author: McClendon, j.

text:
    Daniel MORRIS v. The BULLDOG BR, LLC, State Farm Automobile Insurance Company, ABC Insurance Company and Joseph Branch.
    No. 2013 CA 1861.
    Court of Appeal of Louisiana, First Circuit.
    June 6, 2014.
    Patrick Daniel, Rachel Martin-Deckel-mann, Lafayette, Louisiana, for Plaintiff/Appellant, Daniel Morris.
    William D. Shea, Scott M. Levy, Baton Rouge, Louisiana, and Christopher A. D’Amour, New Orleans, Louisiana, for Defendant/Appellee, The Bulldog BR, LLC.
    Devan Pardue, Springfield, Louisiana, for Defendant/Appellee, Joseph Branch.
    Richard S. Thomas, Baton Rouge, Louisiana, for Defendants/Appellees, State Farm Mutual Automobile Insurance Company & Joseph Branch.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   McClendon, j.

| ¡>The plaintiff appeals the judgment of the trial court, granting the defendant’s peremptory exception raising the objection of no cause of action and dismissing his suit with prejudice. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On January 21, 2012, Daniel Morris and Nathaniel Crowson were riding their bicycles on Perkins Road in Baton Rouge, when they were struck from behind by a vehicle driven by Joseph Branch. Tragically, Mr. Crowson was killed, and Mr. Morris was severely injured. Mr. Morris filed suit on January 17, 2013, seeking to recover the damages he suffered. In his petition, Mr. Morris alleged that Mr. Branch was operating a motor vehicle, under the influence of alcohol, when the vehicle struck him and Mr. Crowson, causing his injuries and damages and causing the death of Mr. Crowson. Mr. Morris further alleged that prior to the subject accident, Mr. Branch was a patron at The Bulldog BR, LLC (The Bulldog), a Baton Rouge bar, where he drank a number of alcoholic beverages and was visibly intoxicated. Mr. Morris also asserted that The Bulldog “engaged in affirmative acts that increased the peril to [Mr. Branch], ultimately resulting in the subject incident.”

In response to the petition, The Bulldog filed a peremptory exception raising the objection of no cause of action, contending that it was immune from civil liability under LSA-R.S. 9:2800.1, Louisiana’s “anti-dram shop” statute. A hearing on the exception was held on April 29, 2013. On June 21, 2013, the trial court issued its ruling sustaining the exception. On July 9, 2013, the trial court signed a judgment, dismissing The Bulldog from the proceeding with prejudice. Mr. Morris has appealed.

STANDARD OF REVIEW

The function of the peremptory exception raising the objection of no cause of action is to test the legal sufficiency of a pleading by determining |swhether the law affords a remedy on the facts alleged in the pleading. Ourso v. Wal-Mart Stores, Inc., 08-0780 (La.App. 1 Cir. 11/14/08), 998 So.2d 295, 298, writ denied, 08-2885 (La.2/6/09), 999 So.2d 785. The exception is triable on the face of the pleadings, and, for the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Id. The burden of demonstrating that a petition fails to state a cause of action is upon the mover. Foti v. Holliday, 09-0093 (La.10/30/09), 27 So.3d 813, 817. In reviewing a trial court’s ruling sustaining an exception of no cause of action, appellate courts conduct a de novo review, because the exception raises a question of law, and the trial court’s decision is based only on the sufficiency of the petition. Torbert Land Co., L.L.C. v. Montgomery, 09-1955 (La.App. 1 Cir. 7/9/10), 42 So.3d 1132, 1135, writ denied, 10-2009 (La.12/17/10), 51 So.3d 16.

DISCUSSION

Prior to 1986, Louisiana did not have a “dramshop” law, and the imposition of liability on a seller of alcoholic beverages for damages sustained or caused by an intoxicated patron was determined by the application of general negligence principles (duty-risk analysis) under the “reasonable man” standard. Aucoin v. Rochel, 08-1180 (La.App. 1 Cir. 12/23/08), 5 So.3d 197, 200, writ denied, 09-0122 (La.3/27/09), 5 So.3d 143. Moreover, Louisiana jurisprudence consistently opposed the application of absolute liability on an alcoholic beverage retailer for the consequences of a patron’s intoxication. See Thrasher v. Leggett, 373 So.2d 494, 496 (La.1979).

Thereafter, in 1986, the Louisiana Legislature enacted LSA-R.S. 9:2800.1, entitled “Limitation of liability for loss connected with sale, serving, or furnishing of alcoholic beverages,” with the express purpose of placing the responsibility for consequences of intoxication on the intoxicated person, rather than the server of the alcohol. Au-coin, 5 So.3d at 201; Berg v. Zummo, 2000-1699 (La.4/25/01), 786 So.2d 708, 713-14. Subsection A of LSA-R.S. 9:2800.1 provides specifically that “the consumption of intoxicating beverages, rather than the sale |4or serving or furnishing of such beverages is the proximate cause of any injury, ... inflicted by an intoxicated person upon himself or upon another person.” (Emphasis added.) In furtherance of this stated goal, LSA-R.S. 9:2800.1B provides:

Notwithstanding any other law to the contrary, no person.... nor any agent, servant, or employee of such a person, who sells or serves intoxicating beverages ... to a person over the age for the lawful purchase thereof, shall be liable to such person or to any other person ... for any injury suffered off the premises, including wrongful death and property damage, because of the intoxication of the person to whom the intoxicating beverages were sold or served. (Emphasis added.)

The only exceptions to the limitation of liability expressly provided by the statute are when alcoholic beverages are sold or served to minors (by omission under Subsection B) and to any person who causes or contributes to the consumption of alcoholic beverages by force or by falsely representing that a beverage contains no alcohol. LSA-R.S. 9:2800.1E ; Aucoin, 5 So.3d at 201.

The limitation of liability provided by this Section shall not apply to any person who causes or contributes to the consumption of alcoholic beverages by force or by falsely representing that a beverage contains no alcohol.

