The opinion
STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS. CIVIL ACTION
DOCKET NO-AP-21-12
RICHARD P. MARTIN,
Petitioner
DECISION AND ORDER
V.
MAINE PLUMBERS'
EXAMINING BOARD,
Respondent
INTRODUCTION
Richard P. Martin (Martin), a master plumber, has appealed from a
Decision and Order dated March 8, 2021, from the Maine Plumbers'
Examining Board (Board) that imposed discipline against him after finding
that he had violated the Maine Plumbing Code, had demonstrated
incompetence in the practice of plumbing and had violated the standards of
practice as a plumber. The appeal has been filed pursuant to 5 M.R.S. §§
11001-11002 (Maine Administrative Procedure Act) and M.R.Civ.P. SOC.
Martin contends that the Board committed error requiring reversal of
its Decision and Order because: ( 1) the Notice of Hearing provided to him
violated his Due Process rights by failing to adequately notify him that he was
alleged to have been incompetent or to have violated the standards of practice
expected of a plumber; (2) no expert testimony was presented to establish his
incompetence or violation of the standards of practice, and; (3) the Board
considered uncharged and unadjudicated conduct, and facts not in evidence,
when it imposed sanctions against him, and failed to adequately explain why
it imposed those sanctions.
FACTUAL AND PROCEDURAL BACKGROUND
Following an adjudicatory hearing held on December 14, 2020, the
Board voted to find that Martin had committed 8 violations of the Maine
Plumbing Code, and further found, based on those violations, that Martin had
demonstrated incompetence in the plumbing profession and had violated the
standards of practice within that profession, in connection with his work on a
project in Harrison in the Fall of 2019. The Board voted to impose discipline
on the 8 Plumbing Code violations only, which discipline consisted of the
following: ( 1) a civil penalty of $1,000 per violation, for a total civil penalty
of $8,000; (2) suspension of Martin's Master Plumber's license for 1 month
per violation, for a total suspension of 8 months, and; (3) probation for 2
months per violation for a total probationary period of 16 months, subject to
the condition that he submit copies of all permits obtained by him to the
Board's designee within 24 hours. (R. at 6).
The Notice of Hearing provided to Mr. Martin set forth the eight
specific provisions of the Plumbing Code he was alleged to have violated, and
further stated that those alleged "violations ... constitute incompetence," and
"a violation of standards of practice." (R. at 9). In response to the complaint
filed against him by the Senior Plumbing Inspector, and at the adjudicatory
hearing held on December 14, 2020, Mr. Martin did not dispute and, in fact,
acknowledged that he was responsible for violating the Plumbing Code as
alleged.
During the hearing, it was revealed by Mr. Martin that the two workers
he assigned to the job in question were unlicensed and that he had not always
supervised them during their work on the project. No expert testimony was
2
presented, but the specific provisions of the Plumbing Code alleged to have
been violated by Mr. Martin were admitted into evidence without objection.
(R. at 36, Exhibit 6).
During her closing argument before the Board, the Assistant Attorney
General presenting the case in support of the complaint maintained that the
evidence showed that Mr. Martin had violated multiple provisions of the
Plumbing Code which, it was asserted, demonstrated incompetence on his part
and that he had violated the standards of practice for a plumber. (R. at 67 et
seq.). Moreover, referring to the information disclosed by Mr. Martin during
his testimony that he had used unlicensed and unsupervised workers at the job
site, the Assistant Attorney General argued that the Board should find Mr.
Martin responsible and sanction him accordingly. (Id.).
Martin, through counsel, objected and moved for dismissal of the
complaint. (R. at 68). With respect to any argument that Martin was
incompetent or had violated the standards of practice, the hearing officer
allowed the AAG to continue with her argument after ruling that those two
allegations were contained in the Notice of Hearing. 1 (R. at 67-68).
Regarding any reference to Martin's use of unlicensed works who were not
properly supervised, the hearing officer ruled that such evidence was
admissible for consideration by the Board, but it could not be used as a new
and separate allegation of misconduct.
At the close of all the evidence, the three Board members began their
deliberations. At various point, some members strayed from the liability
1
It is true that the hearing officer was initially unsure as to whether those allegations
were part of the Notice of Hearing, but after reviewing the notice, she ruled that they
were. (R.at 67-68).
3
phase into the sanctions phase of their deliberations. 2 Whenever that
happened, however, the hearing officer promptly redirected the Board
members and provided them with appropriate limiting instructions. (R. at 70
74).
After the Board had voted to find that Martin had committed the eight
specific violations of the Plumbing Code, and that he had thereby acted in an
incompetent manner and in violation of the standards of practice for a
plumber, the hearing officer advised the Board that, for purposes of imposing
sanctions, the Board should limit itself to the eight Plumbing Code violations
so as not to "double count" the violations. (R. at 73). The Board followed
that advice and imposed discipline against Mr. Martin for the eight Plumbing
Code violations only.
