Opinion
HHBCV165018049S
10-07-2019
John S. MCNAMARA v. State of Connecticut DEPARTMENT OF PUBLIC HEALTH et al.
UNPUBLISHED OPINION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.
The plaintiff admitted that eight of the storage tents erected in 2007 had collapsed by 2014 as a result of severe winter storms and that the contents of the tents were then exposed to the elements.
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.
General Statutes § 19a-229 provides as follows: "Any person aggrieved by an order issued by a town, city or borough director of health may appeal to the Commissioner of Public Health not later than three business days after the date of such person’s receipt of such order, who shall thereupon immediately notify the authority from whose order the appeal was taken, and examine into the merits of such case, and may vacate, modify or affirm such order."
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 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.
DeCorso testified that she was familiar with the plaintiff’s property and that certain of the vehicles and other objects stored on the property belonged to her.
II
The plaintiff appeals pursuant to General Statutes § 4-183. 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).
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."
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, 323 Conn. 936, 151 A.3d 386 (2016). "It is fundamental that a plaintiff has 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.
"Even for conclusions of law, [t]he court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion." (Internal quotation marks omitted.) Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, 310 Conn. 276, 281, 77 A.3d 121 (2013). "[C]onclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts ... [Similarly], this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes." (Internal quotation marks omitted.) Id.
"On the other hand, it is the function of the courts to expound and apply governing principles of law." State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 717, 546 A.2d 830 (1988). To the extent that the plaintiff asserts constitutional claims in this case, the court’s analysis is plenary. "[I]t is a well established common-law principle that administrative agencies lack the authority to determine constitutional questions." (Internal quotation marks omitted.) Ogden v. Zoning Board of Appeals, 157 Conn.App. 656, 666, 117 A.3d 986, cert. denied, 319 Conn. 927, 125 A.3d 202 (2015).
III
The plaintiff’s principal claim on appeal is that the city violated his constitutional rights, including his right to due process and his right to be secure from a warrantless search under the Fourth Amendment, by searching his property without his consent and without a judicial determination of probable cause. He contends that the evidence reveals that Rehm’s first inspection of the property, on February 18, 2014, took place when the plaintiff was not at home and had not consented to a search. He further argues that he never gave Rehm permission to make additional inspections. He characterizes as "preposterous" the finding that the violations cited in the May 21, 2015 order were visible from the public road when Rehm inspected the property on April 30, 2015; he claims that the view was blocked by the topography and pitch of the property as well as by his house and a dumpster. The plaintiff further claims that the evidence presented by the city is the "fruit of the poisonous tree" and that the order should be vacated as a result.
The plaintiff characterizes his due process claim as follows: "Local Health should have received authorization to enter Appellant’s private property and failure to obtain such authorization is a due process violation ... Local Health violate[d] Appellant’s due process rights by failing to obtain proper authorization to enter the Property." Plaintiff’s Brief dated November 10, 2017 (Docket Entry #130). In support of this claim, the plaintiff relies solely on Bozrah v. Chmurynski, supra, 303 Conn. 676. Because the plaintiff has not provided a due process analysis, the court limits its analysis to the issues presented by the plaintiff’s claim that the city conducted unauthorized inspections of his property in violation of the Fourth Amendment under Bozrah .
In support of this argument, the plaintiff relies on Bozrah v. Chmurynski, supra, 303 Conn. 676. In Bozrah, the town’s first selectman had asked a zoning official to inspect the defendant’s property for "unregistered motor vehicles and other junk." When the zoning official went to the property, its owner refused to consent to an inspection. The town then sought an injunction to prohibit the owner from interfering with the inspection. The trial court recognized that the Fourth Amendment applied to such an inspection but concluded, in reliance on Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), that "inspections in nonemergency circumstances are reasonable within the meaning of the [F]ourth [A]mendment when a reasonable governmental interest in such a search exists." Bozrah v. Chmurynski, supra, 303 Conn. 681. The Supreme Court disagreed. It concluded that Camara dealt with routine administrative inspections of an area, rather than a targeted inspection of a single property for an alleged violation. The court held that such a targeted inspection of a particular property was subject to the full protection of the Fourth Amendment, and that an injunction requiring a property owner to submit to an inspection could not properly be issued without a judicial determination of probable cause to believe that a violation existed.
