Stoshu Solski appeals the Fairbanks North Star Borough Pollution Control Commission's decision to suspend his license to perform vehicle emissions inspections after his unsatisfactory performance on a covert performance audit. Because we conclude that the Pollution Control Commission followed proper procedures in selecting Solski for a covert audit and that the lack of an auditor training program did not render the covert audit defective, we affirm.
II. FACTS AND PROCEEDINGS
Stoshu Solski is a certified I/M mechanic
On October 7, 1997 Auditor David Herring of the PCC's I/M Referee Facility sent a covert vehicle to Solski's garage. Solski was not the original target of the test; the vehicle had been scheduled to go to Gene's Chrysler, which was unable to conduct the test as scheduled. Because Herring did not want to lose an opportunity to conduct a covert audit when he had an audit vehicle in the facility, he went through his list of stations and directed the vehicle owner to call three or four other stations in an attempt to get an appointment. The owner eventually obtained an appointment with Solski. FNSB admitted that Herring skipped over stations on its list that had not yet been tested and chose Solski for a covert audit because he was under "heightened scrutiny" as a result of his unsatisfactory performance on five previous covert audits.
Herring prepared the vehicle for testing and supervised the entire audit procedure. To establish a baseline, Herring tested the vehicle two times before the owner drove the car to Stosh's I/M. In the first test, the vehicle passed all portions of the I/M test (function, visual, and tailpipe). Herring then disconnected one end of the oxygen sensor, which was both witnessed by the vehicle's owner and videotaped. After the disconnection, Herring retested the vehicle. This time, the vehicle failed because of the disconnected sensor. The failure was due only to the disconnected sensor, not because of dirty emissions.
The owner of the vehicle then brought it to Solski's I/M. Solski tested and passed the vehicle. Even though the oxygen sensor was disconnected, Solski entered a "Pass" on the oxygen portion of the inspection sheet.
After Solski conducted the I/M test, the vehicle's owner returned to the I/M referee facility. Herring then retested the vehicle and failed it once again because of the disconnected oxygen sensor. The following day, PCC issued Solski a notice of violation for failing to detect the disconnected oxygen sensor. Based on Solski's previous record of noncompliance, the PCC also suspended the I/M testing privileges of both Solski and Stosh's I/M for a period of one year.
Solski appealed the suspension and notice of violation to I/M Program Administrator Max Lyon, who affirmed the suspension and violation after a hearing. Solski sought review of Lyon's decision before PCC. Following a full hearing, PCC affirmed the violation, but reduced the suspension to six months.
Solski filed a timely appeal of the PCC decision to the superior court, where Judge Mark I. Wood upheld both the violation and the PCC's imposition of the six-month suspension
III. STANDARD OF REVIEW
We independently review the merits of an administrative determination where the superior court acts as an intermediate court of appeal.
In this case, we must determine whether FNSB properly interpreted its procedures governing its covert vehicle audit program and properly exercised its discretion in subjecting Solski to a covert vehicle audit. We review an agency's interpretation of its own regulations under the reasonable and not arbitrary standard.
We review a trial court's award of attorney's fees for an abuse of discretion.
A. Solski's Covert Audit Was Proper.
1. Solski has waived his argument that he followed normal inspection methods.
The PCC suspended Solski from the I/M program because he "failed to correctly perform the oxygen sensor visual inspection as specified in the FNSB I/M Program Mechanics['] Handbook, resulting in the passing of a vehicle documented as a failing vehicle by the FNSB I/M office." In one sentence in his brief, Solski states that he followed "the normal inspection method set out in the mechanic's guide book." He does not elaborate on this matter and offers no evidence to support his claim.
We have long held that "where a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal."
Because Solski has effectively waived the issue of whether he properly performed the oxygen sensor test, we limit our discussion to whether the audit itself was defective.
Solski next argues that his suspension should be vacated because his October 1997 covert audit was unlawful. In support of his claim, he argues that the audit suffered from two specific defects: (1) lack of randomness in his selection and (2) PCC's failure to have properly trained auditors conducting the test.
2. PCC followed proper procedures in selecting Solski for the covert audit.
Solski argues that his covert audit was invalid because PCC did not select him randomly as its own regulations require.
Thus, there are two bases for conducting covert audits—random testing and "as-needed" testing where there is a report or suspicion of station or mechanic misconduct. PCC interprets the "as needed" language above to permit additional covert audits on stations that have a history of poor performance on previous covert tests or routine facility audits.
FNSB freely admits that in this case Solski was not randomly chosen. Instead, it places its reliance on the "as-needed" language in its procedures, stating that it chose Solski for a covert audit over other mechanics and stations that had not yet been audited that year because he was under "heightened scrutiny" resulting from his unsatisfactory performance on five previous covert audits.
