Martorelli v. Dept. of Transportation ( 2015 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STEVE MARTORELLI v. DEPARTMENT OF
TRANSPORTATION
(SC 19307)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued January 15—officially released April 28, 2015
Michael Feldman, with whom was Steve Martorelli,
self-represented, for the appellant (plaintiff).
Gregory T. D’Auria, solicitor general, with whom
were Charles H. Walsh, assistant attorney general, and,
on the brief, George Jepsen, attorney general, and Jane
R. Rosenberg, assistant attorney general, for the appel-
lee (defendant).
Opinion
ROGERS, C. J. The primary issue that we must resolve
in this appeal is what livery service permit applicants
must demonstrate in order to establish that ‘‘public
convenience and necessity will be improved’’ by the
proposed service pursuant to General Statutes § 13b-
103 (a).1 The plaintiff, Steve Martorelli, appeals from
the judgment of the trial court dismissing his appeal
and affirming the decision of the defendant, the Depart-
ment of Transportation (department), denying his appli-
cation for a livery service permit. On appeal, the plaintiff
claims that the trial court improperly affirmed the
department’s finding that the plaintiff failed to fully
satisfy the statutory requirements for obtaining a permit
because the department improperly interpreted the
‘‘public convenience and necessity’’ provision of § 13b-
103 (a). We agree and, accordingly, reverse the judg-
ment of the trial court in part.
The record sets forth the following undisputed facts
and procedural history relevant to our resolution of
this appeal. On April 5, 2011, the plaintiff submitted an
application to the department for authority to operate
two motor vehicles in a new intrastate livery service
located in Meriden. In the plaintiff’s application, he
declared that he would be the sole proprietor of the
livery service, and would offer livery services by van
and a ‘‘super stretch’’ limousine, both of which had a
capacity of ten passengers. The plaintiff also submitted
a fiscal analysis balance sheet demonstrating his finan-
cial assets, liabilities and capital.
After receiving the plaintiff’s application, the depart-
ment issued notice for a public hearing on the plaintiff’s
application, which it held on June 28, 2012. A represen-
tative of a local limousine service, A Premier Limousine
Services, Inc. (Premier), attended the hearing and was
granted intervenor party status pursuant to General
Statutes § 4-177a.2 The plaintiff called eight witnesses
to testify on his behalf and testified himself as to his
financial ability and suitability, his ability to manage a
livery service, and his proposed plan to offer lower
rates than existing livery services. The plaintiff testified
specifically that his services would be less expensive
than existing livery services in Meriden and would
attract local businesses as customers seeking to trans-
port employees or clients. The department took admin-
istrative notice of the plaintiff’s proposed rates and
Premier’s rates.
Following the hearing, the department concluded
that the plaintiff did not satisfy his burden of proving
the statutory requirement that his livery service would
improve present or future public convenience and
necessity. The department considered general statutory
factors for granting permit applications, including ‘‘the
suitability of the applicant . . . the financial responsi-
bility of the applicant, the ability of the applicant effi-
ciently 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
the statutes and the requirements and regulations of
the department thereunder, in accordance with . . .
§ 13b-103.’’ The department then determined that the
plaintiff had sufficient assets to cover his start-up costs
and was a suitable applicant based upon his business
experience in other business ventures and his clean
criminal record. The department found, however, that
while the plaintiff ‘‘spent a good deal of time attempting
to prove the public need for his livery service by point-
ing out problems he found with [Premier] . . . such
[problems] . . . are minor in nature and do nothing to
prove a need for the [plaintiff’s] service.’’ The depart-
ment concluded that, ‘‘[w]hile it is certainly clear that
the [plaintiff] is well liked, the testimony of [his] wit-
nesses 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 [local] area and therefore their lack of experience
shed little light onto the livery situation.’’ The depart-
ment thereafter denied the plaintiff’s application based
upon his failure to demonstrate that his service would
improve public convenience and necessity as required
by § 13b-103 (a) (1).
