text:
    State of Connecticut v. Dorothy A. Descoteaux
    (12736)
    Peters, C. J., Shea, Dannehy, Santaniello and Callahan, Js.

      Argued March 4
    decision released June 3, 1986

      Ronald D. Williams, Jr., for the appellant (defendant).

      Marcia B. Smith, assistant state’s attorney, with whom, on the brief, was John Connelly, state’s attorney, for the appellee (state).
   Dannehy, J.

The issue in this case is whether a person who is convicted of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a during the period such person is participating in a pretrial program of alcohol education and treatment may be found ineligible to continue participation in the pretrial alcohol education system provided in General Statutes § 54-56g. We agree with the trial court that such a person may be found ineligible.

The defendant, Dorothy Descoteaux, appeals from an order of the Superior Court, Licari, J., entered after the court determined that the defendant was ineligible to continue participation in a program of alcohol education and treatment. General Statutes § 54-56g. The facts are undisputed. On September 29,1984, the defendant, Dorothy Descoteaux, was arrested and charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a, improper use of number plates in violation of General Statutes § 14-147 (c) and operation of an unregistered motor vehicle in violation of General Statutes § 14-12a. Thereafter she applied for participation in the pretrial alcohol education system provided by General Statutes § 54-56g and, pursuant thereto, the information was sealed. On November 9, 1984, her application was granted by the court, Gaffney, J., and the defendant was referred to the office of adult probation for placement in the system for one year.

On December 30, 1984, the defendant was again arrested and charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. When arraigned she pleaded not guilty and elected trial by jury. Before the scheduled trial date, the defendant decided to plead guilty. After accepting the defendant’s plea of guilty to the charge of operating a motor vehicle under the influence of intoxicating liquor in violation of General Statutes § 14-227a, the trial court, Gray, J., on February 21, 1985, sentenced her to pay a fine of $750 and to be confined for six months, but suspended the sentence of confinement in favor of probation for two years.

During a hearing on March 28, 1985, in which the court ordered the first information unsealed, the defendant requested permission to continue her participation in the alcohol education program. The trial court denied the request and found the defendant guilty of operating a motor vehicle while under the influence of intoxicating liquor. The defendant was sentenced to confinement for six months with execution suspended and probation for two years. The court ordered that the sentence be concurrent to the sentence imposed on February 21, 1985.

The defendant claims on appeal that her conviction for driving while intoxicated on the basis of her December 30,1984 arrest was an insufficient reason to remove her from the pretrial alcohol education program. She argues that once she had been admitted to the program, she could be removed only for failing to complete the eight counseling sessions mandated by General Statutes § 54-56g (b). She argues in the alternative that even if a prohibition against driving while intoxicated was an implied condition of her continued participation in the program, she was not given notice of that condition, and therefore, her removal was in violation of due process. We do not agree with the conclusion, because we do not accept its premises.

A person admitted to the pretrial alcohol education program remains under the jurisdiction of the court for control purposes until he has successfully completed the program and his charges are dismissed. If a defendant satisfactorily completes the program to which he has been assigned, the defendant “may apply for dismissal of the charges against him and the court, on reviewing the record of his participation in such program . . . and on finding such satisfactory completion, shall dismiss the charges.” General Statutes § 54-56g (b). The statute clearly requires the trial court to make an independent determination of the defendant’s satisfactory completion of the prescribed program of alcohol education and treatment. The trial court is not, as the defendant contends, relegated to the ministerial role of rubber stamping the certification of the “program provider” that the defendant has successfully completed the assigned program. While the court may rely heavily on the recommendation of the office of adult probation or the program provider, such recommendations are not conclusive. The court must determine for itself, and enter a finding, that the defendant’s completion of the program has been satisfactory. Otherwise, there would be no purpose to the statutory requirement that the defendant, upon completion of the program, return to court and “apply for dismissal of the charges against him.” General Statutes § 54-56g (b).

Nor do we agree that the defendant was not on notice that her participation in the program might be terminated upon a subsequent conviction for driving while intoxicated. Before admission to the program the defendant was required to state under oath in open court that she had never had the pretrial alcohol education system invoked in her behalf, and that she had never before been convicted of driving while intoxicated. General Statutes § 54-56g (a). Her oath, and the very nature of the program itself, necessarily put her on notice that driving while intoxicated would violate the spirit, if not the letter, of General Statutes § 54-56g. In any event, we do not construe the terms of General Statutes § 54-56g (b) to create a liberty or property interest cognizable under either the state or federal due process clauses, and therefore, the defendant was not entitled to formal notice that a subsequent conviction for driving while intoxicated might result in her expulsion from the alcohol education program. Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 467, 101 S. Ct. 2460, 69 L. Ed. 2d 158 (1981).

We therefore review the action of the trial court only to determine whether it was reasonable under the circumstances. In this case the trial court might reasonably have determined that the defendant lost her eligibility to continue in the system of alcohol education when, shortly after she had been admitted, she again operated her vehicle while intoxicated. After it had been reduced to a conviction, the December 30, 1984 offense provided an adequate basis for the trial court to remove the defendant from the pretrial alcohol education program. State v. Barnes, 37 Conn. Sup. 853, 858, 439 A.2d 456 (1981).

There is no error.

In this opinion the other justices concurred.

       General Statutes § 54-56g provides in pertinent part: “pretrial alcohol education system, (a) There shall be a pretrial alcohol education system for persons charged with a violation of section 14-227a. Upon application by any such person for participation in such system, the court shall, but only as to the public, order such information or complaint to be filed as a sealed information or complaint, provided such person states under oath in open court under penalties of perjury that he has never had such system invoked in his behalf and that he has not been convicted of a violation of section 14-227a before or after October 1, 1981.
      “(b) The court, after consideration of the recommendation of the state’s attorney, assistant state’s attorney or deputy assistant state’s attorney in charge of the case, may, in its discretion, grant such application. If the court grants such application, it shall refer such person to the office of adult probation for assessment and recommendations with respect to placement in a program of alcohol education and treatment. Upon completion of the evaluation, the court shall determine whether such person is eligible for the pretrial alcohol education system. If the court determines that the defendant is eligible, the defendant shall be referred to the office of adult probation for placement in the system for one year. Any person who enters the system shall agree: (1) To the tolling of the statute of limitations with respect to such crime, (2) to a waiver of his right to a speedy trial, (3) to participate in at least eight meetings or counseling sessions in a program of alcohol education and treatment pursuant to this section, and (4) to accept more intensive treatment or other forms of education or treatment or to participate in additional meetings or counseling sessions if the office of adult probation deems it appropriate. The suspension of the motor vehicle operator’s license of any such person pursuant to section 14-227b shall be effective during the period such person is participating in such program. If the court determines the defendant ineligible for the system or if the program provider certifies to the court that the defendant did not successfully complete the program of alcohol education or treatment to which he was assigned or is no longer amenable to treatment under such program, the court shall order the information or complaint to be unsealed, enter a plea of not guilty for such defendant and immediately place the case on the trial list. If such defendant satisfactorily completes the program of alcohol education or treatment to which he was assigned, he may apply for dismissal of the charges against him and the court, on reviewing the record of his participation in such program submitted by the office of adult probation and on finding such satisfactory completion, shall dismiss the charges. A record of participation in such program shall be retained by the office of adult probation for a period of seven years from the date of application. The office of adult probation shall transmit to the department of motor vehicles a record of participation in such program for each person who satisfactorily completes such program. The department of motor vehicles shall maintain for a period of seven years the record of a person’s participation in such program as part of such person’s driving record.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Pauline M. Taylor, Administratrix (Estate of Edward Taylor III), et al. v. American Thread Company et al.
    (12659)
    Peteks, C. J., Healey, Shea, Santaniello and Callahan, Js.
    Argued May 1
    decision released June 3, 1986

      Ronald E. Cassidento, with whom, on the brief, was Bruce W. Diamond, law student intern, for the appellants (plaintiffs).

      Andrew J. O’Keefe, with whom were Peter K. O’Keefe, and, on the brief, Denise Martino Phelan, for the appellee (defendant city of Willimantic).
   Per Curiam.

This case arises out of the accidental drowning of two nine year old boys in the Willimantic River. The plaintiffs, the administrators of the estates of the boys, brought suit charging the defendants, the American Thread Company and the city of Willimantic, with nuisance and negligence in affording the children access to the river. After the claims against the defendant American Thread Company had been withdrawn pursuant to a settlement, the case against the defendant city was tried to a jury. At the end of the presentation of the evidence, the trial court granted the motion of the defendant city for a directed verdict. The plaintiffs moved unsuccessfully to have the verdict set aside and thereafter took the present appeal from the judgment rendered in favor of the defendant city.

In their complaint, the plaintiffs alleged that the children’s drowning was attributable to a broken fence at the rear of a city park that afforded the children access to the property of the American Thread Company. The American Thread Company’s property adjoins the Willimantic River in the vicinity of the accident. The children allegedly made their way onto the ice-covered Willimantic River, where they drowned when the ice broke beneath them. The trial court, in its memorandum of decision on the motion for a directed verdict, did no more than refer to the facts as alleged in the complaint. With respect to the plaintiffs’ count claiming that the defendant city was liable on a theory of nuisance, the court determined that “there [was] no evidence . . . from which the jury [could] conclude that the defendant created the dangerous condition constituting a nuisance.” With respect to the count charging the city with negligence, the court sustained the defendant’s special defense of governmental immunity. The plaintiffs have appealed only that part of the trial court’s ruling that pertains to their cause of action sounding in negligence. In that appeal, they launch a frontal attack on our long-standing doctrine of governmental immunity.

