text:
    Joseph Joo v. Capitol Switch, Inc., et al.
    (14976)
    Peters, C. J., and Borden, Berdon, Norcott and Palmer, Js.
    Argued September 23
    decision released November 22, 1994

      Kenneth E. Lenz, with whom, on the brief, was Philip D. Lewis, for the appellant (plaintiff).

      Theodore J. Greene, with whom, on the brief, were Patrick J. Filan and Jeannine M. Foran, for the appellees (defendants).
   Peters, C. J.

The dispositive issue in this appeal is whether a person who elects to pursue a federal age discrimination claim in a Connecticut state court must first exhaust state administrative remedies. The plaintiff, Joseph Joo, brought suit in the trial court alleging that the defendants, Capitol Switch, Inc. (Capitol), and its president, Richard J. Warren, had discharged him in violation of various provisions of the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. The defendants moved to dismiss, arguing that the plaintiffs failure to exhaust state administrative remedies deprived the trial court of subject matter jurisdiction over the ADEA claims. The trial court granted the motion to dismiss. The plaintiff appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We hold that neither federal nor state law imposes a requirement that state administrative remedies must be exhausted before a federal age discrimination claim can be brought to state court, and therefore we reverse the judgment of the trial court.

The relevant facts are not in dispute. The plaintiff, who was born in 1935, was first employed by Capitol in 1962. In 1984, Warren was elected president of Capitol and remained in that position through May 16, 1988, when the plaintiff was discharged. At the time of the plaintiffs discharge and for the relevant period beforehand, Capitol had employed twenty or more employees and had continuously been engaged in an industry that affects commerce.

On or about September 19, 1988, following his discharge, the plaintiff filed timely complaints with the Connecticut commission on human rights and opportunities (CHRO) and the federal Equal Employment Opportunity Commission (EEOC). On February 21, 1990, less than two years after his discharge, the plaintiff filed this private civil action against the defendants in the trial court alleging violations of the ADEA and setting forth other grounds for relief. Thereafter, on February 7,1991, the CHRO informed the plaintiff that it had found no reasonable cause for his allegation of age discrimination. The plaintiffs request for reconsideration was denied on June 12,1991. The trial court thereafter granted the defendants’ motion to dismiss the plaintiff’s cause of action.

None of the parties disputes that the ADEA requires the plaintiff to have filed his complaint with the CHRO. Their disagreement arises from their differing interpretations of the consequences that flow from that filing requirement. The plaintiff argues, as he did in his opposition to the motion to dismiss, that the ADEA does not impose a state exhaustion requirement on a person who files an ADEA claim in state court. In addition, the plaintiff argues that application of a state exhaustion requirement in the circumstances of this case would violate the due process guarantee of article first, § 10, of the Connecticut constitution, because the combination of an exhaustion requirement, if applicable, and the ADEA statute of limitations would deprive him of any opportunity to pursue his claim in state court. The defendants, on the other hand, emphasize that the plaintiff had no obligation to elect state rather than federal court as the forum in which to pursue his action. Although they concede that, had the plaintiff chosen to sue in federal court, he would not have been required to exhaust the CHRO proceedings, they maintain that the plaintiff’s election to remain in Connecticut state court bound the plaintiff to complete the CHRO proceedings that the ADEA had required him to commence. The plaintiffs noncompliance with this exhaustion requirement, according to the defendants, properly led the trial court to dismiss his complaint.

We are persuaded that no exhaustion requirement limits a plaintiff’s right to bring an ADEA action in state court for three principal reasons: (1) the language of the relevant federal statute and the construction given that statute by the federal courts; (2) the inferences to be drawn from the grant of concurrent jurisdiction over ADEA claims; and (3) the inferences to be drawn from the time frame within which an ADEA claim must be brought.

I

Our analysis of the plaintiff’s federal claim begins with an examination of the ADEA and the cases decided thereunder. The ADEA provides that, before an aggrieved person may initiate a private action, he or she must file with the EEOC a charge alleging unlawful age discrimination. 29 U.S.C. § 626 (d). If the alleged acts of age discrimination occurred in a state that has enacted a law prohibiting age discrimination in employment and establishing an agency to grant or seek relief from such discrimination (deferral state), the aggrieved person must also file a signed written statement of the facts with the state agency. 29 U.S.C. § 633 (b). The person must wait sixty days after filing with either agency before bringing a private action. 29 U.S.C. §§ 626 (d) and 633 (b). During that period, if the EEOC commences an action to vindicate the aggrieved person’s rights, the person’s authority to bring a private civil action terminates. 29 U.S.C. § 626 (c) (1). Unlike § 626 (c), however, § 633 (b) contains no provision divesting the aggrieved person of authority to initiate a private civil action because of any actions initiated by the state agency during the deferral period.*

Although the ADE A requires charges to be filed with federal and state agencies, nothing in the statute requires a person to exhaust additional administrative remedies before filing a private civil action. As the United States Supreme Court recognized, § 633 (b) “does not stipulate an exhaustion requirement. The section is intended only to give state agencies a limited opportunity to settle the grievances of ADE A claimants in a voluntary and localized manner so that the grievants thereafter have no need or desire for independent federal relief.” Oscar Mayer & Co. v. Evans, 441 U.S. 750, 761, 99 S. Ct. 2066, 60 L. Ed. 2d 609 (1979). “By its terms . . . the section requires only that state proceedings be commenced 60 days before federal litigation is instituted; besides commencement no other obligation is placed upon the ADE A grievant.” Id., 759.

The United States Supreme Court further observed that the ADEA permits the federal and state administrative deferral periods to run simultaneously. This grant of concurrent administrative jurisdiction reflects Congress’ recognition that delay in the prosecution of age discrimination claims “is particularly prejudicial to the rights of ‘older citizens to whom, by definition, relatively few productive years are left.’ 113 Cong. Rec. 7076 (1967) (remarks of Sen. Javits).” Id., 757. The Oscar Mayer & Co. decision makes clear, therefore, that the requirements of § 633 (b) must be interpreted in a manner that is consistent with “[t]he purpose of expeditious disposition” of age discrimination claims. Id.

The United States Supreme Court has also held that federal courts in ADEA cases “should recognize no preclusion by state administrative findings with respect to age discrimination claims.” Astoria Federal Savings & Loan Assn. v. Solimino, 501 U.S. 104, 110, 111 S. Ct. 2166, 115 L. Ed. 2d 96 (1991). The court held that the purpose of § 633 (b) outweighs the presumption in favor of administrative preclusion. According to the court, the provisions of §§ 626 (d) (2) and 633 (b), when read together, “plainly assume the possibility of federal consideration [of the merits of an ADEA claim] after state agencies have finished theirs.” Id., 111. For such consideration to be meaningful, the court reasoned, it must be plenary. “A complainant who looks to a federal court . . . will . . . ordinarily do so only when the state agency has held against him. In such a case, however, the employer would likely enjoy an airtight defense of collateral estoppel if a state agency determination on the merits were given preclusive effect.” Id. Application of the doctrine of administrative preclusion to the ADEA would leave the provisions calling for federal consideration “essentially without effect”; id., 112; a result the United States Supreme Court refused to countenance. The Solimino decision therefore further indicates how limited a role the deferral requirement of § 633 (b) plays in the jurisdictional underpinnings of the ADEA.

Federal appellate and district courts have consistently rejected the proposition that § 633 (b) imposes a state exhaustion requirement. In Curto v. Sears, Roebuck & Co., 552 F. Sup. 891, 899-900 (N.D. Ill. 1982), for example, the court held that § 633 (b) “makes it very clear that a state agency cannot prohibit an ADEA plaintiff from abandoning state proceedings and suing in federal court. ADEA plaintiffs have an absolute right to file suit sixty days after commencing state proceedings, and, as the last sentence of [§ 633 (b)] and Oscar Mayer [& Co.] make clear, there is nothing the state can do to stop them. If an ADEA litigant is determined to have his or her day in federal court, he or she will get it.” The court concluded by stating that §§ 626 (d) and 633 (b) “mean what they say, no more and no less. A litigant complies with these sections by commencing proceedings under state law, and then waiting sixty days or until state proceedings have terminated to file suit under the [ADEA], By doing this, the litigant complies with the letter of the statute, and has preserved its underlying goals.” Id., 902; see also Shanahan v. WITI-TV, Inc., 565 F. Sup. 219, 223 (E.D. Wis. 1982) (“exhaustion of state remedies is not a prerequisite to filing an ADEA action”).

The decision of the Second Circuit Court of Appeals in Goodman v. Heublein, Inc., 645 F.2d 127 (2d Cir. 1981), is particularly relevant here. In that appeal, arising from an ADEA claim in the United States District Court for Connecticut, the court stated that “the [United States] Supreme Court, construing [§ 633 (b)], has held that an ADEA plaintiff’s state filing need not be timely under state law in order to permit him to proceed in federal court. . . . He need only commence the state action, even though that action is subject to dis missal because of the late filing.” (Citation omitted; emphasis added.) Id., 132; see also Bean v. Crocker National Bank, 600 F.2d 754 (9th Cir. 1979); Donahue v. Pendleton Woolen Mills, Inc., 719 F. Sup. 149 (S.D.N.Y. 1988). If an ADEA plaintiff can proceed to federal court even when his or her filing with the state agency is subject to dismissal as being time barred under state law, then a fortiori that plaintiff need not exhaust state administrative remedies as a prerequisite to federal court jurisdiction.

