Lagueux v. Leonardi
Lagueux v. Leonardi
Dissenting Opinion
dissenting. As noted by the majority, the principal issue raised in this appeal requires this court to engage in statutory interpretation. Specifically, our task is to determine whether the General Assembly’s 2001 enactment of the National Association of Insurance Commissioners Model Act, as embodied by General Statutes § 38a-702a et seq., entirely replaced provisions of General Statutes § 38a-769 as they related to insurance producers. This appeal further requires us to determine whether the provisions of General Statutes § 46a-80, regarding human rights and opportunities in government employment generally, apply to the licen-sure of insurance producers. While I agree with the majority’s well reasoned opinion that § 38a-702a et seq. supplanted § 38a-369 as it related to insurance producers, I cannot agree with the majority’s conclusion that the provisions of § 46a-80 apply to insurance producers. Accordingly, I respectfully dissent.
In 2001, the General Assembly enacted No. 01-113 of the 2001 Public Acts (P.A. 01-113), titled “An Act Concerning the Licensing of Insurance Producers,” which largely tracks the National Association of Insurance Commissioners Model Act. In an analysis of the bill, the General Assembly’s Office of Legislative Research made the following observation: “The bill also modifies the commissioner’s responsibilities in determining whether an applicant is suitable. It requires her to find that such applicant (1) is at least [eighteen] years of age; (2) has not committed any acts that are grounds for denial, suspension or revocation; and (3) where required, has completed a pre-licensing course for the lines of authority applied for. Current law requires the commissioner to satisfy himself that each applicant is properly qualified, trustworthy, and that granting a license is in the public interest.” Office of Legislative Research, Amended Bill Analysis for Substitute Senate Bill No. 1096 as amended by Senate Amendments A and B, p. 3. As to any actions that may be
The enactment of P.A. 01-113 also impacted § 38a-769 in a manner significant to the issues on review. Prior to the enactment of P.A. 01-113, General Statutes (Rev. to 2001) § 38a-769 (a) provided in relevant part: “Any person, partnership, association or corporation . . . desiring to act within this state as an insurance producer, a public acftuster, casualty adjuster, motor vehicle physical damage appraiser, certified insurance consultant, surplus lines broker or desiring to engage in any insurance-related occupation for which a license is deemed necessary by the commissioner, shall make a written application to the commissioner for a resident license.” As a result of P.A. 01-113, the inclusion of “an insurance producer” from the list of those occupations covered by § 38a-769 was eliminated and the statute’s catchall reference to “any insurance-related occupation for which a license is deemed necessary by the commissioner” was modified by the addition of the clause “other than an occupation as an insurance producer.”
As reasoned by the majority, the clear import of the enactment of P.A. 01-113 was to create an entirely new process for the processing of applications for those desirous of obtaining licensure to produce insurance. To conclude, as argued by the commissioner, that remnants of the old process, which gave the commissioner discretion based on subjective factors in assessing applications for licensure, still apply would require us to ignore the wholesale changes to the statutory scheme for the licensure of insurance producers effectuated by the adoption of § 38a-702a et seq.
In sum, I agree completely with the majority’s analysis that the enactment of P.A. 01-113 had the effect of
In concluding that the commissioner retains discretion to make subjective determinations in processing applications from would-be insurance producers, the majority takes its analysis two steps too far. First, the majority construes the term “shall” in § 38a-702f to mean less than the term’s normal connotation, and, secondly, the majority concludes that, notwithstanding the language of § 38a-702a et seq. dealing specifically with insurance producers, the commissioner retains discretion pursuant to § 46a-80 to reject an application to produce insurance on the basis of an applicant’s general unsuitability. In reaching this conclusion, the majority may have fashioned a better policy than the General Assembly enacted but, in doing so, I believe, respectfully, the majority has overstepped judicial bounds by creating rather than interpreting statutory law.
