Ace Partners, LLC v. Town of East Hartford

14‐3831‐cv
Ace Partners, LLC v. Town of East Hartford
In the
United States Court of Appeals
for the Second Circuit
A UGUST TERM 2016
No. 14‐3831‐cv
A CE PARTNERS , LLC D/ B / A TC’S PAWN C O .,
Plaintiff‐Appellee,
v.
TOWN OF E AST H ARTFORD, E AST H ARTFORD POLICE D EPARTMENT,
MARK J. S IROIS , CHIEF OF POLICE , I/O, JOHN MURPHY, D EPUTY C HIEF
OF POLICE , I/O,
Defendants‐Appellants.
On Appeal from the United States District Court
for the District of Connecticut
A RGUED: JUNE 23, 2017
D ECIDED: F EBRUARY 28, 2018
Before: JACOBS , L EVAL , R AGGI, Circuit Judges.
________________

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14‐3831‐cv
Ace Partners, LLC v. Town of East Hartford
2
On appeal from that part of a summary judgment granting
ACE Partners, LLC, d/b/a TC’s Pawn Co., compensatory damages and
attorney’s fees on its § 1983 procedural due process challenge to the
Town of East Hartford’s decision not to renew plaintiff’s license to
deal in precious metals, defendants argue that the United States
District Court for the District of Connecticut (Chatigny, J.)
misconstrued Conn. Gen. Stat. § 21‐100(a) in finding plaintiff to hold
a constitutionally protected property interest in the license renewal.
R EVERSED AND R EMANDED.
D ANIEL J. K LAU (James R. Smart, Rory M.
Farrell, on the brief), McElroy, Deutsch,
Mulvaney & Carpenter, LLP, Hartford,
Connecticut, for Plaintiff‐Appellee.
THOMAS R. G ERARDE (Katherine E. Rule, on
the brief), Howd & Ludorf, LLC, Hartford,
Connecticut, for Defendants‐Appellants.
R EENA R AGGI, Circuit Judge:
This case concerns a 2009 decision by defendant East Hartford
Chief of Police Mark J. Sirois not to renew pawnbroker and precious
metals licenses held by plaintiff ACE Partners, LLC, d/b/a TC’s Pawn
Co. (“ACE”) after the State Attorney searched ACE’s East Hartford
premises and arrested two of its employees for attempting to receive
stolen property. ACE sued the Town of East Hartford, its Police
Department, Chief Sirois, and then‐Deputy Chief John Murphy in the

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14‐3831‐cv
Ace Partners, LLC v. Town of East Hartford
3
United States District Court for the District of Connecticut (Robert N.
Chatigny, Judge) pursuant to 42 U.S.C. § 1983 for alleged violations of
substantive and procedural due process. See U.S. Const., amend. XIV.
The district court awarded summary judgment to defendants on all
of ACE’s claims with one exception. It awarded ACE summary
judgment against two defendants, the Town of East Hartford and
Chief Sirois in his official capacity (hereafter, collectively, “the
Town”), on ACE’s claim that the decision not to renew its precious
metals license violated procedural due process because it was made
without adequate notice and opportunity to be heard. See Ace
Partners, LLC v. Town of East Hartford, No. 3:09‐CV‐1282 (RNC), 2011
WL 4572109, at *5 (D. Conn. Sept. 30, 2011). The Town now appeals
from that part of the amended final judgment, entered on August 11,
2016, as awards ACE $352,660 plus interest in compensatory damages
and $490,831.75 in attorney’s fees on this procedural due process
claim.1
For the reasons stated herein, we conclude that ACE was not
entitled to summary judgment on this procedural due process
challenge because Connecticut law does not afford it a
constitutionally protected property interest in the renewal of its
precious metals license. For the same reason, we conclude that the
1 Although both parties identify defendant Murphy as an appellant, the district court
granted him summary judgment on all ACE’s claims, a ruling he understandably does not
dispute before this court. See Ace Partners, LLC v. Town of East Hartford, 2011 WL 4572109,
at *6. Meanwhile, ACE does not appeal from those parts of the judgment in favor of
defendants. Specifically, it does not appeal the award of summary judgment to all
defendants on ACE’s substantive due process challenge to both renewal denials or on its
procedural due process challenge to the renewal denial of its pawnbroker license. See id.
at *2–5. ACE also does not appeal the summary judgment award to defendant Sirois in his
individual capacity and to defendant Murphy in his individual and official capacities on
ACE’s procedural due process challenge to the renewal denial of its precious metals
license. See id. at *6–7. Thus, we do not discuss those rulings further in this opinion, except
as they bear on the Town’s appeal.

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14‐3831‐cv
Ace Partners, LLC v. Town of East Hartford
4
Town is entitled to judgment on this claim. Accordingly, we reverse
that part of the final judgment in favor of ACE, and we remand this
case to the district court for it to enter judgment in favor of defendants
on all claims. That reversal extends to the award of attorney’s fees
because our ruling on the merits means that ACE is not now, and
could not ever properly have been considered, a “prevailing party,”
the necessary predicate for a fees award pursuant to 42 U.S.C.
§ 1988(b). In light of that ruling, there is no need to address the
Town’s proximate cause challenge to the award of compensatory
damages or its reasonableness challenge to the award of attorney’s
fees.
BACKGROUND
I. ACE Procures Pawnbroker and Precious Metals Licenses for
its East Hartford Location
At times relevant to this case, ACE operated pawnbroker and
precious metals businesses from locations in Waterbury and East
Hartford, Connecticut. Connecticut law regulates such businesses,
requiring each to be conducted pursuant to licenses issued for one‐
year terms by designated officials of the municipalities wherein the
businesses are to be conducted. See Conn. Gen. Stat. §§ 21‐39, 21‐40,
21‐100. Before opening its East Hartford store in October 2007, ACE
owner Christa Matuschkowitz applied to the Town for and was
granted one‐year pawnbroker and precious metals licenses. The
following year, Matuschkowitz applied to renew these licenses,
which renewal was granted for one year running from August 9, 2008,
through August 9, 2009.

