Opinion
HHBCV186043756S
01-15-2020
City Line Sales and Service, Inc. v. Commissioner of the Department of Motor Vehicles
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Huddleston, Sheila A., J.
MEMORANDUM OF DECISION
Sheila A. Huddleston, Judge
This administrative appeal concerns the validity of certain fees paid by Amica Mutual Insurance Company (Amica) to obtain possession of a vehicle belonging to its insured that had been towed to the premises of the plaintiff, City Line Sales and Service, Inc. (City Line), a used car dealer and repairer, after a motor vehicle accident. Federal law preempts state regulation of consensual tows, but it allows states to regulate nonconsensual tows, including tows ordered by police to remove a damaged vehicle from an accident scene. Connecticut has exercised its authority to regulate nonconsensual tows through General Statutes § 14-66 and regulations promulgated by the Department of Motor Vehicles (department).
In this case, the department received a complaint from Amica about certain fees charged by City Line in relation to a nonconsensual tow. The department conducted an investigation and then commenced an administrative proceeding against City Line, alleging that it had violated § 14-66 and department regulations by charging impermissible fees. After an evidentiary hearing held over three days, the department’s hearing officer found City Line in violation and ordered it to pay restitution to Amica and a civil penalty to the department. City Line brought this appeal, naming the department’s commissioner as defendant, to challenge the department’s findings.
One finding was inconsistent with the rest of the decision. After oral argument and supplemental briefing, the court remanded the case to the hearing officer for clarification. Upon remand, after indicating that the original finding contained a scrivener’s error, the hearing officer issued a corrected finding. In light of the corrected finding, the court concludes that the department’s findings are supported by substantial evidence; that the department did not err in rejecting City Line’s claim that the statute and regulations had been waived; that the department’s hearing officer did not unduly limit City Line’s ability to cross examine witnesses or otherwise demonstrate bias; and that the hearing officer did not improperly decline to draw an adverse inference based on the department’s failure to call certain witnesses.
I
THE DEPARTMENT’S FINDINGS AND CONCLUSIONS
The department’s final decision was issued on February 8, 2018, and the plaintiff filed a timely appeal on March 8, 2018. In the final decision, before its correction upon remand, the hearing officer made the following findings of fact:
1. City Line Sales and Service, Inc. (Licensee) is a used car dealer/repairer licensed by the Department of Motor Vehicles, license number U-4929.
2. The Licensee maintains a dealer bond in the principal sum of $50,000 through Western Surety Company, bond number 41934519. This bond is required by Section 14-52(b)(1) of the Connecticut General Statutes (CGS) and is subject to the provisions of Section 14-64(1) of the CGS.
3. On or about July 27, 2016, a business entity known as Copart Recovery performed a non-consensual tow of a 2003 Dodge Durango to the business premises of the Licensee at 31 Sage Avenue, Bridgeport, CT.
4. Amica Mutual Insurance Company of 43 Western Boulevard, Glastonbury, Connecticut (Complainant) insured the 2003 Dodge Durango automobile which had been placed in the custody of the Licensee.
5. On or about August 2, 2016, the Complainant sent an appraiser to the Licensee’s business premises to inspect the subject vehicle.
6. On or about August 2, 2016, the Licensee charged the amount of $93.59 (tax included) characterized as an appraiser’s "escort fee."
7. On or about August 5, 2016, the Complainant dispatched Copart Recovery to retrieve the subject vehicle from the Licensee’s business premises. Copart Recovery subcontracted the vehicle retrieval to Anthony’s High Tech of Milford, Connecticut.
8. On or about August 5, 2016, the Licensee charged a fee in the amount of $93.59 (tax included) to move the subject vehicle from the storage yard location for retrieval by Anthony’s High Tech, subcontractor for the salvage vendor, Copart Recovery. This fee is commonly known as a "gate fee."
9. At the time of the retrieval of the vehicle and assessment of the "gate fee" by Licensee, the agent of Copart Recovery was required to sign a document entitled "Consensual Tow Form."
10. The Complainant was required to reimburse Copart Recovery $93.59 for the appraiser’s "escort fee" and $93.59 for the "gate fee" for a total of $187.18.
11. The Complainant testified that it does not issue checks to the Licensee because the Licensee requires cash. In this instance, James Costello of Copart Recovery testified that the cash was made available to the subcontractor, Anthony’s High Tech which removed the subject vehicle from the Licensee’s premises.
12. At the within hearing, it was argued by the Licensee that there was no proof of payment by Anthony’s High Tech to the Licensee in exchange for the subject vehicle but the vehicle was released to the said subcontractor.
13. Licensee’s Exhibit 2 is an acknowledgment by the vehicle retriever, Anthony’s High Tech., that a fee was paid to Licensee as a pull-out or "gate fee."
