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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Button v. Haines Borough (05/29/2009) sp-6376
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| DAVE BUTTON, | ) |
| ) Supreme Court No. S- 12796 | |
| Appellant, | ) |
| ) Superior Court No. 1JU-06-871 CI | |
| v. | ) |
| ) O P I N I O N | |
| HAINES BOROUGH, | ) |
| ) No. 6376 May 29, 2009 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Larry R. Weeks, Judge.
Appearances: Robert S. Spitzfaden, Gruening
& Spitzfaden, APC, Juneau, for Appellant.
Robert P. Blasco, Hoffman Silver Gilman &
Blasco, Juneau, for Appellee.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, and Winfree, Justices. [Matthews,
Justice, not participating.]
EASTAUGH, Justice.
I. INTRODUCTION
Based on two criminal convictions and complaints from
customers and other tour operators, the clerk of the Haines
Borough denied Dave Buttons 2005 application for renewal of his
commercial tour permit. Button appealed to the borough manager,
who upheld the denial after conducting an eight-day evidentiary
hearing. The borough assembly and the superior court affirmed.
Button appeals. We hold that substantial evidence supported five
of the managers seven factual findings; that those five findings
were sufficient to justify denial; that the borough did not
violate Buttons due process rights; and that the denial was not
an inappropriately severe sanction. We therefore affirm the
superior court order that affirmed the denial of Buttons appeal.
II. FACTS AND PROCEEDINGS
The Haines Borough regulates commercial tours,
requiring that each operator acquire an annual commercial tour
permit.1 The permits automatically expire each March 1.2 To
renew a permit the operator must apply to the borough clerk.3 An
operator may appeal a renewal denial to the borough manager, the
borough assembly, and the superior court.4
Dave Button operated commercial tours under permits
from the Haines Borough for the 1999 through 2004 seasons. Based
on the administrative record, the assembly later noted that the
borough received more than eighty-five complaints concerning
Button during this time.
When Button applied for renewal in 2004, the borough
clerk, Julie Cozzi, was reluctant[] to renew the permit because
of the complaints. She met with Buttons wife, Jane Button. The
clerk later testified that she admonished Jane at the meeting to
obey the rules and regs for tour operators, and reviewed the
Haines Borough Code (HBC) and the relevant regulations with Jane.
The clerk noted the admonishment on Buttons 2004 renewal
application. Button later testified that he was aware of the
complaints and this admonishment. The clerk renewed Buttons
permit on May 12, 2004.
Between May and August 2004 the clerk learned of
additional alleged and established misconduct by Button. He had
been convicted of a misdemeanor; violated a borough ordinance;
attempted to pressure a Chilkat Cruises fast ferry captain to
overload the ferry; committed several violations of Coast Guard
regulations involving his catamaran; and committed other
violations of the HBC and the Haines Tour Operator Code of
Conduct.
In June 2004 the clerk discussed with Button complaints
regarding parking and behavior at the Port Chilkoot dock. On
August 13 the boroughs attorney notified Button that the borough
was revoking his permit, effective September 15. Button appealed
the notice, and the borough suspended the revocation process and
allowed Button to operate through the 2004 tour season that ended
September 26, 2004.
Per HBC 5.04.050.C, Buttons 2004 permit expired on
March 1, 2005. On March 9, 2005 the clerk informed Button that
she intended to deny any application for renewal. On May 1
Button submitted an application to renew his permit. The clerk
denied Buttons 2005 renewal application on May 19, citing HBC
5.04.070, .120(A)(1), (2), and (3), and .050(C). The clerk gave
ten reasons for the denial, including the incidents mentioned
above.
Button appealed the clerks denial to the borough
manager, Robert Venables, on June 3. The manager, acting as
hearing officer per HBC 5.04.090 and .100, heard testimony over
eight days between July 18 and December 7, 2005.5 Button
presented three witnesses and had the opportunity to cross-
examine the boroughs nine witnesses. The manager issued both an
initial decision affirming the clerks denial and a final decision
containing detailed findings and conclusions.
Button appealed to the assembly, which held a hearing
on May 18, 2006 and affirmed the denial on June 13, 2006. Button
then appealed to the superior court, which affirmed the boroughs
denial on June 19, 2007.
Button appeals. He argues that the findings were
unsupported by substantial evidence, and that any supported
findings were insufficient to justify denial. He also contends
that there were several due process violations, and that
nonrenewal was too severe a sanction.
III. DISCUSSION
A. Standard of Review
When the superior court acts as an intermediate
appellate court in an administrative matter, we independently
review the merits of the administrative decision.6 Most of the
findings and conclusions to be reviewed were made by the manager.
Several were made by the assembly.
