Dwyer v. Farrell

• Decision Date: 24 April 1984
• Court: Connecticut Supreme Court
• Parties: Jeff DWYER et al. v. William F. FARRELL et al.

Page 257

475 A.2d 257

193 Conn. 7

Jeff DWYER et al. v. William F. FARRELL et al.

Supreme Court of Connecticut.

Argued Feb. 2, 1984.

Decided April 24, 1984.

Frederick P. Leaf, Sp. Asst. Corporation Counsel, New Haven, with whom were Robert B. Teitelman, law student intern, and, on the brief, Charles G. Albom, Corporation Counsel, New Haven, for appellants (defendants).

Mark K. Benenson, New York City, of the New York bar, with whom were Donald W. O'Brien, Hartford, and, on the brief, Theodore N. Cox, New York City, and Gregory J. Miller, law student intern, for appellees (plaintiffs).

Before SPEZIALE, C.J., and PETERS, PARSKEY, SHEA and GRILLO, JJ.

SHEA, Associate Justice.

The plaintiffs, Jeff Dwyer and Warren Rosen, filed a verified complaint against the defendants, the city of New Haven, Mayor Biagio Dilieto, and police chief William F. Farrell, seeking declaratory and injunctive relief from the enforcement of § 18-12.1 ¹ of [193 Conn. 9] the New Haven Code of Ordinances an ordinance regulating the sale at retail of pistols and revolvers. The trial court declared that the ordinance conflicts with and is, therefore, preempted by state law and enjoined the defendants from enforcing the ordinance. In their appeal, the defendants claim the trial court erred in declaring the ordinance preempted by state law.

The undisputed facts upon which the trial court relied in reaching its determination are as follows: On October 21, 1981, Dwyer, a resident of New Haven, filed an application for a state permit to sell a pistol he owned with the New Haven police department on a form prescribed by the commissioner of public safety. ² He was informed in December by an officer in the police department that his application would not be considered until he fully complied with the New Haven ordinance regulating the sale of handguns and obtained a Federal Firearm Dealer's license, a permit from the state tax commissioner, and a variance from the local zoning board permitting him to sell a pistol in the residentially zoned area in which he lives. Dwyer was not engaged in the business of selling, buying or repairing firearms or ammunition, and, therefore, could not have obtained a federal license. ³ Furthermore, even if he had wished to engage in the business of dealing in firearms, he could not have done so in his private residence, an apartment in a six-family dwelling, no part of which was open to the public. ⁴

On December 21, 1981, Rosen, also a resident of New Haven, filed an application for a permit to sell two pistols he owned. Rosen is engaged in the business of selling rifles, shotguns and ammunition, ⁵ and has both a federal firearm dealer's license and a state sales and use tax permit. He does not, however, sell handguns in the regular course of his business. His application for a permit to sell the handguns was denied because the premises at which he anticipated making the sale were not located in a business district, and a variance had not been granted permitting the sale of handguns at that location.

The defendants have conceded in their appeal that the police department erroneously interpreted the local ordinance to impose conditions for the issuance of a state permit sought pursuant to General Statutes § 29-28. It is undisputed, however, that even if the plaintiffs had been granted the state permit they still would have violated the local law if they had sold a handgun without complying with the New Haven ordinance. The defendants contend, nevertheless, that the ordinance does not conflict with statutes regulating the same subject matter, but is merely a more comprehensive local regulation which is consistent with state policy.

"There is attached to every ordinance, charter or resolution adopted by or affecting a municipality the implied condition that these must yield to the predominant power of the state when that power has been exercised. See 6 McQuillin [Municipal Corporations (3d Ed.Rev.) ] § 21.32. This is in keeping with our law that a municipality, as a creature of the state 'can exercise only such powers as are expressly granted it or such powers as are necessary to enable it to discharge the duties and carry into effect the objects and purposes of its creation.' New Haven Water Co. v. New Haven, 152 Conn. 563, 566, 210 A.2d 449 (1965); see Baker v. Norwalk, 152 Conn. 312, 314, 206 A.2d 428 (1965); Bredice v. Norwalk, 152 Conn. 287, 292, 206 A.2d 433 (1964); Ingham v. Brooks, 95 Conn. 317, 328-29, 111 A. 209 (1920)." Bencivenga v. Milford, 183 Conn. 168, 173, 438 A.2d 1174 (1981).