In dismissing the direction in § 38a-702f that, unless an applicant has been denied a license pursuant to § 38a-702k, the applicant “shall be issued an insurance producer license,” the majority adopts the notion that the term “shall” need not always mean what it says. That is, the term “shall” need not always connote mandatory action. To be sure, decisional law supports the general notion that the use of the term “shall” can denote directory and not mandatory language in certain contexts. Pointedly, we are instructed that when the word “shall” is juxtaposed with a substantive action verb, it creates a mandatory duty. See Wiseman v. Armstrong, 295 Conn. 94, 101, 989 A.2d 1027 (2010). Our court has expressed the axiom of statutory construction in this manner: “The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to
In addition to concluding that the term “shall” is not mandatory, the majority concludes that the commissioner retains authority pursuant to General Statutes §§ 46a-80 and 46a-81 to reject an application for lack of suitability. In coming to this view, the majority also concludes that without importing the discretionary provisions of §§ 46a-80 and 46a-81 into the more limiting authority set forth in § 38a-702a et seq., the latter statute would lead to an absurd result. I respectfully disagree.
Section 46a-80 (c) provides, in part, that a person may be denied a license to engage in an occupation in Connecticut by reason of a prior conviction of a crime if “after considering (1) the nature of the crime and its relationship to the job for which the person has applied; (2) information pertaining to the degree of rehabilitation of the convicted person; and (3) the time elapsed
In addition to the language of § 46a-81 making that chapter’s provisions applicable to certain other governmental contexts, the General Assembly has shown its ability to incorporate § 46a-80 into more specific licen-sure statutes. For example, General Statutes § 20-316 (a), which delineates the grounds for refusing to license real estate brokers and salespersons provides, in pertinent part: “No license under this chapter shall be denied ... to any applicant who has been convicted of forgery, embezzlement, obtaining money under false pretenses, extortion, criminal conspiracy to defraud or other like offense or offenses . . . except in accordance with the provisions of section 46a-80.” Similarly, General Statutes § 36a-541, concerning the licensure of sales finance companies, while setting forth several
The point of these examples is that they are apt demonstrations of the General Assembly’s awareness of the provisions of § 46a-80 and that, when enacting legislation regarding specific areas of licensing, the General Assembly has reflected this awareness by incorporating or delineating the provisions of § 46a-80 from specific licensing legislation. Given the General Assembly’s history of having incorporated the provisions of § 46a-80 into certain specific licensing statutes, I believe, respectfully, it is not our place to fill in what we may consider to be a legislative void where the General Assembly has chosen not to do so. That the General Assembly chose not to incorporate § 46a-80 into the
Finally, we cannot dismiss the clear legislative mandates and limitations of § 38a-702a et seq. on the basis that strict application of the statutory scheme would lead to absurd results. Here, I believe the majority conflates the notion of absurdity as it is used in statutory interpretation with a public policy concern that, perhaps, the commissioner should be vested with the discretion he wishes to exercise in this instance.
In support of the trial court’s judgment, the commissioner has argued, with apparent success, that construing § 38a-702a et seq. without also incorporating § 46a-80 into its provisions would lead to the absurd result that, while an applicant must disclose his or her criminal history on the mandated application form, the commissioner, nonetheless, does not have the authority pursuant to § 38a-702a et seq. to deny an application for licensure on the basis of an applicant’s criminal background. The commissioner’s point in this regard is that in construing § 38a-702a et seq., we must incorporate the provisions of § 46a-80 regarding the allowable treatment of an applicant’s criminal record because, otherwise, it makes no sense to require applicants to utilize a form that includes a recitation of one’s criminal record. In acceding to this argument, the majority ignores the provision of § 38a-702k, which expressly gives the commissioner the authority to reject an application from one who has been convicted of a felony. Thus, it is entirely reasonable and not absurd that the statutory scheme for the licensing of insurance producers as set forth in § 38a-702a et seq. requires an applicant to set forth his or her past criminal record as the completion of the application provides a vehicle for determining whether an applicant may be statutorily disqualified for having a felony conviction.
Accordingly, I respectfully dissent.
Opinion of the Court
Opinion
The plaintiff, Michael J. Lagueux, appeals from the judgment of the Superior Court sustaining in part and remanding in part his administrative appeal of the denial of his application for an insurance producer license by the defendant, Thomas B. Leonardi, Insurance Commissioner for the state of Connecticut (commissioner). The main issue in this case is the applicability of certain statutes, one of which generally concerns applications for various insurance licenses, General Statutes § 38a-769, and the others, General Statutes §§ 38a-702a through 38a-702k,
The following facts and procedural history are relevant to our review of the plaintiffs appeal.
