MORASKI v. CONN. BD. OF EXAM’R OF EMBALMERS, 291 Conn. 242 (2009)

967 A.2d 1199

(SC 18248)Supreme Court of Connecticut

Rogers, C. J., and Norcott, Katz, Vertefeuille and Zarella, Js.

Syllabus
The plaintiffs, M, a licensed embalmer, and C Co., the funeral home he owned and operated, appealed to the trial court from the decisions of the state board of examiners of embalmers and funeral directors suspending and then revoking M’s license and C Co.’s funeral home certificate and imposing a $50,000 fine on M. The penalties arose out of charges by the department of public health that the plaintiffs had failed to give a signed statement of goods and services that they had provided to the families of two decedents, and that M had engaged in verbally abusive behavior toward those decedents’ families. The department initially had filed a statement of charges against the plaintiffs based on allegations of misconduct in connection with the funeral of one of the decedents, and the department moved for summary suspension of M’s license and C Co.’s certificate pursuant to statue (§§ 4-182 [c], 19a-17 [c]) on the ground that the plaintiffs’ continued practice represented a danger to the public health and safety. The board summarily suspended the license and certificate pending a final determination of the allegations contained in the statement of charges. Subsequently, the department was allowed, over the plaintiffs’ objection, to amend the statement of charges to add allegations by an out-of-state witness and to add a second

Page 243

count of alleged misconduct involving the second decedent’s funeral. Following six days of hearings before the board over the course of several months, the board issued written decisions in which it concluded that the plaintiffs’ conduct constituted grounds for disciplinary action pursuant to statute (§ 20-227). The board’s comprehensive decision set forth each of the department’s allegations, cited evidence relevant to each allegation and made findings of fact and conclusions of law relevant to each of the charges. With regard to the first decedent’s funeral, the board found, inter alia, that the decedent’s family members had not been given an itemized price list and method of payment required for the plaintiffs’ services, that the decedent’s remains were not buried or cremated within a reasonable time after death as required by statute (§ 7-64), and that the plaintiffs failed to release the decedent’s body to another funeral home until cash payment to the plaintiffs was made. The board also credited testimony from the decedent’s family that M had yelled at them and called them insulting names. With regard to the second decedent’s funeral, the board found, inter alia, that the plaintiffs failed to give the decedent’s family a general price list for services offered or an itemized price list of services selected by the decedent’s daughter, and failed to release the decedent’s body to the family until the decedent’s daughter paid the plaintiffs $350 in cash. On the basis of these findings, the board revoked M’s license and C Co.’s certificate, and imposed the $50,000 fine on M because of the egregiousness of his conduct and the nature of the violations. On appeal, the trial court determined that the plaintiffs’ challenge to the summary suspension of their license and certificate was moot because the subsequent revocation superseded the suspension. The court also concluded that the plaintiffs failed to substantiate the grounds for their appeal of the revocations and the imposition of the fine. Accordingly, the trial court rendered judgment dismissing the plaintiffs’ appeal, from which the plaintiffs appealed. Held:

1. The trial court properly dismissed the plaintiffs’ appeal from the summary suspensions of their license and certificate as moot, the permanent revocation of the license and certificate following the evidentiary hearing having superseded the summary suspensions and there having been no practical relief that could follow from a reversal of the board’s suspensions.

2. The plaintiffs could not prevail on their claim that the trial court improperly rejected their challenges to the revocation hearing: a. The trial court did not abuse its discretion in allowing the department twice to amend the statement of charges to add the allegations of the out-of-state witness and to add the second count pertaining to the second decedent’s funeral, which, the plaintiffs alleged, caused unfair surprise and denied the plaintiffs the right of cross-examination; the plaintiffs had the opportunity to cross-examine the out-of-state witness, who appeared in court twice and testified to the plaintiffs’ refusal to release

Page 244

the first decedent’s remains to the other funeral home as requested by his family, and this court rejected the plaintiffs’ unspecified claim of prejudice, the plaintiffs having failed to move for a continuance and having declined the board’s offer to delay hearing evidence on the charges pertaining to the newly added second count of the statement of charges. b. This court declined to review the plaintiffs’ claim that their due process rights were impaired by bias on the part of the board `s individual members, who also were directors of funeral homes in the state, the plaintiffs having failed to raise the claim prior to or during the hearing before the board and having failed to make a record of facts with respect to their claim of an alleged competitive interest. c. The trial court correctly determined that the board acted properly, this court’s thorough review of the record, guided by the board’s comprehensive recitation of the evidence supporting each of the findings of fact and by the board’s well founded determination of numerous statutory violations, having revealed that the trial court properly concluded that the board’s determinations of fact were not clearly erroneous.

