USA v. State of Connecticut Department of Transportation et al. (2014)

MEMORANDUM OF DECISION

This is an administrative appeal from the denial of an application by the plaintiff, USA Taxi of Norwalk, Inc., for a certificate of public convenience and necessity to operate twenty motor vehicles in taxicab service in the city of Norwalk (Norwalk).   The plaintiff's principal claims on appeal are that the hearing officer improperly concluded that the plaintiff failed to demonstrate public convenience and necessity for the twenty taxicabs and that the hearing officer who denied the application was biased against the plaintiff.   For the reasons set forth below, the plaintiff cannot prevail on its appeal and the decision of the agency must be affirmed.

I. FACTS AND PROCEDURAL HISTORY

On January 12, 2009, the plaintiff filed an application with the defendant,¹ the Department of Transportation (“DOT”), seeking permission to operate twenty taxicabs for service in Norwalk.   The application was filed pursuant to General Statutes § 13b–97(a), which provides, in relevant part, as follows:  “No person, association, limited liability company or corporation shall operate a taxicab until such ․ corporation has obtained a certificate from the [DOT] certifying that public convenience and necessity require the operation of a taxicab or taxicabs for transportation of passengers, the acceptance or solicitation of which originates within the territory specified in such certificate ․ No such certificate shall be issued unless the [DOT] finds that the ․ corporation is suitable to operate a taxicab service, after giving due consideration to, at a minimum, the following factors:  (1) Any convictions of the applicant under federal, state or local laws relative to safety, motor vehicle or criminal violations;  (2) the number of taxicabs to be operated under the certificate ․;  (3) the adequacy of the applicant's financial resources to operate the taxicab service;  (4) the adequacy of insurance coverage and safety equipment;  and (5) the availability of qualified taxicab operators ․”

The plaintiff has never previously been granted a certificate of need to operate taxicabs in the Norwalk area.   Pursuant to General Statutes § 4–177a(b), three entities that were currently holding certificates of public convenience and necessity and providing taxicab service in Norwalk were permitted by the hearing officer to intervene in the proceeding:  Eveready Norwalk, Inc., Norwalk Yellow Cab, Inc. and Norwalk Taxi, Inc.

The DOT conducted a five-day evidentiary hearing, commencing on April 24, 2012, and concluding on September 20, 2012.   On October 10, 2012, the DOT's hearing officer issued a decision denying the plaintiff's application.   In her decision, the hearing officer concluded that the plaintiff (1) failed to establish public convenience and necessity for the proposed taxicab service, (2) was not suitable to operate the proposed service, and (3) did not have sufficient taxicab drivers to provide the service.

The plaintiff then filed, on October 25, 2012, a timely petition for reconsideration, pursuant to General Statutes § 4–181a.   The hearing officer did not act on the petition for reconsideration and thus, by operation of law, it was denied on November 19, 2012.   See General Statutes § 4–181a(a)(1).

On December 18, 2012, the plaintiff timely appealed the denial of the petition for reconsideration.   The plaintiff is aggrieved by the decision of the DOT denying its application.   The plaintiff, the DOT, Eveready Norwalk and Norwalk Yellow Cab filed briefs in this matter and oral argument on the appeal was conducted on December 11, 2013.   Additional findings of fact are set forth below when necessary to address the claim of the parties.

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 au 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).

III. ANALYSIS

The precise nature of the plaintiff's claims on appeal is somewhat difficult to discern.   The plaintiff's thirty-five-page brief is substantially devoted to a discussion of the facts and procedural history before the agency.   Only nine pages of its briefs, however, are reserved for argument, and that section of the brief contains no legal citations, and is not subdivided in any manner that would suggest the specific legal claims and authorities on which the plaintiff relies.

Based upon the plaintiff's brief and the oral argument conducted in this matter, the court has attempted to distill the plaintiff's claims into the following assertions:  First, the plaintiff argues that the hearing officer improperly concluded that the plaintiff failed to demonstrate the public need for additional taxicabs in Norwalk and that the plaintiff is not suitable for the license.   Second, the plaintiff contends that the decision must be reversed because the hearing officer was biased against it.   The court addresses these claims in turn.