After reviewing the plaintiffs application, the department denied his request for an insurance producer license. The department’s letter stated in relevant part that “[bjecause the [department is charged with protecting the public interest, under sections 38a-702k, 38a-774 and 38a-769 of the Connecticut General Statutes, we are denying your request for a [producer’s license.” Amy Stegall, program manager for the fraud and investigations unit, testified before the hearing officer about the department’s decision. She stated that insurance producer licensees are frequently in contact with members of the public in their businesses and homes, have access to consumers’ personal information, and are subject to stress in their sales roles when policies are not sold. She further testified that the nature of the plaintiffs offenses and the language used in the letter accompanying his application “caused concern because of [his] hostile tone, [the fact that he] did not comply with court ordered actions and willingly violated his probation.” The department thus denied the plaintiffs application.
The plaintiff appealed the department’s decision. A hearing was conducted and the hearing officer, Mark R. Franklin, affirmed the decision of the department. He found that § 38a-769 (c) and (d) continued to apply to insurance producers despite the enactment of No. 01-113 of the 2001 Public Acts (P.A. 01-113), in which the legislature adopted § 38a-702a et seq., a statute
The court reversed and remanded the plaintiffs appeal to the department, finding that the commissioner committed an error of law by applying § 38a-769 (c) and (d) to the plaintiffs application for an insurance producer license. The court stated that § 38a-769 was inconsistent with § 38a-702aetseq., as the latter statutes addressed the licensing requirements specific to insurance producers. In addition, it stated that the references in other statutes to “insurance producers licensed under [§] 38a-769” were written before the enactment of P.A. 01-113 and its revision of § 38a-769. As a result, the court found that the language in § 38a-769 (c) and (d) no longer applied to insurance producers. It further held that §§ 46a-80 and 46a-81 were the only statutes that could be read together with § 38a-702a et seq. to give discretion to the commissioner to deny an applicant an insurance producer license. This appeal and cross appeal followed.
Resolution of this appeal entails interpretation of the aforementioned statutory provisions. “The following well settled principles of statutory interpretation govern our review. . . . Because statutory interpretation is a question of law, our review is de novo. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory
“[Pjursuant to § l-2z, [the court is] to go through the following initial steps: first, consider the language of the statute at issue, including its relationship to other statutes, as applied to the facts of the case; second, if after the completion of step one, [the court] conclude [s] that, as so applied, there is but one likely or plausible meaning of the statutory language, [the court] stop[s] there; but third, if after the completion of step one, [the court] conclude [s] that, as applied to the facts of the case, there is more than one likely or plausible meaning of the statute, [the court] may consult other sources, beyond the statutory language, to ascertain the meaning of the statute.
“It is useful to remind ourselves of what, in this context, we mean when we say that a statutory text has a plain meaning, or, what is the same, a plain and unambiguous meaning. [Our Supreme Court] has already
I
The plaintiff claims that since the enactment of P.A. 01-113 in 2002, § 38a-769 has been superseded and is obsolete with regard to insurance producers. More specifically, he argues that the legislature explicitly excluded insurance producers from § 38a-769 (a), thus rendering its other subsections entirely inapplicable to insurance producers. The commissioner cross appeals, claiming that despite the enactment of P.A. 01-113, § 38a-769 (c) and (d) still apply to applicants for an insurance producer license. He argues that the legislature excluded insurance producers only from subsection (a) of § 38a-769 and not its other subsections. Therefore, the commissioner concludes that the legislature intended insurance producers to be subject to these other subsections, or else it would have specifically excluded them from each provision, as it did in subsection (a). We agree with the plaintiff.
In a case of statutory interpretation, we are guided by the presumption “that the legislature, in amending
It is also “a well-settled principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling. . . . [If] there are two provisions in a statute, one of which is general and designed to apply to cases generally, and the other is particular and relates to only one case or subject within the scope of a general provision, then the particular provision must prevail; and if both cannot apply, the particular provision will be treated as an exception to the general provision.” (Internal quotation marks omitted.) Commissioner of Public Safety v. Freedom of Information Commission, supra, 137 Conn. App. 315. Furthermore, “[w]here a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject ... is significant to show
Pursuant to § l-2z, we begin with the text of the statute and its relationship to other statutes. P.A. 01-113 enacted chapter 701a of the General Statutes and revised § 38a-769. Title 38a governs insurance, and part 1 of chapter 701a, entitled “Insurance Producers and Agents,” specifically addresses the qualifications and procedures for the licensing of insurance producers. Chapter 702, of which § 38a-769 is a part, generally applies to “Licensing.”