14. The Licensee charged the pull-out or "gate fee" in exchange for expedited service to the vehicle retriever, Anthony’s High Tech.
15. Section 14-66(a)(3) provides that "no ... person, firm or corporation shall charge more than the rates and charges published by the Commissioner."
16. Reference is also made to Sections 14-63-36b(2)(G), 14-63-36c(a) and 14-63-36c(e) of the Regulations of Connecticut State agencies regarding rates and charges.
17. Neither the statute nor regulation permit a waiver of impermissible fees such as pull-out or "gate fees" and escort fees.
18. In addition to the relevant statutes and regulations, the following cases were proffered, reviewed and deemed relevant in this matter: Connecticut Motor Cars v. Commissioner of Motor Vehicles, 300 Conn. 617, 15 A.3d 1063 (2011); Towing & Recovery Professionals of Connecticut, Inc. v. Commissioner of DMV, Super.Ct., judicial district of New Britain, Docket No. CV 106005122S (2011).
The sum of $93.59 included an $88.00 escort fee and state tax of $5.59.
The sum of $93.59 included an $88.00 gate or "pull out" fee and state tax of $5.59.
Based on the findings quoted above, the hearing officer concluded that City Line had violated § § 14-63-36b(2)(G) and 14-36-63c(a) and (e) of the department’s regulations by charging an impermissible gate fee in the amount of $93.59 to Amica to move the subject vehicle for retrieval by Copart Recovery. The hearing officer further concluded that City Line had violated General Statutes § 14-66(a) and § 14-63-36c(a) of the department’s regulations by charging an escort fee in the amount of $93.59 to Amica for its appraiser to enter the yard to inspect the subject vehicle. The department ordered City Line to pay $187.18 in restitution to Amica and a civil penalty in the amount of $1,000 to the department within thirty days of the date of the decision. The department further ordered that failure to pay the civil penalty to the department within the specified time would result in the department’s immediate suspension of City Line’s license until it complied with the order.
City Line appealed. It argued, first, that the finding that "Copart Recovery" performed the nonconsensual tow of the subject vehicle to City Line’s premises meant that any subsequent tow by City Line was consensual and therefore not subject to regulation by the department. The department apparently misperceived the nature of City Line’s claim and did not address the issue as to whether City Line or Copart had performed the initial nonconsensual tow. The court permitted supplemental briefing to allow the department to address this issue and to allow City Line to respond. In the department’s supplemental brief, it argued that the finding that Copart had performed the initial tow was a scrivener’s error. City Line responded, in a supplemental brief, that the department had not elicited clear testimony about the initial nonconsensual tow and the finding in the final decision represented the hearing officer’s interpretation of the evidence that was presented.
In light of the threshold importance of the finding at issue, the court remanded the case to the department for clarification as to the basis for imposing liability on City Line in light of the finding that Copart Recovery had performed the initial nonconsensual tow. On October 17, 2019, the department’s hearing officer issued a clarification which stated that the finding of fact regarding Copart Recovery was a scrivener’s error and should be corrected to provide as follows: "On or about July 27, 2016, City Line Sales and Service, Inc., the Licensee, performed a nonconsensual tow of a 2003 Dodge Durango automobile to the business premises of the Licensee at 31 Sage Avenue, Bridgeport, CT." The hearing officer vacated the original finding and substituted the finding that City Line had performed the initial nonconsensual tow. The hearing officer further stated that the conclusion of law, that City Line violated General Statutes § 14-66(a) and § § 14-63-36(b)(2)(G), 14-63-36c(a) and 14-63-36c(e), remained unchanged.
II
SCOPE OF REVIEW
City Line appeals pursuant to General Statutes § 4-183. "[J]udicial review of the commissioner’s action is governed by the Uniform Administrative Procedure Act ... 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, 41112, 94 A.3d 588 (2014).
General Statutes § 4-183(j) sets out the statutory scope of review for administrative appeals. It provides: "The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment."
Our Supreme Court has repeatedly stated that "administrative tribunals are not strictly bound by the rules of evidence and ... may consider exhibits [that] would normally be incompetent in a judicial proceeding, [as] long as the evidence is reliable and probative." Lawrence v. Kozlowski, 171 Conn. 705, 710, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2930, 53 L.Ed.2d 1066 (1977). "[I]t is within the province of the administrative hearing officer to determine whether evidence is reliable ... and, on appeal, the plaintiff bears the burden of proving that the commissioner, on the facts before him, acted contrary to law and in abuse of his discretion ... 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." (Citations omitted; internal quotation marks omitted.) Huang Do v. Commissioner of Motor Vehicles, 330 Conn. 651, 666-68, 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 the 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. Department of Agriculture, 168 Conn.App. 255, 266, 145 A.3d 393 (2016). The plaintiff bears the burden of proving that the agency, on the facts before it, "acted contrary to law and in abuse of [its] discretion ..." (Internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, supra, 254 Conn. 343.