Bozrah involved a zoning inspection under General Statutes § 8-12, which does not provide for issuance of an administrative warrant. This case, in contrast, involves a health inspection. In State v. Saturno, 322 Conn. 80, 96-101, 139 A.3d 629 (2016), the Supreme Court held that General Statutes § 19a-220 authorizes the issuance of an administrative search warrant for a health inspection upon a showing of probable cause to believe that conditions constituting a violation of public health ordinances are present.
In its final decision, the department commented that, as an administrative tribunal, it lacked authority to decide constitutional questions. It further held, however, that the plaintiff’s "fruit of the poisonous tree" argument was unpersuasive because the exclusionary rule, which requires the suppression of evidence illegally obtained by the police, does not apply in civil proceedings such as this. In support of that conclusion, it cited, inter alia, In re Nicholas R., 92 Conn.App. 316, 321, 884 A.2d 1059 (2005), and Tompkins v. Freedom of Information Commission, 136 Conn.App. 496, 499 n.4, 46 A.3d 291 (2012). Finally, it noted that the evidence was entered into the record without objection by the plaintiff and, in some cases, the plaintiff and his witness provided the evidence.
In his exceptions to the proposed final decision, the plaintiff argued that the exclusionary rule should apply because he was informed that civil or criminal penalties could apply if he failed to comply with the order. On appeal, the plaintiff merely incorporates the arguments he made to the department and does not otherwise address the department’s conclusion that the exclusionary rule did not apply to bar consideration of the city’s evidence.
The city argues that the Fourth Amendment was not violated because the "open fields" doctrine permits the inspection of areas, even of private property, that are visible from public vantage points. It further argues that, even if a Fourth Amendment violation occurred, the department properly upheld the city’s order because the exclusionary rule does not apply in civil proceedings. The department joins the city’s arguments and further argues that the court should decline to consider the plaintiff’s claims because they are inadequately briefed. The plaintiff replies that the record on appeal includes the briefs he filed in the administrative proceeding, where he provided a rebuttal to the city’s "open fields" argument.
The plaintiff has not adequately addressed the applicability of the exclusionary rule in civil proceedings in any of his briefs, whether before the department or in this court. The plaintiff merely asserts that the exclusionary rule should apply where a Fourth Amendment violation can be found. But "[a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." (Internal quotation marks omitted.) State v. Buhl, 321 Conn. 688, 724, 138 A.3d 868 (2016). Although the court could decline to address the issue for this reason, it will briefly discuss why Bozrah is not dispositive. Bozrah does establish, as the plaintiff argues, that judicial authorization of an inspection of private property, based on probable cause, is required in the absence of consent. But Bozrah does not address the circumstances of this case.
In the first place, the court cannot conclude, on the basis of the record before it, that a Fourth Amendment violation occurred. The city advanced an "open fields" argument, claiming that the conditions constituting the violations were visible from the public road and from portions of the plaintiff’s driveway that anyone might enter without invading the plaintiff’s rights. See State v. Liptak, 21 Conn.App. 248, 255-57, 573 A.2d 323, cert. denied, 215 Conn. 809, 576 A.2d 540 (1990) (no illegal search occurred when police gathered information by walking up defendant’s driveway in area that, although adjacent to defendant’s house, was accessible to public). "When the police, having come onto private property to conduct an investigation, restrict their movements to areas that under the above analysis, are considered semi-public, observations made from that vantage point are not illegal under the [F]ourth [A]mendment." Id., 256. In this case, Rehm testified that on April 30, 2015, he observed the conditions that constituted the violations from the public road. The hearing officer found that, on April 30, 2015, Rehm could see from the public road destroyed tents, rubbish and refuse in violation of the Public Health Code. Viewing the conditions from the public road would not constitute a Fourth Amendment violation. Rehm’s April 30, 2015 inspection provided the factual basis for the order from which the plaintiff appealed. The plaintiff disputes that the conditions were visible from the public road, but this court must defer to the agency’s determination of the credibility of witnesses. Rehm’s testimony provides substantial evidence to support the department’s finding.
