Opinion
2012 CA 1592
08-09-2013
VALUE IMPORT, INC. AND MOHAMMAD IBRAHIM v. LOUISIANA USED MOTOR VEHICLE COMMISSION
J. Christopher Alexander, Sr. Baton Rouge, LA Attorney for Plaintiffs-Appellants Value Import, Inc. and Mohammed Ibrahim Robert W. Hallack Baton Rouge, LA Attorney for Defendant-Appellee Louisiana Used Motor Vehicle Commission
NOT DESIGNATED FOR PUBLICATION
On Appeal from the 19th Judicial District Court
Parish of East Baton Rouge, Louisiana
Docket No. 603,305, Section 27
Honorable Todd W. Hernandez, Judge Presiding
J. Christopher Alexander, Sr.
Baton Rouge, LA
Attorney for
Plaintiffs-Appellants
Value Import, Inc. and
Mohammed Ibrahim
Robert W. Hallack
Baton Rouge, LA
Attorney for
Defendant-Appellee
Louisiana Used Motor Vehicle
Commission
Although the suit caption shows the plaintiff's name as "Mohammad," his name is shown as "Mohammed" in documents in the record and in all the briefs to this court. Therefore, we will use the latter spelling in this opinion.
BEFORE: PARRO, WELCH, AND KLINE, J J.
Judge William F. Kline, Jr., retired, is serving as judge ad hoc by special appointment of the Louisiana Supreme Court.
PARRO, J.
Mohammed Ibrahim and Value Import, Inc. (Value) appeal a judgment upholding a decision of the Louisiana Used Motor Vehicle Commission (Commission), which fined Ibrahim $38,300, imposed costs of $600, and revoked his Used Motor Vehicle License for the operation of Value. Based on our review of the record, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Mohammed Ibrahim is the owner and manager of Value, a Baton Rouge used car dealership licensed by the Commission. In response to a consumer complaint about Value, June Powell, a compliance investigator for the Commission, conducted an investigation into the business. On November 22, 2010, Powell issued to Ibrahim and Value notices of violations for one count of LSA-R.S. 32:792(B)(3), one count of LSA-R.S. 32:792(B)(8), six counts of LSA-R.S. 32:792(B)(9), and one count of LSA-R.S. 32:792(B)(14).
The pertinent portions of LSA-R.S. 32:792 are as follows:
B. The commission may revoke or suspend a license, issue a fine or penalty, or enjoin a used motor vehicle dealer ... for any of the following conduct:
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(3) Engaging in his business in such a manner as to cause injury to the public or those with whom he is dealing.
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(8) Engaging in a practice of failing to deliver certificates of title to a consumer within the time limitations prescribed in R.S. 32:705.
(9) Engaging in a practice of failing to submit monthly sales reports to Motor Vehicle Audit by the twentieth day of the following month.
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(14) Repossessing a vehicle in any manner other than what is allowed by law.
Ibrahim participated in a "Right to Show Compliance Meeting" with Derek Parnell, Executive Director of the Commission, on December 13, 2010, during which the above-described violations were discussed. Based on Ibrahim's responses, Parnell informed him that a further audit would be conducted by the compliance investigator and that a formal hearing concerning Value might take place at a later date. In a memorandum to the Commission dated February 25, 2011, Parnell advised that, based on the initial violations, statements Ibrahim made during the compliance meeting, and the audit results, he recommended scheduling a formal hearing before the Commission as soon as possible.
On February 28, 2011, a "Notice of Administrative Hearing" was issued, advising Ibrahim that a hearing would be held before the Commission on March 21, 2011, to address violations of LSA-R.S. 32:792(B)(2), (5), (8), (9), (11), (12), (13), and (14). The provisions of those statutes were set out, including the fact that the Commission could revoke or suspend a license, issue a fine or penalty, or enjoin a used motor vehicle dealer for the violations. A summary of the facts underlying these violations was provided in the nine-page document. The notice further advised that Ibrahim could: (1) appear on his own behalf or with counsel; (2) present and enter evidence on all issues of fact; (3) examine evidence entered into the record; (4) present arguments on all issues of fact and law; (5) cross-examine witnesses; and (6) request issuance of subpoenas from the Commission, but any such request had to be made in writing by March 7, 2011. Ibrahim was personally served with the notice and attachments on March 2, 2011.
