Steve Martorelli v. Connecticut Department of Transportation (2013)

MEMORANDUM OF DECISION

In order to obtain a permit to operate a livery service from the Department of Transportation (department), an applicant must establish, pursuant to General Statutes § 13b–103(b), “the present or future public convenience and necessity for the service the applicant proposes to render.”   This administrative appeal from the denial of an application for a permit to operate a livery service raises, among other issues, the important question of whether an applicant may establish “public convenience and necessity” simply by showing that the applicant can offer livery services at lower rates than those currently offered by existing livery companies.   Because the statute (1) requires a greater showing than that urged by the applicant here, and (2) does not violate the federal or state constitution, the decision of the department must be affirmed.

I. FACTS AND PROCEDURAL HISTORY

This is an appeal from a final decision of the department denying an application by Steve Martorelli, the plaintiff, for a permit to operate two motor vehicles in livery service, pursuant to General Statutes § 13b–103.   The record discloses the following facts and procedural history.

On April 5, 2011, the plaintiff applied to the department for a permit to operate two vehicles in livery service from a headquarters in Meriden.   A hearing on the merits of the application was held on June 28, 2012.   An intervenor, A Premier Limousine Services, Inc. (Premier), also participated in the hearing.   In a decision dated August 30, 2012, the department denied the plaintiff's application for the livery permits based on its finding that the plaintiff failed to establish the public convenience and necessity for the livery services the applicant proposed to render.

In the August 30, 2012 decision, the hearing officer made the following findings.   The plaintiff has no experience in the livery industry and has not received his public service license.   The plaintiff has been operating a credit card processing company, Turnkey Processing, LLC (Turnkey), since 2009.   The plaintiff has flexibility in that he can operate a livery service and still work at Turnkey.   Premier, the intervenor, operates twenty-three vehicles in general livery service from Berlin.

In the decision, the hearing officer also summarized the following testimony.¹  Antonio Garofolo, owner of a formalwear store in Rocky Hill, testified in support of the application and stated that he had not referred livery services to his clients for years because he had not found a livery service to which he wanted to refer business.   Daniel Reardon, an owner of Auto World in Meriden, stated he would like to use the plaintiff's proposed service to provide transportation to and from his business for prospective clients seeking to purchase automobiles.   Jason Caligiore, a coworker of the plaintiff's at Turnkey, testified that Turnkey would like to use the applicant's livery service to provide a perk to their clients and employees, but that current livery services are too expensive.   Antonio Cappaso, the operator of a construction company, testified that he thought the plaintiff could provide van shuttle service for Cappaso's employees to and from their job sites.   Cappaso also testified that parking at some of the sites was nonexistent or too expensive, but he had not looked into other livery companies or taxicab services to provide the transportation for his employees.   Genaro Martorelli, the plaintiff's father, testified that he would help his son with the business if needed and that he might have use for his son's livery business in transporting employees to Manhattan job sites.

The department denied the plaintiff's application based on its finding that the plaintiff failed to establish that “public convenience and necessity” would be improved by the issuance of the permit.   The hearing officer found that the plaintiff had sufficient assets and was suitable to operate a livery service, but concluded that the plaintiff had not proved that public convenience and necessity would be improved by the service.   The hearing officer observed that the plaintiff spent a good deal of time attempting to prove the public need for his livery service by emphasizing problems with the livery services offered by Premier and concluded that “[w]hile these issues should be referred to Regulatory & Compliance for investigation, they are minor in nature and do nothing to prove a need for the applicant's service.”   In regard to the witnesses, the hearing officer concluded that although the plaintiff was well liked, “[f]ew of the witnesses had any real need for a livery service;  in fact, taxicab service could have taken care of most of their needs and been far less expensive.   Most of these individuals had not called other livery services and had little experience with getting livery service in the Meriden area ․”

Following the issuance of the final decision, the plaintiff filed a petition for reconsideration on September 13, 2012, which was denied on September 19, 2012.   The plaintiff thereafter filed this timely administrative appeal of the department's denial of his application on October 26, 2012.   The plaintiff requests that the court sustain his appeal of the final decision of the department, render judgment in favor of the plaintiff, and order the department to issue the livery permits for which he applied.

Both the plaintiff and the department have filed briefs in this appeal.   The plaintiff argues that (1) the final decision must be reversed because the hearing officer improperly concluded that the plaintiff failed to establish that public convenience and necessity would be improved by his proposed livery service, and (2) section 13b–103 is unconstitutional because it violates the equal protection and due process clauses of the United States constitution and the Connecticut constitution, as well as the interstate commerce clause of the United States constitution.   The court heard arguments on September 12, 2013.   On September 18, 2013, the plaintiff filed a supplemental list of authorities in support of his constitutional arguments.

II. STANDARD OF REVIEW

The plaintiff brings this appeal pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § 4–166 et seq.  “It is well established that [j]udicial review of [an administrative agency's] action is governed by the [UAPA] ․ and the scope of that review is very restricted ․ With regard to questions of fact, it is neither the function of the trial court nor of [an appellate court] to retry the case or to substitute its judgment for that of the administrative agency.”  (Internal quotation marks omitted.)   Dept. of Public Safety v. Freedom of Information Commission, 298 Conn. 703, 716, 6 A.3d 763 (2010).  “Our review of an agency's factual determination is constrained by General Statutes § 4–183(j), which mandates that a 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 ․ clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record ․ This limited standard of review dictates that, [w]ith regard to questions of fact, it is neither the function of the trial court nor of [an appellate court] to retry the case or to substitute its judgment for that of the administrative agency ․ An agency's factual determination must be sustained if it is reasonably supported by substantial evidence in the record taken as a whole ․ Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred ․ This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review ․ The burden is on the plaintiff[ ] to demonstrate that the [agency's] factual conclusions were not supported by the weight of substantial evidence on the whole record.”  (Internal quotation marks omitted.)  Board of Education v. Commission on Human Rights & Opportunities, 266 Conn. 492, 503–04, 832 A.2d 660 (2003).

“It is well established that it is the exclusive province of the trier of fact to make determinations of credibility, crediting some, all, or none of a given witness' testimony ․ Additionally, [a]n administrative agency is not required to believe any witness, even an expert ․ Nor is an agency required to use in any particular fashion any of the materials presented to it as long as the conduct of the hearing is fundamentally fair ․ Questions of whether to believe or to disbelieve a competent witness are beyond our review.   As a reviewing court, we may not retry the case or pass on the credibility of witnesses ․ We must defer to the trier of fact's assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.”  (Citations omitted;  internal quotation marks omitted.)  Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 830, 955 A.2d 15 (2008).

“Even for conclusions of law, [t]he court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion ․ [Thus,] [c]onclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts ․ Cases that present pure questions of law, however, invoke a broader standard of review than is ․ involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion ․ Furthermore, when a state agency's determination of a question of law has not previously been subject to judicial scrutiny ․ the agency is not entitled to special deference ․ [T]herefore ․ the traditional deference accorded to an agency's interpretation of a statutory term is unwarranted when the construction of a statute ․ has not previously been subjected to judicial scrutiny [or to] ․ a governmental agency's time-tested interpretation ․ Consequently, [if] the [agency's] interpretation has not been subjected to judicial scrutiny or consistently applied by the agency over a long period of time ․ review is de novo.”  (Citation omitted;  internal quotation marks omitted.)  Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, 310 Conn. 276, 281–83 (2013).

III. MEANING OF “PUBLIC CONVENIENCE AND NECESSITY”

The plaintiff contends that the final decision must be reversed because the hearing officer improperly concluded that he failed to establish that public convenience and necessity would be improved by the operation and conduct of his proposed livery service.   Specifically, the plaintiff argues that he “can offer his service at a significantly lower price than the market rate,” and that “there are people in the general public and businesses that are unable to use limousine transportation currently, but would use the service at the applicant's lower price.”   He contends that, “by opening up the market to the general public at a much more affordable price,” his services will enhance “public convenience and necessity.”

The defendant argues that because the plaintiff failed to offer sufficient evidence that there is a need for the plaintiff's proposed livery service, and because an administrative agency is not required to believe any witness, substantial evidence supports the department's decision that the plaintiff failed to prove that public convenience and necessity would be improved by his service.

Implicit in the plaintiff's argument is an assumption that the standard of “public convenience and necessity” set forth in § 13b–103 can be satisfied by a showing merely that the applicant can offer livery services at lower rates than those currently offered by existing livery companies.   Whether the plaintiff is correct in his interpretation of the phrase “public convenience and necessity,” as used in the statute, presents an issue of statutory interpretation that, as previously stated, presents a question of law over which this court's review is de novo in the absence of prior judicial scrutiny or a time-tested interpretation by the administrative agency.²  See Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, supra, 310 Conn. 281–83.

“The principles that govern statutory construction are well established.   When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ․ In seeking to determine that meaning, General Statutes § 1–2z directs us first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered ․ When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter ․” (Internal quotation marks omitted.)  Friezo v. Friezo, 281 Conn. 166, 181–82, 914 A.2d 533 (2007).

At the outset, it is important to review the statutory scheme under which this case arises.   In order for an individual to operate a vehicle in livery service, the individual must first obtain a permit from the department.   The requirements for obtaining such a permit are set forth in General Statutes § 13b–103, which provides in relevant part:  “(a)(1) No person ․ shall operate a motor vehicle in livery service until such person ․ has obtained a permit from the Department of Transportation, specifying the nature and extent of the service to be rendered and certifying that public convenience and necessity will be improved by the operation and conduct of such livery service.   Such permits shall be issued only after a written application for the same has been made and a public hearing has been held thereon ․

“(b) In determining whether or not such a permit will be granted, the Department of Transportation shall take into consideration the present or future public convenience and necessity for the service the applicant proposes to render, the suitability of the applicant ․ the financial responsibility of the applicant, the ability of the applicant efficiently and properly to perform the service for which authority is requested and the fitness, willingness and ability of the applicant to conform to the provisions of this chapter and the requirements and regulations of the department under this chapter ․” (Emphasis added.)  General Statutes § 13b–103.