Moreover, even if a violation of the plaintiff’s Fourth Amendment rights had occurred, the department correctly held that the exclusionary rule has not been applied in civil proceedings. Our Supreme Court has observed that "[i]n the complex and turbulent history of the rule, the [United States Supreme] Court has never applied it to exclude evidence from a civil proceeding, federal or state." (Internal quotation marks omitted.) Fishbein v. Kozlowski, 252 Conn. 38, 52, 743 A.2d 1110 (1999). The United States Supreme Court has declined to apply the exclusionary rule in deportation proceedings; see Immigration & Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032, 1040-42, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984); in parole revocation proceedings; see Pennsylvania Board of Probation & Parole v. Scott, 524 U.S. 357, 363, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998); in civil tax proceedings; see United States v. Janis, 428 U.S. 433, 448, 454, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976); and in grand jury proceedings; see United States v. Calandra, 414 U.S. 338, 343-46, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). Similarly, our Supreme Court and our Appellate Court have declined to apply the exclusionary rule in motor vehicle license suspension hearings; see Fishbein v. Kozlowski, supra, 252 Conn. 54; in child protection proceedings; see In re Nicholas R., supra, 92 Conn.App. 321; in civil trials; see Boyles v. Preston, 68 Conn.App. 596, 611-12, 792 A.2d 878, cert. denied, 261 Conn. 901, 802 A.2d 853 (2002); and in other administrative proceedings; see Tompkins v. Freedom of Information Commission, supra, 136 Conn.App. 499 n.4.
The plaintiff’s argument that he is potentially subject to civil and criminal penalties if he fails to comply with the city’s order is unavailing. It is not uncommon for a person to be exposed to both civil and criminal penalties for the same conduct. For instance, in Fishbein v. Kozlowski, supra, 252 Conn. 54, the plaintiff was arrested for driving under the influence of drugs or alcohol, and his operator’s license was administratively suspended as a consequence of the same conduct. The Supreme Court concluded that, if an initial stop was unlawful, evidence could be precluded in a criminal trial but not in a civil proceeding. Id. Similarly, in this case, if a Fourth Amendment violation was found, evidence resulting from an illegal search could be excluded if a criminal proceeding was initiated, but not in a civil proceeding. The plaintiff has offered no analysis to distinguish this case from the numerous cases, cited above, which have held that the exclusionary rule does not apply in civil proceedings.
The exclusionary rule is not intended to remedy Fourth Amendment violations, but to deter them. See Boyles v. Preston, supra, 68 Conn.App. 611. "[T]he need for deterrence and hence the rationale for excluding the evidence are strongest where the Government’s unlawful conduct would result in the imposition of a criminal sanction on the victim of the search." United States v. Calandra, supra, 414 U.S. 348. In contrast, the Supreme Court has held that social cost of applying the exclusionary rule would be great when the purpose of the proceeding is not to punish a past transgression but to prevent the continuance of a transgression. See United States v. Lopez-Mendoza, supra, 468 U.S. 1046.
In addition, as the department also noted, and as discussed in more detail in the following section, the plaintiff himself provided extensive testimony that provided evidence of the existence of the violations alleged by the city. Because the exclusionary rule does not apply in civil proceedings, and because the plaintiff himself provided substantial evidence of the conditions on his property that constituted violations, the department’s consideration of the city’s evidence did not prejudice any substantial rights of the plaintiff.
IV
The plaintiff also argues that the conditions on the property did not violate the public health code because there was no sign of rodents, no mosquitoes breeding, foul smells, or contaminants endangering neighbors. This argument is unavailing, because the actual presence of rodents, mosquitoes, foul smells, or evident contaminants are not required to find violations of the public health code and the local ordinances enacted to implement public health protections. There was ample evidence- much of provided by the plaintiff himself- to support the findings of violations.
General Statutes § 19a-206(b) requires municipal directors of health to order the abatement of nuisances and sources of filth found on private property. By regulation, the Public Health Code provides that "[a]ny local director of health, upon information of the existence of a nuisance or any pollution occurring within his jurisdiction, or when any such nuisance or pollution comes to his attention, shall, within a reasonable time, investigate and, upon finding such nuisance or pollution exists, shall issue his order in writing for the abatement of the same." Regs., Conn. State Agencies § 19-13-B2(a). The Public Health Code further provides: "The owner of premises upon which persons reside or which are frequented for pleasure or business shall keep such premises free from accumulations of garbage, rubbish, rags, tin cans, paper, empty barrels, boxes or any material which, because of its character, condition or improper storage, may invite the breeding or collection of flies, mosquitoes or rodents ..." Regs., Conn. State Agencies § 19-13-B21(a). Similarly, § 19-13-B1(g) declares the following condition, among others, to constitute a public nuisance: "Stagnant water likely to afford breeding places for mosquitoes within a residential district or within a distance of one thousand feet therefrom." Municipal ordinances further define conditions that are not permitted because of their potential harm to public health.
