Opinion
No. CV 10 6003839S
September 13, 2010
MEMORANDUM OF DECISION
The plaintiff, Mark Horenian, brought this administrative appeal from a December 2, 2009 final decision of the defendant department of transportation (DOT), after reconsideration was denied on January 5, 2010. In the final decision, a DOT hearing officer denied the application of the plaintiff d/b/a Five Star Transportation, made pursuant to General Statutes § 13b-103(a), to operate a motor vehicle "in general livery service between all points in Connecticut from a headquarters in Glastonbury, Connecticut."
Based on this denial, aggrievement is found, as required by § 4-183(a).
The hearing officer made the following relevant findings of fact in the December 2, 2009 final decision:
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2. The applicant currently operates a taxicab under the taxicab certificate of The Yellow Cab Company d/b/a Yellow Cab, holder of taxicab certificate No. 1.
3. The applicant owns five vehicles, which are registered under The Yellow Cab Company d/b/a Yellow Cab's Certificate No. 1, four of which are subleased to other drivers.
4. The subleasee drivers collectively pay The Yellow Cab Company d/b/a Yellow Cab, directly, for their respective lease fees and for the applicant's lease fee.
5. The applicant has a website for taxicab service.
6. The applicant does not hold a taxicab certificate.
7. [Plaintiff's witness, TM] met the applicant approximately 30 years ago through M's business — the applicant also has a flooring business. M intends to use the applicant's livery business professionally and for personal trips to out of state airports. M made references to Connecticut Limousine, who operates interstate service only.
8. M has used the applicant as a taxicab provider a few times and found the applicant to be professional and timely in providing taxicab service.
9. [Plaintiff's witness, MW] has been using the applicant's taxicab service two times a week for the past three years to go to medical appointments. W would use the applicant's livery service for the same reasons, if approved. W does not know the differences between taxicab and livery service. If the proposed service is not approved, W would continue to use the applicant's taxicab for service.
10. In the last four years, the applicant has not been unavailable or late in providing taxicab service to W.
11. [Plaintiff's witness, SW] lives in the same household as the applicant. SW is the regional sales director for a company and is in charge of Massachusetts, Rhode Island, Connecticut and northern New Jersey. Most of SW's travels take him to out of state destinations.
12. SW has not used any livery services in Connecticut. When he requires transportation he uses Horenian's taxicab service, exclusively.
13. [Plaintiff's witness, DA] used to own a body shop and knows Horenian from their business relationship when she had the body shop. A would use the proposed livery service to the airports or to go to New York. A has not used the livery services in Connecticut within the last 10 years.
(Return of Record, ROR, pp. 61-62.)
The hearing officer found that the plaintiff had the "financial wherewithal" to operate the proposed livery service, but concluded that the plaintiff, on the facts found, had not met his burden of proof of "convenience and necessity." The hearing officer also discussed in detail whether the plaintiff's on-going business arrangement with Yellow Cab was unauthorized, thereby rendering him unsuitable for the livery license. The hearing officer concluded, however, that "[s]ince the record is not clear on such taxicab operation or violations thereof, for purposes of the suitability requirement for the instant application, the above will not be held against the applicant." (ROR, pp. 62-63.)
After the final decision was issued, the plaintiff timely requested a reconsideration on December 11, 2009. In his motion, the plaintiff disputed the hearing officer's conclusion that his application should be denied for failure to prove that the public's "convenience and necessity" would be improved by the grant of authority to the plaintiff. He contended first that the hearing officer did not properly consider the testimony of his witnesses, and secondly that the hearing officer had placed a higher burden of proof upon the plaintiff than other similar applicants to the DOT.