We are unable to consider the plaintiffs’ appeal on its merits because of the failure of the plaintiffs to provide us with an adequate appellate record. We do not decide issues of law in a vacuum. In order to review an alleged error of law that has evidentiary implications, we must have before us the evidence that is the factual predicate for the legal issue that the appellant asks us to consider. It is the responsibility of the appellant to provide us with an appellate record that adequately supports his claim of error. Practice Book § 3060D; State v. Conrod, 198 Conn. 592, 597, 504 A.2d 494 (1986); In re Final Grand Jury Report Concerning the Torrington Police Department, 197 Conn. 698, 715, 501 A.2d 377 (1985); State v. One 1977 Buick Automobile, 196 Conn. 471, 480, 493 A.2d 874 (1985); Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 407-408, 480 A.2d 552 (1984). The absence of such a record is an insurmountable obstacle to review of the plaintiffs’ claims of error in the circumstances of this case.

The most conspicuous defect in the appellate record arises out of the failure to supply this court with adequate transcripts to document what transpired at trial. The plaintiffs have consistently claimed, both at trial and on appeal, that their decedents were harmed by a defective fence in the defendant city’s park, because the children allegedly were playing in the park and then walked through a hole in the fence and onto the ice on the river, where they drowned. The defendant city, in its pleadings and in its motion for a directed verdict, has denied each and every part of these allegations. In pursuing their appeal, the plaintiffs have produced some evidence of record to show the existence of the defects in the fence, but they have failed entirely in their obligation to provide an appellate record showing a causal link between this alleged defect and the accidental drowning of the children.

The plaintiffs have supplied to this court no transcripts to substantiate whether, where and how the children crossed the park to get to the river. They have filed only two transcripts. One contains the arguments to the trial court concerning the defendant’s motion for a directed verdict, and thus has no evidentiary content whatsoever. The other contains part of the testimony of a single witness, Albert Legace, who was examined and cross-examined only about the condition of the fence between the city park and the property of the American Thread Company. Nothing in either of these transcripts would enable us to conclude that the plaintiffs had established that, regardless of governmental immunity, the defendant city owed any duty whatsoever to their decedents. We have, of course, no way of knowing what other evidence the plaintiffs might have presented at trial to support their case against the defendant. Without the appropriate transcripts to provide us a record of what transpired at trial, we cannot, however, find error in the judgment of the trial court. DeMilo v. West Haven, 189 Conn. 671, 680-81, 458 A.2d 362 (1983).

No doubt because of the absence of the necessary transcripts, the plaintiffs’ appellate brief fails to contain the documented statement of facts prescribed by § 3060F (c) of the Practice Book. That subsection requires a “statement of facts . . . supported by appropriate references to the page or pages of the record or transcript upon which the party relies.” The plaintiffs’ brief contains nothing more than the unsupported allegation that, as a result of the defendant city’s negligence in failing to maintain a fence, the decedents gained access to the river and were drowned. The failure to set out the salient facts in the manner required by § 3060F (c) is a second reason why appellate review of the plaintiffs’ claims of error is unwarranted in this case. McGaffin v. Roberts, 193 Conn. 393, 399 n.6, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985); State v. Jones, 193 Conn. 70, 74, 475 A.2d 1087 (1984).

There is no error.

       “[Practice Book] Sec. 3060D. review by the supreme court
      “The supreme court may reverse or modify the decision of the trial court if it determines that the decision is clearly erroneous in view of the evidence and pleadings in the whole record.
      “If the supreme court deems it necessary to the proper disposition of the cause, it may remand the case for a further articulation of the basis of the trial court’s decision.
      “It is the responsibility of the appellant to provide an adequate record for review.”

       Practice Book § 3060P (c) provides: “[briefs]—appellant’s brief; form
      “The appellant’s brief shall contain the following ....
      “(c) A statement of the nature of the proceedings and of the facts of the case. The statement of facts shall be in narrative form, and shall be supported by appropriate references to the page or pages of the record or transcript upon which the party relies. The statement of facts should not be detailed or voluminous but must be confined strictly to facts bearing upon the questions raised. An appellant may not rely upon any fact unless it is set forth in his statement of facts or is incorporated into his brief in accordance with subsection (d) hereof.”


author: Arthur H. Healey, J.

text:
    State of Connecticut v. Mark Simino
    (12095)
    Healey, Dannehy, Santaniello, Callahan and Shaughnessy, Js.
    Argued February 5
    decision released June 3, 1986

      Timothy H. Everett, with whom, on the brief, were Mary Futcher and Matthew Newman, legal interns, for the appellant (defendant).

      James G. Clark, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Dennis O’Connor and CarlSchuman, assistant state’s attorneys, for the appellee (state).
   Arthur H. Healey, J.

The defendant, Mark Simino, was found guilty after a jury trial of the crimes of larceny in the second degree by possession in violation of General Statutes § 53a-123 (a) (2) and conspiracy to commit larceny in the second degree by possession in violation of General Statutes §§ 53a-48 and 53a-123 (a) (2). He appeals the judgment of conviction and claims that: (1) the trial court erred in denying his motions for judgment of acquittal; (2) there was insufficient evidence to establish the value of the property involved as required by statute; (3) the trial court should have sustained the defense objections to the state’s rebuttal; and (4) the trial court erred in finding that the defendant had waived his federal and state constitutional rights to be present during the jury instructions.

The jury could reasonably have found the following facts: On September 20, 1982, two pieces of wire wicker furniture, a couch and a chair with cushions were removed from the front porch of the home of Joseph and Marie Mastronardi in Hartford. Joseph Mastronardi saw the furniture on his porch at about 1 a.m. on September 20,1982. He walked his dog from approximately 7:15 to 8 a.m. that same day and did not notice anything unusual at that time. As he backed his car out of the driveway at 8:10 a.m., he saw pillows from the furniture on the front lawn, exited his car and tossed the pillows onto the porch and realized that the furniture was missing. He drove to work, called his wife at home to confirm his discovery, and called the police. Marie Mastronardi, after a conversation with a detective from the Hartford police department, called used furniture stores to determine if her furniture had been sold to such a shop. She located the furniture at the first store she called, Able Sam and John’s of Hartford. She gave the storeowners a check as a deposit on the furniture and she again contacted the police. A search warrant was obtained and executed on the store, and the furniture was recovered. The store is about two and one-half miles from the Mastronardi residence.

It was stipulated at trial that the defendant was in the store at the time the sale of this furniture by Thomas Mora took place and that the defendant was arrested in connection with the transaction. Mora had telephoned the defendant on the morning of September 20,1982, and told him that he had bought it from a man, who had the furniture in his car on Farming-ton Avenue, for $25. Shortly thereafter that same morning, the defendant and Mora attempted to sell the furniture to a gas station attendant and to a man in a pizza shop on their way to Able Sam and John’s.

Glen Frazier, a part owner of Able Sam and John’s, was doing paperwork in the store when the defendant and Mora arrived at approximately 8:45 a.m. on September 20, 1982, at which time the defendant stated that they had some wicker furniture for sale. Frazier told them to come back later because the store was closed. The pair came back to the store about fifteen minutes later and asked Frazier to look at the furniture which was in the basement of Mora’s mother’s house. Because Frazier was alone in the store at the time, he told them they would have to wait until his partner returned with his truck. Approximately fifteen to twenty minutes later, the defendant and Mora returned with the furniture and the store partners agreed to buy the two pieces for $125 and paid the money to Mora who signed a false name to a receipt for the property. The defendant was about five feet from Mora when he signed the receipt. Mora paid forty or fifty dollars of this money to the defendant for a prior debt. Other evidence before the jury, which is relevant to the disposition of the issues on appeal, will be discussed below.

The defendant’s first claim on appeal is that the trial court erred by denying his motions for judgment of acquittal because the state failed to establish that the defendant actually knew or believed that the two pieces of furniture had probably been stolen, an essential element of General Statutes §§ 53a-123 (a) (2) and 53a-119 (8). The defendant made oral motions for judgment of acquittal as to both counts of the information after the state had rested and at the close of all the evidence, and after each denial by the trial court he took an exception.

When a claim on appeal challenges the sufficiency of the evidence, we undertake a two-part task. “We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985); State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984); State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984).” State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985); see State v. McCarthy, 197 Conn. 166, 178, 496 A.2d 190 (1985).

In reviewing the evidence presented, “it is of no moment that much of the relevant evidence may be circumstantial.” State v. Braxton, supra. “We also note, as we have often said, that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned.” State v. Haddad, 189 Conn. 383, 390, 456 A.2d 316 (1983). “It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. State v. Gaynor, 182 Conn. 501, 438 A.2d 749 (1980); State v. Brown, 168 Conn. 610, 616, 362 A.2d 910 (1975); State v. Walters, 145 Conn. 60, 69,138 A.2d 786 (1958).” State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981).