These decisions are consistent with the jurisprudence that has developed under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. The United States Supreme Court has noted that § 633 (b) was modeled after, and is nearly identical to, § 706 (c) of Title VII, 42 U.S.C. § 2000e-5 (c). Oscar Mayer & Co. v. Evans, supra, 441 U.S. 756. It is well established that § 633 (b) “is to be construed to accord with the similar requirements of § [200 Oe-5 (c)]. . . .” Goodman v. Heublein, Inc., supra, 645 F.2d 131; accord Equal Employment Opportunity Commission v. Shamrock Optical Co., 788 F.2d 491, 493 (8th Cir. 1986). When presented with the question of whether § 2000e-5 (c) imposes an exhaustion requirement, the Seventh Circuit Court of Appeals has unequivocally held that it does not. “[T]he Congressional policy of deference to state and local agencies is embodied in the limited form of a 60-day no-action period. Nothing in § 2000e-5 (c) even remotely suggests that state procedures must be exhausted before federal action may continue.” (Emphasis in original.) Guse v. J. C. Penney, Co., 562 F.2d 6, 8 (7th Cir. 1977); see also New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 64, 100 S. Ct. 2024, 64 L. Ed. 2d 723 (1980); Love v. Pullman Co., 404 U.S. 522, 526, 92 S. Ct. 616, 30 L. Ed. 2d 679 (1972) (purpose of deferral under § 2000e-5 [c] is “to give state agencies a prior opportunity to consider discrimination complaints”). Notably, the Curto court relied in part on Guse in reaching its decision that § 633 (b) does not require exhaustion. See Curto v. Sears, Roebuck & Co., supra, 552 F. Sup. 901, and cases cited therein.

We recognize that none of the cases involving an ADEA action in federal court has expressly addressed the question directly before us, namely, whether their interpretation of § 633 (b) applies equally to ADEA claims filed in state court. With one exception, we have found no state court case directly addressing the issues raised in this appeal. Although several other state courts have purported to find a state “exhaustion requirement” in the ADEA, a careful reading of those cases reveals that the courts were referring to nothing more than the federal statutory requirements of filing with the state agency and then waiting sixty days before commencing an action. See Nolan v. Otis Elevator Co., 102 N.J. 30, 41-44, 505 A.2d 580 (1986); Patrowich v. Chemical Bank, 98 App. Div. 2d 318, 323, 470 N.Y.S.2d 599 (1984); Colina v. McGraw Construction Co., 69 Ohio App. 3d 422, 424-25, 590 N.E.2d 1308 (1990). We have also found no cases on point under the analagous § 706 (c) of Title VII. Notwithstanding the absence of express precedent, however, we are persuaded that § 633 (b) does not require state administrative remedies to be exhausted before an ADEA claim is initiated in state court. The logic of the federal cases concerning federal jurisdiction is persuasive for state court cases as well.

II

Our conclusion from the federal law of ADEA jurisdiction finds support in the inferences to be drawn from the Congressional decision to confer upon state courts concurrent jurisdiction over ADEA claims. Although Congress was free to choose otherwise; Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 477-78, 101 S. Ct. 2870, 69 L. Ed. 2d 784 (1981); it undeniably decided to make state as well as federal courts an available forum for the vindication of federal age discrimination claims. That Congressional decision counsels against imposing a state law exhaustion requirement on the plaintiffs ADEA claim.

We have had occasion to consider the relationship between a federally created cause of action for which federal law does not provide an exhaustion requirement and a state imposed exhaustion requirement, and we have rejected such an imposition. In Fetterman v. University of Connecticut, 192 Conn. 539, 473 A.2d 1176 (1984), the plaintiff, a former tenured professor at the defendant university, had commenced an action against the university in state court under 42 U.S.C. § 1983. Although the trial court dismissed the case for failure to exhaust administrative remedies; id., 549; we reversed, holding that the United States Supreme Court’s decision in Patsy v. Board of Regents, 457 U.S. 496, 102 S. Ct. 2557, 73 L. Ed. 2d 172 (1982), that § 1983 does not require exhaustion of state administrative remedies was not limited to federal court cases. Our reasoning in Fetterman is particularly apposite here. “The defendant . . . would seek to limit the holding of [Patsy] to § 1983 actions brought only in the federal courts. The incongruous result of such a limited interpretation, however, would be to allow plaintiffs instituting federal court actions to do so without exhausting state administrative remedies, while requiring plaintiffs suing in Connecticut [state] courts to first exhaust such remedies. Since it is clear that claims for liability for deprivation of federal constitutional rights under § 1983 are claims as to which there is concurrent jurisdiction ... we think that such a limitation on the court’s holding is inappropriate.” (Citations omitted.) Fetterman v. University of Connecticut, supra, 549. The same logic applies with equal vigor to the present case.

Adoption of an exhaustion requirement for ADEA claims would result in the same incongruity that we rejected in Fetterman. A person who filed an ADEA claim in Connecticut state court would first have to exhaust state administrative remedies and then, if dissatisfied with the outcome, would have to demonstrate, on appeal to the Superior Court, that the adverse findings by the CHRO were clearly erroneous. See General Statutes §§ 46a-94a and 4-183 (j) (5). On the other hand, a person who filed an ADEA claim in federal court would receive full consideration of his or her claim on the merits, even if the CHRO had completed a full administrative process after receiving the required § 633 (b) notice and had denied the claim. Astoria Federal Savings & Loan Assn. v. Solimino, supra, 501 U.S. 110. As in Fetterman, we are unpersuaded that Congress, having elected to permit concurrent jurisdiction, intended to permit such unequal treatment for a plaintiff who decided to pursue a claim for the deprivation of a federal right in state court.

This conclusion disposes of the defendants’ contention that General Statutes § 46a-83 independently requires a person pursuing an ADEA claim in Connecticut state court to exhaust administrative remedies before the CHRO. Even if we were to find that the CHRO admininistrative process applies to an ADEA claim, the reasoning of Fetterman indicates that a state imposed administrative remedy of the type posited by the defendants must be subordinated to a federal statutory right to proceed directly to court to vindicate a federal claim. Fetterman v. University of Connecticut, supra, 192 Conn. 549.

Ill

The time limits that Congress has imposed for the initiation of a private civil action under the ADEA lend further support for our conclusion that the ADEA does not contemplate a state exhaustion requirement. In addition to the 300 day time limit for filing a discrimination charge with the appropriate agencies; 29 U.S.C. § 626 (d) (2); the ADEA sets an absolute time limit of two years after accrual for the commencement of an ADEA action. 29 U.S.C. § 626 (e) (l). If, therefore, state administrative proceedings were to continue past the two year limitations date, application of an exhaustion requirement would place potential plaintiffs in a Catch-22: a complaint filed before the termination of agency proceedings would be premature, while a complaint filed after the termination of proceedings would be time barred. Either way, the complaint would potentially be subject to dismissal.

The plaintiff in the present case faced precisely this conundrum. The plaintiff was discharged on May 16, 1988. At that time, the two year limitation period contained in § 626 (e) (1) began to run. The plaintiff filed discrimination charges with the EEOC and CHRO on September 19, 1988, within the 300 day limit established in § 626 (d) (2). Thereafter, the plaintiff filed a complaint in Superior Court on February 21, 1990, more than sixty days after the §§ 626 (d) and 633 (b) charges had been filed and within the two year limit of § 626 (e) (1). The CHRO, however, did not issue its finding of no reasonable cause until February 7,1991, several months after the limitations period would have expired. The plaintiffs request for reconsideration was not denied until June 12,1991—more than one year after the statute of limitations for filing a private action would have run. See General Statutes § 46a-83 (c). Had the plaintiff waited to bring his action until after the final decision by the CHRO, the defendants could have invoked the § 626 (e) (1) statute of limitations as a bar to his claim. Yet, when he filed the complaint within the time period prescribed by the ADEA, the defendants moved for its dismissal for failure to exhaust administrative remedies.

Congress cannot have intended to place ADEA plaintiffs in this impossible position when it granted concurrent jurisdiction over ADEA claims. We decline to do so now by reading an exhaustion requirement into the statute. Cf. State v. Metz, 230 Conn. 400, 420, 645 A.2d 965 (1994) (“[i]n construing a statute ... we will search for an effective and constitutional construction that reasonably accords with the legislature’s underlying intent”). We hold, therefore, that as a matter of federal law § 633 (b) of the ADEA, while requiring a person pursuing an ADEA claim in Connecticut to file notice of the claim with the CHRO, does not require that person to exhaust administrative remedies before the CHRO prior to initiating a federal age discrimination claim in Connecticut state court.

