author: CARTER, Justice.

text:
    STATE of Iowa, Appellant, v. Steven Paul STRATMEIER, Appellee.
    No. 02-1522.
    Supreme Court of Iowa.
    Dec. 17, 2003.

      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Darin J. Raymond, County Attorney, and Amy Oetken, Assistant County Attorney, for appellant.
    Jack A. Faith, Sioux City, for appellee.
   CARTER, Justice.

In this appeal the State challenges a district court ruling that the results of a chemical test of a breath sample were inadmissible because the procedure used in conducting the test was not approved by the commissioner of public safety. After reviewing the record and considering the arguments presented, we conclude that the procedures for testing did comply with the approved procedures for sampling breath and that the test results should be admissible with no further foundation pursuant to Iowa Code section 321J.15 (2001).

At approximately 1:40 a.m. on March 30, 2002, Deputy Paul Betsworth stopped Steven Paul Stratmeier’s white Ford pickup on Highway 75 in LeMars, Iowa. The deputy had observed him driving seventy-five miles per hour in a sixty-five-mile-per-hour zone and driving onto the east shoulder of the road two times in a half-mile stretch of road. Upon approaching the pickup, the deputy smelled a strong odor of alcohol coming from Stratmeier. His eyes were glassy and his speech slurred. The deputy asked Stratmeier back to his squad car, and as they walked to the squad car, Strat-meier’s balance was noticeably poor.

In the car, the deputy asked Stratmeier if he had been drinking that night. Strat-meier admitted to drinking, but claimed he had not had a drink in over an hour. Stratmeier performed poorly on field sobriety tests, and at approximately 2:05 a.m., a preliminary breath test indicated that his blood alcohol level was .13. A second preliminary breath test indicated that Stratmeier’s blood alcohol level was .14. The deputy arrested Stratmeier for operating while intoxicated (OWI).

At the jail, the deputy read Stratmeier the implied-consent advisory and requested Stratmeier’s consent to a breath sample. Stratmeier consented. After a mandatory fifteen-minute observation period in which the jailer observed Stratmeier, the deputy told Stratmeier

he needed to take a deep breath and blow into the tube. I told him the machine has an audible tone that sounds off and lets me know if he is blowing into the tube. If he is blowing it is a continuous tone. If he quits blowing or starts sucking in, it starts to beep.

Stratmeier said he understood. The deputy then changed a disposable mouthpiece at the end of the machine and attempted to obtain a sample of Stratmeier’s breath in the chamber of the DataMaster cdm.

Stratmeier blew into the mouthpiece for a short time, but the machine started beeping, which indicated that his blowing had stopped. The deputy instructed Strat-meier to “take a deep breath and blow long into the tube.” Defendant gave another “short breath” and again the machine indicated that the sample was still incomplete. The deputy did not replace the mouthpiece in between defendant’s two breaths. The deputy then pushed a manual override button on the machine, called the “NY” button (No Volume), and received a printout revealing that the alcohol concentration of the incomplete breath sample was .121. The defendant was charged with OWI, second offense.

We have determined that the DataMas-ter cdm is an approved device for gauging blood-alcohol concentration and have upheld the instructions for its use issued by the Division of Criminal Investigation Criminalistics Laboratory as required by Iowa Administrative Code rule 661-7.2 (2003). State v. Hornik, 672 N.W.2d 836, (Iowa 2003). The machine on which Strat-meier was tested was certified as required by Iowa Administrative Code rule 661— 7.2(1). The deputy was certified to use the machine.

According to the instructions adopted by the criminalistics laboratory, in order to test a subject’s breath, the DataMaster will ask a series of questions about the test subject. The questions include what the person is charged with, name, sex, date of birth, etc. The answers to these questions are put on the printout of the completed test. Next, because of a mandatory fifteen-minute suspect-observation time, the machine asks for the exact time that the test was stopped and started. Then, the officer puts a new disposable mouthpiece on the machine and instructs the subject to blow.

Once the test is started, the subject has two minutes to provide a sample. A complete sample requires approximately “[a] normal breath blown into the mouthpiece for as long as he/she can” to complete the sample. If the officer obtains a complete sample, the machine prints- out three copies of the result; oné for the subject, one for the county attorney, and one for the operator of the machine. The manual suggests that, “[i]f the subject fails to deliver an adequate breath sample the first time and is instructed to repeat the breath test,” the officer should replace with a fresh mouthpiece.

The DataMaster may consider a breath sample incomplete for a number of reasons in which case the breath sample is not automatically processed. According to the testimony of Robert Monserrate, a crimi-nalist for the Iowa Department of Public Safety, Division of Criminal Investigation Criminalistics Laboratory, who supervises the State’s alcohol breath testing program, a breath sample would not be automatically accepted if a subject was not blowing hard enough into the machine or had not blown enough air into the machine. However, in such a situation, the instructions provide that the sample may be accepted by using the manual override device on the machine that registers the alcohol concentration of the breath that was injected into the chamber of the DataMaster device.

When a subject injects a breath sample in the DataMaster, the alcohol level in his breath rises along a slope of increasing concentration. The machine will not automatically indicate that a sample is complete until the level of alcohol concentration is constant. Monserrate testified that the slope detector indicates a sample is complete when a test subject’s alcohol level has peaked. Monserrate testified that “[t]he [manual] override will capture whatever sample is in the chamber at the time and what it sees is going to be valid and accurate as to what was submitted to the instrument.”

Stratmeier moved to suppress the test results of the incomplete sample on two grounds: (1) the deputy improperly failed to change the mouthpiece before Strat-meier’s second attempt to register on the device, and (2) acceptance of the concentration shown for the incomplete breath sample was contrary to the written directions for use of the device issued by the criminalistics laboratory. The district court, although rejecting the first ground of the motion, ordered that the test results be suppressed because the recording of the concentration of an incomplete sample was contrary to the directions promulgated pursuant to administrative rule.

I. Scope of Review.

Because the principal issue involved in this appeal is one of statutory interpretation, our review is for the correction of errors at law. Hornik, 672 N.W.2d at 838; State v. Stoneking, 379 N.W.2d 352, 353-54 (Iowa 1985).

II. Admissibility of the Chemical Test Results.

The State urges that the evidence suppressed by the district court was admissible pursuant to Iowa Code section 321J.15, which provides:

Upon the trial of a civil or criminal action or proceeding arising out of acts alleged to have been committed by a person while operating a motor vehicle in violation of section 321J.2 or 321J.2A, evidence of the alcohol concentration or the presence of a controlled substance or other drugs in the person’s body substances at the time of the act alleged as shown by a chemical analysis of the person’s blood, breath, or urine is admissible. If it is established at trial that an analysis of a breath specimen was performed by a certified operator using a device intended to determine alcohol concentration and methods approved by the commissioner of public safety, no further foundation is necessary for introduction of the evidence.

Stratmeier argued in the district court and that court agreed that any deviation from the procedures specified pursuant to administrative regulation for invoking the implied-consent law would require suppression of the test results. That conclusion was based on our decisions in State v. Jensen, 216 N.W.2d 369, 372 (Iowa 1974); State v. Williams, 201 N.W.2d 710, 710 (Iowa 1972); and State v. Hraha, 193 N.W.2d 484, 489 (Iowa 1972). At the time those cases were decided, section 321B.10 of the 1973 Iowa Code provided:

Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while operating a motor vehicle upon a public highway of this state while under the influence of an alcoholic beverage, evidence of the amount of alcohol in the person’s blood at the time of the act alleged as shown by a chemical analysis of his blood, breath, saliva or urine is admissible.

This statute did not lay down any guidelines with respect to compliance with applicable administrative regulations as a condition to admissibility of the evidence. Consequently, this court developed a rule of strict compliance on its own initiative.

Section 321B.10 of the earlier Code was replaced in 1986 by the present version of section 321J.15 (1986 Iowa Acts ch. 1220, § 15). That statute provides that a showing of compliance with administrative directives is only necessary to avoid establishing “further foundation” in the admission of alcohol-testing results. Under this statutory arrangement, unless it can be demonstrated that the test results are so unreliable as to preclude consideration, the results of a test taken by methods other than those strictly prescribed by administrative regulation are admissible. Under such circumstances, any challenge to the procedures used in obtaining the chemical test goes to the weight of the evidence rather than its admissibility.

We need not trouble ourselves in the present case with the distinction between admissibility without further foundation and admissibility based on a full explanation of the testing procedure. We are satisfied that the procedures followed in taking the sample of Stratmeier’s breath fully complied with the directions that had been promulgated pursuant to administrative regulation. Among the directions for use of the DataMaster promulgated by the criminalistics laboratory was the following:

SAMPLE CONTROL OVERRIDE
Refers to the fact that the operator chose to press the “NV” key when a subject, for whatever reason, was not providing an adequate breath sample per instructions. The test result is valid for the sample that was in the sample chamber at the time the operator pressed the key. Most test results obtained using this method will result in a lower than actual subject alcohol level unless the subject is alcohol free.

We believe that this provision expressly validates the use of an alcohol concentration obtained from a breath sample by the use of the manual-override device.

