Opinion
No. H15N-CR10-02540218-S
December 23, 2010
MEMORANDUM OF DECISION
The defendant has moved to dismiss the state's information for lack of subject matter jurisdiction and other grounds.
FACTS
The original information of July 18, 2007, charged the defendant, William S. Bergenty, with three counts of violating General Statutes § 19a-230 for failure to comply with Connecticut public health codes, specifically: accumulation of garbage, rubbish under Connecticut Public Health Code § 19-13-B21; improper storage of junk material under Connecticut Public Health Code § 19-13-B22; and mosquito breeding from stagnant water under Connecticut Public Health Code § 19-13-B31. Additionally, the defendant was charged with three counts for violations of failure to comply with Connecticut General Statutes, specifically, § 19a-206 for abatement of nuisances and sources of filth; § 19a-210 for removal of refuse and rubbish; and § 19a-213 for abolishment of mosquito breeding places. These violations allegedly occurred on June 1, 2007, and stem from a large accumulation of tires and other debris on the site of Shultz Salvage, Cronk Road, Plainville. On February 18, 2008, the defendant's application for accelerated pretrial rehabilitation (AR) was approved, with the condition that he remove the tires in an environmentally sound manner. On February 18, 2010, the defendant's accelerated rehabilitation was terminated and the matter returned to the Superior Court, Housing Division, for deliberate noncompliance with that special condition imposed by the court on February 18, 2008.
The operative substitute information, filed on February 18, 2010, modifies the original charges. The defendant is now charged solely with three counts of violating General Statutes § 19a-230 for: (1) failure to remove accumulation of garbage, rubbish; (2) improper storage of junk material; and (3) failure to prevent mosquito breeding from stagnant water, which necessarily implicate General Statutes §§ 19a-206, 19a-210 and 19a-213.
On July 29, 2010, the case was transferred to G.A. 15 for a full disposition (Strackbein, J.).
On March 19, 2010, the defendant filed his motion to dismiss the state's information under Practice Book § 41-8, supported by a memorandum of law. On June 1, 2010, the state filed its opposition to the defendant's motion to dismiss. Thereafter, on June 9, 2010, the defendant filed his supplemental memorandum of law in support of his motion to dismiss, and, on June 29, 2010, a second supplemental memorandum of law in support. On July 1, 2010, the state filed its opposition to the defendant's supplemental memorandums of law. Oral arguments were heard and an evidentiary hearing took place on July 1, 2010.
Also on July 1, 2010, the defendant appears to have re-filed his second supplemental memorandum of law.
DISCUSSION
Practice Book § 41-8 provides that, if capable of determination without a trial of the general issue, certain objections may be raised prior to trial by a motion to dismiss the information. Those objections include "[d]efects in the information including failure to charge an offense . . . [a]bsence of jurisdiction of the court over the defendant or the subject matter . . . [i]nsufficiency of evidence or cause to justify the bringing or continuing of such information or the placing of the defendant on trial . . . [c]laim that the law defining the offense charged is unconstitutional or otherwise invalid . . ." Practice Book § 41-8.
"Where a motion to dismiss information against an accused is made prior to trial, only probable cause sufficient to justify the continued prosecution need be established. The `probable cause determination is, simply, an analysis of probabilities . . . The determination is not a technical one, but is informed by the factual and practical considerations of everyday life on which reasonable and prudent [persons], not legal technicians, act . . . The existence of probable cause does not turn on whether the defendant could have been convicted on the same available evidence . . . Furthermore, we have concluded that proof of probable cause requires less than proof by a preponderance of the evidence.' . . . To establish probable cause, the state was not required to present evidence as to each of the elements of the offense in a form that would be admissible at a later trial." (Citation omitted; internal quotation marks omitted.) State v. Howell, 98 Conn.App. 369, 378, 908 A.2d 1145 (2006). "In determining whether the evidence proffered by the state is adequate to avoid dismissal, such proof must be viewed in the light most favorable to the state." State v. Kinchen, 243 Conn. 690, 702, 707 A.2d, 1255 (1998).