3. The plaintiffs’ claim that the trial court improperly rejected their contention that the board had abused its discretion in imposing the penalties in the present case was without merit, this court having concluded that there was substantial evidence in the record to support the board’s decisions; the board was authorized by § 20-227 to take any disciplinary action allowed under § 19a-17 if a license holder acts negligently, incompetently or wrongfully in the conduct of his profession, and this court could not conclude as a matter of law that the board’s action in revoking the plaintiffs’ license and certificate and in imposing the $50,000 fine against M was arbitrary and capricious or an abuse of its discretion.

Argued January 14, 2009

Officially released April 21, 2009

Procedural History
Appeal from the decisions of the defendant to suspend summarily and to revoke the named plaintiff’s embalmer’s license and the funeral home inspection certificate of the plaintiff Colonial Funeral Home, and to impose a civil fine on the named plaintiff, brought to the Superior Court in the judicial district of New Haven, where the case was transferred to the judicial district of New Britain, Tax Session; thereafter, the case was tried to the court, Levine, J.; judgment dismissing the appeal, from which the plaintiffs appealed. Affirmed.

Page 245

William S. Palmieri, for the appellants (plaintiffs).

Patrick B. Kwanashie, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).

Opinion
KATZ, J.

The plaintiffs, Paul Moraski and Colonial Funeral Home (Colonial), appeal from the trial court’s judgment dismissing their appeal from the decisions of the defendant, the state board of examiners of embalmers and funeral directors (board), suspending and thereafter revoking Moraski’s embalmer’s license and Colonial’s funeral home inspection certificate (certificate) and imposing a $50,000 fine on Moraski. The plaintiffs contend that the trial court improperly concluded that: (1) their challenge to the board’s summary suspensions had been rendered moot; (2) the board had not abused its discretion or otherwise acted unlawfully in the procedures leading to the revocation of the license and certificate; and (3) the board had not abused its discretion in imposing the penalties of revocation and an excessive fine. We conclude that the trial court properly dismissed the plaintiffs’ appeal and, therefore, we affirm the judgment.

The record discloses the following undisputed facts and procedural history. At all relevant times prior to November 15, 2005, Moraski held an embalmer’s license and both owned and operated Colonial, which held a certificate that permitted it to operate its business in Hamden. On November 15, 2005, based on allegations of misconduct in connection with the funeral of Robert Foley, the department of public health (department), pursuant to General Statutes §§ 4-182 (c)[1] and 19a-17

Page 246

(c),[2] filed motions, along with supporting affidavits, seeking summary suspension of Moraski’s license and Colonial’s certificate on the ground that their “continued practice . . . represents a clear and immediate danger to the public health and safety.” The department also filed a statement of charges against each plaintiff, alleging violations of General Statutes (Rev. to 2005) § 7-65[3] and General Statutes §§ 7-62b, [4]

Page 247

7-64,[5] 20-230a[6] and 20-230b, [7] and claiming that these violations constituted grounds for disciplinary

Page 248

action pursuant to General Statutes § 20-227, including but not limited to subdivisions (2), (4) and (5).[8] That

Page 249

same day, the board issued orders summarily suspending the license and certificate, to be effective pending a final determination regarding the allegations contained in the statement of charges. The board therein scheduled a hearing for November 29, 2005.

On November 23, 2005, the department filed motions to amend the statements of charges to add allegations involving a new out-of-state witness, to which the plaintiffs objected on the ground that they would not be able to subpoena this witness. On November 29, 2005, the day hearings commenced, the board granted the motions to amend with the stipulation that, should the witness involved not return if requested by the plaintiffs, his or her testimony would be stricken from the record. That same day, the department requested permission to file second amended statements of the charges to add a second count concerning Moraski’s alleged misconduct with regard to the funeral of another decedent, Judith Jimenez. Over the plaintiffs’ objection, the board thereafter granted the request, with the caveat that the new allegations would be heard at a later date to give the plaintiffs an opportunity to prepare a defense.

Broadly characterized, the department alleged in the statements of charges as to both funerals that Moraski had failed to give the decedents’ relatives a signed statement of goods and services provided and had engaged in verbally abusive behavior toward the decedents’ families when they attempted to resolve the disposition of their loved ones’ remains. With respect to Foley specifically, the department alleged, inter alia, that the plaintiffs had: refused to release his remains to another funeral director for burial, failed to cremate his corpse in a timely fashion; stored his unrefrigerated remains

Page 250

outside the embalming room such that the storage constituted a public health risk; and misled and abused his family members when they asked for his corpse or cremains.