In reviewing the evidence in this case, it should be noted that “ ‘[a]ctual knowledge that the property has been stolen is necessary, but the trier “would not be justified in finding knowledge unless the facts referred to were such that a reasonable man—the accused as a reasonable man—should have inferred and gathered from them knowledge that the goods were stolen.” State v. Weiner, 84 Conn. 411, 418, [80 A. 198 (1911)].’ State v. Appletree, [35 Conn. Sup. 531, 534, 394 A.2d 744 (1977)].” State v. Scielzo, 190 Conn. 191, 198-99, 460 A.2d 951 (1983).

The defendant claims that both motions for judgment of acquittal are reviewable on appeal and that the sufficiency of the evidence should be evaluated after the state rested its case and after all the evidence had been heard. In State v. Rutan, 194 Conn. 438, 440, 479 A.2d 1209 (1984), we stated that “[u]nder the waiver rule, when a motion for acquittal at the close of the state’s case is denied, a defendant may not secure appellate review of the trial court’s ruling without foregoing the right to put on evidence in his or her own behalf. . . . If the defendant elects to introduce evidence, the appellate review encompasses the evidence in toto.” The defendant in this case elected to present a defense and under the waiver rule, we decline to review the trial court’s ruling on the motion after the state has rested its case. We now look at the evidence in toto in order to review the trial court’s ruling on the motion for judgment of acquittal after all the evidence had been presented.

There was also the following evidence before the jury: Early in the morning of September 20, 1982, the defendant received a telephone call from Mora in which Mora told him that he had bought some wicker furniture as a gift for his mother. When Mora told the defendant that he had only paid $25 for it, the defendant told him that he “got a bargain” and he inquired of Mora at least twice if he was sure that the furniture did not belong to his mother. When Mora was informed by the defendant that he “could get a couple hundred dollars for it,” Mora asked the defendant “where [they] could go” and the defendant suggested Able Sam and John’s, a store with whom he had previously done business. On their way to the store, the pair stopped at a gas station and a pizza house in an attempt to sell the furniture. When they arrived at the store, it was not yet open for business and the pair was told to return, and they did so twice within the next thirty minutes. The defendant, on the third visit, actively participated in negotiating the sale price of $125 although Marie and Joseph Mastronardi and Richard Wacht, an auctioneer, testified that the value of the property taken was between $600 and $1000. After the defendant negotiated the price and the store owners paid Mora, Mora paid the defendant “forty or fifty” dollars because Mora owed him fifty-seven dollars that the defendant had recently paid to a bail bondsman on Mora’s behalf. In the presence of the defendant, Mora signed a false name to the receipt because he was “under the impression that [the property] was stolen.”

The evidence in toto, as reviewed above, was sufficient for a jury reasonably to conclude that the defendant probably knew or believed that the furniture was stolen. As we stated in State v. Fredericks, 149 Conn. 121, 124, 176 A.2d 581 (1961), “[o]rdinarily, guilty knowledge can be established only through an inference from other proved facts and circumstances. The inference may be drawn if the circumstances are such that a reasonable man of honest intentions, in the situation of the defendant, would have concluded that the property was stolen. State v. Heno, 119 Conn. 29, 32, 174 A. 181 [1934]; State v. Weiner, 84 Conn. 411, 417, 80 A. 198 [1911].” See State v. Gabriel, 192 Conn. 405, 412, 473 A.2d 300 (1984). There was a sufficient basis in the facts established by the cumulative evidence from which the jury could logically infer and on which they could properly rely to predicate their verdicts of guilty of larceny by possession and conspiracy to commit larceny by possession. The trial court did not err in denying the defendant’s motion for judgment of acquittal.

The defendant’s second claim is that the state failed to introduce sufficient evidence to support a finding by the jury that the value of the property received by the defendant exceeded $500 as required by General Statutes (Rev. to 1981) § 53a-123. The defendant claimed that the evidence introduced at trial to establish the element of value was “inconclusive and conflicting.” The state was required to prove the value of the property by ascertaining its market value “at the time and place of the crime.” General Statutes § 53a-121 (a) (1). It is a long established rule that the “[testimony of the [owner] as to the value of the [personal property] was proper, although no qualification other than his ownership of it was shown.” Saporiti v. Austin A. Chambers Co., 134 Conn. 476, 479-80, 58 A.2d 387 (1948); Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 422, 446 A.2d 799 (1982); see McCahill v. Town & Country Associates, Ltd., 185 Conn. 37, 41, 440 A.2d 801 (1981); 3 Wigmore, Evidence (Chadbourn Rev.) § 716.2. “The rule establishing an owner’s competence to testify reflects both . . . the common experience that an owner is familiar with her property and knows what it is worth. Casada v. Hamby Excavating Co., 575 S.W.2d 851, 854 (Mo. App. [1978]). This rule is applicable in criminal as well as civil cases.” (Citations omitted.) State v. Baker, 182 Conn. 52, 60-61, 437 A.2d 843 (1980); see Shane v. Tabor, 5 Conn. App. 363, 364, 497 A.2d 1047 (1985).

The state introduced evidence of the fair market value of the two stolen pieces of wicker furniture through Joseph and Marie Mastronardi, the owners, and through Richard Wacht, an antique dealer and auctioneer. Joseph Mastronardi testified that the market value of the wicker couch and chair on September 20, 1982, was $800. He testified that he was “familiar” with wicker furniture “through shopping and looking at other wicker furniture.” He also testified that three of the four custom-made cushions for the couch and chair were also taken and that the cost in 1975 of the foam, material and labor for six cushions and pillows for a three-piece set was between $175 and $250. Joseph Mastronardi was unable to assign a value to the cushions on just the couch and chair. Marie Mastronardi testified that for three pieces of wicker furniture, including the stolen couch and chair, the foam for the cushions cost $80 to $100, the fabric cost $80, and the upholsterer charged $60. Marie Mastronardi testified that the condition of the set in 1975 was “excellent structurally” and was in “excellent condition” and that she had been “very careful with the set and very diligent about keeping it up.” After the state offered the wicker chair and couch as full exhibits, Marie Mastronardi testified that the furniture now had “some nicks and scrapes” that were not there the last time she had seen the furniture. She testified that the market value on September 20, 1982, of the two pieces of furniture in evidence, the couch and chair, was approximately $1000.

The state also called Richard Wacht, an auctioneer and antique dealer in Connecticut for approximately twenty-four years. Wacht sells wicker furniture sets at auction and has appraised wicker for individuals, an insurance company, and a bank. After testifying that there had been no fluctuation in the market value of wire wicker from the date of the theft until the day of trial, Wacht stated that the value of the wicker furniture was between $125 and $175 for the chair and between $300 and $425 for the sofa. On cross-examination Wacht testified that the two low figures given for the sofa and chair would be the wholesale price, “a figure on which [he] would pay.” The “top end” prices given on direct examination would be retail prices. The trial court then questioned Wacht as to the fair market value of the items and Wacht further clarified the prices that he had given as within the range of $150 to $175 for the chair and $350 to $450 for the sofa at auction, depending “on the level of the people there that evening.”

The jury was presented with three sets of figures from Marie and Joseph Mastronardi and Richard Wacht reflecting the fair market value of the furniture. The two pieces of furniture were introduced as exhibits at the trial. Although the three witnesses were not in agreement, the jury was free to weigh the evidence presented to it and to judge the credibility of the witnesses. From the evidence presented at trial, the jury could reasonably have concluded that the value of the Mastronardis’ wicker furniture exceeded $500. See State v. Collette, 199 Conn. 308, 507 A.2d 99 (1986); State v. Taylor, 196 Conn. 225, 231, 492 A.2d 155 (1985).

The defendant’s third claim is that the trial court abused its discretion in admitting the testimony of the state’s rebuttal witness because it was irrelevant and because the testimony did not contradict any testimony presented by the defendant. The state called as a rebuttal witness Robert LaMarche, an attorney who is employed as a clerk in Superior Court. The witness testified to the mechanics surrounding a cash bail bond. The state argued, after the defendant objected, that the rebuttal testimony “goes to the issue of whether or not there was a prior debt.” The defendant earlier had testified that he had posted a $500 cash bail bond on September 17,1982, but that on Mora’s court date he decided to employ a professional bondsman rather than leave his $500. The defendant testified that the bondsman charged him fifty-seven dollars for a surety bond which he paid out of the money he received from the release of the cash bond.

