Opinion
No. CV 07 4013583S
February 5, 2009
MEMORANDUM OF DECISION
Yellow Cab Co. of New London and Union Lyceum Taxi Company (the plaintiffs) have brought this administrative appeal from a March 13, 2006 final decision and a March 2, 2007 final decision after reconsideration of the Connecticut Department of Transportation (DOT) granting an application by Patrick B. Foltz (Foltz) to operate two additional taxi vehicles in the Groton, Montville, New London and Waterford area. DOT moved to dismiss the complaint for lack of aggrievement. The court denied the motion, but allowed the issue of aggrievement to be raised again on the merits.
Both pleading and proof of aggrievement are prerequisites to this court's jurisdiction of an appeal. Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984).
The amended complaint alleges in part as follows:
As aggrievement herein is based on an allegation of illegality, the court consults the amended complaint, as it summarizes the evidence in the record.
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4. Applicant Patrick E. Foltz d/b/a Port City Taxi, holder of certificate No. 1151 filed its request for authorization from the [DOT] to operate two (2) additional vehicles in taxi service within to and from the combined territory of Groton, Montville, New London and Waterford, by application dated November 26, 2004. At the time, the Applicant was authorized to operate two (2) taxicabs within to and from Groton, Montville and New London. Thus, the scope of the hearing on the application was to cover the addition of two (2) taxicabs and an expansion of Applicant's territory in Waterford.
5. Hearings were held at the DOT on July 12, 2005, October 7, 2005, November 14, 2005 and January 6, 2006.
6. The [plaintiffs] opposed the application at the hearing . . .
7. The hearing officer issued a final decision granting the Applicant's requests on March 13, 2006 . . .
8. In response to the final decision, the [plaintiffs] filed a Petition for Reconsideration dated March 28, 2006.
9. On April 10, 2006, the adjudicator granted the [plaintiffs'] Petition for Reconsideration and directed [plaintiffs] and Applicant to submit oral and written argument in support of their respective positions. The notice also advised the plaintiffs and Applicant to submit dates for the hearing. Plaintiffs complied with the request.
10. On July 18, 2006, [DOT attorneys] Almeida and Mandour informed the [plaintiffs] that the Petition was denied.
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12. On August 7, 2006, [the DOT attorneys] advised the [plaintiffs] that the order denying the Petition was vacated and that a hearing would be scheduled.
13. On August 18, 2006, [plaintiffs] filed a motion for Appointment of Independent Adjudicator.
14. On September 11, 2006, the Director of External Audits and Administrative Law for the DOT informed the [plaintiffs] that the Motion for Appointment of Independent Adjudicator was denied and that a hearing would be scheduled to hear the Petition for Reconsideration.
16. On December 18, 2006, a hearing was held on the Petition for Reconsideration. The hearing officer substantially limited oral argument by each of the Applicant and the [plaintiffs]. No evidentiary submission or witness testimony was permitted.
CT Page 2801
17. On March 2, 2007, the DOT issued the Final Decision after Reconsideration and ordered that the Final Decision dated March 13, 2006, remain in full force and effect. The DOT determined the following: (1) the hearing officer did not make an error of law in his interpretation of the public convenience and necessity element of [General Statutes § 13b-97]; (2) the revocation of the applicant's temporary authority has no impact on the hearing officer's finding of the need for additional motor vehicles; (3) the provisions of Section 13b-96-6 of the Regulations of State Agencies grant the Commissioner discretion with respect to a false statement or misrepresentation made on an application; and (4) the hearing officer did not erroneously consider work performance under contract for any federal, state or municipal agency in determining whether public demand is being met in an application for other than governmental contract work, in accordance to the provisions of subsection (b) of Section 13b-96-36 of the Regulations of Connecticut State Agencies.
In paragraph 18 of the amended complaint, the plaintiffs set for the their reasons for appeal as follows:
(a) the Final Decision After Reconsideration is based upon a fatal error in the application of the law governing the issuance of taxicab certificates and determinations of public convenience and necessity;
(b) [the reconsideration proceeding was flawed when the DOT attorneys first denied the petition for reconsideration and then vacated their order and set the matter down only for oral argument and not a hearing, four months later];
(c) based upon the Order of July 18, 2006, it is apparent that there has been a predetermination of the issues by the Administrative Law Unit of the Bureau of Finance and Administration within the Department of Transportation;
(d) the Final Decision After Reconsideration is based upon an arbitrary and capricious continued grant of an illegal taxicab certificate to the Applicant while the hearing was pending;
(e) the improper preferential treatment accorded to the Applicant with regard to making false representations on the application, which he acknowledged, and the adjudicator's improper exercise of discretion in disregarding such conduct and waiving administrative sanctions, including dismissal, in response to such conduct;
(f) the adjudicator's erroneous consideration of governmental contract work in determining whether the public demand was being met in this application for other than government work;
(g) the disparate preferential treatment accorded the applicant by the DOT as compared to other applicants for additional taxicab certificates and/or expanded territory; and
(h) the disparate preferential treatment accorded the applicant with regard to the procedures and the process invoked by the DOT in the conduct of the original hearing, request for reconsideration and the conduct for the hearing or reconsideration.