STANDARD OF REVIEW
The Law Court has frequently reaffirmed the principle that judicial
review of administrative agency decisions is "deferential and limited."
Passadumkeag Mountain Friends v. Bd. OfEnvtl. Prat., 2014 ME 116, , 12,
102 A.3 d 1181 ( quoting Friends ofLincoln Lakes v. Bd. OfEnvtl. Prof., 2010
ME 18,, 12, 989 A.2d 1128). The court is not permitted to overturn an
agency's decision "unless it: violates the Constitution or statutes; exceeds the
agency's authority; is procedurally unlawful; is arbitrary or capricious;
constitutes an abuse of discretion; is affected by bias or error of law; or is
unsupported by the evidence in the record." Kroger v Departmental of
Environmental Protection., 2005 ME. 50,, 7, 870 A.2d 566. The party seeking
2
This may be explained, at least in part, by the fact that a copy of Mr. Martin's prior
discipline by the Board in 2006 was admitted into evidence as part of the prosecution's
case-in-chief, for the purpose of supporting the allegation of incompetence and as being
relevant on the issue of sanctions, in the event the Board got to that issue. (R. at 63 and
44, 48-49: Exhibits 7 & 9).
4
to vacate a state agency decision has the burden of persuasion on appeal.
Anderson v Maine Public Employees Retirement System, 2009 ME. 134, ,r 3,
985 A.2d 501. A party seeking to overturn an agency's decision bears the
burden of showing that "no competent evidence" supports it. Stein v. Me.
Crim. Justice Academy, 2014 ME 82, ,r 11, 95 A.3d 612.
DISCUSSION
A. Did the Petitioner Receive Fair Notice?
Martin complains that he did not receive constitutionally adequate
notice that he was being accused of incompetence and violating the standards
of practice for plumbers. The court does not find this argument persuasive.
The Notice of Hearing sent to Martin specifically cited 10 M.R.S. §
8003(5-A)(A)(2), which states in pertinent part that the Board may impose
discipline for "incompetence ... or violation of any applicable ... standards
of practice while engaged in the occupation or profession for which the person
is licensed." The notice expressly informed Martin that he was alleged to have
violated the Plumbing Code. Moreover, the specific provisions of the
Plumbing Code alleged to have been violated by Martin were expressly
identified for him, with accompanying rule citations. Finally, the notice
clearly stated that the violations of the Plumbing Code set forth in the notice
constituted "incompetence" and "a violation of the standards of practice." (R.
at 9).
While Martin's counsel claimed that he was unaware that allegations of
incompetence and practice standards violations were included in the Notice
of Hearing, and although the hearing officer herself initially failed to realize
that as well, the fact is that the Notice of Hearing did, indeed, make those
allegations. Martin has failed to show what more the Notice of Hearing should
5
have contained. Moreover, as pointed out by the Board, Martin was not
separately discipline for incompetence or the practice standards violation.
B. The Lack of Expert Testimony
Martin asserts that the Board was required to hear expert testimony on
the issue of incompetence and the standards of practice. The court also finds
this argument unconvincing.
The specific provisions of the Plumbing Code alleged to have been
violated by Martin were introduced into evidence. As was the case in Seider
v. Board of Exam 'rs of Psychologists, 2000 ME 118, ~ 23, 754 A.2d 986,
numerous violations of the code applicable to one's profession or occupation
constitute a violation of the standards of practice and may be negligence or
incompetence. Similarly, the members of the Board were knowledgeable in
the provisions of the Plumbing Code. Furthermore, Martin himself admitted
that he was responsible for the numerous violations of the Plumbing Code on
this project. No expert testimony was required. See also Narowetz v. Board
ofDental Practice, 2021 ME 46 ~ 22, n. 9.
C. The Sanctions
As an initial matter, Mai1in contends that the Board improperly
considered "uncharged and unadjudicated conduct" in deciding the sanctions
to impose upon him. In support of this claim, Martin cites to the comments
of a Board member during deliberations that referred to a "previous consent
agreement." (R. at 74). Martin fails to explain, however, why this was
improper. There was, in fact, a prior disciplinary matter involving Martin that
6
was resolved by agreement in 2006. 3 The 2006 disciplinary matter was part
of the evidence in this case and could be considered by the Board.
Martin also complains that Board members considered the evidence
that the violations occurred in the context of his failure to fully supervise his
unlicensed workers. But Martin has failed to demonstrate why this was
improper. Evidence that Martin had not always supervised the unlicensed
workers came through the testimony of Martin himself and was admissible to
explain the context and circumstances of how the violations of the Plumbing
Code at this job site may have occun-ed. The court sees nothing wrong with
the Board's consideration of such evidence. The Board did not impose
discipline for the uncharged conduct of failure to supervise unlicensed
workers. Rather, that evidence informed the Board's understanding of the
circumstances of the violations alleged in the Notice of Hearing.