When reviewing the merits of an agency decision, we
apply varying standards of review.7 The reasonable basis test
applies to questions of law involving agency expertise, the
substitution of judgment test applies to questions of law that do
not involve agency expertise, and the substantial evidence test
applies to questions of fact.8 If the agencys factual findings
are supported by substantial evidence, we will affirm the
findings.9 Whether evidence supporting a factual finding is
substantial is a question of law that we review de novo.10
We review challenges to agency decisions to admit or
exclude evidence for abuse of discretion, and will reverse only
if the ruling erroneously affected the substantial rights of a
party. 11
B. Whether Those Findings Supported by Substantial
Evidence Were Sufficient To Affirm Denial of Buttons
Renewal Permit
Button argues that seven of the managers findings12 were
unsupported by substantial evidence and that, alternatively, they
were insufficient to support denial of his renewal permit.
1. Whether substantial evidence supported the
challenged findings
Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.13
We will not reweigh evidence or choose between competing
inferences reasonably drawn from evidence.14
a. The findings of Buttons two criminal
convictions
The manager found that Button was convicted in January
2004 of a misdemeanor in Skagway for improper use of evidence of
vehicle registration or certificate of title,15 and that Button
was convicted in March 2003 of violating an HBC prohibition on
soliciting on public property.16
Button argues that these findings were not supported by
substantial evidence because the judgment and order relied upon
by the manager were inadmissible hearsay that was not within any
exception to the hearsay rule.
The Alaska Administrative Code does not require hearing
officers at administrative hearings to follow the Alaska Rules of
Evidence.17 The strict rules of evidence governing admissibility
of hearsay in judicial proceedings do not apply to administrative
hearings, and we will not reverse an administrative judgment
based on hearsay unless the hearsay was inherently unreliable or
jeopardized the fairness of the proceedings.18 A hearing officer
may reasonably rely on a certified copy of a record of
conviction.19 Button does not claim that the evidence of his
convictions was unreliable, and we conclude that admitting the
convictions into evidence did not jeopardize the fairness of the
adversarial hearing.
Also, the convictions were properly relied upon under
the managers explanation that hearsay could be used only to
supplement or explain direct evidence. Button admitted to having
been convicted of soliciting for tours in Haines, and to
committing the conduct underlying the Skagway conviction.
Buttons own admissions provided substantial direct evidence to
support the findings, even absent consideration of the hearsay
evidence.
b. The findings relating to the operation of
Buttons catamaran
Two of the managers factual findings and one finding
made in the first instance by the assembly concerned operation of
Buttons catamaran during the summer of 2004: (1) on one occasion,
Button asked a customer to drive Buttons catamaran and pose as a
potential buyer to circumvent Coast Guard safety regulations; (2)
in August [Chilkat Cruises fast ferry Captain Mark] Mitcheltree
witnessed Button captaining his ocean tour with an overloaded
boat; and (3) Button admitted that on numerous occasions he used
a customer as a crew member to overload his catamaran and
circumvent Coast Guard safety regulations.
Button argues that all three findings were unsupported
by substantial evidence.
Button argues that the first finding was unsupported by
substantial evidence because the manager relied on inadmissible
hearsay, a letter from the customer, Daniel Downing.
Downings letter was properly considered because hearsay
is admissible at administrative hearings20 and because it served
to supplement or explain direct evidence. Downings letter stated
that on the morning of a trip he had booked with Button, Downing
was told by Button that he did not have a captain for the trip
and was asked by Button to run the boat, taking two other clients
along with him. The letter further stated that Button told
Downing that if he ran the boat under the idea that [he] was test
driving it as a prospective buyer then [Button] could go around
the Coast Guard since they watch him so closely. Downing
declined. Button admitted at the hearing that he had asked
Downing if he wanted to captain the boat and that Downing had
declined. Button did not deny at the hearing Downings allegation
Button told Downing to pose as a potential buyer to circumvent
Coast Guard regulations that require the boat to be captained by
a licensed operator21 and that limit the number of passengers.22
Downings letter served to supplement and explain Buttons own
admissions and was therefore properly considered. Together,
Buttons testimony and the letter are substantial evidence
supporting the finding that Button asked Downing to pose as a
potential buyer in order to circumvent Coast Guard safety
regulations.
Button argues that the second finding was unsupported
by substantial evidence because he contends that he was not
captaining the boat and that the boat was not overloaded.
Substantial evidence did not support the findings of
overloading. There was some evidence permitting the manager to
find that Button was captaining the boat.23 But there was no
evidence the boat was overloaded on that occasion. There was
instead evidence Button had five passengers on board that day.24
This evidence established that Buttons boat was not overloaded,25
and there was no contrary evidence. The finding that Button
captained an overloaded boat was therefore unsupported by
substantial evidence.
It appears that the numerous occasions component of the
third finding was made by the assembly independent of the
managers findings of fact. We review the assemblys finding
applying the same substantial evidence standard that we apply to
the managers findings.
Button argues that because he admitted to using a
passenger as a crew member one time only, the assemblys finding
that he admitted he did so on numerous occasions was not
supported by substantial evidence.