The portion of the administrative directions that the district court concluded were violated provided that, after analyzing a sample, the instrument would print out one of the following results:

SUBJECT REFUSED? (Y/N) Will be asked again if the instrument has been allowed to go through the 2-minute breath sampling period without a[n] adequate sample having been provided. If this question is answered with a “Y” a printout will be obtained and at that point where the results of “SUBJECT SAMPLE” are printed, the word “REFUSAL” will be printed. If this question is answered with a “N” after the test period then the word “INCOMPLETE” will be printed instead of “REFUSAL”. At this point, the instrument would then return to the “READY-PUSH RUN” screen and if the subject were to be given another opportunity, the instruction will ask “USE PREVIOUS DATA?” (Y/N) after the “RUN” key was pressed. A ‘Y” would allow the operator to scroll through the information entered previously to verify its accuracy and then proceed into a new opportunity for the subject to provide a breath sample.

We find nothing in the foregoing directive that is inconsistent with the express validation of the manual-override process in the agency’s directions to users of the machine.

The trial court determined that the requirement for obtaining a new mouthpiece upon the initiation of a second or subsequent testing procedure did not apply to false starts during a single testing procedure. That was the situation involved in the present case. As a matter of practicality and common sense, we agree with the trial court’s conclusion on this issue. For all of the reasons stated, we conclude that the results of chemical testing that were suppressed by the trial court are admissible without further foundation pursuant to section 321J.15. We have considered all issues presented and conclude that the judgment of the district court must be reversed. The case is remanded to that court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . The applicable administrative regulation provides:
      A peace officer desiring to perform direct testing of a subject’s breath for the purpose of determining the alcohol concentration shall employ, or cause to be used, a breath testing device of a type meeting the minimum performance requirements established by [certain federal regulations]....

      The operator of an evidentiary breath testing device shall have been certified as competent in the operation of the breath testing device, and shall proceed in accordance with the instructions included in an operational checklist and operating manual furnished by the division of criminal investigation criminalistics laboratory....

      All certifications of devices shall be made by the division of criminal investigation criminalistics laboratory. All certifications of operators shall be made by the division of criminal investigation criminalistics laboratory or a designee. A designee shall be a person trained and certified by the division of criminal investigation criminalistics laboratory.
      Iowa Admin. Code r. 661-7.2(1).


source: Caselaw Access Project

author: TERNUS, Justice.

license: Public Domain

text:
    NASH FINCH COMPANY, Appellant, v. CITY COUNCIL OF THE CITY OF CEDAR RAPIDS, Iowa, Appellee.
    No. 02-1189.
    Supreme Court of Iowa.
    Dec. 17, 2003.

      Mark A. Roberts of Simmons, Perrine, Albright & Ellwood, P.L.C., Cedar Rapids, for appellant.
    James H. Flitz, City Attorney’s Office, Cedar Rapids, for appellee.
   TERNUS, Justice.

Appellant, Nash Finch Company, appeals from a district court judgment upholding the action of appellee, City Council of the City of Cedar Rapids, suspending Nash Finch’s permit for the sale of cigarettes based on the company’s second violation of Iowa Code section 453A.2(1) (1999). Nash Finch contends the district court erred in holding two company stores were the same “place of business” for purposes of aggregating offenses under Iowa Code section 453A.22. Finding no error, we affirm.

I. Background Facts and Proceedings.

In 1999, Nash Finch owned and operated four Econofoods stores in the Cedar Rapids area, including one at 2300 Edge-wood Road S.W. This store was the only Econofoods store on the west side of Cedar Rapids, and was known internally as Econofoods #465. (We will refer to this establishment as store #465 throughout the remainder of this opinion.) Cigarettes were sold at this location under the authority of cigarette permit no. 488, issued by the City of Cedar Rapids to Nash Finch for store # 465.

On April 8, 1999, an employee of store # 465 was cited for violating section 453A.2(1) by selling cigarettes to a minor. See Iowa Code § 453A.2(1) (“A person shall not sell, give, or otherwise supply any tobacco, tobacco products, or cigarettes to any person under eighteen years of age.”). After the employee was found guilty, the city imposed a civil penalty of $300 on Nash Finch, pursuant to Iowa Code section 453A.22. See id. § 453A.22(2)(a) (providing for the imposition of a $300 civil penalty for a first violation of section 453A.2 by a retailer or its employee).

On June 27, 2000, store #465 closed. The remaining inventory and equipment from this store were either auctioned off or dispersed among other stores. The following day, June 28, 2000, Nash Finch opened a new Econofoods store approximately 1200 feet northwest of the old store, at 2100 Edgewood Road S.W. This store was designated as Econofoods # 475. It did not share any common walls or parking areas with the old store. In addition, the stores’ finances were separate, with each maintaining its own accounting ledgers and payrolls. Although the entire contents of store # 475 were new, ninety percent of the employees from the old store, including all of the management personnel, transferred to the new store.

As noted earlier, store # 465 had a city permit to sell cigarettes. This permit had been issued for the period from July 1, 1999, through June 30, 2000. See id. § 453A.13(3) (requiring that all permits issued to a retailer “expire on June 30 of each year”). Prior to the opening of the new store, a paralegal at Nash Finch’s corporate headquarters prepared an application for a cigarette permit for store #475 commencing on July 1, 2000, the anticipated opening date for the new store. Later, the company decided to open store #475 three days early, but learned the city council would not be able to approve the permit by the earlier date. The city clerk offered to “transfer” the cigarette permit from store # 465 to store # 475 for the three-day period between the new opening date and July 1, 2000. Consequently, store #475 was allowed to sell cigarettes from June 28, 2000, through June 30, 2000, under the authority of permit no. 488. Thereafter, it sold cigarettes under new permits issued every July 1.

On January 9, 2001, an employee of store # 475 was cited by the police for selling cigarettes to a minor in violation of section 453A.2(1). She later pled guilty. On August 1, 2001, the city council, finding Nash Finch had been convicted “on two occasions for selling cigarettes to persons under 18 years of age,” suspended its cigarette permit for store # 475 for thirty days. See id. § 453A.22(2)(6 ) (providing for a thirty-day suspension of a retailer’s permit if the retailer or an employee of the retailer has violated section 453A.2 for the second time within a two-year period). Nash Finch opposed the suspension, arguing the first violation did not occur at the same store as the second violation. The council rejected this argument, noting (1) store # 475 opened the very next day after store # 465 closed; (2) both stores had the same management and primarily the same market; (3) the workforce from store #465 and its liquor license were transferred to store # 475; and (4) Nash Finch operated no other Econofoods stores on the southwest side of Cedar Rapids. Based on these facts, the council concluded the violation at store # 475 was a second violation for purposes of section 453A.22 and warranted a thirty-day suspension.

Nash Finch filed a petition for writ of certiorari, resulting in a trial before the district court. Focusing on the physical and financial separateness of the two stores, Nash Finch contended store # 465 and store # 475 were not the same “place of business” as that term is defined by Iowa Code section 453A.1(19). Consequently, it claimed, the violation at store #465 could not be aggregated with the violation at store #475. Nash Finch argued that in the absence of aggregation, there was not substantial evidence to find a second violation had occurred at store # 475. Therefore, it asserted, the council acted illegally in suspending the cigarette permit for store # 475.

Acknowledging that the legislature may not have intended to aggregate violations occurring at two separate places of business operated simultaneously by the same entity, the district court believed the facts of this case were different. The court concluded from the evidence that store # 475 replaced store # 465 and therefore they were the same “place of business” within the meaning of chapter 453A. The trial court ruled there was substantial evidence to support the council’s suspension of Nash Finch’s cigarette permit for store # 475 and, accordingly, dismissed the writ of certiorari.

Nash Finch has appealed the district court’s decision. This court stayed the suspension pending resolution of this appeal.

II. Scope of Review.

Iowa Rule of Civil Procedure 1.1401 provides that “[a] writ of certiorari shall only be granted ... where an inferior tribunal, board or officer, exercising judicial functions, is alleged to have exceeded proper jurisdiction or otherwise acted illegally.” Iowa R. Civ. P. 1.1401. “A city exercising a governmental function is a tribunal within the meaning of [this] rule.” Sergeant Bluff-Luton Sch. Dist. v. City Council, 605 N.W.2d 294, 297 (Iowa 2000).

We recently set forth the principles governing our review of such cases:

Our review of a district court ruling is at law. “An illegality is established if the board has not acted in accordance with a statute; if its decision was not supported by substantial evidence; or if its actions were unreasonable, arbitrary, or capricious.” We are bound by findings of the trial court if they are supported by substantial evidence in the record. Evidence is substantial when “a reasonable mind would accept it as adequate to reach a conclusion.”

Perkins v. Bd. of Supervisors, 636 N.W.2d 58, 64 (Iowa 2001) (citations omitted). “The plaintiff bears the burden to prove the illegality.” City of Grimes v. Polk County Bd. of Supervisors, 495 N.W.2d 751, 752 (Iowa 1993).