The additional provisions of LSA-R.S. 32:792 described in this notice were the following:
B. The commission may revoke or suspend a license, issue a fine or penalty, or enjoin a used motor vehicle dealer ... for any of the following conduct:
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(2) Committing a fraudulent act in selling, purchasing, or dealing in used motor vehicles or misrepresenting the terms and conditions of a sale, purchase, or contract for sale or purchase of a used motor vehicle or any interest including an option to purchase.
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(5) Employing unlicensed salespersons or other unlicensed persons in connection with the sale of used motor vehicles.
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(11) Engaging in a practice of leaving the certificate of title open or unassigned to the dealer.
(12) Engaging in a practice of issuing temporary license plates or temporary dealer's plates in violation of the law.
(13) Failing to maintain records for a period of up to three years.
On March 21, 2011, Ibrahim appeared before the Commission for the hearing. He was not accompanied by counsel and had no documentary evidence to present. His request for a continuance until he could have his recently-retained attorney present was denied, and the hearing proceeded. Prosecuting counsel presented the testimony of four witnesses and introduced over 150 pages of documentary evidence. Ibrahim had the opportunity to question the witnesses, examine the documents, and testify on his own behalf. Following statements from Ibrahim and prosecuting counsel, the Commission members conferred in open session concerning the charges. Ultimately, they decided to fine Ibrahim $38,300 and to revoke his license to operate a used car dealership. The Commission's written findings of fact and conclusions of law were prepared by independent counsel, Sherri Morris, were signed by a member of the Commission on April 18, 2011, and were hand-delivered to Ibrahim the following day.
Louisiana Revised Statute 32:788(A) states that the Commission may suspend or revoke the license of or impose a civil penalty against any person or entity that is determined by the Commission to have violated any of the provisions of Chapter 4-C of Title 32 of the Louisiana Revised Statutes.
The Commission had engaged the services of Robert W. Hallack to serve as prosecuting counsel and Sherri Morris to serve as the hearing officer.
On April 21, 2011, Ibrahim filed a motion for a rehearing, which was set for a hearing on May 16, 2011. Ibrahim's attorney filed a motion for continuance, based on the fact that he was scheduled to appear in court on another matter at that date and time, and Ibrahim would be out of the country on a previously scheduled trip. The motion for continuance was denied. Following the hearing, which Ibrahim's attorney attended, the motion for rehearing was denied. That decision was set out in findings of fact and conclusions of law drafted by Morris, signed by a member of the Commission on June 5, 2011, and received by Ibrahim on June 13, 2011.
On July 8, 2011, Ibrahim appealed the Commission's April 18, 2011 ruling to the Nineteenth Judicial District Court. The Commission answered the appeal and filed a copy of the record of its proceedings. After reviewing the record and hearing the arguments of counsel at a hearing on December 5, 2011, the district court issued a ruling affirming the decision of the Commission. A judgment in accordance with that ruling was signed February 2, 2012. Ibrahim filed a timely motion to appeal that judgment to this court.
The procedure for appeal of a Commission decision imposing a civil penalty or revoking a license is set out in LSA-R.S. 32:785(B) and LSA-R.S. 49:964(B).
Such an appeal is authorized by LSA-R.S. 49:965.
In this appeal, Ibrahim urges a number of assignments of error, which are summarized as: (1) failing to accord him his rights to due process in a proceeding that deprived him of monetary property and his license to operate his business; (2) failing to grant him a continuance before the Commission hearing, so he could be represented by counsel; (3) failing to allow him ample time to prepare for the hearing and to conduct discovery; (4) failing to recuse a business competitor from participating in the hearing as a member of the Commission; and (5) failing to constrain the prosecutor's participation in the Commission's adjudicative functions. He contends that by these actions, the Commission denied him due process and fundamental fairness.
