Nelseco Nav. Co. v. Department of Liquor Control, 10121

• Decision Date: 17 May 1994
• Docket Number: No. 10121,10121
• Citation: 641 A.2d 827,34 Conn.App. 352
• Court: Connecticut Court of Appeals
• Parties: NELSECO NAVIGATION COMPANY et al. v. DEPARTMENT OF LIQUOR CONTROL.

Page 827

641 A.2d 827

34 Conn.App. 352

NELSECO NAVIGATION COMPANY et al. v. DEPARTMENT OF LIQUOR CONTROL.

No. 10121.

Appellate Court of Connecticut.

Submitted Oct. 26, 1993.

Decided May 17, 1994.

Richard E. Gruskin, New London, filed a brief, for appellants (plaintiffs).

Richard Blumenthal, Atty. Gen., and Martin Rosenfeld and Robert Vacchelli, Asst. Attys. Gen., filed a brief, for appellee (defendant).

Before DUPONT, C.J., and EDWARD Y. O'CONNELL and LAVERY, JJ.

EDWARD Y. O'CONNELL, Judge.

This matter is now before us on remand from the Supreme Court. Previously, in Nelseco Navigation Co. v. Department of Liquor Control, 27 Conn.App. 614, 608 A.2d 707 (1992), we concluded that the defendant department of liquor control did not have jurisdiction over a private party on premises covered by a liquor permit when there was no sale or delivery of liquor by the permittee or its agent. The Supreme Court granted certification, reversed our judgment and remanded the case to this court for consideration of other issues raised by the plaintiffs. ¹ Nelseco Navigation Co. v. Department of Liquor Control, 226 Conn. 418, 627 A.2d 939 (1993).

The facts are set forth in full in our prior decision and a detailed repetition here would serve no useful purpose. A brief summary is sufficient for this appeal. The defendant suspended the plaintiffs' boat liquor permit because it found that the plaintiff had permitted intoxicated persons to loiter on the premises and had permitted "a disturbance, brawl, unnecessary noises and unlawful conduct upon the permit premises and permitted it to be conducted in such a manner as to constitute a nuisance." The charges arose out of a private charter of the plaintiffs' ship, the Anna C., for a rock concert, during the course of which the unlawful conduct was found to have taken place. The plaintiffs appealed the defendant's decision to suspend the plaintiffs' boat liquor permit to the Superior Court, which affirmed the defendant's decision and dismissed the appeal.

I

We commence by noting the standard of review applicable to this case. The plaintiff brought this administrative appeal to the trial court pursuant to General Statutes § 4-183(a). ² In reviewing an administrative decision, it is not the function of the trial court to retry the case. The court is forbidden by statute from substituting its judgment for that of the agency as to the weight of the evidence on questions of fact. General Statutes § 4-183(j). The question before the trial court is not whether it would have reached the same conclusions but whether the record before the agency supports the action taken. Altholtz v. Dental Commission, 4 Conn.App. 307, 310, 493 A.2d 917 (1985).

"The substantial evidence rule governs review of administrative fact finding under ... § 4-183(g).... An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.... Such a standard of review allows less room for judicial scrutiny than does the weight of the evidence rule or the clearly erroneous rule.... 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...." (Internal quotation marks omitted.) Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 593, 590 A.2d 447 (1991).

"When reviewing the trial court's decision, we seek to determine whether it comports with the Uniform Administrative Procedure Act.... We look to see if the [trial] court reviewing the administrative agency acted unreasonably, illegally, or in abuse of discretion." (Citation omitted; internal quotation marks omitted.) Vicino v. Zoning Board of Appeals, 28 Conn.App. 500, 506-507, 611 A.2d 444 (1992). The trial court's decision must be affirmed unless we find that substantial rights of the plaintiffs have been prejudiced because the administrative findings, inferences, conclusions or decisions are, inter alia, clearly erroneous in view of the reliable, probative and substantial evidence in the whole record. General Statutes § 4-183(j)(5). We conclude that the trial court, in affirming the defendant's decision and dismissing the appeal, improperly determined that there was reliable, probative, or substantial evidence on the record to support the defendant's decision.

