Opinion
No. CV 10 6006014S
June 1, 2011
MEMORANDUM OF DECISION
The plaintiff Robert J. Saviske appeals pursuant to General Statutes §§ 29-32b(f) and 4-183 from a July 15, 2010 final decision of the defendant board of firearms permit examiners (the board). The board, in its final decision, affirmed the revocation by the commissioner of public safety (the commissioner) pursuant to § 29-32(b) of the plaintiff's permit to carry pistols and revolvers.
The plaintiff is aggrieved by the final decision. Jukna v. Board of Firearms Permit Examiners, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 96 0576132 (October 23, 1998, Mc Weeny, J.) [ 23 Conn. L. Rptr. 329].
The record shows as follows. On December 11, 2008, the plaintiff's permit was revoked by the commissioner, and he appealed to the board on January 21, 2009. (Return of Record, ROR, §§ 1, 2.) The board sent out questionnaires to the commissioner and the plaintiff and on the return of the questionnaires, held a hearing on May 13, 2010. (ROR, § 1.) On May 25, 2010, the board sent a notice to the plaintiff that it had concurred in the commissioner's decision. (ROR, § 5.) On July 15, 2010, the final decision was issued by the board. (ROR, § 6.)
Based on the record before the board at the May 13, 2010 hearing, the board made the following findings of fact in the July 15 final decision:
1. Saviske resides at 1003 Briarwood Court, Rocky Hill, Connecticut.
2. He is 58 years old and has held a pistol permit since approximately the early 1980s.
3. On November 23, at approximately 6:19 p.m., the Rocky Hill Police Department received a telephone call from David Mocarsky ("Mocarsky"). Mocarsky is a New Britain Police Officer and Saviske's cousin.
4. Mocarsky told the individual who received the telephone call that Saviske, whom Mocarsky identified as his cousin, had telephoned him to complain that "government people had attempted to break" into Saviske's house. Mocarsky related that he tried to speak to Saviske, but that Saviske kept hanging up the telephone, and that Mocarsky was concerned about Saviske.
5. In response to receiving the telephone call from Mocarsky, the Rocky Hill Police Department dispatched police officers to Saviske's residence. While responding, the police officers learned that Saviske may possess firearms.
6. Officer Mark Lefebrve ("Lefebrve") was the investigating officer and testified at the hearing. The Board found Lefebrve's testimony credible.
In the transcript in the return of record the officer's name is spelled "Lefevre." This is the spelling that the court adopts other than in the findings of fact.
7. After reaching Saviske's house, police officers formed a perimeter around the house and attempted to speak to Saviske via telephone "several times." Those attempts were unsuccessful as Saviske hung up the telephone when contacted. Lefebrve recalled that the house was dark.
8. Sometime after the police attempted to contact Saviske, Saviske opened the garage door and walked out to his driveway, at which time the police officers identified themselves and secured Saviske. A search of Saviske revealed a loaded .38 caliber revolver and folding knife in his pants pockets.
9. Lefebrve subsequently spoke to Saviske. Lefebrve explained the purpose of the police visit to Saviske's house and the call the police received from Mocarsky. Saviske denied stating to Mocarsky that "government people were trying to break into" Saviske's house.
10. Lefebrve also noted that Saviske, who apparently lived alone, had wedged a folding chair against the door knob of the front door as well as tied a rope to a door knob of his garage door to prevent people from entering the house. When Lefebrve asked Saviske to explain why he had done so, Saviske replied that he was attempting to prevent people from entering his house and that he felt "unsafe" in his house. Although Saviske disputed whether he told Mocarsky that "government people" had attempted to break into his house, Saviske repeated that someone had attempted to break into his house.
11. The police examined Saviske's house and did not identify any evidence of an attempt to break into the house.
12. In response to Lefebrve's question about Saviske was carrying a gun, Saviske first replied "for fun" and then later replied that he felt "unsafe."
