author: KUHN, J.

text:
    OAKVILLE COMMUNITY ACTION GROUP, Louisiana Environmental Action Network, and Glynn Mayfield v. LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY Nancy Fridge and Thomas Rhodes v. Louisiana Department of Environmental Quality.
    Nos. 2005 CA 1365, 2005 CA 1366.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 2006.

      Adam Babich, Karla A. Raettig, Rebecca G. Judd (Student Attorney), New Orleans, Counsel for Plaintiffs/Appellants Oakville Community Action Group, Louisiana Environmental Action Network and Glynn Mayfield.
    Peter J. Butler, New Orleans, Joell Keller, Baton Rouge, Counsel for Plaintiff/Appellant Nancy Fridge and Thomas Rhodes.
    Jackie M. Marve, Mazie M. Doomes, Roger K. Ward, Baton Rouge, Counsel for Defendant/Appellee Louisiana Department of Environmental Quality.
    Robert B. McNeal, Mark L. McNamara, Stephen O. Scandurro, Timothy D. Sean-durro, Jean-Paul Layrisson, New Orleans, Counsel for Intervenor/Appellee Industrial Pipe, Inc.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   KUHN, J.

| ¡¡This appeal presents the issue of whether the Louisiana Department of Environmental Quality (“LDEQ”) properly categorized Industrial Pipe, Inc.’s (“IPI”) waste processing facility as a Type III facility, which is subject to a 50-foot buffer zone requirement under Louisiana’s Solid Waste Regulations, Louisiana Administrative Code title 33, part VII, § 101 et seq. Plaintiffs-appellants, Oakville Community Action Group, Louisiana Environmental Action Network, and Glynn Mayfield (collectively referred to herein as “the Oak-ville plaintiffs”), contend that IPI’s operations at the facility render it a Type II-A facility, which is subject to a 200-foot buffer zone requirement. The LDEQ issued a Standard Solid Waste Type III permit, number P-0261RI, to IPI for its Separation Facility on January 7, 2004, and reissued the permit on August 25, 2004, with revised conditions. The Oakville plaintiffs challenged LDEQ’s actions in a petition for judicial review, and IPI intervened in that proceeding. The district court affirmed LDEQ’s actions, and the Oakville plaintiffs have appealed. After our own consideration of LDEQ’s administrative record and the district court’s record, we likewise affirm the district court’s actions.

I. FACTUAL AND PROCEDURAL HISTORY

IPI owns and operates various businesses on land located in Plaquemines Parish at 11266 Highway 23 in Belle Chase, Louisiana. At that address, IPI 1 operates both a Construction/Demolition Debris/Woodwaste Landfill (“C & D Landfill”) and a Separation Facility. The Separation Facility is located on approximately two acres of land and is about 2,500 feet west of La. Hwy. 23 and 600 feet south of the Hero Canal. Undeveloped property borders the Separation Facility to its north and south. The community of Oak-ville is located more than 1,300 feet to the southeast of the facility. In May 1989, IPI completed construction of its Separation Facility with the understanding that no solid waste permit was required.

In October 1989, LDEQ issued a penalty notice to Kennett Stewart, president and owner of IPI, wherein LDEQ found that Stewart had attempted to operate a recycling operation, known as the IPI Transfer Station. LDEQ found the operation was “an unauthorized transfer station,” and assessed a fine. LDEQ also issued a compliance order, wherein Stewart was ordered to close the unauthorized facility. Stewart complied with the order, and in August 1990, IPI applied for its initial permit for the facility.

IPI’s application described the type of waste being handled as “construction debris and waste paper and paper products (from reclamation project on site). In this waste is a deminumus (sic) amount of lunch wrappers and lunch remains that will be removed and sent to an appropriate facility.” The application further described the handling of waste at the facility as follows:

After dumping [the waste] on the tipping floor, wastes will be segregated and wastes routed to the reclamation facility and to the incinerator will also be measured by volume. Remaining wastes which inadvertently was included in the loads and which cannot be | ^handled at this facility will be contained, measured by volume, and shipped to the nearest facility permitted for such wastes.

IPI’s application further stated:

The facility will separate, store, and process the following types of materials:
• Materials for reclamation (paper and paper products, metals, and glass)
• Materials inadvertently included in loads for reclamation which cannot be handled due to economic or permit restriction reasons. Such materials will be disposed of in the incinerator on the site (if allowed by incinerator permit) or transport to off-site facility permitted for such materials
• Municipal solid wastes.

In August 1991, LDEQ issued IPI a Standard Permit, P-0261, for the operation of the facility, which LDEQ categorized as a transfer station. When LDEQ issued the initial permit, Louisiana Administrative Code title 33, part VII, § 1305(A)(3)(d) addressed the requisite buffer-zone:

Buffer zone not less than 200’ in width or other acceptable means to protect adjoining landowners against detrimental effects from the operation of the facility, shall be provided between any solid waste operating unit of the facility and the property line. A reduction in this requirement shall be allowed only with the permission of the adjoining landowners and occupants. Buffer zone requirements may be waived or modified by the assistant secretary for areas of landfills which (sic) have been closed in accordance with these regulations and for existing surface impoundments or existing industrial solid waste landfills.

After obtaining the permit, IPI’s operations at the Separation Facility resumed. Since then, IPI has maintained more than a 200-foot buffer zone on its east, west, and northern boundaries. It acknowledges, however, that its facility is 95 feet from the southern boundary of its property and that the buffer zone towards the south extends into the neighboring undeveloped property, which it asserts is not subject to development or other use due to lack of access. As part of its initial | ^application to construct and operate the Separation Facility, IPI submitted a signed waiver form from an adjoining property owner, Eckerd Johnson, Sr. This purported waiver acknowledged that “the buffer zone required of two hundred feet from the unit will extend into my property” and further stated, “I have no objection to this proposal.”

In 1992, LDEQ received a letter from the Tulane Environmental Law Clinic (“the Law Clinic”) claiming that the buffer zone waiver purportedly signed by Mr. Johnson was a forgery.

In 1993, LDEQ issued new solid waste regulations, thereby obtaining the authority of the United States Environmental Protection Agency to regulate solid waste disposal in Louisiana under the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (“RCRA). Pursuant to LDEQ’s new regulations, existing solid waste facilities were required to submit new permit applications. Type II-A facilities operating under a standard permit were required to submit a mandatory modification document addressing the new state regulations to LDEQ no later than February 1, 1994. La. Admin. Code tit. 33, part VII, § 315(G)(3)(a).

In February 1994, IPI submitted its mandatory permit modification, which addressed physical and operational modifications made in response to the new regulations. Therein, in reference to the 200-foot buffer zone requirements applicable to Type II-A facilities set forth in Louisiana Administrative Code title 33, part VII, § 717(B)(2)(a), IPI asserted, “A waiver allowing the encroachment of [7the 200 foot buffer zone onto neighboring property located to the south is still in affect.”

In August 1996, the LDEQ issued a notice of intent to revoke IPI’s permit and a show cause order based upon the problems with the buffer zone waiver. Pursuant to a September 30, 1996 letter from Peter A. Romanowsky and Ted E. Dove of G & E Engineering, Inc. submitted on IPI’s behalf, IPI petitioned LDEQ for an exemption from the 200-foot buffer zone requirement for a Type II-A facility. The letter represented that Mr. Stewart had recently learned that Mr. Johnson had owned only a one-ninth undivided interest in the property to the south of IPI’s facility and that “the buffer zone waiver obtained and acted upon in good faith by Mr. Stewart may be considered potentially defective.” The letter further stated that compliance with the buffer zone requirement would require the dismantling and demolishing of the current facility and the reconstruction and assembling of the facility 105 feet to the north of the southern boundary of the property, which would cost approximately $750,000. The letter submitted that such an expense was an unreasonable economic burden to impose on IPI.

LDEQ responded by letter dated October 21, 1996, wherein it informed Mr. Stewart that the “waiver signed by ‘Eck-erd Johnson, Sr.’ was not ... valid at the time you applied for a permit for your transfer station.” In November 1996, LDEQ granted the Law Clinic’s request for a sixty-day comment period and a Ispublic hearing concerning IPI’s exemption request. In September 1996, LDEQ rescinded its notice of intent to revoke IPI’s transfer station permit, while reserving the right to reissue a notice. On May 22, 1997, LDEQ’s Solid Waste Division decided to approve IPI’s exemption request, based on its findings that: 1) the transfer station was an existing facility; 2) if the exemption were not granted, IPI would be forced to either cease operations or relocate; 3) the adjoining property was mainly wetlands and “may not be suitable for development without mitigation measures;” and 4) the Corps of Engineers was proposing to construct a hurricane protection levee within the buffer zone that would buffer the transfer station from the adjoining property.

In June 1997, however, LDEQ’s Assistant Secretary issued a compliance order that directed IPI to provide documentation to the Solid Waste Division of the 200-foot buffer zone in accordance with its Standard Permit, P-0261. But in July 1997, LDEQ’s Assistant Secretary issued an amended compliance order deleting the paragraph that had previously ordered compliance with the 200-foot buzzer zone requirement. After LDEQ issued the amended compliance order, IPI considered the matter resolved.