A. Public convenience and necessity

The court first turns to the issue of whether the hearing officer improperly found that the plaintiff failed to demonstrate that the public convenience and necessity requires the issuance of a certificate to operate twenty taxicabs in Norwalk.   The court concludes that the hearing officer's findings, inferences, conclusions, or decisions are not clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.

Before discussing the specific evidence in the record and the hearing officer's detailed findings ² on this issue, it is important to review the meaning of the phrase “public convenience and necessity” found in General Statutes § 13b–97.   The plaintiff's brief is silent on this question.

Although General Statutes § 13b–97 does not define the meaning of what constitutes “public convenience and necessity,” § 13b–96–10(a) of the Regulations of Connecticut State Agencies provide that “[p]ublic convenience and necessity shall include, but is not limited to, showing:  (1) The availability of qualified taxicab operators in the area;  and (2) The number of taxicabs requested is justified given the need.”   No appellate decisions in Connecticut have addressed the meaning of the statutory phrase or the regulations promulgated under it.

In the related context of the livery permits, this court recently interpreted the nearly identical “public convenience and necessity” language contained in General Statutes § 13b–103.   See Martorelli v. Department of Transportation, Superior Court, judicial district of New Britain, Docket No. CV 12 5015721 (Dec. 3, 2013).   In Martorelli, this court concluded, after reviewing the relevant Connecticut case law, including Rudy's Limousine Service, Inc. v. Dept. of Transportation, 78 Conn.App. 80, 826 A.2d 1161 (2003), as well as case law from other jurisdictions, that the statutory phrase in § 13b–103 must be interpreted to require a showing of an “actual need or a need that will likely occur within the immediate or reasonably foreseeable future.”  (Internal quotation marks omitted.)   As noted in Martorelli, “[p]ublic necessity ․ is that urgent, immediate public need arising from existing conditions ․ “ (Emphasis in original;  internal quotation marks omitted;  quoting Wilson Point Property Owners Assn. v. Connecticut Light & Power Co., 145 Conn. 243, 261, 140 A.2d 874 (1958)).   The focus of the inquiry is whether “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.”  (Internal quotation marks omitted.)  Rudy's Limousine Service, Inc. v. Dept. of Transportation, 78 Conn.App. 80, 97.

The plaintiff attempted to establish public convenience and necessity for an additional twenty taxicabs by three related factual and legal avenues.   First, a number of witnesses testified on behalf of the plaintiff that they had attempted to obtain prompt taxicab service in Norwalk on certain occasions but had been unable to do so.   Second, the plaintiff claimed that there was a public need within the Hispanic population in Norwalk for bilingual taxicab service, including dispatchers and drivers.   Third, the plaintiff attempted to demonstrate that the population in Norwalk had increased, and therefore, additional taxicab permits were justified, particularly when compared to the number of permits that have been issued in Stamford.

This court cannot substitute its judgment for the conclusion of the hearing officer that the plaintiff failed to meet its burden to establish the public convenience and necessity for the twenty additional permits.   The hearing officer made the following findings of fact that support her conclusion that the plaintiff had failed to establish a public need for additional taxicab permits in Norwalk.

The DOT has currently authorized 59 taxicabs in Norwalk.   The three companies that have been issued these authorizations, however, are not fully utilizing these permits because of the lack of need.   Norwalk Yellow Cab has authority to operate thirty taxicabs, but only has nineteen registered cabs, and only sixteen of those are in actually service.   Eveready Norwalk has eight permits, but only has seven taxicabs in actual service.   Norwalk Taxi has twenty-one permits.

The hearing officer also credited testimony by certain taxicab dispatchers and drivers from Norwalk who stated that the volume of demand for taxicab service is low, and has actually decreased in recent years.   For example, the hearing officer credited a Norwalk Taxi dispatcher, who testified that its drivers are only handling two to four calls per hour.   A taxicab driver from Eveready Taxi estimated that he is currently handling approximately 25% less calls per day than in 1998.

The hearing officer also credited the testimony of a number of individual consumers who testified that they have had no difficulties in obtaining timely taxicab service in Norwalk.   Some of these consumers use taxicab service on at least a weekly basis.   The hearing officer found that customer wait times are generally fifteen minutes or less.