III. Statutory Provisions.

Because the issue in this case is one of statutory interpretation, we start with the relevant portions of the applicable statute. Under Iowa law a “retailer” desiring to sell cigarettes must obtain a permit. See Iowa Code § 453A.13(1). Although the department of revenue and finance issues “state permits to distributors, wholesalers, and cigarette vendors [persons selling cigarettes in vending machines],” cities may issue permits to retailers within their city limits. Id. § 453A.13(2)(u). A “retailer” is defined broadly to include “every person in this state who shall sell, distribute, or offer for sale or consumption or possess for the purpose of sale or consumption, cigarettes.” Id. § 453A.1(21).

A permit must be obtained “for each place of business owned or operated” by a retailer. Id. § 453A.13(7). The permit must “describe clearly the place of business for which it is issued.” Id. § 453A.13(9). The statute defines the term “place of business,” in relevant part, as

any place where cigarettes are sold or where cigarettes are stored within or without the state of Iowa by the holder of an Iowa permit or kept for the purpose of sale or consumption....

Id. § 453A.K19).

Permits are “nonassignable.” Id. § 453A.13(9). Nonetheless, they may be “exchanged.” See Iowa Admin. Code r. 701 — 82.2(3). Rule 701 — 82.2(3) states:

If a permitee changes the location of an operation requiring a permit but remains within the jurisdiction of the same entity which granted the original permit, the permitee may exchange the invalid permit (valid only for the location described in the permit) for a valid permit free of charge, without the partial payment-partial refund process.

Id.

Chapter 453A prohibits the sale of cigarettes to persons under the age of eighteen. See Iowa Code § 453A.2(1). The statute provides progressive penalties for multiple violations of this prohibition, in-eluding suspension and ultimately revocation of the retailer’s permit. See id. § 453A.22(2). It does not, however, expressly state when a violation should be considered a “second,” “third,” or “fourth” violation by the particular retailer. E.g., id. § 453A.22(2)(6) (“For a second violation within a period of two years, the retailer’s permit shall be suspended for a period of thirty days.”). The statute does provide, nonetheless, that suspensions and revocations are applicable only “to the place of business at which the violation occurred.” Id. § 453A.22(4) (emphasis added).

In interpreting and applying these statutory provisions, we “attempt to give effect to the general assembly’s intent in enacting the law. Generally, this intent is gleaned from the language of the statute.” Griffin Pipe Prods. Co. v. Guarino, 663 N.W.2d 862, 864 (Iowa 2003) (citations omitted). We give words their ordinary meaning, keeping in mind the context of the provision at issue. Id.; William C. Mitchell, Ltd. v. Brown, 576 N.W.2d 342, 347 (Iowa 1998). In addition, we strive to interpret each provision of a statute “in a manner consistent with the statute as an integrated whole.” Griffin Pipe Prods. Co., 663 N.W.2d at 864.

IV. Discussion.

Nash Finch argues that because the statutory scheme contemplates that each “place of business” must have its own permit, the council and district court erred in concluding a violation occurring under the permit issued to store # 475 could be aggregated with a violation occurring under a different permit issued to a different store. Initially, we reject any suggestion that only violations happening while the same permit is in effect can be aggregated. Violations must logically be aggregated by place of business, not by a particular permit. We reach this conclusion because the statute specifically provides for aggregation of violations occurring within two years, yet permits are only issued for one year. See Iowa Code §§ 453A.13(3), 453A.13.22(2)(&). See generally Am. Legion v. Cedar Rapids Bd. of Review, 646 N.W.2d 433, 439 (Iowa 2002) (“We will not interpret a statute so as to render a part of it superfluous.”); State v. Jennie Coulter Day Nursery, 218 N.W.2d 579, 582 (Iowa 1974) (“[T]he legislature will be presumed to have inserted every part in a statute for a purpose and to have intended that every part shall be carried into effect.”). It follows, then, that aggregated violations can occur during the terms of different permits covering the same place of business. Thus, the determinative question is whether store # 475 was the same “place of business” as store . # 465.

The statutory definition of “place of business” is of little assistance in answering this question because it does not elaborate on the term from a geographical or business continuation perspective. The statute merely provides that a “place of business” is “any place where cigarettes are sold ... by the holder of an Iowa permit.” Iowa Code § 453A.1(19) (emphasis added). Although the word “place” has many definitions, it is our -judgment the one that fits best in this context is “a building or locality used for a special purpose.” Webster’s Third New International Dictionary 1727 (unabr. ed.2002). While the word “any” also has many meanings, in this context, we think it more likely means “one, no matter what one: every” Id. at 97. We interpret Nash Finch’s argument to rest on the premise that “place” means a precise “building” or address. But under the common meaning of the terms, “any place” might also mean wherever the business is conducted. Cf. State v. Cahalan, 204 Iowa 410, 412-13, 214 N.W. 612, 613 (1927) (holding “place,” as used in statute defining liquor nuisance, was not limited to a particular building but included entire" area where illicit liquor business was conducted).

Because neither interpretation is unreasonable, we think the statute is ambiguous. See State v. Albrecht, 657 N.W.2d 474, 479 (Iowa 2003) (“A statute is ambiguous if reasonable minds could differ or be uncertain as- to the meaning of the statute.” (Citations omitted.)). When a statute is ambiguous, the court may consider, among other factors, the purpose of the statute, the consequences of a particular construction, and any administrative interpretation of the statute. See Iowa Code § 4.6; State v. Sailer, 587 N.W.2d 756, 760 (Iowa 1998).

We turn first to the department’s rule, which reflects its view of the statutory scheme implemented in chapter 453A. See Mortimer v. Fruehauf Corp., 502 N.W.2d 12, 14 (Iowa 1993) (noting court gives “deference to an interpretation by the responsible administrative agency”). Under rule 701 — 82.2(3), the department allows a permit to be'transferred when “the location of [the] operation” changes. Thus, when the business operation is simply moved to another location, the permit can be exchanged for one covering the new location without the necessity of applying for a new permit and obtaining approval for its issuance. (It appears that is what the city clerk intended to do here.) This agency interpretation implies that the focus of the regulatory scheme is the business or operation of the specific retailer because once the retailer is issued a permit, it can automatically be transferred to a new location. Consistent with this focus, it appears the element of primary importance in the phrase, “place of business,” is the business operation itself, and not the physical location.

This focus is consistent with the purpose of the statute. A review of chapter 45SA reveals a legislative intent to regulate the sale of cigarettes by retailers in the state, and more specifically to discourage the sale of cigarettes to minors. This legislative purpose is best furthered by holding a retailer responsible for multiple violations of the statute arising out of the same operation, even when that operation has moved to a new location. There is simply nothing in the statute to indicate a retailer should gain a fresh start, free from the burdens of prior violations, simply by relocating. Certainly such an interpretation of the statute would be contrary to the legislative goal of deterring violations by the same retailer through the application of progressive penalties for multiple violations.

Based upon our consideration of the entire statute, its implementing rules, and its purpose, we conclude the mere relocation of a business does not automatically produce a new “place of business” for purposes of aggregating violations. Accordingly, in the present case, aggregation is not precluded simply because the first violation occurred at a different physical location than the second violation. The determinative question is whether store # 475 is the same “operation” as store # 465. See Iowa Admin. Code r. 701 — 82.2(3) (permitting transfer of permit when “location of an operation” changes). Thus, we reject Nash Finch’s contention that the council and district court erroneously interpreted the statute when they focused on whether store # 475 was a replacement for the business formerly operated as store #465.

The remaining question, then, is whether the district court correctly concluded there was substantial evidence to support the council’s implicit finding that store # 475 was the same operation as store # 465, or, under the terminology used by the district court, whether store # 475 replaced store #465. We think there is substantial evidence in support of this finding. Store # 475 opened immediately upon the closing of store # 465; they never operated simultaneously. The stores were located on the same street, only 1200 feet apart, and served the same market. Although inventory and equipment were not transferred from one location to the other, common sense suggests the purchase of new equipment and inventory was necessary to ensure that the new store would be operational immediately upon the closing of the old store. More importantly, the personnel from store # 465 transferred, with few exceptions, to the new location. While store #475 had some employees working prior to the closing of store # 465, these employees were apparently readying the store for operation, as store # 475 was not open for business until store # 465 closed. In addition, the record shows the old store’s cigarette permit and liquor license were transferred to the new store. Finally, Nash Finch’s own company witness testified that store # 475 “was a replacement store.”

We think these facts provide ample support for the council’s conclusion that store # 475 was a mere continuation of the operation formerly conducted by Nash Finch at store # 465. Therefore, the violations that occurred at each store occurred at the same “place of business.” Consequently, the council correctly aggregated the violations occurring at the two locations for purposes of determining the appropriate penalty for the second violation.

V. Disposition.

In conclusion, we find no error in the district court’s ruling that the city council did not act illegally in suspending the cigarette permit for store # 475 for thirty days. Therefore, we affirm. The stay previously entered by this court shall expire upon issuance of procedendo.

AFFIRMED.

All justices concur except WIGGINS, J., who takes no part.