The plaintiff appealed from the department’s decision
to the trial court, claiming that the department improp-
erly concluded that he failed to establish that public
convenience and necessity would be improved by his
proposed livery service. He further claimed that § 13b-
103 (a) (4), which allows persons who have already
held an intrastate livery permit for at least one year
to obtain up to two additional vehicle authorizations
without a hearing and without written notice of the
pendency of the application, violates the equal protec-
tion clause of the United States and Connecticut consti-
tutions, the interstate commerce clause of the United
States constitution, and the due process clauses of the
United States and Connecticut constitutions. The trial
court concluded that § 13b-103 was constitutional and
that the department properly determined that the plain-
tiff had failed to demonstrate that public convenience
and necessity would be improved by his livery service,
and, accordingly, the court affirmed the department’s
decision and dismissed the plaintiff’s appeal. This
appeal followed.3
On appeal, the plaintiff claims that the trial court
improperly: (1) affirmed the department’s denial of the
plaintiff’s livery permit application; (2) found that § 13b-
103 (a) (4) did not violate the equal protection clauses
of the United States and Connecticut constitutions; (3)
found that § 13b-103 (a) did not violate the interstate
commerce clause of the United States constitution; and
(4) found that § 13b-103 (a) was not constitutionally
void for vagueness in violation of the due process
clauses of the United States and Connecticut constitu-
tions. We agree with the plaintiff’s first claim but affirm
the trial court’s judgment on the remaining claims.
I
The plaintiff contends that the evidence he presented
of his ability to offer rates lower than those of existing
livery service providers satisfied the public convenience
and necessity requirement of § 13b-103 (a) (1), and that
the department’s conclusion to the contrary was ‘‘unrea-
sonable and arbitrary . . . .’’ He also contends that the
phrase ‘‘public convenience and necessity’’ is undefined
and that the department never explained what facts or
evidence would be sufficient to meet this standard.
Finally, the plaintiff claims that the department improp-
erly relied on the fact that the plaintiff presented no
witnesses who were refused service by existing livery
service providers as the sole factor for finding that he
failed to satisfy the public convenience and necessity
requirement, and that this requirement to show specific,
individualized need is wholly inconsistent with Briggs
Corp. v. Public Utilities Commission, 148 Conn. 678,
682, 174 A.2d 529 (1961), wherein this court interpreted
public convenience and necessity to mean a ‘‘benefit
to the public generally, and . . . upon the whole public
instead of a small part of it . . . .’’
We begin by setting forth the applicable standard of
review. ‘‘Judicial review of [an administrative agency’s]
action is governed by the Uniform Administrative Pro-
cedure Act [General Statutes § 4-166 et seq.] . . . and
the scope of that review is very restricted.’’ (Internal
quotation marks omitted.) Palomba-Bourke v. Commis-
sioner of Social Services, 312 Conn. 196, 202, 92 A.3d
932 (2014) ‘‘Ordinarily, this court affords deference to
the construction of a statute applied by the administra-
tive agency empowered by law to carry out the statute’s
purposes. . . . Cases that present pure questions of
law, however, invoke a broader standard of review than
is ordinarily involved in deciding whether, in light of
the evidence, the agency has acted unreasonably, arbi-
trarily, illegally or in abuse of its discretion.’’ (Internal
quotation marks omitted.) Id., 203. ‘‘[A]n agency’s inter-
pretation of a statute is accorded deference when the
agency’s interpretation has been formally articulated
and applied for an extended period of time, and that
interpretation is reasonable.’’ (Internal quotation marks
omitted.) Longley v. State Employees Retirement Com-
mission, 284 Conn. 149, 164, 931 A.2d 890 (2007).
The department has not formally articulated its inter-
pretation of the phrase ‘‘public convenience and neces-
sity’’ in § 13b-103 (a) (1) and, in fact, department hearing
officers have utilized different standards in prior deci-
sions.4 Accordingly, the department’s interpretation of
§ 13b-103 is not entitled to special deference. See Lon-
gley v. State Employees Retirement Commission,
supra, 284 Conn. 166 (agency interpretation accorded
deference when it is ‘‘both time-tested and reason-
able’’). We therefore apply a de novo standard of review.