The only appellate authority discussing the meaning of § 13b–103 is the Appellate Court's decision in Rudy's Limousine Service, Inc. v. Dept. of Transportation, 78 Conn.App. 80, 826 A.2d 1161 (2003).   In Rudy's, the department granted authorization to operate only five of the sixty-one additional livery vehicles the applicant had requested.  Id., 82–83.   In its appeal to the Superior Court, the plaintiff challenged the denial of the additional permits, arguing that the department improperly applied the “public convenience and necessity” standard.  Id., 83.   Specifically, the plaintiff took issue with the fact that the department had based its decision on an examination of trip records from a period of only five days, rather than records from periods of peak demand.

The Superior Court dismissed the applicant's appeal, holding that “[a]lthough there may be other ways to determine public convenience and necessity, the court cannot say that the hearing officer's focus on a five-day period representing the majority of the year, rather than the minority, is unreasonable.”  Rudy's Limousine Service, Inc. v. Dept. of Transportation, Superior Court, judicial district of New Britain, Docket No. CV–01–0509165–S (April 11, 2002, Schuman, J.).³

The Appellate Court in Rudy's affirmed the decision of the trial court, determining that the plaintiff failed to establish that the department improperly concluded that there was no public need for the additional permits.   The decision, however, is not entirely clear as to the precise meaning of the phrase “public convenience and necessity.”   Additional guidance as to the meaning of the phrase can be gleaned from a review of the authorities upon which the Appellate Court relied in its decision.

In affirming the trial court's decision, the Appellate Court in Rudy's first looked to the Supreme Court's decision in Briggs Corp. v. Public Utilities Commission, 148 Conn. 678, 174 A.2d 529 (1961), which interpreted the meaning of the phrase “public convenience and necessity” in another statute dealing with motor vehicles, General Statutes § 16–283.⁴  The Appellate Court stated:  “[Section 16–283], like § 13b–103(a)(1), requires a new common carrier to obtain a certificate of ‘public convenience and necessity.’   In Briggs ․ the Supreme Court interpreted that phrase to mean that ‘the benefits to be derived from the operation [of the motor vehicle] will not be limited to a few persons in a particular locality.   It means benefit to the public generally, and, in the determination of public convenience and necessity, the effect of the commissioner's action upon the whole public instead of a small part of it must be considered.’  “ Rudy's Limousine Service, Inc. v. Dept. of Transportation, supra, 78 Conn.App. 97, quoting Briggs Corp. v. Public Utilities Commission, supra, 148 Conn. 682.

The Appellate Court in Rudy's also relied upon Wilson Point Property Owners Ass'n v. Connecticut Light & Power Co., 145 Conn. 243, 140 A.2d 874 (1958), a case involving utility facilities.   In Wilson Point, the Supreme Court pertinently stated that “[p]ublic necessity ․ is that urgent, immediate public need arising from existing conditions ․” (Emphasis added;  internal quotation marks omitted.)  Wilson Point Property Owners Ass'n v. Connecticut Light & Power Co., supra, 261.   Accordingly, the Appellate Court's decision in Rudy's, when read in conjunction with the Supreme Court authorities on which it relied, support a conclusion that public “necessity” encompasses an actual and probable need, rather than a need that is based upon a mere possibility.   See also In re Application of Shelton Street Railway Co., 69 Conn. 626, 629, 38 A. 362 (1897) (using phrase “actual present public necessity” in context of railway extension).

Apart from the court's decision in Rudy's, there is a dearth of appellate authority in Connecticut defining “public convenience and necessity” in the context of § 13b–103.⁵  Given the minimal Connecticut authority on what may suffice as “public convenience and necessity” in the context of our statutes, the court looks for further guidance from the courts of other states.   Similar to § 13b–103, a Nebraska statute requires an applicant seeking a livery permit to prove public convenience and necessity.   The relevant Nebraska statute states in relevant part:  “(1) A certificate shall be issued to any qualified applicant authorizing the whole or any part of the operations covered by the application if it is found after notice and hearing that (a) the applicant is fit, willing, and able properly to perform the service proposed and to conform to the provisions of sections 75–301 to 75–322 and the requirements, rules, and regulations of the commission under such sections and (b) the proposed service, to the extent to be authorized by the certificate, whether regular or irregular, passenger or household goods, is or will be required by the present or future public convenience and necessity.”   Neb.Rev.Stat. § 75–311.

The Supreme Court of Nebraska, addressing the factors to be considered in determining the issue of “public convenience and necessity,” has stated that “[t]he controlling questions ․ are whether the proposed operation will serve a useful purpose responsive to a public demand or need;  whether this purpose can or will be served as well by existing carriers;  and whether the purpose can be served by the applicant in a specified manner without endangering or impairing the operations of existing carriers contrary to the public interest.”  Regency Limo, Inc. v. Celebrity Limousine Service, 222 Neb. 684, 687, 386 N.W.2d 444 (1986).   Specifically, under Nebraska law, “[p]ublic demand or need ․ is a present actual need or a need which will likely occur within the reasonably immediate or foreseeable future.   A certificate of public convenience and necessity cannot be granted on the basis of future needs which are speculative or improbable ․ Any rule otherwise would bind the present with certificated service based on speculation and mere possibility of demand or need, a foundation not of fact but fantasy.   In reference to a certificate, based on future need, possibility is not equivalent to probability.” ⁶  (Citations omitted.)  Renzenberger, Inc. v. Brown's Crew Car of Wyoming, Inc., 225 Neb. 30, 36–37, 402 N.W.2d 294 (1987).

Decisions of the courts of other jurisdictions are in accord.   See State ex rel. Eldon Miller, Inc. v. Public Service Commission, 471 S.W.2d 483, 487 (Mo.App.1971) (in context of railways, court found “evidence did not run to a present need but pertained only to speculation as to what might, perhaps, maybe, develop in the future”);  Dunnagan v. Ndikom, 139 N.C.App. 246, 252, 533 S.E.2d 494 (2000) (“[W]hat constitutes ‘public convenience and necessity’ is primarily an administrative question with a number of imponderables to be taken into consideration, e.g., whether there is a substantial public need for the service;  whether the existing carriers can reasonably meet this need, and whether it would endanger or impair the operations of existing carriers contrary to the public interest.”  [Internal quotation marks omitted] ).   Therefore, other jurisdictions' interpretation of “public necessity” or “public need” as an actual need or a need that will likely occur within the reasonably immediate or foreseeable future is consistent with our Appellate Court's apparent definition in Rudy's of need as a need that is urgent and immediate and arising from existing conditions.⁷  Accordingly, based on these authorities, the court interprets the phrase “public necessity” as an “actual need or a need that will likely occur within the immediate or reasonably foreseeable future.”

IV. SUBSTANTIAL EVIDENCE

In the present case, the department's finding that the plaintiff has failed to satisfy the requirements, as defined above, for “public convenience and necessity” is supported by substantial evidence.   As discussed above, “public necessity” is properly defined actual need or a need that will likely occur within the immediate or reasonably foreseeable future.   In other words, “public necessity” goes beyond a mere benefit to the public;  there must be a current demand for the particular services or a demand that is likely to arise in the reasonably foreseeable future.   Although the plaintiff argues that:  (1) “the [plaintiff] can offer his service at a significantly lower price that the market rate;” (2) “there are people in the general public and businesses that are unable to use limousine transportation currently, but would use the service at the applicant's lower price;” and (3) “by opening up the market to the general public at a much more affordable price, the applicant will benefit the general public, and ․ enhance the ‘public convenience and necessity,’ “ the plaintiff failed to adequately prove that the services will satisfy any existing need or demand for the services or a demand that is reasonably foreseeable.   Instead, the plaintiff primarily focuses his argument on the assertion that because he could provide a lower rate for livery services in comparison to that of Premier, a “new demand” will be created for such services.

As an initial matter, the plaintiff's assertion that “new demand” will emerge is factually and legally insufficient to prove that public convenience and necessity will be improved.   At most, such “new demand” is merely “speculative or improbable”;  see Renzenberger, Inc. v. Brown's Crew Car of Wyoming, supra, 225 Neb. 36–37;  and does not rise to the level of a need that is likely to arise in the reasonably foreseeable future.⁸  Although it is possible that individuals who previously chose not use a livery service did so because of cost, it is mere speculation that a new and measurable demand will develop at some unknown price point.   Although lower prices could possibly result in a shift of market share from competitors such as Premier to the plaintiff, it would be gross speculation to attempt to predict the wide variety of market forces that would impact the possible development of new demand from the plaintiff's entrance into the market with two livery vehicles.   The evidence presented at the administrative hearing regarding the potential creation of such “new demand,” even if credited by the hearing officer, does not constitute substantial evidence to satisfy the “public convenience and necessity” standard under the definition discussed above.

The hearing officer reasonably concluded that the remaining evidence did not demonstrate the requisite level of “necessity.”   The hearing officer stated:  “The applicant did present the testimony of several witnesses.   Many of the applicant's witnesses are clients of his other business or friends.   While it is certainly clear that the applicant is well liked, the testimony of these witnesses falls short of proving need and necessity.   Few of the witnesses had any real need for a livery service;  in fact, taxicab service could have taken care of most of their needs and been far less expensive.   Most of these individuals had not called other livery services and had little experience with getting livery service in the Meriden area and therefore their lack of experience shed little light onto the livery situation.”   In addition, the hearing officer found that the testimony of one witness regarding interstate livery service was “irrelevant to a determination as to whether there is a need for the applicant's intrastate livery service.”

The record adequately supports the hearing officer's conclusion that the evidence presented by the plaintiff “[fell] short of providing need and necessity.”   Antonio Capasso, an acquaintance of the plaintiff and an operator of a construction company, testified that having some form of transportation service for his employees to job sites would improve convenience for his workers, and would be a “viable option.”   Record, 196, 198.   Likewise, Daniel Reardon, also an acquaintance of the plaintiff and an owner of a car selling business, testified that an affordable mode of transportation service for his customers to his business would improve “convenience.”   Record, 119.   Similarly, Jason Caligiore, a business partner of the plaintiff's, testified that the plaintiff's proposed services would be a “nice option” and “secondary option” for himself and his employees, akin to a “fringe benefit,” and agreed that the services would be “a convenience.”   Record, 184, 187, 188.   Even if these witnesses were fully credited by the hearing officer, they did not demonstrate any immediate or reasonably foreseeable need for the plaintiff's proposed services.