To summarize, we hold that § 14 (b) of the ADEA, 29 U.S.C. § 633 (b), does not require a litigant to exhaust state administrative remedies before initiating a federal age discrimination claim in Connecticut state court. In view of this conclusion, the trial court improperly dismissed counts one, two, five and six of the revised complaint for failure to exhaust state administrative remedies. We therefore remand with instructions to reinstate these counts of the plaintiff’s revised complaint.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other justices concurred.

       Title 29 of the United States Code, § 623 provides in relevant part: “prohibition OF AGE DISCRIMINATION
      “(a) EMPLOYER PRACTICES
      “It shall be unlawful for an employer—
      “(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age . . . .”

       Title 29 of the United States Code, § 631 provides in relevant part: “age limits
      “(a) INDIVIDUALS AT LEAST 40 YEARS OF AGE
      “The prohibitions of [the ADEA] shall be limited to individuals who are at least 40 years of age.”

       Title 29 of the United States Code, § 630 provides in relevant part:
      “definitions
      “For purposes of [the ADEA] ....
      “(b) The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year . . . .”

       The original complaint was dated February 21, 1990. A revised complaint was filed on June 6, 1990.

       The revised complaint contains six counts. Counts one, two, five and six allege violations of the ADEA. Count three states a claim against Warren for falsely accusing the plaintiff of inciting coworkers to walk off the job. Count four charges Capitol with breach of contract.

       In response to the plaintiffs motion for articulation, the trial court indicated that it had dismissed counts one, two, five and six of the revised complaint. See footnote 5. The parties agreed to a stipulation that the motion to dismiss could be construed as applying to all counts of the revised complaint. Thereafter, on September 28, 1993, the trial court dismissed the remaining counts of the revised complaint against the defendants.

       As discussed more fully in part III of this opinion, the CHRO administrative process did not produce a final decision until after the statute of limitations for filing a private action under the ADEA had expired.

       Since the enactment of No. 91-331 of the 1991 Public Acts, codified at General Statutes § 46a-101, that statute has allowed a person to seek a release from the CHRO so as to permit the complainant to proceed directly in Superior Court.

       Connecticut qualifies as a deferral state under § 633 (b) of Title 29 of the United States Code. The CHRO is the state agency with which a person pursuing an ADEA claim must file a report. See General Statutes §§ 46a-82 through 46a-96.

       Title 29 of the United States Code, § 626 (d) also establishes the outside time limits within which the discrimination charge must be filed with the EEOC and the deferral state agency. “Such a charge shall be filed— (1) within 180 days after the alleged unlawful practice occurred; or (2) in a case to which section 633 (b) of this title applies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.” 29 U.S.C. § 626 (d).

       See also 29 U.S.C. § 633 (a) (state agency proceedings superseded by commencement of ADEA action); Shanahan v. WITI-TV, Inc., 565 F. Sup. 219, 224 (E.D. Wis. 1982) (discussing § 633 [a]).

       See also 29 C.F.R. § 1601.13 (b) (2) (iii) (1993) (providing mechanism for EEOC to invoke its sequential jurisdiction over Title VII claim pursuant to 42 U.S.C. § 2000e-5 [b] and [c] after deferral state proceedings have been commenced but have not terminated).

       It is significant to note, however, that the procedural history of Shanahan v. WITI-TV, Inc., supra, 565 F. Sup. 219, gives rise to an implication that the rule is not limited to ADEA cases in federal court. At the time Shanahan was decided, the doctrine of derivative jurisdiction required a state court to have had proper jurisdiction of a case before removal to federal court would be permitted under 28 U.S.C. § 1441. Doran, Inc. v. James A. Green, Jr., & Co., 511 F. Sup. 340, 342 (W.D. Mo. 1981); Dickinson v. Chrysler Corp., 456 F. Sup. 43, 48 (E.D. Mich. 1978); compare 28 U.S.C. § 1441 (e) (added in 1986) (eliminating requirement that state court have subject matter jurisdiction prior to removal); Chivas Products Ltd. v. Owen, 864 F.2d 1280, 1286 (6th Cir. 1988). Since subject matter jurisdiction implicates a court’s authority to hear a case and cannot be waived, the removal court could act only if it were persuaded that the court from which removal was sought had had proper jurisdiction. See Doran, Inc. v. James A. Green, Jr., & Co., supra, 342. When the federal court in Shanahan accepted removal of the case, it therefore must have concluded that the Wisconsin court had had jurisdiction over the ADEA claim. To reach that conclusion, the federal court implicitly must have determined that the plaintiff was not required to exhaust state administrative remedies under the Wisconsin Fair Employment Act; Wis. Stat. § 111.31 et seq. (1983-84); prior to initiating his ADEA claim in the state court.

        Cahoon v. Alton Packaging Corp., 148 Ill. App. 3d 480, 482, 499 N.E.2d 522 (1986), holds “that an Illinois court [must] dismiss an ADEA case unless state administrative remedies have been exhausted.” We are not persuaded by that precedent for two reasons. First, the Cahoon decision never mentions § 633 (b), nor does it discuss any of the jurisprudence interpreting that provision. Second, the decision rests in large part on that court’s understanding that Illinois statutes reflect the “legislature’s plain directive that a civil rights claim be prosecuted in the administrative forum before it reaches the court, and that a complaint which invokes a Federal claim is not entitled to preferential treatment in that regard.” Id., 483. Connecticut’s statutes contain no equivalent directive. See General Statutes §§ 46a-83 and 46a-51 (8).

       Until 1990, there was a split of authority, and many courts held that Title VII provides for exclusive federal court jurisdiction, which precluded the issue from arising. Compare Bradshaw v. General Motors Corp., 805 F.2d 110 (3d Cir. 1986), Valenzuela v. Kraft, Inc., 739 F.2d 434 (9th Cir. 1984), and Sweeney v. Hartz Mountain Corp., 78 Md. App. 79, 552 A.2d 912 (1989) (exclusive federal jurisdiction), with Greene v. School Board of Henrico County, 524 F. Sup. 43 (E.D. Va. 1981), and Bennun v. Board of Governors of Rutgers, 413 F. Sup. 1274 (D.N.J. 1976) (concurrent jurisdiction). In 1990, however, the United States Supreme Court definitively resolved the issue in favor of concurrent jurisdiction. Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 110 S. Ct. 1566, 108 L. Ed. 2d 834 (1990).

       The ADEA provides that subject matter jurisdiction for a federal age discrimination claim is proper “in any court of competent jurisdiction. . . .” 29 U.S.C. § 626 (c). Concurrent jurisdiction over a federally created cause of action is presumed in the absence of some clear indication to the contrary. Gulf Offshore Co. v. Mobil Oil Corp., supra, 453 U.S. 477-78. Numerous courts have approved state court jurisdiction over ADEA claims. See, e.g., Chapman v. Detroit, 808 F.2d 459, 463 (6th Cir. 1986); Eagleburger v. Springfield, 677 S.W.2d 914, 915 (Mo. App. 1984) (citing H.R. Rep. No. 805, 90th Cong., 1st Sess. [1967]); cf. Sullivan v. Board of Police Commissioners, 196 Conn. 208, 491 A.2d 1096 (1985) (dismissing ADEA claim for failure to comply with administrative notice requirements). The trial court rejected the defendants’ argument in their motion to dismiss that the ADEA provides for exclusive federal jurisdiction over private ADEA actions.

       Indeed, as the defendants concede, if the CHRO were to determine that a claimant’s case has no reasonable cause; see General Statutes § 46a-83 (b); and deny the claimant’s motion for reconsideration; see General Statutes § 46a-83 (c); and if the trial court were then to find that the CHRO’s findings were not clearly erroneous; see General Statutes § 4-183 (j) (5); the claimant might never receive a hearing on the merits of the age discrimination charge.

       The defendants assert that the CHRO administrative process codified at § 46a-83, which purports to apply to “any discriminatory practice complaint,” necessarily governs here. We note, however, that § 46a-83 applies only to those “discriminatory practices” enumerated at General Statutes § 46a-51 (8). These “discriminatory practices” do not include a complaint brought under the ADEA.

       Title 29 of the United States Code, § 626 (e) (1) incorporates by reference §§ 6 and 10 of the Portal-to-Portal Act of 1947, 29 U.S.C. §§ 255 and 259. Section 255 provides in relevant part: “statute of LIMITATIONS
      “Any action commenced on or after May 14,1947, to enforce any cause of action . . .

        “(a) if the cause of action accrues on or after May 14,1947—may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced 'within two years after the cause of action accrued . . . .”
      Title 29 of the United States Code, § 626 (e) (2) does provide for a one year tolling period if the EEOC elects to attempt voluntary conciliation of the discrimination charge, pursuant to § 626 (b). Nowhere, however, does the ADEA set out a comparable tolling provision to accommodate actions by deferral state agencies.

       The only count in the revised complaint that charges willful action is count three, which does not state a claim under the ADEA. See footnote 5. Therefore, the plaintiff would not have been entitled to the three year statute of limitations for willful violations of the ADEA. See29U.S.C. §§ 626 (e) (1) and 255 (a).