In this case, Mr. Morris argues, as did the plaintiff in the Aucoin case, that notwithstanding the clear wording of the statute, the pre-Statute reasoning of Thrasher v. Legget should apply to impose liability when the bar owner takes affirmative action that increases the peril of an intoxicated patron. Mr. Morris, like Mr. Aucoin, relies on dicta by the supreme court in the Berg case, wherein the court stated in a footnote that “[t]his [c]ourt has never addressed, nor do we address today, whether the bar owner can be liable in spite of La. R.S. 9:2800.1 for taking an affirmative act which increases the peril to an intoxicated adult patron under the pre-La. R.S. 9:2800.1 reasoning of Thrasher v. Leggett.” Berg, 786 So.2d at 714 n. 3. However, Berg involved damages resulting from the sale of alcohol to a minor and accordingly, was clearly outside the scope of immunity provided by the statute. Moreover, this statement simply acknowledged that the issue was not directly before the court.

|fiWe find the statutory language of LSA-R.S. 9:2800.1 to be clear and unambiguous, leaving no room for interpretation beyond the ordinary meaning of the words employed. See Aucoin, 5 So.3d at 203. Additionally, the statute itself provides exceptions, which have not been pled in this case. Accordingly, we are constrained to hold that the clear language of the statute provides immunity to The Bulldog for the injuries caused by the intoxication of Mr. Branch, when the only act alleged to have been committed by The Bulldog was serving alcohol to the intoxicated tortfeasor, who was of legal age. As the trial court stated: “Other than an allegation that The Bulldog engaged in ‘affirmative acts’ there are no allegations against The Bulldog that would fall under the exceptions to the immunity statute.... There is no allegation that would result in liability. Thus, the exception of no cause of action is sustained.”

We further find that the basis for the peremptory exception raising the objection of no cause of action cannot be removed by amendment of the petition. See LSA-C.C.P. art. 934. Based on the undisputed facts before us, neither exception to LSA-R.S. 9:2800.1 is applicable herein. Therefore, we cannot say that the trial court abused its discretion in failing to allow Mr. Morris the opportunity to amend his petition to remove the grounds of the objection.

CONCLUSION

Because The Bulldog is entitled to the immunity provided by LSA-R.S. 9:2800.1 for the acts of negligence alleged against it, we find that the trial court correctly sustained The Bulldog’s peremptory exception raising the objection of no cause of action. Therefore, we affirm the July 9, 2013 judgment of the trial court, sustaining the exception and dismissing Mr. Morris’s suit with prejudice. The costs of this appeal are assessed to Daniel Morris.

AFFIRMED.

      . In the petition, The Bulldog was named a defendant, along with Mr. Branch; State Farm Insurance Company, Mr. Branch's insurer; and ABC Insurance Company, identified as The Bulldog’s insurer.

      . Subsection E provides:

      . In Zapata v. Cormier, 02-1801 (La.App. 1 Cir. 6/27/03), 858 So.2d 601, we applied the clear language of LSA-R.S. 9:2800.1 and held that several requirements must be met for the statutory immunity to apply: 1) the bar owner must hold a permit under either Chapter 1 or Chapter 2 of Title 26 of Louisiana Revised Statutes of 1950; 2) the bar owner, its agent and servants or employees, sell or serve intoxicating beverages of either high or low alcoholic content to a person over the age for a lawful purchase thereof; 3) the purchaser thereof suffers an injury off the premises including wrongful death and property damage; and 4) this injury or accident was caused by the intoxication of the person to whom the intoxicating beverages were sold or served. Aucoin, 5 So.3d at 203; Zapata, 858 So.2d at 606-07. In this matter, no one has alleged that the requirements were not met.


source: Caselaw Access Project

author: THERIOT, J. HIGGINBOTHAM, J„

license: Public Domain

text:
    Ruth Sierra, Wife of and Donald SIERRA, Jr., Individually and on Behalf of their Minor Child Ashley Sierra, and Donald Sierra, III v. AMERICAN ALTERNATIVE INSURANCE CORPORATION and St. Tammany Fire Protection District Number 6.
    No. 2013 CA 1808.
    Court of Appeal of Louisiana, First Circuit.
    June 18, 2014.

      William J. Faustermann, Jr. Slidell, Louisiana, for Plaintiffs-Appellees, Ruth and Donald Sierra, Jr., individually and on behalf of their minor child, Ashley Sierra, and Donald Sierra, III.
    Rachel S. Kellogg New Orleans, Louisiana, for Defendants-Appellants, American Alternative Ins. Corp. and St. Tammany Fire Protection District Number 6.
    Before KUHN, HIGGINBOTHAM, and THERIOT, JJ.
   THERIOT, J.

| gDefendants-appellants, the St. Tammany Fire Protection District No. 6 (the fire department) and its insurer, American Alternative Insurance Corporation (AAIC), appeal the decision of the trial court awarding damages for inconvenience, loss of use, mental anguish, trauma, and emotional distress after an unoccupied fire truck rolled down a hill and crashed into the side of a house owned by plaintiffs-appellees, Ruth and Donald Sierra, Jr. For the following reasons, we affirm.

BACKGROUND

The facts are undisputed. On December 4, 2010, an unoccupied tanker fire truck was parked on the fire department’s property, which was located next door to the Sierras’ home in Bush, Louisiana. For some inexplicable reason, the fire truck rolled down the hill between the properties, and crashed through an outside wall of the master bedroom of the Sierras’ house. The crash caused a hole in the wall that exposed the Sierras’ master bedroom to the cold outside weather, and destroyed some of the bedroom furniture and furnishings. The Sierra family was not at their home at the time of the crash, because their severely disabled son, Corey, was in the intensive care unit at a hospital in Slidell. The St. Tammany Parish Sheriffs office telephoned Mr. and Mrs. Sierra, while they were at the hospital with Corey, to inform them of the incident and the damage to their home.

Fearing the worst, Mr. and Mrs. Sierra quickly made arrangements to leave Corey at the hospital while they frantically rushed to their house to assess the damage. When they arrived, they found many people at their house, including firemen who were removing debris from their home at the site of the crash. According to Mr. Sierra, his “wife was running around ... freaking out,” and they were both already stressed since they were dealing with their son being in the hospital, and their damaged house “just added to the plate.” The firemen turned |soff the electricity in the house due to the damaged electrical outlets, and they temporarily patched the large hole in the exposed master bedroom wall.

Although Fire Chief Harold Dutsch offered to provide a contractor who indicated that the repair work could be finished within two weeks of the incident, the Sierras opted to have Mr. Sierra do the repair work himself. They made that decision primarily because no one from the Sierra family could be present at the house while the renovations took place. Due to Corey’s disability (cerebral palsy with severe spastic neuropathy), Corey required around-the-clock total dependant care. Corey’s physician emphatically warned that Corey should not be exposed to a construction/reconstruction environment after he was released from the hospital. Thus, following the physician’s orders, the Sierras could not live in their home while it was repaired and they could not leave Corey alone. After staying a few nights on chairs at the hospital until Corey was released, the Sierras moved into the Cov-ington Staybridge Suites hotel with their children, Corey, Ashley, and Donald, III.