Id. ‘‘When construing a statute, [o]ur fundamental objec-
tive 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 § 1-2z5 directs us first to consider the
text of the statute itself and its relationship to other
statutes.’’ (Footnote in original; internal quotation
marks omitted.) Stone-Krete Construction, Inc. v. Eder,
280 Conn. 672, 677, 911 A.2d 300 (2006). ‘‘When a statute
is not plain and unambiguous, we also look for interpre-
tive guidance to the legislative history and circum-
stances surrounding its enactment, to the legislative
policy it was designed to implement, and to its relation-
ship to existing legislation and common law principles
governing the same general subject matter . . . .’’
(Internal quotation marks omitted.) Gilmore v. Pawn
King, Inc., 313 Conn. 535, 543, 98 A.3d 808 (2014). ‘‘We
make every effort to construe a statutory scheme as a
consistent whole.’’ Powers v. Ulichny, 185 Conn. 145,
149, 440 A.2d 885 (1981).
We conclude that the phrase ‘‘public convenience
and necessity’’ is ambiguous in that it does not establish
factors that the department must consider when
determining whether an applicant has established that
the new service will improve public convenience and
necessity. Because the language of § 13b-103 is ambigu-
ous, we may consider its legislative history. The relevant
portion of § 13b-103 (then General Statutes § 16-326)
was enacted in 1959 to address competition that public
service motor vehicle owners faced from livery service
carriers.6 Public Acts 1959, No. 599. In the sparse legisla-
tive history on the provision, Senator John F. Pickett,
Jr., offered that adding the phrase ‘‘public convenience
and necessity’’ was ‘‘designed to assist in some small
way . . . public transportation operators and owners
of this state . . . [in facing] the competition [that] mass
transportation system owners receiv[e] from persons
operating livery services in competition with our bus
lines.’’ 8 S. Proc., Pt. 7, 1959 Sess., p. 3212. The Joint
Standing Committee Hearings on transportation pro-
vided more insight into the legislature’s intent. See
Conn. Joint Standing Committee Hearings, Transporta-
tion, 1959 Sess., pp. 195–96, remarks of Attorney Reubin
Kaminsky. According to Kaminsky, bus and taxi opera-
tors whose livelihood depended upon their employment
in existing public service carrier companies suffered
financial hardship when livery service providers, who
operated their services only periodically or ‘‘merely for
the purpose of making an extra penny or two,’’ attracted
customers away from those companies. Id., p. 196.
Frank T. Healey, Jr., of the Connecticut Motor States
Association, testified that, while public service provid-
ers with regular routes were required to show public
convenience and necessity, ‘‘[a]nyone today can come
. . . even [onto] our very own routes [and] get a livery
permit to pick up people that they contract to or other-
wise, and we lose the passenger.’’ Id., p. 197.
The legislature’s focus was thus on protecting public
service carriers such as public bus companies, who
were required to demonstrate public convenience and
necessity before commencing operations, from compe-
tition by incoming livery service providers who pre-
viously had not been required to demonstrate that their
services would improve or satisfy public convenience
and necessity. The legislative history, however, sheds
little light on the meaning of that phrase.
Accordingly, we consider the meaning of ‘‘public con-
venience and necessity’’ as used in a similar statute
dealing with motor vehicle carrier services. In Briggs
Corp. v. Public Utilities Commission, supra, 148 Conn.
682, this court interpreted the phrase ‘‘public conve-
nience and necessity,’’ as used in General Statutes (1958
Rev.) § 16-2837 governing common carriers, to mean
that ‘‘the benefits to be derived from the operation 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 [Public Utilities Commission’s] action upon
the whole public instead of a small part of it must be
considered.’’8 (Emphasis added.) Although this inter-
pretation is somewhat general, we are able to glean
several points from it. First, while the department’s
action if it were to deny a permit application will benefit
‘‘a few persons in a particular locality’’—namely, the
existing permittees with whom the applicant would
compete if the application were granted—that effect
will not, in and of itself, justify the denial. Instead, the
department’s decision must be based on benefiting the
public generally. Second, because there are few, if any,
services that directly benefit the public as a whole, it
is implicit in Briggs Corp. that the department may
consider the indirect benefits to the public as a whole of
granting a permit application. In other words, because it
is unlikely that any livery service would provide services
directly to a significant portion of the state’s population,
the department may consider the general public inter-
ests that would be indirectly advanced by granting an
application, including the public’s interest in creating
efficient and competitive markets. See, e.g., Atlanta
Greyhound Lines of Virginia, Inc. v. Silver Fox Lines,
204 Va. 360, 362, 131 S.E.2d 284 (1963) (considering
public convenience and necessity to be improved where
permit applicant’s service could be readily available to
local public, applicant’s service was located locally with
equipment readily available, and applicant could meet
needs of those desiring service as described ‘‘more eco-
nomically, conveniently and satisfactorily than can
the objectors’’).
