This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-96-2128

In the Matter of the Complaint of:

Rochester Express Airport Shuttle, Inc.,

Respondent,

vs.

Rochester Direct Corporation,

Relator,

Minnesota Department of Transportation,

Respondent.

Filed June 17, 1997

Affirmed

Davies, Judge

Department of Transportation

File No. 7300110105

Dan Moulton, Moulton Law Office, 976 14th Ave. S.W., Rochester, MN 55902 (for respondent Rochester Express Airport Shuttle, Inc.)

Dawn M. Parsons, 5200 West 73rd St., Edina, MN 55439 (for relator Rochester Direct Corporation)

Hubert H. Humphrey III, Attorney General, Kathy Meade Hebert, Assistant Attorney General, 525 Park St., Suite 200, St. Paul, MN 55103-2106 (for respondent Department of Transportation)

Considered and decided by Harten, Presiding Judge, Davies, Judge, Schultz, Judge.[*]

U N P U B L I S H E D O P I N I O N

DAVIES, Judge

By writ of certiorari, relator appeals a Minnesota Department of Transportation (MinnDOT) order suspending for 21 days relator's certificate to operate as a regular route motor carrier. We affirm.

FACTS

On May 25, 1993, the Minnesota Transportation Regulation Board granted Regular-Route-Common-Carrier-of-Passengers authority to relator Rochester Direct Corporation, allowing relator to transport passengers between Rochester and the Minneapolis/St. Paul International Airport. Relator was not given authority to drop off or pick up passengers at any intermediate stops.

On August 10, 1995, respondent Rochester Express Airport Shuttle, Inc. (Airport Shuttle, Inc.), filed a formal complaint with the Board, alleging that relator violated its authority by advertising and providing passenger service between Rochester and the Mall of America.[1] The complaint was later supplemented by an affidavit of a former Rochester Direct driver stating that he had seen other Rochester Direct drivers "continually driving through * * * railway crossings."

After a contested case hearing, an administrative law judge (ALJ) concluded that relator violated Minn. Stat. § 221.021 by advertising passenger service between Rochester and the Mall of America and by providing such service, mostly in late December of 1994 and early January of 1995. The ALJ further concluded that, "for most of the period between September 1994 and October 1995, "relator ignored the fact that its drivers were violating Minn. Stat. § 169.28 by failing to stop at railroad crossings while transporting passengers. The ALJ recommended that the Board suspend relator's intrastate authority for 21 days and order relator to immediately cease and desist from violating Minn. Stat. ch. 221.

Relator filed exceptions to the findings. On review, a MinnDOT[2] deputy commissioner adopted the findings, conclusions, and recommendation of the ALJ, with one exception.[3] Relator seeks certiorari review of the decision on the grounds that it exceeds statutory authority, is unsupported by substantial evidence, and is arbitrary and capricious.

D E C I S I O N

Although a reviewing court might reach a contrary conclusion to that arrived at by an administrative body, the court cannot substitute its judgment for that of the administrative body when the finding is properly supported by the evidence.

Vicker v. Starkey, 265 Minn. 464, 470, 122 N.W.2d 169, 173 (1963). "[D]ecisions of administrative agencies enjoy a presumption of correctness," and reviewing courts should show deference to "agencies' expertise and their special knowledge in the field of their technical training, education, and experience." Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn. 1977). In considering questions of law, however, "reviewing courts are not bound by the decision of the agency and need not defer to agency expertise." St. Otto's Home v. Minnesota Dep't of Human Servs., 437 N.W.2d 35, 39-40 (Minn. 1989).

The party seeking review has the burden on appeal of proving that the agency decision violates constitutional provisions, exceeds statutory authority, is made on unlawful procedure, is affected by other error of law, is unsupported by substantial evidence in view of the entire record submitted, or is arbitrary and capricious. Markwardt v. State, Water Resources Bd., 254 N.W.2d 371, 374 (Minn. 1977).

I.

