Opinion
NO. 2012 CA 1562
03-22-2013
JOSEPH F. SPIEZIO, III v. STATE LICENSING BOARD FOR CONTRACTORS
Donald Carl Hodge, Jr. Baton Rouge, LA Attorney for Plaintiff-Appellant, Joseph F. Spiezio, III Stephanie B. Laborde Heather L. Landry Baton Rouge, LA Attorney for Defendant-Appellee, Louisiana State Licensing Board for Contractors
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
19th Judicial District Court,
In and for the Parish of East Baton Rouge,
State of Louisiana
Trial Court No. 601,590
Honorable Wilson Fields, Judge Presiding
Donald Carl Hodge, Jr.
Baton Rouge, LA
Attorney for Plaintiff-Appellant,
Joseph F. Spiezio, III
Stephanie B. Laborde
Heather L. Landry
Baton Rouge, LA
Attorney for Defendant-Appellee,
Louisiana State Licensing Board
for Contractors
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ. HIGGINBOTHAM , J.
Plaintiff-Appellant, Joseph F. Spiezio, III, challenges a determination of the Louisiana State Licensing Board for Contractors (the "Board") that he violated La. R.S. 37:2167(A) by acting as a residential building contractor without a license. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
This dispute arises out of the construction of multiple residences located on five lots in the Ravier Lane Estates subdivision in St. Gabriel, Louisiana. The Board investigated a complaint that Mr. Spiezio was acting as a contractor on the construction project without a Louisiana residential building contractor's license as required by La. R.S. 37:2167(A). A report of the alleged violation was made by the Board's investigator on September 24, 2010. The Board notified Mr. Spiezio by certified mail of a December 1, 2010 hearing before the Residential Building Contractors Subcommittee of the Board, where he was commanded to appear, answer questions, and present evidence. The Board also issued a subpoena to Mr. Spiezio to produce records and documents concerning construction services and activities rendered by him and his companies at the project.
Mr. Spiezio was originally cited for alleged violations with respect to six lots, Lots 1B, 2B, 3B, 4B, 5B, and 6B; however, Lot 1B was deleted from consideration at a rehearing before the Board. The total value of the construction project was $599,500.00, with each house valued at $119,900.00.
Louisiana Revised Statute 37:2167(A) provides: "No person shall work as a residential building contractor, as defined in this Chapter, in this state unless he holds an active license in accordance with the provisions of this Chapter/' (Emphasis added.) Louisiana Revised Statute 37:2150.1(11) defines a "residential building contractor," in pertinent part, as: "any corporation, partnership, or individual who constructs a fixed building or structure for sale for use by another as a residence, or who, for a price ... or other compensation, undertakes or offers to undertake the construction or superintending of the construction of any building ... to be used by another as a residence, when the cost of the undertaking exceeds seventy-five thousand dollars."
Mr. Spiezio does not deny receipt of the hearing notice, but due to a calendar-scheduling error by Mr. Spiezio's counsel of record, he missed the original hearing. The Board granted a rehearing for Mr. Spiezio before the same subcommittee on April 6, 2011, where Mr. Spiezio did not appear, but was represented by his counsel. At the rehearing, Mr. Spiezio's counsel raised a procedural issue before the hearing began by indicating that all of the work on the construction project was actually done through Mr. Spiezio's companies, Pinnacle Equity Group, LLC ("Pinnacle") and "Spiezio Organization, LLC ("Spiezio Org."), rather than Mr. Spiezio individually. However, after being advised that if Mr. Spiezio was pleading not guilty to the alleged violation then the rehearing should proceed. Mr. Spiezio's counsel then agreed to proceed with the rehearing.
At the rehearing, the subcommittee for the Board accepted and reviewed evidence and testimony revealing that Mr. Spiezio originally contracted with a licensed general contractor, the DMS Group, but then fired the DMS Group after a dispute arose over workmanship on the first residence and payment of the subcontractors. Mr. Spiezio paid the subcontractors directly for their work and allegedly hired another licensed general contractor, JEB Construction and Roofing ("JEB"). Several subcontractor invoices directed to Mr. Spiezio individually and/or one of his companies for work performed on the construction project, along with an agreement between Spiezio Org. and an electrical subcontractor, were introduced into evidence and made part of the administrative record. The record also contained a copy of an email from Mr. Spiezio regarding a construction schedule and Mr. Spiezio's acknowledgment that he had ordered equipment and materials for work on certain lots on specific days, along with correspondence from an electrical subcontractor to Mr. Spiezio concerning completed work and inspections of the project.