In May 1998, however, the Law Clinic sent a letter to LDEQ, stating that IPI had continued to operate its transfer station in violation of LDEQ regulations and IPI’s permit requirements by operating within 200 feet of adjoining property without a valid waiver. The Law Clinic asked LDEQ to: 1) deny IPI’s exemption application, and 2) reissue its “Notice of Intent to Revoke Permit” that LDEQ originally issued in August 1996.

In a May 4, 1999 letter from IPI’s counsel to LDEQ, IPI formally withdrew its petition for exemption that had been filed in September 1996. Also in a May 5, 1999 letter to LDEQ’s Office of Waste Services, IPI formally requested reclassification of its facility from a Type II-A Transfer Station to a Type III Separation Facility. This letter delineated the facility’s permit history and stated that LDEQ personnel had initially found that IPI’s facility was technically not a transfer station, but they had required IPI to apply for a transfer station permit due to the broad definition of a transfer station under the existing regulations in 1991. Based on the 1993 revisions of Louisiana’s Solid Waste Regulations, IPI’s counsel urged that LDEQ should have reclassified IPI as a Type III Separation Facility and instructed IPI to submit a mandatory modification document compliant with the requirements applicable to such facilities rather than being required to submit a mandatory modification document to address the solid waste regulations for a Type II-A Transfer Station in accordance with Louisiana Administrative Code title 33, part VII, § 315(G)(3).

Along with IPI’s May 1999 letter addressing its facility’s categorization, IPI submitted a revised solid waste permit mandatory modification for a Type III Separation Facility. Therein, IPI described that it maintained a “50-foot (plus) buffer zone” around the Separation Facility and indicated that its facility did not store, process, or dispose of solid waste within the buffer zone. See La. Admin. Code tit. 33, part VII, § 719(B)(2).

In June 1999, the Law Clinic again wrote to LDEQ requesting a meeting regarding LDEQ’s failure to act regarding IPI’s buffer zone violation. In September 1999, LDEQ’s Permit Division denied IPI’s request for a facility | mreclassification. In February 2000, IPI’s counsel submitted a petition to amend IPI’s modification request (“Modification # 3”), wherein IPI sought, among other modifications, to re-categorize only a portion of its facility, the picking belt system, as a Type III Separation Facility. On February 29, 2000, LDEQ approved Modification # 3, allowing the southern portion of the facility to be categorized as a separation facility and the remaining portion as a transfer station. LDEQ’s decision was later challenged in the Nineteenth Judicial District Court. In Mayfield v. Givens, 470,993 (19th J.D.C. 12/8/00), the district court vacated LDEQ’s decision and remanded the matter to LDEQ.

In July 2001, IPI asked LDEQ to consider its mandatory modification document as an equivalent to a permit renewal request, and IPI published its notice of intent to submit a permit renewal application for a Type II — A/III Transfer and Recycling Facility. In August 2001, IPI submitted a solid waste permit renewal application/mandatory modification document for a Type II — A/III Transfer Station/Separation Facility. The application set forth that the Separation Facility maintains a minimum 50-foot buffer zone and the Transfer Station maintains a minimum 200-foot buffer zone. In May 2003, IPI received LDEQ’s notices of deficiencies in response to IPI’s May 1999 and August 2001 submittals, and on June 20, 2003, IPI filed its responses to those notices, providing the additional information requested by LDEQ.

In August 2003, IPI submitted its solid waste permit renewal application for a Type III Separation Facility and resubmitted final copies of the renewal application in October 2003. This application identified the Separation Facility as a Type III Resource Recovery/Recycling Facility that was being operated by IPI’s In subsidiary, Riverside Recycling & Disposal. This application also indicated that the facility processes off-site waste from residential, commercial, and other (curbside debris, white goods, and construction/demolition debris) sources for the purpose of recovering recyclable materials. Exhibits to IPI’s application set forth that the Separation Facility maintains a minimum 50-foot buffer zone in accordance with regulations for Type III facilities.

In October 2003, LDEQ reviewed the updated permit application and deemed it technically complete and ready for public review. A public hearing was held, followed by a two-month public comment period that ended in December 2003. On January 8, 2004, LDEQ issued a Standard Type III permit, P-0261 RI, to IPI’s Separation Facility. In support of the permit action, LDEQ issued a detailed “Basis for Decision,” concluding that the Separation Facility permit would be “protective of human health and the environment.” Because LDEQ imposed certain permit conditions that required IPI to weigh all materials entering the facility and restricting its operating hours, IPI filed a request for a hearing with LDEQ’s secretary contesting these restrictions.

In February 2004, the Oakville plaintiffs filed a petition for judicial review, naming LDEQ as a defendant, challenging the categorization of IPI’s Separation Facility, and seeking to have IPI’s Type III standard permit vacated. IPI intervened in these proceedings, praying that the Oak-ville plaintiffs’ requested relief would be denied.

| T ¡After IPI submitted additional documentation to LDEQ’s permit division, IPI and LDEQ entered into a settlement agreement regarding the appealed permit conditions. On August 25, 2004, LDEQ reissued the Type III Separation Facility permit with revised conditions pertaining to the facility’s measurement of waste and its operating hours. At this juncture, the Oakville plaintiffs amended their petition, asserting LDEQ’s permitting decisions are not supported by the law and seeking to have the Type III Separation Facility permit vacated, both as it was originally issued and as it was amended.

After reviewing LDEQ’s administrative record and conducting its own hearing, the district court signed a judgment affirming LDEQ’s issuance of the Type III Separation Facility permit on January 7, 2004 and its re-issuance of the permit, with revised conditions, on August 25, 2004. The district court reasoned, in pertinent part:

[LDEQ] is the state agency charged with interpreting its own rules and regulations. And I fully agree with the cases cited by [LDEQ], which says that in interpreting their own rules and regulations great deference must be given to their interpretation. And it is [LDEQ’s] position, and one that I think is supported completely by the record, that there was not a change in what [IPI] was doing at this facility; it was just a change in definition or in classification. And [LDEQ] just fit the old function to the new label ... and, I think, was totally appropriate in its decision to classify this facility now as a Type III facility under the new definitions and classifications. And I do not see that as a basis for reversal or remand.
I have handled ... many appeals from [LDEQ] in the eight years that I’ve been on the bench. And I must say that this is the most thorough and comprehensive basis for a decision and responsiveness summary that I have seen in those eight years. It covered all aspects of the I.T. analysis. It gave meaningful and appropriate responses to the comments that were generated in the public comment section. I see absolutely no basis for reversal or remand based upon the I.T. analysis that was done. I think the evidence supports the [LDEQ] Indecision, and I’m going to affirm that decision at [the Oakville plaintiffs’] costs.

The Oakville plaintiffs have appealed, urging that the district court erred in upholding LDEQ’s permitting decisions. They contend LDEQ’s erroneous decision to re-categorize IPI’s facility as a Type III facility is based on an incorrect interpretation of Louisiana’s solid waste regulations and “wrongfully allows [IPI] to process residential and commercial waste within a 200-foot buffer zone meant to separate facility operations from the Oakville community.”

II. ANALYSIS

A. Contentions of the Parties

Pursuant to IPI’s Type II-A standard permit, the Oakville plaintiffs contend that IPI was required to maintain a 200-foot buffer zone. The Oakville plaintiffs assert that IPI unlawfully constructed its waste processing facility within 95 feet of its property line and that LDEQ has never taken action to address this buffer zone violation. The Oakville plaintiffs assert that LDEQ simply reclassified the Type II-A waste processing facility as a Type III facility to resolve the non-compliance issue since the Type III categorization only requires a 50-foot buffer zone. The Oakville plaintiffs posit that the regulations categorize facilities based on the type of waste processed and that IPI is a Type II-A facility because it processes commercial and residential waste. The Oakville plaintiffs urge that because IPI’s waste processing operations involve wastes entering the facility in containers on trucks and the placement of waste in other vehicles for shipment off-site to authorized disposal or recycling facilities, it should be considered a Type II-A transfer station.

| uLDEQ argues that because separation facilities were not separately regulated in 1991, IPI’s separation facility was initially permitted under the then-existing definition for a transfer station. It urges that when LDEQ amended Louisiana’s solid waste regulations to satisfy the requirements of RCRA, the new regulations added a separation facility as a new type of permitted facility. LDEQ urges that based on the revised regulations, the operations and activities at IPI’s separation facility no longer meet the definition of a transfer station. It asserts that the operations of the separation facility fall squarely within the Type III category of facilities and specifically fit the state’s regulatory definition of a separation facility. LDEQ also submits that although the definition of a separation facility does not limit the types of waste coming into the facility, the Type III permit issued to IPI specifically limits the type of waste allowed into the facility and prohibits the receipt of hazardous waste.