As a preliminary matter, the substitute operative information charges the defendant only under General Statutes § 19a-230, and does not specifically charge him with three counts of violating General Statutes §§ 19a-206, 19a-210 and 19a-213 as the original information did. General Statutes § 19a-230, entitled "Fines and penalties," provides: "Any person who violates any provision of this chapter or any legal order of a director of health or board of health, for which no other penalty is provided, shall be fined not more than one hundred dollars or imprisoned not more than three months or both." General Statutes §§ 19a-206, 19a-210 and 19a-213 are all contained within chapter 368e, entitled "Municipal Health Authorities," and qualify as provisions of it. Therefore, the three counts of violating General Statutes § 19a-230 implicitly reference violations of General Statutes §§ 19a-206, 19a-210 and 19a-213.
I General Statutes § 19a-206
The defendant first moves to dismiss on the ground that the court lacks subject matter jurisdiction over the charge that the defendant has failed to remove an accumulation of garbage or rubbish at the property in question in violation of § 19a-206 because a prosecution under § 19a-230 may only be brought when no other penalty is provided, and § 19a-206 provides for civil penalties.
The state takes the position that the director of health has authority to but need not institute a civil action on behalf of the town to collect civil penalties allowed for by the statute, and no such alternative civil action has been initiated in this case.
The defendant replies that if civil penalties are provided by statute, then the director of health cannot then pursue a criminal case, to which the state replies that the statute itself, in (b)(3) provides that "[t]he owner or occupant of such property, or both, shall be subject to the provisions of 19a-36, 19a-220 and 19a-230" and "the legislative intent is clear that violators are subject to additional sections" which also have their own penalties.
General Statutes § 19a-206 is entitled "Duties of municipal directors of health. Nuisances and sources of filth. Injunctions. Civil penalties. Authority of town director within city or borough. Availability of relocation assistance is required, is necessary." It provides in relevant part: "(a) Town, city and borough directors of health or their authorized agents shall, within their respective jurisdictions, examine all nuisances and sources of filth injurious to the public health, cause such nuisances to be abated or remediated and cause to be removed all filth which in their judgment may endanger the health of the inhabitants. Any owner or occupant of any property who maintains such property, whether real or personal, or any part thereof, in a manner which violates the provisions of the Public Health Code enacted pursuant to the authority of Sections 19a-36 and 19a-37 shall be deemed to be maintaining a nuisance or source of filth injurious to the public health. Any local director of health or his authorized agent or a sanitarian authorized by such director may enter all places within his jurisdiction where there is just cause to suspect any nuisance or source of filth exists, and abate or remediate or cause to be abated or remediated such nuisance and remove or cause to be removed such filth.
"(b) When any such nuisance or source of filth is found on private property, such director of health shall order the owner or occupant of such property, or both, to remove, abate or remediate the same within such time as the director directs. If the owner of such property is a registrant, such director may deliver the order in accordance with Section 7-148ii, provided nothing in this section shall preclude a director from providing notice in another manner permitted by applicable law. If such order is not complied with within the time fixed by such director: (1) Such director, or any official of such town, city or borough authorized to institute actions on behalf of such town, city or borough, may institute and maintain a civil action for injunctive relief in any court of competent jurisdiction to require the abatement or remediation of such nuisance, the removal of such filth and the restraining and prohibiting of acts which caused such nuisance or filth, and such court shall have power to grant such injunctive relief upon notice and hearing; (2)(A) the owner or occupant of such property, or both, shall be subject to a civil penalty of two hundred fifty dollars per day for each day such nuisance is maintained or such filth is allowed to remain after the time fixed by the director in his order has expired . . . except that the owner or occupant of such property or any part thereof on which a public eating place is conducted shall not be subject to the provisions of this subdivision, but shall be subject to the provisions of subdivision (3) of this subsection, and (B) such civil penalty may be collected in a civil proceeding by the director of health or any official of such town, city or borough authorized to institute civil actions and shall be payable to the treasurer of such city, town or borough; and (3) the owner or occupant of such property, or both, shall be subject to the provisions of Sections 19a-36, 19a-220 and 19a-230. (Emphasis added.) General Statutes § 19a-206.
"When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) Fairchild Heights, Inc. v. Amaro, 293 Conn. 1, 8-9, 976 A.2d 668 (2009).