III
DISCUSSION
A
Statutory and Regulatory Framework
"The Interstate Commerce Act, as amended by the Federal Aviation Administration Authorization Act of 1994 ... and the [Interstate Commerce Commission] Termination Act of 1995 ... generally preempts state and local regulation ‘related to a price, route, or service of any motor carrier ... with respect to the transportation of property’ ..." Columbus v. Ours Garage & Wrecker Service, Inc., 536 U.S. 424, 429, 122 S.Ct. 2226, 153 L.Ed.2d 430 (2002). This general rule, codified in 49 U.S.C. § 14501(c)(1), is subject to exceptions set out in 49 U.S.C. § 14501(c)(2). The exception relevant to this case, 49 U.S.C. § 14501(c)(2)(C), permits states to regulate "tow truck operations performed without the prior consent or authorization of the owner or operator of the motor vehicle." Nonconsensual tows, over which the state may exercise regulatory authority, include tows ordered by law enforcement officials to clear a disabled vehicle from the scene of an accident. See Regs., Conn. State Agencies § 14-63-34(b).
In relevant part, 49 U.S.C. § 14501(c) provides as follows:
(1) General rule .- Except as provided in paragraphs (2) and (3), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier ... with respect to the transportation of property.
(2) Matters not covered .- Paragraph (1)- ...
(C) does not apply to the authority of a State or a political subdivision of a State to enact or enforce a law, regulation, or other provision relating to the regulation of tow truck operations performed without the prior consent or authorization of the owner or operator of the motor vehicle.
Section 14-63-34(b) of the Regulations of Connecticut State Agencies provides in relevant part: "As used in sections 14-63-35 to 14-63-37b, inclusive, of the Regulations of Connecticut State Agencies, the term ‘nonconsensual towing or transporting’ means the nonconsensual towing or transporting of a motor vehicle ... for which arrangements are made by order of a law enforcement officer ..."
Connecticut has exercised the authority permitted by 49 U.S.C. § 14501(c)(2)(C) by statute and by regulation. Pursuant to General Statutes § 14-66, operators of wreckers must be licensed by the department as motor vehicle dealers or repairers. Under § 14-66(a)(2), the commissioner is authorized to establish and publish a schedule of uniform rates and charges for nonconsensual towing and storage of motor vehicles, and § 14-66(a)(3) prohibits any licensee from charging more than the rates and charges published by the commissioner for such nonconsensual tows. The commissioner has promulgated regulations that establish uniform rates for nonconsensual tows. See Regs., Conn. State Agencies § 14-63-34 through § 14-63-37b.
General Statutes § 14-66 provides in relevant part: "(a)(1) No person, firm or corporation shall engage in the business of operating a wrecker for the purpose of towing or transporting motor vehicles, including motor vehicles which are disabled, inoperative or wrecked or are being removed in accordance with the provisions of section 14-145, 14-150 or 14-307, unless such person, firm or corporation is a motor vehicle dealer or repairer licensed under the provisions of subpart (D) of this part. (2) The commissioner shall establish and publish a schedule of uniform rates and charges for the nonconsensual towing and transporting of motor vehicles and for the storage of motor vehicles which shall be just and reasonable. Upon petition of any person, firm or corporation licensed in accordance with the provisions of this section, but not more frequently than once every two years, the commissioner shall reconsider the established rates and charges and shall amend such rates and charges if the commissioner, after consideration of the factors stated in this subdivision, determines that such rates and charges are no longer just and reasonable. In establishing and amending such rates and charges, the commissioner may consider factors, including, but not limited to, the Consumer Price Index, rates set by other jurisdictions, charges for towing and transporting services provided pursuant to a contract with an automobile club or automobile association licensed under the provisions of section 14-67 and rates published in standard service manuals. The commissioner shall hold a public hearing for the purpose of obtaining additional information concerning such rates and charges. (3) With respect to the nonconsensual towing or transporting and the storage of motor vehicles, no such person, firm or corporation shall charge more than the rates and charges published by the commissioner ..."
B
City Line’s Claims
1
City Line’s first claim on appeal relates to the original finding that "Copart Recovery performed a nonconsensual tow of a 2003 Dodge Durango automobile to the business premises of the Licensee ..." City Line asserts that the department never elicited clear testimony about the initial nonconsensual tow and that the original finding reflected the hearing officer’s assessment of the documentary evidence. If "Copart Recovery, " rather than City Line, performed the initial nonconsensual tow, City Line argued that City Line’s subsequent actions and charges would be consensual and therefore not subject to state regulation.
