Norton v. City of Bath

• Court: Superior Court of Maine
• Decided: February 6, 2014
• Docket: SAGap-13-07
• Status: Unpublished

Opinion

IN If R£ D OCT 2 9 2014

STATE OF MAINE SUPERIOR COURT

Sagadahoc, ss. 2/~/WIL{ DAVID NORTON, VtMH- Sqq--0~-0h -JL} Plaintiff

v. Dod:et No. BATSC-AP-1:3-07

CITY OF BATH,

Defendant

DECISION AND JUDGMENT

Pursuant to M.R. Civ. P. soB, PlaintiffDavid Norton appeals from the decision

of the City of Bath, acting through the Bath Chief ofPolice and the Bath City Manager,

to deny his application for a taxi operator's license. Oral argument was held February

4, 2014, with attomeys Whiting and Therriault presenting argument for Plaintiff and

Defendant respectively.

Based on the entire record, the court denies the appeal for the reasons set forth

in this Decision and Order.

Backgt'olmd

On March 16, 2013 PlaintiffDavid Norton applied to the City ofBath Police

Department for a taxi operator's license. Michael Field, the Chief of Police, denied the

application after reviewing police reports of certain incidents involving Mr. Norton. Mr.

Field determined that several ofMr. Norton's neighbors had complained to the police

about Mr. Norton's bizarre and antagonistic behaviot·. One such complaint asserted

that Mr. Norton had pointed his finger at someone and popped a paper bag to imitate

shooting a gun. Mr. Field applied a provision of the city ordinances ("taxi ordinance"),

which states: "The ChiefofPolice, or his designee, shall be satisfied that the applicant is of sufficient moral character so as not to represent a danger to passengers or the general

public." Bath, Me., Code § 6-4·7 (Sept. S, 2008). Mr. Field concluded, based on the police

reports, that he was not satisfied that Mr. Norton did not represent a danger to

passengers or the general public.

Mr. Norton appealed the decision to the City Manager, William Giroux, and a

hearing was held on May 31, 2013. At the hearing, Mr. Norton explained each of the

incidents in the police reports. Mr. Norton did not recall the incident of him imitating a

gun with his finger and popping a paper bag. (Tr. 43.)1 Ml'. Field also commented that

every time the police responded to complaints involving Mr. Norton, he became angry

and aggressive towards the officers.

Mr. Giroux accepted into evidence a letter from Mr. Norton's psychologist, Dr.

Richard Parl{er, and a letter from another psychologist, Dr. Mitchell Pulver, who

examined Mr. Norton solely for the taxi license application. (Pl.'s Exs. s-5.) Both

doctors opined that. Mr. Norton would not present a danger to passengers or the

general public if he were allowed to operate a taxi. Mr. Giroux did not find the reports

helpful because they did not explain why he had been seeing a psychologist and did not

address any of the problems mentioned in the police reports. (City's Decision, page 2.)

Mr. Giroux also expressed his concern that Mr. Norton stated on his initial application

that his history of mental health problems was limited to one isolated incident in 2003

when Mr. Norton has been in psychotherapy over the last four years. Id.

Finally, Mr. Giroux based his decision on Mr. Norton's own self-assessment that

he is "eccentric," "easily misunderstood," and that he has a temper. Jd. Mr. Giroux found

that Mr. Norton exhibited "a wide swing of emotions and a barely contained anger with

1 The teference is to a verbatim transcript of the appeal hearing convened by the City Manager

that has been made part of the record on appeal. the Police Chief" throughout the hearing. Id. Mr. Giroux found these descriptions and

observations to be consistent with the behavior described in the police reports.

Although Mr. Norton maintained throughout the hearing that he is not violent

and does not pose a threat, Mr. Giroux was concerned about Mr. Norton's "ability to

interact with the public without upsetting and endangering the customer." Id.

Accordingly, he upheld Chief Field's decision in a letter to Mr. Norton on September 18,

2015. Mr. Norton filed this appeal on October 17, 201S.

Analysis

1. Standard ofReview

On review of an SOB appeal, the court "examine[sJ the record before the

administrative agency to determine if the agency exceeded the bounds of its discretion,

committed errors of law, or made findings that are not supported by substantial

evidence contained in the record before the administrative agency." Qui/and, Inc. v. 1f7ells

Sanitary Dist., 2006 ME 115, ~\15, 905 A.2d 806. "A party asserting error in an

administrative agency's findings ot· determinations has the burden of demonstrating

that error." Id. ~ 16.

