Beyond the Liquor Control Act
By Peter A. Berdon, Esq.

Peter A. Berdon, Esq.

The ability to sell and serve beverage alcohol is a privilege — not a right. This statement is explicit in Connecticut’s statutes, and underscored by the mandates set out within the Liquor Control Act, that permittees and backers comply with the other laws that regulate the operation of their businesses. Failing to comply with these other laws or requirements can cause a license not to issue or an existing license to be suspended or even revoked.

I was reminded of one of these requirements by a recent Liquor Control Commission case. The applicant made application to the Department for a package store license. As is customary, the applicant obtained the approval from the Zoning Enforcement Officer. However, the application was not accepted by the Department and was returned as deficient. The applicant allowed several months to pass. The applicant then resubmitted the same application without obtaining an update of the Zoning Enforcement Officer’s approval. Unfortunately for the applicant, the situation had changed and the premises no longer complied with the zoning requirements. The Zoning Enforcement Officer, after learning of the resubmitted application, notified the Department that he was withdrawing his prior approval.

The stakes were high because the town now exceeded the maximum number of permits. If the applicant was not approved, it would be statutorily barred from obtaining a permit. The applicant attempted to argue that the Zoning Enforcement Officer retraction of his prior approval was incorrect. Significantly, the applicant had failed to appeal the Zoning Enforcement Officer’s. Because the applicant failed to take the appeal, the applicant was bound by this determination, as was the Department. The applicant could not obtain a permit for the requested location as it did not comply with the zoning requirements.

There are several lessons that can be learned by this example. Two of the most important lessons are:

One, remedy any deficiencies quickly, especially where the timing of the permit application may be important; and

Two, where another agency has made a determination of an issue that may affect the viability of an application of permit with which is in compliance with the Town’s Zoning Ordinance is not the only requirement that incorporated by reference into the Liquor Control Act. Other requirements that are referenced by the Liquor Control Act include:

• Fire code compliance;
• State and local building code compliance;
• Failure to pay Unemployment Compensation Contributions;
• Failure to file Unemployment Compensation Returns;
• Violation of a town’s noise ordinance;
• Suspension of, or revocation of, sporting facility permit; and
• Suspension of, or revocation of, license issued by the Division of Special Revenue.

Of these requirements, compliance with the fire code is often the one that affects most licensees, and the one that causes licensees to often unwittingly run afoul. Compliance with the fire code must be demonstrated annually to the Department and requires an annual inspection by the local fire marshal. Should a licensee modify the premises, including through the installation of new equipment, the licensee may be required under the fire code to improve systems, such as the hood exhaust system, or fire suppression system due to the improvements made. To avoid any surprises caused by the triggering of updated code compliance, the licensee should ensure that any proposed work be approved in advance by the fire marshal and be performed by licensed contractors where required.

Failure to file Unemployment Compensation Returns, or to pay the associated contributions, is seemingly a straight forward; however, the Department has discovered and revoked permits for licensees who have not met these requirements. Similarly, the Department has taken action against licensees who have had their lotto license (license issued by the Division of Special Revenue) revoked. When the licensee disagrees with the determination of one of the third party agencies impacting his qualifications to hold a liquor license, the licensee is best served by preserving his right to contest that determination. Preserving this right usually requires the commencement of a timely appeal to the appropriate review body.

I would be remiss in not recognizing the retirements of Agent Kathy Vaughn and Attorney Jan Trendowski. Agent Vaughn has been an Agent with the Department for over 42 years! Kathy we will miss working with you. Congratulations on your well-deserved retirement. Attorney Trendowski has had a long career practicing before the Liquor Control Commission and defending many of the significant dram shop cases brought in the state. We wish Jan and his wife, Liz, well in their new life in Florida.

Attorney Berdon, a partner with Berdon, Young & Margolis, PC, has represented wholesalers, manufacturers, package stores, restaurants and bars before the State of Connecticut DCP and the Federal TTB as well as in litigation matters in court since being admitted to practice in 1991. He can be reached at peter.berdon@bymlaw.com or www.bymlaw.com.