******************************************************

The ‘‘officially released’’ date that appears near the

beginning of each opinion is the date the opinion will

be published in the Connecticut Law Journal or the

date it was released as a slip opinion. The operative

date for the beginning of all time periods for filing

postopinion motions and petitions for certification is

the ‘‘officially released’’ date appearing in the opinion.

In no event will any such motions be accepted before

the ‘‘officially released’’ date.

All opinions are subject to modification and technical

correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the

event of discrepancies between the electronic version

of an opinion and the print version appearing in the

Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the

latest print version is to be considered authoritative.

The syllabus and procedural history accompanying

the opinion as it appears on the Commission on Official

Legal Publications Electronic Bulletin Board Service

and in the Connecticut Law Journal and bound volumes

of official reports are copyrighted by the Secretary of

the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal

Publications, Judicial Branch, State of Connecticut.

******************************************************
A BETTER WAY WHOLESALE AUTOS, INC. v.

COMMISSIONER OF MOTOR VEHICLES

(AC 37402)

DiPentima, C. J., and Alvord and Agati, Js.

Argued March 8—officially released July 26, 2016

(Appeal from Superior Court, judicial district of New

Britain, Schuman, J.)
Kenneth A. Votre, for the appellant (plaintiff).

Drew S. Graham, assistant attorney general, with

whom, on the brief, was George Jepsen, attorney general, for the appellee (defendant).
Opinion

AGATI, J. General Statutes § 14-54 (a)1requires automobile dealers who wish to obtain a license ‘‘for dealing

in . . . motor vehicles’’ first to obtain and present to

the Commissioner of Motor Vehicles a certificate of

approval from local officials in the municipality where

the dealer wishes to operate. The defendant, the Commissioner of Motor Vehicles (commissioner), determined after an administrative hearing that the plaintiff,

A Better Way Wholesale Autos, Inc., failed to comply

with this statutory provision. The sole issue raised in

this appeal is whether the administrative record contains substantial evidence to support this determination. We conclude that the record lacks substantial

evidence to show that the plaintiff violated § 14-54 (a)

and, accordingly, reverse the judgment of the Superior Court.

The following facts and procedural history are relevant to this appeal. The plaintiff is a used car dealer

with a principal place of business located at 423 Rubber

Avenue in Naugatuck. The Department of Motor Vehicles has issued the plaintiff two licenses to operate

car dealerships at two separate locations in Naugatuck

located at 423 and 381 Rubber Avenue, respectively. In

addition to these parcels, the plaintiff leases a third,

unlicensed parcel located on Old Firehouse Road in

Naugatuck (storage lot), on which it stores several hundred cars. Pursuant to an anonymous complaint, the

commissioner investigated whether the plaintiff was

selling cars on the storage lot without a license. At the

conclusion of this investigation, one of the commissioner’s investigators, Robert Bellante, determined that the

plaintiff had violated § 14-54 (a). Subsequently, the commissioner sent the plaintiff notice that it was to appear

for an administrative hearing. In its notice, the commissioner alleged that the plaintiff had operated a car dealership on an unlicensed lot in violation of § 14-54 (a)

and General Statutes § 14-52 (a),2 a provision which

requires, inter alia, individuals and entities to obtain

used car dealer’s licenses.

The parties appeared before an administrative hearing officer on February 22, 2013. At the hearing, the

commissioner submitted evidence to prove that the

plaintiff had operated a car dealership on the unlicensed

storage lot. Specifically, the commissioner submitted

Bellante’s report, which stated that the storage lot contained several hundred vehicles; that he spoke with

John Gorbecki, the plaintiff’s principal; that Gorbecki

informed Bellante that potential customers are permitted to view cars on the storage lot, but that sales take

place at 423 Rubber Avenue; and that the gate to the

storage lot is neverlocked because emergency vehicles,

which the town parks on the storage lot, need to be

able to exit in the event of an emergency. Bellante also

reported that a storage trailer containing car keys, a
compressor, and a jump start was located on the storage

lot. Steve Licitra, a different investigator employed by

the commissioner, testified that he investigated the

plaintiff independently of Bellante,3 and that during his

investigation, he spoke with two individuals on the storage lot. Licitra stated that when he asked these individuals what they were doing, they responded that they

were looking at cars to buy. He testified that these

individuals said that they were directed to the storage

lot by a salesperson at the main office. He also stated

that buyer guides were displayed prominently on the

windows of the vehicles. When asked if he had any

knowledge of whether the plaintiff had obtained

approval from Naugatuck for the storage lot, Licitra

stated that he did not know.

