Connecticut Fine Wine & Spirits, LLC v. Dept. of Consumer Protection, Liquor Control Commission

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Connecticut Fine Wine & Spirits, LLC v. Dept. of Consumer Protection,
Liquor Control Commission

CONNECTICUT FINE WINE & SPIRITS, LLC, ET AL.
v. DEPARTMENT OF CONSUMER PROTECTION,
LIQUOR CONTROL COMMISSION
(AC 47941)
Alvord, Suarez and Palmer, Js.

Syllabus

The plaintiffs appealed from the trial court’s judgment dismissing their
administrative appeal from the defendant commission’s decision imposing
civil penalties for violations of a state statute (§ 30-94 (a)) and its correspond-
ing regulation (§ 30-6-A29 (a)), which prohibit a licensed permittee, in any
transaction with another permittee, from receiving any free goods, gratuities,
gifts or other inducements in connection with the sale of alcoholic beverages.
The commission concluded that the plaintiffs had received an improper
inducement in the form of free labor, namely, that employees of two whole-
sale beer distributors had stocked the shelves of the plaintiffs’ retail liquor
stores with newly delivered beer. On appeal, the plaintiffs claimed, inter
alia, that the court improperly concluded that substantial evidence supported
the commission’s finding that the beer distributors’ employees provided the
plaintiffs with free labor by stocking the shelves of the plaintiffs’ stores. Held:

The trial court properly concluded that the commission’s decision was
supported by substantial evidence, as the members of the commission rea-
sonably credited the testimony of K, a liquor control agent with twenty-
three years of experience, regarding what transpired at the plaintiffs’ two
retail stores, and the commission was free to credit K’s firsthand account
over the testimony of the plaintiffs’ witnesses, who testified only generally
about the stores’ policies, procedures and practices but were not present
when the beer was delivered and placed on the stores’ shelves.

This court declined to review the plaintiffs’ claim that, even if the commission
reasonably had concluded that the distributors were engaged in prohibited
stocking, the receipt of such free labor was not an inducement under § 30-
94 (a) and § 30-6-A29 (a) of the regulations without proof of an agreement
between the distributors and the stores for the provision of that free labor,
as the plaintiffs failed to raise the claim before the commission and, there-
fore, that claim was not properly preserved.
Argued May 20—officially released December 30, 2025

Procedural History

Administrative appeal from the decision of the defen-
dant imposing civil penalties on the plaintiffs, brought
to the Superior Court in the judicial district of New
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Connecticut Fine Wine & Spirits, LLC v. Dept. of Consumer Protection,
Liquor Control Commission
Britain and tried to the court, Budzik, J.; judgment
dismissing the appeal, from which the plaintiffs
appealed to this court. Affirmed.
Richard C. Robinson, for the appellants (plaintiffs).
Matthew B. Beizer, assistant attorney general, with
whom, on the brief, was William Tong, attorney gen-
eral, for the appellee (defendant).
Opinion

PALMER, J. General Statutes § 30-94 (a) and § 30-6-
A29 (a) of the Regulations of Connecticut State Agen-
cies prohibit a licensed permittee, in any transaction
with another permittee, from receiving any free goods,
gratuities, gifts ‘‘or other inducements’’ in connection
with the sale of alcoholic beverages.1 The plaintiffs,
Connecticut Fine Wine & Spirits, LLC (Connecticut Fine
Wine), and its representative owner, David J. Trone,
appeal from the judgment of the trial court dismissing
the plaintiffs’ administrative appeal from the decision of
the defendant, the Department of Consumer Protection,
Liquor Control Commission (commission), concluding
that the plaintiffs violated those provisions by receiving
an improper inducement in the form of free labor,
namely, the shelf stocking of newly delivered beer at
1
General Statutes § 30-94 (a) provides: ‘‘No permittee or group of permit-
tees licensed under the provisions of this chapter, in any transaction with
another permittee or group of permittees, shall directly or indirectly offer,
furnish or receive any free goods, gratuities, gifts, prizes, coupons, premiums,
combination items, quantity prices, cash returns, loans, discounts, guaran-
tees, special prices or other inducements in connection with the sale of
alcoholic beverages or liquors. No such permittee shall require any purchaser
to accept additional alcoholic liquors in order to make a purchase of any
other alcoholic liquor.’’
Section 30-6-A29 (a) of the Regulations of Connecticut State Agencies
provides: ‘‘No permittee in transactions with another permittee shall directly
or indirectly offer, furnish, solicit or receive any free goods, discounts,
gratuities, gifts, prizes, coupons, premiums, combination items, quantity
prices, cash returns, loans, guarantees, inducements or special prices, or
other inducements with the sale of alcoholic liquors.’’
