Kiyak v. Dept. of Agriculture ( 2022 )

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MICHAEL KIYAK v. DEPARTMENT
OF AGRICULTURE ET AL.
(AC 43314)
Cradle, Alexander and Harper, Js.
Syllabus
The plaintiff appealed to the Superior Court from the final decision of
the defendant Department of Agriculture upholding disposal orders to
euthanize the plaintiff’s dog, which had bitten several people. An animal
control officer for the defendant town of Fairfield issued the orders
pursuant to the statute (§ 22-358) pertaining to biting animals. A depart-
ment hearing officer had upheld the disposal orders in a proposed final
decision that the department then adopted as its final decision. The
Superior Court dismissed the plaintiff’s appeal from the department’s
decision, concluding, inter alia, that he failed to prove that the depart-
ment acted unreasonably, arbitrarily, illegally or in abuse of its discretion
in upholding the disposal orders. On appeal to this court, the plaintiff
claimed, inter alia, that the Superior Court erred in dismissing his appeal
because § 22-358 (c) was unconstitutionally vague as applied in that the
word ‘‘necessary’’ in the statute, concerning the issuance of a disposal
order, authorizes arbitrary enforcement of the statute, and that his right
to procedural due process was violated because the hearing officer
adhered to no known rules, standards or procedures in determining that
the disposal orders were necessary. Held:
1. The plaintiff’s claim that § 22-358 (c) was unconstitutionally vague as
applied was unavailing; the statute’s lack of an explicit definition of
‘‘necessary’’ did not render it void for vagueness, as § 22-358 gives a
person of ordinary intelligence a reasonable opportunity to know what
is prohibited and provides sufficient notice that animal control officers
are granted the discretion to decide what enforcement is necessary to
protect the public in the case of a biting dog.
2. The plaintiff could not prevail on his claim that his right to procedural
due process was violated because the hearing officer used inadequate
procedures in upholding the decision of the animal control officer; the
Superior Court’s procedural due process analysis pursuant to the factors
enunciated in Mathews v. Eldridge (424 U.S. 319) showed that the
plaintiff’s private interest in the possession of his dog was outweighed
by the long-standing recognition that dogs that cause harm are subject
to the police power of the state, the appeal procedures provided to the
plaintiff pursuant to the Uniform Administrative Procedure Act (§ 4-166
et seq.) afforded him an adequate opportunity to challenge the disposal
orders, and the imposition on the department of an obligation to provide
a probable cause hearing in addition to the hearing before the hearing
officer would be unduly burdensome, as it would require essentially
duplicate proceedings.
3. The hearing officer did not abuse his discretion by admitting and consider-
ing the animal control officer’s expert testimony in light of the officer’s
knowledge, education and extensive experience and training in his posi-
tion as an animal control officer.
Argued September 22, 2021—officially released January 25, 2022
Procedural History
Appeal from the decision of the named defendant
affirming disposal orders for the plaintiff’s dog, brought
to the Superior Court in the judicial district of New
Britain and tried to the court, Huddleston, J.; judgment
dismissing the appeal, from which the plaintiff appealed
to this court. Affirmed.
Thompson G. Page, for the appellant (plaintiff).
Gail S. Shane, assistant attorney general, with whom,
on the brief was William Tong, attorney general, for
the appellee (named defendant).
Catherine L. Creager, for the appellee (defendant
town of Fairfield).
Opinion
ALEXANDER, J. The plaintiff, Michael Kiyak, appeals
from the judgment of the Superior Court dismissing his
administrative appeal from the final decision of the
defendant Department of Agriculture (department) to
uphold two disposal orders issued by an animal control
officer for the defendant town of Fairfield (town)1 to
euthanize the plaintiff’s German shepherd dog pursuant
to General Statutes § 22-358. On appeal, the plaintiff
claims that the court erred in dismissing his appeal
because (1) § 22-358 (c) is unconstitutionally vague as
applied in that the word ‘‘necessary,’’ concerning the
issuance of a disposal order, authorizes arbitrary enforce-
mentof the statute, (2) the department’s hearing officer
violated the plaintiff’s right to procedural due process
by using inadequate procedures in upholding the dis-
posal orders, and (3) the hearing officer erred in desig-
nating Animal Control Officer Paul Miller as an expert.
