216 Conn. 667 | Conn. | 1990
The sole issue in this appeal is whether an error in the form of a required citation requires dismissal of an administrative appeal to the Superior Court for lack of subject matter jurisdiction. The plaintiffs, Lynn McQuillan and Mexican Cafe of Westport, Inc.,
The plaintiffs’ administrative appeal arises out of alleged liquor law violations at the Viva Zapata Restaurant in Westport.
To initiate their administrative appeal on August 25, 1988, the plaintiffs simultaneously filed an application for temporary injunction, an order to show cause, and a verified complaint on their appeal. On September 1, 1988, these papers were simultaneously served on the department, and on the attorney general, in accordance with the provisions of the Uniform Administrative Procedure Act, General Statutes § 4-183 (b).
The plaintiffs did not pursue their judicial application for a temporary injunction because the department agreed administratively to stay enforcement of the liquor permit suspension order during the pendency of the administrative appeal. See General Statutes § 4-183 (c).
The principles that govern the validity of an administrative appeal are undisputed. Because the right to take an administrative appeal depends upon statutory authority, this court has regularly held that noncompliance with the statutory requirements of the Uniform Administrative Procedure Act implicates subject matter jurisdiction and renders a nonconforming appeal subject to dismissal. Tarnopol v. Connecticut Siting Council, 212 Conn. 157, 163, 561 A.2d 931 (1989); Hillcroft Partners v. Commission on Human Rights & Opportunities, 205 Conn. 324, 326-27, 533 A.2d 852 (1987); Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 356, 514 A.2d 749 (1986); Basilicato v. Department of Public Utility Control, 197 Conn. 320, 324, 497 A.2d 48 (1985). Failure to include the citation required by § 4-183 (b) is fatal to the validity of an administrative appeal. Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, supra, 356-57; Village Creek Homeowners Assn. v. Public Utilities Commission, 148 Conn. 336, 338-40, 170 A.2d 732 (1961); DelVecchio v. Department of Income Maintenance, 18 Conn. App. 13, 16, 555 A.2d 1007 (1989); see Tarnopol v. Connecticut Siting Council, supra; Donis v. Board of Examiners in Podiatry, 207 Conn. 674, 682-83, 542 A.2d 726 (1988). A procedural default that implicates subject matter jurisdiction cannot be waived and may be raised at any time. Practice Book § 142; Rogers v. Commission on Human Rights & Opportunities, 195 Conn. 543, 550-52, 489 A.2d 368 (1985).
We conclude that the plaintiffs’ mistaken failure to use the preferred form to commence an appeal is the functional equivalent of the use of an improper form
The judgment is reversed and the case is remanded for further proceedings.
In this opinion the other justices concurred.
The department found that two violations of the state liquor laws had occurred at the Viva Zapata Restaurant. On May 30,1987, in violation of General Statutes § 30-22, a group of at least ten people were consuming alcoholic beverages on the front porch of the restaurant, a location not approved for such consumption. On February 20,1988, in violation of General Statutes § 30-86, three young men below the legal age were being served alcoholic beverages at the restaurant.
Their appeal alleged that the suspension of the liquor permit was illegal, arbitrary and in abuse of discretion, for a number of substantive and procedural reasons.
At the time this action was instituted, General Statutes § 4-183 (b) provided in relevant part: “Proceedings for such appeal shall be instituted by
At the time this action was instituted, General Statutes § 4-183 (c) provided: “The filing of the petition does not of itself stay enforcement of the agency decision. The agency may grant, or the reviewing court may order, a stay upon appropriate terms.” This statute was amended by Public Acts 1988, No. 88-317, §§ 23, 107, effective July 1, 1989.
Practice Book § 142 provides in relevant part: “Any defendant, wishing to contest the court’s jurisdiction, may do so even after having entered
Practice Book Form 204.9 provides: “appeal from liquor control COMMISSION
“To the superior court in and for the judicial district of at on (return date) comes (name and residence of appellant) appealing from a decision of the Liquor Control Commission and petitioning this court to make a judicial review thereof, and complains and says:
1. The plaintiff applied to the Commission for a (type) permit for the sale of alcoholic liquor at premises located at (describe location by street and number or otherwise) in the town of but the Commission denied the application and duly notified the plaintiff of such denial on
2. The plaintiff is in all respects a suitable person to have such a permit and the premises are in all respects suitable therefor.
3. In denying the application the Commission acted illegally, arbitrarily and in abuse of the discretion vested in it.
*672 Wherefore the plaintiff appeals from the denial of the application, and prays the court to direct the Commission to grant the application and for such other relief as is proper.
Dated at (place and date)
Plaintiff
By
Attorney
{caption)
Writ
To Any Proper Officer:
By authority of the state of Connecticut you are hereby commanded to summon the Liquor Control Commission of the state of Connecticut {and set forth names and residences of all other parties ofrecord) to appear before the superior court within and for the judicial district of at on {return date) then and there to answer unto the foregoing petition of {names and residence) by serving upon the commission {and all parties of record above named), a true and attested copy of the petition and of this citation in the same manner as process is served in civil actions.
{Name and residence of person recognized) is recognized in the sum of $ to prosecute etc.
or
If plaintiff is an inhabitant of this state and is able to pay the costs of the action, the following may be used:
I hereby certify that I have personal knowledge of the financial responsibility of the plaintiff and deem it sufficient to pay the costs of this action. Hereof fail not, but due service and return make.
Dated at {place and date of signing)
Commissioner of the Superior Court’