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Connecticut Fine Wine & Spirits, LLC v. Dept. of Consumer Protection,
Liquor Control Commission
the plaintiffs’ two retail liquor stores by employees of
the two wholesale beer distributors who supplied the
beer to the stores. On appeal to this court, the plaintiffs
claim that the trial court improperly concluded that (1)
substantial evidence supports the commission’s finding
that the beer distributors’ employees provided the plain-
tiffs with free labor by stocking the shelves of the plain-
tiffs’ stores, and (2) even if the evidence supports a
finding that the distributors’ employees engaged in shelf
stocking at the plaintiffs’ stores, such free labor is not
a prohibited inducement under § 30-94 (a) and § 30-6-
A29 (a) of the regulations without proof that the stock-
ing was done pursuant to an agreement between the
distributors and the stores that the distributors would
provide such free labor to the stores. We agree with the
trial court that the evidence supports the commission’s
finding that the distributors’ employees were stocking
beer on the shelves of the plaintiffs’ stores. With respect
to the plaintiffs’ claim that such stocking, even if proven,
is not, without more, a prohibited inducement, we
decline to review that claim because the plaintiffs failed
to raise it before the commission. We therefore affirm
the judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. Trone is the permit-
tee of two retail liquor stores named Total Wine & More
(Total Wine) located in Milford and Norwalk. Connecti-
cut Fine Wine is the backer of those stores.2 Following
an anonymous complaint to the Department of Con-
sumer Protection, Liquor Control Division (liquor con-
trol division),3 Michael Kula, a liquor control agent with
2
General Statutes § 30-1 (4) provides: ‘‘ ‘Backer’ means, except in cases
where the permittee is the proprietor, the proprietor of any business or
club, incorporated or unincorporated, that is engaged in manufacturing or
selling alcoholic liquor and in which business a permittee is associated,
whether as an agent, employee or part owner.’’
3
The anonymous written complaint, which purported to be from an
employee of a beer distributor, alleged that the two Total Wine stores,
among other liquor retailers, had engaged in a ‘‘ ‘pay to play’ racket’’ whereby
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Connecticut Fine Wine & Spirits, LLC v. Dept. of Consumer Protection,
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the liquor control division, conducted an investigation
prompted by the complaint. At the conclusion of the
investigation, the plaintiffs were charged with having
violated both § 30-94 (a) and § 30-6-A29 (a) of the regula-
tions on two separate occasions, December 7, 2021, at
the Milford Total Wine store, and July 13, 2022, at the
Norwalk Total Wine store.

As more particularly set forth by the commission,
the plaintiffs were charged as follows. First, ‘‘[o]n
December 7, 2021, [Kula] observed a . . . tractor
trailer [from Star Distributors, a wholesale liquor dis-
tributor] at the dock of the [Milford Total Wine store],
as well as a Star Distributors panel van. [Kula] then
entered the premises and observed employees from
Star Distributor[s] stocking shelves at the . . . prem-
ises with Modelo beer and Miller Lite beer. The area
being stocked was the only point of sale for the products
and was directly accessible to patrons. Such activity of
wholesalers stocking newly delivered beer to liquor
retailers is prohibited by law.’’ Second, ‘‘[o]n July 13,
2022, [Kula] observed a tractor trailer from Dichello
Distributors [a wholesale liquor distributor] backing up
to the loading dock of the [Norwalk Total Wine store].
[Kula] then observed employees from Dichello Distribu-
tors arrive in a panel van and enter the premise[s].
[Kula] subsequently entered the premise[s] and
observed [those] employees moving cases of Bud Light
beer twenty-four packs from a rolling gondola to the
shelving area. The area was the only point of sale for
the Bud Light twenty-four packs in the premise[s] and
had direct consumer access. Such activity of wholesal-
ers stocking newly delivered beer for retail off premises
permittees is prohibited by law.’’
the stores would not order beer from the complainant’s employer unless
the employer shelved the beer upon delivery, a task that the complainant
asserted took ‘‘2-3 hours.’’
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Connecticut Fine Wine & Spirits, LLC v. Dept. of Consumer Protection,
Liquor Control Commission
The commission conducted an evidentiary hearing
on the charges. At the hearing, Kula testified that he was
present at the Milford Total Wine store on December
7, 2021, and personally observed employees of Star
Distributors stocking the shelves of the store with beer
that those employees had just delivered. Using his cell
phone, Kula took a short video of the Star Distributors
employees that depicted a small portion of the activity
that Kula was observing. Kula also testified that, while
present at the Norwalk Total Wine store on July 13,
2022, he personally observed Dichello Distributors
employees stocking shelves with beer that had just been
delivered to the store by those employees. Kula again
used his cell phone to briefly record the shelving activity
in which the Dichello Distributors’ employees were
engaged.

Kula further testified that, under § 30-6-A32a of the
Regulations of Connecticut State Agencies,4 a liquor
distributor may rotate its product on a retailer’s shelves
4
Section 30-6-A32a of the Regulations of Connecticut State Agencies pro-
vides in relevant part: ‘‘No brand owner, manufacturer, out-of-state shipper
or wholesaler may furnish any retailer with services, advertising material
or equipment except as follows, and, with respect to alcohol, spirts and
wine, if allowed by federal law . . . (f) [n]o brand owner, manufacturer,
out-of-state shipper, wholesaler, or salesman for any such entity shall display,
stock, rotate or affix the price to alcoholic liquor products for their retail
off-premises consumption place of business customers, except as permitted
by this section. A brand owner, manufacturer, out-of-state shipper, whole-
saler, or salesman for any such entity may perform the following for its
retail customers allowed hereunder for their own products only . . . (3)
The rotating of all perishable products is permitted provided that rotating
consists of moving stock from rear to front on the shelves in the sales area
only, and does not include the stocking or cleaning of shelves and other
similar services on shelves in the sales area or any other area . . . . Any
brand owner, manufacturer, out-of-state shipper, wholesaler, or salesman
for any such entity who elects to provide any of the aforementioned services
shall do so only with the permission of the retailer involved, and shall
provide the same service to all their retail customers without discrimination.