We find persuasive the analysis from other states that
have reached similar conclusions. The Virginia Supreme
Court has recognized that unless the legislature has
‘‘established public policy to the contrary, it must be
presumed that the emergence of a new, innovative com-
petitor will stimulate existing carriers to serve the pub-
lic convenience and necessity more efficiently and more
economically.’’ Blanton’s Package Delivery, Inc. v.
Pony Express Courier Corp. of Virginia, 219 Va. 280,
285, 247 S.E.2d 397 (1978). The court reasoned that
public convenience and necessity required consider-
ation of ‘‘the effect certification of a new carrier will
have upon the public, not the effect it will have upon
existing carriers’’; (emphasis omitted) id.; and that
requiring permit applicants to show that their services
would improve public convenience and necessity by
demonstrating that existing permit holders are unable
or unwilling to serve the public would ‘‘equate the
vested economic interests of certificated carriers with
the necessity and convenience of the public.’’ Id., 286.
The Utah Supreme Court has considered public con-
venience and necessity through the lens of competition
among service providers, reasoning that ‘‘competition
is almost always an affirmative factor in furthering the
public convenience and necessity . . . and . . .
diversion of revenue from existing carriers by additional
competition is not a valid reason by itself to justify a
denial of additional authority.’’ (Internal quotation
marks omitted.) Milne Truck Lines, Inc. v. Public Ser-
vice Commission, 720 P.2d 1373, 1376–77 (Utah 1986).
The court concluded that competition may carry with
it benefits ‘‘such as the potential beneficial effect upon
rates, customer service, the acquisition of equipment
more suitable to customer needs, the efficient use of
equipment, greater responsiveness in meeting future
shipper needs, and greater efficiency in the use of route
structures and interlining arrangements.’’ (Internal quo-
tation marks omitted.) Id., 1376.
Finally, the Arkansas Supreme Court has considered
the convenience and necessity of the public as distin-
guished from that of an individual or any number of
individuals, and has reasoned that necessity does not
require that a service is essential or absolutely indis-
pensable, but only that the service will improve the
existing mode of transportation. Santee v. Brady, 209
Ark. 224, 229, 189 S.W.2d 907 (1945).
Returning to § 13b-103, we find that evidence that is
solely directed at demonstrating that an existing livery
service will be disserved by the granting of a new permit
is not an adequate basis for denial of a permit. Indeed,
§ 13b-103 should be construed to avoid anticompetitive
effects to the greatest extent possible, consistent with
general legislative policy.9 Hartford Bridge Co. v. Union
Ferry Co., 29 Conn. 210, 217 (1860) (‘‘A grant of a
monopoly is odious in the eyes of the law making power,
and therefore should never be inferred in a legislative
grant when not plainly expressed. And it is equally odi-
ous, in modern times, in the eyes of the courts. It is
regarded as an act of improvident legislation.’’ [Internal
quotation marks omitted.]).
On the basis of the foregoing, we conclude that, in
determining whether it should grant an application for
a livery service permit, the department should consider
whether a permit applicant has provided evidence on
whether the service will benefit the relevant class of
users and whether the proposed service is more effi-
cient, more economical, more convenient, more satis-
factory, or different than the services offered by existing
service providers; see Blanton’s Package Delivery, Inc.
v. Pony Express Courier Corp. of Virginia, supra, 219
Va. 285; Atlanta Greyhound Lines of Virginia, Inc. v.