On January 5, 2010, the hearing officer agreed to reconsider the case; but, on review, concluded that the December 2, 2009, final decision should remain as issued for the following reasons:
1. With regard to the witness testimony arguments made by the applicant, [TM] specifically testified that he travels to cities outside of Connecticut. His testimony led this hearing officer to believe that the livery services he used were not reserved in advance or were not genuine livery service, but rather taxicab or airport transportation such as `Conn. Livery Service.' M described the services he used as, in addition to other things, "overcrowded" which would not apply to livery service. Moreover, M made a general statement with regard to cities within Connecticut, such as " if I go to Danbury and Stamford I would use that type of transportation" (emphasis added) which is unspecific and he testified that he requires "spur of the moment" transportation, which statements are not dispositive of M's use of intrastate livery service, or the current lack of such. M's demeanor was unsure when he testified about intrastate livery service. In short, M's testimony was not believable on the issue of intrastate use of livery service.
2. As for [MW], the totality of his testimony was that he used the applicant's taxicab service for the past three years and would continue using it. When asked by applicant's counsel whether he would use the applicant's proposed livery service if there were no other transportation available, W indicated he would. The totality of W's testimony is unreasonable and not credible, especially in light of the fact that W did not know the difference between livery service and taxicab service.
3. [SW's] testimony was also not believable that he would suddenly use livery service only if the applicant was able to establish his own livery business. SW is the applicant's tenant/housemate and is also not a disinterested witness and therefore lacks credibility.
4. Lastly, as for the witness testimony, [DA] has not used livery service in the past 10 years and, although she stated that she would use the applicant to go `the airport' the record is silent as to how often she flies and from where she flies. Furthermore, trips to New York are interstate and the applicant does not require Connecticut livery authority to provide such trips.
5. The applicant argues that he entered into evidence his telephone bill showing a multitude of phone calls for non-taxi service. By Horenian's own admission, the calls were made to a listing entitled `information on taxi services.' The applicant's testimony [is] self-serving and uncorroborated by any independent and unbiased evidence that a third of the calls were for livery service, or rather, non-taxicab service. See Eveready Norwalk, Inc. v. State of Connecticut Department of Transportation et al., Memorandum of Decision, No. HHB CV 084016038S, Schuman, J. (June 17, 2009.)
6. Commendably, the witnesses who appeared to testify in support of their friend, the owner of the applicant company, appeared for just that reason, they were supporting their friend, not livery service and the need and/or improvement of livery service in the area of concern. It is not credible that people who have not used livery service in 10 years, or people who currently use the applicant's taxicab service on a consistent basis for medical transportation will suddenly change their transportation habits from either not using livery service at all or change from using taxicab service to livery service. Accordingly, the witnesses, while supportive of Marc Horenian, are not persuasive in their support for a new intrastate livery service.
As indicated, the plaintiff has timely appealed from the denial of his application to the DOT to obtain a permit to operate a motor vehicle "in livery service." Under § 13b-103(b), the DOT considers the following factors in deciding whether to grant an application: (1) present and future public convenience and necessity for the service, (2) the applicant's suitability, (3) the applicant's financial responsibility, (4) the ability of the applicant to perform the service, and (5) ability of the applicant to conform to the DOT statutes and regulations. The hearing officer rejected the plaintiff's application solely on the first factor of public convenience and necessity.
Section 13b-101 defines a "motor vehicle in livery service" as "every motor vehicle used by any person . . . which represents itself to be in the business of transporting passengers for hire." See also Lumbermen's Mutual Casualty Co. v. Scully, 3 Conn.App. 240, 244, 486 A.2d 1141 (1985), quoting Couch on Insurance, 2d, § 1040: "[t]o be a public conveyance requires the indiscriminate use of the vehicle conveying the public and a holding out of the vehicle to the general public for the carrying of passengers for hire." Section 13-101 excludes from its definition, a taxicab, which, by § 13b-95, "includes any motor vehicle operated upon any street or highway or on call or demand accepting or soliciting passengers indiscriminately for transportation for hire between such points along streets or highways as may be directed by the passenger or passengers being transported, provided nothing in this chapter shall be construed to include, as a taxicab . . . a motor vehicle in livery service when such motor vehicle is hired for a specific trip or trips and is subject to direction of the person hiring the same."