Button did admit at the hearing that he had asked a
passenger to pose as a crew member on one occasion, in order to
circumvent Coast Guard regulations. The managers finding that
Button used a passenger as crew so he could overload his boat was
therefore supported by substantial evidence. But there was no
evidence Button admitted to doing so on more than one occasion.
Substantial evidence therefore did not support the numerous
occasions part of the third finding.
c. The remaining findings
The manager made two additional findings: (1) in June
2004 Button pressured Captain Mitcheltree to exceed the capacity
of Captain Mitcheltrees fast ferry in order to transport some of
Buttons passengers; and (2) Button admitted he stopped in the
middle of a public roadway and impeded the flow of traffic, in
violation of the Haines Tour Operator Code of Conduct.
Button argues that the first finding was not supported
by substantial evidence because the evidence was as consistent
with an inference that he merely appealed to Captain Mitcheltree
or reasonably requested boarding, as it was with an inference
that he pressured Captain Mitcheltree.
The evidence was undisputed that in June 2004 Button
attempted to secure passage for several of his tour customers on
Captain Mitcheltrees ferry, but was unable to get all of them on
board because the ferry was full. Captain Mitcheltree testified
that Button put a couple of little girls in front of me and was
like these two little girls dont take up much room . . . why cant
you take a couple of little kids. Captain Mitcheltree described
this as a pressure situation in which Button was trying to make
him feel like the bad guy. Button admitted at the hearing that
it [c]ouldve happened. This was substantial evidence from which
the manager could have concluded that Button pressured Captain
Mitcheltree, and could have rejected Buttons characterization
that he reasonably requested boarding. We will not reweigh the
evidence or choose between competing inferences reasonably drawn
from the evidence.26
Button next argues that the public roadway finding was
not supported by substantial evidence because much of the
evidence the manager relied on was inadmissible hearsay.
The record contains several complaints that Button
stopped in the middle of the road. The clerk testified that she
received these complaints. Button admitted at the hearing that
he stopped two or three times in or on the road to pick people up
or let people off.
The hearsay evidence supporting this finding was not
unreliable.27 The manager therefore properly considered the
complaints and the clerks testimony to explain or supplement
Buttons own admissions. That evidence was substantial evidence
supporting the finding that Button stopped in the middle of the
road.
2. Whether the supported findings were sufficient to
justify nonrenewal
Whether the findings were sufficient to justify denial
is a question of law involving agency expertise. We therefore
apply the reasonable basis test,28 under which we defer to the
agency unless its interpretation is plainly erroneous and
inconsistent with the regulation.29 The borough has a significant
interest in ensuring the safety of local tour operators, and it
may interpret its code to achieve that purpose, provided there is
a reasonable basis for the interpretation.
Button argues that the managers findings were
insufficient to support denial of his renewal application.
Button argues that the criminal convictions were
insufficient to support nonrenewal for four reasons. First, he
argues that the version of the HBC in effect when his permit was
denied did not permit nonrenewal on the basis of violations of
applicable law. The borough responds that the pre-amendment HBC
impliedly permitted nonrenewal on the basis of violations of
applicable law.
The March 2005 HBC amendments explicitly authorize
nonrenewal if grounds exist for denial, revocation, or suspension
of a permit.30 Pre-amendment, the HBC stated that permits would
be renewed in accordance with chapter[s] 5.04 and [5.18]31 but did
not specify which provisions applied to renewals. Former chapter
5.04 stated that violation of any applicable local, state, or
federal law or regulation was grounds for denial, revocation, or
suspension of a permit.32 But former chapters 5.04 and 5.18 did
not specify that violation of an applicable law was also ground
for nonrenewal.
The borough appears to have interpreted both the pre-
and post-amendment versions of the code to allow nonrenewal based
on violations of applicable law. That interpretation was not
plainly erroneous or inconsistent with the text of the HBC
provisions.33 We hold that the pre-amendment HBC permitted
nonrenewal for violations of applicable law.
Second, Button argues that the assemblys reliance on an
HBC amendment impermissibly applied the amendment retroactively.
The borough responds that the amendment was clarifying or
curative and therefore could be applied retroactively. Because
the pre-amendment code permitted nonrenewal for violations of
applicable law, it is unnecessary to determine whether the
amended version applied retroactively.
Third, Button argues that the conduct underlying the
convictions was unrelated to his Haines commercial tour permit
because the Skagway conviction occurred outside the Haines
Borough several years before nonrenewal and because the Haines
conviction involved offering free rides, not tours for a fee.
The borough responds that the Skagway conviction was for a
violation of applicable law because, although the violation
occurred outside of the Haines Borough, it was directly related
to Buttons tour operations, and the plain language of the HBC is
not limited to violations of Haines ordinances. The borough
argues that the Haines conviction is self-evidently applicable.
The HBC does not define the phrase applicable law.34
The phrase is therefore susceptible to a range of permissible
definitions. Websters Third New International Dictionary defines
applicable as having relevance, or fit, suitable, or right to be
applied.35 We hold that, at minimum, to be applicable a law must
be relevant to the subject of the permit.