Rebuttal evidence is usually “confined to testimony which is directed at refuting the evidence given by the defendant”; State v. Addazio, 169 Conn. 416, 427, 363 A.2d 153 (1975); or is “in general contradiction of the testimony given by the defendant ... .” State v. Fine, 159 Conn. 296, 301, 268 A.2d 649 (1970). “The admission of rebuttal evidence is ordinarily within the sound discretion of the trial court. See, e.g., State v. Nims, 180 Conn. 589, 599, 430 A.2d 1306 (1980); State v. Palozie, 165 Conn. 288, 299, 334 A.2d 468 (1973); State v. Leopold, 110 Conn. 55, 67, 147 A.2d 118 (1929).” State v. Lisella, 187 Conn. 335, 337, 445 A.2d 922 (1982). In addition, a “trial court has wide discretion in its rulings on relevancy of evidence.” State v. Palozie, supra. The issue of whether a prior debt even existed and how it arose was introduced by the defendant to explain why he received money from Mora from the sale of the furniture, although Mora only testified that he paid the defendant for “helping out” with the sale. The real reason why the defendant was paid by Mora for his connection with the sale is related to the main issue in the case, whether the defendant probably knew or believed the furniture was stolen. “If the issue was in the case, the evidence was highly relevant.” Reboni v. Case Bros., Inc., 137 Conn. 501, 508, 78 A.2d 887 (1951). The trial court could reasonably have concluded that this evidence was relevant to the issue of prior debt and to explain the two bond documents that had already been admitted into evidence by the defendant which show that the defendant received a $500 check from the court clerk and that a professional bondsman posted a surety bond. The documents do not show, although the defendant so testified, that it was he who paid any fees to the professional bondsman for the surety bond.

Even if we were to assume that the rebuttal testimony was not relevant nor in contradiction to the evidence presented by the defendant, “[we] note that the defendant’s claim does not involve the violation of a constitutional right and, hence, the burden rests upon the defendant to demonstrate the harmfulness of the court’s error. See State v. Pepe, 176 Conn. 75, 81, 405 A.2d 51 (1978); State v. Sorbo, 174 Conn. 253, 257, 386 A.2d 221 (1978). . . .” State v. Ruth, 181 Conn. 187, 197, 435 A.2d 3 (1980); see State v. Addazio, supra.

The defendant claims that the error was not harmless because the rebuttal testimony “may well have confused and misled the jury” and because it may have led the jury to assume that the rebuttal testimony was relevant. After a thorough review of the transcript, we cannot agree that it demonstrates that “confusion . . . accompanied the presentation of this testimony.” We have also already concluded that it was well within the trial court’s discretion to consider this testimony to be relevant. The defendant has not sustained his burden of demonstrating the harmfulness of the alleged error.

The defendant’s final claim is that the trial court erred in instructing the jury in the absence of the defendant when the defendant had not waived his right to be present as guaranteed by article first, § 8, of the state constitution and the sixth and fourteenth amendments to the federal constitution. The defendant claims that this issue is reviewable on appeal although no objections were taken to the commencement of the jury instructions by the trial court or to the substance of the jury instructions now or at trial. We agree with the defendant that this claim is reviewable under the second exceptional circumstance oí State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), because the defendant’s fundamental constitutional right to a fair trial is implicated.

The trial court, before the jury was brought in for instructions, noted that the defendant had not yet arrived. The state’s attorney asked defense counsel, “on record whether or not his client has, pursuant to the Practice Book, agreed to waive his right to be present for this charge?” Defense counsel answered: “Well, I can’t make any representation on that, your Honor. I instructed him to be here and not be late.” Defense counsel did not, however, object to the trial court’s proceeding to instruct the jury. The trial court made a finding that “[the defendant] was told to be here yesterday and it is now 10:25, he was told we would commence the charge at ten o’clock, the Court will find that he has, by not being here, waived his right by his actions of not being here.” The transcript reveals that by 11:23 a.m. the defendant had still not appeared in court. At 12:11 p.m. when the jury announced its verdict, the defendant was present in the courtroom.

A criminal defendant has a constitutional right to be present at all critical stages of his trial. Rushen v. Spain, 464 U.S. 114, 104 S. Ct. 453, 78 L. Ed. 2d 267 (1983); see Illinois v. Allen, 397 U.S. 337, 338, 90 S. Ct. 1057, 25 L. Ed. 2d 353, reh. denied, 398 U.S. 915, 90 S. Ct. 1684, 26 L. Ed. 2d 80 (1970). While we have said that “[a]s a general rule, an accused has a constitutional right to be present at all stages of his trial,” we have also said that “[t]he question should be whether the defendant’s presence bears ‘a relation, reasonably substantial, to his opportunity to defend.’ Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S. Ct. 330, 78 L. Ed. 674 [1934].” State v. Olds, 171 Conn. 395, 405, 406, 370 A.2d 969 (1976). This right to be present at trial may be waived by the defendant or the judicial authority may “[d]irect that the trial or a part thereof . . . be conducted in his absence if the judicial authority determines that he waived his right to be present.” Practice Book § 968 (1) and (2); State v. Parham, 174 Conn. 500, 506, 391 A.2d 148 (1978).

The two questions that must be addressed in order to dispose of this issue are: (1) whether a criminal defendant’s constitutional right to be present at “all stages of his trial” includes the instructions to the jury; and if so, (2) whether the defendant effectively waived his right to be present by his unexcused absence.

The defendant claims that his constitutional right to be present at trial is an “essential concomitant of [his] right to effective assistance of counsel”; United States v. Washington, 705 F.2d 489, 497 (D.C. Cir. 1983); and is “rooted in the right of confrontation” as well as an “essential component of due process of law applicable to the states through the fourteenth amendment.” The defendant argues that his constitutional right to be present may be waived by a “voluntary and deliberate absence from the trial without good cause, or by his conduct or misconduct,” but that the trial judge failed to determine whether his absence was voluntary and that it did not consider other possible alternatives before “waiving” his right to be present. The state contends that it is “[ajssuming only for the sake of argument that the defendant had a fundamental right to be present for jury instruction. . . .” In addition, the state claims that the defendant has presented “no authority holding that the jury charge is a ‘critical stage’ of trial at which the defendant’s presence is always required by due process.” The state cites Snyder v. Massachusetts, 291 U.S. 97, 107, 114-15, 54 S. Ct. 330, 78 L. Ed. 674 (1934), in arguing that the defendant’s right to be present at the jury charge cannot be considered an aspect of the right to confrontation contained in the sixth amendment and should only be analyzed as a due process claim. The state contends that “of all the stages of trial, the purely legal charge to the jury is least likely to be affected by the defendant’s presence” because it is “no place for intuition, but [is a place] for legal training.”

A defendant’s right to be present at all stages of his trial is “scarcely less important to the accused than the right of trial itself.” Diaz v. United States, 223 U.S. 442, 455, 32 S. Ct. 250, 56 L. Ed. 500 (1912). “The trial as respects the prisoner’s right of presence in the constitutional sense, does not include the formal procedure of indictment or preliminary steps antecedent to the hearing on the merits, or stages of the litigation after the rendition of the verdict, but does comprehend the inquiry by the ordained trier of fact from beginning to end.” Snyder v. Massachusetts, supra, 129 (Roberts, J., dissenting); see Shields v. United States, 273 U.S. 583, 588-89, 47 S. Ct. 478, 71 L. Ed. 787 (1927). It has been said that the term “trial” should be considered in context and in connection with the particular matter to which it relates as it has different meanings. 88 C.J.S., Trial § 1. A “trial by jury” has been said to “comprehend a full and fair hearing upon all relevant issues where all questions of fact presented by the testimony are decided by the jury in accordance with the principles of law given to them by instructions of the judge.” New England Novelty Co. v. Sandberg, 315 Mass. 739, 750, 54 N.E.2d 915, cert. denied, 323 U.S. 740, 65 S. Ct. 63, 89 L. Ed. 593 (1944).

We have previously ruled that a defendant does not have an absolute right to be present during a discussion of questions of law. State v. Olds, supra. Implicit, however, in the federal and state constitutional guarantee of the criminal defendant’s right to be present at all stages of a trial is the right to be present during the court’s instructions to the jury unless waived. The defendant’s right to be present at the jury instructions is an important one because it is during the instructions that the “court is required to state the fundamental legal principles applicable to criminal cases generally, as well as the material legal principles applicable to a particular case and the application of the law to the facts. ...” People v. Ciaccio, 47 N.Y.2d 431, 436, 391 N.E.2d 1347, 418 N.Y.S.2d 371 (1979). Despite the state’s claim that “the jury is least likely to be affected by the defendant’s presence” at this stage of the proceedings, it does not alter his right to be present as the instructions are given unless that right is waived.

Although we conclude that the defendant did have a state and federal constitutional right to be present during jury instructions, this right is not absolute. Despite the constitutional right to be present, “there can be no doubt whatever that the governmental prerogative to proceed with a trial may not be defeated by the conduct of [an] accused that prevents the trial from going forward.” Illinois v. Allen, supra, 349 (Brennan, J., concurring). Not only may an accused waive his right to presence by his misconduct as in Illinois v. Allen, supra, but he may also do so by simply failing to show up for the trial through no fault of the state. Diaz v. United States, supra; see also United States v. Martinez, 604 F.2d 361 (5th Cir. 1979), cert. denied, 444 U.S. 1034, 100 S. Ct. 708, 62 L. Ed. 2d 671 (1980) (defendant disappeared after trial had begun, evidence had been taken and he had been warned of the importance of his presence). In any event, this right, like other rights, is not absolute. See, e.g., Heiligh v. United States, 379 A.2d 689, 693 (D.C. App. 1977). In Snyder v. Massachusetts, supra, 105-106, the United States Supreme Court stated: “ ‘[I]n a prosecution for a felony the defendant has the privilege under the Fourteenth Amendment to be present in his own person whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.’ ” Talton v. Warden, 171 Conn. 378, 382, 370 A.2d 965 (1976). We have noted that “[t]he basis and extent of the [fourteenth amendment] right, however, are the subject of some confusion.” Id., 381. “The problem ... is not so much defining the authority for the right as it is establishing to what extent the right of presence attaches when witnesses are not being questioned.” Id., 383. Thus, a defendant may waive this constitutional right and the question becomes whether that right was effectively waived by his absence. See State v. Parham, supra, 505. Nevertheless, the right must be carefully safeguarded. United States v. Tortora, 464 F.2d 1202, 1209 (2d Cir.), cert. denied sub nom. Santora v. United States, 409 U.S. 1063, 93 S. Ct. 554, 34 L. Ed. 2d 516 (1972). “[Whether there has been an intelligent and competent waiver of the right to presence ‘must depend, in each case, upon the particular facts and circumstances surrounding that case.’ Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 [1938].” Talton v. Warden, supra, 385. “[A] waiver of the right to be present at a criminal trial may be inferred from certain conduct engaged in by the defendant after the trial has commenced.” People v. Parker, 57 N.Y.2d 136, 139, 440 N.E.2d 1313, 454 N.Y.S.2d 967 (1982).