The Sierras lived at the hotel from December 7, 2010, to January 6, 2011, while Mr. Sierra repaired their home during his free time after work hours and on his days off from work. Throughout that 2010 holiday season, the entire Sierra family experienced stress, disappointment, and frustration, as they were dispossessed of their home and unable to enjoy their Christmas holiday traditions, as well as a planned New Year’s Eve birthday celebration for Donald, III. Additionally, it was extremely difficult for Mr. and Mrs. Sierra to care for Corey’s special needs without his usual nursing assistance and all of his medical equipment from their house, such as his special bed/mattress, lift, and bathtub that could not be moved to the hotel. After the repairs were finished and the Sierras moved back home, Mr. and Mrs. Sierra experienced anxiety when they heard the fire department’s daily sirens and starting of the fire truck engines for fear that another |4fire truck might crash into the master bedroom of their house. However, none of the Sierras sought medical advice, treatment, or counseling concerning their stress, fears, or anxieties.

The Sierras, including two of their children, Ashley and Donald, III, brought suit against the fire department and its insurer, AAIC, to recover for property damage and mental anguish they sustained as a result of the fire truck crashing into their home. It is undisputed that the Sierras’ homeowner’s insurer, State Farm Fire and Casualty Company (State Farm), paid for the Sierras’ hotel lodging while their home was being repaired, as well as compensated the Sierras for their physical property damage. AAIC then paid State Farm $25,174.64 in satisfaction of State Farm’s subrogation claim. By the time this matter went to trial on March 21, 2013, liability was no longer in dispute. The only remaining issues were the Sierras’ damage claims for their alleged mental anguish, emotional distress, loss of use, and inconvenience they experienced as a result of being dispossessed of their family home due to the fire department’s negligence. The fire department and AAIC urged the trial court to reject the Sierras’ damage claims as non-compensable, maintaining that the claims did not rise above the usual minimal worry associated with the consequences of this type of property damage.

After a bench trial, the trial court took the matter under advisement and then issued written reasons for judgment. The trial court specifically found that the Sierras were entitled to an award for damages for their inconvenience, loss of use, mental anguish, and emotional trauma for two weeks of the month that they were dispossessed of their home. The trial court reasoned that the Sierras were only entitled to two weeks worth of damages since that was the amount of time that it would have taken a hired contractor to complete the repair work. On May 17, 2013, the trial court signed a judgment against the fire department and AAIC, awarding Mr. and Mrs. Sierra $3,000 each and $1,000 each to Ashley and Donald, |BIII, plus interest and trial court costs. The fire department and AAIC timely appealed.

ASSIGNMENTS OF ERROR

The fire department and AAIC argue that:

(1) the Sierras’ claims did not meet the special circumstances for mental anguish for property damáge awards, because they only experienced ordinary inconvenience and worry as opposed to psychic trauma;
(2) the Sierra children, as non-owners, should not be allowed to recover for mental anguish or loss of use regarding the damaged property that was owned by Mr. and Mrs. Sierra; and
(3) the awards to the Sierras were unreasonably excessive for only two weeks of alleged mental anguish and emotional distress.

DISCUSSION

Louisiana courts have allowed recovery for negligently inflicted emotional distress, mental anguish, and inconvenience resulting from damage to property, absent physical injury, only in the following four categories of cases: (1) when the property was damaged by an intentional or illegal act; (2) when the property was damaged by acts giving rise to strict or absolute liability; (3) when the property was damaged by activities amounting to a continuous nuisance; and (4) under circumstances where the owner was present or nearby at the time, or shortly after, the damage occurred and suffered psychic trauma in the nature of or similar to a physical injury as a direct result of the incident itself. See Williams v. City of Baton Rouge, 98-1981 (La.4/13/99), 731 So.2d 240, 250 n. 5. See also Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law § 7.02[6] (2nd ed.2004). The jurisprudence has limited such recovery by requiring that the emotional distress be severe and not merely the result of the usual upset, worry, or anxiety attendant to property damage. Smith v. University Animal Clinic, Inc., 2009-745 (La.App. 3d Cir.2/10/10), 30 So.3d 1154, 1156, writ denied, 2010-0566 (La.5/28/10), 36 So.3d 247 (citing Doerr v. Mobil Oil Corp., 2004-1789 (La.App. 4th Cir.6/14/06)), 935 So.2d 231, 237, writ denied, 2006-1760 (La.11/3/06), 940 So.2d 664.

Every incident of property damage is necessarily accompanied by some degree of worry and consternation over such things as possible financial loss, settlement of insurance claims, and discomfort or inconvenience while awaiting and undergoing repair work. Trim v. South Eastern Exp., Inc., 562 So.2d 26, 28 (La.App. 5th Cir.1990) (citing Thompson v. Simmons, 499 So.2d 517, 520 (La.App. 2d Cir.1986), 501 So.2d 772 (La.1987)). Owners of damaged property may not recover for such mental anguish unless they prove that they suffered a psychic trauma in the nature of or similar to a physical injury, as a direct result of the property damage. Barrios v. Safeway Ins. Co., 2011-1028 (La.App. 4th Cir.3/21/12), 97 So.3d 1019, 1022-23; Elston v. Valley Elec. Membership Corp., 381 So.2d 554, 556 (La.App. 2d Cir.1980).

Since the Sierras’ home was not damaged by an intentional or illegal act, nor did the acts of the fire department constitute a nuisance or give rise to strict liability, the only possible criteria for recovery is the Sierras’ psychic trauma in the nature of or similar to a physical injury as a direct result of the incident itself. Mr. and Mrs. Sierra testified concerning their extreme stress levels as a result of dealing with a very sick child and a damaged home at the same time, their worries about Corey’s care, and how upset they were over the bedsores Corey developed while staying at the hotel, especially since the sores could have been prevented if Corey had been able to stay in his own bed and properly bathed at their house. The Sierras also testified about lingering anxiety after moving home, fearing that another truck might crash into their home every time they heard the daily fire truck engines and sirens. The trial judge stated in his written reasons that the entire family sustained loss of use of the home, which was set up for their specific needs. The children were affected in that their school and meal routines were |7detrimentally impacted. The trial court also emphasized that the displacement occurred during the Christmas holidays and the loss of use of the family home during the holiday period.

These circumstances obviously caused a great deal of mental anguish and emotional distress that amounted to more than minimal worry of being displaced from their home with a special needs family member. Their anguish was a direct result of being dispossessed of their house. There is no requirement that medical or psychiatric treatment be sought for mental anguish or emotional distress to occur. See Meyers v. Basso, 381 So.2d 843, 845 (La.App. 1st Cir.), writ denied, 384 So.2d 794 (La.1980). Thus, we conclude that there was a sufficient showing in the record to support the trial court’s award of damages for the Sierra’s mental anguish, emotional distress, inconvenience, and loss of use.