The language of § 19a-230 appears to provide that it may be violated only if a person violates another provision of the chapter, 368e, Municipal Health Authorities, which encompasses §§ 19a-200 through 19a-239. General Statutes § 19a-206(a), by its terms, provides a civil penalty, namely, that "the owner or occupant of such property, or both, shall be subject to a civil penalty of two hundred fifty dollars per day for each day such nuisance is maintained or such filth is allowed to remain after the time fixed by the director in his order has expired . . . and (B) such civil penalty may be collected in a civil proceeding by the director of health or any official of such town, city or borough authorized to institute civil actions and shall be payable to the treasurer of such city, town or borough . . ." (Emphasis added.) By looking only at subsection (a) of § 19a-206, then, it appears that § 19a-206 provides a penalty such that § 19a-230 cannot apply.
However, § 19a-206(b)(3) states that "the owner or occupant of such property, or both, shall be subject to the provisions of Sections 19a-36, 19a-220 and 19a-230." (Emphasis added.) Reading both statutes together, the provisions of § 19a-206 and § 19a-230 appear to be inconsistent. The only way to reconcile § 19a-230 and § 19a-206 is to read "for which no other penalty is provided" in § 19a-230 as "for which no other [criminal] penalty is provided." In this way, because § 19a-206 provides only a civil penalty, but not a criminal penalty, then a charge for violation under § 19a-230 can stand. Reading the word "criminal" into § 19a-230 does not work absurd results, especially in light of the specific language in § 19a-206(b)(3) that the penalties in § 19a-230 apply. Section 19a-230 is not susceptible to more than one reasonable interpretation. By enacting § 19a-206, the legislature made a violator subject to a civil penalty provided by § 19a-206, as well as a criminal penalty for violation of § 19a-36 of the public health code, as well as a criminal penalty for violation of § 19a-230. It makes little sense for the legislature to plainly state that one who violates § 19a-206 is subject to § 19a-230 and then for the court to interpret § 19a-230 in such a way that its penalties can never apply to a violation of § 19a-206. Simply, if § 19a-230 can never be applicable, the legislature would not have stated the opposite in § 19a-206.
General Statutes § 19a-36(a)(7) provides that "[a]ny person who violates any provision of the Public Health Code shall be fined not more than one hundred dollars or imprisoned not more than three months, or both."
For the foregoing reasons, the defendant's motion to dismiss the count for violation of § 19a-230 on the ground that a violation of § 19a-230 can only be brought when no other penalty is provided is denied.
II General Statutes § 19a-213: Void for Vagueness
The defendant next argues that General Statutes § 19a-213 should be declared void for vagueness in violation of the due process clause of the fourteenth amendment.
General Statutes § 19a-213, entitled "Mosquito-breeding places; treatment," provides: "When it has been brought to the attention of a director of health or board of health that rain water barrels, tin cans, bottles or other receptacles or pools near human habitations are breeding mosquitoes, such director of health or board of health shall investigate and cause any such breeding places to be abolished, screened or treated in such manner as to prevent the breeding of mosquitoes. The director of health, or any inspector or agent employed by him, may enter any premises in the performance of his duties under this section." (Emphasis added.) General Statutes § 19a-213.
The defendant's claim rests on the legislature's failure to define "near," which is defined by Black's Law Dictionary as "a relative term without positive or precise meaning." He asks how a property owner can know if he is violating the law, especially because the General Assembly could have stated "`within' so many feet or yards of `human habitation.'" In short, the statute leaves to the health director, the court or the jury the meaning of "near human habitation."
The defendant originally took the position that there is no factual basis for sustaining a conviction under General Statutes § 19a-213 because the area where the alleged mosquito infestation is situated is not "near human habitations" as required by the statute, and the state will not be able to prove that it is. He abandoned this argument in favor of one for violation of constitutional due process.
The state did not respond on the papers to the defendant's void for vagueness argument, but did set forth in its first oppositional memorandum that the understanding of "near" from dictionaries and the like, is "proximate, close by, about." At oral argument, the state also noted that the defendant did not present evidence regarding the location of the subject property, what it is situated next to, and therefore has not sustained his burden on a motion to dismiss.
"[A] law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law." Baggett v. Bullitt, 377 U.S. 360, 367, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964); see also State v. Schriver, 207 Conn. 456, 459, 542 A.2d 686 (1988); State v. Cavallo, 200 Conn. 664, 670, 513 A.2d 646 (1986).
