Apple Salon v. Commissioner of Public Health
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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** APPLE SALON v. COMMISSIONER OF PUBLIC HEALTH ET AL. (AC 33023) Lavine, Alvord and Bishop, Js. Argued October 19 officially released November 29, 2011 (Appeal from Superior Court, judicial district of New Britain, Cohn, J.) Mark F. Katz, for the appellant (plaintiff). Jacqueline S. Hoell, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (named defendant). John W. Mullin, assistant corporation counsel, for the appellee (defendant department of health and social services of the city of Stamford). Opinion PER CURIAM. The plaintiff, Apple Salon, appeals from the judgment of the trial court dismissing its appeal from the decision of the defendant commissioner of public health upholding a cease and desist order issued by the defendant department of health and social services of the city of Stamford. On appeal, the plaintiff claims that the court improperly dismissed its appeal by finding that the administrative hearing officer s factual findings were supported by substantial evidence. The defendants argue that, during oral argument before the trial court, the plaintiff waived any claim that the hearing officer s decision was not based on substantial evidence.1 We agree with the defendants and therefore affirm the judgment of the trial court. Waiver is the intentional relinquishment or abandonment of a known right or privilege. . . . As a general rule, both statutory and constitutional rights and privileges may be waived. . . . Waiver is based upon a species of the principle of estoppel and where applicable it will be enforced as the estoppel would be enforced. . . . Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed . . . . Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied. . . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so. (Internal quotation marks omitted.) Wiele v. Board of Assessment Appeals, 119 Conn. App. 544, 549, 988 A.2d 889 (2010). On the basis of our review of the record, including the transcript of the hearing before the court, we conclude that the plaintiff waived any claim that the hearing officer s decision was not based on substantial evidence.2 The judgment is affirmed. 1 In its memorandum of decision, the court stated: While [the plaintiff] argues in its brief that there was no substantial evidence of violations, at oral argument in this court on November 3, 2010, it stated that it did not intend to rely on those portions of its brief. On appeal, the plaintiff does not claim that that factual finding is clearly erroneous. 2 The following colloquy took place during oral argument in the trial court: The Court: All right. So there s two, really two issues here; and that is, the authority of this Ms. [Ok Soon] Moon to make the statement. And the second is whether or not the state people, the state board had the they only said we re only going to look into x, y and z and we re not going to look into a, b and c because it s not health related? Is that . . . . [The Plaintiff s Counsel]: Correct. The Court: Are those your two issues? [The Plaintiff s Counsel]: Yes.
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