The name "Copart Recovery" appears to be a misreading of a single page from the invoices submitted by City Line, where the word "Recovery" was written above and to the right of the name "Copart." That invoice is an invoice for "recovery" activities, including winching, related to the vehicle. The court will refer to Copart simply as "Copart" throughout this decision.
The court is persuaded, however, that the original finding was a mere scrivener’s error and that the hearing officer intended to find that City Line performed the initial nonconsensual tow, which was subject to state regulation. The finding, as corrected by the hearing officer’s clarification on remand, is supported by substantial testimonial and documentary evidence.
Representatives of Amica and Copart testified to explain the procedures used in general when Amica determines that an insured’s vehicle is a total loss and also testified as to the specific events of this case. In general, as Amica’s representative testified, when Amica determines that a vehicle is a total loss, it engages the services of Copart, a salvage vendor, to obtain the vehicle by paying the fees required by the dealer or repair shop that is holding the vehicle. In general, as Copart’s representative testified, Copart subcontracts with a tow operator to retrieve the vehicle. Before authorizing the pickup, Copart contacts the dealer or repair shop that is holding the vehicle, obtains information about the charges that will have to be paid to retrieve the vehicle, determines that the owner has authorized release of the vehicle, and confirms the charges to be paid with Amica. Then Copart directs the subcontractor to retrieve the vehicle, to pay the charges required for its release, and to tow the vehicle to Copart’s premises for a salvage auction. After the vehicle is sold for salvage, Copart presents Amica with an invoice for reimbursement of the charges Copart paid to obtain the vehicle, along with charges for Copart’s own services and a credit for the amount the vehicle brought at auction.
In this case, according to the testimony of Copart’s representative and the documents presented as Exhibits K and N, an Amica insured sustained a loss as to a 2003 Dodge Durango on July 27, 2016. On August 3, 2016, Amica contacted Copart to retrieve the vehicle from City Line. On August 3, 2016, Copart contacted City Line to determine whether the vehicle was cleared for pickup. On August 4, 2016, Copart learned that the vehicle was cleared for pickup and that the total charges for pickup would be $868.36, an amount that was "over the limit and higher than what adjuster placed in notes." Exhibit N. Copart obtained authorization from Amica’s adjuster to pay the advance charges of $868.36 and engaged a towing company, Anthony’s High Tech, to pick up the vehicle. Because City Line will only accept cash, Copart issued a check to "cash" in the amount of $868.36. A Copart employee cashed the check and provided the cash to Anthony’s High Tech. Anthony’s High Tech in turn paid City Line, obtained the vehicle, and delivered it to Copart. Copart was subsequently reimbursed by Amica for the charges it paid to obtain the vehicle.
On the second day of the hearing, Copart’s witness, James Costello, testified that Copart issued a check to City Line. On the third day of the hearing, after discussing the matter with Copart employees responsible for arranging the tow, Costello corrected his previous testimony, testifying that Copart had provided cash in the amount of $686.38 to Anthony’s High Tech to pay City Line. Determining the credibility of witnesses is the province of the agency. "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, supra, 312 Conn. 411-12.
That City Line performed the initial nonconsensual tow is confirmed by documentary evidence created by City Line itself. Five documents, created and maintained by City Line, document the services it claimed to have provided and its charges for each of those services. Each document consists of a one-page preprinted form with City Line’s name and address at the top in large bold type and preprinted lines for recording such information as the date, name, address, and identifying information regarding vehicles. The information to be filled in on the form substantially corresponds to information a towing company is statutorily required to maintain for nonconsensual tows. See General Statutes § 14-66b. Each form also contains a label with a bar code apparently pasted onto the form. The words "03 Dodg Durango SP UK" are printed above the bar code and a series of numbers, followed by the words "Advance Charges," are printed below the bar code. Collectively, the five forms identify charges that add up to $868.36.
The first two forms, both dated "7-27-16," are the forms that document the nonconsensual tow. They indicate that it was initiated by the Bridgeport Police Department (identified on the forms as "Bpt PD") in relation to an "MVA," which can reasonably be inferred to refer to a motor vehicle accident. On the blank line following the printed word "Name" is the handwritten word "Copart." Given the itemization of charges on forms prepared by City Line, it can logically be inferred that Copart is the party being charged by City Line.
