Opinion
No. HHB CV 08-4016038 S
June 17, 2009
Memorandum of Decision
The plaintiff, Eveready Norwalk, Inc., appeals from the final decision of defendant state department of transportation (department) denying in part the plaintiff's application for authority to operate eleven additional motor vehicles in taxicab service in Norwalk. The partial denial rested on the ground that the plaintiff had not established the requisite "public convenience and necessity." The other defendant in this appeal is Laila A. Mandour, who was the hearing officer in the proceedings before the department. For the following reasons, the court approves the department's decision and dismisses the appeal.
I
The plaintiff is the holder of a taxicab certificate of public convenience and necessity allowing it to operate five taxicabs within, to, and from the city of Norwalk. In April 2007, the plaintiff filed an amended application with the department seeking authority to operate an additional eleven taxis. Six days of public hearings took place between May 31 and August 3, 2007 in which the plaintiff presented numerous supporting witnesses. On November 1, 2007, Mandour issued a final decision granting the plaintiff the authority to operate two additional taxicabs for a provisional one-year period and prohibiting these cabs from queuing at the Norwalk train station. Mandour denied the plaintiff's application insofar as it sought authority to operate nine additional taxicabs in the city.
The plaintiff appealed to the Superior Court. The department moved to remand the case based on the concession that the hearing officer lacked the authority to grant a provisional or limited term taxicab certificate. The court granted the motion and, on June 20, 2008, Mandour issued a Corrected Amended Final Decision that eliminated both the time restriction and the train station restrictions on the two additional taxicabs that the plaintiff had gained authority to operate.
The plaintiff again appeals to the Superior Court from the department's decision denying the plaintiff's application for permission to operate an additional nine taxicabs. The plaintiff claims that 1) the record lacks substantial evidence to support the department's decision, and 2) the hearing officer was biased against the plaintiff.
II
Under the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., judicial review of an agency decision is very restricted. See MacDermid, Inc. v. Dept of Environmental Protection, 257 Conn. 128, 136-37, 778 A.2d 7 (2001). Section 4-183(j) of the General Statutes provides as follows:
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 shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing 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.
Stated differently, "[j]udicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable." (Internal quotation marks omitted.) Schallenkamp v. DelPonte, 229 Conn. 31, 40, 639 A.2d 1018 (1994). "It is fundamental that a plaintiff has the burden of proving that the [agency], on the facts before [it], acted contrary to law and in abuse of [its] discretion . . ." (Internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000).
III
The plaintiff initially claims that the record lacks substantial evidence to support the department's decision. The substantial evidence rule is "similar to the sufficiency of evidence standard applied in jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . ." (Internal quotation marks omitted.) Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, 331, 732 A.2d 144 (1999).
To the extent that the hearing officer denied the plaintiff's application, the hearing officer concluded that the application did not establish that "public convenience and necessity require the operation of a taxicab or taxicabs for transportation of passengers . . ." as provided in General Statutes § 13b-97(a). Supplemental Return of Record, Corrected Amended Final Decision (Final Decision), p. 14.) The regulations promulgated under this chapter of the General Statutes provide that, among things, an applicant for a certificate must prove "[t]he number of taxicabs requested is justified given the need." Regs., Conn. State Agencies § 13b-96-10. The hearing officer essentially concluded that the plaintiff failed to satisfy this portion of the regulations.