Silver Fox Lines, supra, 204 Va. 362; whether the new
service would create a potentially beneficial effect upon
rates and customer service and whether the acquisition
of equipment would be more suitable to customer
needs; see Milne Truck Lines, Inc. v. Public Service
Commission, supra, 720 P.2d 1376–77; whether the pop-
ulation in the area that the applicant proposes to service
is increasing and whether potential customers have
requested a service like that suggested by the applicant;
see Almeida Bus Lines, Inc. v. Dept. of Public Utilities,
348 Mass. 331, 342–43, 203 N.E.2d 556 (1965); and
whether the proposed service will improve the existing
mode of transportation. See Santee v. Brady, supra,
209 Ark. 229.
With this framework in mind, we turn now to the
present case. It is clear that the department did not
apply the proper standard, instead stating conclusorily
that the plaintiff had failed to present witnesses who
had experienced difficulty obtaining livery services
from other service providers and thus he did not prove
‘‘need and necessity.’’ In affirming the department’s
decision, the trial court also used an improper standard
when it found that the phrase ‘‘public necessity’’ is ‘‘an
actual need or a need that will likely occur within the
immediate or reasonably foreseeable future.’’10 Because
neither the department nor the trial court applied the
proper standard, we reverse the trial court’s judgment
upholding the department’s finding that the plaintiff
failed to establish that his service would improve public
convenience and necessity, and we conclude that this
case must be remanded to the department for a new
hearing at which it should apply the proper standard
as articulated in this opinion.
II
We next address the plaintiff’s argument that § 13b-
103 (a) (4) violates the equal protection clauses of the
United States and Connecticut constitutions. The plain-
tiff contends that the statute unreasonably favors
existing permittees, who may obtain up to two addi-
tional vehicle authorizations without proving ‘‘public
necessity and convenience’’ at a departmental hearing,
and irrationally discriminates against suitable first time
applicants such as the plaintiff. We disagree.
‘‘Article first, § 20, of the constitution of Connecticut,
as amended by articles five and twenty-one of the
amendments, provides: No person shall be denied the
equal protection of the law . . . . As a general matter,
this court has interpreted the state constitution’s equal
protection clause to have a like meaning and [to] impose
similar constitutional limitations as the federal equal
protection clause. . . . To prevail on an equal protec-
tion claim, a plaintiff first must establish that the state
is affording different treatment to similarly situated
groups of individuals.’’ (Citations omitted; internal quo-
tation marks omitted.) Markley v. Dept. of Public Utility
Control, 301 Conn. 56, 68, 23 A.3d 668 (2011) ‘‘Legislative
classifications that are not drawn along suspect lines
and that do not burden fundamental rights are reviewed
under the deferential rational basis standard. . . .
Under rational basis review, the [e]qual [p]rotection
[c]lause is satisfied [as] long as there is a plausible
policy reason for the classification . . . the legislative
facts on which the classification is apparently based
rationally may have been considered to be true by the
governmental decisionmaker . . . and the relation-
ship of the classification to its goal is not so attenuated
as to render the distinction arbitrary or irrational . . . .
Further, [equal protection] does not demand for pur-
poses of rational-basis review that a legislature or gov-
erning decisionmaker actually articulate at any time the
purpose or rationale supporting its classification. . . .
[I]t is irrelevant whether the conceivable basis for the
challenged distinction actually motivated the legisla-
ture. . . . To succeed, the party challenging the legisla-
tion must negative every conceivable basis which might
support it . . . .’’ (Internal quotation marks omitted.)
Id., 69–70.
As we now construe ‘‘public convenience and neces-
sity,’’ a new applicant need only show that the service
meets the standard set forth in part I of this opinion.
Even though an existing permittee can add new vehicles
without applying for a permit, the burden on new appli-
cants is relatively light and the classification is justified
by the need for administrative efficiency. Indeed, the
legislature’s decision to not require existing permittees,
who have already proven suitability and convenience
and necessity, to undergo a hearing is rationally related
to the goal of easing administrative costs. We thus affirm
the trial court’s conclusion that § 13b-103 does not vio-
late the equal protection clauses of the United States
or Connecticut constitutions.