The first form identifies charges of $88.00 for the initial tow, $260.00 for ten days’ storage, and $19.00 for mileage. The second form also contains the handwritten word "Copart" on the blank following the printed word "Name." Handwritten to the right above the word "Copart" is the word "Recovery." The form identifies "recovery" and other activities for which City Line was charging an additional fee of $250, including "waiting time 114, winching + pulling, secure debris, bumper attached to rear end, clean up debris." By regulation, "recovery" is defined as "winching and other similar functions, performed by a licensed wrecker and necessary to return a motor vehicle to a position where the nonconsensual towing or transporting may be initiated." Regs., Conn. State Agencies § 14-63-36b(8). Similarly, "clean up" and "waiting time" are defined in § 14-63-36b(3) and (9), respectively, with respect to activities directed by police at the site of a nonconsensual tow. These two forms provide substantial evidence that City Line performed the nonconsensual tow at issue and is therefore subject to state regulation as to the charges it may lawfully impose. The court concludes that, as the hearing officer explained, his reference to Copart in the original finding was a mere scrivener’s error. The corrected finding is supported by substantial evidence and, indeed, the fact that City Line performed the initial nonconsensual tow was not disputed at the administrative hearing.
It also indicates a subtotal of $793.00, tax of $50.36, for a total of $843.36 plus a city tax of $25.00. The total charges on the first two forms, relating to the nonconsensual tow, add up to only $617 ($88.00 for the initial tow, $19.00 for mileage, $260 for storage, all shown on the first form, and $250.00 for the recovery, clean up, and waiting time shown on the second form). The additional charges included in the subtotal are the charges at issue in this appeal- an $88.00 escort fee and an $88.00 gate fee.
2
City Line’s principal claim at the administrative hearing was that the gate fee it charged was a voluntary payment based on a contract between City Line and Anthony’s High Tech, the party picking up the vehicle. More specifically, City Line introduced two exhibits at the hearing. The first was a preprinted form, captioned "Consensual Tow Form," introduced as Respondent’s Exhibit 1. The preprinted portion of the form provides in relevant part as follows:
___ as a Representative of ___ is hereby advised that ___ can obtain the subject motor vehicle, hereinafter named, without paying any fee or charge provided all documentation and authorization is in order. ___ agrees to wait for said vehicle for a reasonable time after the request for release of the subject vehicle.
Notwithstanding the foregoing, we the undersigned hereby request that City Line immediately provide an employee to assist in the removal, towing and securing of the subject vehicle for transportation by ___.
In Exhibit 1, the name "Anthony’s High Tech" was handwritten in all the blanks shown above except the second blank, on which the name "Copart" was handwritten. City Line argued to the hearing officer, as it argues on appeal, that this agreement turned the original nonconsensual tow into a consensual tow that is not subject to state regulation. City Line contends that this "agreement" constitutes a waiver of the right not to pay a gate fee, for which the consideration was immediate service.
City Line also introduced Respondent’s Exhibit 2, an unauthenticated document that purported to be a letter from the tow manager for Anthony’s High Tech. The text of the letter states: "We are aware of the $88 that Cityline charges as a pull out fee, and we have been assigned by Copart to collect the vehicles and pay the fees involved. We would rather pay the fees than wait hours to be able to get the vehicles we have been assigned by Copart to collect. As tow drivers it is beneficial financially and on a time basis."
The hearing officer properly rejected City Line’s claim that these documents constituted either an agreement for immediate service or a waiver of the right not to pay a pull out or gate fee. The statutes and regulations governing nonconsensual tows unambiguously prohibit towing companies from charging such fees. See Connecticut Motor Cars v. Commissioner of Motor Vehicles, 300 Conn. 617, 622-23, 15 A.3d 1063 (2011). General Statutes § 14-66(a) authorizes the commissioner of motor vehicles to establish rates for nonconsensual tows, and the commissioner has exercised that authority in its regulations. As the Supreme Court held in Connecticut Motor Cars, the term "tow charge" is clearly defined by regulation to mean "the maximum amount determined by the commissioner that a [licensee] may charge the owner or operator of a motor vehicle ... for nonconsensual towing or transporting a motor vehicle ... Except as otherwise specifically provided the tow charge shall include ... (G) [r]elease of the vehicle to the owner or person otherwise entitled to possession of the vehicle upon presentation of appropriate credentials." Id., quoting Regs., Conn. State Agencies § 14-63-36b(2). "This definition incontrovertibly establishes that the term ‘tow charge’ encompasses all of the services rendered in the nonconsensual towing, transporting and releasing of a motor vehicle. The tow charge therefore includes all of the services rendered in the plaintiff’s gate fee, which is a fee for the labor and equipment needed to move a wrecked or disabled vehicle from the secured storage area to the designated vehicle retrieval area. Pursuant to the plain language of the regulation, the gate fee charged by the plaintiff is a service included within the phrase ‘[r]elease of the motor vehicle to the owner ...’ ... We thus conclude that the term ‘tow charge’ in § 14-63-36c(c) of the Regulations of Connecticut State Agencies includes all activity involved in a gate fee. The only reasonable interpretation of the regulations is that a gate fee is not permitted." Connecticut Motor Cars v. Commissioner of Motor Vehicles, supra, 300 Conn. 623. The Supreme Court’s conclusion is further supported by § 14-63-36c(e) of the regulations, which provides: "No additional fee shall be charged by a licensed wrecker service for releasing a vehicle to its owner or a person legally entitled to its custody."