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14‐3831‐cv
Ace Partners, LLC v. Town of East Hartford
5
II. The Arrest of ACE Employees and the Search of its Store
In the spring of 2009, ACE’s East Hartford location came under
scrutiny by the Connecticut State Attorney, who was then supervising
a task force investigating suspected trafficking in stolen property by
certain pawnshops across the state. Pursuant to that investigation, on
or about April 14, 2009, a state police officer, operating undercover,
offered to sell two ACE employees, subsequently identified as
Nicholas Carbone and General Manager Jay Sargent, what appeared
to be stolen property, specifically, a “new in box” power tool still
equipped with “spider wrap,” an anti‐theft device that emits a loud
noise if its cable is cut. J.A. 198–201. In a recorded exchange with the
officer, Sargent stated that he would not buy the tool with the spider
wrap on it, but “if it wasn’t on it I could buy it, but I can’t take it off.”
Id. at 199. The officer briefly left the store and returned with the spider
wrap removed from the tool, whereupon Carbone, in Sargent’s
presence, paid the officer $35 for the tool—which had a retail value of
$214—and asked if he had “another one.” Id. at 200.
On or about June 3, 2009, other officers working with the State
Attorney returned to ACE’s East Hartford store and there conducted
a buy‐bust operation, arresting two participating employees, Carbone
and Nicholas St. Peter, and seizing various items from the premises
pursuant to a search warrant. Carbone and St. Peter were charged
with misdemeanor larceny based on their attempted receipt of stolen
property. See Conn. Gen. Stat. § 53a‐125a. Sargent would also be
arrested on misdemeanor larceny charges on August 11, 2009. See id.
§§ 53a‐125b; 53a‐48.2
2 In October 2010, ACE and Sargent entered into agreements with the State Attorney,
whereby the former waived any claims to property seized from the East Hartford store

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14‐3831‐cv
Ace Partners, LLC v. Town of East Hartford
6
III. The Town Decides Not To Renew ACE’s Licenses
On June 30, 2009, i.e., shortly after the Carbone‐St. Peter arrests,
East Hartford Deputy Police Chief Murphy prepared a letter for Chief
Sirois’s signature proposing to revoke ACE’s pawnbroker and
precious metals licenses “for cause,” pursuant to Conn. Gen. Stat.
§§ 21‐40, 21‐100(a), based on the “[r]ecent occurrences” at its East
Hartford location. J.A. 241. The letter advised ACE that it could
request a hearing. Sirois, however, decided not to revoke ACE’s
licenses at that time, and the letter was never sent.
The following month, on July 20 and 21, 2009, Matuschkowitz
filed applications with the Town to renew ACE’s pawnbroker and
precious metals licenses, which were scheduled to expire on August
9, 2009. In these applications, Matuschkowitz identified General
Manager Sargent, as well as herself, as among ACE’s owners or
officers. Chief Sirois denied renewal, advising Matuschkowitz of his
decision in a letter dated Friday, August 7, 2009, which explained that
“[r]ecent occurrences” at ACE’s East Hartford location “demonstrate
that there exists cause not to renew.” Id. at 379. At his deposition in
this action, Sirois testified that, at the time he reviewed ACE’s renewal
application, he had been advised by Murphy that the State Attorney
had developed incriminating evidence of stolen property trafficking
against ACE East Hartford employees, including a manager; that two
such employees had already been arrested; and that the arrest of a
third ACE employee was anticipated. Sirois acknowledged that he
did not know the particular evidence supporting the State Attorney’s
actions.
(with certain exceptions) and consented to the property’s return to the original owners or
its forfeiture to the State of Connecticut. In turn, the State Attorney agreed not to pursue
prosecutions of ACE or its arrested employees.

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14‐3831‐cv
Ace Partners, LLC v. Town of East Hartford
7
ACE received Sirois’s letter denying renewal on Saturday,
August 8, 2009, one day before its pawnbroker and precious metals
licenses expired on Sunday, August 9. On Monday, August 10, ACE
General Manager Sargent requested a meeting with Sirois to discuss
his adverse renewal decision. The request was denied, with Deputy
Chief Murphy advising Sargent that there was no reason for a
meeting. The following day, August 11, the State Attorney arrested
Sargent.
Without the requisite licenses to operate as a pawnbroker or to
deal in precious metals, ACE closed its East Hartford store.3
IV. District Court Proceedings
On August 12, 2009, ACE filed this action. Discovery ensued,
after which the parties, on October 1, 2010, cross‐moved for summary
judgment, with defendants urging dismissal of all claims and ACE
seeking judgment in its favor on its procedural due process claim. We
here focus on the procedural claim, as the partial grant of summary
judgment to ACE on the part of that claim pertaining to the precious
metals license is the only ruling challenged on this appeal.
The district court construed Connecticut’s pawnbroker licensing
statute, particularly the phrase stating that “the chief of police of any
city may grant [pawnbroker] licenses to suitable persons,” see Conn.
Gen. Stat. § 21‐40 (emphasis added), to afford sufficient discretion to
the licensing authority to preclude ACE from establishing a
3 It is not clear whether ACE would have kept the store open if it had secured renewal of
only the precious metals license. That question might bear on the Town’s proximate cause
challenge to damages in light of the district court’s rejection of ACE’s procedural due
process challenge to the denial of its pawnbroker license. We need not pursue the matter,
however, because ACE has not challenged the district court’s determination that it lacked
a constitutionally protected property interest in the renewal of its pawnbroker license, and
we here conclude that it lacked such an interest in renewal of its precious metals license.