       Nothing in our decision in Sullivan v. Board of Police Commissioners, 196 Conn. 208, 491 A.2d 1096 (1985), is inconsistent with this holding. In Sullivan, we were presented with the question whether the defendant had established age as a bona fide occupational qualification under 29 U.S.C. § 623 (f) (1). We dismissed the appeal for lack of subject matter jurisdiction, however, because of the plaintiffs failure to file charges with the EEOC under § 626 (d). Id., 213-14, 217-18. We similarly dismissed the plaintiffs claim under the Connecticut Fair Employment Practices Act (CFEPA) for failure to comply with the administrative procedures set forth in General Statutes §§ 46a-82 through 46a-96. Id., 215-18. Although we referred to § 633 (b) in passing; id., 214-15 n.9; Sullivan turned solely on questions of filing initial charges and never reached questions of exhaustion under the ADEA.
      The other cases relied upon by the defendants for the proposition that a person bringing an age discrimination claim must exhaust administra-five remedies all arose in the context of CFEPA claims and therefore are not controlling here. See Atkins v. Bridgeport Hydraulic Co., 5 Conn. App. 643, 501 A.2d 1223 (1985); see also Osborn v. Rocklen Automotive Parts & Service, Inc., 4 Conn. App. 423, 494 A.2d 622 (1985) (disability claim under General Statutes § 46a-60 [a] [1]).

       Accordingly, we do not reach the plaintiffs argument that application of an exhaustion requirement would violate the due process guarantee of article first, § 10, of the Connecticut constitution.

       The status of counts three and four of the revised complaint has not been briefed and is not before us on this appeal. See footnote 6.


source: Caselaw Access Project

author: Berdon, J.

license: Public Domain

text:
    Shoreline Care Limited Partnership v. Town of North Branford et al.
    (14961)
    Peters, C. J., and Borden, Berdon, Norcott and Palmer, Js.

      Argued September 23
    decision released November 22, 1994

      Lawrence C. Sgrignari, for the appellants (defendants).

      John W. Barnett, for the appellee (plaintiff).
   Berdon, J.

This is an appeal from a sewer benefit assessment levied against property in North Branford owned by the plaintiff, Shoreline Care Limited Partnership (Shoreline). Shoreline commenced this appeal after the defendants, the town of North Branford and the North Branford Water Pollution Control Authority (collectively North Branford), assessed Shoreline $148,755 in "benefit assessments” pursuant to General Statutes § 7-249. Shoreline appealed to the Superior Court pursuant to General Statutes § 7-250. The trial court rendered judgment for Shoreline, concluding that Shoreline had proved that North Branford had conferred no sewer benefits on Shoreline and that the “benefit assessment” therefore was invalid. North Branford appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We disagree with the trial court’s conclusion that Shoreline carried its burden of proving the invalidity of the assessment, and therefore reverse the judgment of the trial court.

The essential facts of the case are undisputed. Shoreline owns and operates Evergreen Woods (Evergreen), a continuing care center on approximately eighty-eight acres in the town of North Branford. Evergreen includes residential living units, a nursing facility and other buildings. When Shoreline decided to develop Evergreen, it approached North Branford officials with concerns about how to service the sewerage needs for the property.

North Branford, as a result of its topography, has no sewage treatment plant of its own. Instead, it has divided the town into three sewerage districts, designated “A, ” “B” and “C.” In each district the town has constructed sewer pipes to carry waste generated by the district to a different neighboring town. The sewer pipes in district A, for example, lead to the town of Branford’s sewage treatment plant, in accordance with an agreement between North Branford and Branford. The agreement allows North Branford to discharge up to 665,000 gallons of waste each day into the Bran-ford sewerage system. Pursuant to § 7-249, North Branford charges property owners in district A a “benefit assessment” of $1055 per unit, which allows the town to recoup at least a portion of the costs of providing sewers and access to the Branford sewage treatment plant for that district.

Although the site for Evergreen is located in district A, the nearest available sewer pipe was located some distance away from the property. In fact, at least six separate parcels of property separated Shoreline from the sewer pipe. Rather than trying to purchase sewer easements from the property owners or seeking to have the town’s water pollution control authority exercise its statutory power of eminent domain to acquire the easements, Shoreline decided to build its own sewer lines and pumping station for the property and connect them directly to Branford’s sewer system, at no out-of-pocket cost to North Branford. Under North Branford’s sewer regulations, however, Shoreline needed North Branford’s permission to connect to Branford.

In September, 1989, North Branford gave its permission in a contract it entered into with Shoreline. The effect of the contract was to allow Shoreline to pipe its sewage directly to Branford, but that any such sewage would reduce North Branford’s 665,000 gallon daily sewage limit accordingly.

Seven months later, in April, 1990, Shoreline entered into a contract with the town of Branford that allowed Evergreen to connect its private sewer system to that town’s sewers. That agreement expressly provided that “[t]here will be no inspection fees, connection charges or sewer use assessments imposed upon Shoreline” by Branford. Shoreline, at a cost of $445,000, constructed its sewer system and connected it to that of Branford.

In March, 1992, North Branford levied on Shoreline a sewer benefit assessment of $148,755, reflecting a charge of $1055 for each of the 141 units that had been built at Evergreen. Shoreline appealed the legality of the assessment to the trial court, arguing that because Shoreline had built its own $445,000 sewer system at no cost to North Branford and was piping its effluent directly to Branford, Shoreline received no sewerage “benefit” from North Branford. The trial court held that Shoreline had sustained its burden of proof because “the town did not incur any cost to construct or acquire a sewerage system in the [Evergreen] complex on Shoreline’s property in North Branford,” and rendered judgment for Shoreline. In other words, the trial court held that since North Branford had incurred no out-of-pocket costs, there was no benefit to Shoreline for which the town could levy a benefit assessment under § 7-249. We disagree.

North Branford derives its power to levy sewer benefit assessments directly from § 7-249, which provides in relevant part that it “may levy benefit assessments upon the lands and buildings in the municipality which, in its judgment, are especially benefitted thereby, whether they abut on such sewerage system or not .... Benefits to buildings or structures constructed or expanded after the initial assessment may be assessed as if the new or expanded buildings or structures had existed at the time of the initial assessment. . . . The sum of initial and subsequent assessments shall not exceed the special benefit accruing to the property. ... No assessment shall be made against any property in excess of the special benefit to accrue to such property.” As the trial court correctly recognized, there is a presumption as to the regularity, validity and correctness of a special benefit assessment that imposes the burden of proof on the property owner challenging the assessment. See Tower Business Park Associates No. 1 Ltd. Partnership v. Water Pollution Control Authority, 213 Conn. 112, 117, 566 A.2d 696 (1989); Katz v. West Hartford, 191 Conn. 594, 602, 469 A.2d 410 (1983); Anderson v. Litchfield, 4 Conn. App. 24, 28, 492 A.2d 210 (1985).

In Katz v. West Hartford, supra, 191 Conn. 594, this court discussed the purpose and effect of such assessments. “Special assessments for local improvements, although bottomed on the taxing power, are based on the principle of special benefit to property. It is a local assessment imposed occasionally, as required, upon a limited class of persons interested in a local improvement; who are assumed to be benefited by the improvement to the extent of the assessment .... Bridgeport v. New York & N.H. R. Co., 36 Conn. 255, 262-63 (1869). The demand for the special contribution is justified by the fact that those who are to make it, while they are made to bear the cost of the public work, are supposed to suffer no pecuniary loss thereby, because their property is increased in value to an amount at least equal to the sum they are required to pay. 2 Cooley on Taxation (3d Ed.) 1153; 1 Page & Jones, Taxation by Assessment §§ 35, 39. Whitmore v. Hartford, 96 Conn. 511, 524, 114 A. 686 (1921); Vaill v. Sewer Commission, 168 Conn. 514, 518, 362 A.2d 885 (1975).” (Internal quotation marks omitted.) Katz v. West Hartford, supra, 602-603.

The benefit to a property owner is measured solely according to the amount by which the improvement causes the property to increase in market value. Cyr v. Coventry, 216 Conn. 436, 442-43, 582 A.2d 452 (1990); Tower Business Park Associates No. 1 Ltd. Partnership v. Water Pollution Control Authority, supra, 213 Conn. 117; see Katz v. West Hartford, supra, 191 Conn. 602-603. Under § 7-249, “ ‘[t]he monetary value of the special benefit conferred upon a piece of property by the presence of a sewerage system must be calculated by the difference between the market value of the realty with and without the sewerage system . . . ” Tower Business Park Associates No. 1 Ltd. Partnership v. Water Pollution Control Authority, supra, 118, quoting Bridge Street Associates v. Water Pollution Control Authority, 15 Conn. App. 140, 144, 543 A.2d 1351 (1988); see Cyr v. Coventry, supra, 442-43. Indeed, a property need not be connected to the system in order for it to receive a benefit. If the property has increased in market value merely by virtue of its access to town sewers, it has received a benefit for which an assessment may be levied. Section 7-249 expressly recognizes this fact by allowing assessments to be made even against property owners who do not “abut” the system.