Moreover, the record supports the hearing officer's conclusion that the witnesses' transportation needs could have been met by other existing services.   None of these witnesses testified that no other transportation service, such as a taxi service or other livery company, could adequately serve their purposes and needs.   For instance, during the questioning of Capasso, the plaintiff himself referred to his service as a “van shuttle service,” and Capasso likewise referred to the service as a “worker shuttle.”   Record, 195, 199.   Because the purpose for this type of service tends to deviate from what one ordinarily considers to be the purpose of a limousine service, it is reasonably to conclude that such a purpose could be served by ordinary taxi service.

Two witnesses, Dimaz Ortiz and Antonio Garofolo, did indeed provide testimony specific to livery service, but the hearing officer reasonably could have concluded that their testimony did not demonstrate necessity.   Garofolo focused on difficulties in obtaining affordable livery service during the busy prom season.   Record, 49–51.   To the extent that the plaintiff argues that a “need” or “demand” may exist during such seasonal events, the plaintiff could have conceivably taken advantage of 13b–103(a)(2)(A), as the trial court in Rudy's observed in response to a similar argument.⁹  Ortiz testified as to several problems he and his family encountered with a livery service provided by a company in New York. Record, 124–29.   Given the “interstate” nature of the service, the department's finding that such evidence was irrelevant was not arbitrary or capricious.   Finally, the plaintiff's witnesses did not testify that they attempted to fulfill their need for livery services by securing transportation through other available companies in the area and were unsuccessful in doing so.

In light of the definition of “necessity” as a need that is an actual need or a need that will likely occur within the immediate or reasonably foreseeable future, the hearing officer reasonably concluded that the evidence presented did not demonstrate the requisite “public convenience and necessity.”   Rather, the evidence reasonably supported a conclusion that the availability of the plaintiff's proposed services would be merely beneficial and primarily a matter of convenience, thereby satisfying only half of the “public convenience and necessity” requirement.   Accordingly, the department's decision to deny the plaintiff's application is supported by substantial evidence.

The plaintiff also argues that the hearing officer abused her discretion by “ignoring applicant's argument regarding how his significantly lower prices would benefit the general public and therefore increase the public convenience and necessity.”   The plaintiff specifically argues that the hearing officer refused to listen to plaintiff's economics theory, as well as the plaintiffs evidence regarding A Premier's pricing tactics.

As an initial matter, it is worth emphasizing that the hearing officer was not required to accept the plaintiff's testimony as to the economics theory and Premier's pricing tactics.  Goldstar Medical Services, Inc. v. Dept. of Social Services, supra, 288 Conn. 830.   Nonetheless, a review of the record demonstrates that the department did take such evidence into consideration.   First, the decision states:  “The applicant spent a good deal of time attempting to prove the public need ․ by pointing out problems he found with ․ Premier.   While these issues should be referred to Regulatory & Compliance for investigation, they are minor in nature and do nothing to prove a need for the applicant's service.”   Record, 35.   Second, as to the plaintiff's ability to provide lower prices and the general theory of economics, the record establishes that on numerous occasions, the hearing officer took “administrative notice” of such prices.   Record, 151, 160, 186.   For example, while questioning Brian Mund, the operations director of Premier, the plaintiff phrased some of his questions based on a theory of economics.   Despite objection, the hearing officer allowed the plaintiff to present evidence that his proposed services would be lower priced than Premier's services.   Record, 151.   Once the plaintiff established that his rate would be lower than Premier's, the hearing officer took notice of the rate.   Record, 160, 186.   Such notice was also provided for in the decision.   The decision states:  “Administrative notice was taken of the permit and tariff for ․ Premier and the tariff of the applicant.”   Record, 33.   Third, in her analysis, the hearing officer referenced the fact that many of the witnesses were seeking a service that was “far less expensive.”   Record, 35.   Even though the hearing officer proceeded to state that a taxicab could have provided the witnesses with the service they were seeking, the affordability of the service was taken into consideration.   The hearing officer noted in the findings of fact that price was an important factor for some of the witnesses.   Record, 34.   Thus, the plaintiff's argument that the hearing officer abused her discretion by ignoring applicant's argument regarding his significantly lower prices is without merit.

V. CONSTITUTIONALITY OF GENERAL STATUTES § 13b–103

The plaintiff contends that § 13b–103 is unconstitutional because it violates the equal protection and due process clauses of the United States constitution and the Connecticut constitution, as well as the interstate commerce clause of the United States constitution.   The defendant argues in response that the court lacks subject matter jurisdiction to consider the plaintiff's constitutional challenges to the statute in the context of the present UAPA appeal.   The defendant further argues that, even if the plaintiff's constitutional attack is cognizable in this UAPA appeal, the challenge is without merit.

A. Subject Matter Jurisdiction

The court first turns to the question of whether the plaintiff may properly attack the constitutionality of General Statutes § 13b–103 in this administrative appeal.   Based on the analysis below, the court concludes that such claims are cognizable in this case.

Our Supreme Court has instructed that “in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)  State v. Fowlkes, 283 Conn. 735, 739, 930 A.2d 644 (2007).   Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ․ [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction.”  (Footnote omitted;  internal quotation marks omitted.)  Bloomfield v. United Electrical, Radio & Machine Workers of America, Connecticut Independent Police Union, Local 14, 285 Conn. 278, 286, 939 A.2d 561 (2008).

It is well-established that administrative agencies lack the authority to declare that a statute is unconstitutional.  Rayhall v. Akim Co., 263 Conn. 328, 337, 819 A.2d 803 (2003).   Historically, the courts, however, have not been entirely consistent with respect to the question of whether a plaintiff may attack the constitutionality of a statute in a subsequent appeal from the agency's decision on the other issues in the case.   In National Transportation Co. v. Toquet, 123 Conn. 468, 196 A.2d 344 (1937), a plaintiff brought both a declaratory judgment action and an administrative appeal challenging the validity of a municipal zoning regulation.   In ruling in favor of the defendant, the trial court relied in part on the principle that one cannot in an appeal taken under the provisions of a zoning regulation also claim in the same proceeding that the regulation is void.   The Supreme Court disagreed with the trial court's application of this principle, stating:  “The reason upon which that principle is based is that as the appeal itself lies only by virtue of the regulation, to hold that regulation void would destroy the basis of the appeal itself ․ The principle is the same as that which denies to a party who bases an action upon the provisions of a particular statute the right to claim in that action that the statute is invalid.”   (Citations omitted.)  Id., 478.   Although the Supreme Court did not disagree with that principle, it clarified its limited nature, stating:  “We have never held that resort to an appeal authorized by a law or ordinance in itself precludes an attack upon the validity of that law or ordinance in a subsequent independent proceeding.”  (Emphasis added.)  Id.

The Supreme Court highlighted the same distinction in Florentine v. Darien, 142 Conn. 415, 115 A.2d 328 (1955).   In Florentine, the plaintiffs brought an action for an injunction against enforcement of a zoning regulation.   The trial court granted the injunction on the ground that the regulation was unconstitutional.  Id., 417.   On appeal, the Supreme Court reversed, concluding that the plaintiffs could not seek injunctive relief without first seeking a variance.   In the course of its discussion, the Supreme Court stated:  “The plaintiffs raise the question whether by seeking a variance from the board of appeals they would be thereafter foreclosed from challenging the constitutionality of the action of the zoning commission.   In this case the plaintiffs are not attacking the validity of the ordinance as a whole, but only [certain regulations] as applied to their land.   We have said that a party cannot seek the relief provided in an ordinance or statute and later in the same proceeding raise the question of its constitutionality ․ This rule would have no application to an independent proceeding challenging the constitutionality of a zoning regulation or ordinance.”  (Emphasis added;  citations omitted;  footnote omitted.)  Id., 428–29.   Relying on National Transportation Co. v. Toquet, the Florentine court further explained:  “If the plaintiffs are denied relief by the zoning board of appeals, the action of the zoning authorities has then become final and complete.   The plaintiffs are still in a position to appeal from the decision of the zoning board of appeals or to challenge by direct attack in an independent proceeding the constitutionality of the regulation, or indeed, of the entire ordinance or law.   We have never held that resort to an appeal authorized by law or ordinance in itself precludes an attack upon the validity of that law in a subsequent independent proceeding.”  (Internal quotation marks omitted.)   Florentine v. Darien, supra, 142 Conn. 430.

Taken together, then, the Supreme Court's opinions in National Transportation Co. v. Toquet and Florentine v. Darien stood for the propositions that (1) a litigant may not, in the course of a statutory based appeal concerning the actions of a municipality or an agency, challenge the validity of the statute providing the basis for the appeal, and (2) an independent declaratory judgment action challenging the statute nevertheless may be brought subsequently.

More than thirty years later, in Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 552 A.2d 796 (1989), the plaintiffs claimed in an administrative appeal that a town's wetlands regulations were so inadequate as to violate the federal due process clause.  Id., 561.   The Supreme Court stated:  “The ․ issue ․ constitutes the kind of general attack upon land use regulations that we have indicated should be the subject of a declaratory judgment action rather than an appeal from the denial of an application submitted pursuant to those regulations.”  Id., 563.   In support of this observation, the court relied on both National Transportation Co. v. Toquet and Florentine v. Darien.   The court also explained, however, that the rationale for requiring such a claim to be brought in a declaratory judgment action was that “[t]he validity of the regulations is a question in which many property owners, in addition to the plaintiffs, may have an interest, and an opportunity for such persons to intervene should be afforded before any such determination should be made.”  Id.