      . The legislature has given the director of the department of revenue and finance authority to adopt rules for the administration of chapter 453A. See Iowa Code § 453A.25(2). See generally id. § 453A.56 (providing for uniform and equitable implementation of the statute throughout the state).

      . We do not apply the rules set forth in Iowa Code section 17A. 19(11) concerning the deference to be accorded “to the view of the agency with respect to particular matters,” as the Administrative Procedure Act does not govern the present certiorari action. See Iowa Code §§ 17A.2 (stating that “a political subdivision of the state” is not an "agency” within the ambit of chapter 17A); .19(11) (stating deference rules are used by court ”[i]n making the determinations required” for judicial review of agency action).

      . Nash Finch challenges a finding by the city council that the management at the two locations was the same at the time of the violations. While the record shows the stores had the same manager when the two violations occurred, the assistant managers were different. We do not find the council's unsupported generalization to be important, however. As our discussion makes plain, the significant fact is that all of the management personnel from store # 465 transferred to store #475, a fact that supports the council’s ultimate conclusion that store # 475 was a continuation of the operation formerly conducted at store #465.

      . Although Nash Finch complains that the city clerk had no authority to "transfer” store # 465's cigarette permit to the new store, we conclude the clerk’s action was consistent with the spirit, if not the literal terms, of rule 701 — 82.2(3) providing for the exchange of a permit upon relocation of a business.


text:
    CITY OF MARQUETTE, Iowa, Appellee, v. Steven A. GAEDE and Ruth Gaede, Appellants.
    No. 02-1008.
    Supreme Court of Iowa.
    Dec. 17, 2003.

      Dale L. Putnam of Putnam Law Office, Decorah, for appellants.
    James A. Garrett of Jacobson, Bristol, Garrett & Swartz, Waukon, for appellee.
   CARTER, Justice.

Steven A. Gaede and Ruth Gaede, who claim ownership of a thirty-three-foot strip of land that the City of Marquette claims is a city street, appeal from a decree quieting title to the disputed strip in the city. The Gaedes urge that (1) the platted street that forms the basis for the city’s claim never extended far enough east to coincide with the area in dispute, (2) the city’s claim is barred by a forty-year chain of title in the Gaedes and their predecessors in interest, and (3) the city is estopped from claiming title to the disputed strip. We reject each of these contentions and affirm the district court’s decree quieting title in the city.

We make the following findings of fact on our de novo review of the evidence at trial. The plat that forms the basis for the city’s claim to the disputed strip was filed of record on August 12, 1858. The city (town) was incorporated on June 15, 1874, and the articles of incorporation filed with the secretary of state referenced the August 12, 1858 plat. As originally incorporated, the city was known as North McGregor. The name was changed to Marquette on March 29,1920.

The city streets shown to be running east and west on the 1858 plat include North Street, Main Street, Milwaukee Street, and Madison Street. All of these streets are shown on that plat as extending to the west bank of the Mississippi River. These streets are shown on the plat to be sixty-six feet wide. The property the Gaedes are now claiming coincides with the south thirty-three feet of North Street (as shown on the 1858 plat) lying between the river and a railway right-of-way. The tract at issue extends west of the river approximately eighty feet on its north boundary and 131 feet on its south boundary.

On January 4, 1870, John and Catharine Lawler executed a deed conveying certain real estate to The Milwaukee and St. Paul Railway Company. The land described in that deed included the strip now in dispute in the present litigation. That deed was not recorded. Another deed from the Lawlers to the same railway company was executed on the same date and recorded on March 14, 1870. That deed conveyed “a narrow strip of land situated directly east of Blocks numbers one (1), seven (7), and eight (8) and lots number one (1), two (2), three (3), and four (4) in Block number nineteen in the Town of North McGregor.” The property thus described would intersect North Street directly east of the eastern most platted lots in the city. The distance between that point and the river would allow for a 100-foot railway right-of-way lying entirely west of the disputed property.

The property conveyed in the 1870 Lawler deed appears to have been disposed of in a subsequent federal court reorganization of an entity called the Chicago, Milwaukee, and St. Paul Railway Company. There is nothing in the chain of title to indicate whether this was the same entity as The Milwaukee and St. Paul Railway Company. The Chicago, Milwaukee, and St. Paul Railway Company conveyed property described only as “railway extending: From Green Island, State of Iowa, in a northwesterly direction along the west bank of the Mississippi River to River Junction, State of Minnesota and other real estate” to the Chicago, Milwaukee, St. Paul, and Pacific Railroad Company in 1927. In 1977 the Chicago, Milwaukee, St. Paul, and Pacific Railroad Company went through federal bankruptcy proceedings. All of its property was conveyed to a corporation known as SLRC, Inc. on February 19, 1985. Through a series of transactions, a portion of this property was conveyed to a corporation known as CMC Real Estate Company, a Wisconsin corporation. Nothing in the 1977 or 1985 conveyances indicates that the property at issue here was included among that being conveyed.

CMC conveyed the north thirty-three feet of a strip coinciding with the platted North Street and other property to Darwin and Violet Johnson on June 11, 1987. The Johnsons later sold their thirty-three-foot strip to Roger and Connie Halverson. The Halversons were originally included as parties in this quiet-title litigation but reached a settlement with the city, allowing them to acquire ownership of the north thirty-three feet of North Street east of the railway right-of-way subject to certain easements in favor of the city.

CMC conveyed the south thirty-three feet of North Street east of the railway plus additional land to Henry S. Wilder-muth on December 20, 1988. This thirty-three-foot strip was approximately eighty feet long on the north and 131 feet long on the south. Wildermuth conveyed this same property to Leslie and Margery Stansberry on September 28, 1992. The Stansberrys conveyed that property to the Gaedes on August 5, 1998. The property that the Gaedes received is described, commencing at a point approximately fifty-two feet east of the railway centerline (the extent of the right-of-way) and then south from the centerline of North Street 137 feet parallel to the railway right-of-way, east 115 feet to the river, north 131 feet along the river, and then west eighty feet to the point of beginning. As so described, the property lies outside of the railway right-of-way.

North Street has always been a main downtown street in Marquette. No portion of it has ever been vacated. The portion of this public way between the railway and the river has never been surfaced. For many years, there was a boat ramp where North Street intersected the river. This ramp was at all times maintained by the City of Marquette. City personnel performed a considerable amount of maintenance in relation thereto. It was annually coated with asphalt, driftwood was removed, and snow was plowed by the city to permit access for boaters in the wintertime.

Mary Jo Pire, who at the time of the trial had lived on North Street for fifty-seven years, testified that she used the portion of the street east of the railroad as a route to the river for boating and fishing. She testified that she had used the boat ramp regularly between 1955 and 1993. Gerald Ploog, who was eighty-six years of age at the time of trial, testified that -he had used the boat ramp as early as 1921 and that the strip of land, designated as North Street on the 1858 plat, was the route to the ramp. We credit the testimony of both Pire and Ploog. In 1981 the existing bridge between Marquette and the State of Wisconsin was closed awaiting the building of a new bridge. As a result, a ferry service was maintained that used the North Street ramp for access to the river.

After receiving their deed from the Stansberrys, the Gaedes placed a considerable amount of fill dirt on the disputed parcel and constructed a retaining wall along the riverbank. This work was done pursuant to a permit issued to them by the Iowa Department of Natural Resources. The application for this permit required approval by the city, which was granted. After Leslie Stansberry, the Gaedes’ predecessor in interest, obtained a deed to the disputed property in 1992, he interfered with the public use of the ramp. The Halversons and the Gaedes continued that practice. There was much public agitation concerning the Halversons’ and Gaedes’ use of what had been regarded as a public area. In the fall of 2000, the city formally declared its claim to ownership of the sixty-six-foot strip east of the railway right-of-way adverse to the Gaedes and the Hal-versons.

After hearing the evidence, the district court concluded that the city acquired title to the disputed tract as a city street by virtue of the 1858 plat. The court further concluded that an unbroken chain of title in the Gaedes and their predecessors in interest was not shown to have existed for forty years. In addition, the court concluded that because North Street as originally platted provided access to a navigable waterway it was public trust property. The court rejected the Gaedes’ claim of estoppel on the basis that their unchallenged possession had not existed for more than ten years. Other facts that are important to our decision on appeal will be discussed in our consideration of the legal issues presented.

I. Scope of Review.

This quiet-title action was tried by equitable proceedings and, as a consequence, our review of the facts is de novo. Fencl v. City of Harpers Ferry, 620 N.W.2d 808, 811 (Iowa 2000); Rouse v. Union Township, 530 N.W.2d 714, 716 (Iowa 1995). We have the responsibility to examine the facts as well as the law and to decide anew the issues properly presented. Fencl, 620 N.W.2d at 811. We give weight to the fact-findings of the trial court, but are not bound by them. Id. We are also not bound by the trial court’s conclusions of law. Id.; Rouse, 530 N.W.2d at 716.

II. Whether the Property at Issue is a City Street Established by the 1858 Plat.

A. Location of the platted street. The Gaedes argue that the city has not established that it owns the property at issue. They urge that North Street as platted did not extend to the west bank of the Mississippi River. That claim is dispelled by the plat itself, which clearly shows the location of North Street as extending to the riverbank.