Accordingly, the cost that a town incurs in providing access to sewers is not dispositive in determining the amount of the benefit to the property. Indeed, in any given situation, the cost the town incurs in installing a sewer system may exceed the sum of the benefit assessments it collects from property owners affected by the system. In such a case, this may “mean that the cost of the sewerage system cannot be fully recouped by the town.” Bridge Street Associates v. Water Pollution Control Authority, supra, 15 Conn. App. 144. Similarly, the costs, if any, that a property owner may incur to connect to an existing sewer system are only relevant insofar as they may affect the market value of the property. See Park City Yacht Club v. Bridgeport, 81 Conn. 76, 82, 70 A. 631 (1908) (holding that the measure of a benefit should be “the whole effect” on market value, “and this result must be reached by weighing the facts tending to show an injury, as well as those tending to show a special benefit”); 14 E. McQuillin, Municipal Corporations (3d Ed. 1987) § 38.33.10, p. 152 (“distance the property is situated from the improvement may be considered in measuring special benefits”).

Therefore, in order to overcome the presumption of validity of the benefit assessment, a property owner must introduce competent evidence that the assessment is greater than the increase in market value to the property caused by the improvement. See, e.g., Cyr v. Coventry, supra, 216 Conn. 442-43; Tower Business Park Associates No. 1 Ltd. Partnership v. Water Pollution Control Authority, supra, 213 Conn. 117; see also Katz v. West Hartford, supra, 191 Conn. 602-603. A determination of whether a benefit exists under § 7-249 and the amount of that benefit on appeal is a question of fact for the trial court, which we will not disturb unless it is clearly erroneous. Tower Business Park Associates No. 1 Ltd. Partnership v. Water Pollution Control Authority, supra, 120; Bridge Street Associates v. Water Pollution Control Authority, supra, 15 Conn. App. 147.

The assessment levied by North Branford was based on Shoreline’s ownership of property in sewerage district A and Shoreline’s access to that sewerage system. In order for Shoreline to have sustained its burden of proof that the benefit assessment was excessive, it was required to establish that the increase in market value to its property as a result of that access was less than the $148,755 benefit assessment. Indeed, for this court to sustain the trial court’s judgment of no benefit, Shoreline was required to establish that its property-had not appreciated at all. Shoreline, however, offered no evidence of this type. Instead, it merely presented evidence of the absence of cost to North Branford when Shoreline had built its sewerage system to connect directly to Branford. Such a showing was insufficient to rebut the presumption of validity that attaches to municipal benefit assessments. See Cyr v. Coventry, supra, 216 Conn. 443. We conclude, therefore, that the trial court improperly determined that Shoreline had carried its burden of proving the invalidity of the benefit assessment.

Moreover, Shoreline had agreed when it entered into the contract with North Branford in 1989 that its property was receiving a benefit. Paragraph eight of the contract states that “[Shoreline] acknowledge^] that the ‘special benefits’ accruing to the property by connection to the sanitary sewer system of the Town of North Branford is at the value of at least $1055 per unit . . . .” Shoreline argues in its brief that the reason for having such a clause is uncertain. Shoreline’s counsel suggested at oral argument that the only rational explanation was that the clause was inserted “in case this agreement with Branford was not finally realized.” It seems more likely, however, that the reference to North Branford, rather than Branford, was a mere scrivener’s error, and that both parties intended the clause as an acknowledgment by Shoreline that its property was presumptively benefitted by the availability of sewers in the amount of $1055 per unit, or $148,755 for 141 units. Indeed, the plain language of the agreement shows that it was predicated wholly on Shoreline’s direct connection to the Branford system. There is no basis to support Shoreline’s argument that the clause was inserted into the contract merely as an alternative that neither party contemplated in the agreement.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment for the defendants.

In this opinion the other justices concurred.

       General Statutes § 7-249 provides in relevant part: “assessment OF benefits. At any time after a municipality, by its water pollution control authority, has acquired or constructed, a sewerage system or portion thereof, the water pollution control authority may levy benefit assessments upon the lands and buildings in the municipality which, in its judgment, are especially benefitted thereby, whether they abut on such sewerage system or not, and upon the owners of such land and buildings, according to such rule as the water pollution control authority adopts, subject to the right of appeal as hereinafter provided. Benefits to buildings or structures constructed or expanded after the initial assessment may be assessed as if the new or expanded buildings or structures had existed at the time of the initial assessment. . . . The sum of initial and subsequent assessments shall not exceed the special benefit accruing to the property. . . . Revenue from the assessment of benefits shall be used solely for the acquisition or construction of the sewerage system providing such benefits or for the payment of principal of and interest on bonds or notes issued to finance such acquisition or construction. No assessment shall be made against any property in excess of the special benefit to accrue to such property. . . .”

       General Statutes § 7-250 provides in relevant part: “Any person aggrieved by any assessment may appeal to the superior court for the judicial district wherein the property is located and shall bring any such appeal to a return day of said court not less than twelve nor more than thirty days after service thereof and such appeal shall be privileged in respect to its assignment for trial. Said court may appoint a state referee to appraise the benefits to such property and to make a report of his doings to the court. The judgment of said court, either confirming or altering such assessment, shall be final. No such appeal shall stay proceedings for the collection of the particular assessment upon which the appeal is predicated but the appellant shall be reimbursed for any overpayments made if, as a result of such appeal, his assessment is reduced.”

       The North Branford Sewer Authority regulations define the number of “units” by the type and size of the property. One residential dwelling, for example, comprises one sewer unit.

       General Statutes § 7-247 authorizes a water pollution control authority to “enter upon and take and hold by purchase, condemnation or otherwise the whole or any part of any real property or interest therein which it determines is necessary or desirable for use in connection with any sewerage system.”

       Shoreline eventually was able to connect to the Branford system by placing its sewer lines in the public highway known as Route 1 and giving ownership of that line to Branford.

       The contract also provided in part as follows: “3. That [North Bran-ford] shall recover from said property a special connection fee of $1055.00 per unit subject to the right of [Shoreline] to appeal the assessment, as defined in the [North Branford regulations]; and ... 8. [Shoreline] acknowledge^] that the ‘special benefits’ accruing to the property by connection to the sanitary sewer system of . . . North Branford is at the value of at least $1055 per unit ... 9. [Shoreline] shall pay the amounts due under Paragraph 3 of this Agreement to [North Branford] in 10 annual payments, each consisting of $1055.00 per unit per year plus interest on the unpaid portion at the rate of 10.87% per annum. [Shoreline] Shall commence making payments to the Town for the ‘special benefits’ accruing to the property upon notice of assessment by the Town for each of said units subsequent to issuance of a Building Permit and a Sanitary Sewer Connection Permit for each dwelling unit . . . .”

       Shoreline alleged in two additional counts that: (a) to the extent the $148,755 charge was a “special connection fee,” it was invalid; and (b) to the extent that the charge was a connection fee allowed under General Statutes § 7-255, North Branford failed to follow the necessary procedural requirements of that section. Although the trial court purported to render judgment for Shoreline on all three counts, it limited its discussion in its memorandum of decision to the benefit assessment issue. Moreover, Shoreline acknowledged in its brief to this court that “it is clear that the town was making a sewer benefit assessment under § 7-249 of the General Statutes and was not proceeding to levy connection charges under § 7-255 of the General Statutes or seeking any other remedy.” Accordingly, we treat the case before us as involving only the levy of a benefit assessment under § 7-249.

       North Branford also challenged on appeal the trial court’s denial of the town’s motion to dismiss. The town had argued that the September, 1989 contract between the parties, and particularly paragraph three, provided that North Branford Sewer Authority regulations defined the sole appeal procedure for Shoreline in a dispute over the benefit assessment. Because the regulations did not provide for an appeal to the Superior Court, the town argued, the court lacked subject matter jurisdiction over the case.
      We conclude that the trial court’s finding that the phrase, “as defined in the North Branford Sewer Authority regulations” in paragraph three of the contract modifies the word “assessment” and not “appeal,” is not clearly erroneous. Accordingly, without deciding whether parties to a contract can oust a court of subject matter jurisdiction, we find there is no factual basis for North Branford’s claim.

       Although Katz was decided in the context of benefit assessments for the construction of public roads, that analysis is equally applicable to assessments levied under § 7-249. See Tower Business Park Associates No. 1 Ltd. Partnership v. Water Pollution Control Authority, supra, 213 Conn. 117.

       Nor is a property’s actual use of a sewer system determinative of the benefit it has received from the system. Indeed, as we noted in Tower Business Park Associates No. 1 Ltd. Partnership v. Water Pollution Control Authority, supra, 213 Conn. 119, “[m]any authorities have rejected current actual use as a determinative factor in the assessment of benefits, since it often is unrelated to market value and fails to reflect the increase in market value resulting from the installation of sewers.” In addition, counsel for both parties conceded during oral argument in this court that a person who decided to build a residential home in district A and chose to install a septic tank, rather than connect to the town sewerage system, would nevertheless be liable for a benefit assessment.