The board commenced hearing evidence on the first count pertaining to Foley on November 29, 2005. The board thereafter continued hearing evidence on both counts over the course of several months, specifically, on January 10, January 24, February 27, March 7 and April 11, 2006. In written decisions dated September 12, 2006, the board concluded that the plaintiffs’ actions with respect to the handling of the Foley and Jimenez funerals constituted grounds for disciplinary action pursuant to § 20-227
(2), (4) and (5). In a comprehensive twenty page decision, the board set forth each of the department’s allegations, cited evidence relevant to each allegation and made findings of fact and conclusions of law relevant to each of the charges. When there was conflicting testimony between Moraski and the department’s witnesses, the board consistently found the department’s witnesses to be more credible.

Specifically, with respect to the handling of Foley’s remains and funeral, the board found that the plaintiffs had not given the family members an itemized price list and the method of payment required for the services actually selected, as required by statute. The board found that, although the plaintiffs were required by statute to have buried or cremated the decedent’s remains within a reasonable time after death pursuant to § 7-64, the plaintiffs had not had the decedent’s remains cremated, but left them instead unrefrigerated in Colonial’s basement for forty-nine days after his death, such that the odor of decomposition was present in the garage of the building. The board credited testimony that the plaintiffs had demanded cash payment and had refused to release Foley’s body to Graham, Putnam and Mahoney Funeral Parlors of Massachusetts

Page 251

(Graham) for burial in that state until such payment was provided. The board further concluded that the plaintiffs had failed to obtain a burial transit removal permit and a death certificate within the five day period prescribed by statute. See General Statutes (Rev. to 2005) § 7-65 and General Statutes § 7-62b (a). It determined that the plaintiffs had failed to comply both with Probate Court orders regarding the filing of the cremation certificate and with the proper preparation of the cremains. The board also credited the testimony of Foley’s mother and his former wife, both of whom were involved in the funeral arrangements, that Moraski had yelled at them and called them insulting names, specifically, that Moraski had called Judith Sullivan, Foley’s mother, a “scam artist,” a “psycho case,” a “bitch” a “con-artist” and a “shyster,” and had called Lori Foley, the decedent’s former wife, a “bitch” and an “asshole.”

The board did find, however, that the department had not met its burden of proof with respect to all of its allegations regarding Foley’s remains. Most significant was the allegation that the storage of Foley’s unrefrigerated remains had constituted a public health risk and hazard, which the board rejected because expert testimony had established that, despite improper storage, the storage of the body in a polyethylene bag eliminated any possibility of direct physical contact between the body and the food or water supply.

With respect to the second count of the statement of charges, pertaining to Jimenez, the board made the following findings. In February, 2005, Jimenez died in Florida. Jimenez’ daughter, Carmen Torres, authorized Moraski to transfer her mother’s body from Florida to Bradley International Airport in Windsor Locks and met with Moraski to make funeral arrangements. Moraski failed to give Torres either a general price list itemizing the prices of all available goods and services or a written statement itemizing the prices of the services and merchandise

Page 252

that she had selected. Shortly thereafter, Torres retained Washington Memorial Funeral Home (Washington) to handle Jimenez’ funeral and authorized it to remove Jimenez’ remains from Colonial. John Iacobucci of Washington immediately informed Colonial that Torres had retained Washington and that calling hours would be the following evening. Moraski then contacted Torres, demanded that she meet with him alone and told her that he would not release her mother’s remains from Bradley International Airport unless she paid him $350. At some point during these negotiations, Moraski stated to Torres “`why are you fucking calling me if you don’t have the money'” and yelled at Iacobucci to get “`the fuck off his property'” when Iacobucci came to retrieve Jimenez’ body.

On the basis of these previous findings, the board concluded that the plaintiffs had violated §§ 7-62b, 7-64, 7-65, 20-230a and 20-230b, and that license and certificate revocation and a $50,000 civil penalty were warranted under §§ 19a-17 and 20-227. The board concluded that revocation of Moraski’s license and Colonial’s certificate was appropriate in light of their “blatant disregard for the laws governing [funeral homes] funeral directors and embalmers in Connecticut, the lack of respect [they] demonstrated toward [their] clients and the deceased, and the potential danger [Moraski individually and as Colonial’s manager] posed to the general public. . . .” Moreover, because of the egregiousness of Moraski’s conduct and the nature of the violations, the board found that a significant civil penalty was fully supported by the record.[9]