IPI contends that the Oakville plaintiffs ignore that the revised solid waste regulations delineate separation facilities as Type III facilities. IPI asserts its facility is a separation facility because it conducts recycling activities by separating recyclables from a solid waste stream, and because it is not simply transferring waste between vehicles. IPI states, “[WJaste is received [at the facility] and transferred to the picking line where workers remove [recyclable materials]. Residual non-recyclable material either goes to the on-site C & D landfill if applicable, or to an off-site permitted landfill for disposal.” (Footnote references omitted). IPI asserts that if this court were to accept the Oakville plaintiffs’ contentions, every waste facility would be classified as a transfer | facility “since essentially all waste facilities collect and transport waste as it is being handled and moved.”

B. Standard of Review

The applicable standard for our appellate review is set forth as follows:

Louisiana Revised Statute 30:2050.21 sets forth the procedure for judicial review of a final permit decision of the [LDEQ], Judicial review provisions of the Administrative Procedure Act and its standard of review are applicable to [LDEQ] proceedings. LSA-R.S. 30:2050.21(F). Judicial review is conducted by the court without a jury and is confined to the record. LSA-R.S. 49:964(F).
When reviewing an administrative final decision in an adjudication proceeding, the district court functions as an appellate court. The Nineteenth Judicial District Court is vested with exclusive jurisdiction to review final permit actions, final enforcement actions, or declaratory rulings made by the [LDEQ], LSA-R.S. 30:2050.21(A). Any party aggrieved by a final judgment or interlocutory order or ruling of the Nineteenth Judicial District Court may appeal or seek review to this court. LSA-R.S. 30:2050.31.
A reviewing court may affirm the decision of the agency or remand the case for further proceedings. LSA-R.S. 49:964(G). The court may reverse or modify an agency decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or (6) not supported and sustainable by a preponderance of the evidence as determined by the reviewing court.

Dow Chemical Co. Louisiana Operations Complex Cellulose and Light Hydrocarbons Plants, Part 70 Air Permit Major Modifications and Emission v. Reduction Credits, 03-2278, pp. 6-7 (La.App. 1st Cir.9/17/04), 885 So.2d 5, 10, writ denied, 04-3005 (La.2/18/05), 896 So.2d 34. (Citations omitted.)

lifiC. Categorization of the Facility

In the present case, the issue presented is simply whether the LDEQ and the district court committed an error of law in categorizing IPI’s facility as a Separation Facility under the applicable solid waste regulations.

In 1991, when DEQ issued IPI’s Standard Permit, P-0261, Louisiana’s solid waste regulations did not separately regulate separation facilities and did not define or otherwise categorize separation facilities. Louisiana Administrative Code title 33, part VII, § 501 then broadly defined a “Transfer Station” as “a type of facility for accumulation and processing of solid waste for re-shipment or resale, or for processing for waste reduction, resource recovery, or other similar activities.” (Emphasis added.) “Process” was defined as “to recycle, recover, compact, shred, or otherwise convert solid waste to a useful form or a form more convenient to handle, or for reshipment or resale.” (Emphasis added.) La. Admin. Code tit. 83, part VII, § 501. And “Resource Recovery” was defined as “the process by which materials subject to these regulations which still have useful physical or chemical properties are reused or recycled for the same or other purposes, including uses as an energy source.” La. Admin. Code tit. 33, part VII, § 501.

Under the current solid waste regulations, as revised in 1993, a “Transfer Station” is defined as “a solid waste processing facility where solid waste is transferred from collection vehicles and placed in other vehicles for transportation.” The 1993 revision also added a definition for “Separation Facility,” a term which the solid waste regulations had not previously defined. It |17is now defined as “a solid waste facility at which recyclables are separated from the solid waste stream for future use.” La. Admin. Code tit. 33, part VII, § 115.

Also relevant is that under the revised solid waste regulations, Type II-A facilities are defined as “a facility used for processing residential, infectious, or commercial solid waste (e.g., transfer station, incinerator waste-handling facility, refuse-derived fuel facility, shredder, baler, autoclave, or compactor). (If the facility is also used for processing industrial solid waste, it is also a Type I-A facility.)” La. Admin. Code tit. 33, part VII, § 115. And Type III facilities are defined as “a facility used for disposing or processing of construction/demolition debris or woodwaste, composting organic waste to produce a usable material, or separating recyclable wastes (a separation facility). Residential, commercial, or industrial solid waste must not be disposed of in a Type III facility.” La. Admin. Code tit. 33, part VII, § 115. (Emphasis added.)

|1sIn its final permit application, IPI addressed the types of waste processed at its facility as follows:

The facility receives, separates, and sells non-industrial, non[-] hazardous materials for reclamation such as paper, paper products, metal, and glass. The receipt of hazardous waste, mercury and/or cadmium-bearing batteries, PCBs, asbestos, incinerator ash, infectious waste, domestic sewage sludge, industrial solid waste, hazardous waste, or nonhazardous petroleum-contaminated media and debris generated from underground storage tank corrective action activities is strictly prohibited. The facility does not accept industrial waste.
... Except for incidental amounts of putrescible waste inadvertently included with waste loads, IPI separates only nonputrescible wastes with a recoverable amount of recyclable material including steel, cardboard, aluminum, plastic, and any other material with a value when recovered. Typical waste sources ... include waste from appliance stores, office buildings, hardware/lumber stores/distributors, department stores, and construction and demolition (C & D) debris with a visible volume of recyclables.

Exhibits attached to IPI’s application specified that sources of waste separated at the facility include customers primarily located in Plaquemines, Jefferson, Orleans, and St. Bernard Parishes. IPI further described that its facility segregates wastes by type into the following categories: 1) waste that can be reclaimed and sold; 2) waste that can be landfilled at a construction debris landfill; 3) waste that cannot be recycled or disposed of in a construction debris landfill and will be sent to a type II permitted solid waste facility; and 4) tires, oil, refrigerant, and other wastes/materials that must be managed in accordance with special requirements and are shipped off-site to an authorized facility for disposal or recycling.

IPI’s final permit application also included the following description of proposed modifications to its existing facility for recycling operations:

11flRiverside Recycling and Disposal is proposing (1) to augment and enhance a recycling facility or separation facility that separates recyclable materials from trash taken from office buildings, shopping malls, and other commercial establishments ....
The modification of the existing recycling facility includes the addition of 11,-000 square feet of an enclosed area that will house the enhanced recycling operations. A new 85 foot long picking station with 10 persons servicing the picking station will be built in this area, as well as one rotary screen, one shredder, one eddy current system, two magnets, and assorted feeder belts. This facility will recycle steel, non-ferrous metal, and mixed grades of paper and cardboard. Recycled steel will be sold directly to steel mills; non-ferrous metals will be sold to secondary smelters; and, paper items will be sold to paper mills. Riverside Recycling & Disposal is the only company recycling non-separated trash in the New Orleans area.

One of RCRA’s stated objectives is to promote “new and improved methods of collection, separation, and recovery, and recycling of solid wastes.” 42 U.S.C. § 6902(a)(9). Louisiana’s Solid Waste Management and Resource Recovery Law, La. R.S. 30:2151 et seq. (“Resource Recovery Law”), also promotes recycling through a coordinated statewide resource recovery and management program.

With this objective in mind and based upon a close review of the documents describing EPI’s facility operations, we find that the district court correctly affirmed LDEQ’s decision to issue a Type III permit to IPI for its Separation Facility. Based on all pertinent descriptions of IPI’s operations, IPI’s Separation Facility separates recyclable waste; the definition of a Type III facility includes such a separation facility. The record further establishes that IPI’s Separation Facility does not dispose of any type of waste; rather it accepts and processes waste. The purpose and function of the facility is to separate waste so that recyclable wastes can be recovered.

1 ^Accordingly, we decline to accept the Oakville plaintiffs’ contention that because separated waste is placed in vehicles for shipment to off-site facilities after it is processed at IPI’s facility, the facility should be categorized as a Type II-A transfer station. Such an interpretation of the regulations would clearly frustrate the goals of RCRA and our state’s Resource Recovery Law. Likewise, a companion goal of protecting our environment against contamination is reached by the terms of the Type III permit; the incoming solid waste stream at IPI’s Separation Facility is limited and restricted by the terms of the LDEQ permit.

We also reject the Oakville plaintiffs’ contentions that the categorization is strictly based on the type of waste processed. The definition of a Type III facility is not contingent upon a facility that processes a certain type of waste. The Type III facility definition is broadly drafted to include all separation facilities.

A state agency is charged with interpreting its own rules and regulations and great deference must be given to the agency’s interpretation. In the Matter of Recovery I, Inc., 93-0441 (La.App. 1st Cir.4/8/94), 635 So.2d 690, 696, writ denied, 94-1232 (La.7/1/94), 639 So.2d 1169. After reviewing and considering all public comments, reviewing the IT responses set forth in IPI’s application, reviewing the entire record, and conducting its own IT analysis, LDEQ determined the Separation Facility was properly classified as a Type III waste management facility. The district court properly afforded deference to LDEQ’s determination 1 g;regarding the facility’s categorization. We find no error of law in the findings of LDEQ or the district court, we find the categorization of IPI’s facility as a Type III facility is supported by a preponderance of the evidence, and we find that LDEQ’s findings are not arbitrary or capricious or characterized by an abuse of discretion. Because we conclude that IPI’s facility was properly permitted as a Type III facility, we further conclude that, under the applicable regulations, the facility is only required to maintain a 50-foot buffer zone.