       Shoreline’s reliance on this court’s opinion in Windham Heights Associates v. Windham, 179 Conn. 229, 425 A.2d 1267 (1979), is misplaced. The assessment in Windham Heights Associates was invalidated for two reasons, neither of which supports Shoreline’s claim that if there is no out-of-pocket cost to the town a benefit cannot be assessed. Windham Heights Associates invalidated the assessment because the evidence demonstrated that the sewer did not enhance the value of the property and because the assessment was based solely on recouping the costs of the sewer lines.

       Although the trial court found that there was no evidence of how much effluent would be generated from Evergreen’s 141 units, it is clear that whatever the actual amount, it would reduce the 665,000 gallon daily limit that North Branford could discharge into the Branford system.

       For example, the contract recitals state that Shoreline’s sewers will be “discharging to Town of Branford sanitary sewers”; that the discharge “shall be directly to the Town of Branford”; and that the agreement was needed “to allow [Shoreline] to connect the sanitary sewers of the Development with the Town of North Branford into the Town of Branford sanitary sewer system.”


author: Katz, J.

text:
    Carpenteri-Waddington, Inc. v. Commissioner of Revenue Services
    (15007)
    Borden, Berdon, Norcott, Katz and Palmer, Js.

      Argued September 29
    decision released November 22, 1994

      Thomas J. Londregan, with whom, on the brief, was Marguerite C. Driscoll, for the appellant (plaintiff).

      PaulM. Scimonelli, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Katz, J.

The issue in this appeal is whether a restaurant that provides dancing privileges and that employs a disc jockey to play prerecorded music and entertain its patrons is a cabaret, as defined by General Statutes § 12-540, and is therefore liable for the cabaret tax imposed by General Statutes § 12-542. Because we conclude that an establishment that offers dancing privileges is a cabaret under General Statutes § 12-540 (4), we affirm the judgment of the trial court.

The record establishes the following undisputed facts. The plaintiff owned a bar and restaurant named the Graffiti Lounge that served alcoholic beverages and provided dancing privileges. The establishment employed a performer and discjockey, Edwin Brown, known as the “Duke of Doo-Wop” (Duke), who gave dancing lessons to the patrons and danced with them on the dance floor to the prerecorded music. Using prerecorded music and various props and costumes, he also mimicked musical performances and entertained the audience by lipsynching. When he was not engaged in these various forms of entertainment, the Duke played the prerecorded music while the patrons danced.

The defendant, the commissioner of revenue services, conducted a sales and use tax audit of the Graffiti Lounge for the period from January 1,1984, through August 31,1989, pursuant to General Statutes § 12-548.* As a result of the audit, the defendant imposed a deficiency assessment on the plaintiff for unpaid cabaret taxes. Following the defendant’s denial of reassessment and the imposition of liability, the plaintiff appealed to the Superior Court, pursuant to General Statutes § 12-554, claiming that the restaurant was not a “cabaret” under § 12-540 (4) and, therefore, was not subject to the cabaret tax.

At trial, the plaintiff characterized the Duke’s performance as “the music of a single performer alone.” Consequently, the plaintiff argued, the Graffiti Lounge fell within the statutory exclusion to the definition of a “cabaret or other similar place” under § 12-540 (4), and was, therefore, not subject to the cabaret tax under § 12-542. The trial court concluded, however, that the statute provided an exemption, not an exclusion, and that the plaintiff had not sustained its burden of proving that it was entitled to the exemption. Accordingly, the court upheld the defendant’s deficiency assessment. The plaintiff appealed from that decision to the Appellate Court, and this court transferred the appeal to itself pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

In this case, we must examine two statutes: §§ 12-540 (4) and 12-542. Section 12-542 imposes a tax on amounts charged for admissions, refreshment, service or merchandise at any cabaret or similar place that furnishes music, dancing privileges or any entertainment for profit during the time that such music, dancing privileges or any other entertainment is provided. It is undisputed that the plaintiff received money while the Duke performed, and that the Graffiti Lounge was in business for profit. Consequently, the plaintiff’s operation was taxable under § 12-542 if it was “a cabaret or similar place” as defined by § 12-540 (4).

The parties agree that the establishment afforded its patrons “music, dancing privileges or other entertainment.” They disagree, however, about how to interpret the phrase “except mechanical music alone or the music of a single performer alone” within the context of § 12-540 (4). The plaintiff argues that the exceptions modify the entire preceding phrase. Therefore, the plaintiff contends, if patrons dance to mechanical music or to a single performer, the establishment is not subject to the tax. Because these are exceptions to the taxable class, the plaintiff maintains the establishment is removed from the class before tax liability is ever imposed. We disagree.

We begin our analysis by noting that it is fundamental that statutory construction requires us to ascertain the intent of the legislature and to construe the statute in a manner that effectuates that intent. Lauer v. Zoning Commission, 220 Conn. 455, 459-60, 600 A.2d 310 (1991). In seeking to ascertain the legislature’s intent when it crafted chapter 225 of the General Statutes, the admissions, cabaret and dues tax statutes, we follow well established principles of statutory construction and “look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” Id., 460. No one invariable rule of statutory construction is controlling.

Section 12-542 provides authority to tax all establishments where music, dancing privileges or any other entertainment is furnished for profit, and § 12-540 (4) limits the application of the tax by providing an exclusion for “mechanical music alone or the music of a single performer alone.” “A court should accord a statutory enactment its plain meaning.” State v. Jimenez, 228 Conn. 335, 341, 636 A.2d 782 (1994); Kil-patrick v. Board of Education, 206 Conn. 25, 28, 535 A.2d 1311 (1988). Therefore, to accord § 12-540 (4) its plain meaning, we first focus on the word “alone.” Webster’s defines alone as “exclusive of anyone or anything else: only.” Webster’s Ninth New Collegiate Dictionary. We see no reason to torture the meaning of “alone.” The exclusion at issue pertains to situations where only mechanical music or only the music of a single performer is provided, without anything else. Therefore, if the music is mechanical or that of a single performer, the tax may still be imposed if the establishment in question affords dancing privileges or other entertainment. Moreover, had the legislature intended to exclude establishments that afford their patrons the opportunity to dance to mechanical music or the music of a single performer, it could easily have done so. The provision of dancing privileges remains an indisputable fact of taxable significance that cannot be ignored.

The history of § 12-540 (4) confirms that the legislature sought to exclude only those establishments where background music is incidental to dining. Following the 1969 enactment of the admission, cabaret and dues tax, the legislature created an exception to § 12-540 (4) that applied only to “mechanical music alone.” Public Acts 1971, No. 837, § 1. Even as amended, § 12-542 provoked a public protest, and associations representing restaurants and musicians petitioned the legislature to change the law because the tax created a significant rise in unemployment among entertainers who performed alone. Conn. Joint Standing Committee Hearings, Finance, 1971-1972 Sess., pp. 16-18, 43-44, 50-52. In response, the legislature added another exception to § 12-540 (4) in 1972: “the music of a single instrumental performer alone.” Public Acts 1972, No. 88, § 1. This was proposed specifically to address the problem that “over 140 or [1]50 musicians . . . had lost their jobs as a result of a Cabaret Tax being applied to places where they were furnishing background music.” 15 H.R. Proc., Pt. 4, 1972 Sess., p. 1448, remarks of Representative Darius J. Spain. The exception was intended to encourage restaurants to hire musicians who provide background music and was narrowly defined so that the state would suffer a minimal loss of revenue. Id. Following the 1972 amendment, however, the department of revenue services ruled that the performance of a vocalist created a cabaret status. Conn. Joint Standing Committee Hearings, Finance, Pt. 3,1977 Sess., p. 875. Thereafter, the statute was again amended to exclude “music of a single performer alone” in order to permit an establishment employing a musician who sings to his or her own musical accompaniment to avoid the tax. Public Acts 1977, No. 77-434, § 1; Conn. Joint Standing Committee Hearings, Finance, Pt. 3, 1977 Sess., pp. 855-56, 874. This statutory history reflects the legislature’s intent to provide a limited exception to establishments that hire single musicians to entertain their diners. Nowhere is there any indication, however, that the legislature intended to exclude from the definition of “cabaret” places affording dancing privileges to its patrons.

Our interpretation of § 12-540 (4) is consistent with the federal government’s application of its tax on cabarets. This is significant because the elimination of the federal cabaret tax prompted the enactment of our cabaret tax in order to capture some of the revenue freed up by that elimination.

From 1917 until 1965, the Internal Revenue Service imposed a federal admissions tax on performances and entertainment that exempted establishments providing “mechanical music alone.” 26 U.S.C. § 4231 (6) (repealed 1965). When, as in this instance, the language used in the federal tax statutes is nearly identical to that before us, we may look to federal law to guide our interpretation of the state statute. Commissioner of Revenue Services v. Peska, 220 Conn. 77, 83, 595 A.2d 348 (1991). We find the evolution of the federal law to be instructive.