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14‐3831‐cv
Ace Partners, LLC v. Town of East Hartford
8
constitutionally protected property interest in the renewal of that
license. See Ace Partners, LLC v. Town of East Hartford, 2011 WL
4572109, at *2–3. Accordingly, it awarded summary judgment to
defendants on that part of ACE’s procedural claim. See id. In the
absence of comparable language in the precious metals licensing
statute, however, the district court concluded that ACE had shown a
constitutionally protected property interest in the renewal of that
license and, based on a lack of notice and opportunity to be heard
before renewal was denied, the court awarded ACE summary
judgment on that part of its procedural claim against the Town. See
id. at *4–5.
Following a failure to secure reconsideration, a determination
of damages and attorney’s fees, and the entry of an amended final
judgment, the Town filed this appeal.
DISCUSSION
I. Standard of Review
We review a challenged award or denial of summary judgment
de novo, and we will affirm only if the record, viewed in the light most
favorable to the non‐movant, shows no genuine dispute of material
fact and the movant’s entitlement to judgment as a matter of law. See
Jackson v. Fed. Express, 766 F.3d 189, 193–94 (2d Cir. 2014).
To succeed on a procedural due process claim that one has been
denied adequate notice of an adverse action or a meaningful
opportunity to be heard, a plaintiff must first establish that the
challenged action “deprived him of a protected property interest.”
Spinelli v. City of New York, 579 F.3d 160, 168 (2d Cir. 2009); see Barrows
v. Burwell, 777 F.3d 106, 113–14 (2d Cir. 2015). To show such a
protected interest, a plaintiff must demonstrate more than an

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14‐3831‐cv
Ace Partners, LLC v. Town of East Hartford
9
“abstract need or desire” for the matter at issue, or a “unilateral
expectation” as to its receipt. Board of Regents of State Colls. v. Roth, 408
U.S. 564, 577 (1972); accord Barrows v. Burwell, 777 F.3d at 113. Rather,
a plaintiff must establish “a legitimate claim of entitlement,” one
“created and . . . defined by existing rules or understandings that stem
from an independent source,” including, as pertinent here, state law.
Board of Regents of State Colls. v. Roth, 408 U.S. at 577; accord Barrows v.
Burwell, 777 F.3d at 113.
Where, as here, the asserted interest is a government‐issued
license or permit, a legitimate claim of entitlement will be found to
exist “where, under applicable state law, absent the alleged denial of
due process, there is either a certainty or a very strong likelihood that
the application would have been granted.” Harlen Assocs. v. Inc. Vill.
of Mineola, 273 F.3d 494, 504 (2d Cir. 2001) (internal quotation marks
omitted). Thus, a property interest in a license or permit largely turns
on “whether the issuing authority lacks discretion to deny the
permit,” i.e., whether the authority “is required to issue it upon
ascertainment that certain objectively ascertainable criteria have been
met.” Id. (internal quotation marks omitted). In other words, “[a]
clear entitlement, and, in turn, a constitutionally protected property
interest, exists only when the discretion of the issuing agency is so
narrowly circumscribed that approval of a proper application is
virtually assured.” Villager Pond, Inc. v. Town of Darien, 56 F.3d 375,
378 (2d Cir. 1995) (internal quotation marks omitted).
Applying these principles here, we conclude that approval of
ACE’s renewal application for its precious metals license was not
“virtually assured” by Connecticut law so as to afford ACE the
protected property interest necessary for its procedural due process
claim.

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14‐3831‐cv
Ace Partners, LLC v. Town of East Hartford
10
II. Section 21‐100(a)’s Plain Language Does Not Support ACE’s
Claimed Property Interest in Renewal
In explaining this conclusion, we note at the outset that the
Connecticut Supreme Court has not itself ruled on the degree of
discretion that Conn. Gen. Stat. § 21‐100(a) affords local authorities in
issuing or renewing the license required to deal in precious metals.
See generally Portalatin v. Graham, 624 F.3d 69, 84 (2d Cir. 2010) (stating
that federal courts are bound by highest state court’s construction of
state law). In the absence of such controlling precedent, we look to
whether the statute, construed according to Connecticut’s
interpretive standards, unambiguously answers the question. See
Morenz v. Wilson‐Coker, 415 F.3d 230, 236–37 (2d Cir. 2005) (stating that
federal court is “bound to interpret Connecticut law according to
Connecticut’s own interpretative rules”). The “plain meaning”
standard of statutory interpretation is codified in Connecticut law
and states as follows:
The meaning of a statute shall, in the first instance, be
ascertained from the text of the statute itself and its
relationship to other statutes. If, after examining such
text and considering such relationship, the meaning of
such text is plain and unambiguous and does not yield
absurd or unworkable results, extratextual evidence of
the meaning of the statute shall not be considered.
Conn. Gen. Stat. § 1‐2z; accord Morenz v. Wilson‐Coker, 415 F.3d at 236
(quoting § 1‐2z and citing supporting Connecticut precedent).
To apply that standard here, we begin by reproducing the
statutory text for Connecticut’s precious metals licensing statute. At
the time ACE applied for and was denied renewal of its licenses, that
law stated in pertinent part as follows:

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14‐3831‐cv
Ace Partners, LLC v. Town of East Hartford
11
Sec. 21‐100. License required. Fee. Record of
transactions. (a) No person may engage in or carry on
the business of purchasing gold or gold‐plated ware,
silver or silver‐plated ware, platinum ware, watches,
jewelry, precious stones or coins unless such person is
licensed by the chief of police or, if there is no chief of
police, the first selectman of the municipality in which
such person intends to carry on such business [subject to
exceptions not applicable here]. Such person shall pay
an annual fee of ten dollars for such license. The license
may be revocable for cause, which shall include, but not
be limited to, failure to comply with any requirements
for licensure specified by the licensing authority at the
time of issuance. A chief of police or first selectman shall
refuse to issue a license under this subsection to a person
who has been convicted of a felony. A chief of police or
first selectman may require any applicant for a license to
submit to state and national criminal history records
checks.
Conn. Gen. Stat. § 21‐100(a) (2001).
The parties’ arguments require us to consider this precious
metals licensing statute in relation to Connecticut’s pawnbroker
licensing statute. Accordingly, we also reproduce the relevant
sections of the latter statute as in effect at the pertinent time:
Sec. 21‐39. License required. . . . No person, corporation,
limited liability company or partnership shall, in any city
or town of this state, engage in or carry on the business
of loaning money upon deposits or pledges of [tangible
property], or of purchasing such property on condition
of selling the same back again at a stipulated price, unless
such person, corporation, limited liability company or
partnership is licensed as a pawnbroker . . . .

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14‐3831‐cv
Ace Partners, LLC v. Town of East Hartford
12
Sec. 21‐40. Issuance of licenses. Fees. The selectmen of
any town and the chief of police of any city may grant
licenses to suitable persons to be pawnbrokers . . . and
may revoke such licenses for cause . . . . The person so
licensed shall pay . . . a license fee of fifty dollars, and
twenty‐five dollars per year thereafter for renewal of
such license, and shall, at the time of receiving such
license, file . . . a bond to such city or town, with
competent surety, in the penal sum of two thousand
dollars, to be approved by such licensing authority, and
conditioned for the faithful performance of the duties
and obligations pertaining to the business so licensed.
Each such license shall designate the place where such
business is to be carried on and shall continue one year
unless sooner revoked. No license shall be issued under
this section by the selectmen or chief of police to any
person who has been convicted of a felony. The
selectmen or chief of police may require any applicant for
a license under this section to submit to state and
national criminal history records checks.
Id. § 21‐39 (1997), § 21‐40 (2001).4
Focusing now on particular statutory language, we note that
the opening words of § 21‐100(a), no less than the opening words of
§ 21‐39, speak of prohibition, not entitlement: “No person” can
conduct either a precious metals or pawnbroker business in the State
of Connecticut unless he is licensed to do so by designated authorities
of the municipality where the business will be conducted. See
generally Aurilio v. Sweeney, No. CV 980357150S, 1999 WL 171414, at *4
(Conn. Super. Ct. Mar. 11, 1999) (observing that § 21‐100(a) is “a
prohibition of the business unless a license is obtained” (internal
4 As noted supra at 3 n.1, ACE does not appeal the district court’s determination that these
statutory sections confer no property interest in the issuance or renewal of a pawnbroker
license.

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14‐3831‐cv
Ace Partners, LLC v. Town of East Hartford
13
quotation marks omitted)), aff’d 761 A.2d 801 (Conn. App. Ct. 2000).
Neither § 21‐100(a) nor § 21‐40 pronounce specific requirements for
securing a license, although both prohibit the licensing of convicted
felons and impose annual fees. The text of the precious metals
licensing statute, however, plainly contemplates “requirements,” and
moreover, as discussed in the next paragraph, affords police chiefs
virtually unfettered discretion to specify them. Conn. Gen. Stat. § 21‐
100(a).
This is evident from the statute’s revocation provision, which
states that precious metals licenses may be revoked “for cause,” a
term that is not statutorily defined except to state that it “shall
include, but not be limited to, failure to comply with any requirements
for licensure specified by the licensing authority at the time of issuance.” Id.
(emphasis added). By thus referencing “requirements for licensure,”
the statute makes clear that the issuance or renewal of a precious
metals license is subject to such requirements as, here, the chief of
police may specify in the exercise of his discretion. See Webster’s
Third New International Dictionary 1929 (1976) (defining
“requirement” as “something required,” “a requisite or essential
condition”); State v. Agron, 148 A.3d 1052, 1056 (Conn. 2016)
(presuming, in absence of statutory definition, that legislature
intended word to have its “ordinary meaning” as expressed in
dictionary (internal quotation marks omitted)). Further, by using the
expansive adjective “any” to describe these “requirements for
licensure,” while providing no statutory criteria for such
requirements, the statute makes plain that the chief’s discretion to
specify requirements is virtually unfettered. See United States v.
Gonzales, 520 U.S. 1, 5 (1997) (construing word “any” to have
expansive meaning, that is, “‘one or some indiscriminately of
whatever kind’” (quoting Webster’s Third New International