The fire department and AAIC assign as error the awarding of damages to the Sierras’ children, Ashley and Donald, who do not own the damaged property. We find no merit to that argument, and note that this court has previously affirmed an award to children of a family for mental anguish connected with their forced evacuation from their family home after a devastating train derailment damaged their home. See Cutrer v. Illinois Cent. Gulf R. Co., 581 So.2d 1013, 1023 (La.App. 1st Cir.), writ denied, 588 So.2d 1120 (La.1991). Similarly, the Louisiana Supreme Court affirmed mental anguish damage awards to direct heirs of property that sustained extensive damage from a wrongful trespass/excavation. See Williams, 731 So.2d at 250-251.

Finally, we address the contention that the trial court’s mental anguish damage awards were excessive. It is well-settled that appellate review of general damage awards require that much discretion be given to the trial court, such that a general damage award is rarely disturbed. La. Civ.Code art. 2324.1; Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 |8U.S. 1114,114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact. Youn, 623 So.2d at 1260. Thus, the role of an appellate court is not to decide what it considers to be an appropriate general damage award, but rather to review the exercise of discretion by the trier of fact. Id.

In the present case, the trial court awarded $3,000 each to Ruth and Donald, Jr., and $1,000 each to Ashley and Donald, III, in general damages for their inconvenience, loss of use, mental anguish, trauma, and emotional distress associated with the damage to their house. Upon reviewing the record in its entirety, and considering the mentally stressful, unusually demanding, and worrisome circumstances surrounding the care of the Sierras’ special needs family member, as well as the time of year the displacement occurred, we do not find the trial court’s general damage awards to the Sierras to be an abuse of discretion. We note that the trial court considered that the Sierras could have mitigated their damages and the amounts awarded reflect the failure to mitigate. Thus, we decline to disturb the amounts awarded to the Sierras.

CONCLUSION

For the stated reasons we affirm the trial court judgment. Costs of this appeal are assessed against American Alternative Insurance Corporation and St. Tammany Fire Protection District Number 6.

AFFIRMED.

HIGGINBOTHAM, J„

dissenting.

hi respectfully dissent from the majority in part, because the jurisprudence does not support an award for mental anguish to the children under these facts. In order to recover for mental anguish, it must be proven that the children suffered more than minimal worry and inconvenience over the consequences of their parents’ damaged home. See Robertson v. Geophy sical Service, Inc., 469 So.2d 22, 24 (La.App. 1st Cir.1985). Simply stated, the mental anguish that gives rise to a claim for damages must be real mental injury. Id. See also Heard v. Affordable Movers, Inc., 40,432 (La.App.2d Cir.12/14/05), 917 So.2d 722, 726-27.

While I agree that there was a sufficient showing in the record to support the trial court’s award of damages for Mr. and Mrs. Sierra’s mental anguish, emotional distress, inconvenience, and loss of use, I find that the evidence does not support the Sierra children’s claims for mental anguish damages. The evidence shows that Ashley and Donald, III were certainly upset and inconvenienced by the entire event that caused an upheaval in their lives during the 2010 holiday time. However, the record reveals that the children only sustained minimal worry and normal inconvenience from living in the hotel and celebrating the holidays and Donald, Ill’s birthday away from their home while their parents’ house was repaired.

12There was no evidence that any of the children’s personal property was damaged when the fire truck crashed into Mr. and Mrs. Sierra’s master bedroom. Neither of the children testified concerning their individual stress, concern, or worry over their special needs brother, Corey; however, Donald, III indicated that he worried about the extra stress on his mom while she cared for Corey at the hotel. Additionally, neither of the children indicated that they experienced any lingering anxiety or fear about another fire truck crashing into their parents’ home. Donald, III testified that while he was upset about not celebrating his birthday like he usually did with a big party on New Year’s Eve at his home, he celebrated his 19th birthday at the hotel with family and friends. Both children stated that they missed living at home during the holiday time, but Donald, III acknowledged that he liked having a room to himself at the hotel, “kind of like a bachelor pad.” Further there was no evidence that either of the two children was at or near the house when the fire truck incident occurred. Under the jurisprudence, such claims regarding normal upset and inconvenience are simply not compen-sable.

Accordingly, I respectfully dissent from the majority in part and would reverse that portion of the trial court’s judgment awarding damages of $1,000 to each of the Sierra children, Ashley and Donald, III. In all other respects I agree with the majority and would affirm the trial court’s judgment in part.


author: DRAKE, J.

text:
    Gina M. STOLTZ v. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS.
    No. 2013 CA 1968.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2014.

      Christine Y. Voelkel, Mandeville, LA, for Appellant, Gina M. Stoltz.
    Harrietta J. Bridges, Baton Rouge, LA, for Appellee, Department of Public Safety and Corrections.
    Before PARRO, GUIDRY, and DRAKE, JJ.
   DRAKE, J.

| gPIaintiff/Appellant, Gina M. Stoltz, seeks review of a district court judgment that affirmed the suspension of her driver’s license. For the reasons that follow, we reverse the judgment of the district court.

FACTS AND PROCEDURAL HISTORY

On November 1, 2012, St. Tammany Parish Sheriffs Deputy Jay Quinn observed a vehicle driven by the plaintiffiap-pellant, Gina M. Stoltz, run a red light and nearly strike another vehicle at Harrison Avenue and Highway 190 in Covington, Louisiana. After stopping Mrs. Stoltz, Deputy Quinn detected a strong odor of alcoholic beverages on her breath and observed her slurred speech and poor balance. Mrs. Stoltz admitted to drinking several alcoholic beverages prior to driving her vehicle. Mrs. Stoltz refused to submit to the Standardized Field Sobriety Test (SFST). See La. R.S. 32:661. Deputy Quinn then arrested Mrs. Stoltz for driving while intoxicated, in violation of La. R.S. 14:98, and proceeded to transfer her to a Louisiana State Police substation, Troop L, for further chemical testing.

When Deputy Quinn arrived at Troop L, he advised Mrs. Stoltz that she had been transferred there for chemical testing. Mrs. Stoltz refused to exit the vehicle and refused to submit to any chemical testing. Deputy Quinn did not advise Mrs. Stoltz of her constitutional right to refuse to chemical testing and of the consequences of failing to submit to the testing, including suspension of her driver’s license, as required by La. R.S. 32:661(C). At this point, Deputy Quinn called his supervisor over the radio requesting backup, since Mrs. Stoltz refused to exit the patrol unit. Deputy Quinn’s supervisor heard Mrs. Stoltz being combative over the radio and instructed Deputy Quinn to transfer Mrs. Stoltz to the St. | ¡¡Tammany Parish jail. As a result of her refusal to submit to chemical testing, the State of Louisiana, through the Department of Public Safety and Corrections, Office of Motor Vehicles, suspended Mrs. Stoltz’s Class D driver’s license for a period of one year in accordance with La. R.S. 32:667(B)(2)(a).