Page 253

Claiming bias and procedural impropriety, the plaintiffs jointly appealed from the board’s decision to the trial court pursuant to General Statutes § 4-183 of the Uniform Administrative Procedure Act (UAPA), challenging both the summary suspension and the permanent revocation and fine.[10] After briefing and oral argument, the trial court dismissed the appeal. The trial court determined that the plaintiffs’ claim that the summary suspension was unlawful was moot because the revocation of Moraski’s license and Colonial’s certificate had superseded the suspension. The court further concluded that the plaintiffs had failed to substantiate the grounds for their appeal of the license and certificate revocations and the fine imposition. This appeal followed.[11]

The plaintiffs raise five claims. They first assert that the trial court improperly dismissed their appeal from

Page 254

the summary suspension of the license and certificate. Next, they claim that the trial court improperly rejected: their challenge to the board’s decisions allowing the department to amend the charges against them; their contention that board members were biased; and their claim that certain findings of fact by the board were clearly erroneous. Finally, the plaintiffs contend that the trial court improperly concluded that the board did not abuse its discretion in imposing a substantial fine and revoking Moraski’s license and Colonial’s certificate. We reject all the plaintiffs’ claims. Additional facts will be set forth as necessary.

I
The first issue is whether the trial court properly dismissed the plaintiffs’ appeal from the board’s summary suspensions of their license and certificate. Because the board thereafter permanently revoked the plaintiffs’ license and certificate, the trial court determined that there was no practical relief available to them, and, accordingly, their appeal from the summary suspensions was moot. The plaintiffs claim that, because the board is authorized by statute to suspend summarily a practitioner’s license only if it “finds that a practitioner . . . represents a clear and immediate danger to the public health and safety if he is allowed to continue to practice”; General Statutes § 19a-17
(c); due process required a hearing to make such a finding before suspension. Because the board failed to hold a hearing to make such findings, and therefore unlawfully deprived the plaintiffs of their property interest in the continued practice of the profession and business, the plaintiffs contend that the trial court’s dismissal was improper. The board responds that revocation of the plaintiffs’ license and certificate after an evidentiary hearing superseded the summary suspensions and rendered moot the propriety of the suspensions because no practical relief could follow from a decision

Page 255

reversing the summary suspensions. We agree with the board.

We readily can resolve the issue of whether the plaintiffs’ appeal is moot, beginning with the fundamental principles that underlie justiciability. “Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable.” State v. Nardini, 187 Conn. 109, 111, 445 A.2d 304 (1982). “Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant.” (Internal quotation marks omitted.) Board of Education v. Naugatuck, 257 Conn. 409, 416, 778 A.2d 862 (2001). A case is considered moot if an appellate court cannot grant the appellant “any practical relief through its disposition of the merits. . . .” (Internal quotation marks omitted.) Windels v. Environmental Protection Commission, 284 Conn. 268, 279, 933 A.2d 256 (2007); see Seymour v. Region One Board of Education, 261 Conn. 475, 481, 803 A.2d 318 (2002). “Mootness implicates this court’s subject matter jurisdiction, raising a question of law over which we exercise plenary review.” (Internal quotation marks omitted.) Windels v. Environmental Protection Commission, supra, 279.

In the present case, when asked directly by the trial court what relief it could afford the plaintiffs given that the summary suspensions were followed by permanent revocation prior to which the plaintiffs did receive a hearing, the plaintiffs simply reasserted their contention that they should have been given a hearing prior to the suspensions. Thus, even had the plaintiffs succeeded in demonstrating that the summary suspensions

Page 256

were unlawful, there would have been no practical relief that they could have achieved as a result. The suspension was superseded by the revocation; see In re Michael A., 47 Conn. App. 105, 108, 703 A.2d 1146
(1997) (“any issues involving the order of temporary custody are now moot because that order was subsumed by the permanent order”); and no relief could have been afforded from any procedural deficiencies in the former proceedings. See Statewide Grievance Committee v. Whitney, 227 Conn. 829, 837-38 n. 13, 633 A.2d 296 (1993) (expired suspension not moot only because of collateral consequences); Schallenkamp v. DelPonte, 29 Conn. App. 576, 579, 616 A.2d 1157 (1992) (expired suspension not moot only because it falls within “capable of repetition, yet evading review” exception), affd, 229 Conn. 31, 639 A.2d 1018 (1994); Dragan v. Connecticut Medical Examining Board, 24 Conn. App. 662, 669, 591 A.2d 150 (1991) (challenges to procedures attendant to consent order permitting plaintiff to continue medical practice while license suspension held in abeyance pending resolution of criminal action against plaintiff was rendered moot because period of abeyance ended and medical examining board rendered final judgment revoking license), rev’d on other grounds, 223 Conn. 618, 613 A.2d 739 (1992); see also Marilyn T., Inc. v. Evans, 803 F.2d 1383, 1384 (5th Cir. 1986) (holding that plaintiff’s appeal from denial of preliminary injunctive relief against suspension of commercial lessor’s license on ground that procedural due process had not been afforded was rendered moot once license permanently was revoked; noting that plaintiff still could pursue constitutional claim in pending action for damages); Betts v. Dept. of Registration Education, 103 Ill. App. 3d 654, 662, 431 N.E.2d 1112 (1981) (concluding that plaintiff pharmacists’ contention that summary suspension procedures violated their right to due process was moot because plaintiffs received notice and hearing on

