Opinion
No. HHB CV05-4004588
June 20, 2006
MEMORANDUM OF DECISION
The plaintiff, BB Electric (BB) appeals from the order of the State of Connecticut Department of Consumer Protection, Electrical Work Examining Board's (the Board) February 18, 2005 Final Decision and Order (BB Order). The plaintiff, Stephen Beecher (Beecher) appeals from the Board's February 18, 2005 Final Decision and Order (Beecher Order). For the reasons that follow, the plaintiffs have not satisfied their burdens on appeal, and the appeals are dismissed.
At all times relevant to this appeal, Beecher was the holder of an unlimited electrical license, Type E-1 and also was president of BB, a Connecticut corporation with its principal place of business as West Haven, Connecticut. By administrative complaint dated April 15, 2004, the State Electrical Work Examining Board brought a complaint against BB alleging violations of Connecticut General Statute § 20-341. The same Board brought a complaint dated April 15, 2004 against Beecher alleging violations of Connecticut General Statutes §§ 20-334, 20-341 and 21a-9, and Connecticut State Agencies Regulations §§ 20-332-15, 20-332-16, and 20-332-18a. Hearings were held on numerous dates from May to September 2004. Throughout the hearings the plaintiffs were represented by counsel. Prior to the inception of the hearings, the Board rejected Beecher's and BB's claims that the statute of limitations, laches and double jeopardy were applicable to the matters before the Board.
After the hearings, the Board issued the Beecher order, wherein the Board found the following findings of fact as to Beecher.
From January 4, 1999 to September 25, 2001, Beecher caused electrical work to be performed by person or persons who were not properly licensed and/or not licensed or registered in accordance with the Connecticut General Statutes, on Bullard Havens Regional Vocational Technical School (Bullard).
From December 7, 1998 through March 21, 2000, Beecher permitted an apprentice or apprentices to perform work at Bullard while not properly supervised.
From January 4, 1999 through December 18, 1999, Beecher mis-classified an apprentice as an E-2 on certified payrolls for the Bullard job.
From December 4, 1998 through November 12, 2001, Beecher performed or caused to be performed work in an incompetent or negligent manner by failing to install new and/or unused electrical wiring in Bullard.
The Board found that the foregoing also constituted unethical conduct, violations of state statutes, municipal codes and accepted trade practices. The Board further found that Beecher previously had been cited by the Connecticut Departm6nt of Labor Wage and Workplace Standards for failing to pay prevailing wages and that this constituted unethical conduct. The Board also found that Beecher had been a named defendant in a court action which resulted in a settlement on May 16, 2002 for claims of unpaid wages under the Fair Labor Standards Act U.S.C. § 201, et. seq., and the Connecticut Wage payment laws by falsifying certified payrolls and time cards, and that this constituted unethical conduct.
The Board concluded that Beecher had violated §§ 20-334, 20-341 and 21a-9 of the Connecticut General Statutes and §§ 20-332-15a, 20-332-16 and 20-332-18a of the Regulations of Connecticut State Agencies.
The Board ordered that Beecher be assessed a civil penalty in the amount of $1,263,500.00 and revoked his unlimited electrical license.
After the hearings, the board also issued the BB Order, wherein the Board found the following findings of fact as to BB.
During the period of January 2000 through September 2001, BB caused electrical work to be performed by a person or persons who were not licensed or registered in accordance with Chapter 393 of the Connecticut General Statutes on a job site located at Bullard Havens Regional Technical School in Bridgeport.
The Board concluded that BB had violated § 20-431 of the Connecticut General Statutes 268 times by causing unlicensed persons to perform electrical work and assessed a penalty of $800,500.00, and further ordered that BB discontinue the practice of having unlicensed persons perform electrical work.
Beecher and BB appealed the Board's decisions. They raise various and overlapping claims of error which the court has distilled into the following claims: 1) that the orders of the Board are arbitrary and capricious and are not supported by substantial evidence, primarily that there was no evidence that the old wire at issue was taken from Branford High School; 2) that the fines imposed were excessive; 3) that Beecher was denied due process of law as to the suspension of his electrical license; and 4) that the Board was arbitrary and capricious and erred by ignoring the plain meaning of the term "work."
