Opinion
C.A. PC-2017-6243
02-27-2019
PETER K. SULLIVAN, Appellant, v. RHODE ISLAND DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, Appellee.
For Plaintiff: Peter K. Sullivan, pro se For Defendant: Christina A. Hoefsmit, Esq.
For Plaintiff: Peter K. Sullivan, pro se
For Defendant: Christina A. Hoefsmit, Esq.
DECISION
MATOS, J.
Before this Court is Peter K. Sullivan's (Appellant) appeal of the Rhode Island Department of Environmental Management's (DEM) decision denying his application to renew his Multi-Purpose Fishing License. The DEM Office of Boat Registration and Licensing (the Division) denied Appellant's renewal application on the basis that his request was not timely and that he failed to provide proof of his medical hardship before his license expired. Jurisdiction is pursuant to G.L. 1956 § 42-35-15. For the reasons set forth herein, this Court affirms the decision of DEM.
I
Facts and Travel
The material facts of this case are not in dispute. Appellant is the former owner of a Multi-Purpose Fishing License that expired on December 31, 2009. After his license expired, Appellant did not take any action with respect to the license until July 27, 2015, when he emailed DEM requesting to reinstate his previously held license and also to obtain a shellfish license offered to persons over the age of sixty-five (65 and Over Shellfish License). 2015 Renewal Appl., DEM's Ex. 11. In his request, Appellant explained that he did not renew his license in 2009 because he was suffering from certain medical conditions. Id. Appellant also explained that he was seeking reinstatement at that time due to financial trouble he was facing due to changes in his pension plan. Id. On August 17, 2015, the Division denied Appellant's request for reinstatement of his license as well as his request for a 65 and Over Shellfish License. DEM's Ex. 12. Appellant did not appeal this decision.
On February 4, 2016, Appellant filed an official application to renew his license. 2016 Renewal Appl., DEM's Ex. 8. Appellant's application also included two letters from Appellant's doctors indicating that the Appellant was receiving treatment for atrial fibrillation, high blood pressure, osteoarthritis, a torn rotator cuff, and sleep apnea. Id. Additionally, Appellant submitted landing records showing his use of his fishing license in 2009. Id. On February 10, 2016, the Division again denied Appellant's request to renew his license. DEM's Ex. 9. The Division stated that it was denying Appellant's application because he did not qualify for renewal under § 6.7-4 of the October 29, 2015 Commercial and Recreational Saltwater Fishing Licensing Regulations (Licensing Regulations) because he "did not possess a valid multi-purpose license as of 12/31/2015." Id. The Division also advised Appellant that he had the right to appeal the decision to the Administrative Adjudication Division for Environmental Matters (AAD). Id. Appellant timely appealed DEM's denial decision to the AAD. DEM's Ex. 10.
"Landing records" are reports of marine fish caught and landed in foreign or domestic ports.
On April 5, 2016, AAD conducted a hearing on Appellant's appeal. The hearing officer heard testimony from Appellant, Margaret McGrath (McGrath), the Programming Services Supervisor for the Office of Management Services at DEM, and John Lake (Lake), a Principal Biologist for Marine Fisheries at DEM. 2016 AAD Decision, DEM's Ex. 4, at 3-7. No recording of the hearing was taken. On April 18, 2016, AAD issued a decision affirming the Division's denial of Appellant's application to renew his Multi-Purpose Fishing License. Id. at 9.
Appellant timely appealed AAD's 2016 Decision to the Superior Court pursuant to § 42-35-15. Sullivan v. R.I. Dep't of Envtl. Mgmt., No. PC-2016-2165, 2017 WL 2311261, at *1 (R.I. Super. Ct. May 19, 2017). Appellant asserted that the AAD hearing officer failed to consider evidence showing that he met the renewal requirements, and that he was prejudiced by the lack of an available transcript from the hearing. Id. at 6. On May 19, 2017, the Superior Court issued a decision vacating AAD's 2016 Decision and remanding the matter for a new hearing. The Superior Court held that "the failure to record the Hearing was a violation of statutory procedure that substantially impaired the Court's ability to consider Mr. Sullivan's appeal and thus substantially prejudiced Mr. Sullivan's rights." Sullivan v. Rhode Island Dep't of Envtl. Mgmt., C.A. No. PC-2017-6243 (R.I. Super. May 19, 2017) (Van Couyghen, J.)
