Willette v. Maine Electricians' Examining Board

I 1\1 TE RED DEC 3 0 2014

STATE OF MAINE SUPERIOR COURT

KENEBEC, ss. AUGUSTA

DOCKET NO. AP-14-32

KSM-I<fN" ~~-~~-Jy-

BRUCE J. WILLETTE,

petitioner

v. DECISION AND ORDER

MAINE ELECTRICIANS'

EXAMINING BOARD,

respondent

This matter came before the undersigned on October 101h, 2014 with

respect to the petitioner's Rule SOC Petition for Review of the Maine Electricians'

Examining Board's Decision and Order (hereinafter "Decision") dated April 81h,

2014 that found that the petitioner had committed five violations of the 2011

National Electrical Code (hereinafter "NEC") and subsequently imposed fines for

four of the five violations found to have been committed. The petitioner's self-

described "grievance" with the Decision was petitioner's contention that the

violations found were not the result of any work the petitioner, an electrician by

trade, performed.~

After reviewing the record and listening to and reading the arguments of

counsel, as well as after listening to the small claims hearing of Tunks v. Wilette,

WATDC-SC-13-163 at the request of petitioner, the undersigned enters the

following Decision and Order for the reasons set forth below:

Factual and Procedural Background:

1. By letter dated 3/27/13 the petitioner was notified that a complaint

had been filed against the license issued to petitioner by the respondent.

Petitioner was provided with a copy of the complaint and asked to respond to

same within 33 days of the date of the letter.

2. The complaint alleged five violations of the NEC that in turn are a

violation of the Electricians' Examining Board Rules, Chapter 120, Section 1. The

violations were in connection with work allegedly performed by petitioner at the

home of a Mr. Daniel Tunks (hereinafter "Tunks") in Waterville, Maine. (R. at 67,

68.)

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Petitioner also asserted that certain work that he had performed was unfinished because

petitioner had been asked to leave the premises after a dispute with the owners.

3. A "Complaint Investigation Report" was prepared by Peter Pelletier

(hereinafter "Pelletier"), State of Maine Electrical Inspector that summarized the

complained-of work. (R. at 69-70.)

4. The petitioner responded in writing to the complaint. (R. at 65-66.)

5. A hearing before the respondent took place on 3/21/14 as a result of

the complaint alleging five violations of the NEC. At the hearing Pelletier

testified as well as the petitioner. After hearing the respondent deliberated and

subsequently issued its Decision dated 4/lS/2014 as well as Findings of Fact

upon which the Decision was based. (R. at 51-57.)

6. On May 19, 2014, petitioner filed a timely Petition for Review of the

respondent's decision.

Standard of Review

7. This appeal is governed by the provisions of 5 M.R.S. § 11002 et. seq.

and 10 M.R.S. § S003(5-A) and M.R.Civ.P. SOC. Petitioner has the burden of

demonstrating there is no competent evidence in the record to support the

findings of the respondent and its resulting decision. Petitioner has the burden

of proving that the respondent's decision is "clearly erroneous", meaning that

there was no competent evidence in the record on which to base the decision

made. Starrett v. Starrett, 2014 ME 112.

S. Put another way, when the decision of an administrative agency is

reviewed pursuant to M.R. Civ. P. SOC, this Court reviews the agency's decision

directly for abuse of discretion, errors of law, or findings not supported by the

evidence. Centamore v. Dep't of Human Services, 664 A.2d 369, 370 (Me.l995). "An

administrative decision will be sustained if, on the basis of the entire record

before it, the agency could have fairly and reasonably found the facts as it did."

Seider v. Board of Exam'r of Psychologists, 2000 ME 206 <[ 9, 762 A.2d 551, 555

(Me.2000) (citing CWCO, Inc. v. Superintendent of Ins., 1997 ME 226, <[ 6, 703 A.2d

125S, 1261 (Me.1997)}.

9. In reviewing the decisions of an administrative agency, the Court

should "not attempt to second-guess the agency on matters falling within its

realm of expertise." The Court's review is limited to "determining whether the

agency's conclusions are unreasonable, unjust or unlawful in light of the record."

Imagineering v. Superintendent of Ins., 593 A.2d 1050, 1053 (Me.l991).

10. The focus on review is not whether the Court would have reached the

same conclusion as the agency, but whether the record contains competent and

substantial evidence that supports the result reached by the agency. CWCO, Inc.

v. Superintendent of Ins., 703 A.2d 125S, 1261.; t5 M.R.S. § 11007(3)("The court shall

not substitute its judgment for that of the agency on questions of fact").

"Inconsistent evidence will not render an agency decision unsupported." Seider,

762 A.2d 551 (citations omitted). The burden of proof rests with the party seeking

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to overturn the agency's decision, and that party must prove that no competent

evidence supports the Board's decision. Id.

11. Factual determinations must be sustained unless shown to be clearly

erroneous. Imagineering, 593 A.2d at 1053 (noting that the Court recognizes no

distinction between the clearly erroneous and substantial evidence in the record

standards of review for factual determinations made by administrative agencies).

"A party seeking review of an agency's findings must prove they are

unsupported by any competent evidence." Maine Bankers Ass 'n v .. Bureau, 684

A.2d 1304, 1306 (Me.1996) (emphasis added).

Discussion

12. There is insufficient affirmative evidence in the record to support

petitioner's contention the respondent should have been compelled to find that

the violations were not committed by the petitioner. Certainly the evidence

presented to the respondent was in dispute, especially concerning exactly what

work petitioner did, and did not, perform. However, petitioner was given the

opportunity to cross-examine Pelletier, the only witness for the State, and chose

not to do so. (R. at 15, 32). Moreover, Pelletier testified twice that petitioner

acknowledged the violations to Pelletier, and petitioner did not directly dispute

Pelletier's recollection on this point.' (R. at 14, 31).

13. Petitioner represented himself in this case, as is his right. However, a

litigant who elects to represent himself is bound by the same rules as one

represented by counsel; he is not entitled to any preferential treatment.

Gurschick v. Clark, 511 A.2d 36 (Me. 1986).

14. For the reasons stated above, the undersigned affirms the Decision

and Order of the respondent.

The Clerk is directed to incorporate this Decision and Order by

reference into the docket for this case, pursuant to Rule 79(a), Maine Rules of

Civil Procedure.

BYPJt~l//1

Date: 12/18/2014

Robert E. Mullen, Ju~tice

Maine Superior Court

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A point that seemed to be of critical importance to at least one member of the Board. (R. at 43).

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Date Filed 5/19/14 Kennebec Docket No. AP-14-32 F

County

Action: Petition for Review J. Mullen

soc

Bruce J. Willette vs. Maine Electricians Board

Plaintiff's Attorney Defendant's Attorney

Bruce J. Willette, Pro Se Christopher L. Mann

39 Western Ave. 6 State House Station

Waterville, ME 04901 Augusta, ME 04333

Date of Entry

5/21/14 Petition for Review of Final Agency Action, filed (5/19/14). s/Willette, Pro Se

5/30/14 Entry of Appearance, filed (5/28/14). s/Mann, AAG

6/11/14 Certified Mail Return Receipt for Attorney General, filed (6/9/14). s/Willette, ProSe

6/11/14 Certified Mail Return Receipt for Electricians Exams Board, filed (6/9/14). s/Willette,

ProSe

6/20/14 Administrative Record, filed (6/18/14). s/Mann, AAG

6/20/14 Notice and Briefing Schedule issued.

Copy to Petitioner and AAG Mann

7/25/14 Petitioner's Brief, filed (7/21/14). s/Willette, ProSe

8/13/14 Respondents Brief, filed. s/Mann, AAG

9/8/14 Oral Argument scheduled for October 10, 2014 at 9:30a.m.

Notice sent to Mr. Willette and AAG Mann

10/27/14 Oral Argument, held (10/10/14).

Tape 1947 Index 441-810

Under advisement.

12/18/14 DECISION AND ORDER, Mullen, J.

Decision and Order of the respondent is affirmed.

The Clerk is directed to incorporate this Decision and Order by reference.

Copy to Petitioner and AAG Mann

Copy to repositories.

12/18/14 Notice of removal of Record sent to AAG Mann

Page 1 AP-14-32