City Line contends, nonetheless, that parties can agree to waive statutory rights. The commissioner responds that City Line’s claim of waiver is misplaced because (1) the department’s regulations do not authorize such a waiver, and (2) any "consent" was not voluntary but was given under duress. The court agrees with the commissioner that the department’s regulations do not authorize waiver of the prohibition on additional fees. The court further concludes that it would be contrary to the public policy underlying the regulations to allow tow operators to circumvent the department’s price regulations by obtaining "consent" or a "waiver" under the circumstances inherent in a nonconsensual tow.
Review of this conclusion requires consideration of the doctrine of waiver. "Waiver is the intentional relinquishment or abandonment of a known right or privilege As a general rule, both statutory and constitutional rights and privileges may be waived ... Waiver is based [on] a species of the principle of estoppel and [when] applicable it will be enforced as the estoppel would be enforced ... Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed ... Waiver does not have to be express ... but may consist of acts or conduct from which waiver may be implied ... In other words, waiver may be inferred from the circumstances if it is reasonable to do so ... Finally, only the party who benefits from or is protected by the right may waive that right." (Internal quotation marks omitted; citations omitted.) Pereira v. State Board of Education, 304 Conn. 1, 39-40, 37 A.3d 625 (2012). Nevertheless, "[p]arties may not waive statutory rights where a question of public policy is involved. Likewise, a law established for a public reason cannot be waived or circumvented by a private act or agreement." (Internal quotation marks omitted; citation omitted.) Id., 40.
Federal law permits the states to regulate the price of nonconsensual tows "to protect consumers from exorbitant towing fees ..." (Internal quotation marks omitted.) Ace Autobody & Towing, Ltd. v. New York, 171 F.3d 765, 773 (2d Cir. 1999), cert. denied, 528 U.S. 868, 120 S.Ct. 166, 145 L.Ed.2d 140 (1999), quoting H.R. Rep. No. 104-311, at 120, reprinted in 1995 U.S.C.C.A.N. 793, 832. To permit waiver of the regulatory prohibition on charging unauthorized fees would undermine the public policy served by the exception. Without regulation, a tow operator who has taken possession of a vehicle as a result of a police order could charge an exorbitant fee to release the vehicle to its owner. The owner would have little choice but to pay whatever fee the tow operator demanded to recover possession of his property.
The evidence in this case demonstrates how the public policy underlying the regulation of nonconsensual tows would be undermined if parties were permitted to waive the prohibition on additional fees. The "Consensual Tow Form" (Respondent’s Exhibit 1) provided by City Line is a preprinted form, created by City Line, which purports to give the party seeking release of a vehicle a choice between waiting a "reasonable" time or paying an additional fee to receive the vehicle immediately. City Line’s counsel argued that tow operators were willing to sign the "Consensual Tow Form" because they did not want to wait a few minutes. Respondent’s Exhibit 2, however, tells a different story. It purports to be a letter from the tow manager of Anthony’s High Tech, who explains that "[w]e would rather pay the fees than wait for hours to be able to get the vehicles we have been assigned by Copart to collect. As tow drivers it is beneficial financially and on a time basis." (Emphasis added.) As this letter demonstrates, tow operators such as Anthony’s High Tech assume that City Line can make tow operators wait for "hours"- an economically disadvantageous amount of time- to retrieve a vehicle unless the tow operator agrees to pay a gate fee. Amica’s witness described City Line’s practice of collecting an additional fee for "immediate" delivery of the vehicle as extortion: "Pay us or you don’t get your car." Hrg. Tr. 7/25/2017, p. 53. She subsequently explained: "[T]hey charge storage fees for every day that it’s there. So if we do not pay the fees that they are requiring when Copart calls to pick up the car, that car doesn’t get released; so there’s another day storage, and another day storage, then you’ve got a weekend storage, then another day storage, until this is resolved, ultimately, we pay the charges." Hrg. Tr. 7/25/2017, p. 77.
The record supports the Amica representative’s testimony that the gate fee was not truly voluntary but was coerced by City Line’s conduct. There was evidence that City Line informed Copart of the total fees- including the allegedly "consensual" gate fee for immediate delivery- on August 4, 2016, the day before the vehicle was picked up. The fact that City Line included the gate fee in the total fees that Copart would have to pay to obtain the vehicle indicates that the fee was not voluntary, but one that City Line required for the vehicle’s release.