Any permittee or salesman who knowingly provides or receives services in
violation of this section shall be subject to license revocation or suspension.’’
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Connecticut Fine Wine & Spirits, LLC v. Dept. of Consumer Protection,
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by moving, or rotating, the retailer’s newest product to
the back of the shelves and placing the older product
in the front of the shelves, thereby ensuring that new
inventory is placed behind older inventory already on
the retailer’s shelves, so that the older product is sold
first. Kula also explained, however, that the regulation
expressly prohibits a distributor from stocking, for
immediate sale to customers, newly delivered product
that had not previously been placed on the shelves by
the retailer’s employees.5 Finally, Kula testified that,
just as liquor distributors are prohibited by § 30-6-A32a
of the regulations from stocking the shelves of retail
liquor stores with newly delivered product for immedi-
ate sale, retailers themselves are barred from receiving
such free labor because the stocking of product by
distributors, in contrast to the permissible rotating of
product by distributors, constitutes an unlawful induce-
ment within the meaning of § 30-94 (a) and § 30-6-A29
(a) of the regulations.6
At the conclusion of Kula’s testimony, the plaintiffs
adduced testimony from several Total Wine employees,
including a district manager, the managers of the Nor-
walk and Milford stores, and two regional ordering cap-
tains. Although those witnesses testified that the Total
Wine stores do not permit prohibited shelf stocking
and that Kula’s perception about what occurred at the
5
In explaining this aspect of the statutory and regulatory scheme, Kula
testified that, on August 2, 2021, John Suchy, the former director of the
liquor control division, issued a memorandum titled ‘‘Guidance Statement
for Wholesalers and Liquor Retailers.’’ In the memorandum, Suchy made
clear, inter alia, that wholesale liquor distributors may engage in the ‘‘rotation
of perishable products on the sales shelves or coolers in order to protect
the quality of the products, specifically the rotation of stock from the rear
of the shelf to the front of the shelf (no stocking allowed; must only rotate
what is on the shelf),’’ but may not engage in the ‘‘stocking of any warm
or cold beer on the shelf for immediate sale to a consumer . . . .’’
6
Thus, under the statutory and regulatory scheme, the stocking of product
by a distributor for immediate sale is considered to be prohibited free labor,
whereas the rotating of product by a distributor is not.
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Milford and Norwalk stores was therefore faulty, none
of them was present at either of the two stores when,
according to Kula, he personally observed the distribu-
tors’ employees stocking the shelves of the plaintiffs’
stores with beer.
Following the hearing, the commission found that
employees of Dichello Distributors and Star Distribu-
tors had not rotated the newly delivered beer but
instead had stocked the shelves of the Norwalk and
Milford Total Wine stores, respectively, by bringing new
beer onto the sales floor from the truck or storeroom
and that such stocking of store shelves constituted free
labor. The commission further concluded that the plain-
tiffs violated § 30-94 (a) and § 30-6-A29 (a) of the regula-
tions because free labor is a prohibited inducement
under those provisions. The commission imposed a
$500 fine on the plaintiffs for each of the two violations
of § 30-94 (a) and for each of the two violations of § 30-
6-A29 (a) of the regulations, for a total fine of $2000.
The plaintiffs thereafter appealed from the decision of
the commission to the Superior Court pursuant to Gen-
eral Statutes § 4-183.
On appeal to the Superior Court, the plaintiffs
claimed, first, that the evidence adduced by the liquor
control division was insufficient to support the commis-
sion’s determination that the distributors’ employees
had engaged in the impermissible stocking of product
and not in the lawful rotating of product. The plaintiffs
also contended that, even if the distributors’ employees
had engaged in stocking, such free labor was not a
prohibited inducement under § 30-94 (a) and § 30-6-
A29 (a) of the regulations in the absence of evidence
establishing an agreement between the distributors and
the stores with respect to that free labor. The court,
Budzik, J., issued a decision rejecting the plaintiffs’
argument that the activity of the distributors’ employees
that Kula witnessed at the Milford and Norwalk Total
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Connecticut Fine Wine & Spirits, LLC v. Dept. of Consumer Protection,
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Wine stores was not unlawful stocking but, rather, per-
missible rotating. The court also declined to review the
plaintiffs’ second claim, concluding that the plaintiffs
had not raised it before the commission and, therefore,
the claim was not properly preserved. The court further
concluded that, even if the claim had been preserved,
it lacked merit because the provision of free labor con-
stitutes an unlawful inducement without proof of an
agreement between the liquor distributor and liquor
retailer. Accordingly, the court dismissed the plaintiffs’
administrative appeal and the plaintiffs appealed to this
court. Additional facts will be set forth as necessary.