These findings are supported by underlying testimony, and the hearing officer could have reasonably inferred that the number of taxicab permits already issued for Norwalk has outpaced demand for service.   It is true that certain of the plaintiff's witnesses testified that they have had difficulties obtaining timely taxicab service in Norwalk.   The hearing officer, however, did not credit much of their testimony for a number of reasons.   For example, the hearing officer found that some of the witnesses who testified that they had difficulty obtaining service did not know that there were other taxicab companies in addition to the one entity they called, or simply chose not to use the other companies.   The hearing officer also noted that some of the plaintiff's witnesses used taxicabs quite infrequently, lacked specific knowledge about taxicab service in Norwalk, had a personal or professional relationship with the owner of the plaintiff, or had been unable to get timely service on particularly peak times of demand such as New Year's Eve.

As noted above, determinations regarding the credibility of witnesses are within the exclusive province of the hearing officer.   Based upon the testimony that the hearing officer did credit, her finding that the number of existing permits already issued has outpaced demand for taxicab service in Norwalk is supported by underlying testimony, or at the very least, the record supports her conclusion that the plaintiff had failed to meet its burden of establishing need for the additional twenty permits.³

Contrary to the plaintiff's assertion, the hearing officer also properly rejected the plaintiff's argument that it had demonstrated public convenience and necessity because there is a public need within the Hispanic population in Norwalk for bilingual taxicab service, including dispatchers and drivers.   First, as a matter of law, there is no language in General Statutes § 13b–97 that would suggest that whenever a proposed service would be of benefit to a particular segment of the community, then the DOT is obligated to issue a certificate.   Second, even if the court assumes factually that there is a particular unmet need for Spanish-speaking taxicab drivers and dispatchers, there would be no authority for the DOT to issue a certificate conditioned upon an obligation to hire Spanish-speaking taxicab drivers or dispatchers.

Most importantly, the plaintiff's assertion lacks factual support in the findings of the hearing officer.   Specifically, the hearing officer found that “all of the taxicab companies in Norwalk have bilingual drivers and dispatchers.”   The hearing found that fifteen percent of the drivers who work for Norwalk Taxi speak Spanish, six of Eveready's drivers speak Spanish and both taxicab companies have multiple Spanish-speaking dispatchers.   The hearing officer also noted that the witnesses who asserted that there is an unmet need for Spanish-speaking taxicab drivers were close friends with the owner of the plaintiff, thereby suggesting that she did not credit this testimony.   Accordingly, the plaintiff cannot prevail on its claim that it established public convenience and necessity for a certificate of twenty additional taxicabs in Norwalk because of a public need for such service in the Hispanic community.

Finally, the plaintiff's contention that it demonstrated public convenience and necessity for the additional twenty taxicabs based upon increases in the population of Norwalk is without merit.   At the outset, it is important to note that the court agrees with the plaintiff's basic contention, which the hearing officer appeared to accept as well, that the overall population of a service area is a relevant consideration, among many, in determining the public need for taxicab service.   Indeed, a rural town with 5,000 residents is likely to generate much smaller demand than a municipality with a population of 100,000 residents.

To the extent that the plaintiff argues that the hearing officer improperly excluded evidence regarding the population size and growth in Norwalk, that claim is belied by the record.   The hearing officer admitted into evidence two exhibits that set forth statistical information about the population of Norwalk, including a small increase (1.5%) of residents in Norwalk from April 1, 2000 to July 1, 2006.   Such evidence, while certainly relevant, is not dispositive of the public need determination, particularly given the small size of the population increase and the testimony of witnesses credited by the hearing officer that the need for service was already greater than the number of taxicabs in service.

The hearing officer excluded a portion of Exhibit # 1 that set forth a statistical comparison of the population differences between Stamford and Norwalk and the number of taxicabs in service in each municipality.   The hearing officer, however, did not abuse her discretion in doing so, because a myriad of factors exist, including, but not limited to the availability of public transit and other forms of transportation, that may result in significant differences in the amount of demand for taxicab service in municipalities of similar population size.   Indeed, counsel for the plaintiff conceded as much during the evidentiary hearing at the agency.   Record at p. 1103–04.