We have recognized that the recording of a plat, followed by the subsequent incorporation of the platted area as a city, is the equivalent of a deed in fee simple to the city of the land set apart in the plat for streets or other public uses. Fencl, 620 N.W.2d at 812; Kelroy v. City of Clear Lake, 232 Iowa 161, 164, 5 N.W.2d 12, 16 (1942); Inc. Town of Ackley v. Cent. States Elec. Co., 206 Iowa 533, 536, 220 N.W. 315, 316 (1928).

Because plats are prepared by private landowners, the dedication of streets is subject to the city’s formal acceptance in order that the city may not be forced to accept a burden it does not wish to assume. Burlington, C.R. & N.R. Co. v. City of Columbus Junction, 104 Iowa 110, 112-13, 73 N.W. 501, 502 (1897). Because this requirement is for the city’s protection, lack of a formal acceptance will not defeat a city’s claim to a platted street that has been used as a public way. Id. Such use need only be that which the public wants and necessities demand. Henry Walker Park Ass’n v. Mathews, 249 Iowa 1246, 1253, 91 N.W.2d 703, 708 (1958). Moreover, the legislature has provided that a showing of formal acceptance of city streets is not necessary in the case of plats filed before 1897. Iowa Code § 592.2 (2001). In the present case, a dedication of all of the streets shown on the 1858 plat was acknowledged by Alexander MacGre-gor and Ann G. MacGregor, the owners of the land. At the time of the incorporation of the city, thirty-five electors attested to the acceptance of the designations shown on the 1858 plat as the city (town) of North McGregor.

The Gaedes contend the language in the 1858 plat describing the location of the northeast corner of the city demonstrates that North Street did not extend all the way to the river. The language to which they refer provides:

The North East corner of the plat commences one hundred eighty feet due West of the North East corner of the Bazil Giard Claim No. 1 Clayton County, Iowa.

The point so described lies west of the river more than 100 feet. The Gaedes would establish the east boundary of the city by extending this point due south. As a surveyor who testified for the city declared, the location of the northeast corner only establishes one point on the boundary of the city. No further description of the city’s boundaries is contained in the plat. To establish the eastern boundary in the manner that the Gaedes suggest would eliminate not only a portion of North Street as shown on the plat but other portions of the city as well. We find that North Street did extend to the west bank of the river as shown on the plat and has, in its entirety, been a duly constituted city street ever since the incorporation of the town in 1874.

B. Abandonment. Although the Gaedes urge that there have been long periods of nonuser of North Street as a public way and that a tree has obstructed the unimpeded use of a portion thereof, these circumstances do not sustain their claim that the platted street has been abandoned by the city. There is a presumption that, once a highway or street is shown to exist, it continues to exist. Allamakee County v. Collins Trust, 599 N.W.2d 448, 451 (Iowa 1999). To establish abandonment, an intent to abandon must be proven by clear and satisfactory evidence. Id.; Sterlane v. Fleming, 236 Iowa 480, 483, 18 N.W.2d 159, 161 (1945). Actual acts of relinquishment accompanied by an intention to abandon must be shown. Collins Trust, 599 N.W.2d at 451; Town of Marne v. Goeken, 259 Iowa 1375, 1382, 147 N.W.2d 218, 224 (1966). Obstructions, encroachments, or the failure to keep a road in repair do not necessarily result in abandonment. Sterlane, 236 Iowa at 484, 18 N.W.2d at 162.

C. Absence of a deed for the railway line. At the time of the 1858 plat, there was no railway line in existence. The railway line we have earlier described was built at a later time. That line crossed over the location of North Street as shown on the plat. The Gaedes argue that because there is no deed of record conveying a portion of North Street lo a railway company it must be assumed that the railway already owned the disputed property as a result of the unrecorded Lawler deed. In response to this argument, we believe that we may only fairly assume from these facts that the entity that constructed the railway line acquired some type of ownership interest in a strip of land crossing over North Street. But, there is no reason to assume that this strip of land was any wider than 100 feet, which is the dimension of the railway right-of-way. The property in dispute lies east of the eastern boundary of the railway right-of-way. The Gaedes’ argument concerning the lack of a deed to a railway company provides no basis for negating the city’s ownership of North Street from the railway line east to the west bank of the river.

D. The effect of the Halverson settlement. The Gaedes argue that, because the plat provides that streets be sixty-six feet in width and the city’s settlement with the Halversons has precluded its use of the north thirty-three feet of North Street as a street, it may not maintain the remaining thirty-three feet as a public way. They have cited no authority for this proposition and, consequently, have waived any argument concerning the city’s right to use the remaining portion of the street. See Iowa R.App. P. 6.14(l)(c) (providing that failure to cite authority in support of proposition may be deemed to be waiver of the issue).

III. The Forty-Year Chain of Title Act (Iowa Code § 614.31).

The Gaedes argue that the facts reveal that they enjoy an unbroken chain of title of record for more than forty years. That circumstance, they urge, vests them with marketable title to the property in dispute by reason of the provisions of Iowa Code section 614.31. This provision is known as a marketable title act and is designed to shorten the period of search required to establish title to real estate and give stability to record titles. Fencl, 620 N.W.2d at 812.

It is the Gaedes’ contention that they enjoy an uninterrupted chain of title for more than forty years extending from the unrecorded 1870 Lawler deed. The district court rejected that contention. So do we. An unrecorded deed does not provide a basis for establishing an uninterrupted record title. See Iowa Code § 614.29(5) (defining root of title as the interest that was the most recent transaction “to be recorded ... as of a date forty years prior to the time marketability is being determined”) (emphasis added). Nor may the Gaedes rely on the recorded 1870 Lawler deed because, as we have previously stated, the description in that deed only refers to “a narrow strip of land situated directly east of [certain described lots].” As we have noted, the distance between the east edge of those lots and the river was sufficient to allow a 100-foot railway right-of-way entirely west of the disputed property.

The Gaedes also argue that the necessary forty-year record title may be found in later' transactions. Unfortunately for their claim, the only possible transaction that might be a root of title more than forty years prior to the time when marketability was being determined is the 1927 deed from the Chicago, Milwaukee, and St. Paul Railway Company to the Chicago, Milwaukee, St. Paul, and Pacific Railroad Company. There is no basis to determine from the description in that deed that it included the property now in dispute. The district court properly rejected the Gae-des’ claim of marketable title based on a claimed forty-year chain of title. Consequently, it is unnecessary to discuss the district court’s alternative conclusion that the property now in dispute is public trust property.

IV. Estoppel.

Finally, we consider the Gaedes’ contention that the city is estopped from claiming title to the disputed strip. They point out that the city approved their filling in of the riverbank and the building of a retaining wall. They also point out that they and the Stansberrys before them paid property taxes on a tract of land that embraced the disputed strip.

A city may be estopped from asserting its rights in an unused public street under the doctrine of equitable es-toppel. Fencl, 620 N.W.2d at 816. The elements that we have established to establish such an estoppel include (1) conduct of a city indicating an abandonment of interest (including actual nonuse for more than ten years), (2) facts constituting title by adverse possession (including a requirement of possession for more than ten years with the knowledge of the city), and (3) unfair damage to the claimant. Id. None of the matters upon which the Gaedes rely to establish their estoppel claim occurred over a period of ten years prior to the city’s formal declaration of ownership in the fall of 2000. Accordingly, they have failed to meet the test for establishing an estoppel against a municipal corporation.

We have considered all issues presented and conclude that the district court’s decree should be affirmed.

AFFIRMED.

All justices concur except WIGGINS, J., who takes no part.


author: CADY, Justice.

text:
    STATE of Iowa, Appellant, v. Linda Ann HORNIK, Ryan McCallister, Wendy Frantz, Todd Michel, Peter Andersen, Sandra Davis, Dennis Dorman, Daniel Cox, Andrew Jaquez, Karmon Coleman, Corey Wilson, Cathryn Daman, Jose Miranda, Mynor Garcia, Adrienne Denniger, and Latasha Fuller, Appellees.
    No. 03-0580.
    Supreme Court of Iowa.
    Dec. 17, 2003.
    Rehearing Denied Jan. 7, 2004.

      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, J. Patrick White, County Attorney, and Michael D. Brennan, Adam Pollack, David Tiffany, M. Victoria Dominguez, and Iris Frost, Assistant County Attorneys, for appellant.
    Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant State Appellate Defender, for all ap-pellees except Todd Michel.
    Todd V. Michel, West Des Moines, pro se.
   CADY, Justice.

In this appeal, we consider whether the district court correctly sustained motions to suppress evidence of the defendant-ap-pellees’ breath alcohol concentration acquired through the use of the DataMaster cdm, a governmentally approved device for taking such measurements. Numerous defendants in Johnson County moved to suppress this evidence alleging the State had failed to ensure the device’s operation conformed to the Iowa Code and the Iowa Administrative Code. The district court sustained the motions, finding one of the statutory prerequisites for using the Data-Master was not satisfied. We granted discretionary review of the district court’s ruling and now reverse and remand these cases for further proceedings consistent with this opinion.

