Opinion
No. CV 01-0510064 S
February 27, 2002
Memorandum of Decision
The plaintiff, Michael Guarco, appeals from the final decision of the defendant Department of Public Health ("the department") imposing civil penalties for failure to comply with water testing requirements applicable to "water companies," as defined in General Statutes § 25-32a, during the period from January 1, 2000 to December 31, 2000. The plaintiff owns a well that supplies water to a day care facility that he operates. The plaintiff claims that he is not subject to water company testing requirements because the children and staff at the day care facility do not drink the water that his well supplies and because the plaintiff complies with separate water testing requirements applicable to day care facilities. In Guarco v. Department of Public Health, Superior Court, judicial district of New Britain, No. 504932 (Nov. 9, 2001) ("Guarco I"), this court rejected these arguments in the plaintiff's appeal from the department's orders for the plaintiff to comply with separate testing requirements covering the period from October 31, 1999 to June 30, 2000. The court held that the plaintiff operates a "water company" even though no one at the facility drinks the water and that the plaintiff is subject to both the day care and the water company testing requirements because it operates both. The court adheres to this decision today. The court addresses only several new claims not raised by the plaintiff in Guarco I.
In pertinent part, section 25-32a defines "water company" as: "any individual, partnership, association, corporation, municipality or other entity, or the lessee thereof, who or which owns, maintains, operates, manages, controls, or employs any pond, lake, reservoir, well, stream or distributing plant or system that supplies water to two or more consumers or to twenty-five or more persons on a regular basis. . . ."
In a reply brief, the plaintiff attacks for the first time the department's finding that he operates a "non-transient non-community water system" as defined in § 19-13-B102 (a) (44) of the Regulations of Connecticut State Agencies. The plaintiff contends that this regulation does not apply because he does not operate a "public water system" based on the "Design Population," as set out in §§ 19-13-B102 (a) (51) and 16-262m-8 (a)(3) of the Regulations. It is improper for an appealing party to raise issues, especially of this complexity, for the first time in a reply brief. See Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 593 n. 26, 657 A.2d 212 (1995). By doing so, the plaintiff has denied the defendant the opportunity to respond in writing. Accordingly, the court finds that the plaintiff has abandoned this issue by not briefing it properly. See Merchant v. State Ethics Commission, 53 Conn. App. 808, 818, 733 A.2d 787 (1999). In any case, the department has reasonably interpreted its regulations to mean that the phrase "[a]ll other components described in 16-262m-l (a)" in the Design Population regulation at issue here, Regs., Conn. State Agencies § 16-262m-8 (a) (3), refers to the itemized components in the third sentence of § 16-262m-1 (a), and not to the definition of "Community Water System" or "System" in the first sentence of that paragraph. Such an interpretation by the agency charged with enforcing the regulatory scheme deserves considerable deference. See Griffin Hospital v. Commission on Hospitals Health Care, 200 Conn. 489, 496-97, 512 A.2d 199 (1986). The net effect of the department's interpretation of the regulations is that the definition of "non-transient non-community water system" is not limited to a "system which supplies water to the public piped for human consumption. . . ." within § 16-262m-l (a) of the Regulations and that the department can use "Estimated Population" to determine whether an entity like the plaintiff comprises a "public water system" within § 19-13-B102 (a) (51) of the Regulations. Based on this analysis, the plaintiff would qualify as having a "public water system" and therefore a "non-transient non-community water system" within § 19-13-B102 (a) (44).
DISCUSSION
I
The plaintiff's first new claim is that the hearing officer erroneously applied the doctrines of res judicata and collateral estoppel in determining that she was bound by the decision of the hearing officer inGuarco I, even though that decision was on appeal. The plaintiff cites no authority prohibiting an administrative hearing officer from relying on res judicata or collateral estoppel in these circumstances, thus essentially abandoning this claim by failing to brief it properly. SeeMerchant v. State Ethics Commission, 53 Conn. App. 808, 818, 733 A.2d 787 (1999). See also Convalescent Center of Bloomfield, Inc. v. Department of Income Maintenance, 208 Conn. 187, 195-202, 544 A.2d 604 (1988) (administrative adjudications have preclusive effect when there is an adequate opportunity to litigate and obtain judicial review). In any event, the hearing officer in this case stated that she reached an independent decision that the plaintiff operates a "water company" without reliance on the hearing officer's decision in Guarco I or the doctrine of res judicata. (Return of Record ("ROR"), Vol. 1, pp. 9-10.)