III. CONCLUSION

For the above reasons, we find no merit in the assignment of error raised by the Oakville plaintiffs, and we conclude that the district court properly affirmed LDEQ’s January 7, 2004 renewal of IPI’s Type III Separation Facility permit, P-0261R1, and its re-issuance of the permit with revised conditions on August 25, 2004. Appeal costs are assessed against the Oak-ville plaintiffs.

AFFIRMED.

GUIDRY, J., concurs.

      . In a separate petition for judicial review in the Nineteenth Judicial District Court, Nancy Fridge and Thomas Rhodes, who are both residents of Oakville, Louisiana, also sought to have LDEQ’s January 7, 2004 permit action and its August 25, 2004 revised permit vacated. The proceeding filed by Fridge and Rhodes was consolidated with the proceeding filed by the Oakville plaintiffs. Although the district court's April 8, 2005 judgment considered on appeal disposed of the claims pending in both proceedings, Fridge and Rhodes have not appealed.

      . The Oakville plaintiffs do not raise any issues in this appeal concerning whether the C & D Landfill has been properly categorized under Louisiana’s Solid Waste Regulations. Therefore, subsequent references to IPI’s facility refer only to its Separation Facility.

      . EPA approved the LDEQ’s solid waste regulations on November 4, 1993. 58 Fed.Reg. 58,860 (November 4, 1993).

      . Type II-A facilities were required to upgrade in accordance with the regulations no later than December 31, 1997. La. Admin. Code tit. 33, part VII, § 315(G)(3)(b).

      . LDEQ’s notice of intent to revoke stated, “At the time of the permit application submit-tal containing the waiver of buffer zone, the legal owners of property adjacent to [IPI's] transfer station were the heirs of Eckard Johnson, Sr., who died February 17, 1987 .... ” The signature on the waiver form was spelled "Eckerd,’’ rather than “Eckard,” and Mr. Johnson’s heirs had asserted it was a forgery. The notice of intent also stated, "The waiver is also defective for the reason that it was confected for a burner rather than a transfer station.”

      . Louisiana Revised Statutes 30:2024 provides the basis for this hearing.

      . Further, Louisiana Administrative Code title 33, part VII, § 115 includes the following pertinent definitions:
      Commercial Solid Waste — all types of solid waste generated by stores, offices, restaurant, warehouses, and other nonmanufac-turing activities, excluding residential and industrial solid wastes.
      Infectious Waste — waste that contains pathogens of sufficient virulence and quantity that exposure to it could result in an infectious disease in a susceptible host.
      Process — a method or technique, including recycling, recovering, compacting ... composting, incinerating, shredding, baling, recovering resources, pyrolyzing, or any other method or technique designed to change the physical, chemical, or biological character or composition of a solid waste to render it safer for transport; reduced in volume; amenable for recovery, storage, reshipment, or resale....
      Residential Solid Waste — -any solid waste (including garbage, trash, and sludges from residential septic tanks and wastewater treatment facilities) derived from households ....

      . In the "IT decision," Save Ourselves, Inc. v. Louisiana Environmental Control Commission, 452 So.2d 1152 (La.1984), the Louisiana Supreme Court set forth a number of factors to be considered by LDEQ when employing a cost-benefit analysis to determine whether to grant or deny a permit for a proposed facility. LDEQ's January 7, 2004 Basis for Decision sets forth an extensive analysis pursuant to the "IT” requirements. As part of this analysis, LDEQ concluded, "[A]dverse environmental impacts have been minimized or avoided as much as possible consistently (sic) with the public welfare.” On appeal, the Oakville plaintiffs do not raise any assignments of error pertaining to LDEQ’s analysis of the IT factors.


source: Caselaw Access Project

author:
GAIDRY, J.
      DOWNING, J.,

license: Public Domain

text:
    Todd Allen DEAN and Cheryl Dean v. GRIFFIN CRANE & STEEL, INC., Fire & Casualty Company of Connecticut, Earnest Williams, Jr., Coregis Insurance Company, ABC Insurance Company, XYZ Insurance Company and Allstate Insurance Company.
    No. 2005 CA 1226.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 2006.

      Robert E. Winn, April L. Watson, New Orleans, Counsel for Third-Party Plaintiffs/Appellees Griffin Crane & Steel Service, Inc., Security Insurance Company of Hartford, Successor in Interest to the Fire and Casualty Company of Connecticut, and Earnest Williams, Jr.
    Claire Breaux Ventola, Magali A. Puente Martin, Jaime M. Cambre, Metairie, Counsel for Third-Party Defendant/Appellant Abita Brewing Company, L.L.C.
    Before: CARTER, C.J., DOWNING, and GAIDRY, JJ.
   GAIDRY, J.

laThis is an appeal of a partial summary judgment finding the third-party-defendant/appellant, Abita Brewing Company, L.L.C., liable for contractual indemnity to the third-party plaintiffs/appellees, Griffin Crane & Steel Service, Inc., Security Insurance Company of Hartford, and Ernest Williams, Jr. For the reasons set forth below, we reverse the trial court’s judgment and render judgment in favor of the third-party defendant/appellant, Abita Brewing Company, L.L.C., dismissing it as a party in this litigation.

FACTS AND PROCEDURAL HISTORY

On December 5, 2001, James R. Franklin, the plant engineer for Abita Brewing Company, L.L.C. (Abita), a brewery in Abita Springs, Louisiana, telephoned Griffin Crane & Steel Service, Inc. (Griffin Crane) of Pearl River, Louisiana, to secure the services of a large crane and an operator for the purpose of moving and positioning large fermentation tanks at the brewery. Abita’s premises were approximately twenty to thirty miles from Griffin Crane’s equipment yard. It took approximately an hour for the mobile or self-propelled crane to travel from Griffin’s equipment yard to the brewery.

The crane was operated by Griffin Crane’s employee, Ernest Williams, Jr. After arriving at the brewery at 12:00 p.m., Mr. Williams operated the crane under the direction of Mr. Franklin, with the rigging of the fermentation tanks to the crane being handled by Abita employees. After the task of moving the tanks was complete, Mr. Williams filled in the time information on a form lease document and secured Mr. Franklin’s signature as Abita’s agent authorized to agree to its terms. Mr. Williams departed Abita’s premises no later than 1:30 p.m.

|sThe accident forming the basis of this litigation occurred at approximately 2:12 p.m. on Louisiana Highway 41 in Pearl River, as Mr. Williams was returning to his employer’s yard with the crane. As Mr. Williams approached Louisiana Highway 41’s intersection with Louisiana Highway 11, the crane struck the rear of a school bus operated by Todd A. Dean. Mr. Dean and his wife (the plaintiffs) subsequently sued Mr. Williams, Griffin Crane, and their liability insurer, Security Insurance Company of Hartford for damages. The plaintiffs’ petition alleged that the sole cause of the accident was Mr. Williams’s negligence, imputable to Griffin Crane as his employer and to their liability insurer. In turn, those defendants served a third-party demand upon Abita, alleging that they were entitled to indemnity from Abita for the plaintiffs’ claims under the terms of the lease contract. Abita answered the third-party demand, denying its liability for indemnity.

On June 20, 2003, Abita filed a motion for summary judgment, seeking the dismissal of the third-party demand on the grounds that the indemnity provisions of the contract were ambiguous and that Mr. Franklin had no actual or apparent authority to bind Abita to those terms. Its motion was denied by the trial court following a hearing. After further proceedings and discovery, Abita filed a second motion for summary judgment on September 27, 2004, and the third-party plaintiffs (collectively referred to for convenience as “Griffin Crane”) responded with a cross-motion for partial summary judgment recognizing their claimed right to contractual indemnity.

14The opposing motions for summary judgment were heard on January 12, 2005. By judgment signed February 7, 2005, the trial court denied Abita’s motion and granted the third-party plaintiffs’ motion, designating that judgment as final for purposes of appeal. Abita now appeals the partial summary judgment in favor of Griffin Crane, as well as the denial of its motion for summary judgment.

STANDARD OF REVIEW

As this is an appeal from a summary judgment, it is subject to de novo review as to whether summary judgment was appropriate, using the same criteria governing the trial court’s consideration. Motorola, Inc. v. Associated Indemnity Corporation, 02-0716, p. 5 (La.App. 1st Cir.6/25/04), 878 So.2d 824, 828, units denied, 04-2314, 04-2323, 04-2326, 04-2327 (La.11/19/04), 888 So.2d 207, 211, 212.

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits in the record show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). When a contract can be construed from the four corners of the instrument without looking to extrinsic evidence, the question of contractual interpretation is answered as a Isinatter of law, and summary judgment is appropriate. Peterson v. Schimek, 98-1712, p. 5 (La.3/2/99), 729 So.2d 1024, 1029.

ANALYSIS

The contract at issue was a printed, single-sheet form document bearing the title, “Equipment — Daily Time Sheet,” beneath Griffin Crane’s corporate letterhead. It is immediately apparent that the contract was more than a simple lease of the crane for a fixed term of time. It also contemplated the providing of the services of the crane operator to perform “work” at a “job location” or “site.” The form contract’s language contemplated that a customer’s “unit” would be “lifted and/or hauled” by the “leased equipment.”