DISCUSSION
In reviewing an agency decision, a court must be deferential to the findings of the agency. Conn. Light Power v. Dep't of Pub. Util. Control, 219 Conn. 51, 57 (1991). An agency's "factual determination must be sustained if it is reasonably supported by substantial evidence in the record taken as a whole." New England Cable Television Ass'n, Inc. v. Dep't of Pub. Util. Control, 247 Conn. 95, 118 (1998) (internal citation omitted; internal quotation marks omitted). The court makes the determination as to whether there is substantial evidence by examining the administrative record to see if it contains a substantial basis of fact from which the fact in issue can be reasonably inferred. Id. It is the plaintiff's burden to show that the agency's factual determinations are not supported by substantial evidence in the record. Id. The court's duty is to decide whether, based on the record as a whole, the agency's decision is unreasonable, arbitrary, illegal, or an abuse of its discretion. Conn. Light Power, supra, at 57-58. An agency is entitled to deference in interpreting both its own regulations and the statutes that the agency is charged with enforcing. MacDermid, Inc., v. Dep't of Environmental Protection, 257 Conn. 128, 138-39 (2001).
CLAIM I Beecher first argues that the Board erred in finding that Beecher performed or caused to be performed electrical work in an incompetent or negligent manner by installing old and/or used wire at the Bullard Havens job site. The core of Beecher's argument is that there was no evidence that the old wire was taken from Branford High School. The Board, however, made no findings as to where the old wire came from, nor can the court discern how that is relevant. There was abundant evidence in the record that the wire that was installed was, in fact, old from wherever it came. Accordingly, Beecher's claim must fail.CLAIM II
The plaintiffs next argue that the Board exceeded its authority by imposing fines for what the plaintiffs term a "single violation" of using "old wire." Sections 20-334 and 20-341(b) authorize the Board to impose a civil penalty of no more than $1,000.00 for each occurrence of a violation. Where a board can penalize for each violation separately there is no reason that the board cannot impose separate fines for conduct that meets the criteria of each of the separate fines. See U.S. Vision, Inc. v. Board of Examiners for Opticians, 15 Conn.App. 205, 210 (1988). This court's review of the record finds ample support for the Board's finding that the use of old wire in a public facility constituted "incompetent or negligent work," "unethical conduct" and a "violation of accepted trade practices." Accordingly, this claim fails.
CLAIM III
Beecher next argues that the Board wrongfully took action against his license in violation of Due Process. He argues that the board failed to provide proper notice and hold a compliance hearing prior to its action. This claim also fails. General Statutes § 4-182(c) provides, in pertinent part, that "[n]o revocation . . . of any license is lawful; unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license." General Statutes § 20-3349(c) provides, in pertinent part, that the Board has the authority to suspend or revoke a license if the holder "is convicted of a felony, is grossly incompetent, engages in malpractice or unethical conduct or knowingly makes false, misleading or deceptive representations concerning his work or violates the regulations adopted under this chapter."
In Tele Tech of Connecticut v. Department of Public Utility Control, 270 Conn. 778, 812 (2004) our Supreme Court determined that General Statutes § 4-182(c) did not mandate a hearing, but that "it does require the agency to give the licensee notice of the claimed conduct or conditions deemed by the agency to warrant potential revocation of the license as well as an opportunity to show compliance with all the legal requirements for retention of the license. If the licensee cannot show compliance and the licensing statute itself or requirements of due process mandate a hearing, the agency must give the licensee notice of a formal revocation proceeding pursuant to General Statutes § 4-177(a) . . ."
"`Notice . . . is not required to contain an accurate forecast of the precise action which will be taken on the subject matter referred to in the notice. It is adequate if it fairly and sufficiently apprises those who may be affected of the nature and character of the action proposed, so as to make possible intelligent preparation for participation in the hearing . . .' (Citations omitted; internal quotation marks omitted)." Cornelius v. Department of Banking, 94 Conn.App. 547, 555 (2006), quoting, Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 110 (1971).
This court's examination of the record reveals that Beecher was given ample notice of the claimed conduct and conditions that could lead to the revocation of his license.
Beecher was first notified by a letter dated August 7, 2003 that the Board was considering sanctions against him for incompetent and/or negligent electrical work and that a compliance conference was set up for August 29, 2003. Beecher and his lawyer attended that conference. Thereafter, the Board informed Beecher's attorney that it was continuing its investigation and that it was considering further action against Beecher, including suspension of his license.
Beecher and his attorney attended another compliance hearing on October 2, 2003. Following that Beecher was advised by the Board that, in February 2004, in addition to its original investigation, the Board was investigating whether Beecher and BB had allowed or caused electrical work to be performed without licenses or apprenticeship registrations, and/or allowed apprentices to work unsupervised, and whether Beecher had failed to pay a court-awarded judgment.