Throughout the administrative hearing and on appeal, City Line complained that it was unfair for Amica to pay the fees City Line charged without protest, obtain release of the vehicle and, with it, City Line’s mechanics lien, and then to use the department as its "collection agency" to seek restitution. The court disagrees. There is nothing unfair about seeking restitution of fees that City Line was not entitled to charge. Although City Line attempted to circumvent the regulations with its fictive "Consensual Tow Form," it has been clear since the decision in Connecticut Motor Cars v. Commissioner of Motor Vehicles, supra, that gate fees are prohibited.
3
City Line makes a number of arguments regarding the sufficiency of the evidence to establish the violations alleged by the department. First, it claims that there is no evidence in the transcript that City Line received payment of the gate fee. Second, it claims that there is little testimony about the escort fee allegedly charged to Amica for an escort to accompany its appraiser to enter the yard to inspect the vehicle. Third, it claims that there is no evidence that Amica was the owner of the vehicle or a "person legally entitled to its custody." Each of these claims is based on an unstated assumption that only testimonial evidence by a person with direct personal knowledge of a transaction is sufficient to support a factual finding about the transaction. City Line ignores the substantial documentary evidence, which includes its own invoices, documents its own counsel introduced in the hearing, and Copart’s business records concerning the transaction. Consideration of City Line’s own invoices and the exhibits its counsel introduced was not an abuse of the hearing officer’s discretion. See Family Garage, Inc. v. Commissioner of Motor Vehicles, 130 Conn.App. 353, 361, 23 A.3d 752, cert. denied, 302 Conn. 931, 28 A.3d 345 (2011). Copart’s witness was present and was subjected to cross examination regarding Copart’s business records. In addition, representatives of Amica and Copart testified both about customary practices and about the specific nonconsensual tow at issue.
City Line claims that without testimony from the tow truck operator for Anthony’s High Tech or from a City Line representative to confirm that Anthony’s High Tech gave City Line the $88.00 plus tax for the gate fee, there is no evidence that City Line received such a gate fee. It is true that the invoices supplied by City Line are not marked as "Paid," and given City Line’s insistence of payment in cash, there is no canceled check that directly confirms City Line’s receipt of the gate fee. But substantial circumstantial evidence supports the hearing officer’s finding. There was documentary and testimonial evidence that City Line informed Copart, on August 4, 2016, that the total charges to pick up the vehicle would be $868.36. Copart provided cash in the amount of $868.36 to Anthony’s High Tech. The invoices provided by City Line to justify the charges included an invoice for an $88.00 gate fee, to which a tax of $5.59 was added. Finally, Respondent’s Exhibit 2, the letter from Anthony’s High Tech, indicated that Anthony’s High Tech preferred to pay the "pull out" or gate fees required by City Line rather than to wait "hours" for the vehicle to be moved out of storage for release. Taken as a whole, there is substantial evidence that City Line received the gate fee and that Amica reimbursed Copart for paying that fee to City Line.
As to the escort fee, City Line claims that there is no evidence that an Amica appraiser was escorted to inspect the vehicle or that an $88.00 fee was charged for that escort service. It is immaterial, however, whether Amica’s appraiser was escorted onto City Line’s premises to inspect the vehicle. What is material is that City Line demanded an $88.00 escort fee; the escort fee, to which a tax of $5.59 was added, was included in the total of $868.36 that City Line charged; Copart provided $868.36 in cash to Anthony’s High Tech to retrieve the vehicle; City Line provided invoices to justify the $868.36 in charges; and one of those invoices was an invoice for $88.00 for an escort fee. There is substantial evidence to support the conclusion that City Line received an escort fee of $88.00 plus tax.
Finally, City Line claims there is no evidence that Amica, the complainant, was the owner of the vehicle or a person legally entitled to receive it. It claims that § 14-63-36c(e) prohibits the charging of a fee for release of the vehicle only "to the owner or a person legally entitled to its custody." This claim is meritless. The evidence that Amica was legally entitled to custody of the vehicle includes evidence that a vehicle could not be released without approval of the owner; that Copart confirmed with a City Line employee that the vehicle had been cleared for pickup; and that City Line in fact released the vehicle to Anthony’s High Tech, which was acting an agent of Copart, which was acting as an agent of Amica, which insured the owner of the vehicle. The "insured" and the "owner" are identified as Steven Nieves on Copart’s final invoice to Amica. (Exhibit K.) Such evidence establishes that the vehicle’s owner had authorized the release of the vehicle to Arnica’s agents. See Jim’s Auto Body v. Commissioner of Motor Vehicles, 285 Conn. 794, 811-12, 942 A.2d 305 (2008) (concluding, in essence, that an insurance company obligated by contract to pay for repairs to an automobile stands in the shoes of the owner of a vehicle in dealing with a repair shop). In light of this evidence, the hearing officer did not clearly err in concluding that Amica was a person legally entitled to custody of the vehicle.