Mr. Williams supplied the information to complete the form contract for this particular agreement by writing that information on the front page by hand. Other than the signature of Mr. Franklin as Abita’s authorized agent, all handwritten entries were composed and written by Mr. Williams. The “job location” was described as “Abita beer [sic ].” The “work description” was defined as “unload tanks.” (Given those descriptions in the contract and the evidence in the record, the parties clearly did not contemplate any hauling or transportation of Abita’s tanks off its premises.) The hourly invoicing section of the form contract also provided for entries for “time left yard,” “time start work,” “time finished work,” and “time returned to yard.” Mr. Williams entered “11:00 a.m.” for “time left yard” and “12:00 a.m. [sic ]” for “time start work,” but did not make any other time entries, other than to designate a four-hour minimum in hourly charges, at a rate of $90.00 per hour. He also entered a $40.00 charge for a “permit” for the crane’s travel “to and from job site.”

|fiThe reverse of the contract sets out the following provision, the interpretation of which is the central issue of this appeal:

GENERAL CONDITIONS
It is agreed that the equipment listed on the front of this Time Sheet is subject to the following terms and conditions:
3. LIABILITY OF LESSEE
Liability for injury, disability and death of workmen and other persons caused by the operation or handling of the equipment during the period shall be assumed by the Lessee, and he shall indemnify that [sic] Lessor against all such liability. Lessee also agrees to indemnify and hold Lessor and Lessor’s Insurance Carrier harmless against any loss, damage, claims or liability however caused, even if caused by Lessor’s sole negligence, arising out of the performance of the work while using Lessor’s equipment. Griffin Crane Service assumes no liability for any type of damages and/or injuries caused by the actions of customer [sic ], including customer’s [sic ] negligence, willful misconduct and/or strict liability. (Emphasis supplied.)

|7We begin our interpretation of the contract at issue with the following established principle in mind: A contract of indemnity whereby the indemnitee is indemnified against the consequences of his own negligence is strictly construed, and such a contract will not be construed to indemnify an indemnitee against losses resulting to him through his own negligent acts unless such an intention is expressed in unequivocal terms. Berry v. Orleans Parish School Board, 01-3283, p. 4 (La.6/21/02), 830 So.2d 283, 285, citing Perkins v. Rubicon, Inc., 563 So.2d 258, 259 (La.1990). This court expressed the basis for this principle over thirty-eight years ago in Arnold v. Stupp Corporation, 205 So.2d 797, 799 (La.App. 1st Cir.1967), writ not considered, 251 La. 936, 207 So.2d 540 (1968): “[GJeneral words alone, i.e., ‘any and all liability’, do not necessarily import an intent to impose an obligation so extraordinary and harsh as to render an indemnitor liable to an indemnitee for damages occasioned by the sole negligence of the latter.”

The general rules which govern the interpretation of other contracts apply in construing a contract of indemnity. McKinney v. South Central Bell Telephone Company, 590 So.2d 1220, 1222 (La.App. 1st Cir.1991), writ denied, 592 So.2d 1302 (La.1992), citing Liem v. Austin Power, Inc., 569 So.2d 601, 608 (La.App. 2nd Cir.1990). The following general codal principles guide our interpretation of the contract, including its indemnity provisions. See Berry, 01-3283 at p. 3, 830 So.2d at 285.

Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. This is an objective inquiry; thus, “a party’s declaration of will becomes an integral part of his will.” La. C.C. art. 2045, Revision Comments— 1984, (b). When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. |s2046. The words of a contract must be given their generally prevailing meaning. La. C.C. art. 2047. Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract. La. C.C. art. 2048. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050.

Louisiana Civil Code article 2056 provides:

In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text.
A contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party.

Similarly, La. C.C. art. 2057 sets forth an analogous rule:

In case of doubt that cannot be otherwise resolved, a contract must be interpreted against the obligee and in favor of the obligor of a particular obligation.
Yet, if the doubt arises from lack of a necessary explanation that one party should have given, or from negligence or fault of one party, the contract must be interpreted in a manner favorable to the other party whether obligee or obligor.

In support of its position, Griffin Crane cites Perkins v. Rubicon, Inc., supra. Our supreme court in Rubicon held that an indemnity agreement requiring a maintenance contractor to indemnify an industrial plant owner for any liability arising out of its performance of its maintenance contract, even if caused by the plant owner’s negligence, was enforceable. There, the agreement unequivocally provided that the contractor agreed to “indemnify and hold [the owner] harmless from all claims, suits, actions, losses and damages for personal injury, including death and property damage, even though caused by the negligence of [the owner], arising out of [the contractor’s] performance of the work contemplated by this agreement.” Rubicon, 563 So.2d at 258. An employee of the contractor performing maintenance work inside a tank at the plant under the maintenance contract was injured by the negligent release of phosgene gas by employees of the owner, and sued the owner. The supreme court observed:

Because the purpose of the indemnity agreement is to allocate risks inherent in the activity between the parties to the contract, we must determine whether the risk that resulted in the injury was one contemplated by the parties to the contract. In the present case, [the owner] wished to contract out its maintenance work, but it obviously did not wish to assume the greater risks of injury inherent in having a contractor perform the maintenance work. These additional risks include not only those caused by the potential fault of the contractor, but also those caused by [the owner] that result in injuries to the contractor’s employees. Accordingly, the parties agreed that [the contractor] would bear the risk of injuries “arising out of’ its performance of the contract. Rather than requiring fault on the part of the contractor, we read this language as requiring a connexity similar to that required for determining cause-in-fact: Would the particular injury have occurred but for the performance of work under the contract?

Id. at 259.

Griffin Crane focuses its argument on the phrase “arising out of,” insisting that application of Rubicon ⅛ “but for” analysis compels the conclusion the result reached by the trial court. In short, Griffin Crane contends that but for the performance of its work under the contract, which included its crane’s travel to and from Abita’s brewery, the accident would not have occurred; thus, the accident arose out of the performance of the work. We disagree. The contract at issue expressly limited the connexity required for imposition of unconditional indemnity to “the work.” The contract expressly defined the “work description” as “unload tanks,” and unequivocally distinguished the “time [the crane] left yard” from the “time [the crane] start [sic ] work.” The focus of analysis should therefore be the | inmeaning of the “work” being performed. In Rubicon, there was no dispute as to the nature of the work upon which the right to indemnity was based. Such is not the case here. The factual circumstances of Rubicon are thus distinguishable.

It is clear from the record, and undisputed by the parties, that the accident at issue occurred off the “job location” (Abita’s premises) and following the completion of the described “work” of “unloading]” (moving) the tanks. Griffin Crane nevertheless contends that it is entitled to indemnity from Abita for all liability “caused by the operation or handling of the equipment” during the entire term of the lease, thus encompassing the travel time of the crane charged to Abita.

While it is true that paragraph 3 of the “General Conditions” obligates Abita to indemnify Griffin Crane for “[all][l]iability for injury, disability and death of ... other persons caused by the operation or handling of the equipment during the period,” that sentence does not expressly and unequivocally include liability for Griffin Crane’s own negligence or fault within that obligation. The “period” is not defined; that term could be interpreted as referring to either the term of lease of the equipment or the time period of “performance of the work.” The indemnity obligation set [uforth in that sentence was obviously a separate obligation from the unconditional indemnity for liability “arising out of the performance of the work while using Lessor’s equipment” in the following sentence, given the use of the adverb “also” in the latter sentence and the limited “work description.”

Griffin Crane prepared and furnished the form contract, and its employee supplied the descriptions for the “job location” and the “work” to be performed for Abita. If Griffin Crane had actually intended the work for which unconditional indemnity was owed to encompass its crane’s travel to and from Abita’s premises, it easily could have supplied that necessary explanation in the contract. It did not. The indemnity provisions do not unequivocally obligate Abita to indemnify Griffin Crane for liability for the latter’s own negligence for any activity arising from the lease of the crane, as opposed to the described “work” performed. Accordingly, Griffin Crane must bear the burden of any ambiguity in the indemnity provisions.

In summary, it is certainly reasonable to conclude that the parties allocated to Abita all risks of liability resulting from the work performed by Griffin Crane’s employee operating its crane on Abita’s premises, under the control and supervision of Abita’s plant engineer, even if such liability arose from Griffin Crane’s negligence during that activity. But the risk involved |1⅞⅛ this case arose beyond the ambit of unconditional indemnity agreed to by the parties. No indemnity is owed as a matter of law under the uncontested facts of this ease.

DECREE

The partial summary judgment in favor of the third-party plaintiffs/appellees, Griffin Crane & Steel Service, Inc., Security Insurance Company of Hartford, and Ernest Williams, Jr., granting their motion for partial summary judgment and denying the motion for summary judgment of the third-party defendant/appellant, Abita Brewing Company, L.L.C., is hereby reversed. The motion for summary judgment of the third-party defendant/appellant, Abita Brewing Company, L.L.C., is hereby granted, and the third-party demand of the third-party plaintiffs/appellees is accordingly dismissed with prejudice. All costs of this appeal are assessed to Griffin Crane & Steel Service, Inc., Security Insurance Company of Hartford, and Ernest Williams, Jr.