The plaintiff sought to demonstrate that its activities

on the storage lot did not constitute operating a car

dealership. To this end, the plaintiff elicited testimony

from Licitra that neither he nor anyone else employed

by the commissioner ever had witnessed any transactional conduct on the storage lot, such as negotiation

between customers and salespeople, the exchange of

cash, or the execution of bills of sale. The plaintiff also

elicited testimony from Gorbecki that the storage lot

was used only to store excess inventory, not to sell or

to service cars. Gorbecki admitted that salespeople at

423 Rubber Avenue sometimes would direct customers

to the storage lot to view cars, but he also testified that

if a customer was interested in a car, that customer

would return to the main office at 423 Rubber Avenue

and the transaction would occur there. Finally, Gorbecki testified about discussions he had with local officials in Naugatuck, including the town’s zoning

manager. Specifically, Gorbecki testified that town officials wished to maintain a thoroughfare through the

storage lot so that emergency vehicles could cut

through in the event of an emergency.

The plaintiff also produced minutes from the June

16, 2010 meeting of the Naugatuck Zoning Commission

(zoning commission). The minutes state that at that

meeting, the zoning commission discussed whether to

grant the plaintiff’s application ‘‘to park cars on [the

storage lot] located on Elm St[reet] and Rubber [Avenue].’’ The plaintiff also submitted a document, dated

June 16, 2010, which appears to be approval from the

zoning commission to park 400 cars on the storage lot.

During cross-examination, Licitra admitted that he had

not spoken with any local officials regarding approvals

for the storage lot. Moreover, he conceded that he was

not challenging the veracity or authenticity of the zoning

commission minutes or the other documents submitted.

On August 2, 2013, the hearing officer issued his findings of fact, conclusions of law, and order. Specifically,

he found that the plaintiff’s activities at the storage lot
constituted ‘‘merchandising,’’ which he concluded was

part and parcel of its business of offering for sale and

selling used cars. The hearing officer also found that

the storage lot ‘‘was not approved by local authority

for anything other than the parking of cars.’’ Consequently, the hearing officer found that the plaintiff had

operated a used car dealership at an unlicensed location

in violation of §§ 14-52 (a) and 14-54 (a). Accordingly,

the hearing officer ordered the plaintiff to pay a civil

fine in the amount of $5000.

The plaintiff filed an administrative appeal in the

Superior Court, pursuant to General Statutes § 4-183,4

claiming that the hearing officer improperly concluded

that it had violated §§ 14-52 (a) and 14-54 (a). After a

hearing on the matter, the court, Schuman, J., sustained

the appeal with respect to the hearing officer’s determination that the plaintiff had violated § 14-52 (a),5 but

affirmed the hearing officer’s determination that the

plaintiff had violated § 14-54 (a). In its analysis, the

court sought to reconcile § 14-54 (a) with § 14-52 (a),

notwithstanding the fact that it had found that the plaintiff had not violated § 14-52 (a). In particular, the court

determined that ‘‘a person desiring a motor vehicle dealer’s license under § 14-52 must first, under § 14-54,

obtain a certificate of approval of the municipal authorities for the location for which such license is desired

and then present the certificate to the commissioner.’’

