CFT Ambulance Service v. State Fire Prevention Commission ( 2016 )


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  •        IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
    CFT AMBULANCE SERVICE ,             :
    A DELAWARE CORPORATION,             :
    :
    Appellant,              :   C.A. No. K16A-02-005 JJC
    :
    v.                   :
    :
    STATE FIRE PREVENTION               :
    COMMISSION,                         :
    :
    Appellee.               :
    OPINION and ORDER
    Submitted: July 28, 2016
    Decided: October 24, 2016
    Kester I.H. Crosse, Esquire, WILLIAMS & CROSSE, Wilmington, Delaware,
    Attorney for Appellant.
    Olivia Patricia Davis, Esquire, DEPARTMENT OF JUSTICE, Wilmington,
    Delaware, Attorney for the Appellee.
    Clark, J.
    I. Introduction
    This appeal arises from the State Fire Prevention Commission’s (hereinafter
    “Commission’s”) decision to decertify Appellant CFT Ambulance Service
    (hereinafter “CFT”). After a hearing where CFT failed to appear, the Commission
    found that CFT had numerous and ongoing violations of the Commission’s
    regulations. As a result of these serious violations, the Commission decertified
    CFT as a licensed non-emergency ambulance provider in the State of Delaware.
    CFT appeals the Commission’s decision to decertify the company. After a review
    of the record and the parties’ submissions, the Court AFFIRMS the decision of the
    Commission.
    II. Procedural and Factual Background
    Since this matter involves an appeal of an administrative agency’s decision,
    the Court is confined to a review of the facts contained in the record, and it is those
    facts that are referenced herein. CFT has been a Delaware licensed non-emergency
    ambulance service provider since 2009. This status requires the company to
    comply with the Commission’s regulations regarding ambulance maintenance and
    equipment requirements.
    Beginning in 2009, CFT failed to comply with those requirements. In
    December 2009, the Commission cited CFT twice for its ambulances having
    equipment that was not in reasonable and working condition. The violations
    continued as the Commission again cited CFT in March 2010 after inspecting five
    of the company’s ambulances. The Commission found these units’ equipment to be
    deficient and to be missing several critical items. In October 2010, the Commission
    conducted another inspection of CFT’s ambulances and found leaking smoke from
    an exhaust pipe affecting the interior of one of its units.
    2
    The violations continued into 2011 and 2012. In April 2011, the
    Commission conducted an inspection and found one ambulance missing a side
    mirror on the driver’s side door and lacking oxygen in the main oxygen tank. In
    May 2011, another CFT unit had to be placed out-of-service for missing equipment
    and other safety violations. When the Commission next inspected CFT in August
    2012, it placed two of the company’s ambulances out of service for a
    malfunctioning air conditioning in one and an overheating engine in the other.
    In June 2013, the Commission placed two more units out-of-service, and in
    January 2014, another ambulance was placed out-of-service when the Commission
    determined equipment was malfunctioning and missing. In August 2014, another
    ambulance had to be taken out-of-service due to issues with the vehicle’s brakes
    and other deficiencies. Over the course of 2014, the Commission removed a total
    of three units from service.
    In addition to these inspections, the Commission received correspondence
    from an employee of CFT complaining of deficiencies and hazards found in its
    ambulances. The employee testified at the hearing regarding the company’s
    management practices. He testified that management exchanged a license plate
    from a certified unit for a non-certified unit, enabling a non-certified ambulance to
    appear to be a unit that had passed inspection. The employee also testified that
    management replaced a broken axle on one ambulance with an axle from a van and
    put a tire on, inside out, making tire pressure testing impossible.
    CFT’s deficiencies next resulted in a customer filing a complaint with the
    Commission in August 2015. The complaint alleged that an ambulance had no
    functioning air conditioning while transporting a patient. Due to this lack of air
    conditioning, the patient’s body temperature became dangerously high,
    necessitating an emergency ambulance. Following this complaint, the Commission
    3
    conducted another inspection of CFT’s ambulances and found several additional
    safety hazards as well as a lack of required equipment.
    Based on documentation of the Commission’s inspection results and the
    testimony at the hearing, the Commission decertified CFT as a licensed non-
    emergency ambulance provider. CFT failed to appear at the hearing due to an error
    on the company’s part and petitioned the Commission for a rehearing. Namely,
    though CFT acknowledges proper service of a hearing notice, it alleges that the
    employee receiving the notice neglected to forward it up the chain of command.
    Accordingly, the hearing proceeded without a representative of CFT. Thereafter,
    upon learning of the Commission’s adverse decision, CFT petitioned for a
    rehearing. The Commission denied the rehearing and issued a final order to
    decertify the company. CFT then appealed the Commission’s decision to this
    Court.
    III. Standard of Review
    The Commission is not one of the agencies itemized in Section 10161(a) of
    Delaware’s Administrative Procedure Act (“APA”).1 Therefore, Subchapter III,
    Case Decisions, of the APA does not apply to the Commission. 2 Instead, a party
    suffering an adverse ruling by the Commission has a right to appeal to the Superior
    Court pursuant to Section 6611(a) of Title 16 of the Delaware Code. However,
    Section 6611(a) of Title 16 does not articulate the appropriate standard of review
    for such an appeal. Nevertheless, even though the statute is not clear regarding the
    standard of review, both parties agree that a substantial evidence and error of law
    1
    