We affirm the judgment of the Superior Court dismiss-
ing the plaintiff’s appeal.
The department found the following facts that are
relevant to this appeal. ‘‘The plaintiff is the owner of a
German shepherd dog named Jack. At the time of the
hearing, the [plaintiff] was eighty-three years old and
resided with his eighty-one year old wife, Nancy Kiyak,
at 61 Lind Street in Fairfield . . . . Nancy Kiyak has
Alzheimer’s disease, and the plaintiff is her caregiver.
‘‘The plaintiff obtained Jack in 2014 or 2015. Jack
had previously been living in Florida and was named
‘Semper’ while living there.
‘‘On May 3, 2016, Lucy Meehan was jogging on Lind
Street, a public road, when Jack attacked and bit her
on her right leg, her arm, and her chest. . . . The bite
wounds required medical attention.
‘‘Meehan’s testimony was corroborated by the plain-
tiff, who testified that, when Jack attacked Meehan, the
plaintiff ran over to shield her from Jack because he
‘didn’t know if [Jack] was going to attack again.’ At the
time of this incident, Jack was a 100 pound dog. Meehan
did not provoke Jack. . . .
‘‘On May 27, 2016, the town issued a restraint order
on Jack and provided the plaintiff with the opportunity
to take Jack out of state. After the restraint order was
issued, some area residents expressed concern about
their safety, and Fairfield Animal Control reopened the
investigation to determine whether there were prior
incidents involving Jack.
‘‘One such incident had occurred in about December,
2015, when Jack bit the plaintiff’s wife, Nancy Kiyak,
in their home. At the hearing, the plaintiff confirmed
that incident, testifying that he had told his wife that
the dog was in the garage and that she should not go
into the garage. Because of her Alzheimer’s disease and
lack of memory, Nancy Kiyak went into the garage,
where Jack attacked and bit her. The plaintiff took his
wife to a walk-in clinic for treatment of the bite wound,
but he did not report the bite incident to an animal
control officer.
‘‘The animal control officer, Miller, traced Jack’s ori-
gins through his rabies tags to Florida and learned that
Jack . . . was involved in a biting incident in Florida.
The plaintiff confirmed the dog’s origin in Florida and
his name in Florida. According to a town exhibit, while
in Florida, Jack bit an eleven year old boy on his arm
while the boy was walking home from school, and the
wound required stitches.
‘‘Based on his continuing investigation, on July 15,
2016, Miller issued a disposal order on the dog . . .
citing three biting incidents: the bite incident involving
Meehan, the bite incident involving Nancy Kiyak, and
the bite incident in Florida. The plaintiff, who has been
unable to relocate Jack out of state, voluntarily took
Jack to the animal control facility on the same date
to address the impending disposal order. The plaintiff
appealed the disposal order to the department.
‘‘Jack was held at the Fairfield Animal Control facility
while the plaintiff’s appeal of the disposal order was
pending. The plaintiff was allowed to come in and feed
Jack. The plaintiff asked Miller not to allow anybody
near the dog . . . . On or about December 12, 2016,
the plaintiff was visiting Jack. The plaintiff did not have
Jack on a leash but was holding his choke collar while
preparing to take him out into an enclosed run for
exercise. Jack broke loose from the plaintiff and
attacked Emily Quintiliano, a kennel worker at the facil-
ity. Quintiliano, who has interacted with hundreds of
animals, testified that she did not provoke the attack
and that she had believed Jack was under the plaintiff’s
control. She testified that Jack approached her quickly,
barking and continuously growling, and backed her
down an aisle and against a wall before biting her. . . .
The bite caused scarring.
‘‘On December 24, 2016, Miller issued a second dis-
posal order on Jack. This order cited the biting incident
involving Quintiliano . . . in addition to the three pre-
vious bite incidents involving Jack. The plaintiff
appealed the second disposal order.
‘‘Miller has been an animal control officer for twenty-
nine years and has come in contact with thousands of
animals. He testified that he has not been involved in
many biting incidents where disposal orders have been
issued, and he does not issue them lightly. In this case,
he assessed the seriousness of the bites, the number
of bites, and past history. He testified that Jack is ‘mean
and aggressive’ and ‘one of the most dangerous dogs’
he has ever seen. . . .