(Emphasis added.) Thus, the court determined that the

license that a person ‘‘desires to obtain’’ under § 14-54

(a) is a license under § 14-52 (a). Although the court

recognized that § 14-54 (a) ‘‘does not specifically state

that a dealer must obtain a state license for each location where it wishes to operate,’’ it nevertheless concluded that ‘‘the statute strongly implied that

requirement by providing that a dealer shall obtain a

certificate of local approval of the ‘location for which

such license is desired.’ ’’ Ultimately, the court concluded that § 14-54 (a) requires ‘‘an entity ‘dealing in

. . . motor vehicles’ [to] obtain local approval and then

a state license for the location in which it desires to

do business’’ under § 14-52 (a). (Emphasis added.)

After reviewing the evidence in the administrative

record, the court concluded that the plaintiff’s conduct

on the storage lot constituted ‘‘ ‘dealing in . . . motor

vehicles’ so that the plaintiff must obtain a local certificate of approval.’’ The court remanded the case for a

determination of the fine to be imposed, but noted that

the fine could not exceed $1000 pursuant to General

Statutes § 14-51a.6 This appeal followed.

We begin with the standard of review. ‘‘[J]udicial

review of the commissioner’s action is governed by

the Uniform Administrative Procedure Act [(UAPA),

General Statutes §§ 4-166 through 4-189], and the scope

of that review is very restricted. . . . [R]eview of an

administrative agency decision requires a courtto deter-
mine whetherthere is substantial evidence in the administrative record to support the agency’s findings of basic

fact and whether the conclusions drawn from those

facts are reasonable. . . . Neither this court nor the

trial court may retry the case or substitute its own

judgment for that of the administrative agency on the

weight of the evidence or questions of fact. . . . Our

ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted

unreasonably, arbitrarily, illegally or in abuse of its discretion. . . .

‘‘The substantial evidence rule governs judicial

review of administrative fact-finding under the UAPA.

. . . 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. . . . The substantial evidence rule imposes

an important limitation on the power of the courts to

overturn a decision of an administrative agency . . . .

‘‘It is fundamental that a plaintiff has the burden of

proving that the commissioner, on the facts before him,

acted contrary to law and in abuse of his discretion

. . . . The law is also well established that if the decision of the commissioner is reasonably supported by

the evidence it must be sustained.’’ (Citations omitted;

internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343–44, 757

A.2d 561 (2000).

On appeal, the plaintiff claims that the court improperly determined that § 14-54 (a) applies to the facts of

the present case. Specifically, the plaintiff argues that

the evidence does not demonstrate that it was ‘‘dealing

in . . . motor vehicles’’ on the storage lot. The plaintiff

argues that the storage lot was not operated as a car

dealership, and, therefore, that it did not need approval

of local officials under the statute. Additionally, the

plaintiff argues that § 14-54 (a) does not require licensing at all; instead, it simply states that to the extent a

person desires to obtain a license, such person must

obtain local approval and present a certificate of

approval to the commissioner.

In response,the commissioner seeks, as the court did,

to correlate § 14-54 (a) with § 14-52 (a). In particular, the

commissioner argues that § 14-54 (a) requires a license

under § 14-52 (a) if the activities on the location at

issue constitute ‘‘dealing in . . . motor vehicles.’’ The

commissioner argues that there is ample evidence in

the record to support the court’s determination that the

plaintiff was ‘‘dealing in . . . motor vehicles’’ on the

storage lot in violation of § 14-54 (a), such as the evidence that customers were directed to the storage lot

and that buyer guides were displayed on the vehicles.

As a preliminary note, we must stress that the issue

of whether the plaintiff violated § 14-52 (a) is not before
us.7

Instead, we must determine whether there is substantial evidence in the administrative record to support

the court’s determination that the plaintiff violated § 14-

54 (a). In order to do so, we must evaluate the statutory

framework in subpart (D) of title 14 of the General

Statutes.

The commissioner has the power to impose civil penalties for conduct that constitutes a violation of, among

other provisions, § 14-54 (a). See General Statutes § 14-

51a (‘‘[t]he commissioner may, after notice and hearing,

impose a civil penalty of not more than one thousand

dollars on any person, firm or corporation who violates

any provision of sections 14-54 to 14-67a, inclusive’’).

