Vincent v. Munster

206 So. 3d 1040, 2016 La.App. 4 Cir. 0295, 2016 La. App. LEXIS 2294
CourtLouisiana Court of Appeal
DecidedDecember 14, 2016
DocketNO. 2016-CA-0295
StatusPublished
Cited by1 cases

This text of 206 So. 3d 1040 (Vincent v. Munster) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vincent v. Munster, 206 So. 3d 1040, 2016 La.App. 4 Cir. 0295, 2016 La. App. LEXIS 2294 (La. Ct. App. 2016).

Opinion

Judge Rosemary Ledet

|, This is an administrative proceeding. The plaintiff, Marion Vincent, appeals the trial court’s judgment affirming the revocations her certificate of public necessity and convenience (“CPNC”) and permit to operate a taxicab by the Director of the Department of Safety and Permits (“the Director”). For the reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

After Ms. Vincent began operating under her CPNC and permit, she received multiple notices of violations of the New Orleans City Code (“the City Code”) from the Taxicab and For Hire Vehicles Bureau (“the Bureau”),1 including the following:

• A notice dated October 20, 2014 for violating City Code Section 162-659 (“credit/debit card acceptance machines; alternative systems”);2
|⅞* A notice dated June 1, 2015 for violating City Code Sections 162-659; 162-89 (“possession of valid permit”); 162-446 (“driver’s good conduct”); and 162-380 (“criteria and regulation of inspection standards”). The notice stated that these violations occurred on May 20, 2015 and that a hearing would be held on July 30, 2015;
• A notice dated June 22, 2015 for violating City Code Sections 162-89, 162-446, 162-659, and 162-380. The notice stated that these violations occurred on May 20, 2015 and that a hearing would be held on July 23, 2015; and
[1043]*1043• A notice dated July 30, 2015, for violating City Code Sections 162-89, 162-446, 162-659, and 162-380. The notice stated these violations occurred on May 20, 2015 and that a hearing would be held on August 13, 2015.3

At the August 13, 2015 hearing, three witnesses—Ms. Skinner4 and Ms. Anderson, both investigators for the Bureau, and Ms. Vincent—testified. Ms. Skinner testified that she issued Ms. Vincent a citation in 2014 for violating the credit/debit card machine requirement. Ms. Anderson testified that she issued Ms. Vincent the May 20, 2015 citation for multiple City Code violations. On August 19, 2015, the Bureau revoked Ms. Vincent’s CPNC and permit due to violations of City Code Sections 162-89 (“possession of valid permit”), 162-380 (“criteria and regulation of inspection standards”), and 162-659 (“crediVdebit card acceptance machines; alternative systems”). On September 18, 2015, Ms. Vincent filed a petition for judicial review and for injunctive relief in Orleans Parish Civil District Court (“CDC”). On December 22, 2015, she filed a separate Complaint for Injunction to prohibit the Director from revoking her CPNC and permit.

|sOn January 6, 2016, following a hearing, the trial court denied Ms. Vincent’s injunction. On January 12, 2016, the trial court heard Ms. Vincent’s petition for the judicial review of the administrative adjudication. At the conclusion of the hearing, the trial court affirmed the Director’s decision to revoke her CPNC and permit. The trial court stated that the Director’s “finding was not arbitrary or capricious or characterized by an abuse of discretion or clearly a warranted exercise of its discretion.” The trial court specifically noted that Ms. Vincent testified at the administrative hearing that she “did not use the VeriFone machine, as required, which shows a violation.” Ms. Vincent appealed.