The borough defines applicable law as any law that is
fit, suitable, pertinent, and appropriate. Button argues for a
narrower definition, encompassing only violations occurring
within the borough and involving paid tours within the borough.
We apply the reasonable basis standard in deciding
whether the meaning the borough attributes to applicable law is
correct.36 We will defer to the boroughs interpretation unless it
is plainly erroneous and inconsistent with the regulation.37
Because the boroughs definition of applicable law falls within
the permissible range of definitions, and because the broader
definition advanced by the borough promotes its interest in
ensuring the safety of its citizens and tourists, we hold that a
violation is of applicable law if the violated law is relevant to
the subject matter of the permit.
Both convictions were directly relevant to Buttons tour
operations in Haines. Both involved misuse of Buttons tour
vehicles, and the Haines conviction involved Button giving free
rides in an attempt to solicit customers for his tours. We hold
that the borough permissibly concluded that these two convictions
were relevant to Buttons Haines tour operations and therefore
were violations of applicable law.
Finally, Button argues that the borough should be
estopped from basing denial of his 2005 permit on events that
occurred before the borough renewed his permit in 2004. The
borough responds that the doctrines of estoppel and quasi-
estoppel are inapplicable because the clerk was unaware of the
convictions when she granted the 2004 permit, and because Button
fails to satisfy the elements for these doctrines.
Courts may apply the doctrine of equitable estoppel
against the state.38 Although we have rarely held that estoppel
bar[red] the states exercise of its sovereign police powers, we
nevertheless apply the estoppel test in each case.39
To make out a claim of estoppel against the government,
Button must show that (1) the borough asserted a position by
conduct or words; (2) Button acted in reasonable reliance on that
assertion; (3) Button suffered resulting prejudice; and (4)
estopping the borough from acting against Buttons permit serves
the interest of justice so as to limit public injury.40 Button
fails to demonstrate that the borough asserted any position
regarding the convictions simply by declining to exercise its
discretion to deny Buttons 2004 permit application.41 It is
therefore unnecessary to consider the other three components of
the four-part test for estopping the government.42
Button also fails to meet the test for quasi-estoppel.
That doctrine applies when facts and circumstances make assertion
of an inconsistent position unconscionable.43 In evaluating quasi-
estoppel claims, we have considered: (1) whether the party
asserting the inconsistent position has gained an advantage or
produced some disadvantage through the first position; (2) the
magnitude of the inconsistency; (3) whether changed circumstances
tend to justify the inconsistency; (4) whether the inconsistency
was relied on by the party claiming estoppel to his detriment;
and (5) whether the first assertion was made with full knowledge
of the facts.44
The relevant factors militate against finding quasi-
estoppel in this case.45 First, the borough did not gain an
advantage or produce a disadvantage by renewing Buttons tour
permit in 2004; the borough did not benefit from granting Buttons
2004 permit, and Button was no more disadvantaged by the 2005
nonrenewal than he would have been had the clerk declined to
renew his permit in 2004. Second, the first assertion was made
without full knowledge of all the facts, specifically the Skagway
conviction and other complaints. The assertions were therefore
arguably not inconsistent with one another, so the magnitude of
inconsistency cannot be considered great. Third, changed
circumstances namely the clerks awareness of the Skagway
conviction and additional complaints justify any inconsistency.
And although Button contends that he relied on the 2004 renewal
because he did not seek employment or make alternative plans, his
claim is unsupported by citations to the record, and the fact
that he went to work for his wifes tour brokerage business belies
his contention. Finally, any reliance would have been
unreasonable because Button stated that when he received the
boroughs August 31, 2004 letter suspending the revocation process
for his 2004 permit, he knew that [he was] going to have a
problem getting a renewal of [the] permit.
We therefore hold that the borough is not estopped from
relying on events that occurred before May 12, 2004, when the
borough issued Buttons 2004 renewal permit.46
Button further argues that because the remaining
supported findings did not concern violations of applicable law,
and because the HBC does not explicitly provide for nonrenewal on
any basis other than violations of applicable law, the remaining
supported findings cannot provide a sufficient basis for
nonrenewal.
A renewal application may be denied for [s]ubstantial
noncompliance with any term, condition, or provision of the
permit.47 Applicants must sign the Haines Tour Operator Code of
Conduct, promising to abide by its provisions.48 Those provisions
include promises [t]o conduct our operations with respect for and
consideration of the other users of the public lands and rights-
of-way upon which we operate and [t]o not impede the flow of
traffic, unreasonably, including not stopping in the roadway.
Button signed the code of conduct as part of his 2004 renewal
application.
We hold that abiding by the code of conduct is a term,
condition, or provision of the permit; therefore substantial
noncompliance with the code of conduct is a permissible basis for
nonrenewal.49 Buttons conduct in pressuring Captain Mitcheltree
was substantial noncompliance with the code of conduct provision
regarding respect and consideration of others, and stopping in
the roadway was substantial noncompliance with the code of
conduct provision regarding not unreasonably impeding traffic.50
The borough was therefore entitled to rely on those incidents in
deciding whether to grant the 2005 renewal application.