The transcript in this case reveals that defense counsel advised the defendant to appear in court and “not be late” and that the court also told the defendant the day before that the charge to the jury would commence “first thing tomorrow morning at ten o’clock.” The defendant’s case had then been on trial for four days and all the evidence had been presented, including his own testimony. The defendant thus had sufficient notice of the time and location of the instructions to the jury and that his presence was requested. We note that his trial took place in Hartford at a time that he resided in the neighboring town of West Hartford.

The defendant claims that an implicit waiver from absence is not sufficient to waive a constitutional right and that, in this case, there was no indication that the absence was voluntary. Under Practice Book § 968, the trial court is authorized to direct the trial or a part thereof to be conducted in the absence of the defendant who is represented by counsel if the court determines that he has waived his right to be present. The trial court found, under the circumstances, a waiver by the defendant’s unexplained absence. See, e.g., United States v. Reed, 639 F.2d 896 (2d Cir. 1981); United States v. Martinez, supra; United States v. Tortora, supra; Maupin v. State, 694 P.2d 720, 722 (Wyo. 1985). In United States v. Davis, 486 F.2d 725, 726-27 (7th Cir. 1973), cert. denied, 415 U.S. 979, 94 S. Ct. 1569, 39 L. Ed. 2d 876 (1974), the defendant was directed to be in court at 10 a.m. for the continuation of his trial and at 10:20 a.m. he had not yet arrived. The defendant’s mother advised the court at that time that her son had left home, presumably at or before the time that she had. The court found that the defendant had “voluntarily absented himself from the courtroom” and ordered that the trial proceed. Id., 726. The Court of Appeals found no abuse of the trial court’s discretion in determining that the trial should continue. Id., 727. In the present case, the defendant’s absence occurred during the instructions to the jury, unlike United States v. Davis, supra, in which the defendant’s absence occurred during the presentation of the state’s case. In addition, the trial court below cautioned the jury that it was to draw “no inferences or any conclusions from that, one way or the other. ... He may have been held up in traffic, nobody knows. He maybe couldn’t find a place to park, which is also very understandable.” There is nothing in the record to rebut the presumption that the jury did not follow the instructions of the court. State v. Glenn, 194 Conn. 483, 497, 481 A.2d 741 (1984). Nevertheless, the defendant cites this instruction as evidence that the trial judge could not conclude that the absence was voluntary. It is reasonable to assume that a defendant who had attended his trial for several days and had knowledge of the date and time of its continuance would know that “ ‘as a consequence the trial could continue in his absence.’ ” Taylor v. United States, 414 U.S. 17, 20, 94 S. Ct. 194, 38 L. Ed. 2d 174 (1973), quoting United States v. Taylor, 478 F.2d 689, 691 (1st Cir. 1973). In Taylor v. United States, supra, 19, the United States Supreme Court rejected the accused’s claim that “his mere voluntary absence” from his trial could not be construed as an effective waiver. In that case, the court held that it was not necessary to the finding of a waiver that he should have been “expressly warned by the trial court not only that he had a right to be present but also that the trial would continue in his absence . . . .” Id. The defendant, in asserting this right, overlooks the correlative duty which he had, as one at liberty on bail, to be present. Id., 20; Heiligh v. United States, supra; see Stack v. Boyle, 342 U.S. 1, 4-5, 72 S. Ct. 1, 96 L. Ed. 2 (1951). The court’s hypothetical explanations, moreover, of the defendant’s absence to the jury do indicate a “voluntary” absence by the defendant. We note that the record does not disclose any effort to explain the defendant’s absence. The “exigencies” cited by the court did not require the court to delay its instructions to the jury. A defendant is constitutionally guaranteed only the right to have the opportunity to be present at all stages of his trial. The defendant had the opportunity in this case and did not responsibly utilize it. When the defendant arrived in court after the jury had already been instructed, defense counsel stated for the record that the defendant “didn’t have transportation to court, his ride didn’t show up. He ended up having to take a bus down here.” This excuse for his tardiness does not impact on the reasonableness of the trial court’s exercise of its discretion in finding that the defendant had voluntarily absented himself from the trial. See United States v. Raper, 676 F.2d 841, 845-46 (D.C. Cir. 1982).

An important consideration in our conclusion that there was no error to proceed with the jury instructions is the stage of the trial during which he was absent. Jury instructions, as we have already noted, are an important part of any trial. Nevertheless, in the context of the defendant’s constitutional rights to confrontation and due process, his absence during this stage “did not have a substantial effect upon his opportunity to defend”; People v. Mullen, 44 N.Y.2d 1, 6, 374 N.E.2d 369, 403 N.Y.S.2d 470 (1978); because he was represented by able counsel. No evidence was being taken nor were there witnesses whom the defendant should have had the opportunity to confront. The presence of counsel at this stage in the proceedings was sufficient, in the circumstances of this case, to afford the defendant due process and a fair trial under both the United States and Connecticut constitutions. See, e.g., Harris v. United States, 489 A.2d 464, 468 (D.C. App. 1985). “Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. It is fairness with reference to particular conditions or particular results.” Snyder v. Massachusetts, supra, 116. This language of Justice Cardozo underscores his thesis in Snyder that “[s]o far as the Fourteenth Amendment is concerned, the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” Id., 107-108. The circumstances of this case, including no demonstrable prejudice, require us to leave the judgment undisturbed.

There is no error.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1981) § 53a-123 (a) (2) provides: “larceny in THE second degree: class D FELONY, (a) A person is guilty of larceny in the second degree when . . . (2) the value of the property or service exceeds five hundred dollars.”

       General Statutes § 53a-48 provides in part: “conspiracy, renunciation. (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       Thomas Mora was arrested in connection with the sale of this furniture, pleaded guilty, and received a sentence of eighteen months.

       General Statutes (Rev. to 1981) § 53a-119 provides in relevant part: “larceny defined. A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes but is not limited to . . .
      “(8) Receiving stolen property. A person is guilty of larceny by receiving stolen property if he receives, retains, or disposes of stolen property knowing that it has probably been stolen or believing that it has probably been stolen, unless the property is received, retained or disposed of with purpose to restore it to the owner.”

       Although we recognize that there is “growing criticism of the waiver rule”; State v. Duhan, 194 Conn. 347, 352, 481 A.2d 48 (1984); this is not an appropriate case in which to change the waiver rule “because, even if the defendant’s claim were properly here, he could not prevail.” State v. Rutan, 194 Conn. 438, 444, 479 A.2d 1209 (1984); see State v. Lizzi, 199 Conn. 462, 464-65, 508 A.2d 16 (1986).

       The defendant did not raise this issue below and ordinarily it would not be reviewable on appeal. His claim, however, falls within the second exceptional circumstance of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), because proof beyond a reasonable doubt of all the elements of a crime, here the $500 value requirement, is a fundamental constitutional right. In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Scielzo, 190 Conn. 191, 204, 460 A.2d 951 (1983).

       After the court had charged the jury and the jury had just begun deliberations, the following colloquy took place between the trial court and the defense:
      “The Court: Now, I would suggest, you might try to contact Mr. Simino. I know you haven’t had a chance to do it while we have been here. As far as you knew, I assume, he was going to be here, is that correct?
      “Mr. DeCaprio: Well, I did instruct him, as I said, to be here at ten. I don’t know.
      “The Court: All right.
      “Mr. DeCaprio: I will try to call him, I have a phone number.”

       The defendant claims that the trial court erred in not considering other possible alternatives before finding that the defendant had waived his right to be present. We note that there was no request for any such alternatives. In any event, because we conclude that the trial court acted reasonably under the circumstances of this case and because no prejudice has been demonstrated because of its actions, we find no error under this claim.


author: Callahan, J.

text:
    Connecticut Hospital Association, Inc., et al. v. Commission on Hospitals and Health Care
    (12653)
    Shea, Dannehy, Callahan, Jacobson and Kulawiz, Js.
    Argued March 13
    decision released June 3, 1986

      J. Michael Eisner, with whom were Jeanette C. Schreiber and, on the brief, R. Jeffrey Sands, for the appellants (plaintiffs).

      Richard J. Lynch, assistant attorney general, with whom were Maite Barainca, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, for the appellee (defendant).
   Callahan, J.