APPLICABLE LAW
A person who is aggrieved by a final decision or order in an adjudication proceeding is entitled to judicial review under the Administrative Procedure Act (APA). See LSA-R.S. 49:964(A). Proceedings for review may be instituted by filing a petition in the district court of the parish in which the agency is located within thirty days after mailing of notice of the final decision by the agency or, if a rehearing is requested, within thirty days after the decision thereon. LSA-R.S. 49:964(B). The district court's review of the Commission's administrative proceedings is governed by LSA-R.S. 49:964(G), which states:
The provisions of the APA are set out in LSA-R.S. 49:950-973.
This Subsection was amended by 2012 La. Acts, No. 289, § 1, effective May 25, 2012, to delete the word "mailing" and insert the words "the transmittal."
G. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:See In re Dow Chem. Co. Louisiana Operations Complex v. Reduction Credits, 03-2278 (La. App. 1st Cir. 9/17/04), 885 So.2d 5, 10, writ denied, 04-3005 (La. 2/18/05), 896 So.2d 34. The manifest error test is used in reviewing the facts as found by the administrative tribunal; the arbitrary and capricious test is used in reviewing the administrative tribunal's conclusions and its exercise of discretion. Save Ourselves, Inc. v. Louisiana Environmental Control Com'n, 452 So.2d 1152, 1159 (La. 1984). On legal issues, the reviewing court gives no special weight to the findings of the administrative tribunal, but conducts a de novo review of questions of law and renders judgment on the record. Louisiana All Star Baseball Corp. v. State ex rel. Dept. of Rev. Office of Charitable Gaming, 11-0408 (La. App. 1st Cir. 9/14/11), 77 So.3d 288, 293. An "arbitrary" decision shows disregard of evidence or of the proper weight thereof, while a "capricious" decision has no substantial evidence to support it or the conclusion is contrary to substantiated competent evidence. Where the law allows for the agency or tribunal to exercise discretion, the statute's plain language concludes that such exercise must be neither abusive nor clearly unwarranted. Cedyco Corp. v. Dept. of Natural Res., 07-2500 (La. App. 1st Cir. 7/23/08), 993 So.2d 271, 275.
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the 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.
Once a final judgment is rendered by the district court, an aggrieved party may seek review of that judgment by appeal to the appropriate appellate court. See LSA-R.S. 49:965. In judicial review over administrative action or adjudication, a court of appeal owes no deference to either the factual findings or legal conclusions of the district court, just as the Louisiana Supreme Court owes no deference to the factual findings or legal conclusions of the state's courts of appeal. Survey America, Inc. v. Louisiana Professional Engineering, 09-0286 (La. App. 1st Cir. 2/10/10), 35 So.3d 305, 308 n.5.; Maraist v. Alton Ochsner Med. Found., 02-2677 (La. App. 1st Cir, 5/26/04), 879 So.2d 815, 817-18. Consequently, this court will conduct its own independent review of the record and apply the standards of review provided by LSA-R.S. 49:964(G). Doc's Clinic, APMC v. State, Dept. of Health and Hosp., 07-0480 (La. App. 1st Cir. 11/2/07), 984 So.2d 711, 718-19, writ denied, 07-2302 (La. 2/15/08), 974 So.2d 665.
ANALYSIS
Several of the issues raised in this appeal are based on the short period of time between Ibrahim's receipt of the "Notice of Administrative Hearing" on March 2, 2011, and the hearing before the Commission on March 21, 2011, along with the Commission's refusal to grant him a continuance. He claims these factors constituted a denial of due process, in that they deprived him of his right to counsel and did not allow him sufficient time to conduct discovery, subpoena witnesses, and prepare to defend the numerous violations charged.