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Ace Partners, LLC v. Town of East Hartford
14
Dictionary 97 (1976))); Commission on Human Rights & Opportunities v.
Bd. of Educ. of Cheshire, 855 A.2d 212, 238 (Conn. 2004) (recognizing
that unless context signals otherwise, word “any” constitutes “broad
and inclusive language”).
To be sure, even broad licensing discretion cannot be exercised
arbitrarily, invidiously, or discriminatorily. But that does not mean
that an applicant has a property interest in issuance of the license.
Rather, such potential abuses are checked by substantive due process
and equal protection, which apply regardless of whether an applicant
has a property interest protected by procedural due process. 5 In
deciding whether ACE has such a constitutionally protected property
interest, we consider only the degree of licensing discretion afforded
police chiefs by § 21‐100(a). We conclude that, far from “lack[ing]
discretion to deny” ACE a renewal of a precious metals license, Harlen
Assocs. v. Inc. Vill. of Mineola, 273 F.3d at 504, the police chief had broad
discretion to do just that by virtue of his authority to specify licensing
requirements. Indeed, that is the conclusion reached by the only state
court that appears to have construed § 21‐100(a). See Aurilio v.
Sweeney, 1999 WL 171414, at *4 (concluding from lack of statutory
criteria for issuing agent to determine whether precious metals license
should issue that legislature intended issuance of such license to rest
within agent’s “sound discretion”).6
5 ACE does not here appeal the district court’s rejection of its substantive due process claim
for failure to show that the refusal to renew its licenses was arbitrary. Nor has it ever
asserted an equal protection claim.
6 Because Aurilio is not a decision of the Connecticut Supreme Court, it does not control
our construction of § 21‐100(a). Nevertheless, the decision can be a “helpful indicator” of
how Connecticut’s highest court might view the discretion issue. Reddington v. Staten
Island Univ. Hosp., 511 F.3d 126, 133 (2d Cir. 2007) (recognizing that decisions by
intermediate state courts, while not binding, can be “helpful indicators” of how state’s
highest court might view issue).

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Ace Partners, LLC v. Town of East Hartford
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That conclusion is only reinforced by the statute’s reference to
requirements specified “at the time of issuance.” Conn. Gen. Stat.
§ 21‐100(a). This makes plain that requirements need not be specified
for applicants in advance of their applications. Rather, the police
chief’s discretion is broad enough to allow him to specify
requirements right up until the time of issuance to address concerns
raised by facts and circumstances attending that application. Thus, a
police chief can decide to issue a license, but only on condition that
the licensee abide by requirements specified at the time of issuance.
It necessarily follows that the chief can also decline to issue licenses
where it is apparent that an applicant already fails to satisfy such
requirements. Indeed, it would be absurd to construe § 21‐100(a)
otherwise, so as to allow a police chief, for example, to issue a license
on condition that no employee of the licensee be arrested for criminal
activity on the premises, but to preclude him from denying a license
to an applicant whose employees have already been arrested and are
pending investigation for such conduct. See generally Allen v. Commʹr
of Revenue Servs., 152 A.3d 488, 501 (Conn. 2016) (discussing “well
established” tenet that “those who promulgate statutes do not intend
absurd consequences or bizarre results” (alterations and internal
quotation marks omitted)), cert. denied, 137 S. Ct. 2217 (2017).
That the police chief here effectively imposed a no‐employee‐
arrest requirement is evident from the explanation he gave ACE for
not renewing its precious metals license. To the extent § 21‐100(a)
provides for the police chief to “specify” requirements for licensure,
the police chief’s denial letter appears not to have articulated such a
no‐arrest requirement with the precision or detail contemplated by
that verb. See Webster’s Third New International Dictionary 2187
(1976) (defining “specify” as “to mention or name in a specific or
explicit manner,” to “tell or state precisely or in detail”). But ACE can

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14‐3831‐cv
Ace Partners, LLC v. Town of East Hartford
16
hardly claim that it was prejudiced by lack of specificity here. The
record admits no dispute that (1) ACE employees had been arrested
and were then under investigation for attempting to receive stolen
property from undercover officers at the licensed premises, and
(2) ACE understood the reference to “recent events” in the police
chief’s denial letter to allude to these arrests as well as to related
seizures from its premises incident to a search warrant. J.A. 379.
Indeed, rather than argue inadequate specification, ACE
complains that Chief Sirois lacked personal knowledge of the facts
supporting the referenced arrests, and emphasizes that neither ACE
nor its employees were ultimately prosecuted by the State Attorney.
The argument merits little discussion. ACE does not—and cannot—
argue that the arrests were not well supported by probable cause, or
that the denial of renewal was arbitrary. In any event, the issue before
us is not whether sufficient evidence (or knowledge of evidence)
supported Sirois’s exercise of discretion. We consider only whether
the language of § 21‐100(a) so effectively deprived Sirois of discretion
to do anything but grant ACE’s renewal application in the
circumstances of this case that ACE can claim a protected property
interest. For the reasons just explained, we conclude that the
statutory language, far from affording little or no renewal discretion
to the police chief here, granted him such broad discretion to specify
any requirements for licensure right up to the time a license would
have issued, that ACE cannot show that the renewal of its license was
virtually assured.
In urging otherwise, ACE relies on the 1981 amendment to § 21‐
100(a), which added the earlier‐referenced felon bar. That bar states
that the chief of police “shall refuse to issue a [precious metals] license
. . . to a person who has been convicted of a felony.” Conn. Gen. Stat.