On appeal, the plaintiffs contend that the trial court
improperly determined that there was substantial evi-
dence in the record from which the commission could
conclude that the plaintiffs received free labor at their
Milford and Norwalk Total Wine stores in the form of
shelf stocking of newly delivered beer by the distribu-
tors’ employees. They assert, rather, that the evidence
conclusively established, and the commission therefore
was required to find, that the distributors were engaged
in the permissible rotating of beer, which does not con-
stitute free labor, and not in the unlawful stocking of
beer. The plaintiffs also assert that the trial court
improperly determined, first, that they are not entitled
to review of their claim that free labor is a prohibited
inducement because the claim was not properly pre-
served and, second, that even if they were entitled to
such review, they cannot prevail on the claim. We reject
the plaintiffs’ evidentiary insufficiency claim and
decline to consider their claim that free labor is not an
unlawful inducement because the plaintiffs failed to
raise the claim before the commission.
I
We first address the plaintiffs’ contention that the
trial court erred in concluding that the commission’s
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decision is supported by substantial evidence. Before
addressing the merits of the plaintiffs’ claim, we briefly
set forth the well established standard of review appli-
cable to agency decisions under the Uniform Adminis-
trative Procedure Act, General Statutes § 4-166 et seq.
‘‘Our review of an agency’s factual determination is
constrained by . . . § 4-183 (j), which mandates that a
court shall not substitute its judgment for that of the
agency as to the weight of the evidence on questions
of fact. . . . [I]t is [not] the function of the trial court
[or] of this court to retry the case . . . . An agency’s
factual determination must be sustained if it is reason-
ably supported by substantial evidence in the record
taken as a whole. . . . Substantial evidence exists if
the administrative record affords a substantial basis of
fact from which the fact in issue can be reasonably
inferred. . . . This substantial evidence standard is
highly deferential and permits less judicial scrutiny than
a clearly erroneous or weight of the evidence standard
of review.’’ (Internal quotation marks omitted.) Com-
missioner of Mental Health & Addiction Services v.
Freedom of Information Commission, 347 Conn. 675,
687–88, 299 A.3d 197 (2023). Thus, ‘‘the scope of [our]
review is very restricted . . . [and] [t]he burden is on
the [plaintiff] to demonstrate that the [agency’s] factual
conclusions were not supported by . . . substantial
evidence [based] on the whole record.’’ (Internal quota-
tion marks omitted.) Cohen v. Dept. of Energy & Envi-
ronmental Protection, 215 Conn. App. 767, 791–92, 285
A.3d 760, cert. denied, 345 Conn. 968, 285 A.3d 1126
(2022), and cert. denied, 345 Conn. 969, 285 A.3d 737
(2022). In other words, ‘‘[t]he substantial evidence stan-
dard requires courts to defer to agency findings in the
absence of a strong reason to intervene . . . . The
court’s ultimate duty is only to decide whether, in light
of the evidence, the [agency] has acted unreasonably,
arbitrarily, illegally, or in abuse of its discretion.’’ (Inter-
nal quotation marks omitted.) Commissioner of Mental
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Health & Addiction Services v. Freedom of Information
Commission, supra, 708.
We now turn to the decision of the trial court, which
concluded that the commission’s decision was sup-
ported by substantial evidence. The court summarized
that evidence as follows. ‘‘Kula is a [liquor control agent]
investigating potential violations of Connecticut’s liquor
laws. [Kula] has worked for the [liquor control division]
for twenty-three years. [Kula] is familiar with the dis-
tinction between prohibited stocking of alcohol prod-
ucts and the permissible rotating of old, or stale, alcohol
products. . . . On December 7, 2021, [Kula] visited [the
Milford Total Wine] store . . . [and] saw [Star Distribu-
tors’] delivery truck at [the store’s] loading dock and a
‘marketing’ van parked in the store’s parking lot. Upon
entering the store, [Kula] personally observed two
employees of Star Distributors stocking new beer
(Miller Lite and Modelo) from a storage ‘gondola’
directly onto [the store’s] shelves for direct sale to con-
sumers. [Kula] video recorded what he observed on his
iPhone and a copy of the video recording was entered
into evidence at the administrative hearing. When the
Star Distributor[s] employees left the [Milford Total
Wine] store, [Kula] spoke to the employees in the park-
ing lot. The Star Distributor[s] employees readily admit-
ted to [Kula] that they worked for Star Distributors and
that they commonly engaged in the stocking activity
that [Kula] had observed. After [Kula] told Jeff Herbele,
the manager of [the Milford Total Wine] store, that
[Kula] had observed illegal stocking of new alcohol
products by wholesaler employees, [Herbele] did not
attempt to argue that what [Kula] had observed was
permissible rotating, not impermissible stocking.
‘‘On July 13, 2022, [Kula] visited [Total] Wine’s Nor-
walk . . . store. At the Norwalk store, [Kula] was also
joined by [a second liquor control agent]. [Kula]
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observed a delivery truck owned by Dichello Distribu-
tors pulled up to the . . . store’s loading dock. Dichello
[Distributors] is a well known beer distributor in the
area. [Kula] personally observed and video recorded
the stocking of beer on the retail shelves at [the] . . .
store by Dichello [Distributors] employees under nearly
identical circumstances as [Kula] testified to at the Mil-
ford [Total Wine] location.’’ In addition, Kula testified
that he approached the Dichello Distributors employees
and told them that stocking was prohibited. Those
employees, however, did not state that they were rotat-
ing rather than stocking the beer.