I. Background Facts and Proceedings.

Between August 15, 2001, and February 11, 2003, the State filed trial informations charging each of the defendant-appellees in this consolidated proceeding with operating a motor vehicle while intoxicated in violation of Iowa Code section 321J.2 (2003). Six of the appellees later filed motions to suppress evidence of their breath alcohol concentration that had been acquired through the use of a governmen-tally approved measurement device, the DataMaster cdm (DataMaster). The remaining appellees later joined in the motions advanced by the first six appellees.

The district court heard evidence pertinent to the motions to suppress during a two-day hearing. One witness who testified at the hearing was John Fusco, the president and CEO of the company that manufactures the DataMaster. Fusco explained the normal process undertaken to acquire a breath sample with the device and the mechanics and science behind the device’s operation. Robert Monserrate, one of the officials in charge of alcohol concentration testing for the division of criminal investigation criminalistics laboratory (DCI lab) of the department of public safety, provided additional testimonial evidence. His testimony focused on the Da-taMaster’s operation in Iowa and the training methods employed by the State to help law enforcement officers properly operate the device.

After taking the evidence presented during the hearing under advisement, the district court issued a ruling sustaining the appellees’ motions to suppress. In its ruling, the district court observed it was “clear that no uniform methods for the operation of the [DataMaster] were ever submitted to the Commissioner of Public Safety [ (commissioner) ] for review or adoption” and “the commissioner has done nothing to adopt approved methods for the DataMaster.” For this reason, the district court concluded that the State had failed to meet a statutory requirement that the breath alcohol concentration measurements be taken by using “devices and methods approved by the commissioner,” making the measurements inadmissible. Iowa Code § 321J.11 (emphasis added); see also id. §§ 321J.2(8), 321J.15. The State sought and we granted discretionary review of the district court’s ruling.

II. Standard of Review.

Although the parties agree error has been preserved, they disagree over the standard of review applicable to this appeal. A similar disagreement arose in one of our prior cases involving issues similar to those presented in this appeal, and we find our observations in that case applicable here:

Defendant contends the issue centers on the States failure to produce the requisite foundation for the admission of evidence. From this premise he argues our review is [for] an abuse of discretion. See State v. Hershey, 348 N.W.2d 1, 2 (Iowa 1984) (“Foundational questions are to be determined by the court. Our review is for abuse of discretion.”) (citations omitted). The State, on the other hand, asserts our review is on errors of law because the issue is one of statutory interpretation. See State v. Davis, 271 N.W.2d 693, 695 (Iowa 1978) (“Where the issue on appeal is not one of fact but rather one of statutory interpretation and application, the supreme court is not bound by trial courts determinations of law.”).
This case more closely resembles Davis in that “the operative facts and inferences are not controverted,” id., and the result will turn on the construction of Iowa Code [section 321J.11].[] We thus reject defendant’s contention which, in the final analysis, would compel us to accept the district court’s statutory interpretation, absent an abuse of discretion.

State v. Stoneking, 379 N.W.2d 352, 353-54 (Iowa 1985).

III. Approval of “Devices and Methods.”

The use and operation of the DataMas-ter is contemplated by both statute and administrative rule. Pursuant to Iowa Code section 321J.11, law enforcement officers must use “devices and methods approved by the commissioner” to “take a specimen of a person’s breath or urine for the purpose of determining the alcohol concentration.” This testing is important for the initial assessment of whether an individual is intoxicated, but it is also important for later prosecutions:

Upon the trial of a civil or criminal action or proceeding arising out of acts alleged to have been committed by a person while operating a motor vehicle in violation of section 321J.2 or 321J.2A, evidence of the alcohol concentration or the presence of a controlled substance or other drugs in the person’s body substances at the time of the act alleged as shown by a chemical analysis of the person’s blood, breath, or urine is admissible. If it is established at trial that an analysis of a breath specimen was performed by a certified operator using a device intended to determine alcohol concentration and methods approved by the commissioner of public safety, no further foundation is necessary for introduction of the evidence.

Iowa Code § 321J. 15; see also id. § 321J.2(8). Ultimately, both sections 321J.11 and 321J.15 require the use of “devices and methods approved by the commissioner.” Id. § 321J.11; accord id. § 321J.15; see also State v. Hansen, 203 N.W.2d 216, 222-23 (Iowa 1972) (construing the statutory requirements for compliance with section 321J.11 (then numbered section 321B.4)). However, the most important aspect of these statutes for this appeal is the prerequisite that the commissioner approve both the devices and methods used.

The commissioner has attempted to satisfy this approval requirement by promulgating Iowa Administrative Code rule 661-7.2, which, at the time of the suppression hearing, provided, in part:

7.2(1) A peace officer desiring to perform direct testing of a subject’s breath for the purpose of determining the alcohol concentration shall employ, or cause to be used, a breath testing device of a type meeting the minimum performance requirements established by [certain federal regulations].... The operator of the device shall proceed in accordance with the instructions furnished by the division of criminal investigation crimi-nalistics laboratory, and shall have been certified as competent in the operation of the breath testing device. All certifications of devices shall be made by the division of criminal investigation crimi-nalistics laboratory. All certifications of operators shall be made by the division of criminal investigation criminalistics laboratory or a designee. A designee shall be a person trained and certified by the division of criminal investigation criminalistics laboratory.
7.2(3) Although any breath testing device that meets the minimum performance requirements established by the National Highway Traffic Safety Administration, and cited in subrule 7.2(1), is authorized by the commissioner to be employed or to be caused to be used to determine the alcohol concentration, the following devices are being used in Iowa and meet those standards:
b. Datamaster cdm, National Patents Analytical Systems, Inc.

There is no dispute that the commissioner has properly approved the use of the Data-Master as a breath testing device. Iowa Admin. Code r. 661-7.2(1), (3)(6); see also Bruno v. Iowa Dep’t of Transp., 603 N.W.2d 596, 598 (Iowa 1999) (“We interpret [Iowa Administrative Code rule 661-7.2(3) ] as verifying that each of the foregoing devices is approved for purposes of testing alcohol concentration in breath pursuant to section 321J.11.”). However, in attempting to satisfy the requirement that the commissioner approve the methods for using the DataMaster, the rule provides only that “[t]he operator of the [approved] device shall proceed in accordance, with the instructions furnished by the [DCI lab].” Iowa Admin. Code r. 661-7.2(1). It is this portion of the rule that gives, rise to the core controversy in this case.

The State contends that the commissioner’s promulgation of administrative rule 661-7.2 and the actions of the DCI lab in furtherance of the rule sufficiently meet the statutory requirement that the commissioner approve the methods 'for breath alcohol concentration measurement. It argues that written instructions and ongoing training provided by the DCI lab ensure that the breath testing system is foolproof and its results reliable. Moreover, the State points to several statutory provisions and interpretive principles that indicate any delegation of supervisory authority by the commissioner to the DCI lab is both contemplated and welcomed in the administrative scheme created by the legislature.

The appellees argue that section 321 J. 11 contemplates no delegation of supervisory authority of any sort by the commissioner. They believe the DCI lab’s written instructions and training are insufficient to meet the statutory requirements of chapter 321J. Instead, they assert that the legislature intended for direct approval of the methods of breath testing by the commissioner alone. Any other approval arrangement, they contend, undermines the purpose of the approval requirement and the presumed evidentiary reliability of a properly conducted breath alcohol concentration measurement. See State v. Steadman, 350 N.W.2d 172, 174 (Iowa 1984) (“[A]n important purpose of the stringent chapter 321 [J] requirements is to guarantee the reliability and accuracy of test results.”). Thus, the current arrangement — including some delegation of supervisory authority to the DCI lab — is invalid and any testing conducted pursuant to it should be invalidated.

As both parties note, our prior cases in this area have made clear that one of the overarching purposes of the section 321J.11 requirements is to ensure “the reliability and accuracy of test results.” Id.; accord State v. Schlemme, 301 N.W.2d 721, 723 (Iowa 1981). Although the appellees thoughtfully invoke this purpose in support of their claim, we do not believe that it is offended by the approval scheme created by the commissioner. Instead, we believe the commissioner’s choice to approve the methods for breath testing by referencing the written instructions and training held or generated by the DCI lab is consistent with the Iowa Code and may actually better ensure the reliability of breath alcohol concentration measurements.