With respect to the Downing incident, HBC 5.04.120.A.5
authorizes nonrenewal for reasons affecting the public safety or
welfare. Because allowing a nonlicensed individual with unknown
credentials to captain a boat for the purpose of allowing the
permit holder to exceed the maximum number of passengers on board
affects the public safety and welfare, the Downing incident was
properly considered as a basis for nonrenewal.
We consider the findings in the aggregate, not
individually,51 and hold, even though substantial evidence did not
support the other two findings, that the five supported findings
about the two criminal convictions, pressuring Captain
Mitcheltree, stopping in the middle of the road, and the Downing
incident are sufficient to support denial of Buttons renewal
application.
Additionally, the assembly stated that the convictions,
standing alone, are ample reason to affirm the clerks action.
And the manager stated that Buttons admitted use of a passenger
as a crew member is one egregious example of [Buttons] disregard
of proper conduct and the law, and by itself constitutes a
reasonable basis for not renewing the [p]ermit. This persuades
us that the assembly would affirm nonrenewal even absent the two
unsupported factual findings. A remand is therefore unnecessary.
C. Whether Button Was Denied Due Process
Button raises several theories to support his claim
that the borough, the clerk, and the assembly violated his due
process rights.52
As a threshold matter, a permit applicant is entitled
to due process of law in evaluation of the permit application.53
Buttons interest in obtaining a 2005 commercial tour permit was
therefore protected by due process. He had a property interest in
the renewal process.
Button first argues that the HBC lacks sufficient
standards for exercise of the clerks discretion and the assemblys
review of the managers factual findings. We have held that [t]he
adequacy of process does not depend on the advance adoption of
standards. Rather, we must look to the entire set of safeguards
provided in the particular proceeding.54 In this case the entire
set of safeguards, including the managers lengthy adversarial
hearing in which Button actively participated, sufficiently
protected Buttons due process rights.
Second, Button argues that the boroughs procedures were
insufficient because the clerk denied the permit without
notifying Button of the charges against him or allowing him to
defend himself; conducted no investigation before denying the
permit; had no personal knowledge of the events she relied on to
deny the permit; held no hearing prior to denial; did not allow
Button to respond before deciding to deny renewal; decided not to
renew Buttons permit a month or two before she notified Button of
her intent not to renew; and denied renewal without seeking
contrary information.
The clerk notified Button that she intended to deny his
renewal application in March 2005 but invited him to submit his
application anyway so he could appeal the decision if he so
chose. After Button submitted his application, the clerk sent
him a detailed notice of denial enumerating the ten grounds on
which it was based. The denial also informed him that he had the
right to appeal her decision. Button had ample notice and
opportunity to defend himself at the managers hearing. The
clerks nonrenewal procedure therefore did not deny Button due
process.55
Finally, Button argues that the manager should have
granted Buttons request that the manager disqualify himself as
hearing officer. Although Button does not argue that the manager
was actually biased, Button argues that the manager should have
disqualified himself because he had advance knowledge of [the
boroughs] side of the case, raising a reasonable question about
the managers impartiality, and because he cannot be both a
witness and the hearing officer.
Before becoming borough manager, Venables was a borough
employee who received, recorded, and placed in Buttons file two
telephonic complaints regarding Button being stopped in the
middle of the road. Also before becoming manager, Venables was
present during a meeting between a citizen and the clerk, in
which the citizen complained that Button was soliciting,
trespassing, hawking on Chilkat Cruises property, pulling people
off the dock, and stopping his bus in the middle of the road.
After becoming manager and after the clerk denied the 2005
permit, but before the manager conducted the hearing, Venables
had a conversation with the clerk in which she informed him of
the nonrenewal but did not discuss her substantive reasons for
denial with him.
Although Button moved several times during the hearing
to disqualify the manager and suggested that the borough might
wish to call the manager as a witness, he did not call the
manager as a witness or ask the borough to do so, and the borough
stated that it did not intend to call the manager as a witness.
On appeal to the assembly, Button argued that the manager should
have been disqualified as hearing officer, but he did not request
a de novo hearing or ask that the manager be called to testify
before the assembly.
Button did not argue before the assembly, and does not
now argue, that the manager was actually biased, that the
managers factfinding was skewed, or that the managers alleged
appearance of impartiality affected the outcome of the hearing.
Although he requests a hearing de novo in front of this court, he
does not ask to examine the manager at that hearing.