The plaintiffs, thirty-four hospitals in Connecticut (hereinafter hospitals), have appealed from a judgment of the Superior Court rendered in favor of the defendant commission on hospitals and health care (hereinafter commission). The hospitals claim that the trial court erred: (1) by applying improper standards in its review of the declaratory ruling issued by the commission; and (2) by failing to reverse the declaratory ruling of the commission and to hold that the commission has no authority to regulate capital expenditures that are under the statutory threshold dollar amounts set forth in General Statutes § 19a-155. We find no error.

On September 23, 1982, the hospitals filed with the commission a petition for a declaratory ruling on three questions pursuant to General Statutes (Rev. to 1981) § 4-176, a statement in support of the petition and an appendix. The commission voted to consider the petition and held a hearing on December 15,1982, at which the hospitals presented evidence and testimony in support of the requested ruling. Subsequent to that hearing, the enactment of Public Acts 1983, No. 83-215 (now General Statutes §§ 19a-154 and 19a-155), effective on May 26,1983, caused the first two questions raised by the hospitals in the petition to become moot. The only issue raised by the request for a declaratory ruling which has not become moot and the only issue we will consider involves the extent of the commission’s jurisdiction over capital expenditures. On that issue, the hospitals sought the following declaratory ruling: "[A] capital expenditures budget submitted to the Commission in accordance with the provisions of Section 19-73o (a) [now Section 19a-156 (a)] does not prevent a hospital desiring to undertake additional capital expenditures (not in its capital expenditures budget and not exceeding the minimum jurisdictional dollar amounts set forth in Section 19~73m [now Section 19a-155]), from freely undertaking such additional capital expenditures without Commission review or approval unless they are undertaken in conjunction with new services or functions subject to Commission approval under Section 19-731 [now Section 19a-154] of the Connecticut General Statutes.” The commission issued its declaratory ruling on September 13, 1983, in which it rejected the hospitals’ requested ruling and held that commission approval is required for any capital expenditures, as defined in the regulations, which are not in the approved capital budget, regardless of whether or not the amount of such expenditure falls below the threshold of General Statutes § 19a-155. The hospitals appealed this decision. On November 27, 1984, the trial court, Mack, J., issued a memorandum of decision affirming the commission’s declaratory ruling.

The question at issue arises out of the language contained in General Statutes §§ 19a-156 and 19a-155. General Statutes § 19a-155 provides in relevant part: “(a) . . . [A]ny health care facility or institution . . . proposing a capital expenditure exceeding six hundred thousand dollars, or the acquisition of major medical equipment having a cost exceeding four hundred thousand dollars, including the leasing of equipment or a facility, which expenditure was not included in a budget approved under section 19a-156, shall submit a request for approval of such expenditure to the commission . . . . ” General Statutes § 19a-156 provides in relevant part: “(a) Every hospital . . . shall submit annually to the commission its proposed operating and capital expenditures budget for its next fiscal year .... The commission shall review such proposed budget and may, with the consent of the facility or institution, informally discuss such budget with representatives of the facility or institution. The commission shall notify the facility or institution of its approval, denial or modification of such budget not later than forty-five days before such proposed adoption date. . . . [T]he commission shall order the institution to adopt a budget which the commission deems acceptable for the coming fiscal period. . . . (c) In the event of unforeseen and material changes in circumstances during any fiscal year, any hospital or health care facility or institution which has submitted a budget to the commission pursuant to the provisions of this section may submit a proposed revised budget to said commission pursuant to regulations adopted by the commission.”

“There are clear indications in the Uniform Administrative Procedure Act (UAPA); General Statutes §§ 4-166—4-189; that the legislature intended that the administrators issue declaratory rulings based on their interpretations of statutes.” Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 356, 377 A.2d 1099 (1977). The commission therefore was correct in giving its interpretation of whether General Statutes §§ 19a-155 and 19a-156 provide that additional capital expenditures which are not in the capital expenditures budget and which do not exceed the threshold amounts under § 19a-155 can be freely undertaken without review or approval by the commission.

We first address whether the Superior Court applied the proper standards in its review of the declaratory ruling issued by the commission. General Statutes § 4-183 (g) allows judicial modification of a decision of an administrative agency “if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” The trial court appears to have focused its analysis on whether the commission’s declaratory ruling interpreting the statutes was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record. We do not believe that review of the declaratory ruling should have been so limited. “Although the factual and discretionary determinations of administrative agencies are to be given considerable weight by the courts; see General Statutes § 4-183 (g); Board of Aldermen v. Bridgeport Community Antennae Television Co., 168 Conn. 294, 298-99, 362 A.2d 529 (1975); Westport v. Norwalk, 167 Conn. 151, 355 A.2d 25 (1974); 2 Am. Jur. 2d, Administrative Law §§ 645, 675; it is for the courts, and not for administrative agencies, to expound and apply governing principles of law. N.L.R.B. v. Brown, 380 U.S. 278, 291, 85 S. Ct. 980, 13 L. Ed. 2d 839 (1965); International Brotherhood of Electrical Workers v. N.L.R.B., 487 F.2d 1143, 1170-71 (D.C. Cir. 1973), aff’d sub nom. Florida Power & Light Co. v. International Brotherhood of Electrical Workers, 417 U.S. 790, 94 S. Ct. 2737, 41 L. Ed. 2d 477 (1974); 73 C.J.S., Public Administrative Bodies and Procedure § 69.” Real Estate Listing Service, Inc. v. Real Estate Commission, 179 Conn. 128, 138-39, 425 A.2d 581 (1979). This case presents a question of law turning upon the interpretation of statutes. See Brannigan v. Administrator, 139 Conn. 572, 577, 95 A.2d 798 (1953); Bridgeport v. United Illuminating Co., 131 Conn. 368, 371, 40 A.2d 272 (1944).

We conclude therefore that the trial court’s standard of review was, in the present case, too limited. This conclusion, however, does not require reversal. Rather, we will review the commission’s declaratory ruling with our focus on whether the ruling was correct as a matter of law.

The commission asserts that its declaratory ruling is consistent with the expressed intent of the legislature. “It is well settled that a statute must be applied as its words direct. Dental Commission v. Tru-Fit Plastics, Inc., 159 Conn. 362, 365, 269 A.2d 265 [1970]; Obuchowski v. Dental Commission, 149 Conn. 257, 265, 178 A. 537 [1962].” New Haven v. United Illuminating Co., 168 Conn. 478, 485, 362 A.2d 785 (1975). The statutory provisions in question are unambiguous. “[I]f the statutory language is clear and unambiguous, there is no room for construction.” Id. “ Tt has often been said that the legislative intent is to be found not in what the legislature meant to say, but in the meaning of what it did say. Wiegand v. Heffernan, 170 Conn. 567, 581, 368 A.2d 103 (1976); Colli v. Real Estate Commission, 169 Conn. 445, 452, 364 A.2d 167 (1975); Sillman v. Sillman, 168 Conn. 144, 148, 358 A.2d 150 (1975).’ Muha v. United Oil Co., 180 Conn. 720, 730, 433 A.2d 1009 (1980). Where the language used is clear and unambiguous, we will not speculate as to some supposed intention. Robinson v. Unemployment Security Board of Review, [181 Conn. 1, 6, 434 A.2d 293 (1980)].” Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 231, 477 A.2d 988 (1984). Further, where the legislative intent is clearly and unambiguously expressed in the words of the statutes, there is no need for a review of their legislative history. Federal Aviation Administration v. Administrator, 196 Conn. 546, 550, 494 A.2d 564 (1985).

The commission’s declaratory ruling is consistent with the unambiguous language of the statutes in question and therefore consistent with the expressed intent of the legislature. General Statutes § 19a-156 clearly authorizes the commission to order a hospital to adopt a capital expenditure budget which the commission finds acceptable. In that statute, there is no language which limits the commission’s authority to the threshold limits of General Statutes § 19a-155. The capital budget process for capital expenditures described in General Statutes § 19a-156 clearly applies to all capital expenditures no matter what their cost. In this capital budget process, the commission does not review the individual items within the budget to determine if they are reasonable expenditures, but the total capital budget must be acceptable. It would make little sense to interpret this statute to require approval of a hospital’s budget for all capital expenditures by the commission, but then allow the hospital freely to spend more than the authorized budget as long as the cost of no one capital expenditure reaches the § 19a-155 threshold. The language of §§ 19a-155 and 19a-156 nowhere indicates that such an interpretation was intended.

The capital budget process of § 19a-156 is separate from the procedure described in General Statutes § 19a-155. General Statutes § 19a-155 serves a different purpose from that of the overall budget review pursuant to § 19a-156. It allows the commission to review thoroughly any expenditure over the $600,000/$400,000 threshold “which expenditure was not included in a budget approved under section 19a-156.” General Statutes § 19a-155 (a). The specific project is considered “in relation to the community or regional need for such capital program or purchase of land, the possible effect on the operating costs of the health care facility or institution, the recommendations of the Health Systems Agency regarding such proposal, and such other relevant factors as the commission deems necessary.” General Statutes § 19a-155 (a). The commission’s interpretation of General Statutes §§ 19a-155 and 19a-156 conforms to the intent expressed in the statutes and does not render either statute superfluous or contradictory. The statutes are compatible and can coexist.