After reviewing the record and the commission’s deci-
sion, the trial court rejected the plaintiffs’ claims and
dismissed their appeal. In doing so, the court explained
its reasoning as follows. ‘‘Here, the record plainly dem-
onstrates that [Kula] personally observed and video
recorded activities that he described as prohibited
stocking of alcohol by wholesale distributor employees
on the shelves of [the plaintiffs’ stores, which are] alco-
hol retailer[s]. Although [the plaintiffs argue] that [Kula]
actually observed permissible rotating of [stock], the
commission is permitted to make its own factual deter-
minations based on the evidence presented at the
administrative hearing and to make reasonable infer-
ences from the evidence presented at the hearing. The
court holds that the commission is well within its discre-
tion as fact finder to conclude that [Kula’s] clear and
explicit testimony . . . that the activities he observed
at [the] Milford and Norwalk [Total Wine] locations on
the days in question was stocking, not rotating. [Kula]
is an experienced liquor [control] agent, and it is a
reasonable inference for the commission to conclude
that he understood and accurately testified to the activi-
ties he observed. The commission is not required to
credit contrary witness testimony offered by [the plain-
tiffs].’’
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We agree with the trial court that the commission’s
decision was adequately supported by the evidence pre-
sented at the hearing. Kula is a liquor control agent with
more than two decades of experience who personally
observed the distributors’ employees engaging in con-
duct at the Milford and Norwalk Total Wine stores that
he recognized as prohibited stocking as distinguished
from lawful rotating. In addition, Kula’s testimony was
buttressed by the short videos he took of the distribu-
tors’ employees at each of the plaintiffs’ stores. More-
over, when Kula approached and spoke with those
employees before departing the stores, the employees
did not state that they were rotating rather than stocking
the beer. Considering Kula’s experience and expertise,
the commission was fully entitled to credit his firsthand
testimony, which the trial court summarized fairly and
accurately in its decision.
The plaintiffs nevertheless maintain that Kula’s testi-
mony was insufficient to disprove that the distributors’
employees were engaged in the permissible rotating of
beer and not in unlawful stocking. In support of this
contention, the plaintiffs assert that Kula’s investigation
of what was occurring at the plaintiffs’ two stores was
neither thorough nor reliable and that his testimony
therefore consisted of only ‘‘brief and superficial obser-
vations’’ of that activity; the ‘‘mere twenty-one seconds’’
of the video recording depicting the activity of the dis-
tributors’ employees at the stores did not constitute
persuasive proof of stocking; there was no testimony
from any of the distributors’ employees that they were
stocking rather than rotating beer at the two stores;
and, although Kula testified on direct examination that
it was ‘‘obvious’’ to him that the distributors’ employees
were, in fact, stocking beer, he acknowledged on cross-
examination that there was ‘‘a possibility’’ that what he
observed at the Milford Total Wine store was the lawful
rotating of beer.
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This argument reflects the crux of the claim asserted
by the plaintiffs, namely, that the liquor control division
‘‘was required—but failed—to present any evidence
that would rule out the possibility that perfectly lawful
conduct [that is, the rotating of beer on the plaintiffs’
shelves by the distributors’ employees] was occurring
in the [plaintiffs’] stores on the two days that [Kula]
conducted his investigation.’’ The plaintiffs’ contention
misses the mark. ‘‘[T]he possibility of drawing two
inconsistent conclusions from the evidence does not
prevent an administrative agency’s finding from being
supported by substantial evidence.’’ (Internal quotation
marks omitted.) Stratford Police Dept. v. Board of Fire-
arms Permit Examiners, 343 Conn. 62, 81, 272 A.3d
639 (2022). Consequently, the liquor control division
was not required to adduce evidence susceptible to
only one possible conclusion. Its burden, rather, was
to convince the commission of the validity of the allega-
tions against the plaintiffs by substantial evidence, no
matter whether the commission rationally might have
come to a different conclusion based on that evidence.
Thus, the sufficiency of the evidence upon which the
commission relied does not depend on whether Kula’s
investigation could have been more thorough, or
whether the videos taken by Kula could have been
longer or more detailed, or whether testimony by the
distributors’ employees would have been helpful to the
commission. The sufficiency of the evidence underlying
the commission’s decision is predicated on the proof
that the liquor control division did present through
Kula’s testimony, not on evidence that could have been
presented. See, e.g., State v. Daniels, 228 Conn. App.
321, 326–27, 324 A.3d 820 (claim of evidentiary insuffi-
ciency ‘‘must be tested by reviewing no less than, and no
more than, the evidence introduced’’ (internal quotation
marks omitted)), cert. denied, 350 Conn. 926, 326 A.3d
248 (2024). Similarly, it is not our role as a reviewing
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Connecticut Fine Wine & Spirits, LLC v. Dept. of Consumer Protection,
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court to evaluate the relative strength or weakness of
the evidence before the commission; rather, it is our
function merely to determine whether that evidence
adequately supported the commission’s decision.