2. Statutory Construction

Mr. Norton first argues that the City ofBath lacked the authority to enact

Section 5-47 of the City Code. He relies on the hmguage of so-A M.R.S. § S009, which

gives "municipal officers the exclusive authority to enact all traffic ordinances in the

municipality'' subject to certain limitations. so-A M.R.S. § S009(1) (2013). As relevant

here, the statute states:

The municipal officers may regulate or establish a licensing authority which may regulate rates of fare, routes and standing places of vehicles for hire, except where jurisdiction rests with the Public Utilities Commission and may require an owner or operator of a vehicle for hire to carry a liability insurance policy in

3 amount and form satisfactory to the licensing authority as a condition precedent to the granting of a license to operate.

so-A M.R.S. § S009(l)(F). Mr. Norton argues that, because the statute explicitly gives

the municipality these powers, it implicitly denies them the authority to regulate taxi

operators in any manner not covered in this section.

Section SOOl of the Act provides ntles of construction for interpreting a

municipality's authority to enact ordinances:

1. Liberal constt·uction. This section, being necessary for the welfare of the municipalities and their inhabitants, shall be libemlly construed to effect its purposes. 2. Presumption of authority. There is a rebuttable presumption that any ordinance enacted under this section is a valid exercise of a municipality's home rule authority. s. Standard of preemption. The Legislature shall not be held to have implicitly denied any power granted to municipalities under this section unless the municipal ordinance in question would frustrate the purpose of any state law.

30-A M.R.S. § 3001. Thus, the City's ta.xi ordinance must be presumed to be valid and it

should not be deemed preempted unless the ordinance would frustrate state law. Mr.

Norton does not identity any state law that conflicts with the City ofBath's ordinance.

Furthermore, Mr. Norton's argument mistakes the puq)ose behind Section 3009.

That section is intended to reserve certain powers to the municipal officers in a town.

Some towns in Maine enact ordinances through town meetings. See 30-A M.R.S. § .'3002

(providing the procedure to enact ordinances through town meetings). Section 3009 is

not a limitation on the authority of the municipality generally; it allows a town to enact

certain types of ordinances through its municipal officers rather than by means of the

town meeting. 2 Thus, Section 3009 does not prevent the City ofBath from enacting

additional regulations for taxi licenses.

2 This interpretation is supported by the legislative history behind the original enactment of the home-rule statute. L.D. 506, Statement of Fact,§ 16, at 89 (I 13th Legis. 1987)

4 3. The Moral Character Standard

Mr. Norton next argues that the taxi ordinance is unconstitutional because it

gives the Police Chief arbitrary and capricious power to deny taxi licenses. Mr. Norton

recognizes that he has no protected property interest but nevertheless advances his

claim as an equal protection challenge. "If some may and some may not enjoy privileges

provided by the State, the decision to grant or withhold cannot be made in an arbitrary

manner." Pot·tland Pipe Line Corp. v. Envtl.Improvemenf Comm'tt, 307 A.2d 1, 26 (Me.

19'7 3). Mr. Norton contends that, by not providing any standards to judge a person's

"moral character," the ordinance places unbridled discretion in the police chief to issue a

taxi license.

Mr. Norton's argument only focuses on the first half of the ordinance standard,

which in its entirety states: "The Chief of Police, or his designee, shall be satisfied that

the applicant is of sufficient moral character so as not to represent a danger to passengers

or the general public." Bath, Me., Code § 5-4·7 (Sept. 3, 2008) (emphasis added).

Moreover, there are many other professions that require an applicant to

demonstrate good moral character before they can be licensed. See •1 M.R.S. § 806-

A(2)(A) (lawyers); 32 M.R.S. § 9406 (private security guards); 32 M.R.S. § 8105 (private

investigators); 30-A M.RS. § 3812 (innkeepers). The Law Court has specifically upheld

the denial of a victualer's license because the applicant could not demonstrate "good

moral character." Chequimt Co1p. v. 1\!fullen, 193 A.2d 4·32, 4S6-S6 (Me. 1965). Bath's

requirement is linked to the safety ofta."Xi passengers and the general public; it does not

bestow arbitrary and capricious power in the police chief.