It is well established law that "[t]he party attacking a validly enacted statute . . . bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and [the courts] indulge in every presumption in favor of the statutes' constitutionality." State v. Jason B., 248 Conn. 543, 556, 729 A.2d 760, cert. denied, 528 U.S. 967, 120 S.Ct. 406, 145 L.Ed.2d 316 (1999).
"`In our assessment of whether the statute passes constitutional muster, we proceed from the well recognized jurisprudential principle that [t]he party attacking a validly enacted statute bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute's constitutionality . . . The constitutional injunction that is commonly referred to as the void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement . . . Thus, [i]n order to surmount a vagueness challenge, a statute [must] afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited . . . Furthermore, [i]f the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties . . . References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute's meaning to determine if it gives fair warning.' (Citations omitted; internal quotation marks omitted.) State v. Jason B., [ supra,] 248 Conn. 556." State v. Hall, 82 Conn.App. 435. 441-42 (2004).
Our Supreme Court further set forth the applicable standard of law in regard to reviewing a claim challenging a statute as constitutionally vague. In State v. Lewis, 273 Conn. 509, 515 (2005), it stated: "The general rule is that the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute's applicability to the particular facts at issue . . . To do otherwise, absent the appearance that the statute in question intrudes upon fundamental guarantees, particularly first amendment freedoms, would be to put courts in the undesirable position of considering every conceivable situation which might possibly arise in the application of [the statute] . . . Thus, outside the context of the first amendment, in order to challenge successfully the facial validity of a statute, a party is required to demonstrate as a threshold matter that the statute may not be applied constitutionally to the facts of [the] case." (Emphasis added; internal quotation marks omitted.)
"Accordingly, to establish the unconstitutionality of the statute as applied to him, it was incumbent on the defendant to present a factual record demonstrating how the statute was in fact applied to him. Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 591, 590 A.2d 447 (1991) (`[t]o demonstrate that a statute is unconstitutionally vague as applied to him, a litigant must therefore demonstrate beyond a reasonable doubt that he had inadequate notice of what was prohibited or that he was the victim of arbitrary and discriminatory enforcement'); State v. Hernandez, 204 Conn. 377, 385, 528 A.2d 794 (1987) (`[a] party contesting a statute's constitutionality has a heavy burden to prove unconstitutionality beyond a reasonable doubt')." State v. Lewis, supra, 273 Conn. 515-16.
"Although we generally review a trial court's factual findings under the `clearly erroneous' standard, when a trial court makes a decision based on pleadings and other documents, rather than on the live testimony of witnesses, we review its conclusions as questions of law. Morton Buildings, Inc. v. Bannon, 222 Conn. 49, 53-54, 607 A.2d 424 (1992) (`In this case, the trial court's determinations were based on a record that consisted solely of a stipulation of facts, written briefs, and oral arguments by counsel. The trial court had no occasion to evaluate the credibility of witnesses or to assess the intent of the parties in light of additional evidence first presented at trial. The record before the trial court was, therefore, identical with the record before this court. In these circumstances, the legal inferences properly to be drawn from the parties' definitive stipulation of facts raise questions of law rather than of fact.') . . . Accordingly, because the trial court in the present case made its decision based on pleadings and other documents that were not uncontested, rather than on the live testimony of witnesses, we review the ruling of the trial court in this case as though it made legal determinations, not factual findings." State v. Lewis, supra, 273 Conn. 516-17.
The Lewis court found, however, that the issue of whether the statute was unconstitutional as applied to the defendant depended on factual findings and that "in the absence of either undisputed facts, concessions by the state that the arrest warrant application constituted the pertinent evidence in its entirety, or a full evidentiary hearing, the trial court could not, as a matter of law, have made the factual findings essential to a determination of the issue. See State v. Indrisano, 228 Conn. 795, 800, 640 A.2d 986 (1994) (`[t]o enable us to review a claim that a statute is vague as applied, the record must further reflect the conduct that formed the basis of the defendant's conviction.')." State v. Lewis, supra, 273 Conn. 517-18.
The court further determined that "[i]t was not incumbent upon the state to provide the evidence upon which the trial court could make factual findings essential to the defendant's challenge to the statute as applied to him. The burden rests with the party mounting the constitutional challenge to provide an adequate factual record in order to demonstrate the statute's actual adverse impact on him and not merely its impact under some hypothetical set of facts as yet unproven. State v. Lewis, supra, 273 Conn. 518.