The relevant sections of part 1 of chapter 701a are set forth. Section 38a-702e (a), pertaining to applications for a license, provides in relevant part: “A person applying for a resident insurance producer license shall make application to the commissioner on the uniform application .... The commissioner shall not approve the application unless the commissioner finds that the individual (1) is at least eighteen years of age; (2) has not committed any act that is a ground for denial, suspension or revocation set forth in section 38a-702k; (3) has completed, where required by the commissioner, a prelicensing course of study for the lines of authority for which the person has applied; (4) has paid the fees set forth in section 38a-ll; and (6) has successfully passed the examinations for the lines of authority for which the person has applied.”
Section 38a-702f, pertaining to producer licenses, provides in subsection (a) that “any person who has met the requirements of sections 38a-702d [Examination.
Chapter 702 generally addresses licensing. Section 38a-769, in particular, pertains to applications for a license. Prior to the enactment of P.A. 01-113, General Statutes (Rev. to 2001) § 38a-769 (a) required a person or entity desiring to perform certain insurance related tasks to make a written application to the commissioner for a license. Insurance producers were included in those required to make such application. In P.A. 01-113, the legislature amended subsection (a) of § 38a-769 specifically to exclude insurance producers from
A plain reading of § 38a-769 suggests that after the 2002 revisions, insurance producers are no longer subject to its provisions. Subsection (a) identifies the persons or entities that must apply for a resident or nonresident license. Insurance producers are exempt from having to apply for such licenses. The other subsections of § 38a-769 refer to the applicants for a license, most plausibly those applicants listed in subsection (a) who are applying for a resident or nonresident license. Although the commissioner argues that the legislature only excepted insurance producers from subsection (a), it seems illogical and redundant if it had to amend each following subsection to again exclude insurance producers from its provisions. It is more reasonable to presume that the legislature excluded insurance producers from subsection (a), the section that lists the applicants who must apply for a license, leaving the other subsections without revision, intending for them to refer back to subsection (a). For example, subsection (c) states in relevant part, “ [e] ach applicant for a license shall furnish satisfactory evidence to the commissioner that the applicant is a person of good moral character and that the applicant is financially responsible. . . .”
The most compelling evidence, however, is reading §§ 38a-702a et seq. and 38a-769 in tandem. In 2002, the legislature enacted a specific statute governing all qualifications and licensing requirements for insurance producers, while simultaneously amending the general statute on licensing explicitly to exclude insurance producers from having to apply for a license under subsection (a). Since P.A. 01-113 both enacted § 38a-702a et seq. and revised § 38a-769, we find it persuasive that the legislature intended § 38a-769 to apply to all persons or entities applying for a license, except those applying for an insurance producer license, who have been excepted from its provisions, and for whom a new statute was created to govern such licensees. Furthermore, we acknowledge that “specific terms covering [a] given subject matter . . . prevail over general language of the same or another statute which might otherwise prove controlling.” (Internal quotation marks omitted.) Commissioner of Public Safety v. Freedom of Information Commission, supra, 137 Conn. App. 315. Thus, since § 38a-702a et seq. was enacted specifically to govern licensing for insurance producers, it controls over the general statute on licensing.