Section 13b-97(a) provides: "No person, association, limited liability company or corporation shall operate a taxicab until such person, association, limited liability company or corporation has obtained a certificate from the Department of Transportation certifying that public convenience and necessity require the operation of a taxicab or taxicabs for transportation of passengers, the acceptance or solicitation of which originates within the territory specified in such certificate except as provided under subsection (d) of this section. No such certificate shall be issued unless the department finds that the person, association, limited liability company or corporation is suitable to operate a taxicab service, after giving due consideration to, at a minimum, the following factors: (1) Any convictions of the applicant under federal, state or local laws relative to safety, motor vehicle or criminal violations; (2) the number of taxicabs to be operated under the certificate; (3) the adequacy of the applicant's financial resources to operate the taxicab service; (4) the adequacy of insurance coverage and safety equipment; and (5) the availability of qualified taxicab operators. The commissioner shall request the state criminal history records check for any person or any officer of any association, limited liability company or corporation applying for such certificate from the State Police Bureau of Identification. The commissioner shall arrange for the fingerprinting of any person or any officer of any association, limited liability company or corporation applying for such certificate and forward the fingerprints to said bureau which shall submit the fingerprints to the Federal Bureau of Investigation for a national criminal history records check for any federal conviction specified in subdivision (1) of this subsection. A fee shall be charged by the commissioner for each such national criminal history records check which shall be equal to the fee charged by the Federal Bureau of Investigation for performing such check. Such certificate shall be issued only after written application, fingerprinting and said criminal history records check for the same has been made and public hearing held thereon. The application shall be accompanied by a fee of eighty-eight dollars and the fee for said criminal history records check. Upon receipt of such application, the department shall fix a time and place of hearing thereon and shall promptly give written notice of the pendency of such application and of the time and place of hearing thereon to such applicant, the mayor of each city, the warden of each borough or the first selectman of each town in which the applicant desires to originate the transportation of such passengers, and to any common carrier operating within the territory specified. Notwithstanding any provision of this subsection to the contrary, the department may, upon receipt of a written application, amend an existing certificate to increase the number of taxicabs which may be operated pursuant to the certificate without holding a hearing on the application, provided the department issues a legal notice of such application in a daily newspaper in accordance with the provisions of section 1-2, gives written notice of the pendency of such application to any common carrier operating within the territory specified and no objection is filed with the department within thirty days of each such notice. With respect to any application filed under the provisions of this subsection, the department shall not consider as a ground for denial of a request for an increase in the number of taxicabs to be operated within the territory specified, any number of taxicabs not currently registered with the Commissioner of Motor Vehicles at the time of filing of such application or at the time of any hearing held thereon."
Section 13b-96-l0 provides in full: "In a hearing on an application for a certificate of public convenience and necessity, the applicant shall present its case at a public hearing and shall have the burden of proving the following:
(a) Public convenience and necessity requires the operation of a taxicab or taxicabs for transportation of passengers. Public convenience and necessity shall include, but is not limited to, showing: (1) The availability of qualified taxicab operators in the area; and (2) The number of taxicabs requested is justified given the need.
(b) The applicant shall prove suitability to run the proposed business. Proof of suitability may include, but is not limited to: (1) Business acumen of the applicant or management; (2) Experience in the transportation field or in a service related field; (3) Provision of a business plan, which includes marketing; (4) The demonstration of a willingness and ability of the applicant to conform to the requirements of section 13b-99(b) of the Connecticut General Statutes and the Regulations of Connecticut State Agencies; and (5) Any convictions of the applicant under federal, state or local laws relative to safety, motor vehicle or criminal violations.
(c) Financial suitability to operate the proposed business for the initial start up period based on the applicant's business plan. Proof of financial suitability to operate the proposed business may include, but is not limited to: (1) Showing of sufficient assets to operate the taxicab service; (2) Vehicles in compliance with the requirements of section 13b-99(b) of the Connecticut General Statutes and Regulations of Connecticut State Agencies; (3) Adequacy of insurance coverage and safety equipment; (4) Taxi meters for each vehicle; and (5) A functioning communication system.
There is no dispute that the plaintiff satisfied the requirements of subsections (b) and (c).
The hearing officer did find that, because of the expansion of business and population in Norwalk, the city has a need for additional taxi service. The officer found, however, that the plaintiff was not fully utilizing its existing capacity. From findings in prior cases, the officer noted that the standard for full capacity utilization of taxicabs in Norwalk was twenty trips per day. Based on trip records chosen and submitted by the plaintiff — rather than the department — the hearing officer observed that the plaintiff operated only four of its five taxis on twenty-seven out of thirty-one days in March 2007. Further, these taxis averaged nine trips per day, which fell far short of the average of twenty. (Final Decision, pp. 6-7, 9-10, 12-15.)
Accordingly, the plaintiff had the existing capacity to provide approximately sixty-four additional rides on those twenty-seven days. (Final Decision, p. 14.) The department agreed to grant permission to the plaintiff to put two more taxis in service, thus adding forty more rides, for a total of 104 additional rides per day. These additional rides represented almost a 300% increase in the level of service provided by the plaintiff, based on the records that it chose to submit. While the city of Norwalk had grown, it was clearly reasonable for the hearing officer to conclude that the demand for taxi service had not grown by more than 300%. There was thus substantial evidence in the record, much of it selected by the plaintiff, to support the hearing officer's decision. See Rudy's Limousine Service, Inc. v. Dept of Transportation, 78 Conn.App. 80, 96-98, 826 A.2d 1161 (2003) (approving reliance on trip records to determine "public convenience and necessity" for additional livery service under General Statutes § 13b-103.)
Each of the four taxis providing nine rides a day could provide the standard of twenty per day, thus accounting for forty-four more rides. In addition, the plaintiff could offer an additional twenty rides, for a total of sixty-four, by putting its fifth car fully in service.
The plaintiff's records showed a daily average of four cars averaging nine trips, for a total of thirty-six trips, which is slightly more than one-third of the 104 additional trips contemplated under the department's decision.
