Para-Medical Ambulance, Inc. v. City of Torrington

444 A.2d 236, 37 Conn. Super. Ct. 124, 37 Conn. Supp. 124, 1981 Conn. Super. LEXIS 218
CourtConnecticut Superior Court
DecidedOctober 2, 1981
DocketFile 29009
StatusPublished

This text of 444 A.2d 236 (Para-Medical Ambulance, Inc. v. City of Torrington) is published on Counsel Stack Legal Research, covering Connecticut Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Para-Medical Ambulance, Inc. v. City of Torrington, 444 A.2d 236, 37 Conn. Super. Ct. 124, 37 Conn. Supp. 124, 1981 Conn. Super. LEXIS 218 (Colo. Ct. App. 1981).

Opinion

Pickett, J.

The plaintiff Para-Medical Ambulance, Inc. is an ambulance service currently operating within the city of Torrington. Since it has been in business, the defendant police department of the city of Torrington has instituted an emergency ambulance service that has been certified by the state as primary responder for the region. The plaintiff pursuant to this certification has been designated a back-up. The plaintiff seeks to enjoin the defendants from operating the service, claiming that it is operating without authority since no ordinance has been passed by the city to allow such ambulance service in accordance with General Statutes § 7-148 (c) (5). In addition, damages are claimed as a result of the competition between the two services and the consequent loss of business to the plaintiff.

*125 The plaintiff, Para-Medical Ambulance, Inc., has the burden of proof on the allegations of its complaint. It produced two witnesses. The first was Allan Rowe, its president and sole stockholder, who testified that ambulances and emergency medical service vehicles are regulated by federal and state agencies; that the state of Connecticut regulates his service and the city of Torrington’s service; that he ran a commercial ambulance service and charged fees set by the state of Connecticut; that the city received donations for their services; and that his vehicles and the city’s vehicles were similar in nature and both met the state and federal regulations. The second witness was Chris A. Gentille, director of the office of emergency medical services for the state of Connecticut. The plaintiff introduced two documents through him. They are the city of Torrington police department’s certificates of authority to operate a noncommercial emergency medical service as an “R-2 Responder” from October 15, 1977, through July, 1978.

The defendants on cross-examination established that the office of emergency medical services was created by the legislature and that the city of Torrington is the primary emergency medical responder for the primary service area of the city of Torrington. Additionally, Para-Medical Ambulance, Inc., is, according to Mr. Rowe, the mutual aid back-up responder for said primary service area. Mr. Gentille testified that his agency approved the city of Torrington’s designation as the primary responder. Mr. Rowe stated that a primary responder gets the 911 emergency calls and responds to them first.

In view of the fact that the defendants have not attacked the plaintiff’s standing to bring the action, the court will assume, without deciding, that the matter is properly before it. “ ‘The “fundamental aspect of standing . . . [is that] it focuses on the party seeking to get his complaint before [the] court and not on the *126 issues he wishes to have adjudicated.” Flast v. Cohen, 392 U.S. 83, 99, 88 S. Ct. 1942, 20 L. Ed. 2d 947 [1968].’ Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 485, 338 A.2d 497 [1973]. ‘When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue and not whether the controversy is otherwise justiciable, or whether, on the merits, the plaintiff has a legally protected interest that the defendant’s action has invaded.’ Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 492, 400 A.2d 726 [1978].” Berlin v. Santaguida, 181 Conn. 421, 423, 435 A.2d 980 (1980). See also Maloney v. Pac, 183 Conn. 313, 320, 439 A.2d 349 (1981).

The issue before the court is whether the plaintiff has demonstrated irreparable harm so as to be entitled to injunctive relief. The standard in Connecticut for an injunction is irreparable harm and lack of an adequate remedy at law. Stocker v. Waterbury, 154 Conn. 446, 449, 226 A.2d 514 (1967). “Even where the danger of irreparable injury is shown, the granting of an injunction is not mandatory but within the sound discretion of the court.” Koepper v. Emanuelle, 164 Conn. 175, 178, 319 A.2d 411 (1972). It is inequitable to grant an injunction which would cause damage to the defendant greatly disproportionate to the injury of which the plaintiff complains. Moore v. Serafin, 163 Conn. 1, 6-7, 301 A.2d 238 (1972).

