Tuxis Ohr's Fuel, Inc. v. Adm'r, Unemployment Comp. Act, SC18791

• Decision Date: 30 July 2013
• Docket Number: SC18791
• Court: Connecticut Supreme Court
• Parties: TUXIS OHR'S FUEL, INC. v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT

TUXIS OHR'S FUEL, INC. v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT

SC18791

Supreme Court of Connecticut

Dated: July 30, 2013

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DISSENT

NORCOTT, J., with whom ZARELLA, J., joins, dissenting. The plaintiff, Tuxis Ohr's Fuel, Inc., employed the claimant as a fuel oil delivery truck driver until he lost the commercial driver's license requisite to that position under General Statutes § 14-44a.¹ The claimant lost his commercial driver's license by operation of General Statutes § 14-44k (c)² because, despite earning his living behind the wheel, he nevertheless elected to operate his personal vehicle with a blood alcohol content of more than twice the legal limit while off-duty, a fact which was discovered after he crashed his car and failed a Breathalyzer examination that a police officer administered pursuant to General Statutes § 14-227b.³ Somewhat counterintuitively, the majority upholds the judgment of the Appellate Court affirming the trial court's dismissal of the plaintiff's administrative appeal from the decision of the Board of Review of the Employment Security Appeals Division (board) upholding, in turn, the decision of the defendant, the Administrator of the Unemployment Compensation Act (act), General Statutes § 31-322 et seq., requiring the payment of unemployment benefits to the claimant. See generally Tuxis Ohr's Fuel, Inc. v. Administrator, Unemployment Compensation Act, 127 Conn. App. 739, 16 A.3d 777 (2011). Unlike the majority, however, I rely on the plain and unambiguous language of General Statutes § 31-236 (a) (14)⁴ and conclude that the payment of unemployment benefits to the claimant was not required because he was disqualified ''under state or federal law from performing the work for which such individual was hired as a result of a drug or alcohol testing program mandated by and conducted in accordance with such law,'' namely, Connecticut's driving while under the influence prevention statutory scheme implemented by §§ 14-44a, 14-44k and 14-227b. Accordingly, I respectfully dissent.

At the outset, I note my agreement with the background facts and procedural history stated by the majority and the Appellate Court. See Tuxis Ohr's Fuel, Inc. v. Administrator, Unemployment Compensation Act, supra, 127 Conn. App. 741-42. I also agree with the majority's statement of the governing standard of review and the process by which we engage in statutory interpretation under General Statutes § 1-2z, including its recitation of these principles as they relate to appeals from an administrative agency's construction of a statute. See, e.g., Pictometry International Corp. v. Freedom of Information Commission, 307 Conn. 648, 669-70, 59 A.3d 172 (2013); Longley v. State Employees Retirement Commission, 284 Conn. 149, 163-64, 931 A.2d 890 (2007).

As § 1-2z directs, I begin with the text of § 31-236 (a), which provides in relevant part: ''An individual shall be ineligible for benefits . . . (14) If the administrator finds that the individual has been discharged or suspended because the individual has been disqualified under state or federal law from performing the work for which such individual was hired as a result of a drug or alcohol testing program mandated by and conducted in accordance with such law . . . .'' (Emphasis added.) I agree with the majority that this case boils down to the parties' disagreement about ''what type of 'drug or alcohol testing program' the statute is referencing.'' The majority concludes that this subsection is ambiguous, crediting the reasonableness of both parties' proffered interpretations, namely, that the ''plaintiff contends that the legislature only could have meant the state statutory scheme directed toward removing intoxicated drivers from the road, while the defendant insists that the term encompasses any employment based drug or alcohol testing that is conducted pursuant to a federal or state mandate, which typically exists for positions necessitating a high level of safety.'' (Emphasis added.) The majority then consults the legislative history of § 31-236 (a) (14) and previous decisions of the board, and concludes that § 31-236 (a) (14) is ''applicable only to state or federally mandated, employment based drug or alcohol testing . . . ." (Emphasis added.) I respectfully disagree and, instead, conclude that the broadly drafted plain language of § 31-236 (a) (14) encompasses our state's driving while under the influence prevention statutory scheme, in addition to employment based drug or alcohol testing programs conducted pursuant to federal or state mandates.⁵