‘‘Miller testified that Jack should stay in the custody
of animal control for the pendency of this case and that
it would be dangerous to release him. He testified that
the plaintiff has difficulty controlling Jack and that ‘Jack
is a clear and present risk and threat to public
safety.’ . . .
‘‘The town introduced a written statement by veteri-
narian John T. Kristy, who stated that Jack was ‘too
dangerous to handle for a reasonable physical examina-
tion.’ In examining Jack, Kristy feared for his own
safety. He stated that Jack is ‘large, strong and aggres-
sive, and should be handled with extreme caution due
to the potential for extreme physical injury.’
‘‘The plaintiff testified, to the contrary, that Jack ‘is
not very dangerous.’
‘‘The hearing officer found all four witnesses to be
honest and credible, but, in light of the evidence in the
record, he disagreed with the plaintiff’s opinion that
Jack ‘is not very dangerous.’ He found Miller’s testimony
and his assessment of Jack’s temperament to be credi-
ble and reliable. He found that Miller has expertise in
the assessment of aggressive or dangerous dogs, given
his twenty-nine years as an animal control officer, train-
ing received in the course of his employment, and train-
ing with the National Animal Control Officers. The hear-
ing officer also found Quintiliano’s testimony to be
credible and reliable in light of her considerable experi-
ence in handling dogs during her ten years as a ken-
nel keeper.
‘‘During the hearing, the plaintiff’s counsel argued
that ‘public safety’ was not an adequate justification for
issuing a disposal order or for holding Jack during the
pendency of the appeal. The hearing officer rejected
those arguments, noting that § 22-358 authorizes the
killing of dogs under several circumstances . . . and
allows for the issuance of restraint or disposal orders
as to dogs that bite. The hearing officer found that the
evidence in the record established that the plaintiff is
unable to control Jack because Jack bit Nancy Kiyak,
Meehan, and Quintiliano in the plaintiff’s presence, and
Jack actually broke free of the plaintiff in two of those
incidents.
‘‘The plaintiff’s counsel indicated during the proceed-
ings that he had filed suit in [the United States District
Court for the District of Connecticut] on behalf of the
Kiyaks. His arguments concerned alleged procedural
and constitutional violations. At no time did he argue
or offer evidence that Jack was not the dog that bit
Nancy Kiyak, Meehan, or Quintiliano, that Jack was not
aggressive or dangerous, that the bites were not serious,
or that Nancy Kiyak or other residents would not be
in danger if Jack was returned home. The plaintiff did
not present an alternative to a disposal order that could
have been considered.
‘‘The hearing officer concluded that the town had
proved, by a preponderance of the evidence, that Jack
is a dog of dangerous propensity and that the statutory
elements for issuance of a disposal order had been
satisfied. After review of the proposed decision, and
after hearing argument both from the plaintiff’s counsel
and from the plaintiff himself, the [C]ommissioner [of
Agriculture (commissioner)] adopted the proposed
decision as the final decision of the department.’’ (Inter-
nal quotation marks omitted.)
Thereafter, the plaintiff appealed to the Superior
Court and claimed that (1) § 22-358 (c) is unconstitu-
tionally vague and that its enforcement violated his
constitutional rights, (2) the hearing officer admitted
irrelevant and prejudicial information concerning the
dog and improper expert testimony by Miller, (3) the
town’s retention of the dog was an illegal taking without
due process, (4) the town’s decision to continue to hold
the dog because of Nancy Kiyak’s medical condition
violated the Americans with Disabilities Act of 1990, 42
U.S.C. § 12101 et seq. (2018), and the fourth, fifth and
fourteenth amendments to the United States constitu-
tion, and (5) the town’s continued retention of the dog
constitutes a forfeiture and is criminal in nature, invok-
ing constitutional protections that were denied to the
plaintiff. The court concluded that the plaintiff failed
to meet his burden of proving that the department acted
unreasonably, arbitrarily, illegally, or in abuse of its
discretion in upholding the disposal orders concerning
Jack. In addition, concerning the plaintiff’s claim that
he was deprived of procedural due process because the
department failed to provide him with a probable
cause hearing separate from the proceeding before its
hearing officer, the court concluded that, ‘‘[t]o impose
on the department an obligation to provide a probable
cause hearing . . . would be unduly burdensome
because it would require essentially duplicate proceed-
ings.’’ Accordingly, the Superior Court dismissed the
plaintiff’s administrative appeal. This appeal followed.