II

We turn first to the two charges of permitting intoxicated persons to loiter on the permit premises. Words are to be construed according to their commonly approved usage. General Statutes § 1-1(a). "The word loitering is in common use. Webster defines [loiter]: to be slow in moving; to delay; to linger; to be dilatory; to spend time idly; to saunter; to lag behind." (Internal quotation marks omitted.) State v. Tobin, 90 Conn. 58, 62, 96 A. 312 (1915).

The first charge of loitering involved an unconscious young female who was taken to a hospital by paramedics. ³ Assuming arguendo that the young woman really was intoxicated, we are unable to conclude that the failure of an unconscious person to move constitutes loitering. Accordingly, there was no evidence to support the defendant's conclusion with respect to that loitering charge.

In connection with the second charge of permitting intoxicated persons to loiter on the premises, we ask: where were they to be ordered to go? We commence our analysis by noting that the permit premises was a ship at sea. It was not a neighborhood bar from which offenders could easily be ejected. In this situation, the equivalent of immediate ejection from the premises would be dropping the miscreants overboard. This modern version of forcing the offenders to walk the plank is obviously more bizarre than even the staunchest supporters of strict liquor law enforcement could ask.

The record discloses that the two most disruptive and intoxicated individuals were locked in the men's room and the ship's captain immediately turned the ship around and brought it back into port in order that they might be turned over to the police. Nelseco v. Department of Liquor Control, supra, 27 Conn.App. 617, 608 A.2d 707. In port, the local (New London) police were invited aboard and, despite observing the passengers in varying degrees of sobriety, made no arrests other than the two serious offenders.

Furthermore, although the word loiter generally has a pejorative connotation, we must consider it in the setting of this cruise. The passengers had paid admission for passage on this rock concert cruise, the very purpose of which was to afford passengers an opportunity to relax, linger and stand around while listening to the music. To find that the passengers on this ship were loitering would mean that patrons of all concerts are loitering. We will not extend the definition of loitering that far. The record discloses no facts to support the conclusion that any intoxicated persons were loitering.

Under the circumstances existing at the time of the alleged violation, the defendant may have properly concluded that some of the passengers were intoxicated, but there is no evidence from which the defendant could have concluded that they were loitering.

III

We next consider the charge that the plaintiffs permitted a "disturbance, brawl, unnecessary noises, unlawful conduct upon the premises and did permit the premises to be conducted in such a manner as to constitute a nuisance."

The transcript discloses that the Anna C. was not the scene of the bacchanalian orgy and battle that the defendant would have us believe. Of the estimated 1000 to 1500 passengers, ⁴ witnesses estimated that between fifteen and "more than twenty" were involved in a commotion. The trouble was caused by Gary Linkner and William Linkner, two very violent and badly behaving brothers. It is not disputed that the Linkner brothers ran amok throughout the ship, assaulting passengers, urinating on two of them and attempting to touch of one or more women in a vulgar and obscene manner. It is not surprising that the Linkners' abusive conduct generated chaos, a disturbance of the peace and pushing and shoving. Security personnel, however, had the situation in hand in five minutes at most when they locked the Linkners in the men's room. The record discloses no further tumultuous activity once the Linkners were removed from circulation nor does it disclose that anyone was assaulted by anyone other than the Linkners. ⁵

The issue is whether the plaintiffs "permitted" the conduct to take place and thereby "permitted" the premises to be conducted in such manner as to constitute a nuisance. The defendant found that the plaintiffs did "permit" the conduct to take place and the trial court affirmed the defendant's decision.

The facts and inferences that may be drawn from the evidence in the present case do not support a conclusion that the plaintiffs "permitted" the conduct to take place and thereby "permitted" the premises to be conducted in such manner as to constitute a nuisance. To the contrary, the evidence shows that the plaintiffs, through the onboard security personnel, took swift and positive action to squelch the disturbance. Once the disturbance was stopped, the plaintiffs, acting through the ship's captain, returned the vessel to port for the purpose of removing the Linkers from the ship. What more could reasonably have been done?

The defendant contends that there is no fact presented in the record that supports the plaintiffs' argument that the ship's security personnel acted quickly to deal with the situation. This ignores the testimony of Sarah Gallagher that the security guards responded quickly and effectively to her complaint and confronted the Linkner brothers. It also ignores the testimony of Laura Derwin that the disturbance was of short duration "because security...