The commissioner is the chief executive officer of the department of public safety (department). Iowa Code § 80.2. The department has a broad range of duties, including preventing crime, detecting and apprehending criminals, and enforcing the law generally. Id. § 80.9. To help accomplish these duties, the legislature has denominated several divisions within the department and put these divisions under the supervision of the commissioner. See id. § 80.17. One of these divisions is the commissioner’s own office. Id. § 80.17(1). Another is the division of criminal investigation, in which the DCI lab operates. Id. § 80.17(3). Importantly, in outlining the general allocation of duties to these divisions within the department, the legislature clearly contemplated some exchange or conveyance of duties and responsibilities from the commissioner to the particular divisions in which expertise in a subject area could be expected. See id. § 80.17 (“Nothing in the aforesaid allocation of duties shall be interpreted to prevent flexibility in interdepartmental operations or to forbid other divisional allocations of duties in the discretion of the commissioner of public safety.” (Emphasis added.)). To construe section 321J. 11 so as to limit or eliminate the discretion of the commissioner granted by section 80.17 to allocate some of her duties and responsibilities to a division under her supervision would be an untenable, illogical, and unacceptable result. See In re Detention of Swanson, 668 N.W.2d 570, 574 (Iowa 2003); see also State v. Casey’s Gen. Stores, Inc., 587 N.W.2d 599, 601 (Iowa 1998) (“[W]e construe statutes that relate to the same or a closely allied subject together so as to produce a harmonious and consistent body of legislation.”).

Moreover, we believe it is possible that the commissioner’s failure to delegate some supervisory authority over the methods for breath alcohol concentration measurement could itself run the risk of creating the very same reliability concerns raised by the appellees. In the absence of any delegation, those with expertise in the devices and methods of breath testing— the DCI lab — could be virtually cut from the process of approving such devices and methods. Although the commissioner might still seek the advice and consent of the DCI lab officials, the knowledge and experience of these experts could be lost in the administrative structure. The system as it currently stands permits direct and thorough consideration of breath testing devices and methods by individuals with the expertise and ability to fully understand and train others in the devices’ proper operation. This likely increases the reliability of breath testing to the benefit of both the State and individual defendants.

Ultimately, we find no fault with the process by which the commissioner has approved the methods for breath alcohol concentration testing. These methods are being supervised within the agency under her control by a division specifically approved by her to supervise the methods. This approach is both contemplated and welcomed by the administrative scheme created by the legislature. Moreover, we believe this approach allows added expertise and safeguards that likely make breath testing even more reliable than if the commissioner was to personally sign-off on every aspect of every device and method. We conclude the commissioner has approved the devices and methods for breath testing in Iowa, and the district court incorrectly sustained the appellees’ motions to suppress based on its conclusion that such approval had not been made.

IV. Conclusion.

We reverse and remand these cases for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . While this evidence informed the district court for its anticipated deliberations on the propriety of the actual operation of the Data-Master by law enforcement officers, the district court’s ultimate ruling on the motions to suppress was limited to an interpretation of the statutory prerequisites for using the device. Thus, the district court did not fully reach additional aspects of the appellees’ challenges to the breath alcohol concentration evidence, and nor do we. Instead, these issues will have to be revisited on remand, with our opinions in this appeal and — perhaps more importantly—in State v. Stratmeier, 672 N.W.2d 817 (Iowa 2003) (also decided today), as a guide.

      . Our conclusion on the applicable standard of review for this case is reinforced by the fact the district court’s sustention of the appellees’ motions to suppress was based on the State’s failure to meet the requirements of Iowa Code section 321J.11, not section 321J.15. See also Iowa Code § 321 J.2(8) (2003). Section 321J. 11 deals specifically with the proper use of a breath alcohol concentration measurement device whereas section 321J.15 provides that proof that a measurement was taken properly establishes an evidentiary foundation for the admission of the measurement at trial.

      . Iowa Administrative Code rule 661-7.2 was amended subsequent to the district court's ruling in this case. See May 14, 2003 Iowa Admin. Bull, at 1482-83 (ARC 2481B, adopted and filed emergency, effective May 1, 2003). While we note this amendment, we draw no conclusions from its promulgation.

      . We have not previously encountered the claim made by the appellees, although we have considered section 321J.11 (or its predecessor statutes) on a number of prior occasions. See Stale v. Steadman, 350 N.W.2d 172, 173-75 (Iowa 1984); State v. Hershey, 348 N.W.2d 1, 2-3 (Iowa 1984); State v. Young, 232 N.W.2d 535, 536-38 (Iowa 1975); State v. Berch, 222 N.W.2d 741, 744-45 (Iowa 1974); State v. Hansen, 203 N.W.2d 216, 222-23 (Iowa 1972); see also State v. Geinzer, 406 N.W.2d 457, 457-59 (Iowa Ct.App.1987). In fact, the State contends that some of our prior opinions in this area conveyed a tacit approval of the way by which the commissioner has approved methods for breath testing. See Steadman, 350 N.W.2d at 174; Hershey, 348 N.W.2d at 2; Geinzer, 406 N.W.2d at 457. While this may be the case, we feel it is necessary to specifically and fully address the issue raised by the appellees.


author: LAVORATO, Chief Justice.

text:
    In the Interest of S.P. and K.P., Minor Children, M.J., Father, Appellant, STATE of Iowa, Appellee.
    No. 03-0868.
    Supreme Court of Iowa.
    Dec. 17, 2003.

      Thomas J. Miller, Attorney General, Katherine S. Miller-Todd, Assistant Attorney General, John P. Sarcone, County Attorney, and Michelle Chenoweth, Assistant County Attorney, for appellee.
    Tiffany Koenig, Des Moines, for appellant.
    David Pargulski, Des Moines, for mother.
    Jason Hauser, Des Moines, guardian ad litem for minor children.
   LAVORATO, Chief Justice.

The father of two children appealed from a judgment of the district court terminating his parental rights. He contended that the State terminated his parental rights without notice to him.

We transferred the case to the court of appeals. The court of appeals found there was insufficient evidence that the State had conducted a reasonably diligent search in attempting to serve him.

We granted the State’s application for further review and now conclude the court of appeals reached the correct decision. We therefore affirm the court of appeals decision and reverse the judgment of the district court. We remand for further proceedings consistent with this opinion.

I. Background Facts and Proceedings.

Michael is the biological father of Samantha and Kariey, and Kristy is the children’s biological mother. Samantha was born February 12, 1996, and Kariey was born July 14,1997.

On October 24, 2001, the district court adjudged Samantha and Kariey children in need of assistance (CINA). This was done pursuant to Iowa Code section 232.2(6)(d!) (2001) (child imminently likely to be sexually abused by member of the household). James, the father of Samantha and Kar-ley’s half-sister, was the person found imminently likely to sexually abuse the ehil-dren. The court allowed Samantha and Karley to remain with their mother and entered a no-contact order against James. Michael was not present at the contested CINA case. The record contains neither an affidavit of service on Michael nor an affidavit of diligent search.

On December 12, 2001, following a hearing, the district court entered a disposi-tional order that maintained the placement of Samantha and Karley with their mother and continued the no-contact order. Michael was also not present at this hearing. The record again contains neither an affidavit of service on Michael nor an affidavit of diligent search.

On January 15, 2002, the State filed a motion to modify, vacate, or substitute disposition because Kristy was in jail following her arrest for first-degree robbery. Approximately a week later, following a hearing, the district court removed the children from Kristy’s care and placed them with Scott, the father of the children’s half-siblings. Samantha and Karley have lived with Scott in the past. Michael was not present' at this hearing' either. Nor did the record contain an affidavit of service on Michael or an affidavit of diligent search.

On March 6, 2003, the State filed a petition to terminate Michael’s parental rights pursuant to Iowa Code section 232.116(1)(6) (abandonment), (d) (CINA adjudication and circumstances continue despite services), (e) (CINA adjudication and child removed from parent’s physical custody for at least six months, and parent has not maintained significant and meaningful contact with the child during the previous six months), (f) (child is four or older, adjudicated CINA, removed for at least twelve of the last eighteen months or for the last twelve consecutive months and any trial period at home has been less than thirty days, and child cannot be returned home), and (i) (child meets CINA definition, abuse or neglect posed significant risk to child’s life or constituted imminent danger, and services would not correct problem within a reasonable time). Iowa Code § 232.116(1X6), (d), (e), (f), (i) (2003).

On April 4 the State filed an affidavit, which stated the following:

That since the time of the filing of the Petition of Termination of Parental Rights in the above captioned case, I have made efforts to ascertain the whereabouts of [the father] who may be a party entitled to notice in these proceedings.
To this date, 4/4/03, I have not located him. My efforts will continue. If not found a “Diligent Search Affidavit” will follow.

The district court scheduled the termination hearing for April 21, but on that date the court continued the hearing until April 29 because of questions regarding service of process.

The court heard the termination matter on April 29, at which time no testimony was taken because the termination was uncontested. Michael was not present at the hearing. During the hearing, the State offered into evidence an affidavit of diligent search dated April 21. The affidavit details the efforts made to locate Michael.

On April 30 the district court entered an order terminating Michael’s parental rights to Samantha and Karley pursuant to Iowa Code section 232.116(l)(<i), (e), (f), and (i). As to the abandonment allegation, the court found that there was clear and convincing evidence that Michael deserted or abandoned the two children by not paying child support, offering or providing any financial, emotional or other support since the inception of the case.

In its termination order, the district court found the following: “Notice of this hearing and a copy of the Petition were served upon all necessary parties, or diligent search was made.” The order further stated that Michael “resides at an unknown location.”

On May 14 Michael filed in the district court an application for appointment of counsel. On that day, the district court granted the application.