In AT & T Alascom v. Orchitt, we held:
Administrative agency personnel are presumed
to be honest and impartial until a party
shows actual bias or prejudgment. To show
hearing officer bias, a party must show that
the hearing officer had a predisposition to
find against a party or that the hearing
officer interfered with the orderly
presentation of the evidence.[56]
The four incidents listed above are too minor to show
actual bias or the appearance of bias. Venables was not borough
manager when he received the two complaints and sat in on the
meeting; and because he was not then in an adjudicative position,
it was appropriate for him to receive the information. The
managers factual finding regarding Button being stopped in the
roadway was supported by at least three additional complaints
with which the manager was not involved. Button forfeited any
right he may have had to examine the manager on the issue of bias
when he failed to ask for the opportunity to examine the manager
in front of the assembly. Because the available evidence is
insufficient to establish actual bias or appearance of bias, and
because any request to examine the manager is foreclosed, Button
has failed to demonstrate actual bias or appearance of bias.
We hold that Button has not demonstrated any reason
requiring the manager to disqualify himself. We reach that
conclusion because Button did not demonstrate actual bias or
appearance of bias, because the four incidents in which Venables
was minimally involved are too insignificant to reasonably call
into question the managers impartiality, and because Button
failed to ask that the manager be called to testify before the
assembly.
Additionally, the manager issued a detailed decision
explaining his reasons for upholding the clerks denial, and his
decision has been subjected to review by the assembly and to
appellate review by the superior court and this court.57 The
boroughs procedures therefore contain sufficient institutional
safeguards against untrammeled administrative discretion such
that any merger of investigative, executive, and adjudicative
functions did not require the manager to disqualify himself.58 We
conclude that Buttons due process rights were not violated.
D. Whether Nonrenewal Is Too Severe a Sanction
Button argues that the sanction the borough imposed was
too severe, because nonrenewal was a vast overreaction to
relatively minor events.
The borough has a strong interest in ensuring the
safety of its citizens and visitors. Some events taken in
isolation could be considered relatively minor, but taken in the
aggregate, the supported findings demonstrate pervasive lack of
concern for public safety. As discussed above, the manager
described Button overloading his catamaran as egregious and
stated that by itself [the overloading incident] constitutes a
reasonable basis for not renewing the [p]ermit.
We therefore hold that the sanction was not
inappropriately severe. The manager and assembly were better
suited than we to determine the best interest of the Haines
community. They had a reasonable basis for concluding that
nonrenewal was necessary, given that lesser prior measures the
admonishment and the suspended revocation proceeding in 2004
appear to have been ineffective.
IV. CONCLUSION
The superior courts order affirming denial of Buttons
administrative appeal is AFFIRMED.
_______________________________
1 Haines Borough Code (HBC) 5.04, 5.18, & 5.18.015.
2 HBC 5.04.050.C.
3 Id.
4 HBC 5.04.090, 5.04.110.A, 5.04.110.D.
5 Two of the problems cited by the clerk as reasons for
denying Buttons permit were resolved prior to the managers
hearing.
6 Lakloey, Inc. v. Univ. of Alaska, 157 P.3d 1041, 1045
(Alaska 2007); Gunter v. Kathy-O-Estates, 87 P.3d 65, 68 (Alaska
2004).
7 Lakloey, 157 P.3d at 1045 (citing Handley v. State,
Dept of Revenue, 838 P.2d 1231, 1233 (Alaska 1992)).
8 Id. at 1045; Handley, 838 P.2d at 1233.
9 Morris v. State, Dept of Admin., Div. of Motor
Vehicles, 186 P.3d 575, 577 (Alaska 2008).
10 Leigh v. Seekins Ford, 136 P.3d 214, 216 (Alaska 2006).
11 Matanuska Elec. Assn, Inc. v. Municipality of
Anchorage, 184 P.3d 19, 23 (Alaska 2008) (quoting Fleegel v.
Estate of Boyles, 61 P.3d 1267, 1270 (Alaska 2002)).
12 We review the managers findings because the assembly
generally did not make its own factual findings, but rather
reviewed the managers factual findings to determine whether they
were supported by substantial evidence. For the one instance in
which the assembly made its own factual finding, we review the
assemblys finding.
13 South Anchorage Concerned Coalition, Inc. v.
Municipality of Anchorage Bd. of Adjustment, 172 P.3d 774, 780
(Alaska 2007) (citing Leigh, 136 P.3d at 216).
14 Conkey v. State, Dept of Admin., Div. of Motor
Vehicles, 113 P.3d 1235, 1237 (Alaska 2005) (citing Wilson v.
Erickson, 477 P.2d 998, 999 & n.1 (Alaska 1970)).
15 AS 28.10.481.
16 HBC 05.08.010.A.
17 3 Alaska Administrative Code (AAC) 48.154(a).
18 Racine v. State, Dept of Transp. & Pub. Facilities, 663
P.2d 555, 557 (Alaska 1983) (holding that because evidence of
judgment of conviction was not inherently unreliable and did not
deprive appellant of fair hearing, admission did not require
reversal of agency decision).
19 Sather v. State, Div. of Motor Vehicles, Dept of Pub.
Safety, 776 P.2d 1055, 1057 (Alaska 1989) (holding that reliance
on certified copy of California conviction was proper in license
revocation hearing).