AAD conducted a de novo hearing on October 5, 2017. 2017 AAD Decision, DEM's Ex 2. The hearing was electronically recorded with Appellant's consent. DEM's Ex. 7. The hearing officer heard testimony from the same three witnesses who testified at the April 5, 2016 hearing, as well as one additional witness, Nicole Ares (Ares), a Principal Biologist with the Marine Fisheries Division. 2017 AAD Decision, DEM's Ex. 2, at 4-10.
Appellant was the sole witness on his behalf. At the beginning of his testimony, Appellant noted that on remand he requested mediation and "a neutral hearing with attorneys and hearing officers that were not a part of [his] initial hearing," but DEM denied both requests. Oct. 5, 2017 Hr'g, Elec. Recording at 13:00-13:21. Appellant testified that he submitted two letters with his renewal application to the Division as evidence of his medical hardship, one from his cardiologist and another from his internal medicine doctor. He also testified about the financial hardship he is facing due to pension reform legislation enacted by the General Assembly that will cause him to lose $20,000 of income. DEM's attorney objected to Appellant's testimony regarding his financial hardship on the basis that Appellant did not submit any evidence of such hardship with his 2016 Renewal Application. The hearing officer overruled DEM's objection stating that he would determine the relevance of the information and give it the appropriate weight.
Appellant also asserted that allowing him to renew his Multi-Purpose Fishing License, which would allow him to harvest shellfish as well as finfish, would be consistent with the 2016 Shellfish Sector Management Plan because quahog harvesters are currently harvesting well under the number of bushels allowed, meaning there is ample shellfish available for harvest. Appellant stated that he primarily fishes by rod and reel, and the species of fish he targets are readily available. Additionally, Appellant contended that when evaluating equity between license holders, the hearing officer should consider the fact that Appellant is a well-equipped, experienced fisherman and other, less experienced, persons are being awarded fishing licenses through the lottery system. Lastly, Appellant contended that granting his renewal application would be consistent with the agency's previous decisions because all previous denials were based on a lack of providing documentation of medical hardship, and Appellant has provided such documentation.
Following Appellant's testimony, the Division presented three witnesses. First, McGrath testified that she has been working at DEM since 1988, and her current position is Programming Services Officer of the Division. She explained that her job duties include deciding whether or not to approve or deny fishing license applications based on the Licensing Regulations. She stated that she reviewed Appellant's eleven-page renewal application dated February 4, 2016. She testified that the application included a letter from Dr. Weigner that referred to an attachment that was not provided to DEM, and that his application did not mention a financial hardship. She further testified that she denied Appellant's application because he did not possess a Multi-Purpose Fishing License during the previous year, 2015, as required by § 6.7-4(c) of the Licensing Regulations. However, according to McGrath's testimony, Appellant was issued a 65 and Over commercial fishing license in January 2017, which authorized Appellant to harvest and sell up to three bushels of quahogs per day.
Ares testified that she is responsible for coordinating the Atlantic Coastal Cooperative Statistics Program (ACCSP), which is responsible for collecting commercial fishing data. Ares testified that she assists seafood dealers and commercial fishermen in reporting purchases of seafood products from harvesters to the Standard Atlantic Fisheries Information System (SAFIS), which is required by law. She further testified that she reviewed SAFIS a week and a half prior to her testimony and found a handful of sales recorded under Appellant's Multi-Purpose Fishing License in 2009 and no sales recorded under his 65 and Over License. On cross-examination, Appellant asked Ares if she was aware of unreported sales that took place by Appellant in Bristol, Rhode Island. In response, Ares stated that she did not see any such sales recorded in SAFIS.
SAFIS is an online database run by the ACCSP that stores commercial fishing data.