13. Saviske also informed Lefebrve that Saviske took several medications for anxiety and other medical issues. Lefebrve noted the following medications in the house: suboxone, trazodone, diazapan, naproxen, alprazalam, zolipidem, oxycontin, prevacid and oxycodone.
14. The Rocky Hill Police Department discovered several firearms and ammunition in Saviske's house. Saviske had properly secured those items.
15. Based on the information available to him, Lefebrve determined that Saviske should be transported to Hartford Hospital for an emergency mental health evaluation.
16. After returning (to) the Rocky Hill Police Department, Lefebrve spoke to Mocarsky and confirmed that Saviske had stated to Mocarsky that "government people had attempted to break into his house."
17. During the hearing, Saviske initially disputed that he spoke directly to Mocarsky, but subsequently stated that he had done so to express his concern that a certain type of safe was being sold with a key capable of unlocking a different safe of the same type and that he wanted to bring that fact to Mocarsky's attention. He then admitted using the term "government people," but claimed that he used it in a different context. The Board does not find Saviske's explanation credible, especially since Mocarsky — a family member and law enforcement officer — believed that he should contact another law enforcement agency in light of the statements made during his conversation with Saviske.
18. Saviske was admitted for evaluation on November 23, 2008 and remained hospitalized until at least December 15, 2008, a period of time well exceeding the statutorily limited general 72-hour examination period. Although Saviske disputed whether his admission properly should be characterized as "voluntary" or "involuntary," he admitted during the hearing that some form of independent review of his admission and that he sought to challenge his continued hospitalization.
19. Although Saviske possessed at the hearing documents relating to his admission, he declined to provide those documents to the Board.
20. Lefebrve stated that, though generally cooperative in interacting with the police, Saviske was evasive in responding to questions about his conversations with Mocarsky or his belief that someone had attempted to break into his residence.
21. The Board credits Lefebrve's characterization of Saviske's behavior as "evasive" and notes that the characterization is consistent with Saviske's behavior before the Board. In short, the Board finds that Saviske was not candid in answering questions when those questions possibly could harm his appeal. When asked questions at the hearing that Saviske appeared to believe were helpful to him, he responded without hesitation and directly. Conversely, when asked questions at the hearing that Saviske appeared to believe may harm his position, he became combative, evasive, and attempted to avoid answering the question posed. For example, when asked whether he had authored a letter dated December 15, 2008 that had been notarized was, Saviske seemed inclined to disown the handwriting as his own. Further, when asked a question about whether he was still hospitalized as of the writing of the letter, Saviske disputed whether he was hospitalized at that time even though the letter states "I am in the hospital . . ."
22. On December 11, 2008, the Commissioner revoked Saviske's state permit to carry a pistol.
23. Since the November 23, 2008 incident, Saviske has not had another encounter with law enforcement.
24. Saviske stated without contradiction that he has not been hospitalized for mental health reasons other than the hospitalization related to November 2008 incident.
25. Saviske presented two letters to the Board as evidence.
26. Exhibit D is a letter dated May 5, 2010 from Rekha Ranade-Kapur, M.D., F.A.P.A., whom Saviske identified as a psychiatrist with whom he meets weekly for medication management and evaluation. The letter stated that Saviske is under care for major recurrent depression and chronic pain (for which he is treated with opiates), but that Saviske is "stable" and neither depressed or suicidal and "has never been homicidal, nor a source of danger to others at any time in his life." The psychiatrist states "[i]n my professional opinion, it would be safe for Mr. Saviske to get his firearms permit."
27. Exhibit E is a letter dated May 5, 2010 from Murray Kuperminc, Ph.D., whom Saviske identified as a psychologist with whom he meets approximately every two or three weeks for psychotherapy. The letter notes that Saviske has been in psychotherapy since November 2005 and that he currently is diagnosed as having a major depressive disorder, mild. The letter states that Saviske does not pose a threat to himself or others and that "in [Kuperminc's] professional opinion that there is no psychological issues that make him unsuitable for carrying a pistol or revolver outside his home . . . [and] there is no reason to believe that this suitability status will change."