The letter notifying Ibrahim of the Commission hearing was written on February 28, 2011, and was personally served on Ibrahim on March 2, 2011. The hearing before the Commission was held on March 21, 2011. Louisiana Revised Statute 32:785 governs the procedures for denial, suspension, or revocation of a license to operate as a used motor vehicle dealer. It states, in pertinent part, "The commission may suspend or revoke a license only after a hearing of which the licensee affected shall be given at least fifteen days written notice specifying grounds or reasons for revocation or suspension." LSA-R.S. 32:785(A)(1). Similarly, LSA-R.S. 32:785(C)(1) provides:
In holding and conducting hearings on complaints of violations of the provisions of this Chapter or hearings on the imposition of a civil penalty for any such violation, the commission shall give the licensee ... alleged to have committed such violation at least fifteen days written notice specifying the violation charged.The notice given of a hearing by an administrative agency must serve the purpose of informing the parties of the purpose and time of the proceedings, the possible consequences or the manner in which their interests may be affected, and the method of presenting objections to the administrative action. Sales 360, L.L.C. v. Louisiana Motor Vehicle Com'n, 07-0432 (La. App. 5th Cir. 12/11/07), 976 So.2d 188, 193. The "Notice of Administrative Hearing" sent to Ibrahim met all of those requirements and, as the district court noted, he received this notice over fifteen days before the hearing.
Louisiana Revised Statute 32:785 has since been amended by 2013 La. Acts, No. 204, effective August 1, 2013.
An additional safeguard is provided in LSA-R.S. 49:961(C), which states, in pertinent part:
No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gives notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee is given an opportunity to show compliance with all lawful requirements for the retention of the license.With respect to the suspension, revocation, annulment, or withdrawal of an existing license, it is apparent that Subsection (C) requires an additional step. That is, the agency must give the licensee an opportunity, prior to the institution of formal proceedings, to show that the actions complained of do not violate the law or agency rules. Louisiana State Bd. of Med. Examiners v. Bertucci, 593 So.2d 798, 801 (La. App. 4th Cir. 1992); see also Foreign Car Sales, L.L.C. v. Louisiana Recreational and Used Motor Vehicle Com'n, 07-0116 (La. App. 1st Cir. 11/2/07), 2007 WL 3228831, 3 (unpublished), writ denied, 08-0366 (La. 4/4/08), 978 So.2d 330. Ibrahim was given such an opportunity in the "Right to Show Compliance Meeting" with Executive Director Parnell on December 13, 2010. A memorandum from Parnell to the Commission documented the course of that meeting, during which the initial charges, any of which could have resulted in revocation of his license, were discussed. Ibrahim was not able to show compliance with any of those regulations, which prompted further investigation into the operations of Value. Compliance investigator Powell conducted that additional investigation and conferred with Ibrahim about Value's documents and procedures that she was questioning. Therefore, while we might agree that the nineteen days between his receipt of the notice and the hearing before the Commission made it difficult for Ibrahim to retain counsel and prepare a defense to the charges, he actually had notice far in advance of that time that the operations of Value were being scrutinized, that serious infractions had been documented, and that these violations could result in fines and/or license revocation. Therefore, we find that the statutory requirements for notice and prior opportunity to be heard were met.
With regard to the Commission's refusal to grant Ibrahim a continuance of the hearing, LSA-C.C.P. art. 1601 provides that "[a] continuance may be granted in any case if there is good ground therefor." The trial court, or in this case, the agency, must consider the particular facts of a case when deciding whether to grant or deny a continuance. The agency should consider the diligence and good faith of the party seeking the continuance and other reasonable grounds. Absent a clear abuse of discretion in granting or denying a continuance, the ruling of the agency should not be disturbed on appeal. See St. Tammany Parish Hosp. v. Burris, 00-2639 (La. App. 1st Cir. 12/28/01), 804 So.2d 960, 963.
The APA does not discuss the circumstances under which a continuance may or should be granted,
The following discussion concerning the continuance occurred among Ibrahim, Commission Chairman Glen Robinson, prosecuting counsel Robert W. Hallack, and the hearing officer, Sheri Morris:
MS. MORRIS: Do you [Ibrahim] have any objections to the introduction of any of these exhibits that Mr. Hallack has just gone through?
MR. IBRAHIM: No, ma'am. Except the one I told you about.
MR. HALLACK: That's right. Before we begin he asked for a continuance with regard to a small portion of his file that deals with Natasha Poirier. ...
MR. ROBINSON: Is there a reason for that request?