Pursuant to La. R.S. 32:667, Mrs. Stoltz timely requested an administrative hearing to contest the suspension of her license for refusal to submit to a chemical test for intoxication. On March 13, 2013, the administrative law judge affirmed the suspension. See La. R.S. 32:668.

On April 12, 2013, Mrs. Stoltz filed a petition for judicial review with the district court. See La. R.S. 32:668(C). Following a trial de novo on July 15, 2013, the district court affirmed the suspension of Mrs. Stoltz’s driving privileges in a judgment signed on October 29, 2013.

Mrs. Stoltz has appealed the district court’s judgment. She contends that the State had no authority to suspend her driving privileges when the Sheriffs deputy failed to inform her of her constitutional right to refuse to chemical testing and of the consequences of failing to submit to testing, including the suspension of her driving privileges, thereby violating the mandatory minimum due process requirements imposed by Louisiana’s implied consent law.

LAW AND DISCUSSION

On review of the administrative suspension of a driver’s license pursuant to the implied consent law, the district court is required to conduct a trial de novo to determine the propriety of the suspension. Such a trial is a civil action amenable to all of the ordinary rules of procedure and proof. Further, the fact that this is an action for judicial review of a decision resulting from an administrative hearing does not change the burden of proof placed by law on the plaintiff. Schexnaydre v. State, Dept. of Public Safety and Corrections, 11-1420 (La.App. 1 Cir. 11/2/12), 111 So.3d 345, 348.

Louisiana Revised Statutes 32:661(A)(1) provides, in pertinent part, as follows:

Any person ... who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent ... to a chemical test or tests of his blood, breath, urine, or other bodily substance for the purpose of determining the alcoholic content of his blood, and the presence of any abused substance or controlled dangerous substance ... in his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while believed to be under the influence of alcoholic beverages or any abused substance or controlled dangerous substance ...

Louisiana Revised Statutes 32:661(A)(2)(a) sets forth the following parameters for testing:

The test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person, regardless of age, to have been driving or in actual physical control of a motor vehicle upon the public highways of this state while under the influence of either alcoholic beverages or any abused substance or controlled dangerous substance as set forth in R.S. 40:964. The law enforcement agency by which such officer is employed shall designate in writing and under what conditions which of the aforesaid tests shall be administered.

See also Butler v. Department of Public Safety and Corrections, 609 So.2d 790, 792 (La.1992) (“all licensed drivers on state highways ... have impliedly consented to any number of tests to determine intoxication”).

Louisiana Revised Statutes 32:661(C) provides as follows with regard to the procedure for informing an arrested person of his rights concerning testing:

(1) When a law enforcement officer requests that a person submit to a chemical test as provided for above, he shall first read to the person a standardized form approved by the Department of Public Safety and Corrections. The department is authorized to use such language in the form as it, in its sole discretion, deems proper, provided that the form does inform the person of the following:
(a) His constitutional rights under Miranda v. Arizona.
|fi(b) That his driving privileges can be suspended for refusing to submit to the chemical test.
(c) That his driving privileges can be suspended if he submits to the chemical test and such test results show a blood alcohol level of 0.08 percent or above or, if he is under the age of twenty-one years, a blood alcohol level of 0.02 percent or above.
(d) That his driving privileges can be suspended if he submits to the chemical test and the test results show a positive reading indicating the presence of any controlled dangerous substance listed in R.S. 40:964.
(e) The name and employing agency of all law enforcement officers involved in the stop, detention, investigation, or arrest of the person.
(f) That refusal to submit to a chemical test after an arrest for an offense of driving while intoxicated if he has refused to submit to such test on two previous and separate occasions of any previous such violation is a crime under the provisions of R.S. 14:98.2 and the penalties for such crime are the same as the penalties for first conviction of driving while intoxicated.
(2) In addition, the arresting officer shall, after reading said form, request the arrested person to sign the form. If the person is unable or unwilling to sign, the officer shall certify that the arrestee was advised of the information contained in the form and that the person was unable to sign or refused to sign.

“In each instance that a person submits or refuses to submit to a chemical test, after being advised of the consequences of such refusal or submission as provided for in R.S. 32:661(C), the officer shall submit a report in a form approved by the secretary.” La. R.S. 32:666(B). The officer shall certify, among other things, that “he had followed the procedure in informing such person of his rights under R.S. 32:661(C), and that such person had submitted to the test or refused to submit to the test upon the request of the officer.” Id. Louisiana Revised Statutes 32:667 provides for the seizure of a person’s driver’s license and the suspension of his driving privileges if he “refuses to submit to an approved chemical test for intoxication” when the grounds set forth in La. R.S. 32:667 exist. Schexnaydre, 111 So.3d at 349; see La. R.S. 32:667(A) & (B).

|fi0n appeal, Mrs. Stoltz contends that she is not subject to a mandatory suspension of her driving privileges based on her uninformed refusal to submit to a chemical test for intoxication. Mrs. Stoltz notes that Deputy Quinn arrested her for driving while intoxicated pursuant to La. R.S. 14:98. While Deputy Quinn advised Mrs. Stoltz of her Miranda rights, he did not advise her of her constitutional right to refuse to chemical testing and of the consequences of failing to submit to the testing. Deputy Quinn did not read the standardized “Rights Relating to the Chemical Test for Intoxication” form to Mrs. Stoltz. Mrs. Stoltz did not sign the rights form acknowledging that she understood her rights.

The State avers that, from the outset of the stop, Mrs. Stoltz exhibited combative behavior. She refused to be handcuffed. She kicked, screamed, and made threats against Deputy Quinn. At Troop L, she refused to exit the patrol vehicle and refused to submit to chemical testing. Deputy Quinn testified that he was unable to advise Mrs. Stoltz of her rights relating to the chemical test because of her combative behavior. Deputy Quinn testified that “it was almost impossible to speak” to Mrs. Stoltz and that she “didn’t want to answer any” of his questions, and that she refused to listen to him. Deputy Quinn testified that Mrs. Stoltz was transferred to jail for her own safety, as well as his own.