Page 257

administrative complaint that resulted in license revocation); Oglesby
v. Toledo, 92 Ohio App. 3d 432, 437 n. 1, 635 N.E.2d 1319 (1993) (appellants’ procedural due process arguments arising from manner in which their massage technician’s and establishment operator’s licenses were suspended rendered moot by subsequent revocation of licenses because, even “[i]f this court found error in the procedure for suspension, no relief would be available in this procedural context”). Accordingly, we conclude that the trial court properly dismissed the appeal from the summary suspensions as moot.

II
Next, the plaintiffs assert that the trial court improperly rejected their challenges to the revocation hearing, specifically, that the board had acted improperly: by allowing the department to amend the statement of charges, by acting with bias and by finding facts that were clearly erroneous. We begin with the appropriate standard of review.

As we previously have noted herein; see footnote 10 of this opinion; the plaintiffs’ appeal is taken pursuant to the UAPA, General Statutes § 4-166 et seq. “General Statutes § 4-183 (j)[12] of the [UAPA] establishes a

Page 258

restricted scope of judicial review of the [board’s] final decision and order. . . . [The] plaintiff has the burden of proving that the [board], on the facts before [it], acted contrary to law and in abuse of [its] discretion. . . . The law is also well established that if the decision of the [board] is reasonably supported by the evidence it must be sustained.” (Citation omitted; internal quotation marks omitted.)American Car Rental, Inc. v. Commissioner of Consumer Protection, 273 Conn. 296, 307-308, 869 A.2d 1198 (2005).

A
The plaintiffs claim that the board acted improperly by allowing the department to amend the statement of charges. Specifically, they contend that allowing the department twice to amend the statement of charges constituted an abuse of discretion because the amendments caused them unfair surprise and denied them the right of cross-examination. We disagree.

The record reflects the following procedural history. With respect to the first amendment, on November 23, 2005, the department filed motions seeking to amend the statement of charges in each case to add allegations involving a new out-of-state witness. The witness was identified as Peter Stefan, a licensed embalmer at Graham, a funeral home in Massachusetts. The board granted that motion with the stipulation that, if the witness involved did not return if requested by the plaintiffs, his testimony would be stricken from the record.

On November 29, 2005, the first day of the hearings, Stefan testified on direct examination that, pursuant to Sullivan’s request, he had contacted Moraski to discuss the transfer of Foley’s remains to Graham. On January 10, 2006, Stefan returned to court, and the plaintiffs cross-examined him. On the basis of Stefan’s testimony, the board found that the plaintiffs had refused to release

Page 259

Foley’s remains to Graham prior to receiving payment for goods and services they had provided for Foley.

With respect to the second amendment, on November 29, 2005, the department presented motions to amend the statements of charges, specifically, to add a second count pertaining to Jimenez’ funeral. The department stated that it was “asking to include that [count] in this hearing process but not today because it would obviously be unfair to expect the [plaintiffs] to be able to respond to something that they simply have been presented [with] this morning.” The department explained to the board that, because the allegations regarding Jimenez’ family had some similarities with respect to the plaintiffs’ treatment of Foley’s family, the department thought it would be a better use of the board’s time to consider the counts together. The plaintiffs responded that bringing this additional matter forward was “fundamentally unfair and prejudicial to [their] case. . . .” The board decided that the new information would not be addressed at that time to allow both the plaintiffs and the board the opportunity to examine it.

Before the hearings proceeded on January 10, 2006, the plaintiffs expressed some confusion as to whether the board had rendered a decision on whether to allow the second amendment. After the board confirmed that it had granted the motions, the chairperson of the board twice offered to wait until January 24 to go forward with the witnesses in connection with the Jimenez matter. The plaintiffs declined to delay the matter, saying, “That’s fine. We can proceed.” As we previously noted, the hearings thereafter continued on January 24, February 27, March 7, and April 11, 2006.