REVERSED AND RENDERED.

DOWNING, J., concurs and assigns reasons.

DOWNING, J.,

concurs and assigns reasons.

IT concur with the result and, generally, with the rationale stated in the majority opinion. I write to address footnote 3 and its discussion of the appealability of the denial of a motion for summary judgment.

The denial of a motion for summary judgment is an interlocutory judgment that cannot be appealed. Trahan v. Rally’s Hamburgers, Inc., 96-1837, p. 9 (La.App. 1 Cir. 6/20/97), 696 So.2d 637, 642. La. C.C.P. art. 968 states in pertinent part: “An appeal does not lie from the court’s refusal to render any judgment on the pleading or summary judgment.” See Towles v. Heirs of Morrison, 428 So.2d 1029 (La.App. 1 Cir.1983) where this court stated: “A trial court’s denial of a motion for summary judgment is not reviewable even upon appeal from a final judgment on the merits.” (Emphasis added.)

Towles is the controlling jurisprudence in this circuit. But see CITGO Petroleum Corp. v. State ex rel. Dept. of Revenue and Taxation, 02-0999, p. 10 n. 8 (La.App. 1 Cir. 4/2/03), 845 So.2d 558, 563 n. 8, wherein awe discussed the line of cases in conflict with the clear terms of La. C.C.P. art. 968 and controlling First Circuit jurisprudence.

Even so, this court apparently has dismissed Abita’s properly brought writ application seeking review of the denial of its motion for summary judgment on the basis that the judgment was appealable. Under law of the case principles, I accede to the appealability of this judgment.

      . The accident location was approximately four miles from Griffin’s equipment yard.

      . The third-party demand did not assert any independent fault contributing to the accident or vicarious liability on the part of Abita, but only its liability as a conventional indemnitor under the contract at issue.

      . When an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to him, in addition to the review of the final judgment. Judson v. Davis, 04-1699, p. 8 (La.App. 1st Cir.6/29/05), 916 So.2d 1106, 1112, writ denied, 05-1998 (La.2/10/06), 924 So.2d 167. Arguably, the present appeal is restricted to the issue of Griffin Crane’s right to contractual indemnity from Abita for the plaintiffs’ claims. Nevertheless, because the issues involved in the granting of partial summary judgment are identical to those presented by Abita’s motion for summary judgment, it is clearly appropriate to review the interlocutory judgment denying its motion at this time. Thus, Abita may properly seek appellate review of that interlocutory judgment in this appeal. Abita had also applied for supervisory writs to this court under docket number 2005 CW 0883 on the issue of the interlocutory judgment denying its motion. On August 8, 2005, we issued an order dismissing the application on the grounds that Abita could properly seek review of that judgment via this appeal.

      . See La. C.C. art. 2668, et seq.

      . The “General Conditions” also include the following pertinent provisions:
      1. DAMAGE TO EQUIPMENT
      The Lessee shall indemnify the Lessor and Lessor's Insurance Carrier against all loss and damages to the leased equipment during the Period.
      2. DAMAGE TO PROPERTY
      Griffin Crane Service assumes no liability for damage to physical facilities, including, but not limited to, parking lots, roads, drives and underground improvements and/or utilities. Griffin Crane Service assumes responsibility only for physical damage caused by its sole gross negligence to the unit being lifted and/or hauled. Griffin Crane Service will not be responsible for any consequential or special damages caused by injury or damage to physical properties and/or facilities, including but not limited to, parking lots, [etc.]

      4. RIGGING
      Rigging not provided [sic ] by Griffin Crane Service. Thus, Griffin Crane Service will not assume liability for rigging provided. It is understood and agreed that customer is to provide access in and out of site.

      . As the supreme court explained in Berry, "the 'arising out of ...' language requires a connexity analysis independent of [indemnitor] fault that asks whether 'the particular injury [here, the motor vehicle accident injuries] would have occurred but for the performance of work [the unloading of the tanks] under the contract.’ ” Berry, 01-3283 at p. 7, 830 So.2d at 287. (Emphasis supplied.) No direct, logical connexity exists between the limited scope of the work of unloading the tanks on Abita’s premises and the motor vehicle accident, which was significantly removed both in time (over forty minutes after the crane left Abita's premises) and location (from sixteen to twenty-six miles) from that finished work. In contrast, the connexity in Rubicon was "clearly established by showing that the injured employee was engaged in work under the contract at the time of his injury. Quite simply, [the injured employee] would not have been present at the site to be injured but for [the indemnitor’s] performance of the work under the contract.” Rubicon, 563 So.2d at 259. (Emphasis supplied.)

      .In paragraph 5 of the General Conditions, entitled "Insurance,” the lessee was required to maintain general liability and other types of insurance "during the lease period.” While it might reasonably be argued that the term "lease period” serves to define the term "period” used elsewhere, it seems just as reasonable to conclude that the addition of the descriptive adjective "lease” in paragraph 5 was specifically intended to distinguish the overall term of the equipment lease from the time period of the “work” or the "job.” At any rate, the separate time entries for the crane’s departure from Griffin Crane's yard and the "start” of "work” show that the time period charged for the crane’s use was distinguished from the time of the "work” activity for which Griffin Crane was engaged by Abi-ta.

      . We cannot presume that the addition of "also” to form the phrase "also agrees" was mere surplusage. See La. C.C. arts. 2049, 2050. This interpretation comports with the standard of strict construction required for indemnity agreements.

      . The work description could simply have included travel "to and from job site,” a descriptive phrase used in describing the permit for which a charge was included.


author: McDonald, j.

text:
    STATE of Louisiana v. Jamie COOPER.
    No. 2005 KA 2070.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 2006.

      Scott Perrilloux, District Attorney, Morgan Griggs, Amite, Leslie Austin, Assistant District Attorneys, Livingston, Counsel for Appellee State of Louisiana.
    Frederick Kroenke, Baton Rouge, Counsel for Defendant/Appellant Jamie Cooper.

      Before: PARRO, McDONALD and HUGHES, JJ.
   McDonald, j.

| j>,The defendant, Jamie D. Cooper, was charged by a bill of information with possession of cocaine, a schedule II controlled dangerous substance, in violation of La. R.S. 40:967 C. The defendant entered a plea of not guilty. After a trial by jury, the defendant was found guilty as charged. The trial court denied the defendant’s motion for post-verdict judgment of acquittal and motion for new trial. The defendant was sentenced to five years imprisonment at hard labor. The trial court denied the defendant’s motion to reconsider sentence. The defendant now appeals, raising the following arguments: the trial court erred in admitting evidence; the trial court erred in instructing the jury that it represented the community; and the trial counsel was ineffective in failing to require a hearing on the motion to suppress evidence and in failing to object to the jury instructions. For the forthcoming reasons, we affirm the conviction and sentence.

FACTS

On or about August 5, 2004, four officers were patrolling a high-crime area in Den-ham Springs, Louisiana, in an unmarked pickup truck. Detective Woody Overton (one of the officers) of the Livingston Parish Sheriffs Office, observed a male subject (the defendant) as he stood next to the driver’s side of a white van. The van was located in the roadway of Maryland Street. The officers pulled up closer to the area and parked their, unit on the side of the street.

As the uniformed officers exited their unit, they observed two males sitting on a residential driveway between five and fifteen feet from the street. |3One of the males (the defendant) quickly placed his hand underneath the back of his leg and turned his body away from the officers when he noticed the officers’ approach. Detective Overton ordered the defendant to “show me your hands.” The defendant initially did not raise his hands. After repeated orders, he ultimately complied. Detective Overton and Officer Paul Gol-mon (of the Denham Springs City Police Department) instructed the defendant to stand up. As the defendant complied, two clear bags containing suspected rock cocaine fell from behind one of his legs. The officers immediately handcuffed the defendant, conducted a pat down search for weapons, and arrested the defendant. According to the Louisiana State Police Crime Laboratory Scientific Analysis Report, the plastic bags contained a total of 3.82 grams of cocaine.

ASSIGNMENTS OF ERROR NUMBERS ONE AND THREE (IN PART)

In the first assignment of error, the defendant avers that the trial court erred in not granting the motion to suppress the evidence and in allowing the jury to consider the evidence in reaching its verdict. The defendant specifically argues that the officers did not have reasonable suspicion to stop him. In his third assignment of error, the defendant (in related part) argues that the failure of his trial counsel to require a hearing on the motion to suppress constitutes ineffective assistance of counsel.

In the instant case, the defense attorney filed a motion to suppress evidence on the morning of the trial by jury. The trial court, considering the timing of the motion, noted that all of the parties that would testify in a hearing on the motion would also testify during the trial. The trial court then asked whether there was any objection to addressing the motion during the trial. The defense attorney and the State replied by stating that they did not|4object. The defense attorney initiated a bench conference outside of the hearing of the court reporter. The trial resumed with no further discussion of the motion to suppress. The evidence was admitted and published to the jury without objection.