We nevertheless conclude that under the facts of this case, the meaning of the statute is susceptible to more than one plausible interpretation. Subsections (c) and
In 1999, the federal legislature, in passing the Gramm-Leach-Bliley Act,
In introducing P.A. 01-113, Senator Thomas A. Bozek commented: “[T]his is a commissioner’s bill. It’s somewhat technical but it’s designed after a model act at the [association] . . . and it rewrites all the provisions of licensing insurer’s agents in the State of Connecticut and allows for the provisions for reciprocity in other states and other insurance agencies that deal with the State of Connecticut, insurance agents.” 44 S. Proc., Pt. 8, 2001 Sess., p. 2194. Representative Michael J. Jarjura similarly stated, “[t]his legislation ... is in response to some changes made at the federal level. This proposal would bring Connecticut into compliance with the federal provisions passed by the Gramm-Leach-Bliley Act. . . . Connecticut being . . . known as the insurance capital of the world, it is hoped that we could lead off and bring the rest of the country into compliance with the modernization of these licensing procedures within the insurance industry.” 44 H.R. Proc., Pt. 13,2001 Sess., p. 4386. Lastly, then Commissioner Susan F. Cogswell testified before the Insurance and Real Estate Committee, stating that: “This proposed legislation modified the licensure requirements for individuals and companies seeking to sell insurance in our state and meets the requirements set out in Gramm-Leach-Bliley. . . . The
That legislative history is persuasive evidence that the legislature was attempting to create one uniform body of law to govern insurance producers. The bill analysis for P.A. 01-113 explicitly states that it was under prior law, referring to § 38a-769, that the commissioner had discretion to deny an applicant a license based on trustworthiness and on the interests of the public. Furthermore, Commissioner Cogswell emphasized that “[P.A. 01-113] modified the licensure requirements for individuals and companies seeking to sell insurance in our state and . . . streamlines the licensing of agents.” The language employed by Senator Bozek describes the intent of the legislature when he stated that “[it] rewrites all the provisions of licensing insurer’s agents in the State of Connecticut.” (Emphasis added.) It would therefore make little sense to allow § 38a-769, a general statute on licensing, to alter the legislative intent of enacting § 38a-702a et seq. After considering the legislative history of § 38a-702a et seq., we are convinced that § 38a-769 no longer applies to insurance producers. The court, therefore, did not err in holding that insurance producers are not subject to the general licensing requirements set forth in § 38a-769.
Despite our affirmance of the court in concluding that § 38a-769 no longer applies to insurance producers, we must still determine whether the court properly found that the commissioner possessed discretion beyond § 38a-702a et seq. to deny the plaintiff an insurance producer license. We agree with the court that the commissioner retained such discretion.
At the outset, we note the guiding principles we must consider on the issue of statutory interpretation. First, “we are required to read statutes together when they relate to the same subject matter . . . .” (Internal quotation marks omitted.) Teresa T. v. Ragaglia, 272 Conn. 734, 748, 865 A.2d 428 (2005). Second, there is a presumption that the legislature has created a harmonious and consistent body of law when amending or enacting statutes. State v. Courchesne, supra, 296 Conn. 709.
The plaintiff claims that §§ 46a-80 and 46a-81 are obsolete with regard to insurance producer licenses since the enactment of § 38a-702a et seq. The commissioner, in contrast, argues that General Statutes § 38a-702k does not deprive the commissioner the discretion to deny an applicant an insurance producer license. We agree with the commissioner.
The plaintiff argues that because § 38a-702k enumerates all of the disqualifying conduct the commissioner may consider in denying an applicant an insurance producer license, he has no discretion to deny an applicant a license based on the criteria set forth in § 46a-80. The plaintiff concludes that because the commissioner stipulated that he had met all the requirements set forth in §§ 38a-702d and 38a-702e and was not disqualified under § 38a-702k, the department is required, under the mandatory language in § 38a-702f, to issue the plaintiff an insurance producer license. For three reasons, we do not find this argument persuasive.
First, we note that “[t]he use of the word ‘shall,’ though significant, does not invariably create a mandatory duty because statutes must be construed as a whole to ascertain the legislative intention.”
Second, even if “shall” in this context were construed as a mandatory duty, it does not preclude reading § 38a-702k harmoniously with § 46a-80. We have always noted that, “[i]n cases in which more than one [statutory provision] is involved, we presume that the legislature intended [those provisions] to be read together to create a harmonious body of law . . . and we construe the [provisions], if possible, to avoid conflict between them.” (Internal quotation marks omitted.) Tomlinson
As a statute on human rights, chapter 814c is very broad and encompasses the insurance producer statute within its provisions. This interpretation is supported by the text of § 46a-81 (a), which provides: “Except as provided in section 36a-489, the provisions of sections 46a-79 to 46a-81, inclusive, shall prevail over any other provisions of law which purport to govern the denial of licenses ... on the grounds of a lack of good moral character, or which purport to govern the suspension or revocation of a license, permit, certificate or registration on the grounds of conviction of a crime.” In reading the statutory language, it is clear that §§ 46a-79 through 46a-81 are applicable to all statutes that govern the denial of licenses based on conviction of a crime, and continue to apply absent a specific exception in the statute. Significantly, the legislature did not amend § 46a-81 (a) after enacting P.A. 01-113 specifically to exclude § 38a-702a et seq. from its provisions.
