The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC, ss. DOCKET NO. CV-02- 213°
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TOWN OF FARMINGDALE,
DORALD L. GARBRECHT
Plaintiff LIpRAr
Vv. DECISION ON MOTION
FOR PARTIAL
SHANNON M. FISHER, et al., SUMMARY JUDGMENT
Defendants a8
This matter comes before the court on the plaintiff’s motion for partial summary
judgment. The motion seeks to preclude the defendants from challenging the validity
of the ordinance in question or the code enforcement officer’s interpretation of that
ordinance. The court is satisfied that for the limited purposes of this motion, there are
no genuine issues of material fact in dispute.
Factual Background
Defendant Shannon Fisher (Fisher) is the sole proprietor of a retail video and
bookstore doing business under the name “1* Choice Adult Book & Video” situated in a
building owned by defendant Richard Brann. The business is a “sexually oriented
business” within sections 5-803(A) and (E) or Article VIII of chapter 5 of the Town of
Farmingdale Code of Ordinances, effective March 30, 2002.
Fisher’s business began operations on January 23, 2002. Under section 5-814 of
the Ordinance, the business was required to obtain a license in compliance with that
Ordinance or cease operation by September 30, 2002. As of October 1, 2002, after
inspection by the code enforcement officer (CEO), the CEO determined that the
business was still operating in violation of the ordinance. On October 2, 2002, Brann
and Fisher were each served with a Notice of Violation and Compliance Order issued
by the CEO. The notice stated that the defendants must cease all operations of business
prior to October 10, 2002. As of October 10, 2002 (the date of the complaint filed with
this court), the business continued to operate.
The notice of violation and compliance order issued by the CEO on October 2,
2002, detailed the CEO’s inspection and his finding that the business continued
operation without a license and additionally violated specified sections of the
Ordinance concerning location within 1,000 feet of the lot lines of residences, separate
driveway entrance and parking areas, and the design or construction of certain viewing
booths. The notice then advised the defendants of the possible consequences of their
failure to obey the order, including filing of a civil action in court to enforce the
Ordinance. The notice ended stating, “This is a final Order, which may be appealed to
the Kennebec County Superior Court, within 30 days of the date of this Notice,
pursuant to Rule 80B of the Maine Rules of Civil Procedure.” No appeal was taken by
either of the defendants. The town then filed the present action in the Superior Court
seeking enforcement of its Ordinance concerning sexually oriented business.!
Discussion
The plaintiff's motion for partial summary judgment tests the issues remaining
for litigation in light of the defendants’ failure to appeal the CEO’s final order pursuant
to MLR. Civ. P. 80B. The plaintiff relies on Town of Boothbay v. Jenness, 2003 ME 50,____
A2d.___, for the proposition that, “If a party does not challenge an administrative
order through an available appeal that contains ‘the essential elements of adjudication,’
the failure to do so may have a preclusive effect upon any subsequent litigation on
’ Since violation of the Ordinance is identified as a “civil violation,” and the Ordinance itself is identified
as a “land use” ordinance, enforcement actions could also have been brought by the town in the District
Court pursuant to M.R. Civ. P. 80H or 80K. However, this appears to be an area of concurrent
jurisdiction with the District and Superior Courts, and the town elected to bring the action in the Superior
Court. 4M.R.S.A. § 152(6).
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identical issues and claims dealt with in the administrative order.” The defendants
object pointing out that the CEO’s order was a preliminary action taken without prior
notice or hearing or other opportunity for the defendants to raise arguments concerning
the constitutionality of the Ordinance.
The effect of failure to avail oneself of available appeal of administrative orders
has generated considerable litigation. Beginning with Town of North Berwick v. Jones, 584
A.2d 667 (Me. 1987), the Law Court extended the principle of res judicata from final
court judgments to include final adjudication in an administrative proceeding before a
quasi-judicial municipal body. The court held that as long as the administrative
proceeding entailed the essential elements of adjudication, the principle would apply.
