Opinion
16-P-221
01-18-2017
Ernst J. MEYER v. BOARD OF STATE EXAMINERS OF PLUMBING AND GAS FITTERS& another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Board of State Examiners of Plumbers and Gas Fitters (board) issued a final decision and order on January 21, 2015, upholding the building department of Nantucket's (the department's) report ordering Ernst J. Meyer to remove plumbing installed in his home. Meyer sought review pursuant to G. L. c. 30A, § 14. A judge of the Superior Court denied Meyer's motion for judgment on the pleadings and ordered entry of judgment for the board. We affirm.
Facts and procedural history . This matter is here for the third time on appeal. The facts set forth in the administrative record and in previous decisions are summarized as follows.
1. First appeal . Meyer, who is not a licensed plumber, installed plumbing in his home without a permit. Meyer v. Nantucket , 78 Mass. App. Ct. 385, 386 (2010) (Meyer I ). Meyer was issued an "Order to Cease and Desist and Abate" the plumbing installation and to remove the work performed. Id . at 387. Meyer appealed from the order to the board, and the board upheld the cease and desist order. Ibid . A Superior Court judge affirmed the board's decision on appeal. Id . at 388. On appeal here, we affirmed the portion of the judgment "requiring Meyer to cease all plumbing work," but reversed so much of the judgment as required "Meyer to remove the uninspected plumbing." Id . at 395-396. We remanded for further findings "regarding the scope of ... Meyer's work" and whether "that work was done per the plumbing code." Id . at 395.
2. Second appeal . The plumbing installation was reinspected by the department after remand. Meyer v. Building Dept. of Nantucket , 85 Mass. App. Ct. 1116 (2014) (Meyer II ). The department issued an inspection report, which "detailed violations and deficiencies ... and ordered that the entire plumbing system be removed." Ibid . Meyer appealed to the board, which upheld the order. Ibid . A second judge of the Superior Court affirmed the board's decision. A panel of this court likewise concluded that the board's determination that there were violations was supported by substantial evidence. The panel, however, remanded the case for entry of an order directing "the board to conduct a hearing to determine whether the order that the plumbing must be completely removed is justified by the specific violations that are noted in the inspection report and substantiated by photos." Ibid .
Prior to the hearing, the department gave Meyer the opportunity to have a licensed plumber fix the deficiencies and to have the plumbing installation reinspected. Meyer rejected the offer. The board held an evidentiary hearing and concluded that complete removal was necessary. Meyer appealed to the Superior Court and a third judge, in ruling on Meyer's motion for judgment on the pleadings, affirmed the board's decision. This appeal followed.
At oral argument, counsel for the department stated that this option remained open.
Discussion . "[A]ny person or appointing authority aggrieved by a final decision of any agency in an adjudicatory proceeding" is entitled to judicial review in accordance with the standards set forth in G. L. c. 30A, § 14, as appearing in St. 1973, c. 1114, § 3. A court "may set aside or modify an adjudicatory decision of the board only if the decision was legally erroneous, procedurally defective, unsupported by substantial evidence, arbitrary or capricious, or contained one or more of three other enumerated defects not at issue in this case." Fisch v. Board of Registration in Med ., 437 Mass. 128, 131 (2002). "Although we give considerable weight to an agency's experience and authority, ‘we must overturn agency decisions that are not consistent with governing law.’ Bulger v. Contributory Retirement Appeal Bd ., 447 Mass. 651, 657 (2006)." Meyer I , 78 Mass. App. Ct. at 393.
1. Decision on remand . Meyer contends that the board did not follow the remand order because the inspection report did not note specific deficiencies. We disagree. The board held a hearing on August 6, 2014, to determine if the inspection report and photographs demonstrated specific plumbing violations, and if they did, whether the entire system needed to be removed or repaired. Both parties were allowed to present "competent evidence to the board concerning the effect of the deficiencies and whether they support an order to completely remove the plumbing." Meyer II , supra . Meyer submitted thirty-five four-by-six-inch color photographs of the plumbing from which he sought to show that the deficiencies did not warrant the removal order. Christopher Gordon, a licensed plumber, reviewed the photographs and testified that there were no plumbing deficiencies and that there was no reason to remove the entire installation.