"Where the state legislature has delegated to local government the right to deal with a particular field of regulation, the fact that a statute also regulates the same subject in less than full fashion does not, ipso facto, deprive the local government of the power to act in a more comprehensive, but not inconsistent, manner." Aaron v. Conservation Commission, 183 Conn. 532, 543, 441 A.2d 30 (1981); see also P.X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 160-61, 454 A.2d 1258 (1983); Connecticut Theatrical Corporation v. New Britain, 147 Conn. 546, 552-53, 163 A.2d 548 (1960); State v. Gordon, 143 Conn. 698, 706, 125 A.2d 477 (1956). Whether an ordinance conflicts with a statute or statutes can only be determined by reviewing the policy and purposes behind the statute and measuring the degree to which the ordinance frustrates the achievement of the state's objectives. See Aaron v. Conservation Commission, supra, 183 Conn. 542-44, 441 A.2d 30; Connecticut Theatrical Corporation v. New Britain, supra; see generally 6 McQuillin, Municipal Corporations (3d Ed.Rev.) § 21.35.

General Statutes §§ 29-28 through 29-38 clearly indicate a legislative intent "to protect the safety of the general public from individuals whose conduct has shown them to be lacking the essential character or temperament necessary to be entrusted with a weapon." Rabbitt v. Leonard, 36 Conn.Sup. 108, 115-16, 413 A.2d 489 (1979). This legislative concern extends also to those who sell or deliver handguns. A person cannot advertise for sale or sell at retail a pistol or revolver without first obtaining a permit, issued only after the applicant has furnished information pertaining to his character and identity as prescribed by the commissioner of public safety. General Statutes §§ 29-28 and 29-28a. The handgun can be sold only in the "room store or place described in the permit" and only to a purchaser personally known to the vendor or to a purchaser who provides evidence of his identity. General Statutes § 29-31. Furthermore, the vendor must record detailed information concerning the transaction, including the name of the purchaser, as well as the make, model, caliber and manufacturer's number of the pistol or revolver. Id. Failure to abide by these requirements subjects the transgressor to a monetary penalty and loss of liberty. General Statutes § 29-37; see State v. Tirella, 22 Conn.Sup. 25, 158 A.2d 602 (1959).

Although the statutory pattern evinces a legislative intent to regulate the flow of handgun sales and restrict the right to sell to those establishing the requisite qualifications, it is also clear that the General Assembly anticipated that persons meeting those qualifications, including those living in residential neighborhoods and nondealers, would be permitted to sell at retail a pistol or revolver. The legislature has struck the balance between totally unregulated sales and a complete ban on sales of handguns at retail.

In passing this handgun ordinance, the city has placed two important and substantial restrictions on the sale at retail of handguns which most residents of the city can never overcome: (1) that the seller be a dealer, and (2) that the sale occur on premises located in an area zoned ⁶ as a business district. ⁷ By placing these restrictions on the sale of handguns, the ordinance effectively prohibits what the state statutes clearly permit. Nor do the defendants suggest any practical means available to either plaintiff of conforming to the ordinance.

A local ordinance is preempted by a state statute whenever the legislature has demonstrated an intent to occupy the entire field of regulation on the matter; East Haven v. New Haven, 159 Conn. 453, 469, 271 A.2d 110 (1970); or, as here, whenever the local ordinance irreconcilably conflicts with the statute. Shelton v. City of Shelton, 111 Conn. 433, 447, 150 A. 811 (1930). Accord, Times Mirror Co. v. Division of Public Utility Control, 192 Conn. 506, 511, 473 A.2d 768 (1984). The fact that a local ordinance does not expressly conflict with a statute enacted by the General Assembly will not save it when the legislative purpose in enacting the statute is frustrated by the ordinance. Here the New Haven ordinance removes an entire class of persons as potential sellers of handguns at retail. The state permit is rendered an illusory right because a casual seller residing in a nonbusiness zone can have no real hope of ever conforming to the local ordinance. In this respect the local ordinance conflicts with the legislative intent as expressed in the applicable statutes. The city has removed a right that the state permit bestows and thus has...