As we have explained, the members of the commis-
sion, who observed Kula’s testimony on direct and
cross-examination, reasonably credited his explana-
tion, based on his extensive experience as a liquor con-
trol agent, of what transpired at the plaintiffs’ two retail
stores. Although the plaintiffs assert that Kula’s investi-
gation was ‘‘fatally flawed’’ and his testimony ‘‘woefully
deficient’’ because, in their view, the activity of the
distributors’ employees that Kula described was not
necessarily inconsistent with the lawful rotating of
product, the determination of whether to accept or
reject Kula’s testimony, in whole or in part, is a matter
for the commission and the commission alone. ‘‘In
reviewing factual findings, [w]e do not examine the
record to determine whether the [fact finder] could
have reached a conclusion other than the one reached.’’
(Internal quotation marks omitted.) Reserve Realty,
LLC v. Windemere Reserve, LLC, 346 Conn. 391, 414,
291 A.3d 64 (2023). Rather, ‘‘it is the exclusive province
of the trier of fact to make determinations of credibility
. . . . Questions of whether to believe or to disbelieve
a competent witness are beyond our review. As a
reviewing court, we may not . . . pass on the credibil-
ity of witnesses. . . . We must defer to the [commis-
sion’s] assessment of the credibility of the witnesses
that [was] made on the basis of its firsthand observation
of their conduct, demeanor and attitude.’’ (Internal quo-
tation marks omitted.) Stratford Police Dept. v. Board of
Firearms Permit Examiners, supra, 343 Conn. 86–87.
Determinations regarding Kula’s credibility were
squarely within the province of the commission as the
finder of fact in the present case. See id. Consequently,
the reliability of Kula’s testimony and the weight to give
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it were determinations solely for the commission to
make; see Do v. Commissioner of Motor Vehicles, 330
Conn. 651, 667–68, 200 A.3d 681 (2019); and it is not
the purview of either this court or the trial court to
reexamine, reweigh or otherwise second-guess that tes-
timony. See Stratford Police Dept. v. Board of Firearms
Permit Examiners, supra, 87.
The plaintiffs also maintain that certain ‘‘overwhelm-
ing and unrebutted’’ testimony at the hearing by its own
supervisory employees established that the activity in
which the distributors’ employees were engaged consti-
tuted permissible rotating rather than unlawful stock-
ing. It is undisputed, however, that because none of
these witnesses were present when the beer was deliv-
ered and placed on the stores’ shelves, they did not
personally observe what occurred. Instead, they testi-
fied on the basis of their general knowledge and under-
standing of the manner in which beer ordinarily is deliv-
ered, stocked and rotated at their stores. Of course, the
commission was not required to accept Kula’s testi-
mony notwithstanding that he was the lone witness to
testify from personal knowledge about what transpired
at the plaintiffs’ stores. The commission, however, cer-
tainly was free to credit Kula’s firsthand account over
the testimony of the plaintiffs’ witnesses, who testified
only generally about the stores’ policies, procedures
and practices. For that reason alone, we will not disturb
the commission’s findings.
Finally, the plaintiffs argue that this case is akin to
Dolgner v. Alander, 237 Conn. 272, 676 A.2d 865 (1996),
which involved a claim that the trial court improperly
had determined that substantial evidence supported the
finding by an administrative hearing officer that the
operator of a family day care home had violated certain
regulations governing the operation of such day care
homes. Id., 273. We disagree with the plaintiffs that
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Dolgner bears any material similarity to the present
case.
As this court previously has stated in explaining the
holding in Dolgner, ‘‘[o]ur Supreme Court [in Dolgner]
. . . found the substantial evidence standard unsatis-
fied where a [department of human resources] hearing
officer revoked a family day care license on the basis of
evidence that consisted only of ‘conclusory and general
statements,’ and where ‘[t]he evidence presented at the
hearings failed to disclose the factual particulars regard-
ing inappropriate conduct that had occurred at the
plaintiff’s family day care home, the dates on which
inappropriate conduct occurred, the frequency of inap-
propriate conduct or any other details concerning the
plaintiff’s alleged violations . . . .’ [Dolgner v. Alander,
supra, 237 Conn. 282]. Further, because various reports
containing more detailed information were not intro-
duced into evidence at the hearing, the hearing officer
in Dolgner ‘was not provided with an opportunity to
assess and to weigh independently and adequately the
accuracy and the reliability of the evidence presented.’
Id.’’ Elf v. Dept. of Public Health, 66 Conn. App. 410,
420, 784 A.2d 979 (2001); see also Frank v. Dept. of
Children & Families, 312 Conn. 393, 413–14, 94 A.3d
588 (2014) (discussing and distinguishing Dolgner). In
addition, the evidence of inappropriate conduct pre-
sented to the hearing officer in Dolgner consisted
largely, if not entirely, of hearsay testimony by two
police officers based on their interviews with several
children who were present at the family day care home
when the violations allegedly took place. See Dolgner
v. Alander, supra, 274–76, 279.
The present case is readily distinguishable from Dolg-
ner. Here, the commission heard testimony from Kula,
a liquor control agent with twenty-three years of experi-
ence, that he personally observed the distributors’
employees shelving the newly delivered beer at the
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plaintiffs’ two stores. That testimony included all of the
facts upon which Kula relied in concluding that what he
witnessed was unlawful stocking rather than rotating.