Instead, the hearing officer placed the focus of the evidentiary hearing on the public need for additional taxicab service in Norwalk, given the number of taxicabs already in service in Norwalk at the time of the application.   The hearing officer evaluated the evidence presented by the plaintiff and intervenors, made credibility determinations regarding the witnesses, and found that the plaintiff had not met its burden.   This conclusion cannot be characterized as clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.

B. Actual bias

The plaintiff also asserts that the decision of the hearing officer must be reversed as she was biased and prejudiced against it.   Specifically, the plaintiff contends that the hearing officer was biased because the hearing officer:  (1) was seated during the evidentiary hearing next to Vito Bochicchio, a representative for one of the intervenors which opposed the plaintiff's application;  (2) engaged in ex-parte communications with Mr. Bochicchio;  (3) intimidated some of the plaintiff's witnesses;  and (4) made evidentiary rulings that were not in favor of the plaintiff.   This claim is without merit for several reasons.

Before addressing these specific assertions, it is important to emphasize that “[t]he applicable due process standards for disqualification of administrative adjudicators do not rise to the heights of those prescribed for judicial disqualification ․ The mere appearance of bias that might disqualify a judge will not disqualify an [administrative board member] ․ Moreover, there is a presumption that administrative board members acting in an adjudicative capacity are not biased ․ To overcome the presumption, the plaintiff ․ must demonstrate actual bias, rather than mere potential bias, of the board members challenged, unless the circumstances indicate a probability of such bias too high to be constitutionally tolerable ․ The plaintiff has the burden of establishing a disqualifying interest.”  (Internal quotation marks omitted.)  Moraski v. Connecticut Board of Examiners of Embalmers & Funeral Directors, 291 Conn. 242, 262, 967 A.2d 1199 (2009).

The plaintiff has fallen far short of meeting this burden.   First, none of the specific claims of bias were raised before the agency.  “A claim of bias must be raised in a timely manner.   The failure to raise a claim of disqualification with reasonable promptness after learning the ground for such a claim ordinarily constitutes a waiver thereof ․ One court has noted that a challenge to [an adjudicator] for bias and prejudice must be made at the first opportunity after discovery of the facts tending to prove disqualification ․ To hold otherwise would be to allow a litigant to pervert and abuse the right extended to him at the cost to the other party of unnecessary expense and labor and to the public of the unnecessary disruption of the conduct of the courts ․” (Citation omitted;  internal quotation marks omitted.)  Id. Here, all of the alleged facts or instances of bias were known or discoverable by the plaintiff while this case was pending before the agency below.   The plaintiff's failure to raise a claim of bias before the agency and to establish the facts necessary to support it is fatal to its claim on appeal.

Even if the court were to reach the merits of the claim, it must conclude that the plaintiff has fallen far short of establishing actual bias.   First, there are no facts in the record that would allow the court to determine the manner in which the seats in the hearing room were arranged.   Even if the court assumes that Mr. Bochicchio was permitted to sit next to the hearing officer, the plaintiff conceded during oral argument that Bochicchio was allowed to do so to accommodate his hearing disability.   Thus, there is a neutral reason to explain this seating arrangement.

With respect to the plaintiff's claims of improper ex-parte contacts between the hearing officer and Bochicchio, the plaintiff concedes that it has no evidence that these contacts took place at any time other than in the hearing room during breaks in the hearing, or involved the substance of the plaintiff's application.   Indeed, the plaintiff admits that any conversations appeared limited to a casual discussion regarding a vacation.   The plaintiff made no attempt to make any record before the agency as to the substance and frequency of any such conversations.

The plaintiff's allegation that the hearing officer was biased because she argued with the plaintiff's witnesses is also without merit.   This court has reviewed the extensive record in this case and cannot find any instances in which the hearing officer's conduct or colloquies with witnesses involved anything beyond an attempt to constrain their testimony to relevant or material matters or deal with the fact that many of the plaintiff's witnesses had limited English proficiency.   Even if the hearing officer had been impatient with a few of the plaintiff's witnesses, such impatience falls far short of demonstrating actual bias.