Additional facts will be set forth as necessary.
We begin our analysis by setting forth the applicable
standard of review. ‘‘It is well established that [j]udicial
review of [an administrative agency’s] action is gov-
erned by the Uniform Administrative Procedure Act
[(UAPA) General Statutes § 4-166 et seq.] . . . and the
scope of that review is very restricted. . . . With regard
to questions of fact, it is neither the function of the trial
court nor of this court to retry the case or to substitute
its judgment for that of the administrative agency. . . .
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. . . . [Thus] [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 reason-
ably and logically follow from such facts.’’ (Citation
omitted; internal quotation marks omitted.) Commis-
sion on Human Rights & Opportunities v. Cantillon,
207 Conn. App. 668, 672, 263 A.3d 887, cert. granted,
340 Conn. 909, 264 A.3d 94 (2021).
‘‘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 . . . .
In addition, although we have noted that [a]n agency’s
factual and discretionary determinations are to be
accorded considerable weight by the courts . . . we
have maintained that [c]ases that present pure ques-
tions of law . . . invoke a broader standard of review
than is ordinarily involved in deciding whether, in light
of the evidence, the agency has acted unreasonably,
arbitrarily, illegally or in abuse of its discretion. . . .
The plaintiff’s constitutional claims are therefore enti-
tled to plenary review.’’ (Citations omitted; internal quo-
tation 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). With these principles
in mind, we address the plaintiff’s claims in turn.
On appeal to this court, the plaintiff advances three
claims that properly were preserved for our review.2
First, he argues that § 22-358 (c) is unconstitutionally
vague as applied. Second, he claims that the hearing
officer violated his right to procedural due process by
using inadequate procedures in upholding the disposal
orders. Finally, he contends that the hearing officer
erred in designating Miller as an expert witness during
the hearing. We are not persuaded by these claims.
I
The plaintiff asserts that § 22-358 (c), which provides
in relevant part that ‘‘any animal control officer . . .
may make any order concerning the restraint or dis-
posal of any biting dog, cat or other animal as the
commissioner or such officer deems necessary,’’ is
unconstitutionally vague as applied because the term
‘‘necessary’’ in the statute authorizes arbitrary enforce-
ment. We disagree.
‘‘Laws must give a person of ordinary intelligence a
reasonable opportunity to know what is prohibited so
that he may act accordingly. . . . A statute is not void
for vagueness unless it clearly and unequivocally is
unconstitutional, making every presumption in favor
of its validity. . . . To demonstrate that [a statute] is
unconstitutionally vague as applied to [him], the [plain-
tiff] therefore must . . . demonstrate beyond a reason-
able doubt that [he] had inadequate notice of what was
prohibited or that [he was] the victim of arbitrary and
discriminatory enforcement. . . . If 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 . . . .’’ (Internal quotation marks
omitted.) State ex rel. Gregan v. Koczur, 287 Conn. 145,
156, 947 A.2d 282 (2008).
Although the plaintiff concedes that § 22-358 (c) has
been found to be clear and unambiguous,3 the plaintiff
makes a strained attempt to attack the word ‘‘neces-
sary’’ contained within the statute. The plaintiff argues
that the statute ‘‘provides no guidance on the meaning of
necessary.’’ (Emphasis added.) We are not persuaded.
As the Superior Court acknowledged, ‘‘[t]he plaintiff
asserted similar constitutional claims in an action
brought pursuant to 42 U.S.C. § 1983 in the federal dis-
trict court. The District Court dismissed the plaintiff’s
claims.’’ In Kiyak v. Fairfield, United States District
Court, Docket No. 3:17-cv-01426 (AWT) (D. Conn. June
28, 2019), the plaintiff in the present case and his wife,
Nancy Kiyak, brought an action against the town and the
commissioner. The case concerned the same German
shepherd, Jack, and the same disposal orders issued
by Animal Control Officer Miller. The plaintiffs asserted
a number of claims, including a constitutional challenge
to the validity of § 22-358 (c). In the District Court’s
ruling on the commissioner’s motion to dismiss, the
court thoroughly addressed the constitutionality of
§ 22-358 (c): ‘‘Here, with respect to assessing the sever-
ity of the bite or attack to determine the type of enforce-
ment, § 22-358 (c) explicitly states that the [animal con-
trol officer] may make any order concerning the restraint
or disposal of any biting dog, cat or other animal as
the commissioner or such officer deems necessary.