Moreover, Kula was extensively cross-examined about
his firsthand observations by the plaintiffs’ counsel and
questioned by commission members, as well. Conse-
quently, the commission was able to evaluate fully and
weigh Kula’s testimony and to make an informed judg-
ment about the facts underlying the charges brought
against the plaintiffs. This testimony stands in marked
contrast to the hearsay testimony in Dolgner, which,
lacking specificity and consisting only of conclusory
generalizations, afforded the hearing officer no mean-
ingful opportunity to gauge its accuracy or reliability.
The plaintiffs’ reliance on Dolgner is therefore mis-
placed.
For the foregoing reasons, we agree with the trial
court that the commission’s decision was based on sub-
stantial evidence. Accordingly, the plaintiffs’ claim that
the evidence adduced by the liquor control division
was insufficient to support the commission’s decision
must fail.
II
The plaintiffs also claim that, even if the commission
reasonably concluded that the distributors were
engaged in prohibited stocking, the receipt of such free
labor is not an inducement under § 30-94 (a) and § 30-6-
A29 (a) of the regulations without proof of an agreement
between the distributors and the stores for the provision
of that free labor, and no such proof was presented at
the hearing. The plaintiffs further maintain that the trial
court improperly concluded that they were not entitled
to review of that claim because it was not raised before
the commission. Finally, the plaintiffs contend that the
trial court erred in holding that they could not prevail
on the merits of their claim, even if reviewable, because,
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according to the plaintiffs, such free labor is not a pro-
hibited inducement in the absence of an agreement
between the distributor and the stores for the provision
of such free labor, and there is no evidence of any such
agreement in the present case.7 We decline to review
the plaintiffs’ claim because it is not properly preserved.
As the trial court determined, the plaintiffs failed to
raise before the commission the claim that free labor
is not a prohibited inducement and, therefore, the claim
is not preserved. Our Supreme Court has made clear
that the failure to preserve such a claim disentitles an
appellant from review of the claim. ‘‘Practice Book § 60-
5 provides in relevant part that [t]he court shall not be
bound to consider a claim unless it was distinctly raised
at the trial or arose subsequent to the trial. Indeed, it
is the appellant’s responsibility to present such a claim
clearly to the trial court so that the trial court may
consider it and, if it is meritorious, take appropriate
action. That is the basis for the requirement that ordi-
narily [the appellant] must raise in the trial court the
issues that he intends to raise on appeal. . . . This rule
applies to appeals from administrative proceedings as
well. . . . A party to an administrative proceeding can-
not be allowed to participate fully at hearings and then,
on appeal, raise claims that were not asserted before
7
As we previously have indicated, after concluding that the plaintiffs’
claim was not preserved, the trial court stated that the plaintiffs could not
prevail on the claim ‘‘even if the court were to consider’’ it. In addressing
the merits of the plaintiffs’ claim, the court stated: ‘‘[T]he court concludes
that the plain and ordinary meaning of inducement as set forth in § 30-94
(a) and § 30-6-A29 (a) [of the regulations] would include the provision of
free labor by a liquor wholesaler to a liquor retailer. Connecticut Fine Wine
is a business. Basic economic principles teach that wage and labor costs
are an important consideration to any business. Not having to pay its own
employees to stock products for sale on its shelves is plainly an inducement
to Connecticut Fine Wine because [it] saves Connecticut Fine Wine from
having to pay those costs of doing business itself.’’ Because we decline to
consider the plaintiffs’ unpreserved claim, we express no view on the merits
of the trial court’s decision with respect to that claim.
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the board [or commission]. . . . [T]o allow a court to
set aside an agency’s determination [on] a ground not
theretofore presented . . . deprives the [board or com-
mission] of an opportunity to consider the matter, make
its ruling, and state the reasons for its action.’’ (Citations
omitted; internal quotation marks omitted.) Direct
Energy Services, LLC v. Public Utilities Regulatory
Authority, 347 Conn. 101, 148, 296 A.3d 795 (2023); see
also Board of Education v. Commission on Human
Rights & Opportunities, 344 Conn. 603, 623, 280 A.3d
424 (2022) (‘‘[w]hen a party has failed to preserve a
claim before an administrative agency . . . we apply
the ordinary rules governing appellate review of unpre-
served claims’’).
‘‘Accordingly, appellate review generally is limited to
issues that were distinctly raised at trial. . . . Only in
[the] most exceptional circumstances can and will this
court consider a claim, constitutional or otherwise, that
has not been raised and decided in the trial court. . . .
‘‘It is equally well settled, however, that a reviewing
court, although not bound to consider a claim that was
not raised to the trial court, may do so at its discretion.
. . . We are unaware of any statutory or procedural
rule limiting that discretion. . . . [Therefore] [i]n some
instances we may overlook the procedural error and
consider a question not properly raised below, not by
reason of the appellant’s right to have [the claim] deter-
mined but because, in our opinion, in the interest of
the public welfare or of justice between the parties, the
question ought to be considered.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Curley v. Phoenix Ins. Co., 220 Conn. App. 732, 743–44,
299 A.3d 1133, cert. denied, 348 Conn. 914, 303 A.3d
260 (2023).