Lake, the final witness, testified that part of his responsibilities as a Principal Biologist in the Marine Fisheries Division of DEM is to advise the Rhode Island Marine Fishing Council Industrial Advisory Committee on the entrance and exit ratios of commercial fishing licenses. He also testified that he authored a portion of the 2016 Shellfish Sector Management Plan that provided a recommendation for commercial fishing licenses. Lake then stated that the 2016 Shellfish Sector Management Plan was not relevant to the issuance of a Multi-Purpose Fishing License because it only pertains to shellfish sector specific licenses. Lake further testified that no new Multi-Purpose Fishing Licenses have been issued since 2001 due to a federal moratorium on harvesting lobster, which is permitted under this type of license. On cross-examination, Lake admitted that Multi-Purpose Fishing License holders also harvest shellfish.
Following the hearing, the hearing officer issued a decision including findings of fact and conclusions of law. 2017 AAD Decision, DEM's Ex 2, at 12-13. The hearing officer found that Appellant "failed to submit any evidence/documentation of medical hardship to the Division pursuant to Regulation 6.7-9 in 2009" and that he "did not possess a valid Multi-Purpose License in 2015 or 2016." Id. at 12. Based on these findings, the hearing officer concluded that Appellant "failed to prove medical hardship conditions to the Division prior to the expiration of his Multi-Purpose License in 2009 pursuant to Regulation 6.7-9." Id. Accordingly, the hearing officer upheld the Division's denial of Appellant's 2016 Renewal Application and denied Appellant's appeal. Id. at 13.
On December 26, 2017, Appellant timely appealed AAD's 2017 Decision to this Court. On appeal, Appellant makes several assertions: (1) DEM violated his due process rights by not allowing his case to be heard before the Commercial Fishing License Review Board (the Board); (2) DEM denied him a fair hearing because, after remand from the Superior Court, his case was heard before the same DEM hearing officer and DEM attorney; (3) DEM's finding that his renewal application was not "timely" was arbitrary and capricious; and (4) DEM should have considered evidence of his financial hardship because § 6.7-10 of the Licensing Regulations provides that financial hardship is a basis for renewal past the normal renewal period.
DEM contends that this Court should affirm AAD's 2017 Decision because it was supported by legally competent evidence, and Appellant failed to meet his burden of proof to demonstrate that the Division's decision to deny his renewal application was in violation of the Licensing Regulations. In response to Appellant's argument that he should have been permitted to appeal the Division's denial to the Board, DEM asserts that it did not violate Appellant's due process rights because the Board was defunct at the time and no longer exists. Lastly, DEM avers that Appellant submitted evidence in his brief that was not before AAD, and therefore, this Court should not consider it.
II
Standard of Review
This Court's review of an appeal from an administrative action is governed by § 42-35-15(g) which provides:
"The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision 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 or 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."
When reviewing an agency's decision, this Court looks only to the certified record that was before the agency at the time the decision was rendered. Johnston Ambulatory Surgical Assocs., Ltd. v. Nolan, 755 A.2d 799, 804-05 (R.I. 2000). Based on the record, this Court must determine "'whether there is any legally competent evidence to justify the [agency's] conclusions.'" Power Test Realty Co. Ltd. P'ship v. Coit, 134 A.3d 1213, 1218 (R.I. 2016) (quoting Envtl. Sci. Corp. v. Durfee, 621 A.2d 200, 208 (R.I. 1993)). As to questions of fact, this Court will not substitute its judgment for that of the agency with regard to the credibility of witnesses or the weight of the evidence. State Dep't of Envtl. Mgmt. v. Admin. Adjudication Div., 60 A.3d 921, 924 (R.I. 2012).
Additionally, questions of law are reviewed de novo. City of Pawtucket v. Laprade, 94 A.3d 503, 513 (R.I. 2014). However, this Court must provide deference to an agency's interpretation of an ambiguous "regulatory statute that the General Assembly empowered the agency to enforce . . . 'as long as that construction is not clearly erroneous or unauthorized.'" Labor Ready Ne., Inc. v. McConaghy, 849 A.2d 340, 344 (R.I. 2004) (citing In re Lallo, 768 A.2d 921, 926 (R.I. 2001)). Such deference is required "even when the agency's interpretation is not the only permissible interpretation that could be applied." Pawtucket Power Assocs. Ltd. P'ship v. City of Pawtucket, 622 A.2d 452, 456-57 (R.I. 1993). Accordingly, this Court should not substitute its own interpretation of an agency's regulation where the agency's interpretation was objectively reasonable. State v. Cluley, 808 A.2d 1098, 1103-04 (R.I. 2002).
