Town of Bethlehem v. Acker

• Decision Date: 14 October 2014
• Docket Number: No. 35463.,35463.
• Citation: 153 Conn.App. 449,102 A.3d 107
• Parties: TOWN OF BETHLEHEM et al. v. Frederick ACKER et al.
• Court: Connecticut Court of Appeals

153 Conn.App. 449

102 A.3d 107

TOWN OF BETHLEHEM et al.

v.Frederick ACKER et al.

No. 35463.

Appellate Court of Connecticut.

Argued Feb. 11, 2014.

Decided Oct. 14, 2014.

Steven A. Colarossi, for the appellant-cross appellee (named defendant).

Anthony F. DiPentima, Litchfield, for the appellee-cross appellant (named plaintiff).

BEACH, KELLER and BORDEN, Js.

Opinion

BEACH, J.

These appeals arise from an action alleging animal neglect brought by the plaintiffs, the town of Bethlehem (town) and Judy E. Umstead, town animal control officer, against the defendants, Frederick Acker and Connecticut Pets Alive, Inc., also known as the Society for the Prevention of Cruelty to Animals of Connecticut (SPCA of Connecticut), a nonprofit dog rescue facility.¹ On November 8, 2012, the plaintiffs seized approximately sixty-five dogs from the defendants' facility pursuant to a search and seizure warrant that had been issued on facts showing that the dogs, which were being kept in an uninsulated barn with an average temperature of 30 degrees Fahrenheit, were neglected, in violation of General Statutes § 22–329a. After a hearing, the trial court concluded that the smaller breed dogs were neglected and transferred ownership of the smaller breed dogs to the town. The court also concluded that the larger breed dogs were not so neglected and ordered those dogs to be returned to the defendants. The court also ordered the parties to “identify and agree as to how many of the smaller breed dogs were removed by the plaintiff[s] and are currently in [the plaintiffs'] custody,” and to cooperate to find appropriate homes for those dogs.² This appeal and cross appeal followed.

On appeal, Acker claims that: (1) the court erred in concluding that the smaller breed dogs were neglected because (a) the court relied on a temperature standard that does not legally exist, (b) the court's finding that the dogs were “kept in temperatures in or below the thirties” was clearly erroneous, (c) the court erred in concluding, as a matter of law, that “the doctrine of predictive neglect” can be used to satisfy the neglect requirement of § 22–329a, and (d) § 22–329a is unconstitutionally vague as applied to the facts of this case because it does not define neglect; (2) the court erred in refusing to admit three forms of rebuttal testimony offered by the defendant; and (3) the court erred in granting the town's request for injunctive relief. On cross appeal, the town claims that the court erred in (1) “making individual subjective determinations of neglect based upon whether the animals seized were ‘small breed dogs' or ‘those dogs not of the smaller breed’,” and (2) concluding that the larger breed dogs were not neglected.

We conclude that (1) the court applied the correct legal standards and properly determined that the smaller breed dogs were neglected and that the larger breed dogs were not neglected; (2) § 22–329a is not unconstitutionally vague as applied to the facts of this case; (3) the court did not err in declining to admit the rebuttal testimony offered by the defendants; and (4) the court did not err in granting the plaintiffs' request for injunctive relief and properly transferred ownership of the smaller breed dogs to the town. The court's order directing the parties to agree among themselves which of the dogs removed from the defendants' facility are smaller breed dogs, however, is vague. We therefore reverse the judgment of the court only with respect to its dispositional order and remand the case for further proceedings, consistent with this opinion, in order (1) to determine the precise number of dogs seized from the defendants, and (2) to identify those dogs currently in the plaintiffs' possession who were adversely affected by the cold temperatures and those who were not.

The following facts, as found by the court, and procedural history are relevant to our resolution of the issues before us. On or about October 1, 2012, Acker began operating a dog rescue facility in a leased barn in the town. The barn was part of Sugar Mountain Farm and was accessible via 310 Watertown Road in Morris.³ The town provided Acker with a town kennel license for the facility, which provided that the barn may house up to eighty dogs.

On October 10, 2012, the owner of property located at 310 Watertown Road made a roaming dog complaint to the town animal control office after seeing a small white dog loose in the area. Umstead was assigned to investigate the complaint. When Umstead arrived at 310 Watertown Road, she observed a barn surrounded by outdoor pens containing seventy-six dogs of various sizes. Seventeen of the dogs were smaller in size and were shivering in the rain. Umstead noted that the temperature was 52 degrees Fahrenheit, according to her town issued phone. Umstead spoke with Susan Fernandez, one of the defendants' employees, who informed her that the barn was part of the defendants' animal rescue facility and that a dog had escaped. Before leaving the facility, Umstead handed Fernandez and another employee her business card and told them to call her if they found the missing dog.

