McNamara v. State, Department of Public Health

John S. MCNAMARA v. State of Connecticut DEPARTMENT OF PUBLIC HEALTH et al.

No. HHBCV165018049S

Superior Court of Connecticut, Judicial District of New Britain, New Britain

October 7, 2019

UNPUBLISHED OPINION

OPINION

Sheila A. Huddleston, Judge

In this administrative appeal, the plaintiff, John S. McNamara challenges the decision of the defendant Department of Public Health (department), which upheld an order by the defendant City of Middletown Health Department (city) to remove and dispose of certain vehicles, watercraft, air conditioners rubbish, cut brush, dead weeds, dilapidated temporary storage units and various other items located on his property at 74 Country Club Road, Middletown, Connecticut (the property). The plaintiff’s principal claim on appeal is that the city’s sanitarian entered onto the property without a warrant and without his permission in violation of his right to be free from an unreasonable search under the Fourth Amendment, as applied to municipal property inspections under Bozrah v Chmurynski, 303 Conn. 676, 36 A.3d 210 (2012). He also claims that the city failed to appreciate the value of some of the items it ordered him to remove. Finally, he claims that he was denied due process because the department did not adjudicate his constitutional issue. The defendants argue that there was no Fourth Amendment violation because the conditions of the property were visible from the public road that even if a Fourth Amendment violation occurred, the department properly considered the evidence of the conditions on the property because the exclusionary rule does not apply in civil proceedings; substantial evidence in the record supported the department’s findings; and the plaintiff has not established a due process violation. The department also argues that the court may decline to review the plaintiff’s constitutional claims because they are inadequately briefed. For the reasons stated herein, the court concludes that the department’s decision is based on substantial evidence in the record and that the plaintiff has not shown that his substantial rights were prejudiced by the department’s consideration of the city’s evidence. Accordingly, the appeal is dismissed.

I

The department found the following material facts: The plaintiff has owned the property since 1991. In 2007, he requested and obtained permission from the city to install several storage tents in the back yard of the property. On February 18, 2014, Manfred Rehm, a city public health sanitarian, received a complaint regarding the plaintiff’s property from the city’s chief sanitarian. The complaint concerned collapsed temporary structures in the property’s rear yard and debris scattered around the property’s yard.^[1]

On February 18, 2014, Rehm viewed online aerial photographs of the property and performed an on-site inspection of the property. Both the aerial photographs and the inspection revealed junk cars, unkempt grass, destroyed storage tents, and increasing amounts of stored materials in the plaintiff’s back yard. On February 19, 2014, the city issued an order to the plaintiff regarding the junk cars and unkempt grass at the property.

Between February 19, 2014, and April 30, 2015, Rehm continued to inspect the property to determine whether the plaintiff had complied with the order. The plaintiff was present during about two-thirds of Rehm’s inspections. On April 30, 2015, from the public road in front of the property, Rehm could see a row of destroyed tents, rubbish, and refuse in violation of the public health code. On that date, the property contained a large accumulation of stored materials, including automobiles that were entirely filled with items, plastic containers, tarps, scrap plywood and lumber, brush, dead weeds, dilapidated tents, furniture, small gas and electric equipment, appliances, electronic equipment, and various other items, many of which could provide rodent harborage and all of which were a nuisance.

As to the vehicles on the property, five automobiles were inoperable, at least four were unregistered, and many were used as storage containers. There was also a snowmobile that appeared to be inoperable and had vegetation in close proximity. There were also five boats and two personal watercraft. Some of these were used as storage for items and could harbor rodents.

In addition to the vehicles and boats, at least thirty-five cubic yards of rubbish, lumber, cut brush and dead weeds were located on the property. Eleven old air conditioners containing Freon were located under a tarp on the property. The air conditioners were subsequently removed from the property. As of April 30, 2015, containers that were likely to contain stagnant water and afford mosquito breeding were on the property. On May 21, 2015, the city reissued the February 19, 2014 order, with which the plaintiff had not fully complied, to allow the plaintiff to appeal to the department. The plaintiff submitted a timely appeal to the department pursuant to General Statutes § 19a-229.^[2]

The commissioner of public health designated Shawn L. Rutchick as the hearing officer and set August 25, 2017, as the hearing date. At the hearing held on that date, both parties were afforded the opportunity to present witnesses, conduct cross examination, and provide argument. The plaintiff appeared, testified, and called Gail DeCorso^[3] as a witness. The city called Rehm as a witness. At the end of the hearing, the hearing officer closed the record, except that each party was allowed to submit additional photos with an authenticity statement and written briefs. The parties subsequently submitted the supplemental exhibits and briefs. The hearing officer reopened the record on January 7, 2016, and ordered the city to provide certified copies of the City of Middletown Code of Ordinances (MCO) sections cited in the order, as such sections were in effect on May 21, 2015. The department received the certified copies of the ordinances on January 19, 2016. On April 15, 2016, the hearing officer issued a proposed memorandum of decision, which recommended upholding the city’s order with certain modifications. On April 28, 2016, the plaintiff filed a request to submit a brief and schedule oral argument. On May 9, 2016, the commissioner of public health designated Joanne V. Yandow as the hearing officer to consider briefs and exceptions, hear oral argument, and issue a final decision. Both parties thereafter submitted briefs, and oral argument was heard on June 16, 2016, and the department’s final decision was issued on September 13, 2016. In that decision, the department determined that the city had sustained its burden of proving that the alleged violations existed and concluded that the abatement order, with certain modifications, was properly issued. The plaintiff moved for reconsideration, which was denied. This appeal followed.

II

The plaintiff appeals pursuant to General Statutes § 4-183.^[4] Judicial review of the commissioner’s action is governed by the Uniform Administrative Procedure Act (UAPA), General Statutes § § 4-166 through 4-189, and the scope of that review is very restricted. "[R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable." (Citation omitted; internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000). "Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred." (Internal quotation marks omitted.) Schallenkamp v. DelPonte, 229 Conn. 31 40, 639 A.2d 1018 (1994). "The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency ... and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action." (Internal quotation marks omitted.) Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Protection, 253 Conn. 661, 676, 757 A.2d 1 (2000), cert. denied, 531 U.S. 1148, 121 S.Ct. 1089, 148 L.Ed.2d 963 (2001). "In determining whether an administrative finding is supported by substantial evidence, the reviewing court must defer to the agency’s assessment of the credibility of witnesses ... The reviewing court must take into account contradictory evidence in the record ... but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence ..." (Internal quotation marks omitted.) Frank v. Dept. of Children & Families, 312 Conn. 393, 411-12, 94 A.3d 588 (2014). "Neither this court nor the [Appellate Court] may retry the case or substitute its own judgment for that of the [hearing officer with respect to] the weight of the evidence or questions of fact ... Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Do v. Commissioner of Motor Vehicles, 330 Conn. 651, 668, 200 A.3d 681 (2019).

Section 4-183(j) requires affirmance of an agency’s decision unless the court finds that substantial rights of the person appealing have been prejudiced by a claimed error. "The complaining party has the burden of demonstrating that its substantial rights were prejudiced by the error." (Internal quotation marks omitted.) Miller v. Dept. of Agriculture, 168 Conn.App. 255, 266, 145 A.3d 393, cert denied, ...