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Ace Partners, LLC v. Town of East Hartford
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§ 21‐100(a). This text cannot be construed, as ACE urges, to make “the
only requirement” for a precious metals license “that the holder not
be a convicted felon”—a conclusion reached with neither textual
analysis nor citation to authority in Curcio v. Torres, No. 3:00‐cv‐976
(GLG), 2000 WL 1610767, at *3 (D. Conn. Oct. 4, 2000), and quoted
approvingly by the district court here, see Ace Partners, LLC v. Town of
East Hartford, 2011 WL 4572109, at *4.7 While the words “shall refuse”
are properly construed as a mandate that limits the chief of police’s
licensing discretion, see generally Wiseman v. Armstrong, 989 A.2d 1027,
1031 (Conn. 2010) (“[T]he word shall creates a mandatory duty when
it is juxtaposed with a substantive action verb.” (alteration and
internal quotation marks omitted)), what that mandate here limits is
the police chief’s discretion to grant licenses, not his discretion to deny
them. In other words, the quoted felon bar removes from the sphere
of persons to whom the police chief can grant precious metals licenses
those persons convicted of felony crimes. But within the class of non‐
felons, the 1981 amendment leaves undisturbed § 21‐100(a)’s
language affording the chief broad discretion to specify “any
requirements for licensure.” Conn. Gen. Stat. § 21‐100(a); see Aurilio
v. Sweeney, 1999 WL 171414, at *4–5. Indeed, despite its agreement
with Curcio, the district court acknowledged a police chief’s statutory
authority to set further requirements for licensure, concluding that if
a non‐felon applicant “fulfills those requirements, the chief has no
discretion as to whether to issue the license.” Ace Partners, LLC v.
Town of East Hartford, 2011 WL 4572109, at *4. What the district court
failed to consider, however, is that the police chief here effectively
7 Curcio failed to acknowledge, much less distinguish, the contrary construction of § 21‐
100(a) by a Connecticut court in Aurilio v. Sweeney, 1999 WL 171414, at *4–5. The district
court acknowledged the different interpretations, see ACE Partners, LLC v. Town of East
Hartford, 2011 WL 4572109, at *4 (observing that Aurilio construed § 21‐100(a) to grant
police chief “unlimited discretion” while Curcio construed statute to grant “no discretion“),
but concluded simply that it “agree[d] with the decision in Curcio,” id.; but see infra at 17.

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specified a requirement for licensure that ACE could not satisfy, i.e.,
that its employees not have been arrested for illegal business activities
on the licensed premises. For reasons already stated, we conclude
that doing so fell well within the broad discretion afforded the police
chief by § 21‐100(a).8
Barletta v. Rilling, 973 F. Supp. 2d 132 (D. Conn. 2013), cited by
ACE, is not to the contrary. The district court there held that § 21‐
100(a)’s felon bar violated equal protection because it was overbroad
to the state’s purpose. See id. at 135–40. That determination was not
appealed and is not before us today or relevant to our analysis. In
Barletta, however, the district court went on to reject a procedural due
process challenge to the denial of a precious metals license, stating
that “[n]othing in state law or custom gave [plaintiff] a property right
to a precious metals license.” Id. at 140.
Despite this statement anticipating our holding today, ACE
maintains that Barletta, like Curcio, construed § 21‐100(a) to “require[]
a municipality to issue a precious metals license to an applicant unless
the applicant is a felon.” Appellee Br. at 17. In support, it cites
Barletta’s observation, made in the course of its equal protection
analysis, that, after addition of a felon bar to § 21‐40, “anyone other
than persons convicted of a felony could obtain a precious metals
license.” Barletta v. Rilling, 973 F. Supp. 2d at 138 (emphasis added).
The argument fails for the simple reason that “could” does not mean
“must.” Indeed, when the quoted language is placed in context, it is
evident that Barletta recognized the felon bar to limit the police chief’s
broad licensing discretion in “only one way,” i.e., he could not issue
8 Nothing in § 21‐100(a) appears to prevent a person from submitting a new license
application when it can satisfy the requirement at issue as, for example, here, by ACE
showing that no person arrested for criminal activities relating to its business would have
an interest in or be employed at the licensed premises.

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Ace Partners, LLC v. Town of East Hartford
19
precious metals licenses to convicted felons in any circumstances. Id.
The chief’s discretion was not “bounded,” however, as to non‐felons
who “could” still obtain such licenses in the exercise of the chief’s
discretion to specify requirements. Id. (observing that “bar of every
person ever convicted of a felony . . . left [police chief’s] discretion
bounded in only one way: anyone other than persons convicted of a
felony could obtain a precious metals license”).
ACE nevertheless maintains that police chiefs lack discretion to
deny precious metals licenses to non‐felons because § 21‐100(a) does
not contain language akin to that in § 21‐40 stating that police chiefs
“may grant [pawnbroker] licenses to suitable persons.” Conn. Gen.
Stat. § 21‐40. Analyzing other licensing statutes with comparable
“suitable persons” language, the Connecticut Supreme Court has
held that determining an applicant’s suitability necessarily requires
the issuing agent to exercise “judgment and reasoned discretion.”
Ballas v. Woodin, 231 A.2d 273, 275 (Conn. 1967). The district court
relied on this precedent in concluding that ACE lacked a protected
property interest in the renewal of its pawnbroker license because
“[t]he ‘suitable person’ determination gives the chief of police enough
discretion that a given applicant . . . cannot be certain that he will be
found suitable.” Ace Partners, LLC v. Town of East Hartford, 2011 WL
4572109, at *3. ACE maintains that when the § 21‐100(a) felon bar is
considered together with the absence of “suitable person” language,
the statute must be understood to deprive police chiefs of discretion
to deny precious metals licenses to non‐felons.
Indeed, ACE argues that this conclusion is compelled by
legislative history showing that, as initially proposed, the 1981
amendment to § 21‐100(a) would have added not only a felon bar but
the following “suitable person” language: “A chief of police or first