. . . Even assuming arguendo that . . . § 22-358 (c)
provides for the exercise of unconstitutionally broad
discretion when scrutinized pursuant to a facial chal-
lenge, the conduct at issue here falls within the core
of the prohibition under § 22-358 (c). [Animal Control
Officer] Miller issued a restraining order against Jack
after he received a complaint that Jack bit the leg of a
jogger . . . . Issuing a restraining order against a dog
who bit someone is indicative of that dog’s potential
danger to the public . . . .’’ (Citation omitted; internal
quotation marks omitted.) Id.
In Miller v. Dept. of Agriculture, supra, 168 Conn.
App. 266 n.12, this court determined that, ‘‘by promul-
gating § 22-358, [the legislature] vested the animal con-
trol officer with broad discretion to make orders that
such officer deems necessary with respect to the
restraint or disposal of any biting dog . . . .’’ (Internal
quotation marks omitted.) The inherent discretion
afforded to animal control officers in the statute explic-
itly has been adjudicated and recognized by this court
in Miller. The discretion granted to the commissioner
and the animal control officers to determine whether
an order of restraint or disposal is necessary is informed
by the purpose of the statute, which is to protect the
public from biting dogs. This reflects the long-standing
history that use of the state’s police power is appro-
priate to protect the public from biting dogs. See, e.g.,
Sentell v. New Orleans & Carrollton Railroad Co., 166
U.S. 698, 704–705, 17 S. Ct. 693, 41 L. Ed. 1169 (1897).
Furthermore, in Lagnese v. Waterbury,, Docket No.
3:15-cv-975 (AWT), 2018 WL 1582546 (D. Conn. March
30, 2018), the plaintiff claimed that § 22-358 (c) was
unconstitutional both on its face and as applied
because, in part, ‘‘the [c]ommissioner . . . has never
promulgated any rules, policies, procedures, guidelines,
practices or regulations regarding the enforcement’’ of
the statute. Id., *1. In dismissing the plaintiff’s claims,
the United States District Court for the District of Con-
necticut determined that ‘‘the statute provides clear
guidance to animal control officers that orders concern-
ing restraint or disposal of a dog can only be made with
respect to a biting dog, and it is clear from the statute
that the animal control officers must exercise their dis-
cretion in determining whether no enforcement, a
restraint order, or a disposal order is most appropriate.
It should be noted that the exercise of discretion con-
templated in [§] 22-358 (c) should not be viewed in
isolation but in the context of the entire statute. . . .
The plaintiffs have not shown how requiring animal
control officers . . . to exercise their discretion and
judgment in making a decision as to what type of
enforcement, if any, is appropriate does more to autho-
rize or encourage arbitrary or discriminatory enforce-
ment than various other laws that must be enforced by
individuals performing a discretionary function . . . .’’
(Citation omitted; internal quotation marks omitted.)
Id., *3–4.
The plaintiff makes much of the word ‘‘necessary’’
in the statute. We are not persuaded that the lack of
an explicit definition of the word renders the statute
void for vagueness.4 See, e.g., State ex rel. Gregan v.
Koczur, supra, 287 Conn. 157 (concluding that General
Statutes § 22-329a is not void for vagueness despite its
failure to define ‘‘neglect’’). This statute gives a person
of ordinary intelligence a reasonable opportunity to
know what is prohibited and provides sufficient notice
that animal control officers are granted the discretion
to decide what enforcement is necessary to protect the
public in the case of a biting dog. Furthermore, the
statute uniformly and consistently has been adjudicated
to be clear and constitutional, including under the same
facts in the present appeal. See Kiyak v. Fairfield,
supra, United States District Court, Docket No. 3:17-cv-
01426 (AWT). We conclude, therefore, that the statute
is not unconstitutionally vague.