Meyer also contends that the order violates the Sherman Antitrust Act. However, this argument was not raised before the administrative agency and cannot be raised for the first time on appeal. Tri-County Youth Programs, Inc . v. Acting Deputy Director of the Div. of Employment & Training , 54 Mass. App. Ct. 405, 412-413 (2002). Meyer further argues that his motion to supplement the administrative record was wrongfully denied, but this argument is without merit as a plaintiff is not allowed to introduce extrinsic evidence outside the administrative record. Compare Mello Constr., Inc . v. Division of Capital Asset Mgmt ., 84 Mass. App. Ct. 625, 631 n.12 (2013). Cf. 801 Code Mass. Regs. § 1.01(10)(k)(2) (1998) ("No evidence shall be admitted after the close of the record unless the Presiding Officer reopens the record").
The department contested Meyer's interpretation. The department also relied on the thirty-five photographs of the plumbing system. In addition, Edmund Ramos, the Nantucket assistant plumbing inspector, testified to deficiencies that were evident from his personal inspection and from the photographs. Ramos stated that "ninety percent of the plumbing [had] to be cut out" in order to fix all the plumbing violations. Ramos explained that "[w]hen you cut those pieces out, the other parts [of the plumbing system] fall to the floor" and "basically, you're removing the whole [plumbing system]." On this basis, the department justified its order to remove the entire plumbing system.
The board has not claimed that Meyer cannot reuse code-compliant materials.
The board has the discretion to make a choice between two conflicting views of the evidence. Lisbon v. Contributory Retirement Appeal Bd ., 41 Mass. App. Ct. 246, 257 (1996). It exercised its expertise, to which we defer. Ibid . "[A] court may not displace [the board's] choice ... even though the court would justifiably have made a different choice had the matter been before it de novo." Ibid . The board did not abuse its discretion in issuing the removal order.
2. Rulings regarding witnesses . Meyer contends that the board erred in not allowing him to recall Gordon to rebut Ramos's testimony regarding the scope of the remedy required. On this, the second remand to the board, it may have been preferable for the board to simply permit Meyer to present his case in the manner he chose, taking the evidence as presented, and giving it whatever weight (or lack thereof) it was due. However, "[i]n general, administrative agencies have broad discretion over procedural aspects of matters before them." Zachs v. Department of Pub. Util ., 406 Mass. 217, 227 (1989). Even if the board would have been better served by allowing Meyer to recall Gordon to rebut Ramos's testimony, "[t]here must be some showing of prejudice before an agency's disregard of its own rules may constitute reversible error." Fisch , 437 Mass. at 133, quoting from Martorano v. Department of Pub. Util ., 401 Mass. 257, 262 (1987). Here, Meyer has not shown that the board violated its own procedures, or due process, nor has he shown prejudice, because he did not describe (either before the board or on appeal) what Gordon's testimony would have been if he were allowed to rebut Ramos's testimony. Matter of Clerk-Magistrate Powers , 465 Mass. 63, 81-82 (2013). In sum, we cannot say that this case presents "special circumstances ... [that] demonstrate an unacceptable risk of unfairness." Kippenberger v. Board of Registration in Veterinary Med ., 448 Mass. 1035, 1036 (2007), quoting from Raymond v. Board of Registration in Med ., 387 Mass. 708, 717 (1982). Cf. 801 Code Mass. Regs. § 1.01(10)(f) (1998) ("An offer of proof made in connection with a ruling of the Presiding Officer rejecting or excluding proffered testimony shall consist of a statement of the substance of the evidence which the Party contends would be adduced by the testimony").