Again in Bombero v. Planning & Zoning Commission, 218 Conn. 737, 591 A.2d 390 (1991), the Supreme Court, relying on Cioffoletti, required a constitutional challenge to the validity of a local land use regulation to be brought as a declaratory judgment action rather than in an administrative appeal.   In Bombero, the plaintiffs in an administrative appeal made a general attack on the enactment of a regulation on constitutional grounds and combined that attack with nonconstitutional grounds for the regulation's invalidity.  Id., 745.   The Supreme Court acknowledged that “our cases have not always been consistent in requiring a declaratory judgment action as the method by which to challenge the validity of zoning or planning regulations.” ¹⁰  The court did not attempt to reconcile all of the cases;  id., 744;  but merely went on to conclude that the rationale behind the requirement of a declaratory judgment action applied to the plaintiffs' claims.   The court explained:  “The plaintiffs' principal claim in the trial court was that the regulation was unconstitutionally vague.   That claim falls squarely within both the rationale of Cioffoletti, and the additional rationale of requiring an adequate factual predicate for such a claim.   Where, as here, the plaintiffs combine constitutional and unconstitutional attacks on a regulation, it serves judicial economy to require that the nonconstitutional claims of invalidity be presented to the court in the same action as the constitutional claims.   It makes little procedural sense to balkanize the plaintiffs' challenges between a declaratory judgment action and an appeal.   Since the declaratory judgment action can accommodate both the constitutional and nonconstitutional claims, whereas the statutory appeal may not, judicial economy suggests that the declaratory judgment action be the proper vehicle.”  Id., 745.¹¹

More recently, the Supreme Court changed directions and expressly abandoned the Cioffoletti rule in Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 715 A.2d 46 (1998).  Stafford Higgins was a procedurally complex case in which the plaintiff brought, inter alia, a tax appeal pursuant to General Statutes § 12–119, which specifically authorized an action in the Superior Court by the owners of real property that had been improperly taxed in certain ways.¹²  The plaintiff also included a declaratory judgment claim challenging the constitutionality of certain sections of Public Acts 95–283 and 96–218.  Stafford Higgins Industries, Inc. v. Norwalk, supra, 572.   The trial court concluded that it lacked jurisdiction over the constitutional challenges to the statutes.¹³

The Supreme Court disagreed, because the plaintiff was also seeking relief under § 12–119.   The Supreme Court explained:  “Section 12–119 applies to two types of taxpayer challenges to a town's real property assessment or revaluation ․ The second, which the plaintiff invoked here, “consists of claims that assessments are (a) manifestly excessive and (b) ․ could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of the property ․ Under this second category of claim, the plaintiff must establish, in addition to a manifestly excessive valuation, that the assessment is illegal ․ The substantive claims included in the plaintiff's declaratory judgment count—the claims regarding the 1995 and 1996 grand lists, as affecting its property, and regarding the inapplicability and invalidity of P.A. 95–283 and P.A. 96–218 with respect to those two grand lists—were therefore properly raised in the plaintiff's complaint under the § 12–119 count.   The concomitant request for declaratory relief did not diminish the propriety of raising those claims in the nondeclaratory portion of its complaint.   Indeed, we have made clear that a declaratory judgment action must rest on some cause of action that would be cognizable in a nondeclaratory suit ․ Thus, even if we were to assume, without deciding, that the plaintiff was required by [the rules of practice] to give further notice of its additional claims, any lack of proper notice under that section with respect to the declaratory judgment count did not deprive the court of jurisdiction to consider those claims in the context of the plaintiff's nondeclaratory count.   Because the plaintiff was entitled to, and did, raise those claims in its complaint under § 12–119, it was improper for the court to decline to consider them.”  (Citations omitted;  internal quotation marks omitted.)  Stafford Higgins Industries, Inc. v. Norwalk, supra, 245 Conn. 578–79.

The Supreme Court then addressed the effect of the Cioffoletti rule, and whether it applied to the case at hand.   The court stated “We acknowledge that in Cioffoletti ․ we stated that certain general challenges to the legality of legislation in which many persons may have an interest may be brought only through a declaratory judgment action, in order to ensure that notice be provided to all interested parties ․ If the Cioffoletti rule were applied in the present case, it effectively would preclude § 12–119 as a vehicle for the plaintiff's claims regarding the validity of ․ P.A. 95–283 and P.A. 96–218.”  (Citation omitted.)  Stafford Higgins Industries, Inc. v. Norwalk, supra, 245 Conn. 579.   The court then overruled Cioffoletti, stating that the rule in that case was “ill-conceived.”  Id.

The court based its conclusion on the following three reasons.   First, the court held there was little support for the Cioffoletti rule in the case law.   In arriving at this conclusion, the Supreme Court distinguished the three cases cited in Cioffoletti, which are also briefly discussed above:  National Transportation Co. v. Toquet, supra, 123 Conn. 478, Florentine v. Darien, supra, 142 Conn. 428–30, and Russo v. Watertown, supra, 184 Conn. 33–35.¹⁴

Second, the Supreme Court in Stafford Higgins noted that courts previously have allowed such constitutional challenges through actions other than declaratory judgment actions.   The court relied on Bombero v. Planning & Zoning Commission, supra, 218 Conn. 745, and explained:  “In addition, as we acknowledged in Bombero, many of our decisions have allowed plaintiffs to pursue challenges to the validity of municipal or agency regulations or other legislation through actions other than declaratory judgment actions, including through statutory appeals ․ As we acknowledged in Bombero ․ these decisions are difficult to reconcile with the Cioffoletti rule.   Especially in conjunction with our cases indicating that a declaratory judgment action is inappropriate when a plaintiff has available another speedy remedy that would be as effective, convenient, appropriate and complete as a declaratory judgment action ․” (Citations omitted.)  Stafford Higgins Industries, Inc. v. Norwalk, supra, 245 Conn. 580–81.

Third, the Supreme Court in Stafford Higgins concluded that the concern for third-party interests did not outweigh the legislature's decision to authorize statutory appeals as an avenue for relief.  Stafford Higgins Industries, Inc. v. Norwalk, supra, 245 Conn. 579–82.   In this regard, the court stated:  “Finally, in our view, the concern for third-party interests in the challenged legislation, the protection of which constitutes the rationale for the Cioffoletti rule, is outweighed by the importance of honoring the legislature's grant of statutory avenues of appeal with regard to municipal or agency legislation.”  Stafford Higgins Industries, Inc. v. Norwalk, supra, 245 Conn. 581.

Stafford Higgins was subsequently reaffirmed by Rayhall v. Akim Co., 263 Conn. 328, 819 A.2d 803 (2003), in which the Supreme Court held that, even though the workers' compensation board lacked jurisdiction to consider constitutional attacks on a statute, a reviewing court nonetheless had such jurisdiction.  Id., 337–41.   Rayhall involved a workers' compensation appeal under General Statutes § 31–301b.   Following the same approach it had taken in Stafford Higgins, the court in Rayhall referred to the statutory language that provides for workers' compensation appeals and reasoned that “[t]he plaintiff appeals to this court pursuant to General Statutes § 31–301b, which provides that ‘[a]ny party aggrieved by the decision of the Compensation Review Board upon any question or questions of law arising in the proceedings may appeal the decision of the Compensation Review Board to the Appellate Court.’  ․ The statute does not further delineate the meaning of ‘arising in the proceedings' and there is no legislative history relevant to that issue ․ [A] question of law ‘arising’ in a board proceeding would comprise not only those issues expressly decided by the board on the basis of its jurisdiction, but also those issues that present themselves in the proceeding or become operative as a result of the board's decision ․

“Therefore, we conclude that § 31–301b provides a jurisdictional basis for our consideration of the plaintiff's constitutional challenge [to the validity of a statute], despite the board's lack of jurisdiction to consider the matter.”  (Citations omitted;  emphasis in original;  footnote omitted.)   Rayhall v. Akim Co., supra, 263 Conn. 328.

As seen in both Stafford Higgins and Rayhall, the Cioffoletti rule, to the extent that it required that a plaintiff must, in every instance, bring constitutional challenges in an independent declaratory action, is no longer controlling.   In reaching this conclusion, both Stafford Higgins and Rayhall partly relied on the particular statutory language under which the appeal in that case arose, and held that the text of those statutes authorized the court to consider the plaintiff's constitutional challenge to a statute in the administrative appeal (rather than in a separate declaratory judgment action).

Shortly after Rayhall was decided, the Appellate Court in Rudy's Limousine Service, Inc. v. Dept. of Transportation, supra, 78 Conn.App. 80, addressed whether the plaintiff could raise a facial constitutional challenge to § 13b–103 in an administrative appeal under the UAPA. Specifically, the plaintiff claimed that § 13b–103(b) was an unconstitutional delegation of power because the statute did not contain a clear legislative principal to guide the department in addressing applications for intrastate livery vehicle permits.   In deciding that the plaintiff was permitted to bring such a challenge in an administrative appeal rather than an independent declaratory judgment action, the court first summarized the UAPA's language in General Statutes § 4–183(j), but did not analyze that language in any detail.   The Appellate Court noted that it had not found, nor had the parties cited, any cases under the UAPA that directly address whether a party may raise challenges to a statute's constitutionality in an administrative appeal.  Id., 86.

The Appellate Court in Rudy's then proceeded to analyze the Supreme Court's reasoning in Stafford Higgins Industries, Inc. v. Norwalk, supra, 245 Conn. 551, and Rayhall v. Akim Co., supra, 263 Conn. 328.   The court acknowledged that “unlike Stafford Higgins Industries, Inc., the present case involves an administrative appeal under § 4–183(j) rather than a statutory appeal under § 12–119.   Similarly, this case is not an appeal from the workers' compensation review board.   We have, however, relied on cases arising in the context of appeals from other kinds of boards to decide the proper scope of UAPA appeals.”  Rudy's Limousine Service, Inc. v. Dept. of Transportation, supra, 78 Conn.App. 88.   Despite the fact that neither Stafford Higgins Industries nor Rayhall involved UAPA appeals, the court in Rudy's found those cases to “strongly suggest that our older cases denying a litigant the opportunity to raise a facial constitutional challenge to a statute under which that litigant sought a benefit are no longer good law.”  Rudy's Limousine Service, Inc. v. Dept. of Transportation, supra, 88.

Turning back to the present case, the defendant argues that Rudy's should not be followed by this court because the Supreme Court's decision in Fullerton v. Administrator, Unemployment Compensation Act, 280 Conn. 745, 911 A.2d 736 (2006), which involved an unemployment compensation appeals, “undermines some of the logic in the Appellate Court's analysis” in Rudy's.   In Fullerton, the court found that, unlike the workers' compensation statutory scheme involved in Rayhall, the unemployment compensation appeal scheme did not include any statutory language authorizing a constitutional attack on a statute.  Id., 759–60.   Because there was no statutory language authorizing a court on appeal to hear a constitutional challenge to a statute, the Supreme Court concluded that the trial court lacked subject matter jurisdiction over such claims in the context of an unemployment compensation appeal.  Id., 760.

Accordingly, the defendant here argues that the Rudy's court's reliance on Rayhall is no longer valid because Fullerton limited Rayhall to appeals brought under the workers' compensation statutes.   This court however, does not read Fullerton so broadly.  Fullerton distinguished Rayhall, based on differences in the specific statutory language involved in the two cases;  Fullerton did not reverse Rayhall.   The imperative distinction to be made in the cases cited above is that each involved an administrative appeal pursuant to differing statutory schemes.   Correspondingly, the court in each case looked to the relevant statutory scheme in determining whether constitutional challenges may be brought in the context of an administrative appeal.   Because neither Rayhall nor Fullerton particularly addressed whether such challenges may be brought under the UAPA, neither is directly on point in this matter.