Section 14-54 (a), in turn, provides that ‘‘[a]ny person

who desires to obtain a license for dealing in . . .

motor vehicles in a municipality having a population

of no less than twenty thousand shall first obtain and

present to the commissioner a certificate of approval

of the location for which such license is desired from

the board or authority designated by local charter, regulation or ordinance of the town, city or borough wherein

the business is located or is proposed to be located

. . . .’’ In other words, § 14-54 (a) states that if a person

desires to obtain a license, then such person must

obtain approval from local officials and present proof

of that approval to the commissioner. The failure to

obtain such approval from local officials and to verify

such approval with the commissioner is the conduct

that is proscribed by the statute, and such conduct may

result in civil penalties pursuant to § 14-51a. Thus, we

must determine whetherthe record contains substantial

evidence that the plaintiff failed both to obtain local

approval and to present such approval to the commissioner.

On the basis of our review, we conclude that the

administrative record lacks substantial evidence to support the hearing officer’s determination. To begin with,

we note that the plaintiff has maintained throughout

that it never desired to obtain a license to ‘‘[deal] in

. . . motor vehicles’’ on the storage lot. No evidence

to the contrary has been presented. Second, and more

importantly, the record is devoid of any evidence that

the plaintiff, consistent with a desire to obtain a license,

failed either to obtain a certificate of approval from

local officials or to present such a certificate to the

commissioner. The documentary and testimonial evidence adduced at the hearing overwhelmingly

addressed whether the plaintiff was operating a used

car dealership on the storage lot. For example, there

was evidence that the plaintiff stored hundreds of cars

on the storage lot, which were displayed with buyer

guides, and that the plaintiff directed customers onto

the storage lot to view the inventory.

But as we previously noted, this appeal only requires

us to consider whether the plaintiff failed to obtain and
verify local zoning approval. See General Statutes § 14-

54 (a). None of the evidence concerning whether the

plaintiff operated a car dealership on the storage lot

speaks to whether the plaintiff failed to obtain and

verify local zoning approval. Moreover, practically none

of the evidence submitted to the hearing officer

addressed whether local officials in Naugatuck had any

knowledge of or involvement in permitting the storage

lot. The evidence that was submitted to this issue, however, fell far short of demonstrating that such approval

was not obtained. For example, Licitra was asked if he

was aware of whether the plaintiff obtained approval

from Naugatuck officials for the storage lot, and he

responded that he did not know. Indeed, Licitra admitted that he had not spoken with any local officials

regarding approvals for the storage lot. At one point,

Licitra was shown the minutes from the June 16, 2010

meeting of the zoning commission and the June 16,

2010 document approving the plaintiff to park 400 cars

on the storage lot. Licitra did not challenge the authenticity or veracity of these documents. Significantly, no

representative of the commissioner ever has challenged

these documents, whether before the hearing officer,

the trial court, orthis court. Thus, the evidence suggests

that the plaintiff did in fact obtain local approval, just

not for the purpose of operating a used car dealership.

The commissioner nevertheless argues that § 14-54

(a) does in fact contain a licensing requirement. In support of this argument, the commissioner cites to Mohican Valley Concrete Corp. v. Zoning Board of Appeals,

75 Conn. App. 45, 815 A.2d 145 (2003). In that case,

this court stated that ‘‘§ 14-54 requires a person who

contemplates establishing a new automobile dealership

in this state to obtain a state license. A state license,

in turn, is conditioned upon approval of the proposed

location by a local zoning board.’’ (Footnote omitted.)

Id., 46. We reject the commissioner’s contention.

First, we disagree that the quoted pronouncement of

this court in Mohican Valley Concrete Corp. is binding

with respect to § 14-54 (a). The court in that case was

not tasked with the meaning or requirements of § 14-

54 (a). Instead, that case, as the court noted, ‘‘concern[ed] the validity of a zoning board’s decision to

grant such an approval.’’ Id. That case addressed the

adequacy of a zoning board’s decision and whether a

car dealer was entitled to a special exception to use a

proposed location for a dealership. Id., 55–59. Thus, the

statement concerning what § 14-54 (a) requires is dicta.