Finally, Martin asserts that the Board did not adequately explain its
reasons for imposing the specific sanctions against him. See Palian v. HHS,
2020 ME 131, ~~ 43-47, 242 A.3d 164; Zegelv. Bd. OfSoc. Worker Licensure,
2004 ME 31, ~ 24, 843 A.2d 18.
The Law Court has emphasized how necessary and important it is for
agencies to articulate the findings and reasons for their decisions, so that
proper and meaningful judicial review may take place in accordance with the
Maine Administrative Procedure Act. See, e.g., Narowetz v. Board ofDental
Examiners, 2021 ME 46, ~~ 16-22, _ _A.3d _ _; Lamarre v. Town of
China, 2021 ME 45, ~ 16, _ _A.3d ___; Fair Elections Portland, Inc. v.
City ofPortland, 2021 ME 32, ~~ 36-38, 252 A.3d 504.
3
The Board's Decision and Order mistakenly refers to the prior disciplinary matter as
having occurred in 2016. (R. at 4). The court is satisfied that this was a typographical
error.
7
In this case, the Board imposed substantial sanctions upon Martin, who
has been engaged as a plumber for 38 years, with a master plumber's license
for 32 of those years. Those sanctions included a significant total civil
penalty, license suspension and period of probation. While the court might be
able to surmise why the Board chose to impose the sanctions it did, based on
the statements made by the Board members during deliberations, the court's
speculation or rationalization is no substitute for the Board's articulated
reasons as stated in its final decision. See Narowetz, supra, 2021 ME 46, ~
20, n.8. As stated in Zegel, "[t]he Board's decision ... fails to explain why it
decided to impose the sanctions it chose," and the court "may not hypothesize
about the Board's reasoning." 2004 ME 31, ~ 24.
The Board's Decision and Order made specific findings of fact
supporting why it found that Martin had violated the Plumbing Code, had been
incompetent and had violated the standards of practice for a plumber. It does
not sufficiently explain, however, why the Board chose to impose the
sanctions it did on him. 4
The entry is:
The Board's imposition of a civil penalty of $8,000 (total), an 8-month
license suspension (total) and a 16-month period of probation (total) is
vacated, and the matter is remanded to the Board for further proceedings
consistent with this Decision. In all other respects, the Decision and Order of
the Board is affirmed.
The clerk is directed to incorporate this Order into the docket of this
case by notation reference in accordance with M.R.Civ.P. 79(a).
4
In an Order dated September 30, 2021, the court denied Martin's request for a stay of the
sanctions. Although the court had the Administrative Record before it when it issued that
Order, it has since engaged in a more in-depth consideration of this issue and determines
that vacation of the sanctions and a remand to the Board is necessary.
8
Dated: October 4, 2021
-;aM;;s;-,
William R. Stokes
Justice, Superior Court
"':,,t~red on the docket ct J y I?,iYZ \
(
9
Date Filed:04/15/21 Kennebec Docket No.AP-21-12
County F
J. Stokes
Action: BOC
Richard Martin vs Maine Plumbers Examining Board
Plaintiff's Attorney Defendant's Attorney
Janna Gau, Esq Elizabeth Stivers, AAG
Ryan Dumais, Esq 6 State House Station
Eaton Peabody Augusta, ME 04333
PO Box 1210
Bangor, ME 04402-1210
Date of Entry
04/20/21 Petition For Review of Final Agency Action Pursuant to Maine Rules of Civil
Procedure Rule BOC, filed (04/15/21 ). s/Martln, Esq.
04/29/21 Entry of Appearance and Statement of Position, flied (4/26/21 ). s/Stlvers, AAG
05/18/21 Administrative Record, filed (5/13/21 ). s/Stivers, AAG
05/18/21 Notice & Briefing Schedule issued
Copy to parties/counsel
06/29/21 Petitioner's Combined Motion for Stay of Sanctions and to Take Judicial Notice of Date
of Prior Discipline relative to the above matter, filed (6/17/21 ). s/Gau, Esq.
06/30/21 Petitioner's Brief, filed (6/25/21). s/Gau, Esq.
07/07/21 Respondent's Objection to Motion to Stay, filed (6/30/21 ). s/Stivers, AAG
07/26/21 Respondent's Brief, filed (7/23/21 ). s/Stivers, AAG
08/16/21 Petitioner's Reply to Respondent's Opposition to Petition for Review of Final Agency
Action, filed (8/11/21). s/Gau,AAG
09/30/21 ORDER ON MOTION TO STAY, Stokes, J.
Petitioner's Combined Motion for Stay of Sanctions and to Take Judicial Notice
of Date of Prior Discipline
10/04/21 DECISION AND ORDER, Stokes, J.
The Boards Imposition of a civil penalty of $8000 (total), an 8 month license suspension
(total) and a 16-month period of probation (total) ls vacated, and the matter is remanded
to the Board for further proceedings consistent with this decision. In all other respects,
the Decision and Order of the Board Is AFFIRMED.
Copy to counsel/parties and repositories
10/04/21 Case closed
Page 1 AP-21-12