    29 Del. C
    . § 10161(a).
    2
    The inapplicability of the APA in this case includes the standard of review, notice, and other
    case decision related provisions outlined in the APA. 
    29 Del. C
    . §§ 10161(a), (b).
    4
    review is appropriate. In the absence of statutory direction, the Court will therefore
    determine whether the agency’s decision was supported by substantial evidence
    and is free from legal error.3
    Substantial evidence equates to “such relevant evidence as a reasonable
    mind might accept as adequate to support a conclusion.” 4 Substantial evidence is
    “more than a scintilla but less than a preponderance.” 5 On review, “the court is not
    authorized to make its own factual findings, assess credibility of witnesses or
    weigh the evidence.”6 Absent an error of law, the standard of review for a Board’s
    decision is for abuse of discretion. 7 The Commission has abused its discretion only
    when it “acts arbitrarily or capriciously” 8 or when its decision has “exceeded the
    bounds of reason in view of the circumstances.”9
    3
    E.g., Stoltz Mgmt. Co. v. Consumer Affairs Bd., 
    616 A.2d 1205
    (Del. 1992); Maurer v. Council
    on Police Training, 
    2007 WL 625903
    , at *3 (Del. Super. 2007); see also Bon Ayre Land LLC v.
    Bon Ayre Comty. Ass’n, 
    133 A.3d 559
    , at *2 n.11 (Del. 2016) (Table) (explaining that even
    though the statute’s language is unclear regarding the standard of review, the substantial
    evidence standard is appropriately applied).
    4
    Olney v. Cooch, 
    425 A.2d 610
    , 614 (Del. 1981) (quoting Consolo v. Fed. Mar. Comm’n, 
    383 U.S. 607
    , 620 (1966)).
    5
    
    Id. (quoting Cross
    v. Califano, 
    475 F. Supp. 896
    , 898 (D. Fla. 1979)).
    6
    Sokoloff v. Bd. of Med. Practice, 
    2010 WL 5550692
    , at *5 (Del. Super. 2010).
    7
    Digiacomo v. Bd. Of Pub. Educ., 
    507 A.2d 542
    , 546 (Del. 1986).
    8
    PAL of Wilm. v. Grahm, 
    2008 WL 2582986
    , at *4 (Del. Super. 2008).
    9
    Floundiotis v. State, 
    726 A.2d 1196
    , 1202 (Del. 1999).
    5
    IV. Discussion
    A. CFT was afforded constitutional due process protections.
    CFT argues that it was not provided due process protections by the
    Commission. While it received notice of the hearing, CFT argues that because the
    company did not appear at the hearing, it did not have an adequate opportunity to
    be heard. Both parties agree that CFT’s professional license is property protected
    under the Due Process Clause, thereby triggering notice and hearing protections.
    However, the parties disagree regarding whether the Commission satisfied the
    hearing requirement. CFT argues that it did not waive its right to a hearing by
    failing to appear, and because it did not appear, the hearing requirement was not
    satisfied. In contrast, the Commission argues that CFT received proper notice of
    the hearing, and because the Commission held a hearing where CFT was entitled to
    present evidence and argue material facts, it was provided with an opportunity to
    be heard.
    An administrative agency hearing is required to provide due process
    protections to its litigants.10 Due process requires “providing the parties with the
    opportunity to be heard, by presenting testimony or otherwise.” 11 It also “requires
    that the notice inform the party of the time, place, and date of the hearing and the
    subject matter of the proceedings.” 12 CFT did not challenge the sufficiency of the
    notice before the Commission when it requested a rehearing or when it filed its
    Opening Brief on appeal. The Court’s review is limited to the arguments properly
    raised below. Furthermore, for the reasons set forth herein, the Commission
    10
    See Vincent v. E. Shore Mkts., 
    970 A.2d 160
    , 164 (Del. 2009) (noting that the Industrial
    Accident Board is governed by due process requirements).
    11
    