Rudy's, however, does directly hold that a constitutional attack on a statute may be brought in a UAPA appeal, and therefore the decision is still controlling on this court.   Even if it were not controlling, this court must still find that it has subject matter jurisdiction over the plaintiff's constitutional attack on the statute because a review of the specific statutory language in the UAPA strongly indicates the legislature intended to authorize a court to consider constitutional challenges to the validity of a statute in a UAPA appeal.

Section 4–183(j) of the UAPA, provides in relevant part:  “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 ․ If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings ․” (Emphasis added.)   The statutory phrase emphasized above is broadly drawn and authorizes a court to decide whether the agency's decision violates a constitutional provision.   As a matter of logic, if a particular agency decision is dictated by the terms of a statute and that statute is unconstitutional, then the court's only avenue to remedy the fact that the agency decision is “in violation of” a constitutional provision, is to declare the statute unconstitutional.   Accordingly, this court concludes that the phrases “in violation of constitutional or statutory provisions” and “affected by other error of law,” construed collectively, constitute legislative authorization for a plaintiff to bring constitutional challenges to statutes as part of an administrative appeal under the UAPA. Accordingly, this court concludes that it has subject matter jurisdiction over the plaintiff's constitutional challenges to § 13b–103.

B. Equal Protection Clause

The court next turns to the merits of the plaintiff's constitutional attacks ¹⁵ on the validity of § 13b–103.   With respect to a statutory challenge on constitutional grounds, “[a] validly enacted statute carries with it a strong presumption of constitutionality, [and] those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt ․ The court will indulge in every presumption in favor of the statute's constitutionality ․ Therefore, [w]hen a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear.”  (Internal quotation marks omitted.)  Pham v. Starkowski, 300 Conn. 412, 429–30, 16 A.3d 635 (2011).   In other words, the court “will search for an effective and constitutional construction that reasonably accords with the legislature's underlying intent.”  (Internal quotation marks omitted.)  Bozrah v. Chmurynski, 303 Conn. 676, 685 n.5, 36 A.3d 210 (2012).

In regard to the equal protection clause, the plaintiff contends that the statute is unconstitutional because the statute discriminates in favor of protecting established companies with existing permits, and against companies seeking to enter the industry for the first time.   Specifically, the plaintiff argues that those applicants with existing livery permits may apply for two additional livery permits each year without having to satisfy the requirement of proving “public convenience and necessity” at a hearing.   The defendant responds that there is no unequal treatment, because existing permit holders were required to go through exactly the same procedures as the plaintiff to obtain their initial permits.   The defendant further argues that the legislature has effectively imposed a “public convenience and necessity” requirement on existing permittees by assuming that they would apply to acquire two additional vehicle permits only if their existing permits are inadequate to meet current demand.

The fourteenth amendment of the United States Constitution provides that no state shall “deny to any person ․ the equal protection of the laws.”   U.S. Const., amend.   XIV. “[T]he concept of equal protection [under both the state and federal constitutions] has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged ․ Conversely, the equal protection clause places no restrictions on the state's authority to treat dissimilar persons in a dissimilar manner ․ Thus, [t]o implicate the equal protection [clause] ․ it is necessary that the state statute ․ in question, either on its face or in practice, treat persons standing in the same relation to it differently ․ [Accordingly], the analytical predicate [of an equal protection claim] is a determination of who are the persons [purporting to be] similarly situated ․ The similarly situated inquiry focuses on whether the [plaintiff is] similarly situated to another group for purposes of the challenged government action ․ Thus, [t]his initial inquiry is not whether persons are similarly situated for all purposes, but whether they are similarly situated for purposes of the law challenged.”  (Citations omitted;  internal quotation marks omitted.)   Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 157–58, 957 A.2d 407 (2008).

“When a statute is challenged on equal protection grounds ․ the reviewing court must first determine the standard by which the challenged statute's constitutional validity will be determined.   If, in distinguishing between classes, the statute either intrudes on the exercise of a fundamental right or burdens a suspect class of persons, the court will apply a strict scrutiny standard [under which] the state must demonstrate that the challenged statute is necessary to the achievement of a compelling state interest ․ If the statute does not touch upon either a fundamental right or a suspect class, its classification need only be rationally related to some legitimate government purpose in order to withstand an equal protection challenge.”  (Internal quotation marks omitted.)  Contractor's Supply of Waterbury, LLC v. Commissioner of Environmental Protection, 283 Conn. 86, 92–93, 925 A.2d 1071 (2007).

Here, there is no claim that § 13b–103 intrudes on a fundamental right or burdens a suspect class;  accordingly, the statute is subject to a rational basis review.  “In determining whether the challenged classification is rationally related to a legitimate public interest, [courts] are mindful that [t]he test ․ is whether this court can conceive of a rational basis for sustaining the legislation;  we need not have evidence that the legislature actually acted upon that basis ․ Further, the [e]qual [p]rotection [c]lause does not demand for purposes of rational-basis review that a legislature or governing decisionmaker actually articulate at any time the purpose or rationale supporting its classification ․ Rational basis review is satisfied so long as there is a plausible policy reason for the classification ․ [I]t is irrelevant whether the conceivable basis for the challenged distinction actually motivated the legislature ․ To succeed, the party challenging the legislation must negative every conceivable basis which might support it ․” (Citation omitted;  emphasis in original;  internal quotation marks omitted.)   Id., 93.

The plaintiff claims that § 13b–103 discriminates in favor of protecting established companies with existing permits, and discriminates against companies seeking to enter the industry for the first time.   The plaintiff specifically focuses on subsection (a)(4) of § 13b–103, which provides in relevant part:  “Notwithstanding the provisions of subdivision (1) of this subsection, the department shall issue to any person who has an intrastate livery permit for at least one year, upon the application of such person, up to two additional vehicle authorizations each year without a hearing and without written notice of the pendency of the application, if all the existing permits held by such person are registered and in use and if there are no outstanding violations or matters pending adjudication against such person ․”

Based on this statutory language, the plaintiff claims that the statute unconstitutionally discriminates against new applicants because new applicants may be issued a permit only after a “public hearing,” in which the applicant must demonstrate public convenience and necessity, whereas those who are already in possession of permits can automatically obtain two permits per year provided they remain in good standing.   This constitutional challenge cannot be sustained.

The plaintiff's argument is premised on an underlying but false assumption regarding the statute:  that the legislature requires that there be a public need for livery license issued to a new permittee while not requiring a public need for new livery licenses issued to an existing permittee.   This assumption is inaccurate because it conflates the question of how “public need” should be demonstrated with the requirement of public need itself.   In fact, the legislature is being entirely consistent in requiring that there be a public need for any new livery licenses, whether sought by a new applicant or an existing permittee, but simply is willing to assume that an existing permittee would not undertake the burden and expense of obtaining additional licenses if its existing licenses were already adequate to meet the demand for livery services in the permittee's area.   This assumption is entirely rational because existing permittees are uniquely situated to understand current market conditions within the industry.   Presumably, existing permittees would not incur expense of new permits if there was not a sound economic basis to conclude that they would profit from the additional permits.

With respect to new permittees, the legislature is unwilling to make such an assumption because a new applicant does not have the same experience and understanding of current marketplace conditions.   Consequently, the legislature requires the new applicant to establish at a hearing a public need for the services it proposes to render.   For this reason, the plaintiff's assertion that there is no rational basis to require new permittees to demonstrate public need but not require the same showing by existing permittees misses the point.

Once placed in this appropriate perspective, the distinction drawn by the legislature in which it requires new permittees to prove at a hearing “public convenience and necessity” for the services but assumes it where an existing permittee seeks new licenses is entirely rational and therefore constitutional.   Although still requiring that there is a public need for any new livery licenses to be issued, the legislature wished to forgo the governmental expenses of holding public hearings on public need in circumstances where it reasonably can assume that applicants would not seek such licenses if there were no demand for additional services.¹⁶

As stated, rational basis review is satisfied so long as there is a plausible policy reason for the challenged classification.   The court concludes that, contrary to the assertion of the plaintiff, § 13b–103 carries an implicit presumption that “public convenience and necessity” would be served by the issuance of a limited number of additional permits to existing livery permittees where (1) public convenience and necessity were already demonstrated at the hearing on the issuance of the original permits and (2) all of the permittee's existing permits are registered and in use.   Furthermore, the legislature rationally could have concluded that it was prudent to forgo the governmental expenses of holding public hearings under those circumstances.   This, together with the presumption of the statute's constitutionality, compels the court to conclude that the challenged act does not violate the constitutional guarantee of equal protection.

C. Interstate Commerce Clause

The plaintiff also challenges the constitutionality of § 13b–103 on the ground that it violates the interstate commerce clause of the United States Constitution.   Specifically, the plaintiff argues that the statute burdens interstate commerce in its practical effect by disfavoring new startup companies seeking their first permit while favoring established permittees free to obtain additional permits.   This claim is without merit.

The United States Supreme Court recently reiterated:  “Our dormant [c]ommerce [c]lause jurisprudence significantly limits the ability of States and localities to regulate or otherwise burden the flow of interstate commerce ․ It is driven by a concern about economic protectionism—that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors ․ Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978) (The crucial inquiry ․ must be directed to determining whether [the challenged statute] is basically a protectionist measure, or whether it can fairly be viewed as a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental).”  (Citations omitted;  internal quotation marks omitted.)   McBurney v. Young, 133 S.Ct. 1709, 1719–20, 185 L.Ed.2d 758 (2013).

“To determine whether a law violates the dormant commerce clause, the court first asks whether it discriminates on its face against interstate commerce.   In this context, ‘discrimination’ simply means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.”  (Internal quotation marks omitted.)  United Haulers Ass'n, Inc. v. Oneida–Herkimer Solid Waste Management Authority, 550 U.S. 330, 331, 127 S.Ct. 1786, 167 L.Ed.2d 655 (2007).   The court then asks, whether the ordinance imposes a burden on interstate commerce that is “clearly excessive in relation to the putative local benefits.”  Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970).  “[The] dormant [c]ommerce [c]lause cases often finds discrimination when a[s]tate shifts the costs of regulation to other [s]tates, because when the burden of state regulation falls on interests outside the state, it is unlikely to be alleviated by the operation of those political restraints normally exerted when interests within the state are affected.”  (Internal quotation marks omitted.)  United Haulers Ass'n, Inc. v. Oneida–Herkimer Solid Waste Management Authority, supra, 550 U.S. 345.