III
The plaintiff’s third claim is that § 13b-103 violates
the dormant commerce clause, or the negative implica-
tions of the commerce clause, of article one, § 8, of the
United States constitution, by creating barriers to livery
service market entry and by protecting existing permit-
tees to the exclusion of new applicants. ‘‘To determine
whether a law violates [the dormant commerce clause],
we first ask whether it discriminates on its face against
interstate commerce. . . . In this context, discrimina-
tion simply means differential treatment of in-state and
out-of-state economic interests that benefits the former
and burdens the latter. . . . Discriminatory laws moti-
vated by simple economic protectionism are subject to
a virtually per se rule of invalidity . . . which can only
be overcome by a showing that . . . [there is] no other
means to advance a legitimate local purpose . . . .’’
(Citations omitted; internal quotation marks omitted.)
United Haulers Assn., Inc. v. Oneida-Herkimer Solid
Waste Management Authority, 550 U.S. 330, 338–39,
127 S. Ct. 1786, 167 L. Ed. 2d 655 (2007).
In the present case, § 13b-103 applies to all in-state
and out-of-state livery service providers. The plaintiff
has offered no evidence of any burden on interstate
commerce, save for one witness’ offering that he might
use the plaintiff’s livery service to travel to out-of-state
job sites, and the department considered that evidence
irrelevant to the plaintiff’s intrastate application. We
thus reject the plaintiff’s claim that the trial court
improperly concluded that § 13b-103 does violate the
interstate commerce clause.
IV
The plaintiff’s final claim is that § 13b-103 violates
the due process clauses of the United States and Con-
necticut constitutions because the ‘‘public convenience
and necessity’’ standard is so ambiguous that it is void
for vagueness. We disagree.
This court previously has recognized that ‘‘[t]he test
of a [statutory standard] is whether the criteria con-
tained in [it] are as reasonably precise as the subject
matter requires and are reasonably adequate and suffi-
cient to guide the [agency] and to enable those affected
to know their rights and obligations.’’ (Internal quota-
tion marks omitted.) Ghent v. Planning Commission,
219 Conn. 511, 517–18, 594 A.2d 5 (1991). ‘‘A statute is
not void for vagueness unless it clearly and unequivo-
cally is unconstitutional, making every presumption in
favor of its validity.’’ (Internal quotation marks omit-
ted.) Frank v. Dept. of Children & Families, 312 Conn.
393, 417, 94 A.3d 588 (2014). ‘‘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 inher-
ent vagueness, for [i]n most English words and phrases
there lurk uncertainties. . . . Moreover, an ambiguous
statute will be saved from unconstitutional vagueness if
the core meaning of the terms at issue may be elucidated
from other sources, including other statutes, published
or unpublished court opinions in this state or from other
jurisdictions, newspaper reports, television programs
or other public information . . . .’’ (Citation omitted;
internal quotation marks omitted.) State v. DeCiccio,
315 Conn. 79, 87–88, 105 A.3d 165 (2014).
We conclude that the phrase ‘‘public convenience
and necessity’’ set forth in § 13b-103 (a) (1), read in
light of the legislative history, related statutes, and
existing case law of Connecticut and sister state courts
on the subject, provides adequate notice of the factors
that the department must consider in determining pub-
lic convenience and necessity. Accordingly, we affirm
the trial court’s conclusion that § 13b-103 does not vio-
late the due process clauses of the United States or
Connecticut constitutions.
The judgment is reversed only with respect to the
dismissal of the plaintiff’s appeal from the department’s
denial of his permit application and the case is
remanded to the trial court with direction to remand
the case to the department for a new hearing consistent
with this opinion; the judgment is affirmed in all
other respects.
In this opinion the other justices concurred.
1
General Statutes § 13b-103 provides in relevant part: ‘‘(a) (1) No person,
association, limited liability company or corporation shall operate a motor
vehicle in livery service until such person, association, limited liability com-
pany or corporation has obtained a permit from the Department of Transpor-
tation, 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. . . . (4) Notwithstanding the
provisions of subdivision (1) of this section, 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 . . . .’’ (Emphasis added.)