    Id. 12 Id.
    6
    satisfied the requirements of the Due Process Clause of the Fourteenth
    Amendment.
    In Straley v. Advance Staffing Inc., in an unemployment matter, the
    Delaware Supreme Court was confronted with a similar issue.13 There, a Claims
    Deputy denied Straley unemployment benefits. 14 Straley then appealed to an
    Appeals Referee where the Claims Deputy’s decision was overturned. 15 When the
    employer appealed to the Unemployment Insurance Appeals Board (hereinafter the
    “Board”), Straley failed to appear for the hearing. 16 Despite her absence, the Board
    continued with the hearing and reversed the Appeals Referee’s decision. 17 Straley
    appealed to the Superior Court claiming the Board violated her due process rights
    but the Superior Court upheld the Board’s decision. 18 On appeal, the Delaware
    Supreme Court recognized that “Due Process is satisfied when notice is sent by a
    method reasonably calculated to afford the party an opportunity to be heard.”19
    Because the Board provided Straley with notice of the hearing and the Board held
    a hearing to determine the appropriateness of an award of unemployment benefits,
    the Board satisfied due process requirements despite Straley’s failure to appear at
    the hearing. 20
    13
    
    984 A.2d 124
    (Del. 2009) (Table).
    14
    
    Id. at *1.
    15
    
    Id. 16 Id.
    17
    
    Id. 18 Id.
    at 2.
    19
    
    Id. 20 Id.
    7
    Similarly, the Commission satisfied due process requirements. Namely, it
    provided CFT with notice of the hearing, which the company admits was delivered
    to its business. Additionally, the Commission provided the company with the
    opportunity to be heard. It held a hearing to address the alleged violations. During
    this hearing, the Commission was willing to hear testimony from both parties
    regarding CFT’s failure to comply with the Commission’s regulations. Had CFT
    appeared at the hearing, it could have introduced evidence in its defense. CFT
    failed to take advantage of its opportunity to be heard through no fault of the
    Commission. Accordingly, the Court does not find that CFT’s failure to appear at
    its hearing deprived CFT of due process.
    B. CFT waived its argument regarding sufficiency of the notice; independent
    of this waiver, the APA notice provisions relied upon by CFT are inapplicable.
    In its Reply Brief, CFT, for the first time, raises an argument that the form of
    the notice below violated its due process rights. Specifically, CFT argues that
    because the Commission failed to provide it with notice in accordance with the
    APA’s standards, it is due a new hearing with the opportunity to present evidence.
    CFT correctly recognizes that the APA’s notice requirements require more
    detail than otherwise required by the Due Process Clause. CFT points to two
    provisions in the APA that it alleges the Commission’s notice violated. First, CFT
    looks to Section 10122 of the APA as it includes the basic requirements regarding
    the date, time, and place of the hearing and the right to counsel and subpoena
    witnesses. Section 10122 also includes notice requirements including the subject
    matter of the proceedings. CFT argues that the notice at issue contained no
    information regarding whether or not a choice of informal fact finding was
    permitted, nor did it include a sufficient description of the subject matter of the
    8
    proceedings, which violates this section’s requirements.21 CFT further relies upon
    Section 10131 of Title 29 in arguing that the Commission violated the APA by not
    providing notice that it was seeking a revocation of CFT’s license.22 CFT claims
    that the Commission’s failure to adhere to the APA’s specific statutory notice
    requirements invalidates the results of the hearing.
    CFT’s argument must be rejected for two reasons. Even if the Commission
    was required to adhere to the notice requirements identified by CFT, the issue was
    not properly raised. Due process rights regarding insufficient notice are subject to
    waiver when not properly raised. 23 CFT raised the lack of sufficient notice for the
    first time in its Reply Brief. Furthermore, CFT fails to point to a part of the record
    establishing that this issue was raised before the Commission and therefore waives
    this argument. Delaware courts consistently hold that when a party fails to raise an
    argument in its opening brief, that failure generally constitutes waiver of that
    claim. 24 Consequently, CFT waived its insufficient notice argument.
    Independently, the text of the APA does not support CFT’s reliance on its
    relevant provisions. Section 10161(a) of the APA enumerates the agencies that are
    bound by the provisions of the chapter.25 The Delaware State Fire Prevention
    Commission is not an itemized agency in Section 10161(a).26 As a result, the
    21
    