"`Determination of the scope and constitutionality of legislation in advance of its immediate adverse effect in the context of a concrete case involves too remote and abstract an inquiry for the proper exercise of the judicial function.' (Internal quotation marks omitted.) Bell Atlantic Mobile, Inc. v. Dept. of Public Utility Control, 253 Conn. 453, 490, 754 A.2d 128 (2000). A party `cannot mount a constitutional challenge to a statute on the basis of its possible applications in circumstances not presented by his own case, unless first amendment freedoms are affected, a situation not claimed to exist here.' State v. Madera, [ 198 Conn. 92,] 106, 503 A.2d 136 (1985); see also Id., 106-07 (`In the absence of a clear indication in the record that the state is relying upon a claim that the defendant "recklessly" caused the destruction of the apartment building and thus committed arson in the third degree as the predicate offense for arson murder, the defendant is not entitled to an adjudication of the constitutional claims raised in his motion to dismiss. As we have noted, the present record discloses that the state asserts the contrary, relying wholly upon a claim that the defendant intended to destroy or damage the apartment building when he started the fire on the stairway.')." State v. Lewis, supra, 273 Conn. 518-19.
The Lewis court found that, in the absence of a sufficient evidentiary record, the trial court improperly granted the defendant's motion to dismiss, and reversed and remanded to the trial court to deny the defendant's motion to dismiss. State v. Lewis, supra, 273 Conn. 519.
The facts of the present case are analogous to those in Lewis, supra. First, the defendant's claim here does not implicate his first amendment rights such as freedom of speech. Therefore, he must demonstrate how the statute was actually applied to him. Here, as in Lewis, the evidentiary record is insufficient. Although an evidentiary hearing was held on July 1, 2010, the sole witness called by the defendant, Marco Palmieri, Sanitarian for the Town of Plainville, was not questioned about where the closest human habitation is located with respect to the subject property. Additionally, the defendant failed to present any other evidence on the issue with his motion to dismiss. The defendant merely argued at the evidentiary hearing that no residence can be seen from the subject property. As established in CT Page 1749 Lewis, supra, it is not the state's burden to bring forth these facts at this time. Absent a sufficient factual record, therefore, the court cannot find facts necessary to make a determination as to the statute's vagueness.
For this reason, the defendant's motion to dismiss the count for violation of § 19a-230 for violation of § 19a-213 on the ground that § 19a-213 is void for vagueness is denied.
III General Statutes § 19a-210: Standing
The defendant next seeks to dismiss the charge implicating General Statutes § 19a-210 for improper storage of junk material because the statute authorizes action by a town health director "upon the written complaint of any person having an interest in any land." Here, the only parties having an interest in the subject property are Schultz Salvage, Inc., and the defendant, who owns the company's stock. Neither of these parties made a written complaint to the Plainville health director.
General Statutes § 19a-210, entitled "Removal of refuse," provides: "Any board of health or borough or town director of health may, upon the written complaint of any person having an interest in any land, cause the removal of refuse and rubbish from such land and shall apportion the expenses of such removal among the co-owners; provided the cost of removal of any refuse and rubbish caused by the alteration or erection of any structure on such land shall be charged to the owner or owners causing such alteration or erection."
The state first challenges the defendant's standing argument that only an owner is a person of interest in land and would have to provide a written report to the director of health in order to conduct an investigation. The state labels this conclusion as inconsistent with the statutory duties imposed on the director of health under General Statutes §§ 19a-200, 19a-206, and 19a-207. Then it takes the position that citizens of the town have an interest in land in their community and the town manager made the initial request for an investigation, and that precluding the director of health from bringing suit would be in conflict with the powers vested in the director of health by the legislation.
The defendant abandoned his initial ground for dismissal that he cannot be held in violation of General Statutes § 19a-210 because there is no factual basis for the charge that defendant is guilty of improper storage of junk material because defendant has not in fact stored any "junk material" at the property in question and the state has no proof that he has done so.