The Home Rule Act, General Statutes § 7-194, expressly provides that cities having a charter shall have specific powers in addition to all powers granted to towns and cities under the constitution and General Statutes. Section 7-194 (44) authorizes a city “[t]o provide for health of the inhabitants of the town, city or borough and to do all things necessary or desirable to *127 secure and promote the public health . . . .” The operation of an emergency medical service is within the aforesaid power.

The plaintiffs reliance on General Statutes § 7-148 (c) (5) is misplaced in that the legislature specifically says in that statute that a city, in addition to such rights and powers it has under the provisions of the statutes, may make ordinances. 1

This claim is rejected for three reasons. First, there are two statutes authorizing the city’s activity. The Home Rule Act, § 7-194 (44), and the Emergency Medical Services Act, § 19-73u (k). 2 Second, the use of the word “may” in § 7-148 (c) makes it permissive or discretionary and not mandatory. The legislature did not use the word “shall,” which it would have used had it meant the passage of an ordinance to be mandatory. See Fisher v. Board of Zoning Appeals, 143 Conn. 358, 122 A.2d 729 (1956); Hartford v. Suffield, 137 Conn. 341, 77 A.2d 760 (1951). Finally, the city is not operating a commercial ambulance service and no proof was offered by the plaintiff to that effect. Rather, the city is operating a non-commercial emergency medical service that is expressly authorized by the state of Connecticut and supervised by it.

The charter of the city of Torrington authorizes the operation of an emergency medical service. In particular, Title XI of that charter provides in § 11-6, entitled “duties of the police department,” that those duties include “the preservation of the public peace . . .

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Related

Flast v. Cohen
392 U.S. 83 (Supreme Court, 1968)
Mystic Marinelife Aquarium, Inc. v. Gill
400 A.2d 726 (Supreme Court of Connecticut, 1978)
State Ex Rel. Sloane v. Reidy
209 A.2d 674 (Supreme Court of Connecticut, 1965)
Town of Berlin v. Santaguida
435 A.2d 980 (Supreme Court of Connecticut, 1980)
Maloney v. Pac
439 A.2d 349 (Supreme Court of Connecticut, 1981)
Moore v. Serafin
301 A.2d 238 (Supreme Court of Connecticut, 1972)
Fisher v. Board of Zoning Appeals
122 A.2d 729 (Supreme Court of Connecticut, 1956)
City of Hartford v. Town of Suffield
77 A.2d 760 (Supreme Court of Connecticut, 1950)
Koepper v. Emanuele
319 A.2d 411 (Supreme Court of Connecticut, 1972)
Stocker v. City of Waterbury
226 A.2d 514 (Supreme Court of Connecticut, 1967)
Murphy, Inc. v. Town of Westport
40 A.2d 177 (Supreme Court of Connecticut, 1944)
Keegan v. Town of Thompson
130 A. 707 (Supreme Court of Connecticut, 1925)
Professional Ambulance Service, Inc. v. Blackstone
400 A.2d 1031 (Connecticut Superior Court, 1978)
Farmington River Co. v. Town Plan & Zoning Commission
197 A.2d 653 (Connecticut Superior Court, 1963)
Hartford Kosher Caterers, Inc. v. Gazda
338 A.2d 497 (Supreme Court of Connecticut, 1973)

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Bluebook (online)
444 A.2d 236, 37 Conn. Super. Ct. 124, 37 Conn. Supp. 124, 1981 Conn. Super. LEXIS 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/para-medical-ambulance-inc-v-city-of-torrington-connsuperct-1981.