    29 Del. C
    . § 10122.
    22
    
    29 Del. C
    . § 10131.
    23
    See Christiana Town Ctr., LLC v. New Castle Cnty., 
    865 A.2d 521
    , at *3 (Del. 2004) (Table)
    (stating that notice and hearing due process rights are subject to waiver).
    24
    See, e.g., Camtech School of Nursing and Technological Sciences v. Del. Bd. of Nursing, 
    2014 WL 604980
    , at *2 n.29 (citing Murphy v. State, 
    632 A.2d 1150
    , 1152 (Del. 1993)) (noting that
    claims raised for the first time in Appellant’s Reply Brief will not be considered).
    25
    
    29 Del. C
    . § 10161(a).
    26
    
    Id. 9 Commission
    is not bound by the entirety of the APA’s provisions. Instead,
    according to Section 10161(b), the agencies not listed in subsection (a) are only
    “subject to Subchapters I and II . . . and Sections 10141, 10144, and 10145. . .” of
    the APA.27 The procedural violations alleged by CFT reference requirements found
    in Subchapters III and IV. Accordingly, the Court must reject CFT’s argument that
    the APA notice violations resulted in a statutory or Due Process Clause violation.
    C. The Commission did not abuse its discretion.
    CFT argues that the Commission’s denial of a rehearing was an abuse of
    discretion and therefore should be reversed with a remand for a new hearing. In
    order to overturn the Commission’s decision, CFT must show that the Commission
    abused its discretion by showing that it “act[ed] arbitrarily or capriciously” 28 or it
    “exceeded the bounds of reason in view of the circumstances.” 29
    Delaware courts have addressed an agency’s denial of a rehearing on several
    occasions. Consistently, Delaware courts refuse to find a denial of a rehearing to be
    an abuse of discretion. 30 Where an agency “followed its regulations, provided due
    notice to all parties involved,” provided an opportunity to be heard, and then
    subsequently denied a rehearing, such a decision is not an abuse of discretion. 31
    27
    
    29 Del. C
    . § 10161(b).
    28
    PAL of Wilm. v. Grahm, 
    2008 WL 2582986
    , at *4 (Del. Super. 2008).
    29
    Floundiotis v. State, 
    726 A.2d 1196
    , 1202 (Del. 1999).
    30
    E.g., Petrilli v. Discover Bank, 
    2012 WL 1415705
    , at *5 (Del. Super. 2012); Kreider v. JC
    Penny Custom Decorating, 
    2010 WL 2562210
    , at *2 (Del. Super. 2010); Connors v. Mountaire
    Farms of Delmarva, 
    1996 WL 453327
    , at *3 (Del. Super. 1996).
    31
    E.g., Petrilli v. Discover Bank, 
    2012 WL 1415705
    , at *5 (Del. Super. 2012); see also Kreider
    v. JC Penny Custom Decorating, 
    2010 WL 2562210
    , at *2 (Del. Super. 2010) (finding that the
    Unemployment Insurance Appeal Board did not abuse its discretion in denying a rehearing after
    the Board followed its regulations and provided notice and an opportunity to be heard); Connors
    10
    Here, as noted above, the Commission provided CFT with adequate notice of the
    hearing and an opportunity to be heard. Additionally, the Commission followed its
    regulations when decertifying the company. As such, it cannot be said that the
    decision to deny the rehearing was arbitrary or capricious. Likewise, its decision
    did not exceed the bounds of reason.
    CFT also argues the Commission abused its discretion with regard to the
    severity of the sanction, while citing no comparatives for purposes of
    proportionality review. It merely argues that the decertification decision was
    disproportionate to the violations and therefore was an abuse of the Commission’s
    discretion. According to CFT’s argument, because the sanction is disproportionate,
    this Court has the authority to modify the Commissioner’s order.
    In support of this argument, CFT cites two Delaware Supreme Court cases
    that are inapplicable to the case at hand. In the cases cited by CFT, the Delaware
    Supreme Court was reviewing the Court of Chancery’s decisions regarding
    whether to modify an order by Delaware’s Securities Commissioner.32 In both
    cases, the Delaware Supreme Court recognized the Court of Chancery’s statutory
    power to modify a Commissioner’s order on the basis that it was
    disproportionate.33 When the Court of Chancery is undertaking a review pursuant
    to the Delaware Securities Act, it is statutorily permitted to review de novo the
    remedy ordered by the Commissioner. 34 In this case, there is no statutory authority
    v. Mountaire Farms of Delmarva, 
    1996 WL 453327
    , at *3 (Del. Super. 1996) (finding that the
    Unemployment Insurance Appeal Board did not abuse its discretion in denying a rehearing
    where the Board followed its regulations and claimant failed to appear).
    32
    Hubbard v. Hibbard Brown & Co., 
    633 A.2d 345
    (Del. 1993); Blinder, Robinson & Co. v.
    Bruton, 
    552 A.2d 466
    (Del. 1989).
    33
    
    Hubbard, 633 A.2d at 353
    ; Blinder, Robinson & 
    Co., 552 A.2d at 475
    .
    34
    
    Hubbard, 633 A.2d at 353
    ; see also 
    6 Del. C
    . § 73-502(b) (granting the Court of Chancery the
    exclusive jurisdiction to modify an order of the Director under the Delaware Securities Act).
    11
    cited by CFT that permits the Superior Court to substitute its independent
    judgment regarding the appropriate sanction for the violation. As there is no
    similar statutory authority for the Superior Court to modify the State Fire
    Prevention Commission’s orders, CFT’s argument regarding disproportionality of
    the sanction has no merit.
    D. CFT’s failure to appear was not excusable neglect.
    CFT next argues that the Superior Court should grant it relief from the
    Commission’s final order pursuant to Superior Court Civil Rule 60 because its
    failure to appear was excusable neglect or mistake. 35 It claims that due to excusable
    neglect, CFT’s senior management did not have knowledge of the hearing.
    Accordingly, CFT argues that the company’s failure to appear was a mistake, and
    therefore, the Superior Court should grant it relief from the Commission’s final
    order which in effect closed the company. CFT further contends that the State’s
    policy of hearing cases on the merits rather than by default further supports its
    argument for relief under Rule 60.
    Foremost, the Court notes that Superior Court Civil Rule 60 does not apply
    to a final order issued by an administrative agency. Superior Court Civil Rule 60
    provides relief only from a Superior Court final judgment or order. Nevertheless,
    in applying that standard to the agency’s decision, as urged by CFT, the Court does
    not find excusable neglect.
    Relief from judgment under Rule 60 requires the moving party to show
    “valid reasons for the neglect—reasons showing that the neglect may have been
    35
    The rule provides the Superior Court with the authority to relieve a party from a final
    judgment, order, or proceeding for the following reasons: “[m]istake, inadvertence, surprise, or
    excusable neglect.” Del. Super. Ct. Civ. R. 60(b)(1).
    12
    the act of a reasonably prudent person under the circumstances.” 36 Furthermore, “a
    mere showing of negligence or carelessness without a valid reason may be deemed
    insufficient.”37
    Here, CFT contends its negligence was the result of a part-time employee
    and the stress of the holiday season. Even if the Court were to review the issue at
    hand, de novo, as CFT seems to urge, this does not constitute excusable neglect.
    From the licensee’s perspective, it exhibited mere carelessness without a valid
    reason.
    In Apartment Communities Corp. v. Martinelli, the Delaware Supreme Court
    addressed the issue of excusable neglect by looking to federal precedent due to the
    similarities between the Superior Court Civil Rules and the Federal Rules of Civil
    Procedure.38 There, the Delaware Supreme Court reviewed federal case law in
    determining whether an employee failing to inform the company that it was served
    with a compliant constituted excusable neglect. 39 The Supreme Court held it was
    not excusable neglect after relying on a case from the United States Court of
    Appeals for the Fifth Circuit where a company failed to respond to a complaint
    because of a mistake by a commercial carrier in his attempt to deliver the
    document from an employee to the company’s claims office. 40 The Delaware
    Supreme Court found persuasive the reasoning that “the corporation should have
    implemented at least minimum internal procedural safeguards to avoid such
    36
    Dishmon v. Fucci, 
    32 A.3d 338
    , 346 (Del. 2011).
    37
    