The plaintiffs are competitors of Foltz and face the general rule that a competitor cannot on that basis alone claim to be aggrieved by the outcome of the final decision. New England Cable Television Ass'n., Inc. v. Dept. of Public Utility Control, 247 Conn. 95, 104, 717 A.2d 1276 (1998). There is an exception when the final decision is based on an illegality, such that it interferes with one's license. State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 303, 524 A.2d 636 (1987).
State Medical Society v. Board of Examiners in Podiatry, appeal after remand, 208 Conn. 709, 546 A.2d 830 (1988).
The court concludes that the general rule, and not the exception, applies to the plaintiffs' claims regarding the proceedings on reconsideration, the alleged prejudice and preferential treatment of the hearing officer and the two attorneys that reconsidered the case. The court will find aggrievement on the claims that the temporary cab license was extended by DOT, that Foltz submitted an inaccurate application that was accepted by the hearing officer, and that the hearing officer improperly dealt with the trip records.
The first issue is whether the DOT erred in allowing the temporary cab license to continue beyond the eighteen months allowed by General Statutes § 13b-97a. The DOT issued a temporary authorization on November 29, 2004, effective December 1, 2004, and expiring May 31, 2005, for Foltz to operate one motor vehicle in taxicab service within and to and from the current authorized territory pending hearing upon Foltz's application. (Return of Record, ROR, Exhibit 38.) On March 2, 2006, the DOT sent notice to Foltz that the temporary license had expired. (ROR, Exhibit 60.) The fact that Foltz continued to operate beyond the expiration date (while the hearing on his application was progressing) did not prejudice the plaintiff. It cannot serve to overturn the validity of the final decision.
The second issue is that Foltz did not set forth on his application that he was on probation for a misdemeanor, and the hearing officer did not deny the application based on this omission. The omission did not comply with DOT regulations §§ 13b-96-3(9), 13b-96-5. The court concludes that the hearing officer had discretion to find, as he did, that the omission concerned a misdemeanor and did not involve a traffic violation. This constitutes a longstanding interpretation that the DOT has given to the regulation. (ROR, Reconsideration of Final Decision, Exhibit 76, p. 5.) See Jim's Auto Body v. Commissioner of Motor Vehicles, 285 Conn. 794, 942 A.2d 305 (2008).
The third issue is that of the trip records. In order for the plaintiff to establish need for additional taxis, evidence of trip records is crucial. Rudy's Limousine v. Dept. of Transportation, 78 Conn.App. 80, 96-98, 826 A.2d 1161 (2003). When one applies for a general license, the hearing officer may not consider any trip record that relates to governmental work. See DOT regulation § 13b-96-36 (b).
DOT regulation § 13b-96-10 places the burden on the applicant to establish need for the granting of an additional certificate. The form for recording trips is set forth in DOT regulation § 13b-96-31.
Foltz submitted trip records to the hearing officer along with other evidence of the need for additional taxis and his suitability. The hearing officer stated in his final decision: "The testimony of riders along with trip sheets and a former and current taxicab driver of an opposing taxicab company were presented to illustrate trips that are referred to other providers due to the applicant's inability to meet the demand for service in both in his current service area and in Waterford." This supported Foltz's claim of need. (ROR, No. 62, p. 6.) The reconsidered decision stated that the hearing officer had made use of trip records, but not governmental trips. (ROR, Exhibit 76, p. 6.)
According to the DOT brief of December 4, 2007 at page 10, seven of the trip records are for trips on May 24 or 25, 2005, before the 180-day period ran on the temporary authority. (ROR, Exhibit 23.) These records supported the application.
At a hearing in this court, the parties raised the issue that while the hearing officer had stated that he relied only on non-governmental trip records, the transcript indicated that Foltz had stated only that the records were capable of segregation. (ROR, Exhibit 79, transcript July 12, 2005, pp. 185-86.) The appeal was remanded to the DOT for a new decision addressing this issue. See Memorandum of Decision May 23, 2008. The hearing officer replied in an August 1, 2008 articulation that he had not relied on trip records at all, as the governmental and non-governmental records were not segregated.
In a subsequent ruling on October 28, 2008, the court ordered that notice be given to Foltz by the DOT so that he might take the opportunity to segregate the records. DOT gave notice to Foltz, but he did not reply. Since the record has not been amended, the court finds that the final decision contains an error. It was essential that the trip records be considered, and those records may well contain trips that were public fares in violation of regulation § 13b-96-36(b).
Earlier, pursuant to an order of this court, Foltz was served with the administrative appeal, but did not enter an appearance.
Therefore the appeal is sustained as containing an error of law. See General Statutes § 4-183(j)(4); Board of Education v. Freedom of Information Commission, 217 Conn. 153, 159, 585 A.2d 82 (1991).