considered it to be applicable in an administrative proceeding, the court is unpersuaded by the Department's argument that the defense should be unavailable in a proceeding involving the allegation of sale of alcohol to a minor since criminal intent need not be proved to establish a statutory violation. See State v. Lougiotis, 130 Conn. 372, 376, 34 A.2d 777 (1943). Criminal intent was not mentioned as an element of the statutory violation which was at issue in Jones v. Dental Commission, supra, 109 Conn. 76-77, where our Supreme Court considered, and found factually insufficient, a defense based on entrapment, in a proceeding involving the revocation of the right to practice of an unlicensed dental assistant, for failure to perform a dental operation in the immediate presence of and directly under the supervision of a dentist. See General Statutes §§ 2901, 2906 (1918 Rev.).
In view of the guidance provided by the decisions of our Connecticut Supreme Court, discussed above, the out of state decisional law cited by the Department is unavailing. While "[b]ecause of the danger to the public health and welfare inherent in the liquor traffic, the police power to regulate and control it runs broad and deep," All Brands Importers, Inc. v. Dept. Of Liquor Control, 213 Conn. 184, 198, 567 A.2d 1156 (1989), the public policy which disfavors governmental misconduct in the inducing of a violation of the law runs just as broad and just as deep. Accordingly, entrapment ought to be available as a defense in proceedings of this type.
2. Evidence Of Entrapment
While evidence of entrapment may be considered, there is substantial evidence in the record here reflecting that the plaintiffs did not satisfy their burden of proof to establish that One Way Fare was induced to violate § 30-86. In the decision, pp. 2-3, the Department stated that it was unpersuaded by the entrapment defense, noting that General Statute § 30-87(2), see footnote 2 above, allows the "type of undercover enforcement activity, as conducted here . . ." (Emphasis added.)
"As the subjective entrapment doctrine has been applied in Connecticut, the defendant has the initial responsibility to present sufficient evidence that the state induced him or her to commit the offense charged . . . Once that burden has been met, however, the burden shifts to the state to prove beyond a reasonable doubt that the defendant was predisposed to commit the offense." (Citation omitted.) State v. Lee, supra, CT Page 2943 229 Conn. 82.
In discussing entrapment our Supreme Court has referred to sufficient evidence of inducement as consisting of "persistent and repeated requests designed to incite and arouse the accused . . ." State v. Avery, 152 Conn. 582, 584, 211 A.2d 165 (1965). A simple request by the officer or agent of the government that the accused violate the law does not amount to inducement under Connecticut law. See State v. Hawkins, 173 Conn. 431, 436, 378 A.2d 431 (1977), habeas corpus granted on other grounds 617 F.Sup. 932, rev'd, 806 F.2d 39 (2d Cir. 1986), cert. denied, 481 U.S. 1020, 107 S.Ct. 1903, 95 L.Ed.2d 509 (1987) ("The evidence discloses nothing more than a simple request on the part of the officer that the defendant break the law and that alone is not `inducement' which would support a defense of entrapment"); State v. Marino, 23 Conn.App. 392, 400 n. 5, 580 A.2d 990, cert. denied, 216 Conn. 818, 580 A.2d 63 (1990) (Affirming trial court's instructions on entrapment, including that the evidence disclosed "nothing more than a simple request by the police officer, that the Defendant break the law. That alone, is not inducement, which would support the claim of entrapment." (Internal quotation marks omitted.))
Here, all that D'Onofrio, the undercover minor working with the Simsbury Police, did to get One Way Fare to provide her with liquor was to place a single order for a beer at the bar. See Return of Record, Exhibit 2, transcript of hearing, dated July 10, 2003 (hereafter, "Exhibit 2, Tr., p.").
D'Onofrio testified that "I walked in, walked to the bar, went up to the bartender and asked him for a Bud Light. And he gave me a Bud Light, I gave him $20, he gave me my change." See Exhibit 2, Tr., p. 80. She also testified that at no point was she asked to show any identification. See Exhibit 2, Tr., p. 81. She stated that the bartender put her change on the bar and slid it towards her. See Exhibit 2, Tr., p. 81. Then, she left the premises. See Exhibit 2, Tr., p. 81. While Patrick Murray, the bartender on duty, disputed certain aspects of D'Onofrio's description of what occurred, such as her contention that money changed hands, he agreed that he did put down a Bud Light in front of D'Onofrio after she ordered it. See Exhibit 2, Tr., pp. 134, 136.
Murray testified that he put down the beer in front of D'Onofrio and was "getting ready to go grab" her driver's license, which was on the bar, when she "scooped it up and stepped back and disappeared." See Exhibit 2, Tr., p. 135-36.
Under Connecticut law, that simple request for a beer by D'Onofrio did not amount to inducement. Under such circumstances, the Department reasonably could have found that One Way Fare's evidence about its lack of predisposition to violate the law was not material, since One Way Fare had not met its burden, under Connecticut law, to initially prove inducement.
In view of the clear Connecticut law on this subject, the plaintiffs' citations to federal decisional law on inducement are unavailing. See Jacobson v. United States, 503 U.S. 540, 542, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992) (violation of Child Protection Act, 18 U.S.C. § 2252); United States v. Sherman, 200 F.2d 880 n. 1, 883 (2d Cir. 1952) (sale of narcotics in violation of 21 U.S.C. § 174). The amount of proof necessary to establish inducement differs in the Second Circuit. See United States v. Dunn, 779 F.2d 157, 158 (2d Cir. 1985) ("In this circuit, `soliciting. proposing, initiating, broaching or suggesting the commission of the offence charged' does constitute inducement." (Emphasis in original)). While proof of a simple request or suggestion amounts to inducement under the law as interpreted in that federal context, as discussed above, Connecticut's appellate courts have stated that that is not the law in this State. More than a simple request is required.
B Evidence Of Violation Of General Statute § 30-86
In arguing that the evidence was insufficient to find a violation of § 30-86, the plaintiffs contend that the Department based its decision on contradictory evidence. In particular, One Way Fare refers the court to the hearing testimony of Detective Beaulieu, who "was assigned to the sting to operate as the main witness in order to verify any alleged sale to Ms. D'Onofrio." See Brief of Plaintiffs, p. 18. They assert that Beaulieu could not hear the conversation between D'Onofrio and Murray, that he did not see any exchange of money between them, that D'Onofrio did not touch the beer, and that Beaulieu's incident report fails to establish that an alleged sale or delivery took place. See Brief of Plaintiffs, pp. 18-19. The plaintiffs refer also to testimony from Murray, in which he denied that there was an exchange of money, and to testimony from other witnesses. See Brief of Plaintiffs, pp. 19-20. The plaintiffs' summary of the evidence, however, ignores the substance of D'Onofrio's hearing testimony, quoted above.
The Department had the right to believe or disbelieve the hearing testimony of any witness. It was entitled to credit D'Onofrio's testimony that a sale of and delivery of liquor to her, a minor, had occurred. In view of such testimony, this court cannot disturb the Department's factual finding, which was "based upon the evidence adduced at the hearing." See decision, pp. 1, 3. See also Murphy v. Commissioner of Motor Vehicles, supra, 254 Conn. 347 n. 16. Thus, the Department's determination that One Way Fare violated § 30-86 is reasonably supported by substantial evidence in the record. The decision resulted from a correct application of the law to the facts found and reasonably and logically follows from those facts. Accordingly, the Department's decision should not be disturbed.
CONCLUSION
For the foregoing reasons, the plaintiffs' appeal is dismissed. It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT