Bourget's of the South, L.L.C. VS Louisiana State Recreation and Used Motor Vehicle Commission

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 2467 BOURGET S OF THE SOUTH L L C VS LOUISIANA STATE RECREATIONAL AND USED MOTOR VEHICLE COMMISSION JUDGMENT RENDERED NOV 2 1 2007 ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT DOCKET NUMBER 541 552 DIVISION 0 PARISH OF EAST BATON ROUGE STATE OF LOUISIANA HONORABLE WILSON FIELDS JUDGE ROBERTE TARCZA ATTORNEY FOR PLAINTIFF APPELLEE JAMES L HARMON BOURGETS OF THE SOUTH LL C NEW ORLEANS LA ROBERT W HALLACK ATTORNEY FOR DEFENDANT APPELLANT BATON ROUGE LA LOUISIANA STATE RECREATIONAL AND USED MOTOR VEHICLE COMMISSION R LOREN KLEINPETER ATTORNEYS FOR AMICUS CURIAE TARA L JOHNSTON LOUISIANA RECREATIONAL VEHICLE BATON ROUGE ASSOCIATION me LA BEFORE 1hcC t7 GAIDRY McDONALD AND McCLENDON JJ rn 1lf f fool fte 7J rfr M j 1J1 fS IJ 10tJVn McDONALD J The Louisiana Commission Commission L L C Recreational the appeals s and ruling Bourget judgment Used district comi and reinstate the following Motor Vehicle district the of court in favor of rendering judgment For the s and reasons Bourget we reverse the Commission the reversing s of the South judgment of the of the Commission ruling BACKGROUND Prior 2005 to Commission Bourget applied for and received s it to sell authorizing renewed for the 2005 calendar year to sell various used vehicles on January including 3 used license The license motorcycles new a 2005 from the which also authorized was Bourget s homes and Bourget s entered into two motor motorcycles trailers On contracts to of 279 9 September and September 17 2005 provide the Federal Emergency Management Agency which travel trailers Hunicane Katrina be used to were To fulfill that contract house to FEMA a total people displaced by Bourget s purchased numerous new travel trailers and other recreational vehicles from dealers in various states and Canada Bourget On trailers 12 with the vehicles without new issued the then sold the new trailers October complaint to sell s motor Although it effective date homes was of Bourget s homes and trailers license the was one Commission that license a motor new 2005 not next and to FEMA Bourget s business competitors filed Bourget then applied day This as 1 2005 2 selling well as recreational new the Commission for to 2005 license authorized issued until October 18 January was October 17 on motorcycles s a license and the Commission Bourget various used 2005 a the license s to motor sell new vehicles stated that its Meanwhile the Commission continued its that had been filed against Bourget violated LSA R S 32 774 A period of 23 to address hearing these after which the COlmnission luled assess had allegedly operated with that court ruling was The against Bourget Commission license a Bourget s s a all reporter fees and subpoena fees signed by the Cormnission conducted 17 January day for each for to pay on over a an 2006 The Commission voted to s 2 000 00 per without The Commission further ordered attorney fees I Bourget s had travel trailers to FEMA new alleged violations the maximum allowable fine of Bourget s 211 license a that ultimately determining 1 by selling days without administrative s investigation into the complaint total fine of hearing A of the 23 hearing chairman 46 000 00 including costs judgment days in accordance February on 10 2006 Bourget properly applied for judicial review of the Commission s accordance with LSA R S 49 964 In addition to challenging and reasonable Commission the district s attorney fees on required court its face to pay also denied motion for a hearing noted that the license issued the license the fine Bourget new January as s or 1 2005 appeared Bourget s Commission followed was Bourget denied s on be retroactive and by the Commission requests for costs and attorney fees trial which by the district has answered the s of the costs In so ruling October 18 2005 Therefore the district to costs assessed to in the district court reversed the ruling and rendered judgment in favor of Bourget listed its effective date that After ruling the Commission ruling Bourget s requested that the Commission be assessed with all appeal s s court concluded Bourget s was The district not court The Commission filed court This a appeal by the appeal requesting costs and attOlney fees in accordance with LSA R S 49 965 1 1 The Commission contended that charges were Bourget s was withdrawn prior Bourget s hearing to the properly licensed at had committed other violations Thus the only the relevant time 3 as violation addressed well by however those additional the Commission was whether MOTIONS We first address two motions filed in this court motion seeks to supplement the record with the transcript of Commission that took place after the district meeting the Commission apparently heard voted to appeal the judgment of the district