It is within the discretion of the investigating officer to select the appropriate test or tests to determine the source of impairment. However, we further note that La. R.S. 32:661(C)(1) clearly mandates, by the use of the word shall, that when a law enforcement officer requests that a person submit to a chemical test, he shall 17first read to the person a standardized form approved by the Department, which informs that person of his rights. As stated by the Louisiana Supreme Court in State v. Alcazar, 00-0536 (La.5/15/01), 784 So.2d 1276, 1281, “[w]e find that any holding which allows the test results to be admitted into evidence when a defendant has not first been advised that he had a right to refuse to the test, effectively renders [La. R.S.] 32:661(0(1) and 32:666(A) meaningless.” Schexnaydre, 111 So.3d at 350.

At trial, Deputy Quinn confirmed that although he could not have brought Mrs. Stoltz into Troop L to advise her of her rights relating to chemical testing, he could have read her the rights form while she was sitting in the rear of his patrol vehicle, despite her combative behavior and whether or not she was actually listening. Under these circumstances, we conclude that Mrs. Stoltz, regardless of her behavior the night of her arrest, was not adequately informed regarding the consequences of her failure to submit to chemical testing. Accordingly, the district court erred in affirming the suspension of her driver’s license.

DECREE

Considering the foregoing, the judgment of the district court is reversed. The State of Louisiana, through the Department of Public Safety and Corrections, Office of Motor Vehicles, is hereby ordered to reinstate Gina M. Stoltz’s driver’s license. , All costs of this appeal, in the amount of $ 210.00, are cast to the State of Louisiana, through the Department of Public Safety and Corrections, Office of Motor Vehicles.

REVERSED.

      . Deputy Vaughn Vargo and Deputy Dustin Stevens were also present during the stop; however, these deputies arrived as backup after Deputy Quinn stopped Mrs. Stoltz and did not participate directly in her arrest.

      . Deputy Quinn testified that Mrs. Stoltz was being extremely combative during and after her arrest. She refused to be handcuffed. Once inside the rear of Deputy Quinn’s patrol unit, Mrs. Stoltz lay on her back and attempted to kick out the window of his patrol unit. She was also screaming and making threats against Deputy Quinn.

      . Prior to any questioning, a person must be warned that she has the right to remain silent, that any statement she does make may be used as evidence against her, and that she has a right to the presence of an attorney, either retained or appointed. The person may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).

      . Furthermore, Deputy Quinn did not make it clear that the right to counsel had no application under the implied consent law. See Schexnaydre, 111 So.3d at 351 (citing Swan v. Dep't of Pub. Safety, 311 So.2d 498, 500 (La.App. 4 Cir. 1975)).


author: MAX N. TOBIAS, JR., Judge.

text:
    Robert C. ESTELLE v. Curt EYSINKI, Executive Director, Louisiana Workforce Commission.
    No. 2014-CA-0108.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 6, 2014.

      David Holman Williams, Southeast Louisiana Legal Services, New Orleans, LA, Counsel for Plaintiff/Appellant.
    Cynthia Thomas Batiste, Peter George Wright, Louisiana Department of Labor, Baton Rouge, LA, Counsel for Defendant/Appellee.
    James D. “Buddy” Caldwell, Attorney General, Emily G. Andrews, Assistant Attorney General, Office of the Attorney General, Baton Rouge, LA, Amicus Curiae/Attorney General of the State of Louisiana.
    Court composed of Judge MAX N. TOBIAS, JR., Judge DANIEL L. DYSART, Judge ROSEMARY LEDET.
   MAX N. TOBIAS, JR., Judge.

hThe plaintiff/appellant, Robert C. Estelle, appeals a trial court judgment upholding the constitutionality of La. R.S. 23:1600(5), in connection with his claim for unemployment benefits. After reviewing the record and applicable law, we also find that La. R.S. 23:1600(5) is rationally related to a legitimate state interest and, therefore, constitutional, thereby affirming the judgment below.

Mr. Estelle was a bellman at a hotel before he became unemployed. The Louisiana Workforce Commission (“LWC”) initially granted him unemployment compensation, based on his base-period wages that were more than double the $1,200 minimum required by law. However, Mr. Estelle administratively appealed because the agency had not taken into account the tips he had earned, which had been properly reported to the taxing authorities. The tips were more than twice the amount of his other wages. Once the LWC added in these additional earnings, it ruled Mr. Estelle ineligible for unemployment compensation because the distribution of his wages no longer satisfied the high-quarter-ratio requirement.

|2The LWC held a hearing in which Mr. Estelle’s only challenge was to the constitutionality of La. R.S. 23:1600(5), which requires that a claimant’s base period earnings be at least one and one-half times the earnings in his or her high-quarter of earnings. The Appeals Tribunal and, later, the LWC Board of Review (“the Board”) held that Mr. Estelle was ineligible to receive unemployment compensation, citing the high-quarter-ratio requirement of section 1600(5). The Board held that it “lacks jurisdiction as regards the constitutionality of any statute.”

The uncontested facts, established during a telephone hearing and entered as findings by the Board, are as follows:

[Robert Estelle] filéd a claim for unemployment benefits. At the time of his application, the base period used to calculate monetary eligibility was April 1, 2010, through March 31, 2011. [Mr. Estelle] was initially determined to be monetarily eligible for a weekly benefit amount of $28.00. [Mr. Estelle]’s initial monetary determination .indicated [that he had] earned $1,178 in the 4th quarter of 2010, and $1,511 in the first quarter of 2011. [Mr. Estelle] contested the initial monetary determination and presented wage proof in dispute of [the] Agency wage records.

The Agency conducted a wage investigation and determined that [Mr. Estelle]’s wages, including tips earned through employment with Interstate Management, were incorrect. Based on [Mr. Estelle]’s wage proof, the Agency determined [he] earned $5,525 in the 4th quarter of 2010 and $2,586 in the 1st quarter of 2011. [Mr. Estelle] did not earn wages in any other [base period] quarter. The “monetary reconsideration” found [him] monetarily ineligible for benefits once the additional wages were added. In reaching its determination, the Agency found that [Mr. Estelle] had not earned wages in insured work equal to at least one and one-half times the wages paid to him that calendar [quarter] in which his wages were highest pursuant to La. R.S. 28:1600(5). In order to qualify for benefits, [Mr. Estelle] was required to earn one and one-half times his high quarter wages in his | abase period, or $8,287 in base period wages. [He] earned $8,111 in his base period.

During the hearing, [Mr. Estelle] did not dispute the amount of his earnings. Rather, Claimant’s counsel argued that La. R.S. 23:1600(5) is unconstitutional and has no rational basis in its application.

The Board held that it lacked jurisdiction to consider the constitutionality of the statute and affirmed the decision of the LWC, holding that Mr. Estelle was ineligible to receive unemployment compensation, citing the high-quarter-ratio requirement of La. R.S, 23:1600(5).