MR. HALLACK: He says that his information has been given to his lawyer. I see no reason. I mean, he has been on notice for the hearing for quite some time, just to request a continuance at this late moment in dealing with one small issue in the case.
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MS. MORRIS: Do you want to explain to the Commission what [was] the request that you made?
MR. IBRAHIM: Because that case they have retained check with no balance. So at that time there was - they told me they are going to see the lawyer that's why I brought the file to the lawyer, you know.
MR. ROBINSON: Why don't you have a lawyer here if you have a lawyer?
MR. IBRAHIM: He is supposed to be here but he got an emergency, I just talked to him today.
And also, I mean I don't know that it is a court date today. I felt last time sitting at this office discussing about this, you know.
MS. MORRIS: I thought that you already came to the office to discuss this? You already had a meeting with people in the office already, correct?
MR. IBRAHIM: Yes. Last time it was like I have a meeting. But I didn't know like actually it is a court day I have to bring all of the file, you know.
MS. MORRIS: This is a procedure. This is going to be conducted by the Commission, it is an administrative hearing. The orders of this Commission are enforceable by the courts of law. And you are allowed to represent yourself here, but today is the hearing date and I believe that you were served with a notice of the hearing and we have verification of that.
So you said that you were served with notice of the hearing?
MR. IBRAHIM: Yes, ma'am. That with all of the complaints that I am asking for an extended time except here. All that I have is just a couple of days that I need that's what the lawyer told me, you know. ...
MS. MORRIS: So you are asking the Commission to continue this hearing that was scheduled for today?
MR. HALLACK: No, he is asking for a small portion of it to be continued.
MS. MORRIS: But you don't object to us going forward with the other matters?
MR. IBRAHIM: No, ma'am. Everything else is fine. All that I need is just like a couple of days.
MR. HALLACK: We ask that that be denied. I mean all of these people are here. They have been called as witnesses. They have been given subpoenas to be here. What she has to say is a very small portion of this. It only deals with illegal repossession. I don't see having a lawyer would change that.
MR. ROBINSON: They were subpoenaed and they are here?
MR. HALLACK: Yes, sir.
MR. ROBINSON: I would agree to deny that request.
Based on this discussion, it appears that Ibrahim sought a continuance concerning one particular file that he had turned over to his lawyer. He said he did not object to the Commission going forward with the other matters. In Gilmore v. Wickes Lumber, 04-2769 (La. App. 1st Cir. 2/17/06), 928 So.2d 668, 674-75, this court found no abuse of discretion in the Office of Workers' Compensation court's decision to proceed with a hearing on a motion for summary judgment in the absence of the claimant's counsel. Noting that there were no mandatory grounds for a continuance, the court examined the circumstances and concluded that the claimant had not been prejudiced by his attorney's absence during the hearing.
Having reviewed the entire record of the Commission hearing in this case, it is clear that most of the infractions involved failures to provide reports, failures to complete proper documentation of temporary license tags, and failures to transfer titles to buyers on a timely basis. These were established by the testimony of the compliance investigator and documents copied from Value's records. Ibrahim was given the opportunity to question the witnesses and review the documents. Having an attorney present would not have altered the relevance and authenticity of the documentation, which spoke for itself as to Value's numerous violations of Commission regulations and applicable statutes. We note also that numerous witnesses had been subpoenaed and were present for the hearing. Therefore, we conclude that the Commission did not abuse its discretion in denying Ibrahim a continuance of the hearing.
Ibrahim also challenges the Commission's failure to recuse a business competitor from participating in the hearing as a member of the Commission. He alleges in his brief to this court that Ron Duplessis, a Commission member who participated in the hearing, was a used motor vehicle dealer in Baton Rouge whose company, Duplessis Cadillac, Inc., was a current market competitor to Value. Ibrahim states that as a direct competitor, Duplessis could not afford him a fair or impartial hearing and should have withdrawn from the adjudicative proceeding, citing LSA-R.S. 49:960(B), which states that "[a] subordinate deciding officer or agency member shall withdraw from any adjudicative proceeding in which he cannot accord a fair and impartial hearing or consideration." Following the hearing, Ibrahim raised this concern in a timely application for rehearing and in his appeal to the district court.