20 3 AAC 48.154(a); Racine, 663 P.2d at 557.
21 Coast Guard regulations require that every passenger
vessel be under the direction and control of an individual
holding a license as an operator. 46 C.F.R. 15.605 (2008); see
also 46 U.S.C. 8903 (2006); 46 C.F.R. 24.05-1 (2008).
22 Coast Guard regulations authorize operation of the
catamaran with a licensed captain, crew, and up to six
passengers. 46 U.S.C. 8903; 46 C.F.R. 15.605; 46 C.F.R. 24.05-
1.
23 This evidence was not undisputed. Captain Mitcheltree
testified that although he saw Button steering the boat, he did
not know whether there was a licensed captain on board. A
customer stated that there was a captain on board and that Button
was the skipper, and Button testified that he hired captains but
sometimes steered with a captain on board to fulfill the hours
requirement to get his captains license.
24 In his letter to the borough, Captain Mitcheltree wrote
that he witnessed Dave Button captaining his catamaran [b]oat out
of the . . . harbor with 5 passengers on [b]oard.
25 See 46 U.S.C. 8903; 46 C.F.R. 15.605; 46 C.F.R.
24.05-1.
26 Conkey v. State, Dept of Admin., Div. of Motor
Vehicles, 113 P.3d 1235, 1237 (Alaska 2005) (citing Wilson v.
Erickson, 477 P.2d 998, 999 (Alaska 1970)); see also Morris v.
State, Dept of Admin., Div. of Motor Vehicles, 186 P.3d 575, 577
(Alaska 2008); Anderson v. State, Dept of Revenue, 26 P.3d 1106,
1109 (Alaska 2001).
27 3 AAC 48.154(a); Racine v. State, Dept of Transp. &
Pub. Facilities, 663 P.2d 555, 557 (Alaska 1983).
28 Lakloey, Inc. v. Univ. of Alaska, 157 P.3d 1041, 1045
(Alaska 2007); Handley v. State, Dept of Revenue, 838 P.2d 1231,
1233 (Alaska 1992).
29 Pasternak v. State, Commercial Fisheries Entry Commn,
166 P.3d 904, 907 (Alaska 2007) (quoting Simpson v. State,
Commercial Fisheries Entry Commn, 101 P.3d 605, 609 (Alaska 2004)
(internal quotation marks omitted)); see also Lazy Mountain Land
Club v. Matanuska-Susitna Borough Bd. of Adjustment & Appeals,
904 P.2d 373, 385 & n.68 (Alaska 1995).
30 HBC 5.04.050.C now reads in relevant part: The review
standards and procedures that apply to an initial permit
application shall apply to applications for the renewal of a
permit. . . . A permit shall not be renewed if the clerk
determines that grounds exist for the suspension or revocation of
the applicants expiring permit.
HBC 5.18.060 now reads in relevant part: The review
standards that apply to initial permit applications shall apply
to applications for the renewal of a permit . . . .
31 Former HBC 5.18.060.
32 Former HBC 5.04.070, 5.04.120.
33 See Pasternak, 166 P.3d at 907; Simpson v. State,
Commercial Fisheries Entry Commn, 101 P.3d 605, 609 (Alaska
2004); Lazy Mountain Land Club, 904 P.2d at 385 & n.68.
When interpreting statutes in which one section deals
with a subject in general terms and another deals with a part of
the same subject in a more detailed way, the two should be
harmonized, if possible. Matter of Estate of Hutchinson, 577
P.2d 1074, 1075 (Alaska 1978). In this case there is no
conflict, and a harmonized reading applies all pertinent HBC 5.04
and 5.18 provisions to renewal applications.
Furthermore, allowing nonrenewal based on violations of
applicable law is more in line with reason, practicality, and
common sense because it avoids [the] absurd result[] of allowing
midseason revocation based on violation of an applicable law but
disallowing the less severe consequence of nonrenewal. Wilson v.
State, 127 P.3d 826, 833 (Alaska 2006) (quoting Grimm v. Wagoner,
77 P.3d 423, 427 (Alaska 2003) (internal quotation marks
omitted)).
34 HBC 5.04 & 5.18.
35 Websters Third New International Dictionary 105 (1993).
36 Lakloey, Inc. v. Univ. of Alaska, 157 P.3d 1041, 1045
(Alaska 2007); Handley v. State, Dept of Revenue, 838 P.2d 1231,
1233 (Alaska 1992).
37 Pasternak, 166 P.3d at 907; see also Lazy Mountain
Land Club, 904 P.2d at 385 & n.68.
38 State, Dept of Commerce & Econ. Dev., Div. of Ins. v.
Schnell, 8 P.3d 351, 355 (Alaska 2000).
39 Id. at 355-56.
40 See id. at 356 (citing Wassink v. Hawkins, 763 P.2d
971, 975 (Alaska 1988)).