III
Analysis
A
Due Process
Appellant asserts that DEM violated his due process rights by not permitting him to appeal the Division's decision to the Board. Appellant also asserts that he was not afforded a fair hearing after the Superior Court remanded the case to the AAD because the new hearing was before the same hearing officer and against the same DEM attorney.
Appellant's due process argument is based on G.L. 1956 § 20-2.1-12, which previously provided that a decision by the Division denying a person's application for a commercial fishing license could be appealed to the Board before appealing to the AAD. However, the General Assembly repealed § 20-2.1-12, effective June 6, 2016, eliminating this additional tier of review. P.L. 2016, ch. 49, § 1, effective June 6, 2016; P.L. 2016, ch. 55, § 1, effective June 6, 2016.
In Rhode Island, "when the law changes while a case is pending appeal, we will apply the law in effect at the time of the appeal, particularly when the Legislature has indicated that a statutory provision is to have retroactive effect." F.C.C., Inc. v. Reuter, 867 A.2d 819, 822 (R.I. 2005); O'Reilly v. Town of Glocester, 621 A.2d 697, 704-05 (R.I. 1993) (citing Rekowski v. Cucca, 542 A.2d 664, 666 (R.I. 1988)). Here, Appellant is appealing the Division's decision from February 10, 2016. Although the Division rendered its decision prior to the repeal of § 20-2.1-12, the law currently in effect provides no avenue for Appellant's appeal to be heard before the Board as the Board no longer exists under the statute. See P.L. 2016, ch. 49, § 1. Therefore, Appellant had no statutory right to appeal the Division's decision to the Board and, accordingly, DEM has not violated Appellant's rights by not permitting him to appeal to the Board.
Moreover, DEM did not violate Appellant's due process rights in the constitutional sense. Appellant was on notice that his license expired in 2009, and DEM provided Appellant with ample opportunity to be heard regarding his potential eligibility for renewal based on medical and financial hardship. DEM reviewed Appellant's renewal application and provided him with two full hearings on his appeal of the Division's denial decision at which he was able to present witnesses and legal arguments.
If an agency's action implicates a protected liberty interest, the agency's decision-making process must satisfy procedural due process requirements. State v. Germane, 971 A.2d 555, 578-79 (R.I. 2009). Procedural due process requires "'that a deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case.'" Id. (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 1493 (1985)).
Additionally, while it is true that "a fair trial in a fair tribunal is a basic requirement of due process," conducting the new hearing following remand before the same hearing officer and DEM attorney does not render the hearing unfair. See Davis v. Wood, 427 A.2d 332, 336 (R.I. 1981). In Davis, the Supreme Court held that the fact that the hearing officer was fully aware of the agency's case prior to the hearing did not provide a basis for the trial justice's finding that the hearing officer was biased. Id. Similarly here, the fact that the same hearing officer presided over the previous hearing does not lead to the conclusion that he could not provide Appellant with an impartial hearing on remand. Moreover, no statute or regulation prohibits the same. Appellant relies upon the previous Superior Court decision finding that his rights were substantially impaired at the previous hearing to show that DEM should have provided a new hearing officer and DEM attorney for the rehearing. However, the reason Appellant's case was remanded for rehearing was that the hearing was not recorded as required by statute. On remand, the rehearing was electronically recorded, in compliance with § 1.16(M) of the AAD Rules of Procedure. R.I. Admin. Code 25-2-1 § 1.16(M). Additionally, the fact that the same DEM attorney represented the agency's position is of no consequence to the fairness of the hearing. Thus, this Court finds that DEM provided Appellant with a fair hearing on October 5, 2017.
