Kiyak v. Connecticut Department of Agriculture, HHBCV186042188S
| Decision Date | 05 August 2019 |
| Docket Number | HHBCV186042188S |
| Court | Connecticut Superior Court |
| Parties | Michael Kiyak v. Connecticut Department of Agriculture et al. |
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Huddleston, Sheila A., J.
The plaintiff, Michael Kiyak, appeals the final decision of the defendant Department of Agriculture (department), which upheld an order of the defendant town of Fairfield (town) requiring the disposal of the plaintiff’s dog. The plaintiff claims on appeal that (1) General Statutes § 22-358(c), which authorizes destruction of a "biting dog," is unconstitutionally vague and its enforcement violates the plaintiff’s constitutional rights; (2) the hearing officer admitted irrelevant and prejudicial information concerning the dog and improper expert testimony by the town’s animal control officer; (3) the town’s retention of the dog is an illegal taking without due process; (4) the town’s decision to continue to hold the dog because of the plaintiff’s wife’s mental condition violates the Americans with Disabilities Act and the fourth, fifth, and fourteenth amendments to the United States Constitution; and (5) the town’s continued retention of the dog constitutes a forfeiture and is criminal in nature, invoking constitutional protections that were denied to the plaintiff. The defendants argue, in response that (1) § 22-358 is not unconstitutionally vague; (2) the hearing officer did not erroneously admit irrelevant evidence or improper expert opinion; (3) the plaintiff’s constitutional right to due process has not been violated (4) the plaintiff lacks standing to assert a claim on behalf of his wife; and (5) the retention of the dog is not a forfeiture. For the reasons stated herein, the court agrees with the defendants. The plaintiff’s appeal is dismissed.
The department received the plaintiff’s appeals of disposal orders issued by the town on the plaintiff’s German Shepherd dog, "Jack." On August 10, 2017, the Commissioner of Agriculture, Steven K. Reviczky (commissioner), designated Wayne Kasacek as the hearing officer. A contested case hearing was held on September 7, 2017, at which the town presented four witnesses and ten exhibits. The plaintiff was present at the hearing, was represented by counsel, and was called as a witness by the town. Other witnesses included a town animal control officer, Paul Miller, and two bite victims, Lucy Meehan and Emily Quintiliano. The plaintiff did not present any witnesses or exhibits. At the end of the hearing, both parties indicated that they had presented everything they wished to present.
On October 24, 2017, the hearing officer issued a proposed final decision. The plaintiff requested oral argument, which was held before Commissioner Reviczky on November 16, 2017. On December 8, 2017, the commissioner adopted the proposed final decision as the final decision, affirming the disposal order. The plaintiff moved for reconsideration on December 27, 2017. That motion was denied, and this appeal followed.
The department found the following facts that are material to this appeal. The plaintiff is the owner of a German Shepherd dog named Jack. At the time of the hearing, the owner was eighty-three years old and resided with his eighty-one-year-old wife, Nancy Kiyak, at 61 Lind Street in Fairfield, Connecticut. 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. She testified that while she was jogging, she observed a man holding onto a German Shepherd that was pulling at its leash. The leash broke and the dog attacked her. The bite wounds required medical attention.
Meehan’s testimony was corroborated by the plaintiff, 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.
Meehan was treated at a walk-in clinic on the date of the bites. The nurse at the clinic stated that "the wounds appeared more serious than a regular dog bite." This statement is corroborated by photographs submitted by the town.
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.[1]
The animal control officer, Miller, traced Jack’s origins through his rabies tag to Florida and learned that Jack, then named Semper, 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 Jack, citing three biting incidents: the bite incident involving Meehan, the bite incident involving Nancy Kiyak, and the bite incident in Florida. The plaintiff, who had 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 because he was concerned that somebody would "go in there and forget to close the guillotine door inside and walk into the run and he’s looking for trouble." 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 facility. 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. She attempted unsuccessfully to protect herself by hitting Jack with a bowl. She testified that Jack was growling, barking, and very aggressive during this incident, and she was very scared. Jack bit her on the left wrist. The bite caused scarring.
On December 24, 2016, Miller issued a second disposal order on Jack. This order cited the biting incident involving Quintiliano (incident #16-49225) in addition to the three previous 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 his "primary concern is for the safety of Nancy Kiyak." In view of the fact that she had already been bitten once by Jack, he feared that if Jack was returned to the Kiyak household and Nancy Kiyak mistakenly came into contact with Jack, "it could be an extreme injurious situation." His biggest concern was that Jack could kill Nancy Kiyak.
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." Miller does not allow his subordinates in the kennel to have any contact with Jack because he is concerned that they will be bitten. He testified that his training and experience have provided him with the guidance and knowledge he needed to make judgments about dogs and behaviors they exhibit.
The town introduced a written statement by veterinarian John T. Kristy, who stated that Jack was "too dangerous to handle for a reasonable physical examination." In examining Jack, Kristy feared for his own safety. He stated that Jack is "large, strong and aggressive, 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...
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