2
General Statutes § 4-177a (b) provides: ‘‘The presiding officer may grant
any person status as an intervener in a contested case if that officer finds
that: (1) Such person has submitted a written petition to the agency and
mailed copies to all parties, at least five days before the date of hearing;
and (2) the petition states facts that demonstrate that the petitioner’s partici-
pation is in the interests of justice and will not impair the orderly conduct
of the proceedings.’’
3
The plaintiff appealed to the Appellate Court and we transferred the
appeal to this court pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1.
4
At the plaintiff’s hearing, the department noted only that it would ‘‘rather
have [the plaintiff] and [his] witnesses testify about the need for [the plaintiff]
than to spend a lot of time talking about what [competing, existing permit-
tees] are doing . . . wrong . . . .’’ The department suggested that the plain-
tiff could demonstrate public convenience and necessity by presenting
‘‘witnesses, who have used [existing livery services] and . . . have had a
problem with [those services],’’ but not through criticizing existing permit-
tees’ vehicle conditions and rates, unless ‘‘the witness had a rate issue with
[existing permittees] . . . .’’ The department offered that the plaintiff should
be ‘‘reaching out’’ to businesses in the state to try to determine whether
they might be in need of the plaintiff’s services. The department further
explained that ‘‘[the plaintiff] can prove there’s a need for [the plaintiff’s
services by providing] . . . witnesses that have had difficulty getting ser-
vice,’’ but added that the plaintiff should provide witnesses with ‘‘an actual
trip experience . . . .’’
In prior decisions, the department has determined that livery service
applicants would improve public convenience and necessity and thus
granted applications where, for example: the permit applicant offered no
witnesses to attest to public convenience and necessity; see State of Connect-
icut, Dept. of Transportation, Final Decision on Application of Friendly
Car & Limo Service, LLC (November 3, 2008), available at http://www.ct.gov/
dot/lib/dot/documents/dadminlawunit/0712-n-198-l_friendly_car__limo_
service_llc.pdf (last visited April 16, 2015); neither of the applicant’s wit-
nesses could attest to having trouble obtaining a livery service from existing
service providers or to being unhappy with the services they had received,
and one witness had not attempted to utilize any prior livery service; see
State of Connecticut, Dept. of Transportation, Final Decision on Application
of MJ Limousine Service, LLC (September 11, 2007), available at http://
www.ct.gov/dot/lib/dot/documents/dadminlawunit/0612-n-126-l.pdf (last vis-
ited April 16, 2015); the applicant already held interstate service permits;
see State of Connecticut, Dept. of Transportation, Final Decision on Applica-
tion of A-1 Limousine Service, Inc. (May 1, 2008), available at http://
www.ct.gov/dot/lib/dot/documents/dadminlawunit/0710-n-155-l.pdf (last vis-
ited April 16, 2015); and where the applicant held an interstate permit and
offered one witness who testified that he was a client of the applicant and
would like to use the applicant’s proposed service for intrastate trips. See
State of Connecticut, Dept. of Transportation, Final Decision on Application
of A Limo Company, LLC (May 14, 2008), available at http://www.ct.gov/
dot/lib/dot/documents/dadminlawunit/0712-n-189-l.pdf (last visited April 16,
2015). On the other hand, the department has also denied an application
where the applicant’s witness used a livery service several times per year
and was once unable to obtain service from existing providers. See State
of Connecticut, Dept. of Transportation, Final Decision on Application of
Rose City Livery, LLC (March 13, 2009), available at http://www.ct.gov/dot/
lib/dot/documents/dadminlawunit/0809-n-154-l_rose_city_livery_llc.pdf
(last visited April 16, 2015).
5
General Statutes § 1-2z provides: ‘‘The meaning of a statute shall, in the
first instance, be ascertained from 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.’’
6
General Statutes (1958 Rev.) § 16-1 defines ‘‘ ‘public service motor vehi-
cle’ ’’ to include ‘‘all motor vehicles used for the transportation of passengers
for hire’’; while General Statutes (1958 Rev.) § 16-324 defined ‘‘ ‘motor vehicle
in livery service’ ’’ in part as ‘‘every motor vehicle used for the transportation
of passengers for hire, except any motor bus and any taxicab operated
under a certificate of public convenience and necessity issued by the com-
mission . . . .’’
