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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

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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