Attorney General: Honorable John F. Healy, Chairman, Department of Liquor Control , 1990-028 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

August 24, 1990

Honorable John F. Healy
Chairman
Department of Liquor Control
State Office Building
165 Capitol Avenue
Hartford, CT 06106

Dear Chairman Healy:

This is in response to your request for an opinion on the question of whether a police commissioner1 can be licensed to hold a liquor permit as a permittee or backer under Conn. Gen. Stat. e 30-45. For the following reasons, we believe that a police commissioner cannot be so licensed.

Persons in certain law enforcement posts have been prohibited from holding liquor permits since the repeal of prohibition in 1933. See Conn. Gen. Stat. (1933 Sup.) e 702b. In 1943, the Connecticut General Assembly specifically prohibited policemen and policewomen from holding a license. 1943 Conn. Pub. Acts No. 43-183, Sec. 3. Since 1945, the statutes have prohibited "any ... member of any police force" from holding such a license. See 1945 Conn. Pub. Acts No. 45-417, Sec. 5. This prohibition is presently codified in Conn. Gen. Stat. e 30-45, which provides as follows:

The department of liquor control shall refuse permits for the sale of alcoholic liquor to the following persons: (1) Any sheriff, deputy sheriff, constable, judge of any court, prosecuting officer or member of any police force, (2) any first selectman holding office and acting as a chief of police in the town within which the permit premises are to be located, and (3) any person not of legal drinking age. This section shall not apply to out-of-state shippers', boat and airline permits. As used in this section, "legal drinking age" means the age of majority as defined in section 1-1d or the legal drinking age as defined in this chapter, whichever is greater.

Conn. Gen. Stat. e 30-45.

The question which you pose has been asked and answered three times in the past. The first time the question arose in 1944, the statute was phrased so as to prohibit any "policeman" or "policewoman" from holding a license. This office then opined that it was doubtful that a police commissioner could be considered the same as a policeman or policewoman subject to this statutory bar. Nevertheless, police commissioners were described as a "member of the municipal police department", and their function was described as incompatible with the role of liquor licensees for the following reasons:

Here then, we have an incompatible situation. The law confers the right upon your Commission to call upon a Police Commissioner for information and assistance with respect to enforcing the Liquor Control Act and at the same time such Commissioner may himself be the liquor permittee, subject to the investigation.

23 Conn. Op. Atty. Gen. 401, 402 (1944).

Consequently, the Attorney General concluded that, "where a Police Commissioner is the applicant, the fact that he is a member of the municipal Police Department should mitigate against a favorable consideration of his application." Id. at 403. The ultimate decision rested with the Liquor Commission which was to consider such matters under its discretionary authority to review the character, record and reputation of an applicant. Ibid.

After the Attorney General so described police commissioners as members of a police department, the legislature, in 1945, amended the Liquor Control Act to prohibit the issuance of a liquor permit to "any ... member of any police force." 1945 Conn. Pub. Acts No. 45-417, Sec. 5. Subsequently, when the question of whether a Board of Public Safety member could hold a permit was raised in 1952, the answer was, again, negative. This time, the matter was not a matter for discretionary review, rather, it was held to be squarely barred by the rephrased statute because:

You will note that the powers of this Board (Board of Public Safety) are quite analogous to the powers of any board of police commissioners as contained in the General Statutes. Insofar as the present problem is concerned, it is important to note that they have the sole power of appointment, promotion and removal of the officers and members of the police force, and may adopt such rules or regulations as it may deem necessary in order to carry out the purposes for which the Board was created.

It would seem to us that the phrase "member of any police force" is intended to include any person who is part of a regularly organized police system. In view of the powers vested in the Board of Public Safety, it must be deemed to be an integral part of the police department, and consequently the personnel of such Board must be considered members of a police force and within the intent of that phrase as used in Section 4264.

27 Conn. Op. Atty. Gen. 355, 356 (1952).

Moreover, it was concluded that this interpretation fulfilled the obvious legislative intent to eliminate, beforehand, the opportunity for conflicts of interest in certain cases:

It would seem that the mischief which this Act seeks to prevent is, placing in the hands of certain public officials permits for the sale of alcoholic liquor, where, in the exercise of such privilege a conflict of interest might arise between the duties imposed by law upon such public officials and their privileges as liquor permittees.

Id., at 356, quoting 23 Conn. Op. Atty. Gen. 153, 154 ( 1943).

The third time the question was raised, in 1969, our office observed that the question had been resolved in the earlier opinion. We disposed of the question by referencing the earlier opinion, with the following caveat: " In the absence of legislation changing this statute, we are constrained to confirm the conclusion stated in any earlier opinion ...."

69 Conn. Op. Atty. Gen., (February 25, 1969) (Attachment A).

Over twenty years have now passed since that opinion was issued, and the legislature has yet to make a change in the pertinent passage respecting the holding of liquor permits by members of a police force.2 Although Opinions of the Attorney General are not binding on Courts, they are nevertheless generally regarded as highly persuasive and entitled to careful consideration. Windham Community Memorial Hospital v. Willimantic, 166 Conn. 113, 118, 348 A.2d 651 (1974). Giving these prior opinions the deference which they deserve, we conclude, once again, that police commissioners are not eligible to hold liquor permits as permittees or backers. If a change in that result is desirable, the remedy is to seek a change in the statute from the General Assembly for we cannot, by construction, abrogate a clear expression of legislative intent. Brunswick Corp. v. Liquor Control Commission, 184 Conn. 75, 81, 440 A.2d 792 (1981).

In conclusion, a police commissioner cannot be licensed to hold a liquor permit as a permittee or backer under Conn. Gen. Stat. e 30-45.

Very truly yours,

CLARINE NARDI RIDDLE
ATTORNEY GENERAL

Robert F. Vacchelli
Assistant Attorney General

CNR/RFV/br

Attach.


1 Police commissioners are elected or appointed officials of a municipality. Conn. Gen. Stat. e 7-187, et seq. and e7-274. They are responsible for the general management and supervision of the police department, including the appointment, promotion and removal of the officers and members of such police department. Conn. Gen. Stat. e 7-276.

2 By comparison, the General Assembly over the years has relaxed restrictions on the holding of liquor permits by selectmen. See, e.g., 1971 Conn. Pub. Acts No. 71-270; 1987 Conn. Pub. Acts No. 87-242. Even so, selectmen may not hold a liquor permit in a town if they also act as the police chief of the town. Conn. Gen. Stat. e 30-45(2). Moreover, as Senator Owens remarked during legislative debates on the 1987 measure, the police commissioner-liquor licensee combination still does not mix in the opinion of the legislature:

But I think that the exception that's carved out where the selectmen is in fact the police commissioner in many instances, prohibiting he or she from having that type of thing, avoids any appearance of impropriety.

30 S.Proc. 1987 Sess. Pt.7 at p.2636.


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