‘‘Dicta are [o]pinions of a [court] which do not embody

the resolution or determination of the specific case

before the court [and] [e]xpressions in [the] court’s

opinion which go beyond the facts before [the] court

and therefore are individual views of [the] author[s] of

[the] opinion and [are] not binding in subsequent cases

as legal precedent.’’(Internal quotation marks omitted.)

Honulik v. Greenwich, 293 Conn. 641, 645 n.5, 980 A.2d
845 (2009).

Second, and more importantly, the plain language of

§ 14-54 (a) simply does not support the commissioner’s

position. We disagree with the court’s determination

that § 14-54 ‘‘strongly implie[s]’’ a requirement that car

dealers obtain licenses for each location8 on which they

wish to operate a car dealership. Further, whether the

plaintiff was ‘‘dealing in . . . motor vehicles’’ without

a license is irrelevant because § 14-54 (a) does not proscribe such conduct. As we previously have stated in

this opinion, our inquiry in the present case is whether

the plaintiff failed to obtain local approval and to present a certificate of approval to the commissioner.

Because the record lacks substantial evidence to demonstrate that the plaintiff engaged in this conduct, we

conclude that the determination of the hearing officer

and the trial court that the plaintiff violated § 14-54 (a)

cannot stand.

The judgment is reversed and the case is remanded

with direction to sustain the plaintiff’s appeal.

In this opinion the other judges concurred.

1 General Statutes § 14-54 (a) provides in relevant part: ‘‘Any person who

desires to obtain a license for dealing in or repairing motor vehicles in a

municipality having a population of no less than twenty thousand shall first

obtain and present to the commissioner a certificate of approval of the

location for which such license is desired from the board or authority

designated by local charter, regulation or ordinance of the town, city or

borough wherein the business is located or is proposed to be located, except

that in any town or city having a zoning commission, combined planning

and zoning commission and a board of appeals, such certificate shall be

obtained from the zoning commission. . . .’’

2 General Statutes § 14-52 (a) provides in relevant part: ‘‘No person, firm

or corporation may engage in the business of the buying, selling, offering

for sale or brokerage of any motor vehicle or the repairing of any motor

vehicle without having been issued either a new car dealer’s, a used car

dealer’s, a repairer’s or a limited repairer’s license. . . .’’

3 Bellante did not testify.

4 General Statutes § 4-183 (a) provides in relevant part: ‘‘A person who

has exhausted all administrative remedies available within the agency and

who is aggrieved by a final decision may appeal to the Superior Court as

provided in this section. . . .’’

5 On appeal, the commissioner claims that the court improperly concluded

that the plaintiff did not violate § 14-52. The commissioner has failed, however, to file a cross appeal, which it was required to do, as an appellee

seeking to change the judgment, pursuant to Practice Book § 61-8. See East

Windsor v. East Windsor Housing Ltd., LLC, 150 Conn. App. 268, 270 n.1,

92 A.3d 955 (2014) (‘‘[i]f an appellee wishes to change the judgment in any

way, the party must file a cross appeal’’ [internal quotation marks omitted]);

see also Akin v. Norwalk, 163 Conn. 68, 70–71, 301 A.2d 258 (1972). Consequently, we will not review this claim.

6 General Statutes § 14-51a provides: ‘‘The commissioner may, after notice

and hearing, impose a civil penalty of not more than one thousand dollars

on any person, firm or corporation who violates any provision of sections

14-54 to 14-67a, inclusive, or of not more than two thousand dollars on any

person, firm or corporation who violates section 14-52.’’ (Emphasis added.)

7 See footnote 5 of this opinion.

8 Although the parties have neither raised nor briefed it, we note that

another provision in title 14 sets forth a licensing requirement for individual

lots. See General Statutes § 14-58 (a) (‘‘[e]ach new car dealer, used car

dealer or repairer before engaging in such business shall make a separate

sworn application to the commissioner for a license to engage in such

business in each place of business conducted by such dealer’’).