IV
The plaintiff's principal claim is that the hearing officer was biased against it. The basis of the plaintiff's claim is that 1) the hearing officer's decision was not supported by substantial evidence; 2) the hearing officer had ruled against the plaintiff in numerous other cases but granted other similar applications to other applicants; and 3) there was no opposition to the application here.
The plaintiff did not raise this claim before the administrator, but the department does not brief the claim of procedural default. Accordingly, the court will address the issue on the merits. Cf. Moraski v. Connecticut Board of Examiners of Embalmers and Funeral Directors, 291 Conn. 242, 261-66, 967 A.2d 1199 (2009).
"[T]here 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." (Internal citations omitted; internal quotation marks omitted.) O G Industries, Inc. v. Planning Zoning Commission, 232 Conn. 419, 429, 665 A.2d 1121 (1995).
There is no merit to the plaintiff's first basis for claiming bias, as the court has already determined that there was substantial evidence to support the administrative decision. To support its second basis, the plaintiff claims that Mandour had presided over seven prior cases, which it cites, in which the plaintiff was either a party or an intervenor and that Mandour ruled against the plaintiff on all seven occasions. The plaintiff also cites several other taxicab decisions rendered by other hearing officers who supposedly granted applications despite the applicant's failure, in contrast to the case at bar, to present any supporting witnesses.
These attacks miss the mark. "Adverse rulings do not themselves constitute evidence of bias." (Internal quotation marks omitted.) Peatie v. Wal-Mart Stores, Inc., 112 Conn.App. 8, 26, 961 A.2d 1016 (2009). Contrary to the plaintiff's argument, the propriety of these decisions depends not on the number of witnesses supporting them but rather on the evidence that supports them. An "administrative agency is not required to believe any witness, even an expert." (Internal quotation marks omitted.) Goldstar Memorial Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 830 955 A.2d 15 (2008). The plaintiff has not cited any errors of law in any of the other decisions it attacks. Further, the plaintiff does not cite any instances of "unethical or other improper conduct." International Union of Elevator Constructors, Local 91 v. State Elevator Work Examining Board, Superior Court, judicial district of Hartford, Docket No. CV010809 162S (September 22, 2003, Beach, J.,) [35 Conn. L. Rptr. 522]. The plaintiff also apparently did not appeal any of the decisions against it. Even if it had, the "fact that a trial court rules adversely to a litigant, even if some of these rulings were determined on appeal to have been erroneous, [still] does not demonstrate personal bias." (Internal quotation marks omitted.) Peatie v. Wal-Mart Stores, Inc., supra, 112 Conn.App. 26. Thus, the plaintiff's citation of other decisions does not establish bias.
Finally, the plaintiff relies on the hearing officer's statement that the "only evidence on the record in opposition to the application was that of the intervenors, and their opposition was addressed to which company should have additional taxicabs not that additional taxicabs are needed." (Emphasis in original.) (Final Decision, p. 12.) The fact that there was no dispute concerning the need for additional taxi certificates, however, does not help establish that there was any bias or other impropriety in the hearing officer's decision regarding the extent to which the additional taxi certificates should go to the plaintiff. Thus, for example, the officer was fully entitled to rely on the testimony of the president of intervenor Norwalk Taxi, Inc. that, while there was a need for additional taxi service in Norwalk, the plaintiff's service was not busy. (ROR, Exhibit 92, August 3, 2007 transcript, pp. 87-90.)
Further, the record is not as clear as the quoted statement of the hearing officer suggests. The amended intervention petition of Norwalk Yellow Cab, Inc., stated: "There is no demand for increase [sic] taxi cab service in Norwalk, and increasing the number of cars would greatly harm Norwalk Yellow Cab's business." (ROR, Exhibit 41, p. 4.).
In any event, an administrative hearing is not a popularity contest. The mere absence of significant opposition does not establish that an applicant has met the statutory criteria necessary to grant an application. As stated, there is substantial evidence to support the hearing officer's decision that the plaintiff did not meet those criteria. There is thus no proof that the hearing officer was biased.
The plaintiff also suggests that the fact that the department moved to remand the appeal, to eliminate the restrictions originally placed on the two additional certificates awarded by the hearing officer reveals the department's own recognition of the hearing officer's bias. The department's formal remand motion, however, sought only to remove the time restriction on the two additional certificates. The hearing officer went beyond the motion and, to the plaintiffs benefit, also removed the restriction against receiving fares at the train station. Such action hardly demonstrates bias against the plaintiff.
CONCLUSION
The plaintiff has failed to sustain the grounds for its appeal. The appeal is dismissed.