Finally, the plaintiff's assertion that the hearing officer was biased against it because she issued evidentiary rulings that were adverse to it is frivolous.   As our Appellate Court has held, the mere fact that an adjudicator makes adverse rulings or findings against a party does not establish bias or demonstrate that the adjudicator had prejudged the facts.  Elf v. Dept. of Public Health, 66 Conn.App. 410, 426–27, 784 A.2d 979 (2001).   Accordingly, the plaintiff has fallen far short of establishing actual bias.

IV. CONCLUSION

Because the plaintiff has failed to demonstrate that the public convenience and necessity requires the additional twenty taxicabs, or that there was actual bias by the hearing officer, it is unnecessary to review the plaintiff's remaining claims that the hearing officer improperly determined that the applicant was not suitable to provide the taxicab service or that it had an insufficient number of drivers for the proposed service.   For the reasons set forth above, the plaintiff cannot prevail in this appeal and the decision of the agency must be affirmed.   Judgment shall enter accordingly.

Hon. Eliot D. Prescott

FOOTNOTES

FN1. Judith Almeida, the DOT's hearing officer, was also named as a defendant in this appeal..  FN1. Judith Almeida, the DOT's hearing officer, was also named as a defendant in this appeal.

FN2. The court notes that the hearing officer engaged in the all-too-frequent, improper practice of setting forth factual findings in a way that can frustrate appellate review.   Specifically, many of her “findings” are at times somewhat ambiguous, because she recites that a witness testified as to certain facts, but then does not explicitly state whether the facts to which the witness testified are found.   For example, in finding of fact # 9, the hearing officer states that Marie Carmen Gody “testified that it's hard for some people in the Hispanic community to communicate with the taxi drivers because they don't speak English.”   It is unclear, however, whether the hearing officer is affirmatively finding that it is hard for some people in the Hispanic community to communicate with taxi drivers or simply whether that is what the witness said.   There appears to be no independent legal relevance to the latter.   Said another way, if a trier of fact in a hypothetical accident case finds that a traffic signal was red at the time the plaintiff entered an intersection, the trier should state in her decision that “the traffic signal was red at the time the plaintiff entered the intersection,” rather than stating that witness X testified that the light was red when the plaintiff entered the intersection.   Nevertheless, because the plaintiff here did not make a motion or argue in this court that the case should be remanded for clarification of these findings, the court construes the findings in the manner that supports upholding the decision of the agency below..  FN2. The court notes that the hearing officer engaged in the all-too-frequent, improper practice of setting forth factual findings in a way that can frustrate appellate review.   Specifically, many of her “findings” are at times somewhat ambiguous, because she recites that a witness testified as to certain facts, but then does not explicitly state whether the facts to which the witness testified are found.   For example, in finding of fact # 9, the hearing officer states that Marie Carmen Gody “testified that it's hard for some people in the Hispanic community to communicate with the taxi drivers because they don't speak English.”   It is unclear, however, whether the hearing officer is affirmatively finding that it is hard for some people in the Hispanic community to communicate with taxi drivers or simply whether that is what the witness said.   There appears to be no independent legal relevance to the latter.   Said another way, if a trier of fact in a hypothetical accident case finds that a traffic signal was red at the time the plaintiff entered an intersection, the trier should state in her decision that “the traffic signal was red at the time the plaintiff entered the intersection,” rather than stating that witness X testified that the light was red when the plaintiff entered the intersection.   Nevertheless, because the plaintiff here did not make a motion or argue in this court that the case should be remanded for clarification of these findings, the court construes the findings in the manner that supports upholding the decision of the agency below.

FN3. The plaintiff does not argue in this appeal that, even if the hearing officer properly found that there was no public need for an additional twenty permits, she was legally obligated to issue a certificate for a smaller number of taxicabs.   Accordingly, any such claim has been waived..  FN3. The plaintiff does not argue in this appeal that, even if the hearing officer properly found that there was no public need for an additional twenty permits, she was legally obligated to issue a certificate for a smaller number of taxicabs.   Accordingly, any such claim has been waived.

Prescott, Eliot D., J.