U.S. Vision, Inc. v. Board of Examiners

Bieluch, J.,

concurring and dissenting. I agree with the rulings of the majority, except as to their conclusion that “[sjince the penalty for each separate violation was less than the statutory maximum penalty, the court was not in error in finding that the board had authority to assess a penalty of $500 for each violation of the statute, totaling $5000.” (Emphasis added.) The majority opinion cites no authority in support of this ruling.

Pursuant to its authority under General Statutes (Rev. to 1985) § 19a-17, the board made the following order: “(1) That U.S. Vision be fined five hundred dollars for each of ten separate counts of violations of Connecticut General Statutes § 20-153 and § 20-154. A check for $5000 should be made payable to the State of Connecticut and be submitted within 30 days.” (Emphasis added.) The administrative order of the board, despite limitations under § 19a-17, by its very terms imposed separate criminal “fines” upon U.S. Vision without the attendant due process safeguards and constitutional protections. The board did not impose a civil “penalty for each separate violation,” as the majority states. This action of the board was ultra vires and imposed criminal sanctions, rather than an authorized civil penalty, upon the named plaintiff.

In its memorandum of decision, the board relied specifically upon the following statutory provisions for the imposition of its penalty upon U.S. Vision: “17. Connecticut General Statutes § 20-154 provides in pertinent part that: The certificate of registration, permit or license of any optician or of any optical permittee may be revoked, suspended or annulled or any action taken under section 19a-17 upon decision after notice and hearing by the board for any of the following reasons: . . . violation of any provision of this chapter or any regulation adopted hereunder .... 18. Connecticut General Statutes § 20-153 provides in perti*219nent part that: The department may grant annually, upon the filing of an application as required by it, an optical permit to any optical establishment, office, department or store conducted under the personal and direct supervision of a licensed optician, for permission to sell, dispense or supply to the ultimate wearer optical aids to vision, instruments, appliances, eyeglasses, spectacles and other kindred products.” (Emphasis in original.)

General Statutes § 19a-17 provides that the board “may take any of the following [disciplinary] actions, singly or in combination . . . upon finding the existence of good cause: (1) Revoke a practitioner’s license or permit; (2) Suspend a practitioner’s license or permit; (3) Censure a practitioner or permittee; (4) Issue a letter of reprimand to a practitioner or permittee; (5) Place a practitioner or permittee on probationary status . . . [or] (6) Assess a civil penalty of up to one thousand dollars . . . .” Relevant to this discussion is the criminal penalty for a violation of §§ 20-153 and 20-154 provided in § 20-161 as follows: “Any person who violates any provison of this chapter, for the violation of which no other penalty has been provided, shall be fined not more than five hundred dollars or imprisoned not more than five years or both. For purposes of this section each instance of patient contact or consultation which is in violation of any provision of this section shall constitute a separate offense. . . .” (Emphasis added.)

The issue under consideration is controlled by the specific and contrasting definitions adopted by the legislature as to sanctions for the optical permit violations under consideration on this appeal. The legislature’s penalty distinction would be meaningless if the civil penalty provided § 19a-17 (a) (6) were to be a criminal fine as allowed by § 20-161 for separate offenses and as imposed by the board in this case. The legislative *220intent in its distinction between the civil penalty of § 19a-17 (a) (6), and the criminal penalty of a fine or imprisonment, or both, and for multiple offenses, under § 20-161, is evident in the clear language of these statutory provisions. A civil penalty is remedial in nature, while a criminal penalty is penal. For this reason, the imposition of a criminal penalty mandates the safeguards of due process and other constitutional protections. An administrative agency, such as the board here, may impose civil penalties only. Criminal penalties are the exclusive province of a court of law.