While JEB is a licensed general contractor, the owner of JEB testified at the rehearing that his company never assumed the role or responsibility of general contractor for Mr. Spiezio's construction project, but rather was only a "framing" subcontractor for the project. Additionally, evidence of a city building permit and an unsigned framing contract between JEB and Mr, Spiezio's company, Pinnacle, indicated that JEB was a framing subcontractor rather than a general contractor. JEB's owner further testified that he did not pay any subcontractors on the construction project, as those were ail paid by Mr.. Spiezio directly. JEB stopped working on the project when JEB's owner learned that Mr. Spiezio was using JEB's general contractor license without JEB actually being contracted for the general contractor role. Although counsel for Mr. Spiezio indicated that there was always a licensed contractor overseeing the construction project, Mr. Spiezio did not present any evidence that a general contractor was ever hired when the DMS Group was terminated after working on the first of the six residences.
At the conclusion of the rehearing, the Board concluded that Mr. Spiezio had violated La. R.S. 37:2167(A). In accordance with the authority granted to the Board in La. R.S. 37:2162(1), the Board issued an order directing Mr. Spiezio to cease and desist all action constituting a violation (working on the project as a residential building contractor without an active license), and to pay the Board a civil penalty of ten percent of the total project value, a total of $59,950.00, plus $500.00 for administrative costs. Mr. Spiezio filed a petition for appeal of the Board's administrative decision in the Nineteenth Judicial District Court. The entire administrative record was filed into the district court record and the district court heard oral argument. On June 12, 2012, the district court affirmed the Board's decision, upholding the finding of a violation and noting in oral reasons that the Board's decision was "reasonable and appropriate under the circumstances" presented to the Board.
Mr. Spiezio appeals the district court's judgment, raising three assignments of error, suggesting that: (1) the district court erred in finding that Mr, Spiezio had personally violated the law; (2) the district court erred in ruling against Mr. Spiezio because his companies actually contracted with licensed general contractors for the project, and thus, never operated without a license; and (3) the district court failed to properly value the properties in dispute for purposes of determining the fine.
LAW AND ANALYSIS
Judicial review of a decision of an administrative governmental agency is set forth in the Louisiana Administrative Procedure Act, in La. R.S. 49:964, which specifies that judicial review shall be confined to the record, as developed in the administrative proceedings. La. R.S. 49:964(F). When reviewing an administrative final decision, the district court functions as an appellate court. Dow Chemical Co. Louisiana Operations Complex Cellulose and Light Hydrocarbons Plants, Part 70 Air Permit Major Modifications and Emission v. Reduction Credits, 2003-2278 (La. App. 1st Cir. 9/17/04), 885 So.2d 5, 10, writ denied, 2004-3005 (La, 2/18/05), 896 So.2d 34.
According to La. R.S. 49:964(G), the district court may affirm the decision of the agency or remand the case for further proceedings. It may only reverse or modify the agency decision if "substantial rights" of the appellant are prejudiced because the administrative findings, inferences, conclusions; or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the agency's statutory authority; (3) made upon unlawful procedure; (4) affected by error of law; (5) arbitrary, capricious, or characterized by an abuse of discretion or clearly unwarranted exercise of discretion, or (6) not supported and sustainable by a preponderance of evidence as determined by the reviewing court. La. R.S. 49:964(G); Hospital Service District No. 1 of Tangipahoa Parish v. Louisiana State Licensing Board for Contractors, 97-2800 (La. App. 1st Cir. 12/28/98), 723 So.2d 1110, 1112, writ denied, 99-0268 (La. 3/19/99), 740 So.2d 120. If the administrative findings are not supported and sustainable by a preponderance of the evidence, the district court shall make its own determinations by weighing the evidence by a preponderance of evidence based upon its own de novo evaluation of the record reviewed in its entirety upon judicial review. See Dow Chemical Co., 885 So.2d at 10; Hospital Service District No. 1 of Tangipahoa Parish, 723 So.2d at 1112. However, the district court must give due regard to the administrative agency's determination of credibility issues when the agency had the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand. La. R.S. 49:964(G)(6).
The general principle governing judicial review of administrative agency decisions is that, where some evidence as reasonably interpreted supports the agency's determination, then the agency's order exercising discretionary authority should be accorded great weight and should not be overturned absent a clear showing that the administrative action is arbitrary and capricious. Women's and Children's Hosp. v. State, Dept. of Health and Hospitals, 2008-946 (La. 1/21/09), 2 So.3d 397, 403. The test for determining whether the action taken is arbitrary and capricious is whether the action taken is reasonable under the circumstances. Matter of Recovery I, Inc., 93-0441 (La. App. 1st Cir. 4/8/94), 635 So.2d 690, 699, writ denied, 94-1232 (La. 7/1/94), 639 So.2d 1169.
Once a final judgment is rendered by the district court, an aggrieved party may seek review by appeal to the appropriate appellate court. La. R.S. 49:965. On review of the district court's judgment, no deference is owed by the court of appeal to factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. Wild v. State, Dept. of Health and Hospitals, 2008-1056 (La. App. 1st Cir. 12/23/08), 7 So.3d 1,4. Consequently, this court will conduct its own independent review of the record in accordance with the standards provided in La. R.S. 49:964(G); Id., 7 So.3d at 5.