We note first that Ibrahim's contentions concerning Duplessis' status as a direct competitor are not established by facts in evidence, but are contained only in briefs and in his petition to the district court. These statements are refuted by the Commission's brief, which states that Duplessis actually operated a new car dealership in Gonzales and was licensed as such by the Louisiana Motor Vehicle Commission, a wholly separate entity that has jurisdiction over new car dealerships. Regardless of which statements are true, LSA-R.S. 32:783(A) requires that five members of the Commission "shall be licensed used motor vehicle dealers, one selected from each public service commission district." Thus, the legislature has decreed that other licensed used motor vehicle dealers will sit in judgment on any licensed used motor vehicle dealer who is alleged to have violated Commission regulations and applicable statutes. To avoid potential unfairness, LSA-R.S. 49:960(B) provides a mechanism for challenging the impartiality of any Commission member who might participate in a hearing, as follows:
Any party may request the disqualification of a subordinate deciding officer or agency member, on the ground of his inability to give a fair and impartial hearing, by filing an affidavit, promptly upon discovery of the alleged disqualification, stating with particularity the grounds upon which it is claimed that a fair and impartial hearing cannot be accorded. The issue shall be determined promptly by the agency, or, if it affects a member or members of the agency, by the remaining members thereof, if a quorum.This statute requires that any claim that a Commissioner is unable to provide a fair and impartial hearing must be made by affidavit, stating with particularity the grounds on which the claim is based. Ibrahim did not follow this procedure, which would have put something in the record concerning the factual basis for his claim. Therefore, there was no evidence upon which the Commission or the district court could rule that Duplessis could not be impartial and should have withdrawn from participation in the hearing. Nor is there any evidence on this issue for this court to review.
In Ibrahim's last assignment of error, he alleges that due process and fundamental fairness were denied him by the Commission's failure to constrain the prosecuting counsel's participation in the Commission's adjudicative functions. He argues that Hallack's participation as the prosecuting attorney and as advisor to the Commission during its deliberations violated his rights.
A person cannot be deprived of life, liberty, or property without due process of law. U.S. Const. Amend. XIV, § 1; LSA-Const. Art. I, § 2. It is clear that Ibrahim had a protected property interest in his license to operate a used motor vehicle dealership and that he is entitled to due process of law under both the federal and state constitutions. See Ogg v. Louisiana Bd. of Chiropractic Examiners, 602 So.2d 749, 751 (La. App. 1st Cir. 1992). Due process requires a fair trial before a fair tribunal. The appearance of fairness and the absence of a probability of outside influence on the adjudication is required by due process. See Allen v. Louisiana State Bd. of Dentistry, 543 So.2d 908, 915 (La. 1989).
In Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 LEd.2d 712 (1975), the United States Supreme Court upheld the combination of investigative and judicial functions within an agency against a due process challenge. In that case, an agency with licensing authority over a dentist conducted an investigation into possible statutory violations. It then scheduled an adversary hearing to determine whether to temporarily suspend his license, and he sought to enjoin this hearing on due process grounds. The Supreme Court reversed the lower court's granting of an injunction and held the combination of investigative and adjudicative functions did not constitute a due process violation per se. In reaching that conclusion, the Supreme Court explained:
The contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication has a much more difficult burden of persuasion to carry. It must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.Withrow, 421 U.S. at 47.
Louisiana courts have addressed this complicated due process issue in a number of cases reviewing administrative agencies' rulings, with varying results depending on the particular facts and circumstances of each case. In the Allen case, the State Board of Dentistry's attorney acted as the investigator and prosecutor and also drafted the written findings of fact and conclusions of law, with little input from the Board members and without giving Allen any notice or opportunity to review those findings. The Louisiana Supreme Court stated:
[The attorney's] involvement in drafting the opinion of the committee renders the decision infirm on both statutory and due process grounds. The ex parte nature of [the attorney's] participation is specifically proscribed by [LSA-]R.S. 49:960(A). His contact with the decision maker was not limited or inconsequential. Indeed, by drafting the committee's findings and conclusions, [he] put himself in the position of the adjudicator. He performed duties delegated to the committee as trier of fact under the Administrative Procedure Act. (Footnotes omitted).Alien, 543 So.2d at 914. The court held that the attorney's dual role as prosecutor and fact finder violated Allen's right to a neutral adjudicator, his right to a hearing that was fair and had the appearance of fairness, and his right to meaningful judicial review.
