132 Conn. App. 679
Conn. App. Ct.2011Background
- Connecticut seized twelve product types worth about $147,000 from B.J. Alan stores in CT for alleged violations of § 29-357.
- In rem hearing occurred; on Jan. 28, 2010 the court ruled for the defendant, finding insufficient reliable proof to show nuisance.
- Testing showed three products near 5–6 g of chlorate/perchlorate, but the court found the data scientifically unreliable due to small sample size.
- Flaming Heart product contained 41.1 g total but was deemed compliant because it has 32 fountains; statute interpreted to apply per fountain.
- Trial court held § 29-357 limits apply to each individual fountain, not the entire multi-fountain device, and ordered return of most seized items.
- State appealed; issues addressed included burden of proof, divisor interpretation of § 29-357, and appellate jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who bears the burden of proof in nuisance proceedings? | State contends defendant bears burden per § 29-362. | B.J. Alan argues state bears burden to prove nuisance. | Burden rests with the state. |
| Does § 29-357's five-gram limit apply per fountain or per product? | Alleys that limits apply to entire multi-fountain device. | Limit applies per fountain; entire device may exceed five grams if divided among fountains. | Limits apply per fountain; multi-fountain devices must consider per-fountain caps with total device consideration. |
| Is the state's appeal authorized and filed from a final judgment, and is the nisi-order dismissal issue controlling? | State has appellate rights; nisi-order did not dismiss dismissal; final judgment occurred earlier. | Appeal not from final judgment; jurisdiction defective; prior nisi-order dismissal could bar review. | The appeal was from a final judgment; jurisdiction proper; nisi-order did not dismiss the appeal. |
Key Cases Cited
- Brown & Brown, Inc. v. Blumenthal, 297 Conn. 710 (2010) (statutory interpretation and standards for agency actions)
- In the Matter of Gilhuly's Petition, 124 Conn. 271 (1938) (burden of proof on plaintiff in show-cause-like proceedings)
- Morrissette v. State, 265 Conn. 658 (2003) (appeals by aggrieved parties in civil actions and jurisdiction)
- J & E Investment Co., LLC v. Athan, 131 Conn. App. 471 (2011) (final-judgment and appellate jurisdiction principles)
- Whalen v. Ives, 37 Conn. App. 7 (1995) (nisi orders and appellate discretion; dismissal mechanics)
- Thalheim v. Greenwich, 256 Conn. 628 (2001) (show-cause context; burden-shifting nuances)