41 HBC 5.04.070.A, 5.04.120.A, 5.18.060.
42 See Schnell, 8 P.3d at 356.
43 Merdes v. Underwood, 742 P.2d 245, 248 (Alaska 1987).
44 Johns Heating Serv. v. Lamb, 46 P.3d 1024, 1040 (Alaska
2002); Merdes, 742 P.2d at 248-49.
45 Johns Heating Serv., 46 P.3d at 1040 (holding that
quasi-estoppel did not apply because party asserting inconsistent
position gained no advantage, other party did not rely on
assertion, and first assertion was made without full knowledge of
facts).
46 Whether estoppel applies is a question of law not
involving agency expertise; we therefore apply our independent
judgment. Schnell, 8 P.3d at 355.
47 See HBC 5.04.120.A.1. The amended HBC authorizes
nonrenewal if grounds exist for the suspension or revocation of
the applicants expiring permit, HBC 5.04.050.C, and the borough
appears to have interpreted the pre-amendment HBC to allow
nonrenewal on any basis that would justify revocation or
suspension.
48 HBC 5.18.030.C.6.
49 HBC 5.04.120.A.1.
50 Id.
51 Yahara v. Construction & Rigging, Inc., 851 P.2d 69, 72
(Alaska 1993) (Substantial evidence is that which a reasonable
mind, viewing the record as a whole, might accept as adequate to
support the Boards decision.).
52 Button argues that the borough, the clerk, and the
assemblys actions violated his rights under the due process
clauses of both the United States Constitution and the Alaska
Constitution. See U.S. Const. amend XIV; Alaska Const., art. I,
7.
53 Rollins v. State, Dept of Revenue, Alcoholic Beverage
Control Bd., 991 P.2d 202, 211 (Alaska 1999) (holding that liquor
license renewal applicant had protected property right); Hilbers
v. Municipality of Anchorage, 611 P.2d 31, 36 (Alaska 1980)
(holding that initial issuance of business license is protected);
see also Bartlett v. State Commercial Fisheries Entry Commn, 948
P.2d 987, 990 (Alaska 1997) (An individuals interest in an
application for a limited entry fishing permit is entitled to due
process.); Javed v. Dept of Pub. Safety, 921 P.2d 620, 622
(Alaska 1996) (A drivers license represents an important property
interest which is protected under the due process clause of the
Alaska Constitution.); Herscher v. State, Dept of Commerce, 568
P.2d 996, 1002 (Alaska 1977) (holding that property interest in
hunting guide license warrants due process protection).
54 Amerada Hess Pipeline Corp. v. Alaska Pub. Utils.
Commn, 711 P.2d 1170, 1178 (Alaska 1986) (holding that despite
vague statute and complete lack of regulations interpreting it,
party was provided constitutionally sufficient notice of nearly
two million dollars in costs and attorneys fees assessed against
it); see also Alyeska Pipeline Serv. Co. v. State, Dept of Envtl.
Conservation, 145 P.3d 561, 570-71 (Alaska 2006) (holding that
administrative regulation provided constitutionally sufficient
notice of cost-shifting policy, even though policy was not
explicit and party alleged that if it had known it would have
litigated differently).
55 See Rollins, 991 P.2d at 211 (holding that procedure
allowing denial of liquor license renewal without hearing was
sufficient, provided that board gave denied applicant notice for
denial, stating reasons for denial and informing applicant of
procedure for appeal). The boroughs procedure in this case was
substantially similar to that followed in Rollins.
56 AT & T Alascom v. Orchitt, 161 P.3d 1232, 1246 (Alaska
2007) (holding that hearing officers position as vice president
of workers union was not sufficient to demonstrate actual or
probable bias); see also Bruner v. Petersen, 944 P.2d 43, 49
(Alaska 1997) (holding that dean of nursing programs close and
supportive working relationship with members of committee whose
decision dean was reviewing was insufficient to demonstrate
actual or probable bias (internal quotation marks omitted));
Tachick Freight Lines v. Dept of Labor, 773 P.2d 451, 453 (Alaska
1989) (holding that hearing officers pointed questioning of party
was insufficient to demonstrate bias).
57 Button requests a trial de novo. Because Buttons due
process rights were not violated, he is not entitled to trial de
novo.
58 Amerada Hess, 711 P.2d at 1180 (holding that agencys
dual role as administrator and adjudicator did not violate due
process because agency issued reasoned decision that was subject
to judicial review); see also Amerada Hess Pipeline Corp. v.
Regulatory Commn of Alaska, 176 P.3d 667, 675 (Alaska 2008)
(holding that mere exposure to evidence prior to adversary
hearing does not in itself . . . impugn the fairness of later
hearing (quoting Withrow v. Larkin, 421 U.S. 35, 55 (1975)); AT &
T Alascom, 161 P.3d at 1246 (stating that party must show actual
bias or prejudgment to refute presumption of honesty and
impartiality of agency personnel).
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