Relator first argues that MinnDOT's findings, conclusions, and order are not supported by substantial evidence and are arbitrary and capricious. Substantial evidence means

1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; 2) more than a scintilla of evidence; 3) more than "some evidence"; 4) more than "any evidence"; and 5) evidence considered in its entirety.

Reserve Mining, 256 N.W.2d at 825.

A. Evidence That Relator Exceeded Authority

Minn. Stat. § 221.021 (1996) states in part:

No person may operate as a motor carrier or advertise or otherwise hold out as a motor carrier without a certificate or permit in effect. * * * * The board may, for good cause after a hearing, suspend or revoke a certificate or permit for a violation of a provision of sections 221.011 to 221.296 or an order issued or rule adopted by the commissioner or board under this chapter.

The record contains evidence that in late November 1994, relator placed an advertisement in a local publication stating that it had eight daily departures to the Mall of America. At the time of the advertisement, relator did not have authority to transport passengers between Rochester and the Mall of America. Nor did relator have such authority when it advertised Mall of America services by flyers mailed in early August 1995 and by a listing in a September 1995 newspaper supplement.

The evidence also shows that relator transported passengers to and from the Mall of America. At the hearing, four Rochester Direct drivers testified that they took passengers to or from the mall in late 1994 and early 1995. One driver testified that he took passengers to the mall on one occasion in August 1995.

B. Evidence of Failure to Stop at Railroad Crossings

The ALJ accepted the testimony of the former Rochester Direct driver about his personal observations that five other drivers had failed to stop at railroad crossings while transporting passengers. The former driver also testified that he had seen relator's general manager fail to stop at a railroad crossing. When two of the drivers were asked directly whether they had driven through railroad crossings while carrying paying passengers, they failed to deny the allegations. Two Airport Shuttle, Inc., drivers also testified that Rochester Direct drivers, with passengers, had failed to stop at railroad crossings.

In making a determination on these two issues, the ALJ accorded greater credibility to witnesses for Airport Shuttle, Inc., than to relator's witnesses, and MinnDOT agreed with the ALJ's credibility determinations. Where the fact-finder has a choice between conflicting evidence, "its conclusion must stand unless manifestly and clearly contrary to the evidence." Nelson v. Lutheran Mut. Life Ins. Co., 311 Minn. 527, 529, 249 N.W.2d 445, 447 (1976). There is relevant evidence adequate to support the MinnDOT finding that relator exceeded its authority in violation of Minn. Stat. § 221.021 and that its drivers failed to stop for railroad crossings while transporting passengers. Further, the MinnDOT decision on these issues is not arbitrary or capricious.

II.

Relator also argues that MinnDOT does not have the authority to sanction a carrier for alleged individual driver violations of Minn. Stat. § 169.28 when the drivers have not been cited for such violations. But according to the ALJ's recommendation, relator is being sanctioned because its toleration of its drivers' violations of Minn. Stat. § 169.28 demonstrates "a lack of fitness and ability to provide van passenger service."

Minn. Stat. § 221.071, subd. 1 (1996), gives MinnDOT the power to issue certificates of public convenience and necessity to a motor carrier if the evidence demonstrates that the carrier "is fit and able to properly perform the services proposed." Although the statute does not explicitly make "fitness and ability" a continuing requirement, the deputy commissioner found that such a requirement can be reasonably inferred. Relator makes no argument that this exceeds statutory authority.

We decline to award the attorney fees requested by relator.[4]

Affirmed.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1 Airport Shuttle, Inc., had filed an informal complaint with MinnDOT in February 1995, alleging the same violations.

[ ]2 On July 1, 1996, the Transportation Regulation Board's powers and duties were transferred to the MinnDOT Commissioner.

[ ]3 The ALJ had also concluded that relator violated Minn. Stat. § 221.021 by dropping off and picking up passengers at intermediate points between Rochester and the airport. The MinnDOT deputy commissioner did not find the evidence to be of sufficient weight to provide any portion of the basis for the 21-day suspension.

[ ]4 Airport Shuttle, Inc.'s, request for attorney fees has been withdrawn.