Among those essential elements the court found “1) adequate notice, 2) the right to
present evidence and legal argument and to abut opposing evidence and argument, 3) a
formulation of issues of law or fact to apply rules to specified parties concerning a
specified transaction, 4) the rendition of a final decision, and 5) any other procedural
elements as may be necessary to constitute ‘the proceeding a sufficient means of
conclusively determining the matter in question.” Id. at 670. It should be noted that in
Jones, unlike the present case, the defendants had a full hearing before the local
planning board, with counsel, prior to the municipal agency decision.
In Town of Freeport v. Greenlaw, 602 A.2d 1156 (Me. 1992), the Law Court again
addressed the issue of res judicata or issue preclusion from failure to appeal a
municipal decision in the form of a CEO letter informing the defendant that he could
not increase the seating on his restaurant property. After analyzing the letter, the court
decided that it did not constitute acceptable notice, which is one of the essential
elements of adjudication for application of res judicata. However, there was no
mention of the fact that other elements such as an opportunity to be heard, formulation
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of issues of law and fact and a rule of finality were not involved in the CEO’s decision,
leaving these other grounds for reversal unresolved.
More recently in the Jenness case (supra), the Law Court has carried its analysis
even further. In this case, the CEO provided the defendant with a notice of violation
which had been served on another defendant, along with a letter advising Jenness of
her right to appeal to the Zoning Board of Appeals. The letter then stated, “[Y]ou must
file said appeal within thirty (30) days of the subject decision or action complained of,
or forever forfeit that right.” Jenness did not appeal, and the court noted, “If a party
does not challenge an administrative order through an available appeal that contains
the ‘essential elements of adjudication,’ the failure to do so may have preclusive effect
upon any subsequent litigation on identical issues and claim dealt with in the
administrative order.” Id. at [ 21, cites omitted. Finishing the thought, the court stated,
“In other words, adequate notice of the opportunity to appeal to the Board and of the
consequences of failing to appeal will trigger the protections of the Board’s procedure,
' which include the other ‘essential elements of adjudication,’ whether or not the party
actually appeals and receives those ‘essential elements’.” Id. at { 21, emphasis
provided. The situation in light of Jenness and its predecessors seems to be that res
judicata can result from the failure of a defendant to take advantage of an available
administrative or judicial appeal even if that determination comes in the form of a
notice of violation issued by a code enforcement officer without the benefit of a hearing
or an opportunity to explore legal issues. However, before the failure to appeal will be
given such preclusive effect, the plaintiff must show that the defendant was given
adequate notice both of his right to appeal and of the consequences of failing to appeal.
Turning to the present case, the CEO’s letter of October 2, 2002, is clearly labeled
“Notice of Violation and Compliance Order.” The notice describes the procedural
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background of the Ordinance and the inspection the CEO conducted. The CEO stated
specific violations and the reasons for those findings. Finally, the letter notes that the
final order may be appealed to the Superior Court pursuant to Rule 80B. However,
unlike the notice in Jenness, which stated that the defendant must file appeal “or forever
forfeit that right,” there was no warning in the present notice of the consequences of
failing to appeal. This failure becomes especially critical in the present case where there
is no municipal administrative body available to review the CEO’s conclusions and the
only way for the defendant to receive the opportunity for hearing and formulation of
the legal and factual issues and finality of judgment lay in an immediate appeal to the
Superior Court. It seems unlikely to this court that the average citizen faced with a
summary letter from a town code enforcement officer would understand that she must
immediately exercise an appeal in the Superior Court or forever lose her right to
challenge the Ordinance or the CEO’s interpretation. Under these circumstances, it is
even more important that the notice is clear concerning those potential consequences.
Because the notice in the present case was not°sufficient as to the conséquences of
failure to appeal, the court concludes that the CEO’s determinations and the
constitutionality of the Ordinance are not entitled to res judicata treatment.