“The term ‘penalty’ in its broadest sense includes all punishment of whatever kind. 13 Amer. & Eng. Ency. of Law, p. 53. A fine is always a penalty, but a penalty may not always be a fine. United States v. Nash, 111 Fed. Rep. 525. A fine is a ‘pecuniary punishment imposed by a lawful tribunal upon a person convicted of crime or misdemeanor.’ 2 Bouvier Law Dictionary (3d Rev.) 1225; Southern Express Co. v. Commonwealth ex rel. Walker, 92 Va. 59, 63, 22 S.E. 809; Lancaster v. Richardson, 4 Lans. (N.Y.) 136, 140.” Bankers Trust Co. v. Blodgett, 96 Conn. 361, 368, 114 A. 104 (1921); Second National Bank of New Haven v. Loftus, 121 Conn. 454, 459, 185 A. 423 (1936).

The plaintiff’s conduct considered by the board under the provision of § 19a-17 (a) (6) is not a crime punishable in a criminal proceeding in a court of law. The constitutional protections applicable to criminal prosecutions do not attach to the imposition of a civil penalty under § 19a-17 (a) (6). The statute’s provisions for disciplinary action by the board allow for civil administrative sanctions of a remedial character in support of the enforcement of § 20-154, which provides that “[t]he certificate of registration, permit or license of any optician or of any optical permittee may be revoked, suspended or annulled or any action taken under section 19a-17 upon decision after notice and *221hearing by the board for any of the following reasons: . . . violation of any provision of this chapter or any regulation adopted hereunder. . . .” Supplemental to such civil sanctions, criminal prosecution is available under the provisions of § 20-161 for a violation of any “provision of this chapter, for the violation of which no other penalty has been provided.” Our concern in this appeal relates solely to the legality of the board’s administrative civil penalty under § 19a-17 (a) (6).

The board acted illegally when it ordered “[tjhat U.S. Vision be fined five hundred dollars ($500) for each of ten separate counts of violations of Connecticut General Statutes § 20-153 and § 20-154” for a total of $5000. (Emphasis added.) Unlike the criminal penalty prescribed in § 20-161 which permits multiple penalties in its provision that “[f]or purposes of this section each instance of patient contact or consultation which is in violation of any provision of this section shall constitute a separate offense,” § 19a-17 (a) (6) expressly and limitedly authorizes the assessment of a “civil penalty of up to one thousand dollars.” (Emphasis added.) The multiple “assessment” of a civil penalty or “fine,” as was imposed by the board here, is illegal for want of legislative authorization. By the terms of § 19a-17, the legislature intended to punish only the course of action which the alleged individual acts under administrative review constitute. See State v. Lytell, 206 Conn. 657, 665-66, 539 A.2d 133 (1988).

This interpretation of § 19a-17 is supported by the 1986 amendment to that statute. Public Acts 1986, No. 86-365, § 2, provides in pertinent part: “(a) Each board or commission . . . may take any of the following actions, singly or in combination, based on conduct WHICH OCCURRED PRIOR OR SUBSEQUENT TO THE ISSUANCE OF A permit OR A license upon finding the existence of good cause . . . .” While the amended version of § 19a-17 is not controlling in this case, it is signifi*222cant. This specific language demonstrates the legislative intent that § 19a-17 proscribe and punish a course of ongoing conduct, rather than separate actions' or events in the course of that behavior. “It is an accepted canon of statutory construction that ‘[a] subsequent legislative act may throw light on the legislative intent of a former related act. General Realty Improvement Co. v. New Haven, 133 Conn. 238, 242, 50 A.2d 59 [1946].’ Hartford v. Suffield, 137 Conn. 341, 346, 77 A.2d 760 (1950).” Sandrew v. Pequot Drug, Inc., 4 Conn. App. 627, 630 n.5, 495 A.2d 1127 (1985); see also Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 541, 494 A.2d 555 (1985).

Multiple fines may be imposed for multiple acts only in a criminal prosecution as expressly allowed under § 20-161. The board was limited in its civil disciplinary sanctions to the express terms of § 19a-17, which does not permit multiple “fines” for each act established on administrative review.

To this extent I disagree with the majority.