    Id. 38 859
    A.2d 67, 70—71 (Del. 2004).
    39
    
    Id. at 70.
    40
    
    Id. at 71
    (citing Rogers v. Hartford Life & Accident Ins. Co., 
    167 F.3d 933
    (5th Cir. 1999)).
    13
    mishaps.”41 Similarly, in Martinelli, the Court relied upon the United States Court
    of Appeals for the Eleventh Circuit holding in a case where a mail clerk misplaced
    a complaint, which also did not constitute excusable neglect. 42
    In Martinelli, the Delaware Supreme Court refused to find excusable neglect
    stating that “it was the responsibility of the defendant . . . to ensure that all
    employees who are capable of accepting service of process know when and to
    whom the complaint should be forwarded.”43 The Court went on to state that
    “when service of a complaint is complete and legal, it is immaterial that the agent
    does not communicate the fact of service to the principal.” 44 Due to the company’s
    failure to implement safeguards to avoid such a situation, the Delaware Supreme
    Court refused to find excusable neglect. 45 For purposes of this analysis, service of a
    civil complaint does not meaningfully differ from a notice of an administrative
    hearing. This Court cannot find CFT’s failure to appear at the hearing to be
    excusable neglect on the basis of the part time employee’s failure to forward the
    notice to senior management.
    Furthermore, the fact that the company was busy due to the holiday season is
    not grounds for finding excusable neglect. In Cohen v. Brandywine Raceway
    Ass’n, the Superior Court was faced with an excusable neglect argument based on
    a similar claim.46 In that case, the office manager received the amended complaint
    but failed to ensure that appropriate personnel in the company were aware of it
    41
    
    Id. (quoting Rogers
    v. Hartford Life & Accident Ins. Co., 
    167 F.3d 933
    (5th Cir. 1999)).
    42
    
    Id. (citing Gibbs
    v. Air Can., 
    810 F.2d 1529
    , 1537 (11th Cir. 1987)).
    43
    
    Id. 44 Id.
    71—72.
    45
    
    Id. 46 238
    A.2d 320, 325 (Del. Super. 1968).
    14
    because that employee was exceptionally busy because of the Christmas season. 47
    Likewise, the Commission’s denial of a rehearing cannot be said to have been an
    abuse of discretion when evaluated pursuant to the standards of Superior Court
    Civil Rule 60(b)(1).
    E. The Commission’s decision to decertify CFT is supported by substantial
    evidence and is free from legal error.
    Section 6604 of Title 16 of the Delaware Code provides the Commission
    with the authority to formulate rules and regulations. Pursuant to this authority, the
    Commission enacted Regulation 7.10 (12.1) which provides the Commission with
    the authority to revoke an ambulance service provider’s license. 48 Regulation 710
    (12.3) further delineates when the Commission may revoke a license. 49 The
    Commission identifies two such provisions that justified it in revoking CFT’s
    license: (1) violation of any provision of the regulations, and (2) demonstration of
    the licensee’s gross negligence, incompetence, or misconduct. 50
    At the hearing, the State, on behalf of the Commission, submitted evidence
    of several inspections where the Commission found violations of the regulations.
    Generally speaking, the various inspections found deficient equipment and safety
    hazards. The results of these inspections frequently required the Commission to
    place CFT’s ambulances out-of-service.
    Additionally, at the hearing there was testimony from a former employee of
    CFT. He testified that management took a license plate from a certified unit and
    47
    
    Id. 48 17
    DE Reg. 982 (04/01/14).
    49
    
    Id. 50 Id.
    15
    placed it on a non-certified unit, enabling the non-certified ambulance to appear to
    be a unit that had passed inspection. The employee also testified that management
    replaced a broken axle in an ambulance with an axle from a van and put a tire on
    inside out, rendering the tire unable to be pressure tested.       Such action by
    management certainly constitutes misconduct.
    The Commission’s order outlined the specific facts found and the evidence
    submitted which formed the bases for its conclusions. In light of the evidence of
    non-compliance throughout the six year span in which CFT was licensed, there
    was substantial evidence to support the Commission’s decision. Furthermore, the
    Commission’s decision was free from legal error.
    V. Conclusion
    For the aforementioned reasons, the Commission’s decision to decertify
    CFT is supported by substantial evidence and is free from legal error.          The
    Commission’s refusal to grant a rehearing was not an abuse of discretion.
    Accordingly, its decision to decertify CFT is AFFIRMED.
    IT IS SO ORDERED
    /s/Jeffrey J Clark
    Judge
    16