5 4. Danger to the Public

At oral argument, Mr. Norton's counsel contended that the "danger to

passengers or the general public" clause in the ordinance means that an applicant cannot

be denied a license unless the person presents a threat of physical harm to passengers or

the public. The record in this case admittedly does not include any evidence that Mr.

Norton has actually assaulted or caused physical harm to anyone, as opposed to

engaging in angry, threatening and intimidating behavior on a variety of occasions.

The court disagrees. The term "danger" in and of itself means threat, dsk or

potential for harm, not actual harm. The ordinance does not say that there must be

evidence of assaultive behavior or· other physical harm. Moreover, given the level of a

taxi driver's interaction with visitors, tourists and members of the public generally, the

City's interpretation of the ordinance, and specifically the term "danget• to passengers or

the general public" to. encompass angry, threatening or intimidating behavior was

reasonable. While Mr. Norton might not actually be violent, passengers could easily

misintetpret his temper and erratic behavior as hostility and feel threatened. A

dangerous situation could arise ifpassengers in Mr. Norton's cab felt threatened by Mr.

Norton.

5. Substantial Evidence

Mr. Norton next argues that the city manager's decision denying him a taxi

license is not supported by substantial evidence in the record. "Substantial evidence

exists when a reasonable mind would rely on that evidence as sufficient support for a

conclusion; the possibility of drawing two inconsistent conclusions does not render the

evidence insubstantial." Adelman v. Town q[Baldwin, 2000 ME 91, -J 12, 750 A.2d677.

6 Mr. Norton argues that there is no evidence in the record that he would endanger

passengers or the public if he were granted a taxi license.

City Manager Giroux based his decision on several different findings. First, he

credited the police chiefs testimony about Mr. Norton's repeated verbal abuse of

various police officers responding to complaints against Mr. Norton. Second, Mr.

Giroux noted the incident where Mr. Norton mimicked a gun and found it troubling

that Mr. Norton did not recall that happening. Third, Mr. Giroux relied on Mr.

Norton's own self-assessment that he has a temper and is easily misunderstood. Mr.

Giroux also found Mr. Norton poorly masl

the hearing.

Mr. Giroux also had a valid basis not to be satisfied with Mr. Norton's

disclosures about his mental health condition. Mr. Norton submitted reports from two

doctors, but Mr. Giroux found the reports unhelpful because they did not address any of

the behavioral concerns already mentioned, nor did they explain why Mr. Norton was in

psychotherapy. Importantly, nothing in the City's decision indicates that Mr. Giroux

or Chief Field viewed Mr. Norton's mental health diagnosis or history as a disqualifying

factor in and of itself Nothing in the ordinance language would allow denial of a tax

permit based on a history of mental illness alone.

The record contains substantial evidence to support Mr. Giroux's decision.

6. Bias

Finally, Mr. Norton argues that both Police Chief Field and City Manager

Giroux were biased against him. A mere allegation ofbias is insufficient to overturn an

administrative decision. See Ryan v. Town qfCamde11, 582 A.2d 973, 975 (Me. 1990)

(denying motion for trial of the facts based on mere allegation ofbias alone). Mr.

7 Norton offers no evidence to support his claim ofbias. There is nothing in the decisions

themselves that reveal any bias from Mr. Field or Mr. Giroux. Accordingly, Mr.

Norton's bias daim is without merit..

Conclusion

Based on the foregoing analysis, the court concludes that the appeal of Plaintiff

David Norton should not granted, and that the City's denial of his application should be

affirmed. It is hereby ORDERED AND ADJUDGED:

1. The appeal ofPlaintiffDavid Norton is denied. The Defendant City's denial

ofPlaintiffs application for a taxi operator license is affirmed.

2. Judgment is hereby awarded to the Defendant City of Bath against Plaintiff

David Norton, together with costs based on the City being the prevailing party.

Pursuant to M.R. Civ. P. '79(a), the clerk is hereby directed to incorporate this

Decision and Judgment by reference in the docket~d. (C Dated Febnmty 6, 201<1< A.M. Horton Justice, Superior Court

8 Date Filed: 10/17/13 Sagadahoc County Docket No. AP-13-07 Action: 80B Appeal

David Norton City of Bath vs. Plaintiffs Attorney Defendant's Attorneys

Stephen C Whiting, Esq Roger R. Therriault, Esq Suite 207 Michael E. Therriault, Esq 75 Pearl Street 48 Front Street Portland, Maine 04101 Bath, Maine 04530

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