In Quinn v. Louisiana Dept. of Health and Hosp., 96-1046 (La. App. 1st Cir. 3/27/97), 691 So.2d 299, 305, counsel for the Louisiana Professional Counselors Board of Examiners functioned in multiple capacities during a hearing at which neither Quinn nor her attorney were present. The Board's attorney entered documents into the record and acted as hearing officer, advising the Board about jurisdictional questions, ruling on the admissibility of the evidence he was submitting, and offering opinions concerning the relevance of certain testimony. With no one there to present Quinn's position, there was no meaningful cross-examination of witnesses and no opportunity to object to irrelevant evidence. A second hearing was held, in which Quinn and her attorney participated, and the Board considered evidence from both hearings in reaching its conclusions. Counsel for the Board also drafted the findings of fact and conclusions of law. The district court affirmed the Board's disciplinary action of a one-year suspension of Quinn's license. On appeal, this court reversed the Board's action and summarized its conclusion as follows:
Administrative agencies such as this Board have broad powers affecting significant rights of the persons whose professional licenses and practices they control. Although the law allows some blurring of the distinctions between investigatory, prosecutorial, and adjudicatory functions, those distinctions cannot be totally abandoned, even with the best of intentions. When this occurs and basic procedural safeguards are ignored, the tribunal loses the appearance of fairness and impartiality required by due process.Quinn, 691 So.2d at 305.
In another case, the attorney for the Commission on Ethics for Public Employees served as investigator, prosecutor, and author of the draft of the administrative decision that was adopted essentially verbatim by the Commission. In re Georgia Gulf Corp., 95-1694 (La. App. 1st Cir. 6/28/96), 676 So.2d 1187, writ granted, 96-1907 (La. 10/4/96), 679 So.2d 1363, aff'd, 96-1907 (La. 5/9/97), 694 So.2d 173. On review of the Commission's decision, this court noted that the dual position of prosecutor and executive secretary for the Commission would not be a per se violation of an investigated party's administrative due process rights. However, the combination of prosecutorial and adjudicatory roles that was exhibited throughout the hearing and administrative determination presented an unacceptable threat to the accused's right to a fair hearing. Georgia Gulf, 676 So.2d at 1191. As in the Allen and Quinn cases, the fact that the agency's attorney had drafted the findings of fact and conclusions of law was particularly troubling to this court in the Georgia Gulf case, because it foreclosed meaningful judicial review. "If the Ethics Commission merely adopts the findings of the prosecutor, it becomes impossible to analyze the development of the matter and the determinations on behalf of the agency to assess whether the Ethics Commission acted in such a manner that would require reversal under any ground listed in [LSA-]R.S. 49:964(G)." Georgia Gulf, 676 So.2d at 1191.
In contrast to the above cases, in the Ogg case, 602 So.2d 749, this court found no due process violation had occurred. In that case, Dr. Ogg claimed that the fact that the prosecuting attorney for the Louisiana Board of Chiropractic Examiners was also the Board's general counsel created a presumption of bias on the part of the Board or alternatively, that the association created an appearance of unfairness. Following the United States Supreme Court's analysis in the Withrow case, 421 U.S. 35, this court concluded that the combination of investigative and adjudicative functions, without more, did not constitute a due process violation. Dr. Ogg also contended that the association between the Board and the prosecuting attorney violated LSA-R.S. 49:960(A) of the APA. However, because Dr. Ogg had not alleged any ex parte communications between the Board and the prosecutor concerning his case and had been given notice and an opportunity to participate in all phases of the proceedings, this court found no violation of the statute and no violation of due process.