At the outset, we note that the first assignment of error is not properly before this court. This court reviews trial court rulings. In the instant case, the record does not reflect a ruling on the defendant’s motion to suppress. Our review of the record indicates that the defense counsel abandoned the motion to suppress, withdrew the motion to suppress the evidence, or obtained an off-the-record denial of the motion to suppress. Nonetheless, the merits of the argument presented in the first assignment of error will be addressed as we consider the related ineffective assistance of counsel argument raised in the defendant’s third assignment of error.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief in the trial court rather than by appeal. This is because post-conviction relief creates the opportunity for a full evidentiary hearing under La.C.Cr.P. art. 930. When the record is sufficient, however, this Court may resolve this issue on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528, 530 (La.1982); State v. Williams, 632 So.2d 351, 361 (La.App. 1st Cir.1993), writ denied, 94-1009 (La.9/2/94), 643 So.2d 139. In the instant case, the record is sufficient to resolve the defendant’s claim of ineffective assistance of counsel.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the United States Constitution. A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must first show that the attorney’s performance was deficient. This requires a showing that counsel made errors so serious that the defendant was effectively denied the right to counsel as guaranteed by the Sixth Amendment. Secondly, the defendant must prove that counsel’s deficient performance actually prejudiced the defense, meaning that the errors were so serious that the defendant was deprived of a fair trial. It is not enough for the defendant to show that his counsel’s errors or omissions had some conceivable effect on the outcome of the proceeding. Rather, he must show that, but for counsel’s errors, a reasonable probability exists that the outcome of the trial would have been different. Further, it is unnecessary to address the issues of both counsel’s performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the two components. State v. Moody, 2000-0886, pp. 5-6 (La.App. 1st Cir.12/22/00), 779 So.2d 4, 9, writ denied, 2001-0213 (La.12/7/01), 803 So.2d 40.

Louisiana Code of Criminal Procedure article 703 A provides: “A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained.” The Louisiana Supreme Court has recognized a three-tiered analysis governing the Fourth Amendment’s application to interactions between | (¡citizens and police. At the first tier, mere communications between officers and citizens implicate no Fourth Amendment concerns where there is no coercion or detention. At the second tier, the investigatory stop recognized by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the police officer may briefly seize a person if the officer has an objectively reasonable suspicion, supported by specific and articulable facts, that the person is, or is about to be, engaged in criminal conduct or is wanted for past criminal acts. Lastly, at the third tier of custodial “arrest,” the officer must have “probable cause” to believe that the person has committed a crime. State v. Fisher, 97-1133, pp. 4-5 (La.9/9/98), 720 So.2d 1179, 1182-83.

In evaluating alleged violations of the Fourth Amendment, the United States Supreme Court has undertaken an objective assessment of an officer’s action in light of the facts and circumstances then known to him. State v. Garcia, 519 So.2d 788, 793 (La.App. 1st Cir.1987), writ denied sub nom., State v. Rodriguez, 530 So.2d 85 (La.1988) (citing Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978)). “[T]he fact that the officer does not have the state of mind which is hy-pothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.” Scott v. United States, 436 U.S. at 138, 98 S.Ct. at 1723.

The purpose of the Fourth Amendment is not to eliminate all contact between the police and citizens. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Law enforcement officers enjoy the same liberty possessed by every citizen to address questions to other persons. United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497 (1980). It is clear that a seizure does not occur simply because a 17police officer approaches an individual and asks a few questions. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991).

Herein, members of the Livingston Parish Sheriffs Office and Denham Springs City Police Department formed a special response team to conduct a narcotics patrol in the Rodeo Drive area of Denham Springs, Louisiana, due to a large number of complaints of drug activity in the area. Members of the task force patrolling the area on the night in question included Deputy Jason Ard, Detective Denny Perkins, Corporal Paul Golmon and Detective Woody Overton. As they turned off Rodeo Drive onto Maryland Street, the officers observed the male subject leaning into the driver’s window of a van. According to the trial testimony of Detective Overton, Deputy Ard was certain the male subject was the defendant.

We conclude that the defendant was detained when he submitted to the officers’ show of authority by ultimately raising his hands and standing up. Prior to the officers’ show of authority, the defendant was observed leaning into a van located in the roadway at 10:00 p.m. in a high-crime (particularly drug trafficking) area. The defendant then walked back to the driveway and sat in a lawn chair in close proximity to the street. When the defendant noticed the officers approaching, he abruptly placed his hand underneath his leg. The defendant’s hand movements supported a reasonable conclusion that the defendant was concealing something. We find that, at the time of the Terry stop, the officers had sufficient knowledge of facts and circumstances to justify an infringement on the defendant’s right to be free from government interference. Moreover, due to the possible concealment of a weapon, the officers were taking a prudent course of action for their safety in commanding that the defendant raise his hands and stand up. Once he did so, the evidence fell to the ground in plain view of the officers. Thus, assuming |sthat the defense counsel exhibited deficient performance in failing to request a hearing and/or ruling on the motion to suppress, the defendant has failed to satisfy the prejudice prong of the aforementioned Strickland test. The ineffective assistance of counsel argument presented in assignment of error number three regarding the motion to suppress the evidence herein is without merit.

ASSIGNMENT OF ERRORS NUMBER TWO AND NUMBER THREE (IN PART)

In his second assignment of error, the defendant argues that the trial court erred in instructing the jury that it represented the community in reaching a verdict. The defendant avers that the trial judge improperly influenced the jury and contributed to the guilty verdict. In the related portion of assignment of error number three, the defendant avers that the defense counsel was ineffective in failing to object to the above-referenced portion of the jury instructions.

After giving the jury detailed instructions as to the applicable law, the trial court stated as follows:

Finally, I remind you again that you represent our community in the determination of this matter. The community appreciates your service on this jury. And at the same time, the community expects you to reach a fair and impartial verdict. Members of the jury, you may now retire to elect your foreperson. Court will be at recess until a verdict is reached.

The defense counsel did not object to the jury instructions. A claim that a jury charge was improper will not be considered on appeal if no contemporaneous objection was made. La.C.Cr.P. art. 841. Accordingly, assignment of error number two is not properly before this Court. However, in assignment of error number three, the defendant does raise an ineffective assistance of counsel argument as to the lack of an objection by the trial counsel to the above-referenced portion of the jury instructions. Thus, we |flwill review the propriety of this portion of the jury instructions as we address the related ineffective assistance of counsel argument raised in the third assignment of error.

The court shall not charge the jury concerning the facts of the case and shall not comment on the facts of the case, either by commenting on or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted. La.C.Cr.P. art. 806. A conviction will not be overturned on the grounds of an erroneous jury charge unless the disputed portion, when considered in connection with the remainder of the charge, is erroneous and prejudicial. State v. Motion, 395 So.2d 1337, 1348(La.), cert. denied, 454 U.S. 850, 102 S.Ct. 289, 70 L.Ed.2d 139 (1981). An erroneous instruction is subject to harmless error review or in the case of an ineffective assistance of counsel claim, an analysis of whether the defendant was prejudiced by the error. See State v. Hongo, 96-2060, pp. 4-6 (La.12/02/97), 706 So.2d 419, 421-22. The question becomes, whether it appears beyond a reasonable doubt, that the erroneous instruction did not contribute to the jury’s finding of guilt or whether the error is unimportant in relation to everything else the jury considered, as revealed in the record. State v. Smith, 600 So.2d 1319, 1326 (La.1992). Stated another way, the appropriate standard for determining harmless error is whether the guilty verdict was surely unattributable to the jury charge error. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993).

On appeal, the defendant cites State v. Colligan, 95-880, p. 9 (La.App. 3d Cir.8/7/96), 679 So.2d 184, 189, wherein (albeit in the context of a prosecutor’s closing argument) the court held that the attempt by the prosecutor to convey the message that the jury represented “the people of ImEvangeline Parish” was improper. As noted in Colligan, the jury’s function is found in La.C.Cr.P. art. 802, and nothing therein indicates a representative obligation. In fact, the jury should deliberate without regard to public opinion. Colligan, 95-880 at p. 9, 679 So.2d at 189.

As previously outlined, to prevail in a post-conviction ineffective assistance of counsel claim, the defendant must establish (1) that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) that there is a reasonable probability that but for counsel’s inadequate performance the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. at 688, 694, 104 S.Ct. at 2064, 2068.

The prosecutorial closing remarks in question in Colligan misstated the jury’s function as follows: “You represent the people of Evangeline Parish ... and now it’s up to you to return a verdict of guilty.” Colligan, 95-880 at p. 9, 679 So.2d at 189. Herein, to the contrary, the jury’s function to “reach a fair and impartial verdict” was correctly stated by the trial court. Even assuming the trial court erred in stating that the jury represented the community, considering the evidence presented herein and the trial court’s instructions as a whole, the verdict was surely unattributable to any such error. Thus, we find that the portion of the jury charge in question did not prejudice the defendant. Therefore, the defendant has failed to satisfy the second prong of an ineffective assistance of counsel claim. The ineffective assistance of counsel argument presented in assignment of error number three, regarding the lack of a defense objection to the portion of the jury charge in question, is without merit.

lnFor the foregoing reasons, the conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

HUGHES, J., concurs.