seeks to dismiss the Commission s court court to appeal based despite having Bourget As to vote to transcript nor in the an in it contains and meeting absolute nature Furthermore if pmiicipating in the vote himself dismiss the In addition when again appeal are as here Bourget on s such proceedings wished to the issue of the the nullity s has not cited any a member who had hearing to remain recused are same merely administrative in prevent Commissioner Courville from appeal it could have requested that he Accordingly the motions to supplement the record and denied Bourget s has not cited any authority appeal an unfavorable judicial decision note that it is undisputed that Commissioner Courville did acknowledge that the vote to appeal was unanimous we to only the odd numbered require administrative an of transcript with which Bourget s of any that would aware According participation in all subsequent proceedings that might involve the pmiicularly 2 as one Specifically had been addressed that the note meeting importantly however Bourget participation matter recuse More is this court recused himself from from we supplement the record is incomplete pages of the authority matter of participation in the earlier administrative participation s public and then participated in that meeting appeal renders the appeal defective and preliminary a Courville In this matter The second motion court that at pmiicipating charges against Bourget s Commissioner s subsequent seeks recused himself from in which the hearing this contends that Commissioner Courville s from the upon the the members of the Commission in the discussion Bourget meeting of the a had ruled in this comments The first by Bourget s note that the issue ofwhether to 4 that requires the Commission to conduct Moreover even if such not cast the deciding authority vote were indeed a vote to exist the on we parties DISCUSSION When proceeding an revlewmg the district court administrative functions as final an appellate Ochsner Medical Foundation 2002 2677 La 815 817 Once final a decision LSA R S deference is owed On the by court conclusions of the district comi Supreme findings Court to factual the to review of the district of appeal just as or no to Maraist court judgment is rendered by the district 49 965 adjudication an 1 Cir 5 26 04 App pmiy may seek review of the judgment by appeal appeal in court the factual an s aggrieved court judgment findings deference is owed legal conclusions 879 So 2d appropriate court Alton v or The of the court of for further proceedings The court may reverse if substantial rights of the appellant have been administrative 1 findings inferences conclusions In violation of constitutional 2 In excess of the or remand the case the decision modify prejudiced because or or decisions are statutory authority of the agency 3 Made upon unlawful 4 Affected 5 Arbitrary or capricious or characterized by abuse of discretion clearly unwalTanted exercise of discretion or 6 Not by determined the by other supported court the statutory provisions or procedure elTor of law and sustainable by the reviewing shall make its own by a court or preponderance of evidence as In the application of this rule determination and conclusions of fact preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review In the a application of this rule where the agency has the opportunity to judge the credibility of witnesses by first hand observation of demeanor on the witness stand and the reviewing court does not due regard shall be given to the agency s determination of credibility issues 5 legal appeal provides affirm the decision of the agency court may no by the Louisiana Maraist 879 So 2d at 817 Louisiana Revised Statute 49 964 G of A state agency is deference great charged with interpreting its be must the to given own agency rules and regulations and interpretation s Action Group Quality 2005 1365 2005 1366 conclusion of public body is capricious when the conclusion has Community evidence support it to evidence a The word or 2474 La On v appeal implies Department 1 Cir 5 5 06 App to contrary a of Environmental 935 So 2d 175 no 186 A substantial the substantiated competent of evidence disregard of Public Department 1 Cir 12 6 06 App La the conclusion is arbitrary weight thereof Bailey Louisiana v Oakville Safety of the proper or and Corrections 2005 951 So 2d 234 243 the Commission contends that the district court failed to give the proper deference to the Commission s administrative the Executive Director of the Cormnission hearing Jack Torrance testified that the effective date of any license Thus he effective effective opined that the license issued on on that date Commission ruled Although great deference of the license license was 18 2005 its 1 January despite 2005 we At least Bourget partially s s on believe that this effective on January 1 of its which it October 18 licensing