Pages 2-13 of Volume I of the record contain the department's final decision.
Further, even assuming that the hearing officer in this case erroneously relied on the findings and conclusions of the hearing officer in Guarco I, the plaintiff cannot show any prejudice or harm, which is required for him to prevail. See General Statutes § 4-183 (j). Although the plaintiff's briefs are not clear, it appears that the plaintiff claims that the hearing officer in this case ignored evidence that no one at the facility drinks the water and instead merely adopted the hearing officer's decision in Guarco I that had not made this finding. This claim does not advance the plaintiff's cause. In Guarco I, this court held that the plaintiff operates a water company, even assuming plaintiff's factual contention that no one at his facility drinks the water. Because the court has assumed the facts that the plaintiff apparently contends the hearing officer in this case ignored, this case stands in the precise posture that the plaintiff presumably contends it should have if the hearing officer in this case had heard the case independently. Accordingly, the plaintiff's claim that he was prejudiced because the hearing officer adopted the decision in Guarco I must fail.
Section 4-183 (j) provides in part that "[t]he court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced. . . ."
II
The plaintiff's second new claim is that, under General Statutes § 16-41 (e), the department lacked authority to impose civil penalties while the appeal in Guarco I was pending. There is no merit to this claim. First, as the hearing officer properly found, § 16-41 applies to the Department of Public Utility Control, not the Department of Public Health. (ROR, Vol. I, p. 10.) Further, subsection (e) says nothing about the stay of civil penalty proceedings due to the pendency of an appeal of an earlier civil penalty order of the DPUC or any other agency. Subsection (e) provides only that civil penalties are due and payable at the time of the receipt of the DPUC final order assessing the final penalty, without reference to any prior judicial decision on appeal. Independent of the statute, the plaintiff's position is that the department cannot impose sanctions for new violations merely because the plaintiff has chosen to appeal prior sanctions. Such a position, which would let the plaintiff decide whether he has to comply with state law, is untenable.
General Statutes § 16-1 (1) provides that, for purposes of Title 16 of the General Statutes, "`department' means the Department of Public Utility Control."
In pertinent part, General Statutes § 16-41 provides:
(a) Each (1) public service company and its officers, agents and employees, (2) electric supplier or person providing electric generation services without a license in violation of section 16-245, and its officers, agents and employees, (3) certified telecommunications provider or person providing telecommunications services without authorization pursuant to sections 16-247f to 16-247h, inclusive, and its officers, agents and employees, (4) person, public agency or public utility, as such terms are defined in section 16-345, subject to the requirements of chapter 293, (5) person subject to the registration requirements under section 16-258a, and (6) company, as defined in section 16-49, shall obey, observe and comply with all applicable provisions of this title and each applicable order made or applicable regulations adopted by theDepartment of Public Utility Control by virtue of this title so long as the same remains in force.
. . . .
(e) All hearings under this section shall be conducted under sections 4-176e to 4-184, inclusive. The final order of the department assessing a civil penalty shall be subject to appeal under section 4-183. No challenge to any final order of the department assessing a civil penalty shall be allowed as to any issue which could have been raised by an appeal of an earlier order of the department. Any civil penalty authorized by this section shall become due and payable (1) at the time of receipt of a final order in the case of a civil penalty assessed in such order after a hearing, (2) on the first day after the expiration of the period in which a hearing may be requested if no hearing is requested or (3) on the first day after the withdrawal of a request for hearing. (Emphasis added.)
In this situation, a plaintiff in an administrative appeal can request a stay of agency orders during the pendency of the administrative appeal pursuant to General Statutes § 4-183 (f). The plaintiff did move for a stay of the department's orders in this case based on the pendency of the appeal in Guarco I to the Appellate Court and this court granted a conditional stay.
III
The plaintiff's final new claim is that the department's actions violate the equal protection clause of the state and federal constitutions. Despite being afforded the opportunity to file a reply brief, the plaintiff cites no cases, provides no analysis, and points to no evidence in the record that he is being treated differently than any other similarly situated entity. Under these circumstances, the court finds that the plaintiff has abandoned the claim by failing to brief it properly. See Milner v. Commissioner of Correction, 63 Conn. App. 726, 739 n. 7, 779 A.2d 156 (2001); Merchant v. State Ethics Commission, supra, 53 Conn. App. 818.
CONCLUSION
The plaintiff having failed to sustain the grounds for his appeal, the appeal is dismissed.
___________________ Carl J. Schuman Judge, Superior Court