The Appellate Court has approved DOT's interpretation of § 13b-103(b) that the applicant must "satisfy all of the factors enumerated therein." Rudy's Limousine Service, Inc. v. Dept. of Transportation, 78 Conn.App. 80, 96, 826 A.2d 1161 (2003).
The plaintiff first argues that the only witnesses to testify were provided by him in support of his application and the DOT presented no witnesses. According to the plaintiff, the hearing officer, in the final decision and on reconsideration, improperly construed these witnesses' testimony, and if the hearing officer had properly considered his evidence, then his application would have been granted. He contends that the testimony of M indicates that he would make use of the livery service to travel to Bradley Field. W would employ the plaintiff regardless of whether he offered a taxi or livery service.
The hearing officer wrote in the reconsideration ruling that M never actually testified that he would make use of a livery service to Bradley Field, but rather would travel to airports in New York or Boston. (ROR, p. 99, l. 21-24; p. 99, l. 1-7.) These trips would not qualify for an intrastate livery license. Nor did the hearing officer find the plaintiffs' witnesses credible, questioning M's demeanor, W's lack of knowledge of the difference between taxi and livery, and SW's and D's sudden decision to use a livery service. Further, while the plaintiff had introduced telephone messages from the public, few related to the need for a livery service. (ROR, pp. 74-75.)
The court under these circumstances must sustain the hearing officer's view of the evidence. "[T]he scope of judicial review of an administrative agency's action under the UAPA is very restricted . . . This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review." (Citations omitted; internal quotation marks omitted.) Rudy's Limousine Service, Inc. v. Dept. of Transportation, 78 Conn.App. 80, 93, 826 A.2d 1161 (2003). See also Stash v. Commissioner of Motor Vehicles, 297 Conn. 204, 210-11 (2010) ("Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact"); Pet v. Dept. of Health Services, 228 Conn. 651, 668, 638 A.2d 6 (1994) ("the reviewing court must defer to the agency's assessment of the credibility of witnesses").
The plaintiff also criticizes the hearing officer's decision as arbitrary by referring to other cases in which an application was granted on less evidence than the plaintiff produced. He refers specifically to one application for livery service by a female, where, he alleges, the hearing officer relied on evidence that some persons would prefer to have a woman livery driver.
Judge Schuman has recently rendered an excellent opinion, Commissioner, Department of Public Safety v. Board of Firearms, Superior Court, judicial district of New Britain, Docket No. CV 09-4021751 (July 13, 2010, Schuman, J.) [ 50 Conn. L. Rptr. 303], rejecting a similar argument that a decision of the board of firearms was arbitrary, conflicting with its prior precedent. "The [plaintiff's] authority for his contention, however, stems from cases from other states and federal jurisdictions . . . The Connecticut appellate courts have not yet adopted a rule requiring administrative agencies to follow their own prior decisions. It is uncertain, at best, whether they would do so. In many cases, an agency may not have the resources or ability to compare prior decisions . . . Many administrative decisions are heavily fact-bound or dependent on first-hand observation of the witnesses, making comparison with prior cases especially difficult. Further, an agency may have good reasons to change its course and depart from prior precedent." The court follows Judge Schuman's analysis, especially as the hearing officer's decision was thoroughly based on observation and a judgment of credibility.
The second argument of the plaintiff claims bias on the part of the hearing officer. As seen in the final decision, the hearing officer stated a concern that the plaintiff was not suitable for a livery license due to his business arrangements with Yellow Cab. Ultimately the hearing officer decided to find the plaintiff suitable and refer issues involving Yellow Cab to another unit of DOT. The plaintiff claims that the Yellow Cab issue dominated the hearing on all issues and colored the hearing officer's judgment on the separate issue of convenience and necessity. The DOT responds that the record of the hearing does not support the plaintiff's contention.