Mr. Spiezio first argues that the Board's decision was made upon unlawful procedure because the Board proceeded against him personally rather than his companies. Mr. Spiezio also maintains that procedural errors occurred due to improper service and citation and a lack of personal jurisdiction over him. We find no merit to these contentions because Mr. Spiezio made a general appearance through counsel of record at the rehearing after receiving written notice of the violation, original hearing, and rehearing, with sufficient specificity of the alleged violation pending against him, We also find that Mr. Spiezio waived any objections to the proceedings against him individually when he proceeded to defend himself against the alleged violation before the Board took any formal action against him. See Greenleaf v. DHH, Metropolitan Developmental Center, 594 So.2d 418, 424-25 (La. App. 1st Cir. 1991), writ denied, 596 So.2d 196 (La. 1992).
The record specifically reflects that counsel for Mr. Spiezio made only brief comments with regard to the potential liability of Mr. Spiezio individually before stating that Mr. Spiezio was pleading not guilty. The matter was then heard by the Board without any specific objection or demand for relief on this basis.
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When no exceptions are pending, a party waives an objection to personal jurisdiction by an appearance of record, which includes filing a pleading, appearing at a hearing, or formally enrolling as counsel of record. See Sam v. Feast, 2000-1163 (La. App. 1st Cir. 3/28/01), 802 So.2d 680, 683; Perkins v. Carter, 2009-673 (La. App. 5th Cir. 12/29/09), 30 So.3d 862, 866; Abbasi v. State Farm Ins. Co., 2004-44 (La. App. 5th Cir. 5/26/04), 875 So.2d 988, 993-94, writ denied,2004-2076 (La. 9/24/04), 882 So.2d 1135. The record reflects that Mr. Spiezio never formally asserted that the matter before the Board should have been dismissed for lack of sufficient notice, service of process, or jurisdiction. Further, we have reviewed the entire record carefully, and we find that there is sufficient evidence in the record to support the Board's action against Mr, Spiezio individually. Accordingly, we find this specification of error lacks merit.
We also find no merit to Mr. Spiezio's contention that the Board's proceedings violated his constitutional rights because the Board failed to provide all of the evidence and witnesses that the Board planned to use against him prior to the hearing. The administrative record, including all of the evidence filed into the record at the rehearing before the Board, reflects that the same evidence was presented at the original hearing and the rehearing and that most of the documentary evidence had been subpoenaed prior to the original hearing and was to be provided by Mr. Spiezio. Thus, the evidence was always available to Mr. Spiezio and he was given an opportunity to respond at two separate hearings after receiving notice of the alleged violation and the hearing dates. Under these circumstances, due process requirements have been met and there has been no showing that Mr. Spiezio received disparate treatment in the Board's proceedings. See Nix v. King, 457 So.2d 805, 808 (La. App. 1st Cir. 1984) ("[t]he fact that appellant failed to take appropriate steps" did not equate to a constitutional violation).
Mr. Spiezio next argues that the Board's conclusion that he was working as a residential building contractor without an active license was not supported and sustainable by a preponderance of the evidence in the record. Mr. Spiezio maintains that the evidence shows that his companies contracted with licensed contractors during the entire time that the five residential lots were under construction. Mr. Spiezio also contends that the Board failed to properly value the construction project. Nevertheless, our review of the record finds ample support for the conclusions of the Board.
The record shows that Mr. Spiezio, individually, and through his companies, received invoices for services rendered by several subcontractors on the project, and there was undisputed testimony that Mr. Spiezio paid the subcontractors directly for their work performed on the project. The record contains evidence of correspondence to and from Mr. Spiezio* where he discusses the status of ordering materials, determining a schedule for equipment rental, identifying specific tasks to be done at the various residences under construction, and addressing certain electrical construction issues, furthermore, the testimony revealed that there was no general contractor in place after Mr. Spiezio fired the first contractor, or if there was, Mr. Spiezio did not provide evidence of a new licensed general contractor at the rehearing.
The record is completely void of evidence of any corporation or individual, other than Mr. Spiezio and/or his companies, who oversaw the construction of the five residences that were advertised for sale at $119,900.00 each. The unmitigated absence of any evidence or testimony showing that a properly licensed residential building contractor was responsible for the construction project supports the Board's reasonable conclusion that Mr. Spiezio was acting as a residential building contractor on this project without the required license. Likewise, the absence of any other evidence of property values in the record, other than that which was relied upon by the Board pursuant to its investigation, shows that the Board's assessment of the penalty based upon ten percent of the total project value against Mr. Spiezio should not be overruled. These assignments of error lack merit.
CONCLUSION
For the foregoing reasons, the judgment of the district court upholding the decision of the Board is affirmed. Costs are assessed against plaintiff-appellant, Mr. Joseph F. Spiezio, III.
AFFIRMED.