On October 11, 2012, Umstead received a phone call from an employee of Sugar Mountain Farm. The employee stated that she had seen a small white dog on the side of Route 63, near the entrance to 310 Watertown Road. Umstead responded and found a small white dog on the side of Route 63. The dog, however, had died and appeared to have been hit by a car. Umstead transported the deceased dog to Watertown Animal Hospital, where it was checked for identification via an implanted microchip. The microchip identified the dog as belonging to the SPCA of Connecticut. Umstead then transported the deceased dog to 310 Watertown Road where she spoke with Acker, who identified himself as the director of the SPCA of Connecticut and identified the dog as having come from his facility. Umstead then issued Acker a roaming dog infraction for violating General Statutes § 22–364a.

On October 13, 2012, Umstead visited the defendants' dog rescue facility. Unable to enter the barn because no employees were present, Umstead sought to measure the interior temperature of the barn by standing outside the barn and pointing a laser temperature gun at a closed glass window. Umstead recorded a temperature of 28 degrees Fahrenheit. She then issued a written warning informing the defendants that “[p]ursuant to [Connecticut] General Statute[s] [§] 53–247 animal cruelty, you are hereby warned that you are in violation of said law for at least [seventy-five] dogs on the property. On Saturday [October 13, 2012] at 6:30 a.m., the temperature in the closed barn housing said dogs was 28 degrees [Fahrenheit], recorded by Raytek mini temp laser gun. This recording was done by animal control and state police. This constitutes failure to give animals proper care, and protect from the weather. You must provide heat for all of the dogs to a temperature of at least 55 degrees [Fahrenheit].”

On October 17, 2012, Umstead again visited the defendants' animal rescue facility. This time, Umstead was accompanied by Richard Gregan, an animal control officer with the state Department of Agriculture, and Sergeant Goncalves, a Connecticut State Police Officer. Umstead observed that seventy-one dogs were being housed in outdoor pens. Upon entering the barn, Umstead observed that there were no heat sources. Umstead spoke with one of the defendants' employees, who informed her that an additional forty-one dogs would be arriving that evening. Umstead reminded the employee that the town kennel license limited the total number of dogs allowed at the animal rescue facility to eighty dogs. She also informed the employee that she was concerned as to whether the heating in the barn was adequate to protect the dogs from cold temperatures. Later that day, Umstead received a voice mail from Acker in which he stated that every night the smaller breed dogs were taken to the Monroe Town & Country Veterinary Hospital where they were kenneled. Gregan later contacted the veterinarian at the hospital, David Basak–Smith, who informed him that the hospital was not kenneling dogs on the defendants' behalf.

At approximately 7:40 a.m. on November 8, 2012, Umstead and state police Trooper Matthew Eagleston arrived at the defendants' facility to check on the condition of the animals. Unable to enter the barn because no employees were present, Umstead proceeded to measure the interior temperature of the facility by standing outside the barn and pointing the laser temperature device at a closed barn window. There was testimony at trial that the laser temperature device reported a temperature of 30 degrees Fahrenheit, on average. Shortly after Umstead measured the temperature, Meghan Amarante, one of the defendants' employees, arrived at the facility. Umstead spoke to Amarante and asked her to sign a consent to search form. After receiving permission to enter the barn, Umstead entered and observed sixty dogs in small crates. Umstead noticed “two small electric radiator type heaters” and that there was “no visible insulation” in the facility. Using the same laser temperature device, Umstead measured the interior temperature a second time, this time by standing inside the barn and pointing the laser temperature at various areas inside the barn. The evidence presented at trial indicated that the second temperature recording was approximately 30 degrees Fahrenheit.

At approximately 9 a.m., Umstead, concerned about the health of the dogs, applied for a search and seizure warrant. At approximately 12:30 p.m., the court, Marano, J., granted the application, thereby permitting Umstead, pursuant to § 22–329a (b), to take physical custody of all domestic animals found at 310 Watertown Road. The warrant and subsequent seizure were based on allegations that the animals were “neglected or found cruelly treated in violation of § 53–247 ” because they were being kept in an uninsulated shelter...