The following day, Michael filed a petition on appeal in which he stated he was appealing the order terminating his parental rights and was seeking a reversal of that order because he was not provided with notice of the termination proceedings. Iowa R.App. P. 6.151 (petition on appeal specifications). Lack of such notice, he contended, violated his constitutional rights of due process and equal protection under both the Iowa and Federal Constitutions. He later filed an amended notice of appeal including an affidavit as to his whereabouts during all of the times material to this proceeding.

The State filed a response to Michael’s petition on appeal. In it, the State contended that Michael did not preserve error as to his constitutional issues because he did not raise the issues in a motion for new trial or a motion to set aside the default. The State also contended Michael’s affidavit should not be considered because it was not part of the trial record.

The State further contended it was not required to give notice of the termination proceeding because statutory provisions provide that notice may be dispensed with when the whereabouts of the person are not known. Michael had not had contact with the Iowa department of human services and an affidavit of diligent search was filed shortly before the termination hearing.

The court of appeals did not address the constitutional issues. Rather the court treated Michael’s lack of notice contention as a suffieiency-of-the-evidence argument. The court of appeals determined that insufficient evidence supported the district court’s finding that Michael’s whereabouts were unknown at the time of the termination hearing and that a reasonably diligent search was conducted to find him.

On further review, the State contends the court of appeals incorrectly decided this case on a suffieiency-of-the-evidence ground because Michael did not raise the issue in his petition for appeal. Rather he raised constitutional issues. The State contends that Michael did not file a motion for new trial or a motion to set aside the termination order to preserve the issue.

The State further contends that contrary to the court of appeals decision the affidavit of diligent search was sufficient evidence that Michael’s whereabouts were unknown.

II. Error Preservation.

Assuming without deciding that the State is correct on its error preservation contention, we think the court of appeals was nevertheless required to address the lack-of-notice issue. Michael’s contention goes to the heart of the district court’s jurisdiction. “Notice of the hearing and an opportunity to be heard appropriate to the nature of the ease is the most rudimentary demand of due process of law” in proceedings affecting parental rights to children. Stubbs v. Hammond, 257 Iowa 1071, 1075, 135 N.W.2d 540, 543 (1965); see also In re Hewitt, 272 N.W.2d 852, 855 (Iowa 1978) (holding that notice in child and neglect proceedings is jurisdictional).

In Stubbs, this court held unconstitutional a statute providing for service of notice upon parents of a child in proceedings to have the child declared neglected and dependent to the extent the statute limited service of notice to parents whose residence in this state is known. 257 Iowa at 1076, 135 N.W.2d at 543. The court further held that the order and decree entered in the proceeding was void as to the parent who had no notice of the proceeding. Id.

A void judgment is subject to attack at any time. Rosenberg v. Jackson, 247 N.W.2d 216, 218 (Iowa 1976) (holding that defendant was not precluded from having judgment against her set aside notwithstanding that she waited four years and was not within the time limits of Iowa Rules of Civil Procedure for setting aside defaults). Therefore Michael had every right to challenge the termination order even though he filed no posttrial motions and waited until he appealed to do so. We therefore proceed to decide the case on the merits.

III. Affidavit of Diligent Search.

The court of appeals did not reach the constitutional issues Michael raised because the court decided the case in his favor on the basis of statutory law. The notice here had to satisfy “the Iowa statutory test as well as the test of due process under the Fourteenth Amendment.” Hewitt, 272 N.W.2d at 855. Because we reach the same result as the court of appeals, we likewise confine our analysis to Iowa statutory law.

Regarding termination proceedings, Iowa Code section 232.112(1) provides the following concerning notice:

Persons listed in section 232.111, subsection 4 [living parents of the child are among those listed], shall be necessary parties to a termination of parent-child relationship proceeding and are entitled to receive notice and an opportunity to be heard, except that notice may be dispensed with in the case of any such person whose name or whereabouts the court determines is unknown and cannot be ascertained by reasonably diligent search....

Iowa Code § 232.112(1) (emphasis added). In short, the district court may dispense with notice in termination proceedings provided that the parent’s name or whereabouts is unknown and cannot be ascertained by a reasonably diligent search.

The issue boils down to whether Michael’s whereabouts were unknown and whether a “reasonably diligent search” was made to determine his whereabouts. We give the State the benefit of the doubt and assume Michael’s whereabouts were unknown at the times material to the termination proceeding.

The case then turns on whether the State made a “reasonably diligent search” to determine Michael’s whereabouts so notice could be served on him. That question depends on what constitutes a “reasonably diligent search.” In Qualley v. State Federal Savings & Loan, the court of appeals considered the question and stated:

A diligent search is measured not by the quantity of the search but the quality of the search. In determining whether a search is diligent, we look at the attempts made to locate the missing person or entity to see if attempts are made through channels expected to render the missing identity. While a reasonable search does not require the use of all possible or conceivable means of discovery, it is an inquiry that a reasonable person would make, and it must extend to places where information is likely to be obtained and to persons who, in the ordinary course of events, would be likely to have information of the person or entity sought. Whether all reasonable means have been exhausted has to be determined by the circumstances of each particular case.

487 N.W.2d 353, 855 (Iowa Ct.App.1992) (citations omitted).

In Qualley, the court of appeals was dealing with whether a diligent search for an assignee of a vendee’s interest in a real estate contract subject to forfeiture was made so as to allow notice by publication. Interestingly, the court of appeals in determining what constitutes a diligent search relied on a Nebraska case where the diligent search question arose in the context of a termination-of-parental-rights case. See id. (citing In re A.W., 224 Neb. 764, 401 N.W.2d 477, 479 (1987) (search for mother whose parental rights were sought to be terminated fell short of being reasonably diligent to justify service by publication rather than by any other method of service provided by statute; court vacated the termination judgment)).

In In re A.W. the court, applying essentially the same test quoted above, gave these reasons why the search was not reasonably diligent:

It is significant that the person charged with the responsibility to locate appellant, remarkably enough an employee of the very court required to pass upon the quality of the search, did not himself contact appellant’s mother. A reasonably prudent person could reasonably expect appellant’s mother to receive news of or from appellant. It is also significant that neither he nor anyone else asked appellant’s mother what address she last had for appellant .... [A] search which makes no effort to determine where the subject of the search was last known to be and which makes no effort to check whether the subject is still there cannot be considered reasonably diligent. As a consequence of the failure to make proper inquiry, the search for appellant focused in Omaha, where she was known not to be, rather than in Oxnard, California, where she had been known to be.

401 N.W.2d at 480.

We adopt the test the court of appeals used in Qualley, which in turn was based on the test used in A.W. Applying that test, we conclude, for reasons that follow, the affidavit here falls short of establishing that a diligent search was conducted to justify dispensing with notice.

The affidavit filed by an investigator of the Polk County Attorney’s office details the search the investigator conducted which was unsuccessful in locating Michael. According to the affidavit, the investigator checked with the local telephone company, the Iowa Department of Inspection and Appeals, and the Iowa Department of Corrections with no success. The investigator also checked a local city directory, records in the Polk County jail, and records in the Polk County Attorney’s office which Usted a local address, 1432 Dean, for Michael but he was no longer living there.

The investigator also checked with the Iowa Department of Transportation and discovered a Des Moines, Iowa address, 4136 Oxford, for Michael on his vahd operator’s license. A visit to that address revealed that the house was sold in December 2002, and the current owner of the residence did not know Michael’s whereabouts.

The investigator found another Des Moines address, 3100 York Street, for Michael on a vehicle registration but a check of that address revealed Michael no longer Uved there. A check of the Des Moines police records revealed another Des Moines address, 3923 Columbia, for Michael. The resident at that address did not know Michael.

The investigator checked employment records at the Work Force Development agency, found that Michael had worked for a company in Portland, Oregon but a check with that firm revealed Michael no longer worked for that company and company representatives did not know of Michael’s whereabouts.

Finally, the investigator Checked a private database service, found another address for Michael at 1626 N.W. 84th Street in Clive, Iowa. A check with the current resident at that address revealed Michael had not lived there for two years and did not know Michael’s current whereabouts.

We acknowledge that the investigator’s search did indeed include numerous inquiries with no success. However, the search did not include the obvious inquiries a reasonable person would make under the circumstances. For example, the investigator did not talk to the children or their caretaker, Scott, or to the children’s mother. These are the people who, in the ordinary course of events, would likely have information about Michael.

Moreover, sending notices to the various addresses uncovered in an attempt to discover a forwarding address would have taken little effort. It is common for people to leave forwarding addresses when they move. We think a reasonable person under these circumstances would certainly give consideration to that idea, in light of the serious consequences that might result from notice not reaching Michael.

In short, the investigator failed to exhaust all reasonable means to discover Michael’s whereabouts to ensure that he did receive notice of the termination proceeding. Because the efforts here fell short of a reasonably diligent search, we conclude Michael was denied an opportunity to be heard. Our conclusion leaves us no choice but to vacate the district court judgment of termination because it is void.

We therefore affirm the court of appeals decision and vacate the district court judgment. We remand ■ the case for further proceedings consistent with this opinion.

DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT JUDGMENT VACATED; CASE REMANDED.