FNSB finds justification for its position in three provisions in its Program Design Document, which it believes gives it permission to perform covert vehicle audits at its own discretion. Section 3.3 of the Design Document requires the I/M program administrator to enforce the requirements of the I/M program and gives him or her broad discretion to conduct inspections and other performance tests to monitor the performance of the certified stations in the program.
FNSB's interpretation of the "as-needed" clause in its procedures governing covert test site selection is consistent with the provisions in its Design Document, all of which grant the I/M program administrator great discretion in investigating and enforcing the requirements of the I/M program. It is also consistent with the DEC regulations, which grant local I/M implementing agencies the authority to investigate alleged violations of its I/M regulations "on [their] own initiative," including through covert audits.
3. FNSB's lack of an auditor training program as delineated in its policy document does not make Solski's covert audit defective.
Solski further argues that his covert audit is invalid because FNSB does not train its auditors in the manner described in its policy document entitled "Program Procedures for Auditor Training and Proficiency."
An administrative agency is generally required to follow its own regulations;
Solski's audit was performed by Herring, a person certified as a referee mechanic, and Herring's actions in implementing the test were consistent with FNSB's covert audit procedures: he tested the referee vehicle to establish a baseline; he made the changes to the vehicle; he properly documented the changes; he retested the vehicle upon its return; and he contacted Solski after its return. In addition, Herring videotaped the change made to the subject vehicle before the covert audit and afterwards. In all these respects, Herring conducted the audit in a way that comported with the standards of the auditor training program.
Solski argues that Herring's decision to disconnect the oxygen sensor was a reflection of his lack of training because it is not the kind of defect one normally sees in a 1991 Jeep. The argument is unpersuasive. First, this was a defect that could easily be observed by a mechanic following the steps for the oxygen sensor visual inspection delineated by FNSB in its Mechanics' Handbook.
Under these circumstances, we hold that even if the "Program Procedures for Auditor Training and Proficiency" constituted regulations under state law (a question that we do not decide here), the purposes of the training program were met because the tester was familiar with and adhered to PCC and state regulations concerning testing. Accordingly, FNSB's lack of an auditor training program as set out in its program document does not render Solski's audit defective.
B. The Superior Court Did Not Err in Awarding Attorney's Fees to FNSB.
Solski challenges the superior court's award of attorney's fees to FNSB. We will reverse an attorney's fees award only if the superior court abused its discretion.
Because FNSB behaved in accordance with law and properly suspended Solski's license to perform I/M inspections, we AFFIRM the decision of the FNSB Pollution Control Commission. Because the superior court did not abuse its discretion in awarding attorney's fees, we also AFFIRM that award.
Less than two weeks later, on November 14, the PCC conducted a second covert audit of Solski's I/M, based upon a consumer complaint. Solski once again passed a vehicle which should have failed, neglecting to perform a required visual and functional inspection and entering false data onto the inspection form.
In June 1995 the PCC conducted a third covert audit of Solski and issued Solski a 30-day suspension for failing to catch a problem with the air temperature sensor during the visual inspection portion of the test. Solski challenged this suspension in a hearing before the PCC on June 28, 1995. The PCC determined that the suspension was too severe and reduced it to a warning.
On December 20, 1995 the PCC performed a fourth covert audit and gave Solski a 30-day suspension for entering false data and failing to perform a functional test.
Solski was subjected to a fifth covert audit in February 1996, for which he was issued another warning for, among other things, entering the incorrect engine size on the inspection form.
The I/M Program Administrator is the representative of the Borough for the purposes of monitoring and enforcing the requirements for Certified I/M Stations. The I/M Office shall routinely conduct inspections of the Certified I/M Stations to ensure that all Program requirements are being met.... The I/M Office may perform other quality control checks and monitoring of performance as the Program Administrator believes necessary.
The Program Administrator shall, on his or her own initiative or in response to complaints, investigate on a continuous basis and gather evidence of violations of the requirements of the I/M Program by any Certified I/M Station or by any employee, partner, officer, or member of a Certified I/M station.
The Program Administrator may conduct such investigations and hearings as he or she believes are necessary to enforce the requirements imposed upon Certified I/M mechanics and Certified I/M Stations under the I/M Program Design. Such investigations may include both overt and covert performance audits of Certified Stations and Mechanics by I/M staff or other individuals designated by the Program Administrator.
(b) The implementing agency shall, on its own initiative, or in its discretion in response to a complaint, investigate an alleged violation of this chapter by a certified mechanic or station or by an employee, partner, officer, or member of a certified station.
(d) The implementing agency may use an overt or covert performance review of a certified mechanic or station in an investigation under this section.