28. Saviske stated that he was uncertain whether he last visited Kuperminc.
29. Saviske stated during the hearing that a family member regularly visits him to ensure that he is taking his medications. (ROR, § 6.)
Based upon these findings of fact, the board set forth its conclusions. First the board stated that the commissioner may revoke a permit for cause, and that revocation was subject to a "de novo" review by the board. See § 29-32b(b). The board's review, in light of the fact that the permit was not revoked for a mandatory statutory reason, turned on whether the plaintiff was "no longer a person suitable to carry firearms."
The board concluded that the plaintiff was "no longer suitable:" (1) He had had a significant mental disturbance on November 23, 2008; (2) This disturbance was not insignificant based on the length of his subsequent hospitalization; (3) The plaintiff exhibited a lack of candor in his explaining to the board his comments to his relative Mocarsky and to the Rocky Hill policeman, Lefevre, and explaining why his hospitalization was lengthy; and (4) The plaintiff's letters from the therapists were inadequate and incomplete as they did not address the November 23 incident. (ROR, § 6.)
This appeal followed. Before reaching the merits of the plaintiffs appeal, the court must rule on the board's motion to dismiss on the ground of subject matter jurisdiction. On May 25, 2010, the board sent a letter to the plaintiff informing him that the board had voted to uphold the commission and would issue a detailed decision under separate cover. On July 9, 2010, the plaintiff filed his administrative appeal with the court. On July 15, 2010, the board issued its final decision.
The board correctly notes that at the time the plaintiff filed his administrative appeal, the board had only given the plaintiff a preliminary notification of its final decision. It was only after the plaintiff's appeal had been filed that the board issued its final decision. The board argues that the fact that the appeal was filed subsequent to the preliminary notification, but not after the final decision, renders the appeal subject to dismissal.
The court disagrees with the board and denies the motion to dismiss. Were the court's docket entries to show only an appeal from the board's May 25 notification, then the appeal would be premature and the court would lack jurisdiction. See Office of Consumer Counsel v. Dept. of Public Utility Control, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 93 527905 (December 17, 1993, Maloney, J.) [ 10 Conn. L. Rptr. 509]. Here, however, the final decision has been issued, the appeal is no longer preliminary, and it is now properly before the court. See Pirozzilo v. Inland Wetlands Watercourses Commission, Superior Court, judicial district of New Britain, Docket No. CV 99 049462 (April 22, 2002, Cohn, J.) [ 32 Conn. L. Rptr. 103] (zoning enforcement officer's order preserved for appeal with filing of final decision).
Turning to the merits, the plaintiff's appeal is resolved under the "substantial evidence" standard of the Uniform Administrative Procedure Act, § 4-166, et seq. Judge Owens in Vermigilio v. Board of Firearms Permit Examiners, Superior Court, judicial district of New Britain, Docket No. 04 4002680 (May 24, 2005, Owens, J.T.R.), summarizes this standard for review of a final decision of the board as follows: "If the administrative record provides substantial evidence upon which the hearing officer could reasonably have based his finding . . . the decision must be upheld . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . 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." (Citations omitted; quotation marks omitted.)
This is the same rule that applies in cases not involving gun permits. Commenting on the substantial evidence test, Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 800, 955 A.2d 15 (2008), states: "With 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 . . . Judicial review of the conclusions of law reached administratively is also limited. The court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally or in abuse of its discretion."
In this appeal, the plaintiff first claims that the board erroneously found that he was no longer "suitable" for a pistol permit. On this point, Vermigilio succinctly summarizes the law: "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.' Dwyer v. Farrell, 193 Conn. 7, 12 (1984); Rabbit v. Leonard, 36 Conn.Sup. 115-16 (1979)."
