ACADIAN AMBULANCE SERV. v. E. BATON ROUGE
| Decision Date | 06 November 1998 |
| Docket Number | No. 97 CA 2119.,97 CA 2119. |
| Citation | 722 So.2d 317 |
| Parties | ACADIAN AMBULANCE SERVICE, INC. v. The PARISH OF EAST BATON ROUGE, Pamela Porter, in her capacity as Administrator of the Department of Emergency Medical Services of the Parish of East Baton Rouge, Lynn Schofield, in his capacity as Director of Finance of the Parish of East Baton Rouge, and Priority E.M.S., Inc. |
| Court | Court of Appeal of Louisiana — District of US |
William C. Shockey, Douglas J. Cochran, Shockey & Ziober, Baton Rouge, Attorneys for Plaintiff-Appellee Acadian Ambulance Service, Inc.
Robert N. Aguiluz, Baton Rouge, and John Volz, Madisonville, Attorneys for Defendant-Appellant Priority E.M.S., Inc.
Before LeBLANC, FOGG and PARRO, JJ.
Priority E.M.S., Inc., a private ambulance service, appeals a judgment that granted a writ of mandamus, directing certain departments of East Baton Rouge Parish to notify Acadian Ambulance Service, Inc. and to hold a hearing to determine whether the public convenience and necessity required a competing ambulance service in the parish. The judgment also issued a preliminary injunction, restraining Priority from providing any ambulance services in the parish during the pendency of this litigation, under the permit already issued to it.
This case involves a challenge to Acadian's present monopoly as the sole provider of non-emergency ambulance services in East Baton Rouge Parish. The parish operates its ambulance services under a public/private partnership. The Department of Emergency Services of East Baton Rouge Parish (EMS) regulates all ambulance services and provides emergency transportation, while private ambulance companies provide non-emergency services, such as hospital-to-hospital transport, nursing home transport, and residential subscriber transport. Acadian began providing non-emergency ambulance services in the parish in 1985. At all times before 1995, there were at least two private ambulance services operating within the parish. In 1995, Regional Ambulance Service, the last remaining competitor to Acadian, ceased operations, and Acadian became the only private ambulance operator in the parish. In 1996, Earl K. Long Hospital in Baton Rouge solicited bids for its non-emergency ambulance services. Acadian and Priority bid on this contract, and Priority submitted the low bid. However, to get the contract, Priority needed a valid permit to operate in the parish.
Therefore, in April 1996, Priority submitted an application for a permit to the Director of the Department of Finance for the parish, as required by the applicable ordinance. The application was routed to various departments—legal, revenue, and EMS—to determine if Priority met all relevant criteria. After several months, when the hospital was ready to award the contract, it contacted EMS about the status of Priority's application. On August 29, 1996, EMS determined there was a current and permanent need for a competing private ambulance service in the parish. EMS also decided to issue a certificate of convenience and necessity and grant a permit to Priority. Acadian was notified by voice-mail that day, a Thursday, and was also informed that the Director of EMS would be out of the office on the 30th. After the Labor Day weekend, on September 3, 1996, representatives of Acadian met with the parish attorney and other parish officials and voiced their opposition to the permit decision. Following that meeting, a certificate of convenience and necessity was issued and a permit was awarded to Priority, both retroactive to August 30, 1996.1 This suit followed. On November 5, 1996, Acadian filed a mandamus action against the Parish of East Baton Rouge, Pamela Porter, in her capacity as Administrator of EMS, and Lynn Schofield, in his capacity as Director of the Department of Finance (the parish defendants). The suit asked the court to issue a writ of mandamus to compel a due process hearing to determine whether the public convenience and necessity required the issuance of a non-emergency ambulance permit to a competing private ambulance service. Acadian also sought a preliminary injunction to prevent Priority from operating under its permit while the litigation was pending. After a hearing, the trial court granted the writ of mandamus against the parish defendants, and granted a preliminary injunction against Priority.2 Only Priority appealed.
Priority argues that mandamus is an extraordinary remedy and is only appropriate to compel a public officer to do a required, ministerial duty, but is not appropriate for a discretionary duty or for something not required by law. Acadian stipulated that the city-parish ordinances governing the permitting process do not require EMS to hold a hearing to determine whether public convenience and necessity require additional ambulance services. So Priority contends the trial court erred in requiring such a hearing. Priority also claims the ordinances only required notice to Acadian after the initial public convenience and necessity decision. Then, if Acadian could not provide the additional services needed, EMS was within its authority to issue the permit to Priority. The need identified by EMS in this case was to have a competitive private ambulance service in the parish. Because Acadian obviously could not compete with itself, it was not able to provide that "additional service." Therefore, Priority argues mandamus was improper because the parish defendants already had done everything required by the applicable ordinances in issuing the permit to it.
Priority also claims Acadian is not entitled to a hearing on the basis of due process protections, because: it operated within a competitive framework in the parish for over ten years; its permit was never intended, promised, or understood to be exclusive; and it can still do everything under its permit that it was doing before the competing permit was issued. Therefore, the grant of a permit to a competing entity was not an infringement on Acadian's property right sufficient to require a hearing prior to the determination of public convenience and necessity. Any due process requirements were fulfilled by the notice and opportunity to be heard after that determination was made, but before the permit was actually issued to Priority.
However, Acadian contends a hearing is required to protect its constitutional rights to due process. Due process is guaranteed if government action effects a deprivation of a property right, and a license or permit to operate a business is a property right. Acadian admits its permit is non-exclusive, but argues that the need for non-emergency ambulance services within the parish is finite. Therefore, as a factual matter, allowing a competitor to operate in this venue will cause Acadian economic loss, which is a deprivation of its property. It contends the court correctly ordered a hearing to determine whether public convenience and necessity actually required competition, or whether competition will, in fact, jeopardize the public/private partnership in the parish and weaken the quality of non-emergency ambulance service available to its citizens.
While this appeal was pending, Acadian filed a motion to dismiss it as moot. The motion stated that, pursuant to the trial court's mandamus order, the parish defendants had conducted a hearing to determine whether the public convenience and necessity required a competing private ambulance service in East Baton Rouge Parish. An impartial hearing officer concluded after the hearing that there presently exists no need for additional providers of private ambulance services in East Baton Rouge Parish. The hearing officer's decision was sustained by a unanimous vote of the East Baton Rouge Parish Metro Council. Acadian contends this court cannot undo what has already been done and the appeal should therefore be dismissed as moot.
Priority opposed the motion, claiming the hearing did not moot the issues on appeal. The hearing did not address or answer whether the mandamus and injunction were appropriate. More significantly, the hearing did not, and could not, revoke the permit which had already been issued to Priority. Therefore, Priority argues the appeal is not moot, because if this court rules in its favor, Priority can begin operations in East Baton Rouge Parish under its validly issued permit.
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