4
City Line also claims that the hearing officer improperly interjected himself as an advocate in the proceeding, unduly restricted City Line’s cross examination of the department’s witnesses, and exhibited bias. Although City Line quotes General Statutes § 4-177c(a)(2), which affords parties to a contested case the right of cross examination, and although it quotes various colloquies that it believes show an improper limitation on its right of cross examination, it does not engage in any legal analysis of the relevance of the questions its counsel sought to ask in cross examination. It does not offer legal analysis to show that the hearing officer committed error in precluding certain questions as irrelevant, nor does it provide any legal analysis of the harmfulness of any alleged error. It does not offer any legal analysis or cite to any legal authority as to its claim of improper bias on the part of the hearing officer. The court concludes that City Line has waived the claims relating to limits on cross examination and bias by failure to provide an adequate brief.
When the trial court sits in an appellate capacity, as it does in administrative appeals under § 4-183, the court "is not required to consider a claim that is inadequately briefed." Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 85, 942 A.2d 345 (2008). As our Supreme Court has explained, courts "generally decline to consider issues that are inadequately briefed." Hurley v. Heart Physicians, P.C., 298 Conn. 371, 402, 3 A.3d 892 (2010). "Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ... [F]or this court judiciously and efficiently to consider claims of error raised on appeal ... the parties must clearly and fully set forth their arguments in their briefs ... The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited." (Internal quotation marks omitted.) State v. Buhl, 321 Conn. 688, 724, 138 A.3d 868 (2016). Because City Line has merely asserted a legal claim without analysis of any of the legal issues related to that claim, the claim is deemed to be abandoned.
5
Citing Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960), City Line’s final claim is that the hearing officer erred in failing to draw an adverse inference based on the department’s decision not to call certain witnesses. City Line asserted that a witness from Anthony’s High Tech was necessary to establish "how much and for what" City Line was paid; it identified, as potential witnesses from Anthony’s High Tech, Ron Langlois, its tow manager, and Anthony Monaco, its owner. City Line asserted that it was necessary to call Amica’s appraiser, Joe Vettorino, to testify about the escort fee.
Neither Langlois nor Monaco was the tow operator who retrieved the vehicle from City Line; the signature on behalf of Anthony’s High Tech on the "Consensual Tow Form" was that of one Mark Formica. It is not clear why City Line thought either Langlois or Monaco could testify as to "how much and for what" City Line was paid.
City Line also contended that it subpoenaed several witnesses, including Vettorino, Langlois, Monaco, an Amica employee named Janet Kizer, and two Copart employees, who did not appear in response to its subpoenas. Although City Line attached copies of its subpoenas to its reply brief in the administrative proceeding, it did not provide copies of marshal’s returns to demonstrate that the subpoenas had been properly served. Nor did it make an offer of proof as to what the subpoenaed witnesses could testify.
Secondino held that the failure of a party to produce a witness who naturally would have been produced permits the inference that the testimony of the witness would have been unfavorable. The court is not persuaded of Secondino ’s applicability in administrative proceedings. See Locke v. Connecticut Department of Public Health, Superior Court, Judicial District of New Britain, Docket No. CV 00-0499998S (January 9, 2001) (Cohn, J.) (questioning applicability of Secondino in administrative hearings). Indeed, there is little life left in Secondino in any forum. See In re Antonio M., 56 Conn.App. 534, 545, 744 A.2d 915, n.4 (noting that Secondino was overruled in criminal cases in State v. Malave, 250 Conn. 730, 737 A.2d 442 (1999), and "rendered nugatory in civil cases" by Public Acts 1998, No. 98-50, codified as General Statutes § 52-216c). Assuming, however, that an administrative hearing officer may draw an adverse inference from a party’s failure to call a particular witness, City Line has not met its burden of showing that the hearing officer abused his discretion in declining to draw such an inference in this case. The department produced substantial documentary and testimonial evidence of City Line’s charges, which included the escort fee and the gate fee. The department produced substantial documentary and testimonial evidence of Copart’s payments to City Line through Anthony’s High Tech. It produced evidence that Amica reimbursed Copart for those payments. City Line produced evidence that Anthony’s High Tech preferred to pay gate fees rather than wait hours for a vehicle to be retrieved. With such substantial evidence in the record, the hearing officer could reasonably conclude that no additional evidence was needed. City Line has not met its burden of showing that its substantial rights were prejudiced by the hearing officer’s refusal to draw any adverse inferences.
IV
CONCLUSION
The plaintiff failed to satisfy its burden of proving that its substantial rights were prejudiced by any factual or legal errors in the department’s final decision. Accordingly, the appeal is dismissed. Judgment shall enter for the defendant.