This court previously has explained in an analogous context that the scope of our review of a decision to allow an amendment is limited. As with our review of

Page 260

a trial court’s decision to allow the amendment of a complaint, “[f]actors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. . . . The motion to amend is addressed to the trial court’s discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial. . . . Whether to allow an amendment is a matter left to the sound discretion of the trial court. This court will not disturb a trial court’s ruling on a proposed amendment unless there has been a clear abuse of that discretion. . . . It is the [opponent’s] burden in this case to demonstrate that the trial court clearly abused its discretion.” (Citations omitted; internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 128, 788 A.2d 83 (2002). “If an amendment is allowed at trial and the opponent wants to raise an abuse of discretion issue on appeal, he should immediately move for a continuance in the trial in order to defend against the new issue.” (Internal quotation marks omitted.) Dow Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 584, 833 A.2d 908 (2003).

Because the plaintiffs failed to move for a continuance, and indeed declined an offer to delay hearing evidence on certain charges, we reject their unspecified prejudice claim out of hand.[13] Furthermore, in connection

Page 261

with their claim regarding their inability to cross-examine Stefan, the plaintiffs did have an opportunity to cross-examine him when he returned to court. Therefore, any claim that the plaintiffs were deprived of this right is without merit.

B
The plaintiffs also claim that their due process rights were impaired by bias of the board’s individual members. Specifically, they claim that, because board members also are directors of funeral parlors in Connecticut, and in some cases in the same geographic region as the plaintiffs, the board members necessarily will gain from eliminating the plaintiffs as competitors. As evidence of the board members’ bias, the plaintiffs point to various findings and credibility assessments with which they disagree. Finally, they claim that the board’s summary suspension reflects that the board had prejudged the charges against the plaintiffs.

In response, the board contends that the status of some of its members as competitors is not enough to establish actual bias, as is required, and that the evidence cited by the plaintiffs does not reflect such bias. The board further contends that the plaintiffs waived this claim by failing to raise it at the hearing before the board and to ask for the recusal of the allegedly biased board members. Although we are mindful that the trial court overlooked the board’s waiver argument and reached this issue on the merits, we agree with the

Page 262

board that the plaintiffs’ failure to raise this claim before the board precludes our review.

We begin with certain established principles. “The applicable due process standards for disqualification of administrative adjudicators do not rise to the heights of those prescribed for judicial disqualification. . . . The mere appearance of bias that might disqualify a judge will not disqualify an arbitrator. . . . Moreover, there is a presumption that administrative board members acting in an adjudicative capacity are not biased. . . . To overcome the presumption, the plaintiff . . . must demonstrate actual bias, rather than mere potential bias, of the board members challenged, unless the circumstances indicate a probability of such bias too high to be constitutionally tolerable. . . . The plaintiff has the burden of establishing a disqualifying interest.” (Citations omitted; internal quotation marks omitted.) Clisham v. Board of Police Commissioners, 223 Conn. 354, 361-62, 613 A.2d 254 (1992).

“A claim of bias must be raised in a timely manner. The failure to raise a claim of disqualification with reasonable promptness after learning the ground for such a claim ordinarily constitutes a waiver thereof. Henderson v. [Dept.] of Motor Vehicles, 202 Conn. 453, 462, 521 A.2d 1040 (1987). One court has noted that a challenge to a judge for bias and prejudice must be made at the first opportunity after discovery of the facts tending to prove disqualification. . . . To hold otherwise would be to allow a litigant to pervert and abuse the right extended to him at the cost to the other party of unnecessary expense and labor and to the public of the unnecessary disruption of the conduct of the courts. . . . Chafin v. United States, 5 F.2d 592, 595 (4th Cir.), cert. denied, 269 U.S. 552, 46 S. Ct. 18, 70 L. Ed. 407 (1925); see Duffield v. Charleston Area Medical Center, Inc., 503 F.2d 512, 515 (4th Cir. 1974) (claim of disqualifying bias or partiality on the part of a member of . . .

Page 263

an administrative agency must be asserted promptly after knowledge of the alleged disqualification). Moreover, we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the [hearing]. . . . Henderson v. [Dept.]of Motor Vehicles, supra [462].” (Internal quotation marks omitted.)Clisham v. Board of Police Commissioners, supra, 223 Conn. 367-68.