Third, we are not persuaded that §§ 38a-702a et seq. and 46a-80 are inconsistent, as suggested by the dissent. Subsection (a) of § 46a-80 provides in relevant part that “[e]xcept as provided in subsection (c) of this section ... a person shall not be disqualified from employment by the state or any of its agencies, nor shall a person be disqualified to practice, pursue or engage in any occupation, trade, vocation, profession or business for which a license, permit, certificate or registration is required to be issued by the state or any of its agencies solely because of a prior conviction of a crime.” Subsection (c) of § 46a-80 then states: “A person may be denied employment by the state or any of its agencies, or a
The most persuasive evidence that the legislature intended §§ 38a-702k and 46a-80 to be read together, however, is that our legislature was emulating federal legislation when it enacted § 38a-702a et seq. In 2001,
Pursuant to § 38a-702e, an applicant is required, through the uniform application, to disclose prior criminal history.
We agree with the Superior Court that the legislature intended the commissioner to be able to consult other disqualifying criteria beyond § 38a-702a et seq. and to use his discretion to grant or deny a license. The association specifically states in its handbook that felony convictions are always relevant and that other criminal convictions are only relevant when the crime is related to the role of an insurance producer. This is persuasive evidence that the commissioner has discretion to deny an insurance producer license based on all disclosed criminal convictions, whether they are misdemeanor or felony convictions. It would be illogical to assume that our legislature, in following federal guidelines, would require a disclosure of all criminal convictions, both felony and misdemeanor, but would then require the commissioner to ignore any disclosed misdemeanor convictions. The handbook states that criminal convictions are relevant when the commissioner is determining whether to issue an insurance producer license. Therefore, we presume that the legislature followed the federal guidelines both in using the association’s uniform application and in giving the commissioner the discretion to deny a license based on disclosed criminal convictions. We thus conclude that the commissioner possesses the discretion to refuse an insurance producer license based on the criteria set forth in § 46a-80.
The judgment is affirmed.
In this opinion LAVINE, J., concurred.
We refer in this opinion to General Statutes §§ 38a-702a through 38a-702k as § 38a-702a et seq. and refer to individual sections as necessary.
Although the plaintiff alleged in the September 13, 2012 administrative appeal to the Superior Court that he did not agree with some of the hearing officer’s factual findings, he does not challenge any of those findings in his appeal to this court.
Specifically, General Statutes § 38a-702k (a) provides that these causes include: “(1) Providing incorrect, misleading, incomplete or materially untrue information in the license application; (2) violating any insurance laws, or violating any regulation, subpoena or order of the commissioner or of another state’s commissioner; (3) obtaining or attempting to obtain a license through misrepresentation or fraud; (4) improperly withholding, misappropriating or converting any moneys or properties received in the course of doing an insurance business; (5) intentionally misrepresenting the terms of an actual or proposed insurance contract or application for insurance; (6) having been convicted of a felony; (7) having admitted or been found to have committed any insurance unfair trade practice or fraud; (8) using fraudulent, coercive or dishonest practices, or demonstrating incompetence, untrustworthiness or financial irresponsibility in the conduct of business in this state or elsewhere; (9) having an insurance producer license, or its equivalent, denied, suspended or revoked in any other state, province, district or territory; (10) forging another’s name to an application for insurance or to any document related to an insurance transaction; (11) improperly using notes or any other reference material to complete an examination for an insurance license; (12) knowingly accepting insurance business from an individual who is not licensed; (13) failing to comply with an administrative or court order imposing a child support obligation; or (14) failing to pay state income tax or comply with any administrative or court order directing payment of state income tax.”
Subsection (a) of General Statutes § 38a-769 now provides: “Any person, partnership, association or corporation that is resident in this state or has its principal place of business in this state, or a nonresident of this state who is not licensed in any other state, desiring to act within this state as a public adjuster, casualty adjuster, motor vehicle physical damage appraiser, certified insurance consultant, surplus lines broker or desiring to engage in any insurance-related occupation for which a license is deemed necessary by the commissioner, other than an occupation as an insurance producer, shall make a written application to the commissioner for a resident license. Any other person, partnership, association or corporation desiring to so act or to engage in any insurance-related occupation for which a license is deemed necessary by the commissioner, other than an occupation as an insurance producer, shall make a written application to the commissioner for a nonresident license. . . .” (Emphasis added.)