The federal admissions tax, enacted during World War I as part of the War Revenue Act, c. 63, 40 Stat. 300, 318 (1917), imposed a tax on amounts paid “for admission to any public performance for profit at any cabaret or other similar entertainment to which the charge for admission is wholly or in part included in the price paid for refreshment, service or merchandise.” The statute, however, contained no definition of either “cabaret” or other “similar entertainment.” Soon after the implementation of that act, therefore, the Department of the Treasury issued an administrative definition of the statutory terms, determining that “ ‘[cjabaret or other similar entertainment’ includes every hotel, restaurant, hall, or other public place at or in which, in connection with the service or sale of food or other refreshment or merchandise, there is conducted any vaudeville or other performance or diversion in the way of acting, singing, declamation or dancing, either with or without instrumental or other music. Every form of entertainment so conducted is included, except that furnished by orchestras performing instrumental music only, unaccompanied by any other form of entertainment. A hotel, restaurant, or hall affording, in connection with the service of refreshment, food or merchandise, entertainment in the form of dancing by its patrons is included.” T.D. 2603, 19 Treas. Dec. Int. Rev. 370, 371 (1917). A distinction was made between “dancing, either with or without instrumental or other music,” which subjected an establishment to tax, and “instrumental music only unaccompanied by any other form of entertainment,” which created no tax liability. This definition, with minor changes, was soon thereafter incorporated in a formal regulation. Treas. Reg. 43, set forth in T.D. 2681, 20 Treas. Dec. Int. Rev. 93, 98 (1918).

Although the regulations were modified and expanded over the next twenty-three years, the Department of the Treasury consistently took the position that the admissions tax applied to a wide variety of establishments offering dancing privileges. See Geer v. Birmingham, 88 F. Sup. 189, 198-210 (N.D. Iowa), rev’d, 185 F.2d 82 (8th Cir. 1950), cert. denied, 340 U.S. 951, 71 S. Ct. 571, 95 L. Ed. 686 (1951). In 1942, Congress amended the admissions tax statute to provide, for the first time, a statutory definition of the term “cabaret or similar place.” Revenue Act of 1942, c. 619, 56 Stat. 798, 981 (1942). This amendment provided that “[a]ll amounts paid for admission, refreshment, service or merchandise, at any roof garden, cabaret, or other similar place furnishing a public performance for profit ...” were subject to a tax. “[Rjoof garden, cabaret, or other similar place” was defined to include “any room in any hotel, restaurant, hall, or other public place where music and dancing privileges or any other entertainment, except instrumental or mechanical music alone, are afforded the patrons in connection with the serving or selling of food, refreshment, or merchandise.” Id. According to the Senate and House of Representatives reports accompanying the Revenue Act of 1942, the amendment confirmed the interpretation of the statute by the Department of the Treasury. H.R. Rep. No. 2586, 77th Cong., 2d Sess. 79 (1942); S. Rep. No. 1631, 77th Cong., 2d Sess. 268 (1942). Following the enactment of this clear statutory exception for “instrumental or mechanical music alone,” the Department of the Treasury amended its regulations to provide that “[wjhere music, whether by an orchestra, a mechanical device, or otherwise, and a space in which the patrons may dance is furnished in the dining room of a hotel, or in a restaurant, bar, etc., the entertainment constitutes a public performance for profit at a roof garden, cabaret or similar place, and the payments made for admission, refreshment, service, and merchandise are subject to the tax.” T.D. 5192, 1942-2 C.B. 49.

As a result, the federal courts have decided numerous cases involving establishments that allow their patrons to dance to instrumental or mechanical music and have consistently held that the provision of “dancing privileges” was sufficient to incur tax liability. See Billen v. United States, 273 F.2d 667 (10th Cir. 1960); Godwin v. Brown, 249 F.2d 356 (8th Cir. 1957); Crapps v. Duehay, 208 F. Sup. 344 (E.D.S.C. 1962); Jones v. Fox, 162 F. Sup. 449 (D. Md. 1957); In re Duffin, 141 F. Sup. 869 (S.D. Cal. 1956). As the court stated in United States v. Ritchie, 327 F.2d 732, 736 (5th Cir. 1964), “the [Revenue Act of 1942] expressly excludes places where mechanical music alone is furnished, but when a place for dancing is added, mechanical music alone is no longer furnished and this exclusion is no longer effective to bring an establishment out of the coverage of the statute.” We concur with this reasoning and we adopt it.

Because the Graffiti Lounge provided dancing privileges, the exception set forth in § 12-540 (4) does not preclude taxation and we conclude that the trial court correctly found that the defendant properly imposed the cabaret tax.

The judgment of the trial court is affirmed.

In this opinion the other justices concurred.

       General Statutes 12-540 provides: “definitions. Whenever used in this chapter:
      “(1) ‘Person’ means and includes any individual, firm, copartnership, joint venture, association of persons however formed, social club, fraternal organization, corporation, estate, trust, fiduciary, receiver, trustee, syndicate, the United States, this state or any political subdivision thereof or any group or combination acting as a unit, and any other individual or officer acting under the authority of any court in this state;
      “(2) ‘Taxpayer’ means any person as defined in subsection (1) of this section who is subject to any tax imposed by this chapter;
      “(3) ‘Admission charge’ means the amount paid for the right or privilege to have access to a place or location where amusement, entertainment or recreation is provided, exclusive of any charges for instruction. Places of amusement, entertainment or recreation include, but are not limited to, theaters, motion picture shows, auditoriums where lectures and concerts are given, amusement parks, fairgrounds, race tracks, dance halls, ball parks, golf courses, miniature golf courses, tennis courts, skating rinks, swimming pools, bathing beaches, gymnasiums, auto shows, boat shows, camping shows, home shows, dog shows and antique shows;
      “(4) ‘Cabaret or other similar place’ means any room in any hotel, restaurant, hall or other public place where music, dancing privileges or any other entertainment, except mechanical music alone or the music of a single performer alone, are afforded the patrons in connection with the serving or selling of alcoholic beverages even though the charge made for admission, refreshment, service or merchandise is not increased by reason of the furnishing of such entertainment;
      “(5) ‘Dues’ shall include assessment charges to members irrespective of the purpose for which made and any charges for social, athletic or sporting privileges or facilities for any period of more than six days but not including charges made for instruction or charges for special assessments made (A) for the construction or reconstruction of any social, athletic or sporting facility or (B) for the construction or reconstruction of any capital addition to any such facility or (C) furnishings or fixtures, including installation charges, for any such facility, to the extent that such furnishings or fixtures are required, by reason of the construction or reconstruction described in subdivision (A) or (B) of this subsection, for the use of such facility upon completion of such construction or reconstruction; except that, in the case of any such amount which is not expended for such construction, reconstruction, furnishings or fixtures, including installation charges, within three years after the date of payment of such amount, the exemption provided by this subsection shall cease to apply upon the expiration of such three-year period, and the club shall be liable for any tax imposed by section 12-543 in respect of such payment, as if such payment had been made on the first day following the expiration of such three-year period;
      “(6) ‘Initiation fees’ shall include any payment, contribution or loan required as a condition precedent to membership whether or not any such payment, contribution or loan is evidenced by a certificate of interest or indebtedness or share of stock;
      “(7) ‘Operating under a lodge system’ means carrying on activities under a form of organization that comprises local branches, chartered by a parent organization and largely self-governing, called ‘lodges,’ ‘chapters’ or any similar title;
      “(8) ‘Club’ means any organization which is either owned or operated by its members, or both.”

       General Statutes 12-542 provides: “cabaret tax. nature of tax. A tax is hereby imposed equivalent to five per cent of all amounts charged for admissions, refreshment, i.e., food and drink, service or merchandise at any cabaret or similar place furnishing music, dancing privileges or any other entertainment for profit during the time or times that such music, dancing privileges or any other entertainment is furnished. In such cases cabaret status begins at the earlier of (1) the time the music and dancing or other entertainment starts; or (2) the time any admission, cover, minimum, entertainment or similar charge is imposed. If any portion of an establishment is subject to the cabaret tax, the tax also applies to any other portion from which the entertainment can be viewed, or from which there is free access to the entertainment or dancing area. The tax imposed by this section is imposed upon the person making the charge for admission, refreshment, service or merchandise. Reimbursement for this tax shall be collected by such person from the purchaser. Such reimbursement termed ‘tax’ shall be paid by the purchaser to the person charging such amounts. Such tax when added to the amounts charged shall be a debt from the purchaser to the person making the charges and shall be recoverable at law.”