STANDARD OF REVIEW

The Administrative Procedure Act (“APA”) provides for review of an administrative agency’s decision. See La. R.S. 49:964, This court summarized the standard of review under the APA in Clark v. Louisiana State Racing Comm’n, 12-1049, pp. 9-10 (La.App. 4 Cir. 12/12/12), 104 So.3d 820, 826-27, as follows:

A party aggrieved by a final agency decision in an adjudication proceeding is entitled to have that decision reviewed initially by the district court of the parish in which the agency is located. La. R.S. 49:964(A)(1) and (B). The district court acts in the capacity of an intermediate appellate court. A party aggrieved by the district court’s decision is entitled to appeal to the appropriate appellate court as in other civil cases. La. R.S. 49:965. When an appellate court reviews the district court’s judgment, no deference is owed by the appellate court to the district court’s fact findings or legal conclusions, “‘just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. Thus, an appellate court sitting in review of an administrative agency reviews the findings and decision of the administrative agency and not the decision of the district court.’” Bourgeois v. Louisiana State Racing Comm’n, 10-0573, p. 7 (La.App. 4 Cir. [1044]*104411/12/10), 51 So.3d 851, 856 (quoting Smith v. State, Dep’t of Health and Hospitals, 39,368, pp. 4-5 (La.App. 2 Cir. 3/2/05), 895 So.2d 735, 739).
|4The standard of appellate review of an administrative agency’s decision is distinct from and narrower than that which applies to ordinary civil and criminal appeals. Reaux v. Louisiana Bd. of Med. Examiners, 02-0906, p. 3 (La.App. 4 Cir. 5/21/03), 850 So.2d 723, 726. The exclusive grounds upon which an administrative agency’s decision may be reversed or modified on appeal are enumerated in La. R.S. 49:964(G) of the Administrative Procedure Act (“APA”). Armstrong v. Louisiana State Bd. of Medical Examiners, 03-1241, pp. 9-11 (La.App. 4 Cir. 2/18/04), 868 So.2d 830, 837-38.

Id.; see also DMK Acquisitions & Properties, L.L.C. v. City of New Orleans, 13-0405, p. 8 (La.App. 4 Cir. 9/18/13), 124 So.3d 1157, 1163; Johnson v. Strain, 15-0714, p. 4-5 (La.App. 1 Cir. 11/6/15), 183 So.3d 562, 564.

Furthermore, this court has held that “[a] reviewing court should not intervene unless the administrative agencies’ conduct is clearly unreasonable and arbitrary.” Davis v. State Bd. of Certified Pub. Accountants of Louisiana, 13-0514, p. 6 (La.App. 4 Cir. 12/18/13), 131 So.3d 391, 395 (citing Bourgeois, 10-0573 at p. 6, 51 So.3d at 856). “An administrative agency’s proceedings and decisions are presumed to be legitimate and correct, and the burden is on the appellant to demonstrate the grounds for reversal or modification.” Bourgeois, supra (quoting Reaux v. Louisiana Bd. Of Med. Examiners, 02-0906, p. 2 (La.App. 4 Cir. 5/21/03), 850 So.2d 723, 726); see also Vieux Carre Property Owners v. City of New Orleans, 14-0825, p. 7 (La.App. 4 Cir. 4/15/15), — So.3d —, —, 2015 WL 1736870, p. *7 (unpub.), writ denied, 15-1147 (La. 9/18/15), 178 So.3d 149. (“The aggrieved party bears the burden of showing that the BZA [Board of Zoning Adjustments] decision is arbitrary, capricious, or manifestly erroneous in light of substantial evidence in the record. Absent this showing, the reviewing court may not substitute its own judgment for that of the BZA.”) (internal citations omitted).

J^DISCUSSION

On appeal, Ms. Vincent contends that the revocations of her CPNC and permit were not supported by a preponderance of the evidence. She claims that the evidence establishes that she complied with the City Code requirements to the extent possible given that the Bureau attempted to prevent her from remaining in compliance. She further contends that the revocations were excessive punishment and an abuse of discretion.

Although Ms. Vincent raises several issues on appeal,5

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Bluebook (online)
206 So. 3d 1040, 2016 La.App. 4 Cir. 0295, 2016 La. App. LEXIS 2294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vincent-v-munster-lactapp-2016.