McQuillan v. Department of Liquor Control

583 A.2d 633, 216 Conn. 667, 1990 Conn. LEXIS 430
CourtSupreme Court of Connecticut
DecidedDecember 18, 1990
Docket14025
StatusPublished
Cited by43 cases

This text of 583 A.2d 633 (McQuillan v. Department of Liquor Control) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McQuillan v. Department of Liquor Control, 583 A.2d 633, 216 Conn. 667, 1990 Conn. LEXIS 430 (Colo. 1990).

Opinion

Peters, C. J.

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., [668]*668sought judicial review of an order of the defendant department of liquor control (department) suspending the named plaintiffs restaurant liquor permit for five days. In the trial court, the department successfully moved for a dismissal of the plaintiffs’ appeal because of their alleged failure to include a citation as required by law. The plaintiffs filed a timely appeal from this judgment of dismissal in the Appellate Court. We transferred their appeal to this court pursuant to Practice Book § 4023 and now reverse.

The plaintiffs’ administrative appeal arises out of alleged liquor law violations at the Viva Zapata Restaurant in Westport.1 The named plaintiff is the holder of the restaurant’s liquor permit, and her coplaintiff is the restaurant’s corporate backer. When the department denied the plaintiffs’ request for reconsideration of the five day suspension of their liquor permit, they took the present appeal to the Superior Court.2

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).3 The [669]*669verified complaint contained a return date of September 27, 1988, while the show cause order summoned the department to appear on September 12,1988. The only citation contained in the papers, however, authorized the sheriff to summon the department to appear “at the place and time specified ... to show cause why a Temporary Injunction should not be issued against it as prayed in the foregoing Appeal, Verified Complaint and Application . . . .’’On its face this citation does not expressly direct the department to appear in, or to answer, the plaintiffs’ administrative appeal.

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).4 Although the department filed its general appearance in timely fashion, it did not move to dismiss the plaintiffs’ action until November 15,1988. The department’s motion, based on Practice Book § 142,5 [670]*670claimed that the appeal should be dismissed “for lack of subject matter jurisdiction because it does not contain a citation as required by law.” The trial court, concluding that the plaintiffs had not properly cited the department to answer their appeal, granted the motion and rendered judgment for the department.

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).

[671]*671The dispositive issue, therefore, is whether the plaintiffs’ administrative appeal in fact failed to include the citation required by § 4-183 (b). In administrative appeals, the citation is the writ of summons that directs the sheriff or some other proper officer to seek out the defendant agency and to summon it to a particular sitting of a particular court on a specified day. 1 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 18. “The citation, signed by competent authority, is the warrant which bestows upon the officer to whom it is given for service the power and authority to execute its command. . . . A citation is not synonymous with notice.” Village Creek Homeowners Assn. v. Public Utilities Commission, supra, 339; Simko v. Zoning Board of Appeals, 205 Conn. 413, 419-20, 533 A.2d 879 (1987), modified, 206 Conn. 374, 538 A.2d 202 (1988); Sheehan v. Zoning Commission, 173 Conn. 408, 412, 378 A.2d 519 (1977). For administrative appeals from the liquor control commission, Practice Book Form 204.96 contains a preferred form for citation, which the plaintiffs concededly did not use.

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 [672]*672to commence an appeal. In the latter circumstance, we held in Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities,

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Bluebook (online)
583 A.2d 633, 216 Conn. 667, 1990 Conn. LEXIS 430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcquillan-v-department-of-liquor-control-conn-1990.