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20
selectman may refuse to issue a license under this subsection upon a
sufficient finding that the applicant is not a suitable person to receive
such license. No license shall be issued to a person who has been
convicted of a felony.” H.B. 5174, 1981 Leg., Gen. Assemb., Jan. Sess.
(Conn. 1981). ACE submits that the deletion of the first sentence from
the final amendment signals legislative intent to deny police chiefs
discretion to deny precious metals licenses to non‐felons. See
H. Amendment A to H.B. 5174, 1981 Leg., Gen. Assemb., Jan. Sess.
(Conn. 1981).
The legislative history cited by ACE does not evidence such
intent. It merely recites the fact that the “suitable person” language
was deleted from the final amendment. See Proceedings Before Conn.
S. Gen. Assemb., 1981 Leg., Vol. 24, Pt. 9, 2762–3066, at 3045 (Conn.
1981) (statement of Sen. Mustone) (referencing “eliminat[ion] from
the Bill [of] authorization for the local licensing authority to refuse to
issue a license to an unsuitable person”); Proceedings Before Conn. H.
Gen. Assemb., 1981 Leg., Vol. 24, Pt. 10, 3133–3481, at 3443 (Conn. 1981)
(statement of Rep. Carragher) (referencing deletion of “unsuitable
person language” from amendment, so that statute “will now in fact
mandate that” licensing authority “not issue a license to a convicted
felon”). Nothing in these statements explains why the language was
removed.
Our task, however, is not to speculate about legislative intent
with respect to language not included in § 21‐100(a). Our task is to
construe the statutory text in effect at the time of the events in dispute.
In 1983, Connecticut amended the precious metals statute to clarify
that revocation for cause “shall include . . . failure to comply with any
requirements for licensure specified by the licensing authority.” 1983
Conn. Acts 689 (Reg. Sess.) (codified as amended at Conn. Gen. Stat.

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21
§ 20‐100(a) (1983)) (emphasis added). ACE’s reliance on the felon bar
to argue lack of discretion as to non‐felons fails because it ignores this
statutory text.
Thus, § 21‐100(a) and § 21‐40 both afford licensing discretion,
albeit through different language: § 21‐100(a) through a provision to
specify “any requirements for licensure,” § 21‐40 through a “suitable
person” provision. We need not here decide whether the authority to
specify “any requirement for licensure” affords discretion that is the
functional, if not the precise, equivalent of identifying a person’s
suitability to hold a license. We conclude only that the former task
reaches broadly and requires the exercise of “judgment and reasoned
discretion” as much as the latter. Ballas v. Woodin, 231 A.2d at 275.
Indeed, because § 21‐100(a) allows licensing requirements to be
identified up to the time of issuance, and because such requirements
may respond to concerns that become apparent only upon review of
an application and its attending circumstances, the applicant for a
precious metals license can be no more certain than the applicant for
a pawnbroker license that its application will be granted and the
requested license issued. Thus, we conclude that § 21‐100(a) does not
confer on non‐felons a constitutionally protected property interest in
the issuance or renewal of a precious metals license.
ACE nevertheless strives to preserve its judgment by arguing
that even if § 21‐100(a) is properly construed not to confer a property
interest in the issuance of a new license, the same conclusion should
not obtain for license renewals, which are more akin to revocations.
Connecticut law does not support the argument. Once a license is
issued, Connecticut recognizes the licensee to hold a property interest
protected by procedural due process, but the interest lasts only for the
term of the license. See Hart Twin Volvo Corp. v. Comm’r of Motor

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22
Vehicles, 327 A.2d 588, 591 n.1 (Conn. 1973) (holding that “license,
being within the scope of the protection afforded by the due process
clause, is indeed a property right once it has been issued, and it
remains such until its expiration date so long as the laws pertaining to
its use are obeyed” (emphasis added)); Rocque v. Conn. Waste Oil, Inc.,
No. CV 010809202S, 2001 WL 1743219, at *2 (Conn. Super. Ct. Dec. 20,
2001) (rejecting due process challenge to denial of license renewal
because “property right expired when the permit expired”). Thus,
whatever support ACE might find in other states’ laws for equating
renewal denials and revocations, see Club Misty, Inc. v. Laski, 208 F.3d
615, 618 (7th Cir. 2000) (observing that Illinois law treats refusal to
renew license for cause as equivalent to revocation, affording a
constitutionally protected property interest in renewal), Connecticut
law affords none.
In sum, nothing in the plain language of Connecticut’s precious
metals licensing statute, even when viewed together with its
pawnbroker statute, gives rise to “a certainty or a very strong
likelihood” that ACE’s precious metals license would be renewed in
the circumstances of this case. Harlen Assocs. v. Inc. Vill. of Mineola,
273 F.3d at 504. Far from compelling the chief of police to issue or
renew precious metals licenses to non‐felons, the plain language of
§ 21‐100(a) affords the chief virtually unfettered discretion to grant,
renew, or deny licenses to such applicants by allowing him to specify
“any requirements for licensure” that he deems warranted and to do
so up to the time he makes the licensing decision. “Any
requirements” is broad enough to allow the chief to specify
requirements addressing concerns raised by a particular application,
as for example here, a requirement that none of the applicant’s
employees have been arrested and be pending investigation for
criminal activity on the licensed premises. While the chief of police