7
General Statutes (1958 Rev.) § 16-283 provides: ‘‘No person shall operate
any motor vehicle in the transportation of property for hire as a motor
common carrier without first having obtained from the [Public Utilities
Commission], after hearing, a certificate of public convenience and necessity
to so operate.’’
8
The court in Briggs Corp. v. Public Utilities Commission, supra, 148
Conn. 681, distinguished a ‘‘motor common carrier’’ from a ‘‘motor contract
carrier’’: a motor common carrier is required to obtain a certificate of public
convenience and necessity and includes ‘‘any person who operates motor
vehicles . . . [for] transportation of property for hire by the general public’’;
id; while a ‘‘motor contract carrier’’ is defined as ‘‘any person, not a motor
common carrier, who operates vehicles over the highways of this state in
the transportation of property for hire under special and individual con-
tracts.’’ Id. While the livery service permittees are more closely related to
a motor contract carrier because they operate under individual contracts,
livery service permittees must, like motor common carriers, demonstrate
how their service will improve public convenience and necessity. A motor
contract carrier is not required to prove that its proposed operation would
benefit public convenience and necessity, but is subject to a less stringent
burden that its operation is ‘‘not inconsistent with the public interest . . . .’’
Id., 683.
9
We acknowledge that the statute was intended to have some inherent
anticompetitive effect. See 8 S. Proc., supra, p. 3212, remarks of Senator
Pickett. We further recognize that ‘‘[i]t is possible . . . that the competitive
effect upon existing carriers will be so disabling as to disserve the public
interest.’’ (Citations omitted; internal quotation marks omitted.) Blanton’s
Package Delivery, Inc. v. Pony Express Courier Corp. of Virginia, supra,
219 Va. 285. We note, however, that the concern expressed in the legislative
history was addressed to competition between mass transportation services
and livery services as opposed to competition between livery services which
is what is at issue in the present case.
10
The trial court derived this standard from the interpretation of ‘‘public
convenience and necessity’’ in Rudy’s Limousine Service, Inc. v. Dept. of
Transportation, 78 Conn. App. 80, 97, 826 A.2d 1161 (2003). In that case, the
Appellate Court first relied on Briggs Corp. v. Public Utilities Commission,
supra, 148 Conn. 682, to conclude that public necessity is a term that implies
a benefit to the public generally. Rudy’s Limousine Service, Inc. v. Dept.
of Transportation, supra, 97. The Appellate Court went on, however, to cite
as support Wilson Point Property Owners Assn. v. Connecticut Light &
Power Co., 145 Conn. 243, 261, 140 A.2d 874 (1958), wherein the phrase
‘‘ ‘public convenience and necessity’ ’’ was construed as a ‘‘relative’’ term
that referred to an ‘‘ ‘immediate public need . . . .’ ’’ (Emphasis added.)
This court in Wilson Point Property Owners Assn., which involved electricity
generating facilities, drew this language from In re Application of Shelton
Street Railway Co., 69 Conn. 626, 629, 38 A. 362 (1897), in which the court
considered the public necessity for laying out necessary public highways,
a duty charged to municipalities. Id., 630–31; see Wilson Point Property
Owners Assn. v. Connecticut Light & Power Co., supra, 261. We conclude,
however, that the definition of public convenience and necessity as it relates
to services upon which our society relies on a daily basis, e.g., roads and
electricity, does not apply to a limousine service that, as the plaintiff points
out in his reply brief, is a luxury. Unlike the builders of roads, for example,
a livery service demands no public taking of private property, and unlike
electric utilities, is not a product upon which the public would reasonably
be expected to rely on a daily basis. Thus, in the present case, we conclude
that the trial court’s interpretation of the phrase ‘‘public necessity,’’ to the
extent that it is based upon the Appellate Court’s citation in Rudy’s Limou-
sine Service, Inc. v. Dept. of Transportation, supra, 97, to Wilson Point
Property Owners Assn., to be an ‘‘ ‘actual need or a need that will likely occur
within the immediate or reasonably foreseeable future,’ ’’ was misplaced.