The importance of raising the issue of bias to the finder of fact is premised not only on interests of judicial economy, but also on the need for an adequate record for review. See Fish Unlimited v. Northeast Utilities Service Co., 254 Conn. 1, 21, 756 A.2d 262 (2000), overruled in part on other grounds by Waterbury v. Washington, 260 Conn. 506, 545, 800 A.2d 1102 (2002); LaCroix v. Board of Education, 199 Conn. 70, 84-85, 505 A.2d 1233 (1986). “A determination of the existence or absence of actual bias is a finding of fact.” Transportation General, Inc. v. Dept. of Ins., 236 Conn. 75, 77, 670 A.2d 1302 (1996); Petrowski v. Norwich Free Academy, 199 Conn. 231, 242, 506 A.2d 139, appeal dismissed, 479 U.S. 802, 107 S. Ct. 42, 93 L. Ed. 2d 5 (1986); Gaynor-Stafford Industries, Inc. v. Water Pollution Control Authority, 192 Conn. 638, 648, 474 A.2d 752, cert. denied, 469 U.S. 932, 105 S. Ct. 328, 83 L. Ed. 2d 265
(1984). Although there is case law supporting the proposition that it violates due process for administrative agency members to preside over a case in which they are likely to reap a financial benefit by rendering a decision that eliminates a competitor, the financial benefit must be substantial. See Gibson v. Berryhill, 411 U.S. 564, 578-79, 93 S. Ct. 1689, 36 L. Ed. 2d 488 (1973) (finding that members of board of optometry who stood to gain from reduced competition resulting from license revocations could not in fairness adjudicate those revocations); Wilkerson v Johnson, 699 F.2d 325, 328 (6th Cir. 1983) (concluding that licensing board member’s

Page 264

interest in preventing barber shop from opening next door to his own created “unconstitutional risk of bias”); Braswell v. Haywood Regional Medical Center, 352 F. Sup. 2d 639, 646 (W.D.N.C. 2005) (denying defendant physicians’ motion to dismiss because “[a]s alleged in the amended complaint, [the] [p]laintiff can prove that, given the number of surgical competitors in the community, these physicians stood to gain financially from the suspension of the medical privileges of one of their competitors, and therefore, had a `substantial pecuniary interest’ in the outcome”); see also Aetna Life Ins. Co. v. Lavioe, 475 U.S. 813, 822, 825, 106 S. Ct. 1580, 89 L. Ed. 2d 823 (1986) (clarifying that due process is not violated by participation of adjudicators who “might conceivably have had a slight pecuniary interest” in outcome of matter before them, but is violated by participation in decisions in which adjudicators have “direct, personal, substantial, pecuniary interest”).

Turning to the case at hand, at no time prior to or during the hearing before the board did the plaintiffs raise the issue of bias.[14] Thus, the plaintiffs did not seek an evidentiary hearing to make a record of facts that might bear on their competitive interest claim, such as the actual location of the board members’ businesses in relation to their own, the relative size of the businesses or the number of competitors in addition to board members who might reap some of the plaintiffs’ share of business.[15] See Stivers v. Pierce, 71 F.3d 732,

Page 265

743 (9th Cir. 1995) (citing similar factors for claim of bias against business competitors on oversight board); Rite Aid Corp. v. Board of Pharmacy, 421 F. Sup. 1161, 1171 (D.N.J. 1976) (same), appeal dismissed, 430 U.S. 951, 97 S. Ct. 1594, 51 L. Ed. 2d 801 (1977). As one court noted in the context of a similar challenge to a sanction imposed by a state board of funeral directors: “[I]mpermissible bias requires the party asserting the bias to produce evidence particular to the adjudicator and particular to the controversy. . . . The disqualifying bias cannot simply be inferred from the status of the adjudicator, particularly where the status is required by statute.”[16] (Citation omitted; emphasis added.) Pre-Need

Page 266

Family Services Eastern Region v. Bureau of Professional Occupational Affairs, 904 A.2d 996, 1003-1004 (Pa.Commw. 2006), cert. denied, 591 Pa. 707, 918 A.2d 749 (2007); accord Kachian v. Optometry Examining Board, 44 Wis. 2d 1, 11, 170 N.W.2d 743 (1969) (“it appears to be a general rule that membership in or connection with the same profession or occupation as that of the accused licensee does not alone indicate a disqualifying bias or interest on the part of the questioned tribunal member sufficient to violate due process” [internal quotation marks omitted]). Thus, the plaintiffs in the present case have failed to undertake the steps necessary to have this court review their bias claim.