The plaintiff here presents no factual basis for challenging § 13b–103 as violating the interstate commerce clause.   First, § 13b–103 on its face treats in-state individuals and entities who are seeking livery permits for the first time exactly the same as out-of-state individuals and entities who are seeking livery permits within the state.   See United Haulers Ass'n, Inc. v. Oneida–Herkimer Solid Waste Management Authority, supra, 550 U.S. 342, 127 S.Ct. 1795 (holding that counties' flow control ordinances, which treat in-state private business interests exactly the same as out-of-state ones, did not discriminate against interstate commerce for purposes of the dormant commerce clause).

Second, the plaintiff has not provided any argument as to how § 13b–103 imposes a burden on interests outside of the state.   This failing, coupled with the presumption of the statute's constitutionality, compels the court to find that the challenged act does not violate the interstate commerce clause.

The supplemental authorities cited by the plaintiff subsequent to the hearing are readily distinguishable.   The plaintiff first cites to Medigen of Kentucky, Inc. v. Public Service Commission of West Virginia, 985 F.2d 164 (4th Cir.1993).   In Medigen, the plaintiffs were interstate haulers of infectious medical waste.   The plaintiffs brought the action against the Public Service Commission of West Virginia (commission) seeking to enjoin enforcement of the commission's requirement that collectors, haulers, and transporters of infectious medical waste obtain a certificate of convenience and necessity in order to operate within West Virginia.  Medigen is unlike the present case in that the activities of the plaintiff in Medigen were entirely interstate;  the plaintiff's activities within the state of West Virginia were limited to transporting wastes from within West Virginia to other states.   Id., 165.   In contrast, the present case involves an application to conduct intrastate livery services.

Likewise, In re Nebraska Public Power District, 354 N.W.2d 713 (1984), is also distinguishable.   The statute at issue in that case imposed a public convenience and necessity requirement only on “trans-state transmission facilities,” which were defined as electric transmission lines that originated outside the state of South Dakota, crossed the state of South Dakota, and terminated outside of South Dakota, and that delivered twenty-five percent or less of its capacity for use within the state of South Dakota.  Id., 717.   Thus, the statute specifically targeted interstate facilities and, furthermore, exempted from its requirement those facilities that delivered more than a certain percentage of their capacity within the state.   The statute here does not specifically apply to interstate services, and does not differentiate between livery service depending on how much of their services will be within the state.   Consequently, the plaintiff cannot prevail on its interstate commerce claim.¹⁷

D. Due Process Clause

Lastly, the plaintiff contends that § 13b–103 violates the due process clauses of the federal and state constitutions.   Specifically, the plaintiff argues that “public necessity and convenience” standard in § 13b–103 is so ambiguous that it is void for vagueness.   This claim is without merit.

“A statute [that] forbids or requires conduct in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process ․ Laws must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly ․ A statute is not void for vagueness unless it clearly and unequivocally is unconstitutional, making every presumption in favor of its validity ․ To demonstrate that [a statute] is unconstitutionally vague as applied to [him], the [person challenging the statute] therefore must ․ demonstrate beyond a reasonable doubt that [he] had inadequate notice of what was prohibited or that [he was] the victim of arbitrary and discriminatory enforcement ․ [T]he void for vagueness doctrine embodies two central precepts:  the right to fair warning of the effect of a governing statute ․ and the guarantee against standardless law enforcement ․ If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties ․ References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute's meaning to determine if it gives fair warning.”  (Internal quotation marks omitted.)   State v. Scruggs, 279 Conn. 698, 709–10, 905 A.2d 24 (2006).

In Rudy's Limousine Service, Inc. v. Dept. of Transportation, supra, 78 Conn.App. 80, 826 A.2d 1161, the Appellate Court addressed the constitutionality of § 13b–103, albeit in a slightly different context.   The plaintiff claimed that § 13b–103(b) was unenforceable because it was an unconstitutional delegation of legislative power in violation of the constitution of Connecticut, art.   II and III, § 1. The plaintiff contended that § 13b–103(b) violated constitutional principles of separation of powers because the statute does not provide any primary standards or intelligible principles to guide the department in its consideration of applications.   The plaintiff also argued that the “public convenience and necessity” standard lacked the certainty required to pass constitutional muster.

The Appellate Court disagreed and concluded:  “[T]he criteria set out in § 13b–103(b) are constitutionally sufficient.   The statute directs the department to consider specified factors in its determination of whether to issue livery vehicle permits.   These factors focus on the financial status and operational capabilities of the applicant and the public need for the service proposed by the applicant.   The constitution does not require a statute to stipulate the exact number of livery permits that would meet the public need and an applicant's capacity for livery service.”  Rudy's Limousine Service, Inc. v. Dept. of Transportation, supra, 91.   Specifically in regard to the “public convenience and necessity” standard, the court stated that the standard “permits an applicant to provide relevant factual data in support of a permit application.   The standard in § 13b–103(b) is in the nature of a moving target reflecting changing commercial circumstances.”  Id., 92.

Although the Appellate Court in Rudy's addressed this issue of § 13b–103(b) in the context of delegation, the court finds the Appellate Court's reasoning to be equally applicable to the case at hand.   Even though the plaintiff relies on a legislative staff study that opines that there is a lack of clarity in the definition of “public convenience and necessity,” the plaintiff fails to cite to any relevant authority that undermines directly either the Appellate Court's approach in Rudy's or any other authority, within our jurisdiction or other jurisdictions, that indicates that such a standard is void for vagueness.   The court concludes, consistent with Rudy's, that because of “changing commercial circumstances,” the standard of “public convenience and necessity” is purposely defined in sufficiently broad terms so that it may be appropriately applied on a case by case basis;  narrow and restrictive terms would hinder the flexibility of such a standard and thereby prevent it from reflecting changing commercial circumstances.   All that is required is that the statute be fairly ascertainable.   As previously discussed, subsequent to Rudy's, the court has been able to adequately ascertain and apply the standard.   In doing so, the court has focused on factors such as whether the plaintiff's witnesses had prior experience in using livery services, whether the witnesses' experience related to interstate livery service rather than intrastate livery service, and whether the purpose for which the witnesses sought such service could be fulfilled by other transportation providers.   See Horenian v. Dept. of Transportation, supra, Superior Court, judicial district of New Britain, Docket No. CV–10–6003839–S.

In light of the foregoing, and given the presumption in favor of the statute's validity, the plaintiff has failed to demonstrate beyond a reasonable doubt that he had inadequate notice of what may have constituted “public convenience and necessity,” or that he was the victim of arbitrary and discriminatory enforcement.   Accordingly, § 13b–103(b) is not void for vagueness and does not violate the due process clause.

VI. CONCLUSION

For the reasons set forth above, the court concludes that the department properly denied the plaintiff's application and that § 13b–103(b) is constitutional.   Accordingly, the decision is affirmed.

Judgment shall enter accordingly.

Hon. Eliot D. Prescott

FOOTNOTES

FN1. It is unclear whether the hearing officer was simply summarizing the witness's testimony or actually crediting the substance of the witness's testimony.   As a general rule, a finder of fact should set forth his or her findings as affirmative facts, e.g., “the light was red when the car entered the intersection,” rather than stating that witness X “testified that the light was red when the car entered the intersection.”   The former example makes clear that the finder of fact credited the witness's testimony and affirmatively found that that the light was red when the car entered the intersection, while the latter does not..  FN1. It is unclear whether the hearing officer was simply summarizing the witness's testimony or actually crediting the substance of the witness's testimony.   As a general rule, a finder of fact should set forth his or her findings as affirmative facts, e.g., “the light was red when the car entered the intersection,” rather than stating that witness X “testified that the light was red when the car entered the intersection.”   The former example makes clear that the finder of fact credited the witness's testimony and affirmatively found that that the light was red when the car entered the intersection, while the latter does not.

FN2. Although there a few reported Connecticut cases discussing § 13b–103, neither party asserts that the question presented here has previously received judicial scrutiny or represents a time-tested agency interpretation..  FN2. Although there a few reported Connecticut cases discussing § 13b–103, neither party asserts that the question presented here has previously received judicial scrutiny or represents a time-tested agency interpretation.

FN3. The trial court had also aptly noted that “during the holiday season the plaintiff could conceivably take advantage of § 13b–103(a)(2)(A), which provides that the department may issue a permit for livery service ‘to be used exclusively at funerals, weddings, christenings, processions or celebrations, without holding a hearing and certifying that public convenience and necessity would be improved by the operation of such vehicles.’  “ Rudy's Limousine Service, Inc. v. Dept. of Transportation, supra, Superior Court, Docket No. CV–01–0509165–S..  FN3. The trial court had also aptly noted that “during the holiday season the plaintiff could conceivably take advantage of § 13b–103(a)(2)(A), which provides that the department may issue a permit for livery service ‘to be used exclusively at funerals, weddings, christenings, processions or celebrations, without holding a hearing and certifying that public convenience and necessity would be improved by the operation of such vehicles.’  “ Rudy's Limousine Service, Inc. v. Dept. of Transportation, supra, Superior Court, Docket No. CV–01–0509165–S.