II
The plaintiff next claims that the hearing officer vio-
lated his right to procedural due process by using inade-
quate procedures in upholding the disposal orders. Spe-
cifically, the plaintiff claims that ‘‘[i]nadequate
procedures were used in issuing and upholding the dis-
posal order’’ because ‘‘the hearing officer adhered to
no known rules, regulations, standards, or procedures
in determining that the order was necessary.’’ (Internal
quotation marks omitted.) Thus, the plaintiff contends
that this court must decide what process is due by
applying the three balancing factors outlined in
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893,
47 L. Ed. 2d 18 (1976), which are: (1) the private interests
at stake, (2) the risk of erroneous deprivation of that
interest through the procedures used and the probable
value, if any, of alternative procedures, and (3) the
government’s interest, including the possible burdens of
alternative procedures. The Superior Court concluded,
however, that ‘‘[a]pplying the Mathews factors to the
evidence in this case5 . . . the plaintiff’s procedural
due process claim fails.’’ (Footnote added.) We agree
with the Superior Court.
‘‘We resolve due process claims pursuant to Mathews
v. Eldridge, [supra, 424 U.S. 334–35] . . . . Due pro-
cess . . . is not a technical conception with a fixed
content unrelated to time, place and circumstances.
. . . Rather, the [s]pecific dictates of due process gen-
erally require consideration of three distinct factors
. . . the private interest . . . the risk of erroneous
deprivation . . . and . . . the [state’s] interest . . .
[in] the additional or substitute procedural require-
ment[s] . . . .’’ (Internal quotation marks omitted.)
State v. Michael F., 208 Conn. App. 663, 674–75,
A.3d (2021).
First, the plaintiff’s private interest in the possession
of his dog is outweighed by the long-standing recogni-
tion that dogs that cause harm are subject to the police
power of the state. See Sentell v. New Orleans & Carrol-
lton Railroad Co., supra, 166 U.S. 704–705. Our legisla-
ture has granted animal control officers the discretion
to make orders with respect to the restraint or disposal
of a biting dog. It is undisputed in the present case that
the plaintiff’s dog has bitten several people. Second,
the administrative appeal procedures provided to the
plaintiff pursuant to the UAPA afforded him an adequate
opportunity to challenge the animal control officer’s
orders.6 Finally, we agree with the court that ‘‘[t]o
impose on the department an obligation to provide a
probable cause hearing . . . would be unduly burden-
some because it would require essentially duplicate
proceedings.’’ On the basis of our review of the record,
we agree with the court’s analysis of the Mathews fac-
tors and conclude that there is no due process violation.
III
Finally, the plaintiff claims that the hearing officer
erred in designating Miller as an expert witness. Specifi-
cally, the plaintiff claims that ‘‘it is unclear whether the
facts of Miller’s experience, employment and educa-
tion[al] history support his designation as an expert.’’
With respect to this claim, the court ruled that the
hearing officer did not abuse his discretion in admitting
and considering Miller’s expert opinion as to Jack’s
temperament. We agree with the court.
Administrative hearing officers have the same discre-
tion as any other trier of fact to determine the admissi-
bility and credibility of expert testimony. See Goldstar
Medical Services, Inc. v. Dept. of Social Services, 288
Conn. 790, 830, 955 A.2d 15 (2008). ‘‘[I]t is axiomatic
that the determination of whether a witness is qualified
to testify as an expert is an evidentiary matter . . .
which rests in the discretion of the trial court.’’ Glaser
v. Pullman & Comley, LLC, 88 Conn. App. 615, 621,
871 A.2d 392 (2005).
‘‘[Our Supreme Court has] previously stated that
administrative tribunals are not strictly bound by the
rules of evidence . . . . It is axiomatic . . . that it 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 con-
trary to law and in abuse of his discretion . . . .’’ (Cita-
tions omitted; internal quotation marks omitted.) Do v.
Commissioner of Motor Vehicles, 330 Conn. 651, 667–
68, 200 A.3d 681 (2019).