The commission’s interpretation of the statutes in question is also consistent with the May 18,1982 opinion of the attorney general. Although an opinion of the attorney general is not binding on a court, it is entitled to careful consideration and is generally regarded as highly persuasive. Windham Community Memorial Hospital v. Willimantic, 166 Conn. 113, 118, 348 A.2d 651 (1974). The opinion of the attorney general stated that “if a hospital proposes to undertake a capital program which will cause it to exceed its capital expenditures budget but which is less than the threshold requiring review pursuant to General Statutes § 19-73m, as amended by Section 6 of Public Act 81-465 [now Section 19a-155], a hospital must obtain the prior approval of the Commission in the form of a revised budget submitted pursuant to General Statutes § 19-73o (c), as amended by Section 7 of Public Act 81-465 [now Section 19a-156].”

We find further support for the commission’s position in the regulations which have been subsequently approved by the legislative regulation review committee. The UAPA provides that the term “regulation” means “each agency statement of general applicability, without regard to its designation that implements, interprets, or prescribes law or policy, or. describes the organization, procedure or practice requirements of any agency. The term includes the amendment or repeal of a prior regulation, but does not include (A) statements concerning only the internal management of any agency and not affecting private rights or procedures available to the public, (B) declaratory rulings issued pursuant to section 4-176 or (C) intra-agency or inter-agency memoranda . . . General Statutes § 4-166 (7). “The power of an administrative agency to prescribe rules and regulations under a statute is not the power to make law, but only the power to adopt regulations to carry into effect the will of the legislature as expressed by the statute. Commonwealth v. DiMeglio, 385 Pa. 119, 124, 122 A.2d 77 (1956); see Volunteer Firemen’s Relief Assn. v. Minehart, 425 Pa. 82, 89, 227 A.2d 632 (1967).” Salmon Brook Convalescent Home v. Commission on Hospitals & Health Care, 177 Conn. 356, 363, 417 A.2d 358 (1979). Regulation § 19a-160-115 (c) of Connecticut State Agencies allows the commission to review all capital expenditures both below and above the limits set forth in General Statutes § 19a-155. The legislative regulation review committee’s ratification of this regulation supports the position that the commission’s review of capital expenditures below the threshold amount of General Statutes § 19a-155 is part of the general statutory scheme that the legislature provided for the commission’s regulation of hospitals. See General Statutes § 4-170.

We conclude, therefore, based on the unambiguous language of General Statutes §§ 19a-155 and 19a-156, that the commission’s declaratory ruling was correct. To hold otherwise would render the budget authorization of General Statutes § 19a-156 meaningless because a hospital could then with impunity spend more than the amount authorized in its capital budget as long as the cost of no one capital expenditure reached the § 19a-155 threshold.

There is no error.

In this opinion the other justices concurred.

       The named plaintiff association is not a party to this appeal.

       “[General Statutes (Rev. to 1981)] Sec. 4-176. declaratory rulings. Each agency may, in its discretion, issue declaratory rulings as to the applicability of any statutory provision or of any regulation or order of the agency, and each agency shall provide by regulation for the filing and prompt disposition of petitions seeking such rulings. If the agency fails to exercise its discretion to issue such a ruling, such failure shall be deemed a suffident request by the plaintiff for the purposes of section 4-175. Rulings disposing of petitions have the same status as agency decisions or orders in contested cases.”

       “[General Statutes] Sec. 19a-156. (Formerly Sec. 19-73o). submission AND REVIEW OP PROPOSED BUDGETS. GUIDELINES. REVISIONS. WORLD WAR ii veterans’ memorial hospital, (a) Every hospital included with the definition of health care facilities or institutions, and any other health care facility and institution requested to do so by the commission provided such request is made upon one hundred eighty days’ notice, shall submit annually to the commission its proposed operating and capital expenditures budget for its next fiscal year or, in the case of a hospital, data sufficient to establish entitlement to an exemption from budget review under section 19a-157, at least ninety days prior to the proposed adoption date of its budget. The commission shall review such proposed budget and may, with the consent of the facility or institution, informally discuss such budget ■with representatives of the facility or institution. The commission shall notify the facility or institution of its approval, denial or modification of such budget not later than forty-five days before such proposed adoption date. Failure of the commission so to notify the facility or institution shall be deemed approval of such budget. If the commission denies or modifies a budget, it shall hold a hearing not later than thirty days before such proposed adoption date with representatives of the facility or institution, to consider and evaluate such data and information as it considers relevant, unless an agreement has been reached between the facility or institution and the commission, and, at least fifteen days before the proposed budget adoption date, the commission shall order the institution to adopt a budget which the commission deems acceptable for the coming fiscal period.
      “(b) On or before April fifteenth of each year the commission shall publish the guidelines which it will apply to such budget review during the forthcoming year.
      “(c) In the event of unforeseen and material changes in circumstances during any fiscal year, any hospital or health care facility or institution which has submitted a budget to the commission pursuant to the provisions of this section may submit a proposed revised budget to said commission pursuant to regulations adopted by the commission.
      “(d) The annual proposed operating and capital expenditures budget of the World War II Veterans’ Memorial Hospital, a municipal agency of the city of Meriden, may be based upon a fiscal year commencing July first to conform to the fiscal year of the city of Meriden.”

       “[General Statutes] Sec. 19a-155. (Formerly Sec. 19-73m). requests FOR APPROVAL OF CAPITAL EXPENDITURES. CAPITAL PROGRAMS OF AN EMERGENCY NATURE. EXPEDITED HEARING PROCESS. WAIVER OF HEARING. COMBINING SIMILAR REQUESTS. HEARINGS ON APPLICATIONS OF A SIMILAR nature; coordination of activities, (a) Except for a program of ambulatory services established and conducted by a health maintenance organization, any inpatient rehabilitation facility affiliated with the Easter Seal Society of Connecticut, Inc., any health care facility or institution except a home health care agency or homemaker-home health aide agency or any state health care facility or institution proposing a capital expenditure exceeding six hundred thousand dollars, or the acquisition of major medical equipment having a cost exceeding four hundred thousand dollars, including the leasing of equipment or a facility, which expenditure was not included in a budget approved under section 19a-156, shall submit a request for approval of such expenditure to the commission, with such data, information and plans as the commission requires in advance of the proposed initiation date of such project and in accordance with the schedule established by the commission pursuant to subsection (c) of this section. Such request including required data, information and plans shall be submitted to the appropriate health systems agency at least thirty days prior to the submission to the commission. The commission shall thereupon hold a public hearing with respect to such request, at least two weeks’ notice of which shall be given to the facility or institution by certified mail and to the public by publication in a newspaper having a substantial circulation in the area served by the facility or institution. Such hearing shall be held at the discretion of the commission in Hartford or in the area so served. The commission shall consider such request in relation to the community or regional need for such capital program or purchase of land, the possible effect on the operating costs of the health care facility or institution, the recommendations of the Health Systems Agency regarding such proposal, and such other relevant factors as the commission deems necessary. In approving or modifying such request, the commission may not prescribe any condition, such as but not limited to any condition or limitation on the indebtedness of the facility or institution in connection with a bond issue, the principal amount of any bond issue or any other details or particulars related to the financing of such capital expenditure, not directly related to the scope of such capital program and within control of the facility or institution. Upon a showing by such facility or institution that the need for such capital program is of an emergency nature, the commission may waive the requirement that the request be submitted in accordance with the schedule established by the commission pursuant to subsection (c) of this section and that a public hearing be held thereon, provided such request shall be submitted at least ten days before the proposed initiation date of the project. The commission shall grant, modify or deny such request within ninety days or within ten days, as the case may be, of receipt thereof, except that upon request of the applicant, the ninety-day review period may be extended for an additional fifteen days if the commission or the health systems agency has requested additional information subsequent to the commencement of the commission’s review period. Failure of the commission to act thereon within such period shall be deemed approval of such request, except that if the failure to act results from a tie vote of the commission on a motion to approve, modify or deny the request, the ninety-day review period shall automatically be extended fifteen days. The commission shall, not later than January 1,1981, adopt regulations to establish an expedited hearing process to be used to review requests by any facility or institution for approval of a capital expenditure to establish an energy conservation program or to comply with requirements of any federal, state or local health, fire, building or life safety code. The commission shall adopt regulations in accordance with the provisions of chapter 54 to provide for the waiver of a hearing, for any part of a request by a facility or institution for a capital expenditure, provided such facility or institution and the commission agree upon such waiver.
      “(b) Except as provided for in subsection (a) of this section, any person proposing a capital expenditure to acquire imaging equipment having a cost exceeding four hundred thousand dollars, including the leasing of such equipment, which imaging equipment will not be owned by or located in a health care facility or institution, or state health care facility or institution, shall submit a request for approval of any such imaging equipment acquisition pursuant to the provisions of subsection (a) of this section.
      “(c) In conducting its activities under this section and section 19a-154, the commission shall hold hearings on applications of a similar nature at the same time and shall coordinate its activities under said sections with the activities of health systems agencies including the holding of joint hearings with such agencies where possible. The commission shall adopt regulations in accordance with the provisions of chapter 54, establishing a schedule for the submission of such applications which shall provide for all completed applications pertaining to similar types of services, facilities or equipment affecting the same health service area to be considered in relation to each other and reviewed at least twice a year.”