As indicated above, the board made detailed findings of fact and concluded that the plaintiff was no longer suitable for a permit. The plaintiff contests the basis of the board's factual findings and conclusions. He argues that the board relied on "gross inaccuracies." According to the plaintiff, the commissioner's questionnaire and the Rocky Hill police report related that the plaintiff had erected a barricade at his front door, when he had not. While he had a loaded revolver on his person, this was allowed under his permit. The statements of his relative, Mocarsky, were not available on an audio recording, and the plaintiff contests that he told Mocarsky that he feared that government intruders were at his home. According to the plaintiff, the November 23 incident, if it occurred at all, should not have carried such weight in the board's decision. The plaintiff was polite throughout with Officer Lefevre, showing no evidence of a disturbed temperament.
The court does not agree with the plaintiff's argument. As indicated, the court will not allow the plaintiff to retry his case. When there is conflicting evidence in the record, the court may not reject the board's factual determinations of "unsuitability, in favor of the plaintiff's contrary version of the evidence. Credibility determinations are for the board. See Goldstar Medical Services v. Dept. of Social Services, supra, 288 Conn. 890. Here there is substantial evidence of record. Mocarsky had a conversation with the dispatcher for the Rocky Hill police department where he stated that he was concerned for the plaintiff's well-being. (ROR, transcript, pp. 9-10.) Efforts by Mocarsky to contact the plaintiff were unsuccessful because the plaintiff continued to hang up on his repeated calls. (ROR, § 2, Exhibit A.) The plaintiff appeared at his garage with a loaded revolver at his waist. (ROR, § 2, Exhibit C.)
The plaintiff's evidence was inconsistent. He told Officer Lefevre that he was concerned for his safety at one point. Id., Exhibit C. He also told the officer that he had attached the rope to his car so that he could secure his car in the garage. Id. In his testimony to the board, he was not concerned for his personal safety, but was preparing his home because he was taking a trip. (ROR, transcript, pp. 32-33.) He denied mentioning government intruders to Mocarsky; he had only been discussing different keys to a safe with his relative. The board thus had justification in light of these contradictions to resolve the facts as it did.
The plaintiff's second argument is that the board's reasoning is based only on fears of the plaintiff's lack of mental stability. It did not look at the entire record. The first answer to this contention is that the board gave four reasons for its decision to uphold the revocation of the permit — in addition to citing the November 23 incident and its seriousness, the board also concluded that the plaintiff was not candid with it and that the medical record and letters of the psychiatrist and psychologist as submitted were incomplete. The plaintiff incorrectly argues that the board should have given greater deference to the letters from the psychiatrist and psychologist, but as stated in Goldstar, supra, it was free to accept or reject the expert evidence in whole or in part.
The plaintiff's final contention is that the board erred in drawing negative conclusions from what it perceived as a lack of candor in the plaintiff's failure to make available the record of his hospitalization after November 23, as well as the failure of his experts' letters to discuss the November 23 incident. The claim is that the board was not permitted to compel the plaintiff to disclose this information as the commissioner carried the burden of proving "unsuitability."
The court disagrees with the plaintiff for two reasons. First, under § 29-32b(c) and board regulation § 29-32b-7, the board's secretary has the right to "make a thorough inquiry of the facts of the appeal." Thus the board regulations envision that the plaintiff should make available hospital records and expert opinions that bear on his appeal. Indeed, the board was entitled to such records to determine if a specific disqualification applied to the plaintiff. See, e.g., § 29-32(b) referring to § 29-28(b)(5) (disqualification required if a permittee "has been confined in a hospital for persons with psychiatric disabilities . . . within the preceding twelve months by order of a probate court").
Second, while the board was required by § 29-32b(b) to make its decision "de novo," and the commissioner required to support its initial decision, the board was allowed to investigate the facts at its hearing and expect the plaintiff to relate his grounds of appeal fully. See Simard v. Salinas, Superior Court, judicial district of New Britain, Docket No. CV 99 0493042 (May 18, 1999, Hartmere, J.); see also Letz v. Fama, Inc., 613 S.W.2d 190 (Mo.App. 1981); State ex rel. Dept. of Public Health and Welfare v. Ruble, 461 S.W.2d 909 (Mo.App. 1970) (there is a distinction between the ultimate burden of proof and the burden of going forward with the evidence).
For the above reasons, the appeal is dismissed.