       General Statutes 12-548 provides: “examination op records, deficiency ASSESSMENT. PENALTY. LIMITATION OF ASSESSMENT PERIOD, (a) The commissioner may examine the records of any person subject to a tax imposed under the provisions of this chapter as he may deem necessary. If he shall determine therefrom that there is a deficiency with respect to the payment of any such tax due under the provisions of this chapter, he shall assess or reassess the deficiency in tax, give notice of such deficiency assessment or reassessment to the taxpayer and make demand upon him for payment. Such amount shall bear interest at the rate of one and one-fourth per cent per month or fraction thereof from the date when the original tax was due and payable. When it appears that any part of the deficiency for which a deficiency assessment is made is due to negligence or intentional disregard of the provisions of this chapter or regulations promulgated thereunder, there shall be imposed a penalty equal to ten per cent of the amount of such deficiency assessment, or fifty dollars, whichever is greater. When it appears that any part of the deficiency for which a deficiency assessment is made is due to fraud or intent to evade the provisions of this chapter or regulations promulgated thereunder, there shall be imposed a penalty equal to twenty-five per cent of the amount of such deficiency assessment. No taxpayer shall be subject to more than one penalty under this subsection in relation to the same tax period. Any decision rendered by any federal court holding that a taxpayer has filed a fraudulent return with the Director of Internal Revenue shall subject the taxpayer to the penalty imposed by this section without the necessity of further proof thereof, except when it can be shown that the return to the state so differed from the return to the federal government as to afford a reasonable presumption that the attempt to defraud did not extend to the return filed with the state. Within thirty days of the mailing of such notice, the taxpayer shall pay to the commissioner, in cash, or by check, draft or money order drawn to the order of the commissioner of revenue services, any additional amount of tax, penalty and interest shown to be due.
      “(b) Except in the case of a wilfully false or fraudulent return with intent to evade the tax, no assessment of additional tax shall be made after the expiration of more than three years from the date of the filing of a return or from the original due date of a return, whichever is later. If no return has been filed as provided under the provisions of this chapter, the commissioner may make such return at any time thereafter, according to the best information obtainable and according to the form prescribed. To the tax imposed upon the basis of such return, there shall be added an amount equal to ten per cent of such tax, or fifty dollars, whichever is greater. Such sum shall bear interest at the rate of one and one-fourth per cent per month or fraction thereof from the due date of such tax to the date of payment. No person shall be subject to a penalty under both this subsection and section 12-547. Where, before the expiration of the period prescribed herein for the assessment of an additional tax, a taxpayer has consented in writing that such period may be extended, the amount of such additional tax due may be determined at any time within such extended period. The period so extended may be further extended by subsequent consents in writing before the expiration of the extended period.”

       The plaintiff did not furnish records delimiting the periods of cabaret status because it did not believe it was operating a cabaret. The defendant therefore used the total gross receipts as reported by the plaintiff for the sales and use tax as the basis for the assessment. Although the plaintiff protested the assessment because it claimed it was exempt, it did not challenge the methodology used or the defendant’s specific computation.

       General Statutes § 12-554 provides in relevant part: “appeal. Any taxpayer aggrieved because of any order, decision, determination or disallowance of the commissioner of revenue services under the provisions of this chapter may, within one month after service upon the taxpayer of notice of such order, decision, determination or disallowance, take an appeal therefrom to the superior court for the judicial district of Hartford-New Britain, which shall be accompanied by a citation to the commissioner of revenue services to appear before said court.”

       In its initial complaint, the plaintiff claimed that the Graffiti Lounge was exempt from § 12-542. In its posttrial brief, however, the plaintiff argued that it fell outside the scope of the taxing statute and asked the court to construe § 12-542 strictly against the state. Whether a particular statute is a tax imposition statute or a tax exemption statute often determines whether a taxpayer is entitled to a construction in his or her favor or whether the statute must be construed in favor of the state. Altray Co. v. Groppo, 224 Conn. 426, 432, 619 A.2d 443 (1993). The principles of statutory construction that govern the applicability of a tax exemption are well established. “First, statutes that provide exemption from taxation are a matter of legislative grace that must be strictly construed against that taxpayer. Second, any ambiguity in the statutory formulation of an exemption must be resolved against the taxpayer. Third, the taxpayer must bear the burden of proving the error in an adverse assessment concerning an exemption.” Plastic Tooling Aids Laboratory, Inc. v. Commissioner of Rev

        enue Services, 213 Conn. 365, 369, 567 A.2d 1218 (1990). Otherwise, a taxing statute is construed against the state and in favor of the taxpayer. Morton Buildings, Inc. v. Bannon, 222 Conn. 49, 54, 607 A.2d 424 (1992).
      Our decision in this case, however, does not turn on the distinction between a statutory exception or exemption. We conclude that because it provided dancing privileges, the Graffiti Lounge is a cabaret. Therefore, even if § 12-542 imposes a tax on cabarets, as defined by § 12-540 (4), and the state thus had the burden of proving that the Graffiti Lounge was a cabaret, the state met its burden by virtue of the undisputed fact that dancing privileges were provided.

       Because we decide this case on the basis of dancing privileges, we need not determine whether the Duke was a “single performer alone” within the meaning of § 12-540 (4).


author: Per Curiam.

text:
    Samuel Packtor v. Seppala and AHO Construction Company, Inc., et al.
    (14914)
    Peters, C. J., and Borden, Katz, Palmer and F. X. Hennessy, Js.
    Argued October 25
    decision released November 22, 1994

      David A. Leff, for the appellant (plaintiff).

      Lawrence A. Ouellette, Jr., with whom, on the brief, was Rene G. Martineau, for the appellee (defendant J.M.H. Associates).
   Per Curiam.

The dispositive issue in this certified appeal is whether an employee who was injured in the course of ascending an interior stairway in the normal course of his employment may pursue a statutory cause of action under General Statutes §§ 29-389 and 29-391 against the owner of the building where he was employed. Both the trial court and the Appellate Court concluded that, in the circumstances of this case, the plaintiff, Samuel Packtor, had not stated a claim for relief against the defendant J.M.H. Associates, the owner of the building in which the plaintiff was injured. Packtor v. Seppala & AHO Construction Co., 33 Conn. App. 422, 427-28, 636 A.2d 383 (1994). We granted the plaintiffs petition for certification to review the merits of this conclusion.

After reviewing the briefs, the record and the arguments of counsel, we are persuaded that the availability of a statutory cause of action under §§ 29-389 and 29-391 depends upon a factual predicate that the plaintiff has not established. For a building that lacks emergency stairways such as external fire escapes, the statutes provide a cause of action for egress from a building “in case of fire or other emergency.” Whatever the reach of these statutory claims may be, they do not encompass the case of a person like the plaintiff who was injured while climbing up to a second floor interior workspace. This dispositive issue was fully considered in the opinion of the Appellate Court; id.; and it would serve no useful purpose for us to repeat the discussion contained therein. See Fleet Bank of Connecticut v. Dowling, 225 Conn. 447, 449, 623 A.2d 1005 (1993).

Because the factual circumstances of this case do not furnish us a full and reasoned opportunity to consider the underlying issue of the scope of §§ 29-389 and 29-391, we conclude that the plaintiffs appeal should be dismissed on the ground that certification was improvidently granted. See L. & L. Builders, Inc. v. Parmelee, 221 Conn. 203, 206, 602 A.2d 1016 (1992); Shaham v. Capparelli, 219 Conn. 133, 135, 591 A.2d 1269 (1991); Lawler v. Lawler, 212 Conn. 117, 119, 561 A.2d 128 (1989).

The appeal is dismissed.

       General Statutes § 29-389 provides in relevant part: “stairways and fire escapes on certain buildings. Each story of a building used . . . as a store in which more than six persons are employed . . . shall be provided with not less than two remote means of egress. Each story above the first story of each such building shall be provided with not less than two remote means of egress by stairways on the inside or fire escapes on the outside of such building. Such stairways and fire escapes and passageways providing access thereto shall be constructed, designed, maintained and located in accordance with regulations issued under the provisions of section 29-292, which regulations shall provide for free and unobstructed
        egress from all parts of such building when the building is occupied and shall avoid undue danger to the lives and safety of its occupants from fire, smoke, fumes or resulting panic during the period of time reasonably necessary for escape from such building in case of fire or other emergency. No locks or other fastenings to prevent free escape from the inside of such building shall be installed except in mental, correctional or corrective institutions where supervisory personnel is continually on duty and effective provisions are made to remove occupants in case of fire or other emergency. A ladder affixed to any of the premises herein described shall not be considered a fire escape within the meaning of this section. This section shall not apply to any building used for residence or business which conforms to the stairway, fire escape and egress requirements of the state building code and state fire safety code.”
      General Statutes § 29-391 provides in relevant part: “liability of owner of building. In any ease in which any person suffers injury or in which the death of any person ensues in consequence of the failure of the owner of any building to provide the same with fire escapes or stairways as required by the provisions of sections 29-389 . . . such owner shall be liable to any person so injured for damages for such injury .... It shall be no defense to any action for the recovery of such damages that the person injured or whose death ensued as aforesaid had knowledge that such building was not provided with fire escapes or stairways as required by said sections or that such person continued to work in or to occupy such building with such knowledge. The owner of any building or, if such owner is non compos mentis or a minor, the guardian of such owner or, if such owner is a nonresident, the agent of such owner having charge of such property who fails to comply with the provisions of sections 29-389 and 29-390 shall be fined not less than one hundred dollars nor more than five hundred dollars or imprisoned not more than three months or be both fined and imprisoned.”

       We granted the plaintiff’s petition for certification to appeal, limited to the following issue: “In the circumstances of this case, did the plaintiff state a cause of action under General Statutes §§ 29-389 and 29-391 even though he was not injured while attempting to escape a building during a fire or other similar emergency?” Packtor v. Seppala & AHO Construction Co., 229 Conn. 901, 640 A.2d 117 (1994).