Our Supreme Court has ruled that bias by a hearing officer must be claimed at the hearing or within a reasonable time thereafter, and not for the first time in an appeal from the agency action. See Henderson v. Dept. of Motor Vehicles, 202 Conn. 453, 462, 521 A.2d 1040 (1987); Moraski v. Connecticut Board of Examiners of Embalmers Funeral Directors, 291 Conn. 242, 262, 967 A.2d 1199 (2009). Neither the transcript nor the plaintiff's motion for reconsideration make a claim of bias.
Even if the claim had been properly preserved, the plaintiff failed in his burden of proving "actual bias." See Petrowski v. Norwich Free Academy, 199 Conn. 231, 238, 506 A.2d 139 (1986); Clisham v. Board of Police Commissioners, 223 Conn. 354, 362, 613 A.2d 254 (1992). The court has reviewed the transcript and agrees with the DOT that the hearing officer did not "cross the line" in commenting on the plaintiff's Yellow Cab arrangements.
For example, the plaintiff testified that the name of his taxi certificate is "Yellow Cab." The hearing officer responded: "Okay. So that is not a permit or a certificate that you own . . . I have a . . . bit of a concern because your testimony is that you have a taxicab company that you operate under this other taxicab company certificate and, yet, you operate this company that you call your taxi company as your company . . . Under the regulations and the statutes governing taxicab service, operating a business in your own name under someone's certificate is not allowed . . . [Y]ou are basically operating as a taxicab company." (ROR, pp. 184, 186, 189.) The plaintiff replied that "I'm an owner/operator. So that means that I lease the plates; I pay [Yellow Cab] for use of the . . . plate, the dispatch, the insurance . . . [I] use the name, d/b/a Five Star Taxi . . . but not to the public." These questions by the hearing officer and the responses by the plaintiff illustrate that the hearing officer was raising legitimate questions about suitability that had no effect on "convenience and necessity." See International Union of Elevator Constructors, Local 91 v. State Elevator Work Examining Board, Superior Court, judicial District of Hartford, Docket No. CV 01 0809162 (September 22, 2003, Beach, J.) [ 35 Conn. L. Rptr. 522] (finding no impropriety or ethical violation by the hearing officer).
The final contention of the plaintiff is drawn from a form distributed by the DOT (attached to the plaintiff's June 16, 2010 brief as Exhibit A), stating that a petition for reconsideration will be reviewed by a supervisory hearing officer, and not the hearing officer who rendered the first decision. In this case there is no dispute that the original hearing officer also denied the plaintiff's petition to reconsider.
There are two reasons why this argument lacks validity. First, the DOT notice cited by the plaintiff was never adopted as a regulation by the agency. See Salmon Brook Convalescent Home v. Commission on Hospitals Health Care, 177 Conn. 356, 362, 417 A.2d 358 (1979) (observing that official regulations of agency are normally adopted through the UAPA). At oral argument, the assistant attorney general representing the DOT stated that the document has been withdrawn by the DOT; in addition due to a reorganization, the post of supervising hearing officer does not exist.
More importantly, even if the document is binding on the DOT, the plaintiff must prove that he was prejudiced by the failure of the DOT to assign the reconsideration to a supervisory hearing officer, rather than the original hearing officer. See Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 828, 955 A.2d 15 (2008) ("not all procedural irregularities require a reviewing court to set aside an administrative decision; material prejudice to the complaining party must be shown"); Goldberg v. Insurance Department, 207 Conn. 77, 83, 540 A.2d 365 (1988) (party must show "personal harm or injury or proof that an individual's rights have been prejudiced or violated"). The plaintiff fails to recite in his brief any prejudice that resulted from this apparent violation.
The court concludes that the DOT did not improperly deny the plaintiff's application for a livery permit. Therefore, the administrative appeal is dismissed.