With regard to the plaintiff’s argument that proceeding on appeal pursuant to
MLR. Civ. P. 80B is the exclusive method of appealing the validity of the CEO’s Order,
the court again has difficulty. In most cases involving municipal ordinances dealing
with land use or specifying violations as civil violations, enforcement action would be
brought in the District Court pursuant to M.R. Civ. P. 80H or K. In those situations, the
named defendant appears before the court for what could be called a “civil
arraignment,” trial is held, the defense has the opportunity to argue legal points, and
the judge decides the matter. However, in the rarely used procedure utilized by the
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plaintiff in the present case, the defendant first appears in court already having been
adjudicated by the CEO, without the benefit of a hearing or an opportunity to present
defenses, which raises issues of fundamental fairness even if technically correct. The
defendant has the right to appeal pursuant to Rule 80B, but, as with the res judicata
issue above, to use this as a basis for precluding any test of the elementary legality of
the underlying ordinance seems to go a bit too far. Given the specific facts of this case —
that the complaint against the defendant is based upon the bare assertions of the CEO
without benefit of hearing or argument — precluding a defendant from challenging the
constitutionality of the Ordinance as being a collateral attack upon the administrative
decision appears to violate fundamental fairness and due process. For this reason, the
court will also deny that part of the motion concerning the exclusive nature of the Rule
80B appeal.
For the reasons stated above, the entry will be:
Motion DENIED.
Dated: July. | c , 2003 Mlle
S. Kirk Studstrup
Justice, Superior Court
TOWN OF FARMINGDALE - PLAINTIFF SUPERIOR COURT
KENNEBEC, ss.
Attorney for: TOWN OF FARMINGDALE Docket No AUGSC-CV-2002-00213
THOMAS BRENDAN FEDERLE ,
DYER GOODALL AND FEDERLE LLC
61 WINTHROP ST DOCKET RECORD
AUGUSTA ME 04330
vs
SHANNON M FISHER - DEFENDANT
Attorney for: SHANNON M FISHER
C H SPURLING
SPURLING LAW OFFICES
TWO CHURCH ST
GARDINER ME 04345
RICHARD BRANN - DEFENDANT
Attorney for: RICHARD BRANN
BRIAN WINCHESTER
OFFICE OF BRIAN P WINCHESTER
116 STATE STREET
AUGUSTA ME
-04330
Filing Document: COMPLAINT Minor Case Type: OTHER CIVIL
Filing Date: 10/10/2002
Docket Events:
10/11/2002
10/11/2002
10/11/2002
10/16/2002
10/16/2002
10/16/2002
10/16/2002
10/28/2002
FILING DOCUMENT - COMPLAINT FILED ON 10/10/2002
Party(s): TOWN OF FARMINGDALE
ATTORNEY - RETAINED ENTERED ON 10/10/2002
CERTIFY/NOTIFICATION - CASE FILE NOTICE SENT ON 10/11/2002
MATLED TO ATTY COLBY.
Party(s): RICHARD BRANN
SUMMONS - CIVIL SUMMONS FILED ON 10/15/2002
Party(s): RICHARD BRANN
SUMMONS - CIVIL SUMMONS SERVED ON 10/11/2002
ORIGINAL SUMMONS WITH RETURN SERVICE MADE UPON RICHARD E. BRANN.
Party(s): SHANNON M FISHER
SUMMONS - CIVIL SUMMONS FILED ON 10/15/2002
Party(s): SHANNON M FISHER
SUMMONS - CIVIL SUMMONS SERVED ON 10/11/2002
ORIGINAL SUMMONS WITH RETURN SERVICE MADE UPON SHANNON M. FISHER.
Party(s): RICHARD BRANN
RESPONSIVE PLEADING - ANSWER FILED ON 10/25/2002
Defendant's Attorney: BRIAN WINCHESTER
Page 1 of 7 Printed on:
07/16/2003