Louisiana Revised Statute 49:960(A) states:
Unless required for the disposition of ex parte matters authorized by law, members or employees of an agency assigned to render a decision or to make findings of fact and conclusions of law in a case of adjudication noticed and docketed for hearing shall not communicate, directly or indirectly, in connection with any issue of fact or law, with any party or his representative, or with any officer, employee, or agent engaged in the performance of investigative, prosecuting, or advocating functions, except upon notice and opportunity for all parties to participate.
Ibrahim contends in the matter before us that Hallack's participation as the Commission's prosecuting attorney and his interjections during the Commission's deliberative process compromised and abridged his right to receive a fair hearing before a neutral decision maker. The transcript of the hearing reveals that the Commission retained Morris to serve as the hearing officer, while Hallack functioned as the prosecuting attorney. Their functions did not overlap; Morris ruled on evidentiary matters and provided general advice to the Commission during the hearing, while Hallack presented the case for the prosecution. The Commission did not conduct its deliberations in executive session. Asked by Hallack whether the Commission wanted to continue as an open meeting, Commission Chairman Robinson responded, "That's fine with me, Mr. Hallack," and Ibrahim commented, "They can make their decisions." Therefore, the deliberations remained open and there were no ex parte communications between Hallack and the Commission members.
During the Commission's deliberations, the members sometimes asked how many times Value had violated a particular regulation; Hallack would direct their attention to the documents evidencing those violations, so they could determine how many were included in the charge. For instance, regarding failure to submit monthly sales tax reports, although that had occurred every month, investigator Powell advised that the charge had been reduced to one count; the Commission voted in favor of finding one count of failure to submit monthly sales tax reports. With regard to the 100 counts of improper use of temporary tags, Hallack pointed out the relevant exhibit numbers where that information could be found. A discussion ensued concerning the amounts of fines that were allowed in the statutes and the amounts that had been imposed in previous cases involving similar charges. Morris advised that each violation of the temporary tags statute could result in a fine of up to $2000 per day, but stated that in previous cases involving temporary tags, the fine imposed was $200 for each tag; she also advised that the Commission had discretion. Hallack suggested that the violations be ordered from the most egregious to the least, with fines imposed accordingly. The Commission decided to review each type of violation separately and impose the fines depending on the different charges. This process continued, with Morris and Hallack explaining what fines were statutorily allowed for each violation and recommending appropriate fines, so the Commission could maintain consistency with past decisions and accord each violation the significance it deserved. As to the license revocation, Hallack initially recommended revocation and began to justify that recommendation, when Morris admonished him that the case was closed and no additional evidence could be offered. Morris advised that many licensing boards imposed a probationary period and then evaluated whether any additional violations occurred during that period. Hallack confirmed that there was no evidence that Ibrahim had any prior offenses. Eventually, due to the number of violations, the fact that these had occurred over a period of several years, and the serious nature of some of the violations, the Commission voted to revoke Value's license. At that point, Chairman Robinson advised Ibrahim, who had been present during the deliberations, that they had voted to revoke his license to continue to sell cars. Morris stated that she would prepare a written decision for the Commission and that after it had been signed, it would be delivered to Hallack's office and to Ibrahim's dealership.
Based on our review of the hearing transcript, we conclude that the investigative, prosecutorial, and adjudicative functions were not intertwined in a manner that denied Ibrahim and Value due process and a fair hearing. The investigation was conducted by the Commission's compliance investigator. Morris served as the hearing officer, while Hallack was the prosecuting attorney. Ibrahim was given a chance to review all the documents, to question the witnesses, to present his side of the case, and to be present during the deliberations. Hallack did not overstep his function by acting as an adjudicator during the hearing or by any ex parte communications with Commission members. The one time during deliberations when he began to overstep his role and argue facts not in the record, Morris immediately cut those statements off as inappropriate. Hallack did not draft the findings of fact and conclusions of law for the Commission; this function was performed by Morris. The investigative, prosecutorial, and adjudicative functions were not combined, and Ibrahim and Value's due process protections were preserved throughout the hearing and deliberations.
CONCLUSION
For the above reasons, the February 2, 2012 judgment of the district court is affirmed. All costs of this appeal are assessed to Mohammed Ibrahim and Value Import, Inc.
AFFIRMED.