FN4. General Statutes § 16–283 is now codified in Section 13b–389, which provides in relevant part:  “(a) No person shall operate any motor vehicle in the transportation of household goods for hire as a household goods carrier without first having obtained from the Commissioner of Transportation, after hearing, a certificate of public convenience and necessity to so operate ․”.  FN4. General Statutes § 16–283 is now codified in Section 13b–389, which provides in relevant part:  “(a) No person shall operate any motor vehicle in the transportation of household goods for hire as a household goods carrier without first having obtained from the Commissioner of Transportation, after hearing, a certificate of public convenience and necessity to so operate ․”

FN5. After the decision in Rudy's, a trial court considered the issue of whether a plaintiff established an actual “need” for livery services in Horenian v. Dept. of Transportation, Superior Court, judicial district of New Britain, Docket No. CV–10–6003839–S (September 13, 2010, Cohn, J.).   In that case, the department denied the plaintiff's application for livery permits because he failed to meet his burden of proving public convenience and necessity.   The department had found that the witnesses for the applicant either had no experience in using livery services, or had consistently used the plaintiff's taxi service for their respective purposes.   The department found that one of the witnesses, who expressed a need for livery services, was in need only of interstate livery service rather than the intrastate service for which the applicant was seeking approval.   The trial court concluded that the department did not improperly deny the plaintiff's application for a livery permit..  FN5. After the decision in Rudy's, a trial court considered the issue of whether a plaintiff established an actual “need” for livery services in Horenian v. Dept. of Transportation, Superior Court, judicial district of New Britain, Docket No. CV–10–6003839–S (September 13, 2010, Cohn, J.).   In that case, the department denied the plaintiff's application for livery permits because he failed to meet his burden of proving public convenience and necessity.   The department had found that the witnesses for the applicant either had no experience in using livery services, or had consistently used the plaintiff's taxi service for their respective purposes.   The department found that one of the witnesses, who expressed a need for livery services, was in need only of interstate livery service rather than the intrastate service for which the applicant was seeking approval.   The trial court concluded that the department did not improperly deny the plaintiff's application for a livery permit.

FN6. Specific factors to which the Nebraska courts have referred in making a determination as to “need” have been:  1) whether witnesses have had any experience in hiring, utilizing, or obtaining such services, and 2) how the proposed rate compared to all of the neighboring competitors.   For example, in Red Carpet Limousine Service, Inc. v. Yellow Cab Co., 221 Neb. 340, 377 N.W.2d 91 (1985), the plaintiff attempted to prove “need” by offering a lower fee.   The court noted that one of the flaws for this argument was that the plaintiff only compared its fee to one of the neighboring competitors, rather than the other three companies that existed in the area.   In addition to this, the court noted that many of the witnesses of the plaintiff were “personal friends” and had never used or inquired about the existing limousine services.   Furthermore, in response to one of the witnesses who sought a “safe ride,” the court noted that the witness did not testify as to whether existing taxi cab companies could provide transportation that fulfilled this purpose, or that such a purpose required a “luxury” service such as a limousine service.   The court therefore concluded that the plaintiff had failed to meet its burden of proof in showing public convenience and necessity..  FN6. Specific factors to which the Nebraska courts have referred in making a determination as to “need” have been:  1) whether witnesses have had any experience in hiring, utilizing, or obtaining such services, and 2) how the proposed rate compared to all of the neighboring competitors.   For example, in Red Carpet Limousine Service, Inc. v. Yellow Cab Co., 221 Neb. 340, 377 N.W.2d 91 (1985), the plaintiff attempted to prove “need” by offering a lower fee.   The court noted that one of the flaws for this argument was that the plaintiff only compared its fee to one of the neighboring competitors, rather than the other three companies that existed in the area.   In addition to this, the court noted that many of the witnesses of the plaintiff were “personal friends” and had never used or inquired about the existing limousine services.   Furthermore, in response to one of the witnesses who sought a “safe ride,” the court noted that the witness did not testify as to whether existing taxi cab companies could provide transportation that fulfilled this purpose, or that such a purpose required a “luxury” service such as a limousine service.   The court therefore concluded that the plaintiff had failed to meet its burden of proof in showing public convenience and necessity.

FN7. Although Rudy's apparently articulated its construction of “public necessity” to be a need that is urgent and immediate and arising from current conditions, this court concludes that the phrase should be interpreted to include a need that will “likely occur within the immediate or reasonably foreseeable future” because the statutory language itself recognizes the future public need:  “the present or future public convenience and necessity.”  (Emphasis added.).  FN7. Although Rudy's apparently articulated its construction of “public necessity” to be a need that is urgent and immediate and arising from current conditions, this court concludes that the phrase should be interpreted to include a need that will “likely occur within the immediate or reasonably foreseeable future” because the statutory language itself recognizes the future public need:  “the present or future public convenience and necessity.”  (Emphasis added.)

FN8. It is also worth noting, the plaintiff only provided a rate comparison in regard to one of the neighboring competitors, Premier.   The record shows that there are at least three other livery services in the area:  Liberty Limousine, Hunter's Limousine, and Desandre's Livery Service.  (Record, 102–03.)   This is comparable to Red Carpet Limousine Service, Inc. v. Yellow Cab Co., in which the Nebraska court found such evidence as to only one competitor to be insufficient.   See supra, FN.5..  FN8. It is also worth noting, the plaintiff only provided a rate comparison in regard to one of the neighboring competitors, Premier.   The record shows that there are at least three other livery services in the area:  Liberty Limousine, Hunter's Limousine, and Desandre's Livery Service.  (Record, 102–03.)   This is comparable to Red Carpet Limousine Service, Inc. v. Yellow Cab Co., in which the Nebraska court found such evidence as to only one competitor to be insufficient.   See supra, FN.5.

FN9. In addition, to the extent that Garofolo testified that he would refer or recommend customers to the plaintiff's service, such evidence is also insufficient.   See, e.g., Dunnagan v. Ndikom, supra, 139 N.C.App. 254, 533 S.E.2d 499 (2000) (testimony by witness that he would recommend that his daughter use petitioner's services for a long-distance move does not constitute material evidence of a substantial public need)..  FN9. In addition, to the extent that Garofolo testified that he would refer or recommend customers to the plaintiff's service, such evidence is also insufficient.   See, e.g., Dunnagan v. Ndikom, supra, 139 N.C.App. 254, 533 S.E.2d 499 (2000) (testimony by witness that he would recommend that his daughter use petitioner's services for a long-distance move does not constitute material evidence of a substantial public need).

FN10. To illustrate this inconsistency, the court offered the following citations:  “Compare Bottone v. Westport, 209 Conn. 652, 553 A.2d 576 (1989);  Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 523 A.2d 467 (1987);  Aunt Hack Ridge Estates, Inc. v. Planning Commission, 160 Conn. 109, 273 A.2d 880 (1970);  Calve Bros. Co. v. Norwalk, 143 Conn. 609, 124 A.2d 881 (1956);  Gohld Realty Co. v. Hartford, 141 Conn. 135, 104 A.2d 365 (1954);  Cristofaro v. Planning & Zoning Commission, [11 Conn.App. 260, 527 A.2d 255, cert. denied, 204 Conn. 810, 528 A.2d 1156 (1987) ] (declaratory judgment actions), with Carofano v. Bridgeport, 196 Conn. 623, 495 A.2d 1011 (1985) (injunction);  New Milford v. SCA Services of Connecticut, Inc., 174 Conn. 146, 384 A.2d 337 (1974) (injunction);  Sonn v. Planning Commission, 172 Conn. 156, 374 A.2d 159 (1976) (appeal);  Zenga v. Zebrowski, 170 Conn. 55, 364 A.2d 213 (1975) (appeal).”  Bombero v. Planning & Zoning Commission, supra, 218 Conn. 744..  FN10. To illustrate this inconsistency, the court offered the following citations:  “Compare Bottone v. Westport, 209 Conn. 652, 553 A.2d 576 (1989);  Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 523 A.2d 467 (1987);  Aunt Hack Ridge Estates, Inc. v. Planning Commission, 160 Conn. 109, 273 A.2d 880 (1970);  Calve Bros. Co. v. Norwalk, 143 Conn. 609, 124 A.2d 881 (1956);  Gohld Realty Co. v. Hartford, 141 Conn. 135, 104 A.2d 365 (1954);  Cristofaro v. Planning & Zoning Commission, [11 Conn.App. 260, 527 A.2d 255, cert. denied, 204 Conn. 810, 528 A.2d 1156 (1987) ] (declaratory judgment actions), with Carofano v. Bridgeport, 196 Conn. 623, 495 A.2d 1011 (1985) (injunction);  New Milford v. SCA Services of Connecticut, Inc., 174 Conn. 146, 384 A.2d 337 (1974) (injunction);  Sonn v. Planning Commission, 172 Conn. 156, 374 A.2d 159 (1976) (appeal);  Zenga v. Zebrowski, 170 Conn. 55, 364 A.2d 213 (1975) (appeal).”  Bombero v. Planning & Zoning Commission, supra, 218 Conn. 744.

FN11. The Bombero court further emphasized:  “This does not mean, however, that whenever a party wishes to challenge the validity of a local land use regulation, he must do so by a declaratory judgment action.   There are many instances where, because of the procedural posture of the case, he may have no practical choice but to raise his challenge in the context of an appeal.   We hold only that where, as here, the plaintiff mounts a general attack on the legislative enactment of a regulation, primarily based on constitutional vagueness grounds, and combines therewith nonconstitutional grounds for the regulation's invalidity, he must do so by a declaratory judgment action rather than by an appeal from the enactment.”  (Footnote omitted.)  Id..  FN11. The Bombero court further emphasized:  “This does not mean, however, that whenever a party wishes to challenge the validity of a local land use regulation, he must do so by a declaratory judgment action.   There are many instances where, because of the procedural posture of the case, he may have no practical choice but to raise his challenge in the context of an appeal.   We hold only that where, as here, the plaintiff mounts a general attack on the legislative enactment of a regulation, primarily based on constitutional vagueness grounds, and combines therewith nonconstitutional grounds for the regulation's invalidity, he must do so by a declaratory judgment action rather than by an appeal from the enactment.”  (Footnote omitted.)  Id.

FN12. Section 12–119 provides in relevant part:  “When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or that a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof or any lessee thereof whose lease has been recorded as provided in section 47–19 and who is bound under the terms of his lease to pay real property taxes, prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated ․ In all such actions, the Superior Court shall have power to grant such relief upon such terms and in such manner and form as to justice and equity appertains, and costs may be taxed at the discretion of the court.   If such assessment is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes in accordance with the judgment of said court.”.  FN12. Section 12–119 provides in relevant part:  “When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or that a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof or any lessee thereof whose lease has been recorded as provided in section 47–19 and who is bound under the terms of his lease to pay real property taxes, prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated ․ In all such actions, the Superior Court shall have power to grant such relief upon such terms and in such manner and form as to justice and equity appertains, and costs may be taxed at the discretion of the court.   If such assessment is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes in accordance with the judgment of said court.”