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Ace Partners, LLC v. Town of East Hartford
23
may have failed to state such a requirement as explicitly or precisely
as contemplated by the word “specify,” the record indicates both that
ACE could not satisfy that requirement and that it understood that to
be the reason for denial. In these circumstances, and in the face of
such broad statutory authority to set licensing requirements, ACE
cannot show that, but for the denial of procedural due process, § 21‐
100(a) “virtually assured” the renewal of its precious metals license.
Villager Pond, Inc. v. Town of Darien, 56 F.3d at 378 (internal quotation
marks omitted).
Accordingly, the judgment in favor of ACE on its procedural
due process claim against the Town for failing to renew its precious
metals license is reversed, and the case is remanded to the district
court for the entry of judgment in favor of the Town on this claim and,
thus, for defendants on all claims.
III. Reversal of the Judgment in Favor of ACE Necessarily
Reverses the Award of Attorney’s Fees to It as a Prevailing
Party
Title 42 U.S.C. § 1988(b) allows a court to award “reasonable
attorney’s fees” to the “prevailing party” in a § 1983 action. The
district court effectively designated ACE a prevailing party, at least in
part, when, on September 22, 2014, it entered judgment in ACE’s
favor on its procedural due process challenge to the Town’s refusal to
renew its precious metals license. Thereafter, ACE relied on the
September 22, 2014 judgment in its favor to move for attorney’s fees,
which the district court ordered on April 21, 2016. The district court
reiterated this fees award in its amended final judgment of August 11,
2016, the focus of which was to award ACE pre‐ and post‐judgment
interest on earlier ordered compensatory damages.

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Our reversal of the district’s court judgment because ACE
failed to demonstrate the property interest required for a procedural
due process claim necessarily extends to reverse the award of
attorney’s fees. This is because that merits ruling removes from this
case the essential predicate for an award of fees. ACE is not, and
cannot be considered ever properly to have been, a “prevailing
party.” See Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 81 (2d Cir.
2001) (reversing § 1988(b) fees award to plaintiff following reversal of
its First Amendment claim); Russo v. State of New York, 672 F.2d 1014,
1023 (2d Cir. 1982) (citing precedent foreclosing § 1988 fees award to
party who did not succeed on civil rights claim), modified on other
grounds, 721 F.2d 410 (2d Cir. 1983).
In seeking to avoid this result, ACE argues that we lack
jurisdiction to review the fees award because the Town failed timely
to appeal from the district court’s April 21, 2016 order. See Appellee
Br. at 29–30 (arguing that, under Fed. R. Civ. P. 58(a)(3), an award of
attorney’s fees pursuant to Fed. R. Civ. P. 54(d) is an appealable final
order when entered on docket). In support, it cites precedent
recognizing that “a postjudgment order granting a prevailing party its
attorney’s fees is collateral to the final judgment in a case.” Id. at 29
(collecting cases) (emphasis added). Such an argument might have
some appeal if the only fees issues before us were collateral to a final
judgment in ACE’s favor, for example, the Town’s challenge to the
reasonable calculation of attorney’s fees. But it does not persuade
here, where our reversal of final judgment on the merits means that
ACE was never properly identified as a prevailing party. See Sole v.
Wyner, 551 U.S. 74, 86 (2007) (holding that plaintiff who secures
preliminary injunction does not qualify as prevailing party entitled to
§ 1988(b) award of attorney’s fees “if the merits of the case are
ultimately decided against her”); Clark v. Township of Falls, 890 F.2d

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625, 626–27 (3d Cir. 1989) (“In general, when a judgment in favor of a
plaintiff is reversed on the merits, that party is no longer a ‘prevailing
party’ under 42 U.S.C. § 1988 and no longer entitled to attorney’s fees
under that statute.”); cf. Kirk v. N.Y.S. Dep’t of Educ., 644 F.3d 134, 138
(2d Cir. 2011) (concluding that § 1983 plaintiff who obtained favorable
judgment on full record did not lose “prevailing party” status when
appeal was declared moot; “no court overturned Kirk’s favorable
judgment on the merits or rejected the legal premise of the district
court’s decision”).
There is no question here that the Town filed timely notices of
appeal from the district court’s September 22, 2014 judgment in favor
of ACE, as well as from the court’s amended final judgment of August
11, 2016. Thus, our reversal of that judgment on the merits necessarily
requires us to reverse the award of attorney’s fees to ACE, which
depended on that judgment.
CONCLUSION
To summarize, we hold as follows:
1. Conn. Gen. Stat. § 21‐100(a) does not afford applicants a
property interest in the issuance or renewal of a precious metals
license. Thus, the district court erred in awarding ACE summary
judgment on its claim that the Town’s decision not to renew its license
following the arrests of ACE employees for attempting to receive
stolen property on the licensed premises violated procedural due
process. Rather, summary judgment must be entered in favor of the
Town.
2. Because our reversal of summary judgment to ACE is a
merits decision, ACE is not and could not ever properly have been

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Ace Partners, LLC v. Town of East Hartford
26
considered a “prevailing party,” the necessary predicate for any
award of attorney’s fees pursuant to 42 U.S.C. § 1988(b). We,
therefore, reverse that award as well.
Accordingly, the amended judgment of the district court is
REVERSED in all respects and the case is REMANDED for the district
court to enter judgment on all claims in favor of defendants.

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