General Statutes § 19a-207 authorizes municipalities to adopt, by ordinance, sanitary rules and regulations that are not inconsistent with the Public Health Code. General Statutes § 19a-207a(6) requires municipal health departments to enforce laws and regulations that protect health and ensure safety.
In this case, the city alleged, and the department found, four categories of conditions on the property that violated the Public Health Code and specified municipal ordinances. These categories included (1) abandoned or inoperable motor vehicles and watercraft, (2) a large quantity of rubbish, lumber, cut brush and dead weeds; (3) a quantity of air conditioners likely to contain refrigerant; and (4) various containers that could hold water and afford mosquito breeding. Although the plaintiff argued that many of the items complained of were still usable, the city deemed the conditions to constitute "accumulating refuse, " "nuisance, " and "refuse, " and to violate various ordinances. One city ordinance requires property owners to remove their refuse and rubbish to the curb, in appropriate containers, for curbside pickup where available, and where such pickup is not available, to arrange for the safe and sanitary disposal of such refuse and rubbish. MCO § 120-24. Another city ordinance provides that "[n]o owner or occupant of a dwelling, dwelling unit, or structure shall accumulate rubbish, boxes, lumber, scrap metal, or any other material in such a manner that may provide a rodent harborage or rodent food in or about any dwelling, dwelling unit, or structure." MCO § 178-3J. Another ordinance provides that "[e]very dwelling or accessory structure, and the premises upon which it is located, shall be rodent proof and maintained so as to prevent the harboring of rodents. Such premises shall be graded and drained, kept free of standing water, and maintained in a clean, sanitary and safe condition." MCO § 178-7G.
The city’s legal order of May 21, 2015, alleged a violation in the presence of more than six "inoperable" motor vehicles or watercraft on the premises, some containing rubbish. The department modified this violation to refer to "abandoned" motor vehicles based on the language of MCO § 120.20, which defines as an "abandoned vehicle" "[a]ny unregistered, inoperable car, truck, aircraft, camper, motorcycle or moped, recreational vehicle (e.g., golf cart, snowmobile, water sled, all-terrain vehicle, etc.), boat or other watercraft, tractor, cart, trailer, riding mower, or farming or construction equipment, whether self-propelled or towed ... ‘Inoperable’ shall mean that the vehicle is no longer being used for its intended purpose evidenced by two or more of the following conditions: ... D. Close proximity of grass or other vegetation or debris, indicating immobility; ... F. Use for another purpose (e.g., storage)."
"Accumulating refuse" is defined by MCO § 120.20 as "[r]efuse that accumulates on any private premises and is not completely contained within trash or refuse storage bins, racks or enclosures, or other containers that are approved by the City for such use."
"Nuisance" is defined by MCO § 120.20 in relevant part as follows:
MCO § 120.20 defines "refuse" to include, in relevant part, "rubbish" and "abandoned automobiles." MCO § 120.20 defines "rubbish" to include "nonputrescible solid wastes consisting of both combustible and noncombustible wastes, such as paper, wrappings, cigarettes, cardboard, tin cans, yard clippings, leaves, wood, glass, bedding, crockery, and similar materials."
MCO § 120.24 provides: "Where weekly curbside pickup is available, an owner, operator or occupant of a dwelling shall have the duty and responsibility to remove garbage, refuse and rubbish generated by him to the curb, on the day curbside pickup is scheduled, in closed containers intended for that purpose. Where weekly curbside pickup is not available, an owner, operator or occupant of a dwelling shall have the duty and responsibility to remove garbage, refuse and rubbish generated by him to the place provided by the owner or to arrange with the owner for its transfer for safe and sanitary disposal."
Although the department made minor modifications to city’s legal order, in that it corrected citations to certain ordinances, it concluded that the city had proved the violations by a preponderance of the evidence. That conclusion is amply supported by substantial evidence.