The department has filed briefs and argued on appeal in lieu of the board. The parties have not cited the regulations nor is it apparent from the face of the record whether the board proceeded under 801 Code Mass. Regs. § 1.01 or § 1.02 (1998).
Meyer also contends that the board erred when it did not allow Anthony Esposito, a retired Massachusetts registered engineer, to testify as an expert witness because Esposito was not a licensed plumber. "Generally, an agency has ‘wide discretion in ruling on evidence.’ " Rate Setting Commn . v. Baystate Med. Center , 422 Mass. 744, 752 (1996), quoting from Sudbury v. Department of Pub. Util ., 351 Mass. 214, 219 (1966). Furthermore, "the rules of evidence do not apply in administrative hearings." Rate Setting Commn ., supra . Esposito testified that while he had visited the plumbing site, he was not a plumbing expert and was not familiar with the plumbing code. Therefore, the board did not abuse its discretion in declining to allow Esposito to testify. Even if the rules of evidence applied, Esposito lacked the required qualifications to testify as an expert. See Massachusetts Gen. Hosp . v. Commissioner of Pub. Welfare , 350 Mass. 712, 720 (1966) ; Canavan's Case , 432 Mass. 304, 309-310 (2000) ; Molly A . v. Commissioner of the Dept. of Mental Retardation , 69 Mass. App. Ct. 267, 284 n.24 (2007).
3. Procedural issues . Meyer maintains that the board tolerated procedural deficiencies in the hearing.
a. Transcript and audio recording . Meyer produced a certified transcript based on an audiotape provided by the board. He contends that there are deficiencies in the transcript because the voices of Meyer and his witness are inaudible on portions of the audio recording. He also contends that the board provided him with an audio recording that was "irregular in format" because it was provided "on an expensive unmarked unconventional rewritable medium."
These arguments are without merit because Meyer did not attempt to reconstruct the record. See generally Mass.R.A.P. 8(e), as amended, 378 Mass. 932 (1979). Cf. 801 Code Mass. Regs. § 1.01(10)(i) (1998) ("The Agency may elect to supply a copy of the tape, disc or other audio-visual preserving medium employed at the proceeding to record its events in lieu of a verbatim transcript"). Nor has he suggested how he was prejudiced by the omissions. See Matter of Clerk-Magistrate Powers , 465 Mass. at 81. Therefore, "we will take the [record] as we find it." Commonwealth v. Bannister , 15 Mass. App. Ct. 71, 81 n.8 (1983).
b. Rebuttal . Meyer contends that the board deprived him of an opportunity to "rebut" the findings of fact made by the board by "not disclosing these findings until after the hearing."
Unlike some administrative schemes, in which a tentative decision is first issued by a hearing officer to the decision maker, see Brookline v. Commissioner of the Dept. of Envtl. Quality Engr ., 387 Mass. 372, 392-393 (1982), the record does not contain a board rule requiring such a preliminary decision, and the board sat as the decision maker.
--------
"[D]ue process requires that, in any proceeding to be accorded finality, notice must be given [in a manner] that is reasonably calculated to apprise an interested party of the proceeding and to afford him an opportunity to present his case." Bickford v. Colonel, Dept. of State Police , 76 Mass. App. Ct. 209, 214 (2010), quoting from LaPointe v. License Bd. of Worcester , 389 Mass. 454, 458 (1983). In Meyer II , the panel clearly stated that there were plumbing violations, but that the board should hold a hearing "to determine whether the order that the plumbing must be completely removed is justified by the specific violations that are noted in the inspection report and substantiated by photos." Meyer was on notice that the plumbing installation was substandard. He cannot relitigate that issue again in this appeal. Rather, the remand order placed him on notice that both parties were required to provide evidence in support of or in opposition to the department's order to remove the plumbing system, and that the board would then make findings. The board's findings drew from the evidence presented.
Judgment affirmed .