B
AAD's 2017 Decision
As to the merits of AAD's 2017 Decision, Appellant contends that AAD's decision was arbitrary and capricious because it was based on a subjective finding that his renewal application based on medical hardship was not "timely." Appellant also contends that AAD failed to consider evidence of his financial hardship as a basis for renewal after the normal renewal period had expired. In response, DEM asserts that AAD's finding that Appellant's renewal application was not timely was not in violation of statutory or regulatory provisions. Specifically, DEM argues that it acted within its statutory authority when it interpreted § 6.7-9 of the Licensing Regulations to require Appellant to submit proof of medical hardship in 2009, the year his license expired. R.I. Admin. Code 25-8-21:6 § 6.7-9.
Under § 6.7-4 of the Licensing Regulations, "[a]pplicants who possessed a valid Multi-Purpose License (resident only) as of the immediately preceding year may obtain a MultiPurpose License for the immediately following year." R.I. Admin. Code 25-8-21:6 § 6.7-4(c). The deadline to file an application to renew a commercial marine fishing license is February 28 of each year with a sixty-day grace period starting from the renewal deadline of February 28. Sec. 20-2.1-4(g). Section 20-2.1-4(g)(6) further provides:
This Court notes that DEM has amended its Commercial and Recreational Saltwater Fishing Licensing Regulations since Appellant submitted his official renewal application on February 4, 2016. However, § 2.5 of the Licensing Regulations provides that "any enforcement action taken by, or application submitted to, the Department prior to the effective date of these Rules and Regulations shall be governed by the Rules and Regulations in effect at the time the enforcement action was taken or application was filed." R.I. Admin. Code 25-9-2 § 2.5. Thus, this Court will apply the Licensing Regulations enacted on October 29, 2015. R.I. Admin. Code 25-8-21.
"There shall be no right to request reconsideration by the commercial fishing license review board or appeal to the department of environmental management's administrative adjudication division (AAD) for the rejection of any new license applications submitted after February 28, or any license renewal applications submitted after the sixty-day (60) grace period, except in the case of a documented medical hardship as defined herein." (Emphasis added.)
Appellant's license expired on December 31, 2009. Therefore, absent a documented medical hardship, the latest Appellant could have filed a renewal application was in April 2010. However, Appellant did not make any attempt to renew his license until July 27, 2015, when he emailed DEM requesting to reinstate his previously held license. Thus, this Court must determine if DEM's conclusion that the exception for a documented medical hardship does not apply to Appellant's case was clearly erroneous.
Under § 20-2.1-3(12), a "medical hardship" is defined as "a significant medical condition that prevents a license applicant from meeting the application requirements." The Licensing Regulations further address the effect of hardship conditions in § 6.7-9 of the Licensing Regulations. R.I. Admin. Code 25-8-21:6 § 6.7-9. A license holder is deemed to have a hardship if he or she is actively fishing and becomes "permanently or temporarily incapacitated by illness or injury so as to not be able to fish for any period in excess of fourteen (14) days." R.I. Admin. Code 25-8-21:6 § 6.7-9(a). Additionally, in the case of a temporary incapacity, the license holder must supply proof of hardship in the form of "a diagnosis and prognosis of the incapacity of the license holder signed by a medical doctor (M.D. or O.D.)." R.I. Admin. Code 25-8-21:6 § 6.7-9(b). If DEM determines that a hardship exists due to temporary incapacity, it "will issue, upon application, an operator permit or equivalent license of the same category to a Rhode Island resident designated by the incapacitated license holder." R.I. Admin. Code 25-8-21:6 § 6.7-9(e).