Turning now to the statutes cited by the state, General Statutes § 19a-200 merely grants each town the authority to nominate a director of health. It does not discuss the duties of the director of health. However, General Statutes § 19a-207, entitled "Duties of local officials. Emergencies. Regulations," gives the local director of health the power to enforce the Public Health Code and any accompanying regulations. It provides: "The local director of health or his authorized agent or the board of health shall enforce or assist in the enforcement of the Public Health Code and such regulations as may be adopted by the Commissioner of Public Health. Towns, cities and boroughs may retain the power to adopt, by ordinance, sanitary rules and regulations, but no such rule or regulation shall be inconsistent with the Public Health Code as adopted by said commissioner. In any emergency when the health of any locality is menaced or when any local board of health or director of health fails to comply with recommendations of the Department of Public Health, said department may enforce such regulations as may be required for the protection of the public health." General Statutes § 19a-207.
Finally, General Statutes § 19a-206, discussed above, specifically imparts to the directors of health the power "within their respective jurisdictions, [to] examine all nuisances and sources of filth injurious to the public health, cause such nuisances to be abated or remediated and cause to be removed all filth which in their judgment may endanger the health of the inhabitants."
The director of health, therefore, has the power to examine and then remove the source of filth, pursuant to General Statutes § 19a-206. General Statutes § 19a-210, however, has in place a specific prerequisite that a written complaint be issued by someone who has a verifiable interest in the land. Here, a director of health or a citizen of Plainville does not hold one of any number of possible interests in land — beneficial, equitable, financial, future. An argument might be advanced that a citizen holds an interest in the use and enjoyment of land, which, according to Black's Law Dictionary, "includes not only the interests that a person may have for residential, agricultural, commercial, industrial, and other purposes, but also interests in having the present-use value of the land unimpaired by changes in its physical condition." Black's Law Dictionary (9th Ed. 2009). Such an interest, however, is in the use and enjoyment of a person's own land, not someone else's land. Here, the only sort of general interest that citizens would have in the defendant's land would be the interest in not having their own land adversely affected by the public nuisance on the defendant's land, and preservation of that interest is accomplished through General Statutes § 19a-206, which gives the director of health the power to eradicate public nuisances.
Absent the verifiable interest in land required by § 19a-210, the court denies the defendant's motion to dismiss the count for violation of § 19a-230 for violation of § 19a-210 on the ground that the state lacks standing to bring an action to enforce § 19a-210.
IV Due Process: Mens Rea Requirement
Lastly, the defendant argues that the prosecution amounts to a denial of due process in violation of the fourteenth amendment because it seeks to hold the defendant liable for conduct or inaction that he has no personal responsibility for, that simply because he occupies the Cronk Road property, that he should be "deemed to be maintaining a nuisance or source of filthy injurious to public health." In essence, his constitutional attack is directed at § 19a-206. Specifically, he argues that the state is circling around the mens rea requirement to hold someone criminally liable for conduct or inaction and that the state must prove that the defendant, when he came into possession of the Cronk Road property, knew that the presence of the old tires constituted a public health hazard. The state cannot simply assume that he had such knowledge. The defendant is quick to point out the difference between his status here and that of a landlord who is held strictly liable for failure to repair the apartment house because the landlord has a statutory duty to keep the property in good repair. He maintains that there is no proof that the DEP issued the defendant an order requiring him to do what the state alleges he failed to do here, and furthermore, that there is no statute making the defendant, an occupant of the property, responsible for clearing the property of tires that other parties deposited there.
The state counters that the pending public health violation is similar to the strict liability charges in State v. Nanowski, 56 Conn.App. 649, 746 A.2d 177, cert. denied, 252 Conn. 952, 749 A.2d 1203 (2000), and for this reason, the count, at least with respect to § 19a-206, should not be dismissed.
In Nanowski, supra, the court was presented with a constitutional attack on General Statutes § 31-71, a statute that imposes sanctions against an employer for failure to pay wages to employees. The court analyzed the nature of the statute, stating that "[w]hile many of these duties are sanctioned by a more strict civil liability, lawmakers . . . have sought to make such regulations more effective by invoking criminal sanctions to be applied by the familiar technique of criminal prosecutions and convictions. This has confronted the courts with a multitude of prosecutions, based on statutes or administrative regulations . . . These cases do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify that intent is a necessary element.
