Harold LeMay Enterprises v. Utilities and Transp. Com'n
| Decision Date | 07 December 1992 |
| Docket Number | No. 14526-0-II,14526-0-II |
| Citation | 67 Wn.App. 878,841 P.2d 58 |
| Parties | HAROLD LeMAY ENTERPRISES, Respondent, v. UTILITIES AND TRANSPORTATION COMMISSION; and Mason County Garbage Company, Appellants. |
| Court | Washington Court of Appeals |
Kenneth O. Eikenberry, Atty. Gen., and Anne E. Egeler, Wash. Utilities & Transport., Olympia, for WUTC.
Richard A. Finnigan, Joanne Henry, Vandeberg & Johnson, Tacoma, for Mason Co. Garbage.
Polly L. McNeil, Heller, Ehrman, White & McAuliffe, Seattle, for Harold LeMay Enterprises.
Mason County Garbage Company and the Washington Utilities and Transportation Commission appeal a judgment of the Thurston County Superior Court reversing the Commission's determination that Harold LeMay Enterprises' certificate to collect garbage and refuse in Mason County should be amended because LeMay failed to operate as a garbage and refuse collection service in Mason County for a period of 1 year. We affirm.
Harold LeMay Enterprises and the Mason County Garbage Company each possess certificates of convenience and necessity from the Washington Utilities and Transportation Commission authorizing them to collect garbage and refuse in Mason County. Both companies have operated in Mason County since the 1960's. LeMay is a large company that collects garbage in several counties in this state, including Mason County. Its revenues from all of its garbage and refuse collection activities exceeded $9 million dollars in 1987. Mason County Garbage is a smaller company which operates only in Mason County.
In 1974, the rival companies entered into a "gentlemen's agreement" whereby they divided garbage collection services in Mason County. Under the agreement, LeMay was to collect garbage from all "drop boxes" (large dumpsters) and Mason Garbage was to collect garbage from homes and small businesses. Until 1988, LeMay acted in conformity with the agreement and did not provide service to any residential customers in Mason County. In its advertisement in the regional telephone directory, LeMay emphasized the drop box aspect of its business, although it had a listing under the general heading "Garbage and Rubbish Collection." While it did not refuse service to any customer or potential customers, its advertisements did not specifically state that it was available to provide service to residential customers.
In 1988, the agreement between LeMay and Mason Garbage ended when Mason Garbage discovered that LeMay was collecting garbage from some residences in Mason County. Mason Garbage then filed a complaint with the Utilities and Transportation Commission, contending that LeMay's certificate should be revoked or modified because LeMay had abandoned service to residential customers. After a hearing, the Commission held that LeMay had failed to operate as a garbage and refuse collection company for a period of at least one year preceding the filing of the complaint because it had not performed services under a "portion of its authority." In support of its order, the Commission found that LeMay did not provide residential service, that it emphasized drop box customers in its advertisements and that residential customers were unaware that LeMay was available to serve residences. From these findings, it concluded that LeMay did not hold itself out as serving residential customers and consequently, it amended LeMay's garbage collection certificate, restricting its service within Mason County for collection of drop boxes only. LeMay appealed the Commission's decision to the Thurston County Superior Court. The superior court reversed the Commission.
Our review of the decision of the Utilities and Transportation Commission, like the review in superior court, is under the former RCW 34.04.130(6), 1 which provides:
The court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse the decision if the substantial rights of the petitioners may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(a) in violation of constitutional provisions; or
(b) in excess of the statutory authority or jurisdiction of the agency; or
(c) made upon unlawful procedure; or
(d) affected by other error of law; or
(e) clearly erroneous in view of the entire record as submitted and the public policy contained in the act of the legislature authorizing the decision or order; or
(f) arbitrary or capricious.
Because there is no assignment of error to the Commission's findings, they are verities. St. Francis Health Care v. Department of Social & Health Servs., 115 Wash.2d 690, 692, 801 P.2d 212 (1990). We are called upon to determine whether a holder of a garbage collection certificate has "failed to operate" as a solid waste collection company when, for a period of one year preceding the filing of a complaint, the certificate holder does not serve or hold itself out as being available to serve residential customers.
Interpretation of statutes and regulations implementing them is a question of law which we review under the error of law standard, RCW 34.04.130(6)(d). Under this standard, we may substitute our judgment for that of the administrative body, although substantial weight will, of course, be accorded to...
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...to de novo review. Tapper v. Employment Sec. Dept., 122 Wash.2d 397, 403, 858 P.2d 494 (1993); Harold LeMay Enter. v. Utilities and Transp. Comm'n, 67 Wash.App. 878, 881, 841 P.2d 58 (1992). Under the de novo standard, the reviewing court essentially substitutes its judgment for that of the......
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