Mr. Estelle filed an appeal with the Orleans Parish Civil District Court. The only issue to be decided was whether La. R.S. 23:1600(5) is constitutional. On 1 October 2013, the court rendered judgment finding that the factual findings of the Board were supported by sufficient and competent evidence and that the decision was correct as a matter of law. The court also, found that La. R.S. 23:1600(5) was constitutional in that it did not deny Mr. Estelle equal protection of the laws and bore a rational relationship to a legitimate state interest, and its application was neither arbitrary nor capricious. This timely appeal followed.

Mr. Estelle accepts the factual findings of the Board of Review as correct. Thus, the only issue before the court concerns the constitutionality of La. R.S. 23:1600(5). The standard of review of a trial court’s ruling declaring the constitutionality of a statute is de novo. Louisiana Mun. Ass’n v. State, 04-0227, p. 36 (La.1/19/05), 893 So.2d 809, 842-43.

Article I, § 3 of the 1974 Louisiana Constitution, the Declaration of Right to Individual Dignity, provides:

No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. _J4No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.

Article I, § 3 commands the courts to decline enforcement of a legislative classification of individuals in three different scenarios: (1) When the law classifies individuals by race or religious beliefs, it shall be repudiated completely; (2) When the statute classifies persons on the basis of birth, age, sex, culture, physical condition, or political ideas or affiliations, its enforcement shall be refused unless the state or other advocate of the classification shows that the classification has a reasonable basis; and (3) When the law classifies individuals on any other basis, it shall be rejected whenever a member of a disadvantaged class shows that it does not suitably further any appropriate state interest. Sibley v. Bd. of Sup’rs of Louisiana State Univ., 477 So.2d 1094,1107 (La.1985).

The determination of a statute’s constitutionality is a purely judicial function, which is constitutionally vested in the courts. La. Const. Art. V, 1. Constitutional scrutiny favors the statute. State v. Griffin, 495 So.2d 1306, 1308 (La.1986). Statutes are presumed to be valid, and the constitutionality of a statute should be upheld whenever possible. State v. Hart, 96-0599, p. 2 (La.1/14/97), 687 So.2d 94, 95 (citing Griffin, 495 So.2d at 1308). In adjudicating a constitutional challenge, the court must analyze and interpret the language of the constitutional provision specified by the challenger. Louisiana Mun. Ass’n v. State, 00-0374, p. 5 (La.10/6/00), 773 So.2d 663, 667. Constitutional provisions are to be construed and interpreted by the same rules as are other laws. Louisiana Dep’t of Agriculture and Forestry v. Sumrall, 98-1587, p. 3 (La.3/2/99), 728 So.2d 1254,1258.

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9. When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole. La. C.C. art. 12.

Under the general rules of statutory construction, courts begin their review with the premise that legislation is the solemn expression of legislative will, and, therefore, the interpretation of the law primarily involves the search for the legislature’s intent. Cole-Miers Post 3619 V.F.W. of DeRidder v. State, Department of Revenue & Taxation, Office of Alcoholic Beverage Control, 99-2215 (La.1/19/00), 765 So.2d 312, 314. However, legislative intent is not the appropriate starting point for statutory interpretation. Rather, the appropriate starting point is the language of the statute itself. In re Louisiana Health Service and Indem. Co., 98-3034, p. 10 (La.10/19/99), 749 So.2d 610, 615.

La. R.S. 23:1600 states in pertinent part:

An unemployed individual shall be eligible to receive benefits only if the administrator finds that:
* * *
(5) He has during his base period been paid wages for insured work equal to at least one and one-half times the wages paid to him in that calendar quarter in which his wages were the highest. For the purposes of this Subsection, wages shall be counted as “wages for insured work” for benefit purposes with respect to any benefit year only if such benefit year begins subsequent to the date on which the ^employing unit, by which ■ such wages were paid, became an employer within the meaning of any provision of this Chapter. [Emphasis supplied.]

Mr. Estelle argues that this provision violates the equal protection clause of our constitution.

In general, statutes are presumed to be constitutional and the party challenging the validity of the statute has the burden of proving it is unconstitutional. See Soloco, Inc. v. Dupree, 97-1256, p. 3 (La.1/21/98), 707 So.2d 12, 14; Moore v. RLCC Technologies, Inc., 95-2621, pp. 7-8 (La.2/28/96), 668 So.2d 1135, 1140; Moore v. Roemer, 567 So.2d 75, 78 (La.1990). The party challenging the constitutionality of a statute must also cite to the specific provision of the constitution which prohibits the legislative action. Id. Under some circumstances, if the party challenges a statute on equal protection grounds, the burden of proof may be shifted to the proponent of the statute to prove the constitutionality of the statute depending on the level of scrutiny to be applied. See Moore v. RLCC Technologies, Inc., 95-2621, p. 8, 668 So.2d at 1140; Sibley, supra.

“Generally, the guarantee of equal protection requires that state laws affect alike all persons and interests similarly situated.” State v. Petrovich, 396 So.2d 1318, 1322 (La.1981). The legislature has great latitude in making laws and in creating classifications under those laws, so long as those classifications can withstand constitutional muster. Id. See also Burmaster v. Gravity Drainage Dist. No. 2 of the Parish of St. Charles, 366 So.2d 1381, 1388 (La.1978).

The parties agree that the level of scrutiny in this situation is the third scenario enunciated by Sibley, supra at 1107: “when the law classifies individuals |7on any other basis, it shall be rejected whenever a member of a disadvantaged class shows that it does not suitably further any appropriate state interest.” Under the third level of scrutiny, the law creating the classification is presumed to be constitutional and the party challenging the constitutionality of the law has the burden of proving it unconstitutional by showing the classification does not suitably further any appropriate state interest. State v. Fleury, 01-0871, p. 7 (La.10/16/01), 799 So.2d 468, 472. See also Med Express Ambulance Service, Inc. v. Evangeline Parish Police Jury, 96-0543 (La.11/25/96), 684 So.2d 359; Manuel v. State, 95-2189 (La.3/8/96), 692 So.2d 320.

In McCormick v. Hunt, 328 So.2d 140, 142 (La.1976), the Supreme Court stated, quoting, Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970):

In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘[sic] reasonable basis,’ [sic] it does not offend the Constitution simply because the classification [sic] is not made with mathematical nicety or because in practice it results in some inequality, ‘[sic] Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369.[sic] The problems of government are practical ones and may justify, if they do not require, rough accommodations-illogical, it may be, and unscientific.’[sic] Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70, 33 S.Ct. 441, 443, 57 L.Ed. 730. ‘[sic] A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ [sic] McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101,1105, 6 L.Ed.2d 393.