"It is well established that a criminal statute is not necessarily unconstitutional because it imposes strict liability. [P]ublic policy may require that in the prohibition or punishment of particular acts it may be provided that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance. Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 70, 30 S. Ct. 663, 54 L. Ed. 930 (1910). The constitutional requirement of due process is not violated merely because mens rea is not a required element of a prescribed crime. United States v. Greenbaum, 138 F.2d 437, 438 (3d Cir. 1943)." (Internal quotation marks omitted.) State v. Merdinger, supra, 37 Conn.App. 382-83." (Internal quotation marks omitted.) State v. Nanowski, supra, 56 Conn.App. 654-55.
"The imposition of strict liability for an offense, without regard to the offender's mental state, is most commonly found in the regulation of activities involving public health, safety, and welfare." Although a criminal conviction generally requires both an act and a criminal or wrongful intent, the general rule that intent is an element of an offense does not always apply to public welfare offenses created by statute, and `public welfare' statutes often dispense with the intent requirement, imposing, instead, absolute liability.
"Offenses aimed primarily at the protection of public welfare and safety may be created as strict-liability offenses, with no scienter required other than the mens rea needed to commit the prohibited act. The imposition in this context of absolute liability may be explained on the grounds that the proscribed conduct may seriously threaten a community's health or safety. Under this view, the threat to the public health and safety posed by the thing or activity that is the object of the statute is considered sufficient to place a defendant on notice of the likelihood of its regulation, and, thus, to excuse the need to prove mens rea. The mens rea requirement is not needed to ensure fair notice of public welfare offenses. However, the exception for public welfare offenses to the general rule requiring mens rea is narrow.
"The primary purpose of enforcing such statutes is to protect a victim from the potential of serious harm, not to punish the offender. Strict liability public welfare offenses typically are offenses that involve only light or relatively minor penalties and do no grave harm to the offender's reputation." 21 Am.Jur.2d 240-41, Criminal Law § 133 (2008).
Section 19a-206 plainly states that "[a]ny owner or occupant of any property who maintains such property, whether real or personal, or any part thereof, in a manner which violates the provisions of the Public Health Code enacted pursuant to the authority of Sections 19a-36 and 19a-37 shall be deemed to be maintaining a nuisance or source of filth injurious to the public health." Furthermore, "[w]hen any such nuisance or source of filth is found on private property, such director of health shall order the owner or occupant of such property, or both, to remove or abate or remediate the same within such time as the director directs." Id.
Section 19a-206 is properly characterized as a strict liability offense. A close reading of the statute reveals no requirement of knowledge on the part of the owner or occupant of the land. Furthermore, § 19a-206 falls within the category of regulation of activities involving public health, safety and welfare, and qualifies as a public health statute. Additionally, the fines imposed by § 19a-206, via a separate civil action, are $250 each day the nuisance is maintained. While this may not be considered a minimal fee, the director of health must first institute a civil action in order to collect it. The direct criminal penalty imposed by § 19a-230, however, is somewhat minimal — not more than $100 or three months imprisonment or both.
Assuming this statute is one for strict liability, the director of public health is charged with enforcement of it, and the only requirement that he must meet, in order to provide notice, is to order the owner or occupant of the property to remove or abate or remediate according to the director's timetable. The defendant here argues that there is no proof that the DEP issued the defendant an order requiring him to do what the state alleges he failed to do here. As discussed above, "[i]n determining whether the evidence proffered by the state is adequate to avoid dismissal, such proof must be viewed in the light most favorable to the state." State v. Kitchen, supra, 243 Conn. 690. Here, the defendant's file contains within it the affidavit of Marco Palmieri, Sanitarian of the Town of Plainville, attached to the original information, wherein he states that "[o]n May 14, 2007 I received a call from DEP notifying me of the presence of a hazardous waste, found within the fourteen (14) extremely large tanks located within Shultz Salvage, that their department has deemed to pose an immediate threat to human health and the environment, and that they delivered, `By Hand' a letter to the accused informing him of the same and that he is required to take immediate steps, with 24 hours, to remove the hazardous waste from the site, by hiring a qualified contractor, or that the DEP will remove the hazardous waste themselves and seek reimbursement." This is sufficient evidence to demonstrate that the defendant was issued an order by the DEP, and the state's charge for violation implicating § 19a-206 can stand.
Because General Statutes § 19a-206 is akin to a strict liability statute, and because there is some evidence to determine that the defendant was issued a warning by the DEP, the court denies the defendant's motion to dismiss the count for violation of § 19a-230 for violation of § 19a-206 on the ground that the state has not met the mens rea requirement.
So ordered.