Thereafter another compliance hearing was scheduled and then postponed at Beecher's request until March 9, 2004. Prior to that, on March 2, the Board reiterated its belief that Beecher had performed incompetent and/or negligent electrical work at Bullards Haven, caused work to be performed by persons not licensed or registered, allowed apprentices to work without proper supervision and misclassified an apprentice as an E-2 electrician.
The compliance hearing was held on March 9, 2004 which Beecher and his attorney attended. Thereafter, by letter dated April 2, 2004, the Board informed Beecher's attorney that it had received additional information to the effect that Beecher had violated General Statutes § 20-334 and its corresponding regulation by having been named in a court settlement for falsifying certified payrolls and time cards and for a citation for failing to pay prevailing wages. The letter also advised that such violations could be grounds for additional sanctions and gave Beecher and BB ten days to respond to show that they were in compliance.
On April 15, 2004, the Board commenced the administrative proceedings by filing administrative complaints against Beecher and BB. The first administrative hearing was on May 14, 2004, at which Beecher and BB were represented by attorneys as they were at the subsequent administrative hearings that were held on June 10, 2004, July 15, 2004 and September 29, 2004.
In light of the foregoing record, Beecher's claim that he was denied notice and an opportunity to be heard prior to the Board's decision falls far short of meeting his burden. Moreover, even if there was not strict compliance with General Statute § 4-182(c), Beecher has not demonstrated that his substantial rights were prejudiced by any such failure. Thus his claim fails. See Tele Tech, supra at 813-14; Cornelius, 94 Conn.App. at 555.
CLAIM IV
The plaintiffs' other claims of error arise under an argument that the Board's decision as to Beecher was arbitrary, capricious and an abuse of discretion. The common thrust of all these arguments is that the Board's decision was based on alleged record keeping errors and thus is not backed by substantial evidence. There was, however, ample evidence before the Board from which it could find as it did.
The plaintiffs claim that the Board erred in finding that BB had committed 268 violations for causing an unlicensed and unregistered employee to perform electrical work. Essentially this is an attack upon the Board's fact finding. In this regard, the Board's findings must be sustained if they are reasonably supported by substantial evidence in the record. Fromer v. FOIC, 90 Conn.App. 101, 103 (2005). This court's review of the record reveals that there was evidence in the record that one Robert Williams, a BB employee, was employed at the Bullard Havens job site 268 times while he was not licensed or registered in accordance with the pertinent Connecticut General Statutes. Indeed, Williams testified that he was at the job site as a supervisor of the work performed there, that he set up work stations, ordered materials, laid out work for employees and verified that work had been done properly. Moreover, he was paid at the prevailing rate for a licensed electrician. BB presents no argument or authority to refute that Williams' actions were not "electrical work." Accordingly, the record contains substantial evidence to support the Board's findings and the plaintiffs' claim fails.
The plaintiffs also argue that the fines based upon "mis-classifying an unlicensed and unregistered" worker and for permitting apprentices to work without proper supervision are without evidence and are excessive. This claim also fails.
Beecher does not deny that he misclassified employees on his certified payroll, to which he signed and attested their truth. Indeed, he did this 107 times concerning his own brother's status and 268 times concerning an unlicensed worker as an apprentice. Again, there was evidence in the record to support both findings, and the Board had the authority to impose fines for each violation, which occurred on different days. Although the plaintiffs point to the fact that these two employees were not given personal fines, they offer no authority for the proposition that this is of legal relevance to their case, nor is the court aware of any such authority.
Both plaintiffs also argue that such "record keeping errors" do not relate to their "work" as required under General Statutes § 20-334(c). The plaintiffs cite no authority for this proposition, nor do they engage in any statutory analysis. The court notes, however, that General Statute § 31-53(f) requires subcontractors on state public works projects to maintain true and accurate weekly certified payroll records. Thus, the term does not readily admit of the narrow definition proposed by the plaintiffs. Moreover, the court must afford "deference to the construction given a statute by the agency charged with is enforcement." MacDermid Inc. v. Department of Environmental Protection, supra, at 138. This court has not been persuaded that the Board erred in finding that Beecher committed violations in the course of his "work" in the project, and the claim is rejected.
CONCLUSION
In conclusion, the plaintiffs have not met the burdens necessary to sustain their appeal. Accordingly, the appeals are dismissed.