C
Finally, the plaintiffs claim that the board’s determinations of fact were clearly erroneous “in view of the reliable, probative and substantial evidence on the whole record, or arbitrary or capricious, or characterized by abuse of discretion or a clearly unwarranted exercise of discretion.” “In determining whether an administrative finding is supported by substantial evidence, the reviewing court must defer to the agency’s assessment of the credibility of witnesses. . . . The

Page 267

reviewing court must take into account contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. . . .” (Citations omitted; internal quotation marks omitted.) Pet v. Dept. of Health Services, 228 Conn. 651, 668, 638 A.2d 6 (1994). Upon our thorough review of the record, guided by the board’s comprehensive recitation of the evidence supporting each of the findings of fact and by its well founded determination of numerous statutory violations, we are convinced that the trial court correctly determined that the board acted properly. Se American Car Rental, Inc. v. Commissioner of Consumer Protection, supra, 273 Conn. 308 (“[a]n administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred” [internal quotation marks omitted]).

III
In their final claim, the plaintiffs assert that the trial court improperly rejected their contention that the board abused its discretion in imposing the penalties in this case, namely, revoking their licenses and assessing a $50,000 fine. Harkening back to their other claims of bias and prejudice, they claim that “[t]he intent of this punishment is to ruin, rather than correct.” The plaintiffs’ claim lacks merit in light of the record.

Under the well established standard of review, “[i]f the penalty meted out is within the limits prescribed by law, the matter lies within the exercise of the [board’s] discretion and cannot be successfully challenged unless the discretion has been abused. . . . Sentencing is an inherently fact bound inquiry. In an administrative appeal, a reviewing court can do no more, on the factual questions presented, than to examine the record to

Page 268

determine whether the ultimate findings were supported, as the statute requires, by substantial evidence.” (Citation omitted; internal quotation marks omitted.) Pet v. Dept. of Health Services, supra, 228 Conn. 677-78.

The board is authorized under § 20-227; see footnote 8 of this opinion; to take any disciplinary action set forth in General Statutes (Rev. to 2005) § 19a-17[17] if a

Page 269

license holder acts negligently, incompetently or wrongfully in the conduct of his profession. Our task is not to second-guess the agency’s choice of sanction. We look to whether evidence existed that gave the agency the discretion to impose the penalty of revocation and we will not restrict the deference we are statutorily bound to give administrative decisions in the absence of statutory authority. We previously concluded that the board acted within the scope of its discretion in finding the facts it relied upon to impose the fine and to revoke the license and certificate.

Mindful of the board’s purpose of protecting the public’s interest in proper funeral, burial and embalming services, we cannot conclude that the board exceeded its authority or abused its discretion in revoking the plaintiffs’ license and certificate. In the analogous context of reviewing a board of education’s exercise of

Page 270

discretion in terminating a teacher’s contract following one incident of misconduct, we affirmed that board’s decision, noting that “[w]hether termination is justifiable on the basis of a single incident is a qualitative not quantitative analysis; one serious incident can suffice.”Rogers v. Board of Education, 252 Conn. 753, 771, 749 A.2d 1173 (2000). In the present case, the board found that the plaintiffs’ “repeated and systematic failure to comply with . . . statutory requirements . . . demonstrated a complete disregard and lack of respect for the law, [their] clients, and the general public.” The facts clearly support this assessment. The board’s decision as to which penalty to assess does not appear to rest on any one particular finding, but on the cumulative effect of all of the board’s findings. See footnote 9 of this opinion. The board was free to find, on the evidence presented, that the plaintiffs’ conduct betrayed the trust that is reposed in them as a licensed embalmer or funeral home operator and compromised the integrity of their profession. The legislature vested in the board the power to evaluate the competency of embalmers and funeral directors in this state and to adjudicate complaints and impose proper sanctions when warranted. The board found that the plaintiffs’ conduct deviated from the standard of care to such an extent that it warranted the revocation of Moraski’s license and Colonial’s certificate. Under these circumstances, we cannot conclude as a matter of law that the board’s action was arbitrary and capricious or an abuse of discretion.

With regard to the claim that the fine against Moraski was excessive, we again conclude that the board acted within the scope of its discretion. At the time of the violations at issue, § 19a-17 (a) (6) permitted a fine of $10,000 per violation. See footnote 17 of this opinion. The board found that the department had sustained its burden of proof as to nearly all of the fifty-two

Page 271

paragraph complaint as to each plaintiff that alleged more that a dozen allegations. See footnote 9 of this opinion. As we previously concluded, there is substantial evidence in the record to support the board’s decisions. The trial court therefore properly dismissed the plaintiffs’ appeal.

The judgment is affirmed.

In this opinion the other justices concurred.