       Regulation § 19a-160-115 (c) provides in pertinent part: “capital expenditure budgets . . . (c) The commission may review all capital expenditure items for new or replacement equipment under the limits set forth in sec. 19a-155 of the General Statutes, as part of the budget submission process and may review capital expenditures for new equipment or replacement capital acquisitions in excess of such limits as part of the capital budget review. Where expenditures for such items are deferred, the commission will entertain appropriate fillings under section 19a-155 of the General Statutes.”


text:
    E.I.S., Inc., et al. v. Connecticut Board of Registration for Professional Engineers and Land Surveyors
    (12656)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.
    Argued February 14
    decision released June 3, 1986

      Haynes N. Johnson, for the appellant (named plaintiff).

      Neil G. Fishman, assistant attorney general, with whom were Robert M. Langer, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, and Robert T. Statehen, assistant attorney general, for the appellee (defendant).

      Roger E. Koontz, filed a brief as amicus curiae.
   Callahan, J.

This is an appeal from the judgment of the trial court upholding a decision of the defendant, Connecticut Board of Registration for Professional Engineers and Land Surveyors (hereinafter board), ordering the named plaintiff, E.I.S., Inc. (hereinafter E.I.S.), to discontinue its violations of General Statutes § 20-306a. We find error.

The board issued a complaint pursuant to General Statutes § 20-307a charging E.I.S. with engaging in the practice or offering to practice the profession of engineering without proper registration. Following hearings on July 31,1981, and March 9,1982, the board made the following findings: that E.I.S.’s ordinary business involves analysis of applications submitted to town agencies, preparation of environmental impact statements, and teaching seminars concerning the interrelationship between biology, geology and hydrology and land use decisions; that the Woodbury planning commission asked E.I.S. for an environmental analysis of an application for a proposed business condominium development; and that E.I.S. prepared a report which included statements to the effect that sight lines were in excess of 200 feet, that a solution to this problem was to move the entrance twenty feet south, and that “Rip Rap for energy dissipators must be designed into an appropriate water control plan.” The board found that these statements constituted engineering within the meaning of General Statutes § 20-299 since they involve “consultation and evaluation in connection with a privately owned project wherein the public welfare and safeguarding of life, public health or property is concerned.” The board concluded that E.I.S. violated General Statutes § 20-306a by practicing the profession of engineering without a license issued in accordance with chapter 391 of the General Statutes. The plaintiff appealed to the Superior Court and that court dismissed the appeal.

On appeal to this court the plaintiff argues on a number of grounds that the trial court erred in upholding the board’s decision that E.I.S. violated General Statutes § 20-306a by practicing engineering without a license. Because we find that there was insufficient evidence before the board to warrant a finding that E.I.S. was engaged in the practice of professional engineering, we need not address the plaintiff’s other claims.

We note that the interpretation of a statute by an agency created to administer that statute is traditionally accorded great deference. Connecticut State Board of Labor Relations v. Board of Education, 177 Conn. 68, 74, 411 A.2d 28 (1979). A court may, however, reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are arbitrary. General Statutes § 4-183 (g) (6).

The board is empowered to regulate those persons engaged in professional engineering. See General Statutes (Rev. to 1981) §§ 20-300, 20-299. General Statutes § 20-299 defines a “professional engineer” as an individual who, by his knowledge of certain sciences, renders or offers to render “professional service such as consultation, investigation, evaluation, planning, design or responsible supervision of construction, in connection with any public or privately owned structures . . . wherein the public welfare or the safeguarding of life, public health or property is concerned or involved.” The plaintiff contends that the three statements in its report to the town of Woodbury do not constitute the practice of professional engineering. The board argues that the record fully supported its decision that E.I.S.’s statements constituted professional engineering in violation of General Statutes § 20-306a.

The report prepared by E.I.S. was an environmental analysis of a proposed business condominium development in Woodbury, discussing the environmental effect of the development on a cranberry bog. The three statements cited by the board as constituting engineering were merely comments and suggestions made by an environmental analyst. The preparation of the report did not require knowledge of “mathematics, the physical sciences and the principles of engineering, acquired by professional education and practical experience.” General Statutes (Rev. to 1981) § 20-299; see Howarth v. Gilman, 365 Pa. 50, 53-54, 73 A.2d 655 (1950); State ex rel. Wisconsin Registration Board of Architects & Professional Engineers v. T. V. Engineers of Kenosha, Inc., 30 Wis. 2d 434, 442, 141 N.W.2d 235 (1966).

It is established that regulatory statutes such as the one involved in this case are founded upon the sound policy of the protection of public health and safety, as well as the protection of the public against incompetence and fraud. Costello v. Schmidlin, 404 F.2d 87, 93 (3d Cir. 1968); Dick Weatherston’s Associated Mechanical Services, Inc. v. Minn. Mutual Life Ins. Co., 257 Minn. 184, 189-90, 100 N.W.2d 819 (1960). This purpose is reflected in the language of General Statutes § 20-299. E.I.S. was not involved in the design or planning of the Woodbury project. Rather, its report was merely incidental and preparatory to the project and prepared for the information of the municipal agency involved. See Dick Weatherston’s Associated Mechanical Services, Inc. v. Minn. Mutual Life Ins. Co., supra, 191-92. We conclude that these facts do not support a finding that the plaintiffs report was inimical to life, health, property or public welfare as required by § 20-299 and did not trespass upon the functions for which only a professional engineer has the requisite skill and training. Id., 191. Any changes that Woodbury chose to implement as a result of E.I.S.’s report would have to be approved and supervised by a licensed engineer thereby protecting the public interest. Id. The board’s finding that the three statements contained in E.I.S.’s environmental impact report constitute professional engineering is therefore arbitrary and has the unreasonable effect of restricting mere commentary.

There is error, the judgment is set aside and the case is remanded with direction to sustain the appeal.

In this opinion the other justices concurred.

       The plaintiff Barbara A. Obeda is not a party to this appeal. We therefore refer to E.I.S. as the plaintiff for purposes of this appeal.

       “[General Statutes (Rev. to 1981)] Sec. 20-306a. practice of engineering by corporations, (a) The practice of or the offer to practice engineering in this state by individual registered professional engineers under the corporate form or by a corporation, a material part of the business of which includes engineering, is permitted, provided such personnel of such corporation as act in its behalf as engineers are registered or exempted from registration under the provisions of this chapter, and provided such corporation has been issued a certificate of authorization by the board of registration for professional engineers and land surveyors as provided herein. No such corporation shall be relieved of responsibility for the conduct or acts of its agents, employees or officers by reason of its compliance with the provisions of this section, nor shall any individual practicing engineering be relieved of responsibility for engineering services performed by reason of his employment or relationship with such corporation. All final drawings, specifications, plots, reports or other engineering papers or documents involving the practice of engineering which are prepared or approved by any such corporation or engineer for use of or for delivery to any person or for public record within this state shall be dated and bear the signature and seal of the engineer who prepared them or under whose supervision they were prepared.
      “(b) A qualifying corporation desiring a certificate of authorization shall file with the state board of registration of professional engineers and land surveyors an application upon a form prescribed by said board accompanied by an application fee of one hundred fifty dollars. Each such certificate shall expire one year from the date of its issuance but shall be renewable annually upon payment of a fee of one hundred dollars. If all requirements of this chapter are met, the board shall issue to such corporation a certificate of authorization within thirty days of such application; provided the board may refuse to issue a certificate if any facts exist which would entitle the board to suspend or revoke an existing certificate.
      “(c) Each such corporation shall file with the board a designation of an individual or individuals registered to practice engineering in this state who shall be in charge of engineering by such corporation in this state. Such corporation shall notify the board of any change in such designation within thirty days after such change becomes effective.”

       “[General Statutes] Sec. 20-307a. investigation of violations, hearing. The department of consumer protection may, upon request of the state board of registration for professional engineers and land surveyors or on its own motion, inquire into the existence of violations of the provisions of this chapter. If, after notice and opportunity for hearing as provided in the regulations established by the commissioner of consumer protection, the board determines that a violation of any provision of this chapter or any regulations adopted thereunder exists, it may issue an appropriate order to the person or persons found to be so violating such provision, providing for the immediate discontinuance of the same.”

       The board also found that E.I.S. had offered to perform the practice of engineering pursuant to a listing in the 1980-81 Danbury, Connecticut telephone directory yellow pages under the caption “Engineers-Consulting.” This finding was not advanced as a basis for appeal to the Supreme Court.

       General Statutes (Rev. to 198]) § 20-299 provides in pertinent part: “definitions. For the purposes of this chapter, ‘professional engineer’ means a person who is qualified by reason of his knowledge of mathematics, the physical sciences and the principles of engineering, acquired by professional education and practical experience, to engage in engineering practice, including the rendering or offering to render to clients any professional service such as consultation, investigation, evaluation, planning, design or responsible supervision of construction, in connection with any public or privately owned structures, buildings, machines, equipment, processes, works or projects wherein the public welfare or the safeguarding of life, public health or property is concerned or involved (Emphasis added.)