FN13. “The trial court concluded that it lacked subject matter jurisdiction to consider the plaintiff's request for a declaratory judgment regarding P.A. 95–283 and P.A. 96–218 because, although notice had been given to all Norwalk taxpayers and to the chief executive officers of the other 168 Connecticut municipalities regarding the plaintiff's challenges to Spec.Sess.P.A. 94–4—who presumably were the ‘interested parties' to whom notice was required to be given pursuant to [the rules of practice]—no such notice had been given to them regarding the subsequent challenges to P.A. 95–283 and P.A. 96–218.   This conclusion was based on the principle, under our declaratory judgment jurisprudence, that the failure to give notice to interested parties under [the rules of practice] deprives the court of jurisdiction to render a declaratory judgment.”   Id., 576..  FN13. “The trial court concluded that it lacked subject matter jurisdiction to consider the plaintiff's request for a declaratory judgment regarding P.A. 95–283 and P.A. 96–218 because, although notice had been given to all Norwalk taxpayers and to the chief executive officers of the other 168 Connecticut municipalities regarding the plaintiff's challenges to Spec.Sess.P.A. 94–4—who presumably were the ‘interested parties' to whom notice was required to be given pursuant to [the rules of practice]—no such notice had been given to them regarding the subsequent challenges to P.A. 95–283 and P.A. 96–218.   This conclusion was based on the principle, under our declaratory judgment jurisprudence, that the failure to give notice to interested parties under [the rules of practice] deprives the court of jurisdiction to render a declaratory judgment.”   Id., 576.

FN14. “In Toquet, which involved both a declaratory judgment action and a substantive appeal challenging the validity of a municipal zoning regulation, we held that, although the declaratory judgment action could not be maintained because of a failure to provide the requisite notice to the other interested property owners, the plaintiff could pursue its claims through its substantive appeal ․ Florentine merely articulated the complementary principles that:  (1) a litigant may not, in the course of a statutory based appeal concerning the actions of a municipality or an agency, challenge the validity of the statute providing the basis for the appeal;  but (2) an independent declaratory judgment action challenging that statute could subsequently be brought ․ Florentine does not, however, suggest that only a declaratory judgment action may be maintained when a party to otherwise proper litigation challenges the validity of legislation that is being applied to the party.   Similarly, Russo contained no suggestion of this requirement.   Rather, in that case, the plaintiff's challenge to the municipal legislation at issue was a declaratory judgment action.   This court's conclusion that the claim could not be maintained because of the plaintiff's failure to provide notice to all interested parties constituted nothing more than an application of the declaratory judgment notice rule.”  (Citations omitted.)  Stafford Higgins Industries, Inc. v. Norwalk, supra, 245 Conn. 579–80..  FN14. “In Toquet, which involved both a declaratory judgment action and a substantive appeal challenging the validity of a municipal zoning regulation, we held that, although the declaratory judgment action could not be maintained because of a failure to provide the requisite notice to the other interested property owners, the plaintiff could pursue its claims through its substantive appeal ․ Florentine merely articulated the complementary principles that:  (1) a litigant may not, in the course of a statutory based appeal concerning the actions of a municipality or an agency, challenge the validity of the statute providing the basis for the appeal;  but (2) an independent declaratory judgment action challenging that statute could subsequently be brought ․ Florentine does not, however, suggest that only a declaratory judgment action may be maintained when a party to otherwise proper litigation challenges the validity of legislation that is being applied to the party.   Similarly, Russo contained no suggestion of this requirement.   Rather, in that case, the plaintiff's challenge to the municipal legislation at issue was a declaratory judgment action.   This court's conclusion that the claim could not be maintained because of the plaintiff's failure to provide notice to all interested parties constituted nothing more than an application of the declaratory judgment notice rule.”  (Citations omitted.)  Stafford Higgins Industries, Inc. v. Norwalk, supra, 245 Conn. 579–80.

FN15. Although the plaintiff cites to both the federal and the state constitutions, he offers no separate analysis of his state constitutional claims.   The court, therefore, limits its review to the federal constitutional claim.   See State v. Reid, 254 Conn. 540, 553 n.6, 757 A.2d 482 (2000)..  FN15. Although the plaintiff cites to both the federal and the state constitutions, he offers no separate analysis of his state constitutional claims.   The court, therefore, limits its review to the federal constitutional claim.   See State v. Reid, 254 Conn. 540, 553 n.6, 757 A.2d 482 (2000).

FN16. In several other jurisdictions, courts have found a plausible reason to provide the benefit of a presumption to those who are already in existence or operation.   This has often been seen in the context of transferring existing certificates of convenience and necessity, as well as “color of right” cases.   See, e.g., Dilts Trucking, Inc. v. Peake, Inc., 197 Neb. 459, 249 N.W.2d 731 (1977);  Preisendorf Transport, Inc. v. Herman Bros., Inc., 169 Neb. 693, 100 N.W.2d 865 (1960);  In re Transport, Inc., 75 S.D. 340, 64 N.W.2d 313 (1954);  Park Brothers Moving Corp. v. S & M Systems Corp., 216 Va. 322, 218 S.E.2d 441 (1975);  Chabut v. Public Service Commission of West Virginia, 179 W.Va. 111, 365 S.E.2d 391 (1987).For example, in West Virginia, the Supreme Court stated that in regard to transfer cases, “[t]he exiting certificate carries with it a legislative declaration and a prima facie presumption that it does serve the public convenience and necessity ․” (Internal quotation marks omitted;  footnote omitted.)  Chabut v. Public Service Commission of West Virginia, supra, 179 W.Va. 113, 365 S.E.2d 393.   The court emphasized that the focus is instead on the ability of the new certificate holder to carry on the business, and therefore, the transferor should be prepared to testify at the hearing as to the nature and extent of his operation that he has been actively operating and that the certificate is not otherwise dormant.   Id., 114.Similarly, the Supreme Court in South Dakota, explained that because the question of public need for motor transportation services was already determined when the original certificate was issued, it was not necessary for Public Utilities Commission to hold a hearing on a proposed transfer of such certificate, and the assumption is warranted that public convenience and necessity requires continuation of the services previously authorized.  In re Transport, Inc., supra, 75 S.D. 344, 64 N.W.2d 315.   Furthermore, in regard to “color of right” cases, in which a carrier applies for a certificate after discovering that an earlier certificate granted to it was void, courts have reasoned that “[s]uccessful operation in the past creates a presumption that public convenience and necessity require a continuance of such operation.”  (Internal quotation marks omitted.)  Dilts Trucking, Inc. v. Peake, Inc., supra, 197 Neb. 470, 249 N.W.2d 738–39;  see also Preisendorf Transport, Inc. v. Herman Bros., Inc., 169 Neb. 693, 709–10, 100 N.W.2d 865, 875 (1960) (“We have in numerous cases granted authority on a finding of public convenience and necessity to continue operations, which have been conducted successfully for some extended period of time, and there is a natural presumption raised in favor of an applicant based on such past successful operation.”   [Internal quotation marks omitted] )..  FN16. In several other jurisdictions, courts have found a plausible reason to provide the benefit of a presumption to those who are already in existence or operation.   This has often been seen in the context of transferring existing certificates of convenience and necessity, as well as “color of right” cases.   See, e.g., Dilts Trucking, Inc. v. Peake, Inc., 197 Neb. 459, 249 N.W.2d 731 (1977);  Preisendorf Transport, Inc. v. Herman Bros., Inc., 169 Neb. 693, 100 N.W.2d 865 (1960);  In re Transport, Inc., 75 S.D. 340, 64 N.W.2d 313 (1954);  Park Brothers Moving Corp. v. S & M Systems Corp., 216 Va. 322, 218 S.E.2d 441 (1975);  Chabut v. Public Service Commission of West Virginia, 179 W.Va. 111, 365 S.E.2d 391 (1987).For example, in West Virginia, the Supreme Court stated that in regard to transfer cases, “[t]he exiting certificate carries with it a legislative declaration and a prima facie presumption that it does serve the public convenience and necessity ․” (Internal quotation marks omitted;  footnote omitted.)  Chabut v. Public Service Commission of West Virginia, supra, 179 W.Va. 113, 365 S.E.2d 393.   The court emphasized that the focus is instead on the ability of the new certificate holder to carry on the business, and therefore, the transferor should be prepared to testify at the hearing as to the nature and extent of his operation that he has been actively operating and that the certificate is not otherwise dormant.   Id., 114.Similarly, the Supreme Court in South Dakota, explained that because the question of public need for motor transportation services was already determined when the original certificate was issued, it was not necessary for Public Utilities Commission to hold a hearing on a proposed transfer of such certificate, and the assumption is warranted that public convenience and necessity requires continuation of the services previously authorized.  In re Transport, Inc., supra, 75 S.D. 344, 64 N.W.2d 315.   Furthermore, in regard to “color of right” cases, in which a carrier applies for a certificate after discovering that an earlier certificate granted to it was void, courts have reasoned that “[s]uccessful operation in the past creates a presumption that public convenience and necessity require a continuance of such operation.”  (Internal quotation marks omitted.)  Dilts Trucking, Inc. v. Peake, Inc., supra, 197 Neb. 470, 249 N.W.2d 738–39;  see also Preisendorf Transport, Inc. v. Herman Bros., Inc., 169 Neb. 693, 709–10, 100 N.W.2d 865, 875 (1960) (“We have in numerous cases granted authority on a finding of public convenience and necessity to continue operations, which have been conducted successfully for some extended period of time, and there is a natural presumption raised in favor of an applicant based on such past successful operation.”   [Internal quotation marks omitted] ).

FN17. The plaintiff cited two additional cases in his post-hearing submission:  Perdue v. Zoning Board of Appeals, 118 Conn. 174, 171 A.2d 26 (1934) and State v. Kievman, 116 Conn. 458, 165 A.2d 601 (1933).   The significance of these cases to the matter at hand is lost upon the court.   Neither of these cases relates to the interstate commerce clause.   Both of these cases are distinguishable because the statutes were found to be unconstitutional for reasons regarding “public use.”.  FN17. The plaintiff cited two additional cases in his post-hearing submission:  Perdue v. Zoning Board of Appeals, 118 Conn. 174, 171 A.2d 26 (1934) and State v. Kievman, 116 Conn. 458, 165 A.2d 601 (1933).   The significance of these cases to the matter at hand is lost upon the court.   Neither of these cases relates to the interstate commerce clause.   Both of these cases are distinguishable because the statutes were found to be unconstitutional for reasons regarding “public use.”

Prescott, Eliot D., J.