‘‘In order to reverse an agency decision on the basis
of an erroneous evidentiary ruling, it is necessary that
the appellant demonstrate that substantial rights of [his]
have been prejudiced because the administrative find-
ings, inferences, conclusions, or decisions are . . .
clearly erroneous in view of the reliable, probative, and
substantial evidence in the whole record. . . . [T]he
plaintiff bears the burden of demonstrating that a hear-
ing officer’s evidentiary ruling is arbitrary, illegal or an
abuse of discretion.’’ (Citation omitted; internal quota-
tion marks omitted.) Recycling, Inc. v. Commissioner
of Energy & Environmental Protection, 179 Conn. App.
127, 153–54, 178 A.3d 1043 (2018).
A witness may be qualified as an expert on the basis
of knowledge, skill, experience, training, education, or
otherwise. Conn. Code Evid. § 7-2. The legislature has
established training requirements for animal control
officers that include eighty or more hours of instruction.
See General Statutes § 22-328. Miller has been a certified
animal control officer since 1998, and his extensive
experience and training support the hearing officer’s
decision to ‘‘[admit] and [consider] Miller’s expert opin-
ion as to Jack’s temperament.’’ Given Miller’s knowl-
edge, education, and experience in his position as an
animal control officer, we conclude that the hearing
officer did not abuse his discretion by admitting and
considering Miller’s expert testimony.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The town has adopted in full the department’s brief to this court.
2
On appeal, the plaintiff raises a number of claims for the first time. First,
the plaintiff asserts that the hearing officer’s decision to uphold the disposal
order was arbitrary, capricious, and unreasonable. Second, the plaintiff
claims that the animal control officer’s failure to weigh alternatives in issuing
the disposal orders violated his right to procedural due process. Finally,
the plaintiff contends that § 22-358 (c) is an unconstitutionally overbroad
delegation of legislative authority.
‘‘We have repeatedly held that this court will not consider claimed errors
. . . unless it appears on the record that the question was distinctly raised
at trial and was ruled upon and decided by the court adversely to the
appellant’s claim.’’ (Internal quotation marks omitted.) Robinson v. Tindill,
208 Conn. App. 255, 269, A.3d , cert. denied, 340 Conn. 917, A.3d
(2021). On the basis of our review of the record, we conclude that each
of these claims were not properly preserved before the hearing officer or
the Superior Court, and we decline to review them.
3
See Lagnese v. Waterbury, Docket No. 3:15-cv-975 (AWT), 2018 WL
1582546, *3 (D. Conn. March 30, 2018). The plaintiff’s appellate counsel
previously has brought a number of cases making claims that attack the
validity of § 22-358 (c), including Speer v. Dept. of Agriculture, 183 Conn.
App. 298, 192 A.3d 489 (2019), Kiyak v. Fairfield, United States District
Court, Docket No. 3:17-cv-01426 (D. Conn. June 28, 2019), Lagnese v. Water-
bury, supra, 2018 WL 1582546, and Wanzer v. Plainville, United States
District Court, Docket No. 3:15-cv-16 (AWT) (D. Conn. March 28, 2018). In
Kiyak, Lagnese and Wanzer, the plaintiffs’ claims failed on the merits.
4
See State v. Legrand, 129 Conn. App. 239, 269–70, 20 A.3d 52 (‘‘[W]e are
mindful that [a] statute is not void for vagueness unless it clearly and
unequivocally is unconstitutional, making every presumption in favor of its
validity. . . . [T]he void for vagueness doctrine embodies two central pre-
cepts: the right to fair warning of the effect of a governing statute . . . and
the guarantee against standardless law enforcement. . . . If the meaning
of a statute can be fairly ascertained a statute will not be void for vagueness
. . . .’’ (Internal quotation marks omitted.)), cert. denied, 302 Conn. 912, 27
A.3d 371 (2011).
5
The plaintiff neither cited nor analyzed the Mathews factors in his brief
to the Superior Court. In response to the defendants’ arguments, however,
the Superior Court succinctly addressed the Mathews factors in its memoran-
dum of decision.
6
Our Supreme Court has held that ‘‘the procedures required by the UAPA
exceed the minimal procedural safeguards mandated by the due process
clause.’’ (Internal quotation marks omitted.) Pet v. Dept. of Health Services,
228 Conn. 651, 661, 638 A.2d 6 (1994).