interpretation is contrary by 2005 the Commission despite having and the Commission has failed to cite any rule s may not be effective interpretation interpretation would we are on in reliance upon this interpretation which had been drafted Neveliheless 49 964 the date At the rules was issued 2005 was the fact that the license itself stated that it the Commission with the Commission an to was own was testimony the against Bourget s position that a license such of its interpretation in rules is entitled the to explicit By its been issued or October we cannot agree of the effective date of the license explicit terms because of the license applying the standard of review provided by LSA constrained to find that the Cormnission 6 s the regulation supporting retroactively Thus render meaningless the terms terms on to R S ruling against Bourget s was not arbitrary capricious time relevant to this or characterized by LSA R S 32 774 A matter firm 3 motor a misdemeanor for any association trust to engage in used At the l provided It shall be unlawful and shall constitute person abuse of discretion an corporation limited liability company or business as or serve in the capacity of or act as a vehicle dealer or used vehicle salesman motor all terrain vehicle dealer trailer motor home used bus or as an recreational vehicle travel trailer used fire truck used wrecker used conversion vehicle used hearse without first used ambulance obtaining license therefore a marine dealer in this state or in this Section provided as emphasis added It is undisputed in this license Bourget received s it to sell authorizing selling the vehicles within the acting that regardless of the stated effective date Bourget Clearly Bourget of the statute before it properly found Bourget s 7804 authorized the LSA R S 32 Bourget for its violation of the above of the 23 we find cOUli not to s in the obtain or ever a applied for on license a license Therefore one the already begun could not have obtained the be in violation of LSA R S 32 774 for obtaining Commission to provision days the violation continued for no error for apply recreational vehicle dealer without first as a s did s recreational vehicles until after it had new to FEMA meaning Commission matter a impose not to a license a civil exceed Moreover penalty against 2 000 00 for each total fine of 46 000 00 Accordingly luling of the Commission and conclude that the district erred in reversing that ruling In its brief to this court 5 Bourget s argues that it was not in violation of the licensing requirements because the Commission had suspended those requirements 3 4 5 In 2006 LSA R S 32 774 was repealed and reenacted In 2006 LSA R S repealed and reenacted as LSA R S 32 788 Although we 32 780 find that was Bourget s acted improperly as LSA R S 32 811 under the specific facts of this case we note that the Commission has in the past issued licenses with effective dates that pre date the date ofissuance Indeed Bourget s original license for which it had applied in November 2004 was issued on January 3 2005 with an effective date of January 1 Commission 32 811 Although Bourget s did apply for that license prior practice of issuing its licenses with retroactive effective 2005 s fOlmer LSA R S 32 774 not even applied for a license and we at dates could be in violation of LSA R S urge the Commission to address the issue to sell new recreational vehicles do not address the broader issue to its stated issue and effective dates the this time 7 prior to actually acting However as as Bourget s had dealer ofsuch vehicles we in the wake of Hurricanes Katrina and Rita memorandum issued Specifically Bourget s relies on a by the Commission which stated Due to the urgent need to locate temporary housing for displaced victims of Hurricanes Katrina and Rita and in following with the Governor s Executive Orders with regard for the relief of these victims the Commission will temporarily suspend the licensing For recreational vehicle requirements of LSA R S 32 1 774 1 dealers who are attempting to meet the needs of those displaced victims by providing recreational vehicles to FEMA any licensed recreational vehicle dealer who is attempting to provide recreational vehicles to FEMA will not be required to furnish a franchise agreement as a condition to its license to sell a particular line of existing manufacturers This suspension will be lifted once the need for temporary housing has been met and notice will be forwarded to dealers to insure that proper franchise agreements are on file as a condition of doing business with a manufacturer For other sales such as sales to the general public the recreational vehicle dealer must have the appropriate manufacturer Bourget s reliance The 32 on this memorandum is memorandum 1 774 1 which suspended in provided motor home vehicle dealer must the by franchise agreements misplaced the only