The Licensing Regulations do not provide a time period in which an applicant must provide documentation of a medical hardship. "One of the most venerable doctrines in administrative law is that a court will give great deference to an agency's interpretation of its own rules." 3 Charles H. Koch, Jr., Administrative Law and Practice § 10:26 (3d ed. 2010). For example, in Cluley, in part, involving the Department of Health's interpretation of a regulation, "the mere fact that the regulation itself did not define the word 'same' did not prevent [agency] representatives from testifying about how they interpreted and applied this regulation in the field." 808 A.2d at 1105. Here, DEM interpreted § 6.7-9 of the Licensing Regulations to require proof of a medical hardship to be provided prior to the expiration date of the license. Section 6.7-9 of the Licensing Regulations provides that the medical hardship exception allows license holders who were actively fishing but are unable to continue to do so due to a permanent or temporary incapacity to retain their licenses by permitting another person designated by the license holder to utilize the license rights temporarily in his or her place. See R.I. Admin. Code 25-8-21:6 § 6.7-9. However, the person designated by the license holder may only operate under the original license "for the balance of the license year, or until the return to wellness of the incapacitated license holder, whichever occurs first." R.I. Admin. Code 25-8-21:6 § 6.7-9(e).
Based on § 6.7-9 of the Licensing Regulations, DEM's purpose in creating the medical hardship exception was to help permanently or temporarily incapacitated license holders to avoid an abrupt loss of his or her license due to an inability to continue to fish for a certain time period. See R.I. Admin. Code 25-8-21:6 § 6.7-9. Therefore, DEM's interpretation that the medical hardship must be shown before the license expires for the exception to apply was reasonable and is entitled to deference from this Court. See Cluley, 808 A.2d at 1105. Moreover, the Licensing Regulations provide no indication that DEM intended the medical hardship exception to be a basis for a former license holder who allowed his or her license to expire to obtain renewal of that license after the fact. See R.I. Admin. Code 25-8-21:6. Here, Appellant did not seek to utilize the medical hardship exception until over five years after his license had expired. See Mancini v. City of Providence, 155 A.3d 159, 163 (R.I. 2017) (emphasizing that the court will not "construe a statute to reach an absurd result"). Thus, this Court finds that DEM's finding that Appellant did not qualify for the medical hardship exception because he failed to submit documentation of such hardship before his license expired in 2009 was not arbitrary or capricious.
Lastly, neither the applicable statutes nor the Licensing Regulations provide that financial hardship can be a basis for renewing a commercial fishing license beyond the statutory time period provided in § 20-2.1-4(g). Appellant contends that § 6.7-10 of the Licensing Regulations provides such a basis for renewal. However, § 6.7-10 of the Licensing Regulations does not mention such an exception. See R.I. Admin. Code 25-8-21:6 § 6.7-10. Section 6.7-10(g) of the Licensing Regulations addresses factors that the Board should consider when making a recommendation on a request for reconsideration of a license denial. R.I. Admin. Code 25-8-21:6 § 6.7-10(g); see Terrano v. State, Dep't of Corrections, 573 A.2d 1181, 1183 (R.I. 1990) ("[I]t is an accepted rule of statutory construction that an express enumeration of items in a statute indicates a legislative intent to exclude all items not listed."). Although one of the factors is "unreasonable hardship to the applicant," the regulation does not mention financial hardship specifically and, moreover, it does not provide that such "unreasonable hardship" is a basis for renewal but only a factor to consider. R.I. Admin. Code 25-8-21:6 § 6.7-10(g)(v). The section further states that the Board should consider "consistency with the provisions and purposes of RIGL Chapter 20-2.1 and the rules and regulations set forth herein." As discussed above, § 20- 2.1-4(g) and the Licensing Regulations mention only medical hardship as a basis for renewal and make no mention of financial hardship. Therefore, DEM's failure to consider Appellant's testimony regarding his recent financial losses was not affected by error of law or clearly erroneous.
IV
Conclusion
After reviewing the entire record, this Court finds that DEM's decision to deny Appellant's renewal application was not arbitrary or capricious as it was based on a reasonable interpretation of § 20-2.1-4 and the Licensing Regulations. This Court also finds that DEM did not violate Appellant's rights by not allowing him to appeal the Division's decision to the Board as the statute creating the Board has since been repealed. Lastly, this Court finds that DEM did not provide Appellant with an unfair hearing on remand by conducting the hearing before the same hearing officer and against the same DEM attorney. The substantial rights of the Appellant have not been prejudiced.
Counsel shall prepare an appropriate judgment for entry.