It is undisputed that the claimant was ''disqualified under state or federal law from performing the work for which [he] was hired''; General Statutes § 31-236 (a) (14); as his failure of the Breathalyzer test resulted in his automatic disqualification to operate a commercial vehicle under § 14-44k (c). The question is, of course, whether that disqualification was ''a result of a drug or alcohol testing program mandated by and conducted in accordance with such law . . . .'' General Statutes § 31-236 (a) (14). I begin with the ordinary meaning of the word ''program,'' which is defined in this context as ''a plan or system under which action may be taken toward a goal . . . ." Merriam-Webster's Collegiate Dictionary (11th Ed. 2003) p. 992. In applying that definition, I note that § 14-44k (c) provides in relevant part that ''a person is disqualified from operating a commercial motor vehicle for one year if the commissioner finds that such person has refused to submit to a test to determine such person's blood alcohol concentration while operating any motor vehicle, or has failed such a test when given, pursuant to the provisions of section 14-227b . . . ." (Emphasis added.) See footnote 3 ofthis dissenting opinion for a summary of § 14-227b. Section 14-44k (c) thus operates in accordance with our state's driving while under the influence statutes and, primarily, the implied consent and blood alcohol testing scheme set forth in § 14-227b, by promoting the safe operation of commercial vehicles—many of which are heavier and intrinsically more hazardous to operate than are ordinary passenger cars.⁶ This is particularly so given the fact that the legislature enacted § 14-227b to supplement the criminal penalties provided by General Statutes § 14-227a⁷ and to provide a comprehensive scheme of action toward the ''principal'' public policy goal of "protect[ing] the public by removing potentially dangerous drivers from the state's roadways with all dispatch compatible with due process.'' State v. Hickam, 235 Conn. 614, 624, 668 A.2d 1321 (1995), cert. denied, 517 U.S. 1221, 116 S. Ct. 1851, 134 L. Ed. 2d 951 (1996), overruled in part on other grounds by State v. Crawford, 257 Conn. 769, 779-80, 778 A.2d 947 (2001), cert. denied, 534 U.S. 1138, 122 S. Ct. 1086, 151 L. Ed. 2d 985 (2002); see also Fishbein v. Kozlowski, 252 Conn. 38, 50, 743 A.2d 1110 (1999) (''[a]ny interpretation that prevented the commissioner [of motor vehicles] from suspending the license of a person who was stopped without a reasonable and articulable suspicion, but whom the police subsequently had probable cause to arrest for driving under the influence, would undermine the primary purpose of the statute''); cf. McCoy v. Commissioner of Public Safety, 300 Conn. 144, 168-70, 12 A.3d 948 (2011) (concluding that legislature intended second conviction of violating § 14-227a within ten year period to be felony because of lengthy legislative history indicating that, ''over time, the legislature has adopted increasingly more severe punishments in an effort to discourage driving under the influence'').

Put most simply, I would conclude that the comprehensive testing and license suspension procedure set forth in § 14-227b, and implemented in the commercial vehicle context by § 14-44k (c), constitutes ''a plan or system under which action may be taken toward a goal''; Merriam-Webster's Collegiate Dictionary, supra, p 992; namely, mitigating ''the horrors that result from drinking and driving, horrors to which we unfortunately have grown more accustomed . . . [i]n light of the staggering statistics concerning alcohol-related fatalities'' on our state's roadways. (Footnote omitted.) Craig v. Driscoll, 262 Conn. 312, 337, 813 A.2d 1003 (2003). Further, that the blood alcohol testing under § 14-227b is not uniformly performed on all drivers, in contrast to the federally mandated drug testing of commercial vehicle drivers that the majority concludes satisfies § 31-236 (a) (14), is of no moment, as § 14-227b sets up a...