requirements of LSA R S pertinent part Applications for license trailer s as a marine dealer new recreational vehicle travel trailer in addition to the foregoing also be motorcycle all terrain or accompanied with the filing commission of any bona fide contract or franchise in effect between the applicant and a manufacturer or distributor of the marine products new and unused motorcycles trailer vehicle Thus or the memorandum submit contract a license or only suspended the requirement franchise agreement It did not however license we homes recreational vehicles travel trailers vehicles proposed to be dealt in motor or find no any of the other suspend the a prerequisite requirement of all terrain an applicant for the issuance of actually applying requirements enumerated in the must statute a for the Accordingly merit in this argument Bourget s further contends that the Governor the wake of Hurricanes Katrina and Rita subsequent ratification seq as that or collectively as well s as Executive Orders issued in the Louisiana Legislature of those orders with the passage of LSA R S the emergency declarations 8 operated to 9 5821 suspend s et the Commission A review of these emergency declarations licensing requirements s demonstrates that they specifically refer the to suspension and extension of prescriptive and peremptive periods and other legal deadlines declarations serves requirements violated the Commission Adcock Mr an had not following who concluded that At the start of the previously perfonned the issues that he did not believe that Bourget s investigation the sent Bourget s Herschel work some and the a was for the to the letter in violation of the vehicles to FEMA reaching this conclusion In licensing s opinion concerning the licensing issues from Adcock researched concluding by selling legal expert own licensing requirements attOlney who an Commission the law opinion of its requested Commission otherwise alter the Commission contends that the Commission erred in next s recommendation and not or the This argument is without merit Bourget had suspend to Nothing in Mr Adcock cited LSA R S 32 1 774 4 which provided No company or trust deliveries of five homes sell offer or more new this state licensed Mr Adcock can corporation limited liability attempt to negotiate a sale or make unused motorcycles trailers motor aSSOCiatIOn or and recreational vehicles travel trailers into or firm person other than by common opined that the statutory scheme was general public the sale at to FEMA was Bourget s As made was not by preliminary a sale common and FEMA did a not Secondly matter even retail or we and to contract carrier unless designed to prohibit the sale of Thus he concluded that because the general public and delivery of the carrier contract violate the hearing before the Commission proceedings or all terrain vehicles in by this cOlmnission the listed vehicles at retail to the units or the transaction between statute note that Mr Adcock did was never admitted if Mr Adcock had 9 so as a not testify legal expert at the in these testified the Cormnission was not required to credit his however importantly opinion we to the preclusion of its with Mr Adcock cannot agree judgment More interpretation of the own s statute The statute A starting point for the interpretation itself Burnette simple reading Stalder 2000 2167 v of the of the Accordingly we sale find no Finally Bourget s of attorney fees and such an award to review of a reinstated the or to the certain small business that has ruling of 577 provision is without general a license a argument in accordance with LSA R S an of the Rather it is vehicles has answered the Commission final decision in language of the 789 So 2d 573 language general public delivery of merit in this costs a sales or La 6 29 01 demonstrates that the statute not limited to sales at retail prohibition of any statute is the s appeal seeking 49 965 1 prevailed in its the Commission Bourget s is not which authorizes petition adjudication proceeding award an for Because entitled judicial we to an have award pursuant to LSA R S 49 965 1 CONCLUSION F or the reinstate the Commission foregoing reasons we reverse the judgment of the district court and ruling of the Louisiana Recreational and Used All costs MOTIONS TO of this appeal are assessed to Bourget Motor s Vehicle of the South L L C APPEAL DENIED SUPPLEMENT JUDGMENT RECORD REVERSED COMMISSION REINSTATED 10 AND TO DISMISS AND RULING OF STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 2467 BOURGET S OF THE SOUTH L L C VERSUS LOUISIANA STATE RCREATIONAL AND USED MOTOR VEHICLE COMMISSION McCLENDON J I concur agrees in part with the result reached motion Bourget s with the opinion to supplement concurs in part and assigns reasons by the majority regarding the denial of the record In all other respects I agree

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