Mr. Estelle argues that the one and one-half times rule (also referred to as the “high-quarter-ratio requirement”) punishes those who have worked more and earned more in their high quarter. In other words, persons with higher income can be denied unemployment benefits for “insufficient earnings,” while others who | ^earned far less can qualify. Mr. Estelle claims that the requirement does not further any appropriate state interest and should be struck down, leaving only the monetary requirement that a worker earn at least $1,200.

The state counters that La. R.S. 23:1600(5) is rationally related to a legitimate state interest. The state maintains that the one and one-half times rule demonstrates a claimant’s commitment — commonly referred to as “attachment” — to the workforce as a basis of benefit eligibility. The state responds that if the only requirement in place was the $1,200 cut-off proposed by Mr. Estelle, workers with a higher-earning capacity would be able to work one or two days and quality for unemployment. In addition, this sole requirement could bankrupt the system. Louisiana’s unemployment system, as is true for systems in other states, is not “welfare” intended to provide benefits merely because someone is unemployed. Both the monetary and non-monetary requirements to receive unemployment are rationally related to a determination whether persons applying had a sufficient attachment to the workforce to be deemed eligible to receive benefits. A line must be drawn somewhere. Unfortunately for Mr. Estelle, he fell on the wrong side of the line.

The constitutionality of La. R.S. 28:1600(5) has never been challenged since its passage in 1983. However, we find two cases on point from other jurisdictions.

|flIn Martin v. Unemployment Compensation Bd. of Review, 502 Pa. 282, 466 A.2d 107 (1983), the claimant was ineligible for unemployment benefits because her total qualifying wages were less than the amount required. She challenged the constitutionality of the Pennsylvania statute claiming that it created impermissible classifications under the Fourteenth Amendment’s Equal Protection Clause. The Pennsylvania Supreme Court stated:

In Ohio Bureau of Employment Services v. Hodory, [431 U.S. 471, 97 S.Ct. 1898, 52 L.Ed.2d 513 (1977) ] supra, the United States Supreme Court considered a constitutional challenge to a provision of the Ohio Unemployment Compensation Law which excluded from eligibility persons unemployed due to a labor dispute other than a strike. The appellant, an employee at United States Steel in Youngstown, Ohio, had been furloughed through no fault of his own because of a strike by United Mine Workers which cut off the fuel supply at the Youngstown Plant. In upholding the validity of the statute the Court concluded that while the system provides only “rough justice”, it is not irrational because it deprived an “innocent” worker of compensation. Here, as in Hodory a legislative scheme designed to achieve a legitimate public purpose should not be found unconstitutional because it falls short of perfect justice.

Id. at 305, 466 A.2d at 119 [emphasis supplied].

In an earlier case decided by the United States District Court for the District of Connecticut, a similar conclusion was reached. In Ertman v. Fusari, 442 F.Supp. 1147 (D.C.Conn.1977), the claimant brought a constitutional challenge to Connecticut’s unemployment compensation scheme wherein the statute in question required that the claimant’s earnings in his base period (high quarter) reach an amount at least equal to forty times his benefit rate for compensation. The claimant argued that the “forty rule” did not bear a rational relationship to a legitimate state interest and violated the principles of equal protection.

|10The court stated that the “forty rule,” as one feature of the legislation’s overall eligibility scheme, was designed to insure that benefits are paid only to those claimants who have demonstrated a “genuine attachment to the labor market,” and to conserve limited .public resources in the administration of the program. It also noted that Connecticut’s eligibility standard conformed to those of other states. The court stated:

It is true, as the plaintiff points out, that the “forty rule” has had a harsh impact on him due to his rather unusual pattern of work. Indeed, had he earned less in his highest quarter or had his benefit rate been reduced from $89 to $66 per week, he would have been eligible for benefits under the “forty rule.” However, it is not the function of the Court to strike down or alter the State’s unemployment compensation eligibility standards because an incidental individual inequality results from its operation; the remedy rests with the legislature. “In establishing a system of unemployment benefits the legislature is not bound to occupy the whole field. It may strike at the evil where it is most felt, ... or where it is most practicable to deal with it....” Carmichael v. Southern Coal & Coke Co., supra, 301 U.S. at 519-520, 57 S.Ct. at 877. “General rules are essential if a fund of this magnitude is to be administered with a modicum of efficiency, even though such rules inevitably produce seemingly arbitrary consequences in some individual cases.” Califano v. Jobst, 434 U.S. 47, 53, 98 S.Ct. 95, 99, 54 L.Ed.2d 228 (1977). See also Wein-berger v. Salfi, 422 U.S. 749, 781, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975).

Id. at 1151 [emphasis supplied].

It is settled law that “(a) wide range of judgment is given to the several states as to the particular type of (unemployment compensation) statute to be spread upon their books.” Steward Machine Co. v. Davis, 301 U.S. 548, 593, 57 S.Ct. 883, 81 L.Ed. 1279 (1937). Further, “[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).

| uWe note that every state in this country has minimum monetary requirements in order to receive unemployment compensation. In the 2014 “Comparison of State Unemployment Laws” compiled by the United States Department of Labor (“DOL”), the DOL recognizes four different methods used by the states: (1) a multiple of high-quarter wages; (2) a multiple of weekly-benefit amount; (3) a flat qualifying amount; and (4) a week/hours of employment. Those states that use a flat qualifying amount (Alaska, Illinois, and West Virginia) have higher qualifying amount than $1,200. As noted in this case by the state, twenty-four other states use a one and one-half times or a one and one-quarter times rule. Most states have high-quarter mínimums and all the states have base period mínimums in order to qualify for unemployment benefits.

Is La. R.S. 23:1600(5) “unfair” as applied to Mr. Estelle Even assuming so, that does not render the statute unconstitutional. Quoting the Ertman court, “it is not the function of the Court to strike down or alter the State’s unemployment compensation eligibility standards because an incidental individual inequality results from its operation; the remedy rests with the legislature.” Ertman, 442 F.Supp. at 1151.

We find, as did the trial court, that La. R.S. 23:1600(5) furthers legitimate state interests; it violates neither the equal protection clause found in the Louisiana Constitution nor the equal protection clause of the Fourteenth Amendment of the United States Constitution. For these reasons, we affirm the judgment of the court below.

AFFIRMED.

      . The only case cited by Mr. Estelle that even touches on the issue of this statute and benefits eligibility is Pizzolato v. A.T. and T. Technologies, Inc., 543 So.2d 601 (La.App. 4th Cir. 1989). There, it was determined that the claimant was ineligible for benefits because his base earnings fell approximately $1,000 short of the required one and one-half times rule.

      . This edition reflects the status of state laws enacted as of January 1, 2014.