The applicants referenced in subsection (a) of § 38a-769 include public adjusters, casualty adjusters, motor vehicle physical damage appraisers, certified insurance consultants, surplus lines brokers and anyone desiring to engage in any insurance-related occupation for which a license is deemed necessary by the commissioner, other than an insurance producer.
Gramm-Leach-Bliley Financial Modernization Act of 1999, Pub. L. No. 106-102, 113 Stat. 1338 (1999).
We note that, although the comments of the Office of Legislative Research are not, in and of themselves, evidence of legislative intent, our Supreme Court has observed that they properly may bear on the legislature’s knowledge of intexpretive problems that could arise from a bill. See, e.g., Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102, 124 n.15, 942 A.2d 396 (2008).
The commissioner claims that its application of § 38a-769 (c) and (d) to insurance producers established a time-tested inteipretation that cannot be disturbed. However, “[i]t is well established that an administrative agency’s
We agree with the well written dissent that it is our job to interpret, rather than create, statutory law. We respectfully disagree, however, that we have gone two steps too far. Rather, we strive only to give meaning to the entire statutory scheme as created by the legislature, ensuring that, where possible, the statutes are read harmoniously and consistently.
Although the dissent aptly notes that “we are instructed that when the word ‘shall’ is juxtaposed with a substantive action verb, it creates a mandatory duty,” case law also suggests that if “the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words.” Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985). Section 38a-
See A. Aiudi & Sons, LLC v. Planning & Zoning Commission, 267 Conn. 192, 209-10, 837 A.2d 748 (2004) (holding that § 500 of the Plainville Zoning Regulations was not exclusive list of special exceptions where § 500 provided in relevant part that “[t]he following uses are declared to possess such special characteristics that each must be considered as a special exception”).
The dissent cites several examples, such as General Statutes § 20-316a, where the legislature has specifically provided that its provisions are “subject to the provisions of section 46a-80.” Simply because other statutes have provisions that directly refer to §§ 46a-80 and 46a-81 bears no significance on the present case. There is no requirement that the legislature specifically delineate when statutes must be read harmoniously with another statute. Moreover, suggesting that § 46a-80 only operates when engaged by another statute is contrary to the controlling language in § 46a-80.
General Statutes § 38a-702e (a) provides in relevant part: “A person applying for a resident insurance producer license shall make application to the commissioner on the uniform application and declare under penalty of refusal, suspension or revocation of the license that the statements made in the application are true, correct and complete to the best of the individual’s knowledge and belief. . . .”
The factors listed in § 46a-80 (c) are consistent with, and almost identical to, the factors listed in the association’s handbook. This is further evidence that the legislature intended § 46a-80 to be read along with § 38a-702a et seq.
The hearing officer stated in his decision: “Because there is an element of criminal conduct in determining whether [the plaintiffs] application is in the public interest, and whether he is trustworthy and a person of good moral character; it is important to consider the requirements of [§] 46a-80.” The hearing officer then recited the relevant language in both §§ 46a-80 and 46a-81, and analyzed whether the commissioner properly denied the plaintiffs application by reviewing the information provided in the plaintiffs application. He discussed the time that elapsed from the plaintiffs last conviction and the relevancy of the offense to the responsibility of an insurance producer. The hearing officer went on to conclude, however, that “§ 38a-769 (c) provides that each applicant for a producer license ‘shall furnish satisfactory evidence to the commissioner that the applicant is a person of good moral character and that the applicant is financially responsible,’ and [§] 38a-769 (d) indicates that the commissioner may issue a license upon finding that the applicant ‘meets the licensing requirements of this title and is in all respects properly qualified and trustworthy and that the granting of such license is not against the public interest.’ Thus, there is a relationship between the nature of the crimes and the qualifications of having good moral character, being trustworthy and ensuring that the issuance of a license is in the public interest.”
Reference
- Full Case Name
- Michael J. Lagueux v. Thomas B. Leonardi, Insurance Commissioner
- Cited By
- 2 cases
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- Published