      . The four officers were Deputy Jason Ard, Detective Denny Perkins, Corporal Paul Gol-mon, and Detective Woody Overton. Only Corporal Golmon and Detective Overton testified at the trial.

      . The defense counsel specifically stated, "No objection,” when the State offered, filed, and introduced exhibit one, consisting of the manila envelope containing the crack cocaine. Moreover, the defense counsel specifically stated, "No objection to the entry,” regarding the admission and publication of the scientific analysis report. The defense counsel merely stated that the report "speaks for itself” in entering a hearsay objection to the interpretation of the analysis by the evidence custodian.


author: WHIPPLE, J.

text:
    STATE of Louisiana v. Calvin D. PETERS.
    No. 2005 KA 2069.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 2006.

      Walter P. Reed, Covington, Dorothy Pendergast, Metairie, for Appellee, State of Louisiana.
    Katherine Franks, Slidell, for Defendant/Appellant, Calvin D. Peters.
    Before: WHIPPLE, McCLENDON and WELCH, JJ.
   WHIPPLE, J.

|2The defendant, Calvin D. Peters, was charged by amended bill of information with one count of insurance fraud, a violation of LSA-R.S. 22:1243, and initially pled not guilty. Subsequently, he withdrew his plea, and pled guilty as charged, reserving the right to challenge the applicability of the habitual offender law, LSA-R.S. 15:529.1, to his case. He was sentenced to five years at hard labor. Thereafter, the State filed a habitual offender bill of information against the defendant, alleging that on December 11, 2000, he pled guilty to the offense of possession of stolen things. The defendant agreed with the allegations of the habitual offender bill of information, but reserved the right to challenge the application of the habitual offender law to a violation of LSA-R.S. 22:1243. The defendant was then adjudged a second felony habitual offender, the previously imposed sentence was vacated, and the defendant was sentenced to ten years at hard labor without benefit of probation or suspension of sentence. He now appeals, designating two assignments of error.

We affirm the conviction, the habitual offender adjudication, and the sentence.

FACTS

Due to the defendant’s guilty plea, there was no trial in the instant case, and thus, no trial testimony concerning the facts. However, at the Boykin hearing, the State and the defense stipulated that there was a factual basis for the charge.

The amended bill of information sets forth that between June 4, 2002 and June 18, 2002, the defendant committed insurance fraud by presenting, causing to |3be presented, or preparing with knowledge or belief that it would be presented to or by an insurer or any agent thereof, an oral or written statement the defendant knew to contain materially false information as part of a claim for payment or benefit pursuant to an insurance policy with USAgencies Casualty Insurance Company, with the intent to defraud or deceive said insurance company.

ENHANCEMENT OF SENTENCE PURSUANT TO HABITUAL OFFENDER LAW

In assignment of error number 1, the defendant contends the trial court erred in enhancing the sentence for a violation of LSA-R.S. 22:1243 pursuant to the habitual offender law because LSA-R.S. 22:1243 specifically provides for a term of imprisonment “not to exceed five years[.]” In assignment of error number 2, the defendant contends the trial court erred in enhancing the sentence, provided by LSA-R.S. 22:1243 pursuant to the habitual offender law because, although a violation of LSA-R.S. 22:1243 is a felony, the statute is not contained in either the criminal code or in the uniform controlled dangerous substances law.

Prior to amendment by 2004 La. Acts No. 498, § 1, LSA-R.S. 22:1242, provided, in pertinent part:

As used in this Part the following terms shall have the meanings indicated herein:
(1) “Fraudulent insurance act” shall include but not be limited to acts or omissions committed by any person who knowingly and with intent to defraud:
(a) Presents, causes to be presented, or prepares with knowledge or belief that it will be presented to or by an insurer, reinsurer, purported insurer or reinsurer, broker, or any agent thereof, any oral or written statement which he knows to contain materially false information as part of, or in support of, or denial of, or concerning any fact material to or conceals any information concerning any fact material to the following:
14(iii) A claim for payment or benefit pursuant to any insurance policy.
(2) “Statement” includes but is not limited to any notice, statement, proof of loss, bill of lading, receipt for payment, invoice, account, estimate of property damages, bill for services, diagnosis, prescription, hospital or doctor records, test results, x-rays, or other evidence of loss, injury, or expense.

Louisiana Revised Statutes 22:1243, in pertinent part, provides:

A. Any person who, with the intent to injure, defraud, or deceive any insurance company, or the Department of Insurance, or any insured or other party in interest, or any third party claimant:
(1) Commits any fraudulent insurance act as defined in R.S. 22:1242;
is guilty of a felony and shall be subjected to a term of imprisonment, with or without hard labor, not to exceed five years, or a fine not to exceed five thousand dollars, or both, on each count.
B. The criminal provisions of this Section shall be investigated, enforced, or prosecuted only by the proper law enforcement and prosecutorial agencies.

Louisiana Revised Statutes 15:529.1, in pertinent part, provides:

A. (1) Any person who, after having been convicted within this state of a felony ... or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
(a) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction;

Legislative intent is the fundamental question in all cases of statutory interpretation, and rules of statutory construction are designed to ascertain and | ^enforce the intent of the statute. State v. Campbell, 2003-3035, p. 7 (La.7/6/04), 877 So.2d 112, 117.

It is presumed that the legislature enacts each statute with deliberation and with full knowledge of all existing laws on the same subject. Thus, legislative language is interpreted by the courts on the assumption that the legislature was aware of existing statutes, rules of construction, and judicial decisions interpreting those statutes. It is further presumed that the legislative branch intends to achieve a consistent body of law. Campbell, 2003-3035 at p. 8, 877 So.2d at 117.

A criminal statute must be given a genuine construction consistent with the plain meaning of the language in light of its context and with reference to the purpose of the provision. LSA-R.S. 14:3. Moreover, it is a well-established tenet of statutory construction that criminal statutes are subject to strict construction under the rule of lenity. The rule of lenity applies not only to interpretations of the substantive ambit of criminal laws, but also to the penalties imposed by those laws. When a criminal statute provides inconsistent penalties, the rule of lenity directs the court to impose the least severe penalty. Campbell, 2003-3035 at p. 9, 877 So.2d at 118.

In the instant case, there was no error in enhancing the sentence pursuant to the habitual offender law. The use of “not to exceed five years” in LSA-R.S. 22:1243 does not reflect any intent by the legislature to exempt the crime of insurance fraud from the provisions of the habitual offender law. An examination of the criminal code, Louisiana Revised Statutes, Title 14, Chapter 1, reveals that the phrase “not to exceed” or “not exceed” is used interchangeably with “nor more than” or “not more than,” sometimes even in the same statute. See LSA-R.S. 14:27(D); LSA-R.S. 14:68.7(B). The legislature did not intend to exempt the 1 ^entire criminal code from the habitual offender law. Moreover, legislative intent that a criminal penalty is to be the exclusive penalty for a crime has been expressed in clear language. See LSA-R.S. 14:98(D)(l)(a) (“notwithstanding any other provision of law to the contrary”); Campbell, 2003-3035 at pp. 6-11, 877 So.2d at 116-19.

Thus, the language “not to exceed five years” in LSA-R.S. 22:1243 merely sets forth the upper limit of the penalty under that statute. Far more probative of whether or not the legislature intended the habitual offender law to apply to the offense of insurance fraud is the express declaration in LSA-R.S. 22:1243(A) that a person who violates the statute “is guilty of a felony.” A person’s subsequent commission of “a felony” after having been convicted of a felony triggers the habitual offender law. See LSA-R.S. 15:529.1(A)(1). Thus, these arguments by defendant have no merit.

We also reject the argument that the habitual offender law applies only to felonies listed in the criminal code and the uniform controlled dangerous substances law, Louisiana Revised Statutes, Title 40, Chapter 4. To the contrary, the habitual offender law provides that the felonies subject thereto can come from “this state[,] ... the laws of any other state or the United States, or any foreign government.” See LSA-R.S. 15:529.1(A)(1).

Further, the defendant’s reliance upon State v. Sanders, 337 So.2d 1131 (La.1976) is misplaced. In Sanders, the issue before the Supreme Court was whether or not felony convictions used to convict a person, under LSA-R.S. 14:95.1, of the offense of being a convicted felon who carries a concealed weapon could again be used to establish a violation of the habitual offender law. Sanders, 337 So.2d at 1132. The Supreme Court held that the habitual offender law could|7not be applied to further enhance penalties for status crimes, quoting the following language from State v. Ware, 201 Kan. 563, 442 P.2d 9, 11 (1968):

Furthermore-if the habitual criminal statute were to apply to the facts of this case the practical effect would be to nullify the penalty provision of the special statute in question-which is imprisonment for not to exceed [f]ive years. In fixing such penalty the statute itself takes into account the fact of the previous conviction.

Sanders, 337 So.2d at 1134-35.

Sanders is distinguishable inasmuch as the instant case does not involve the improper multiple use of a felony to establish both a violation of the instant offense and the habitual offender law.

These assignments of error are also without merit.

CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.

      . The State further set forth that the predicate guilty plea was entered under docket # 99CR27792 of the Twenty-second Judicial District Court.