Rehm, the city sanitarian, testified to the "tents that were disheveled, dismantled, damaged in the backyard," miscellaneous items such as chairs and furniture on the property, items that had been stored in the tents before they collapsed, which he testified could provide rodent harborage, and numerous containers that could collect water. He saw several vehicles that were being used as storage containers for household items, such as furniture and books and coffee makers. He testified to the presence of piles of wood, dead weeds and cut brush on the property.
In addition to the evidence submitted by the city, which was substantial, the plaintiff himself testified to the conditions on the property as of May 21, 2015, the date of the order from which he appeals. He admitted that on May 21, 2015, there were five inoperable motor vehicles on his property, five motorboats, two personal watercraft, and eleven air conditioners containing refrigerant. He testified that he had eleven tents, each the size of single-car garages, that had "stuff" inside them "at least three feet deep." He admitted that eight of the tents had fallen down and were dilapidated, and that items stored in the fallen tents were exposed to the elements. He admitted that the items in the tents included such items as washing machines, dryers, and kitchen ranges. He estimated that at least 120 cubic yards of "stuff" was located on his property, including kitchen chairs and table that he planned to chop up for firewood, small gas and electric powered equipment, three lawnmowers on the driveway that he planned to scrap, four computer monitors, and several woodpiles around the property. The woodpiles included broken chairs and salvaged wood. The plaintiff testified that one pile of scrap wood was about three feet high, eight or ten feet wide, and twenty feet long; there were perhaps a dozen other pallets of wood as well as piles of downed trees.
The plaintiff argued that there were no rats or mosquitoes on his property. Rehm agreed that no actual rat infestation was present, but testified that the piles of rubbish created conditions in which rodents could hide, and items that collect water can provide breeding grounds for mosquitoes. The department properly rejected the plaintiff’s argument, observing that the plaintiff "is claiming that since the Conditions have not caused a catastrophe, the Conditions should be allowed to persist regardless of whether they violate the PHC [Public Health Code] or MCO ... PHC enforcement does not depend on evidence of a public health emergency. Rather, a significant goal of the PHC is to prevent adverse health conditions in the first instance."
The plaintiff also argued that many of the items on his property were still usable. Even if true, it does not invalidate the order. The plaintiff admitted that many of the items on the property were damaged by exposure to the elements, and some were moldy. The city did not order him to throw good items away; it ordered him to eliminate the rubbish, refuse, abandoned vehicles, and similar items on his property. Nothing in the city’s order would prevent him from salvaging usable items, so long as he stored them appropriately.
In sum, substantial evidence in the record supports the department’s conclusion that when the city issued the order, the property contained "substantial quantities of rubbish, lumber, cut brush, dead weeds, dilapidated cloth storage tents, furniture exposed to the elements, small gas and electric powered equipment, appliances, electronic equipment and car parts." The department did not err in concluding that such materials constitute a nuisance, in violation of the public health code and municipal ordinances intended to protect the public health.
V
For the reasons discussed above, the plaintiff has failed to sustain his burden of showing any error in the department’s decision that prejudiced his substantial rights. The appeal is accordingly dismissed, and judgment shall enter for the defendants.
"Presumably no one would argue that the exclusionary rule should be invoked to prevent an agency from ordering corrective action at a leaking hazardous waste dump if the evidence underlying the order had been improperly obtained ..." Id. As our Supreme Court has observed, other avenues exist to provide remedies for Fourth Amendment violations. "[A] victim of an illegal entry may properly file a civil action seeking a declaratory judgment, injunctive relief or, in certain circumstances, damages against the officers in their official or individual capacity." State v. Brocuglio, 264 Conn. 778, 789-90, 826 A.2d 145 (2003).
A. Any public nuisance as defined by statute or ordinance.
B. Any attractive nuisance. An "attractive nuisance" is defined as the presence of any condition which may prove detrimental to the health or safety of children whether in a building, on the premises of a building or upon an unoccupied lot. This includes, but is not limited to, the presence of abandoned wells, shafts, basements, excavations, refrigerators, vehicles, lumber, and garbage, refuse, rubbish, and any structurally unsound or other structures.
C. Physical conditions dangerous to human life or detrimental to the health of persons on or near the premises where the conditions exist ...