Our Supreme Court has explained what it means to
raise a claim distinctly. ‘‘To merit consideration [in an
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administrative appeal], an issue must be distinctly
raised [before the board or commission], not just briefly
suggested . . . . The requirement that [a] claim be
raised distinctly . . . means that it must be so stated
as to bring to the attention of the court the precise
matter on which its decision is being asked.’’ (Emphasis
in original; internal quotation marks omitted.) Idlibi v.
Hartford Courant Co., 350 Conn. 557, 567, 325 A.3d
1048 (2024). Because the plaintiffs did not distinctly
raise their claim with the commission, and because we
are aware of no exceptional circumstances that militate
in favor of our consideration of the claim, we decline
to do so.
The plaintiffs offer three reasons why we should
nonetheless review the claim. The plaintiffs first assert
that they could not have known prior to the commis-
sion’s decision that the commission would ‘‘inject clear
errors of law’’ into its decision, errors which, the plain-
tiffs allege, include the commission’s determination that
‘‘[f]ree labor is a prohibited inducement.’’ (Internal quo-
tation marks omitted.) The plaintiffs further maintain
that they ‘‘had no opportunity to challenge that error
until the [commission] published [its] decision.’’
We are unpersuaded by the plaintiffs’ arguments. The
liquor control division took the position before the com-
mission that free labor is an unlawful inducement, and
the plaintiffs knew that the commission would be decid-
ing that central issue. Consequently, the plaintiffs had
a compelling reason to advocate for their contrary view
of the law. In such circumstances, the plaintiffs, having
failed to apprise the commission of their position on
the issue, cannot reasonably complain that they were
unfairly blindsided when the commission, agreeing with
the position of the liquor control division, rendered an
adverse decision on the issue. Furthermore, following
the issuance of the commission’s decision, the plaintiffs
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could have sought reconsideration of the issue by the
commission but did not do so.
Alternatively, the plaintiffs claim that their con-
tention that free labor is not an inducement was ‘‘prop-
erly preserved for . . . appeal’’ because they ‘‘raised
[the] issue by recognizing that inducement was an ele-
ment of the [liquor control] division’s case, that the
anonymous complainant’s ‘pay to play’ allegations8
were allegations of inducement, and by presenting evi-
dence to show [both] that there was never any such
inducement [and] that the very notion of inducement
was absurd given the circumstances.’’ (Footnote
added.) The plaintiffs’ argument ignores the require-
ment that, for preservation purposes, a claim must be
raised with sufficient clarity to alert the court or agency
of the precise issue involved, and the mere suggestion
or intimation of the issue will not suffice. It is readily
apparent that the references to the record upon which
the plaintiffs rely to support their claim of proper pres-
ervation fall far short of the clarity and precision neces-
sary to satisfy the requirement that a claim must be
distinctly raised below to warrant review on appeal.
Finally, the plaintiffs maintain that their contention
that free labor is not an inducement is an argument, not
a claim, and only claims are subject to our preservation
rules. The plaintiffs also assert that their contention
concerning free labor implicates an issue of statutory
interpretation that is ‘‘plainly intertwined with the
entirety of the [liquor control] division’s case.’’ We dis-
agree.
‘‘Our Supreme Court has explained that there is a
difference between a claim and an argument in support
of a claim for purposes of our rules of preservation:
‘[O]rdinarily, [a reviewing court] will decline to address
only a claim that is raised for the first time on appeal.
8
See footnote 3 of this opinion.
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. . . [A] claim is an entirely new legal issue, whereas,
[g]enerally speaking, an argument is a point or line of
reasoning made in support of or in opposition to a
particular claim. . . . Because [o]ur rules of preserva-
tion apply to claims . . . [and not] to legal arguments
. . . [w]e may . . . review legal arguments that differ
from those raised below if they are subsumed within
or intertwined with arguments related to the legal claim
before the court.’ . . . Markley v. State Elections
Enforcement Commission, 339 Conn. 96, 104–105 n.9,
259 A.3d 1064 (2021).’’ (Emphasis in original.) Curley
v. Phoenix Ins. Co., supra, 220 Conn. App. 744–45.

Contrary to the plaintiffs’ assertion, they have raised
two primary claims on appeal: first, that there was not
substantial evidence before the commission to support
its determination that the distributors’ employees were
engaged in unlawful stocking, and second, that free
labor is not a prohibited inducement within the meaning
of § 30-94 (a) and § 30-6-A29 (a) of the regulations with-
out proof of an agreement for the provision of that free
labor between the distributor and the retailer. The first
claim involves a purely factual issue, that is, whether
the evidence presented by the liquor control division
at the hearing before the commission was sufficient to
support the commission’s decision, whereas the second
claim involves a pure question of law, that is, whether,
as a matter of statutory interpretation, free labor falls
within the statutory and regulatory prohibition against
a permittee’s receipt of inducements. Neither is sub-
sumed within or intertwined with the other in any way.
Of course, both claims bear on the ultimate issue of
whether the commission’s decision against the plaintiffs
was proper, but otherwise the claims are wholly sepa-
rate and distinct, with each providing an entirely inde-
pendent ground for challenging the commission’s deci-
sion. Consequently, for preservation purposes, both are
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claims rather than arguments, and, as such, they are
subject to our rules governing preservation.
The judgment is affirmed.
In this opinion the other judges concurred.