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Bloomstein v. Department of Public Safety

Appeals Court of Massachusetts, Suffolk

October 16, 2019

BARRY BLOOMSTEIN
v.
DEPARTMENT OF PUBLIC SAFETY[1] & others.[2]

          Heard: March 12, 2019.

          Civil action commenced in the Superior Court Department on August 19, 2016.

         Motions for judgment on the pleadings were heard by Rosemary Connolly, J.

          James M. McLaughlin for the plaintiff.

          Elizabeth Kaplan, Assistant Attorney General, for Department of Public Safety & others.

          Present: Rubin, Kinder, & Singh, JJ.

          RUBIN, J.

         After a hearing, a hearing officer of the board of building regulations and standards (board) suspended Barry Bloomstein's construction supervisor license (license) for various violations of the State building code in connection with his supervision of the construction of a house. These violations included constructing the house differently from the plans that had been approved as part of the building permit application, and various construction errors that resulted in the work not being performed in a workmanlike and acceptable manner, such as inconsistent heights of stair risers in an interior staircase. The hearing officer suspended Bloomstein's license for three months and ordered that he retake the licensing examination before his license would be reinstated. Bloomstein appealed the hearing officer's decision to the board, which, after a nonevidentiary hearing, adopted the hearing officer's findings and conclusions in full, except that it increased the suspension to twelve months. Bloomstein appealed this decision to the Superior Court pursuant to G. L. c. 30A, § 14, and a judge affirmed. For the reasons that follow, we vacate the judgment and remand for further proceedings consistent with this opinion.

         Bloomstein's primary argument is that, by increasing his suspension, the board violated two statutory provisions that govern agencies' adjudicatory procedures: G. L. c. 30A, § 11 (7) (subsection 7), and G. L. c. 30A, § 11 (8) (subsection 8). Subsection 7 provides in relevant part:

"If a majority of the officials of the agency who are to render the final decision have neither heard nor read the evidence, such decision, if adverse to any party other than the agency, shall be made only after (a.) a tentative or proposed decision is delivered or mailed to the parties containing a statement of reasons and including determination of each issue of fact or law necessary to the tentative or proposed decision; and (b) an opportunity is afforded each party adversely affected to file objections and to present argument, either orally or in writing as the agency may order, to a majority of the officials who are to render the final decision."

         According to Bloomstein, the board violated subsection 7 because a majority of board members did not hear or read the evidence, and he was provided neither a tentative or proposed decision nor, by implication, an opportunity to present objections to one. The record discloses, and the board concedes, that the statutory prerequisites for the application of subsection 7 were met: a majority of the board did not hear or read the evidence. In a filing in the trial court, the board stated, "[The board] does not dispute that a majority of its members did not examine the full evidentiary record before reviewing . . . Bloomstein's case," and stated in its appellate brief, "Nor is there any dispute that a majority of [b]oard members did not examine the full evidentiary record before discussing Bloomstein's request for review." This concession is supported by the transcript of the nonevidentiary hearing, at which one member stated that she "[j]ust couldn't even imagine reading through all these exhibits." It is also clear from the record that the board neither informed Bloomstein that a majority of its members had not heard or read the evidence, nor gave him a copy of what on its face was its "tentative or proposed decision." G. L. c. 30A, § 11 (7).

         The board first argues that, because Bloomstein has served his suspension, the issue is moot. "Ordinarily, litigation is considered moot when the party who claimed to be aggrieved ceases to have a personal stake in its outcome." Blake v. Massachusetts Parole Bd., 369 Mass. 701, 703 (1976). However, courts will address an issue that might otherwise be dismissed for mootness if "[t]he issue is one of public importance, capable of repetition, yet evading review." Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 274 (1978). That standard is satisfied here, where the temporary suspension of a license is likely to expire before the "lengthy appellate process" can be completed. Seney v. Morhy, 467 Mass. 58, 61 (2014). And, contrary to the board's contention at oral argument, an agency's compliance with statutes governing its procedures for adjudications that can result in the destruction of a person's livelihood is of sufficient public importance to justify judicial review.[3]

         On the merits, the board argues that the hearing officer's decision, a copy of which Bloomstein received, constituted the board's tentative or proposed decision, and that Bloomstein's petition for appeal of the hearing officer's decision to the board under 780 Code Mass. Regs. § 110.R5.2.10 (2010) constituted his opportunity to object to it. We disagree. Subsection 7 gives a party the statutory right to object to a tentative or proposed decision in only one circumstance: when a majority of the board has not heard or read the evidence. Because a party does not always have a statutory right to file objections, the statute requires the party to have some opportunity to know whether he or she has such a right. But the issuance by the hearing officer of his or her decision and the opportunity to appeal it cannot, by themselves, confer this knowledge, for the board at the time the party files his or her appeal has not yet had the opportunity to hear or read the evidence. Therefore, the hearing officer's decision, without more, cannot constitute the board's tentative or proposed decision for purposes of subsection 7. It follows that the party's petition for appeal does not, in and of itself, constitute the party's opportunity to object or to present arguments to the board's tentative or proposed decision.[4] The board's procedures therefore violated subsection 7.

         The board argues in the alternative that, even if its procedures violated subsection 7, Bloomstein was not prejudiced because he made arguments for reversal in his petition for appeal, and does not identify any arguments that he would have made had he been given a tentative or proposed decision and an opportunity to respond. See Police Pep't of Bostonv.Kavaleski, 463 Mass. 680, 691 (2012) ("Pursuant to G. L. c. 30A, ยง 14 [7], we also determine whether, as a result of that error, 'the substantial rights of any party may have been prejudiced'"). We disagree that Bloomstein has not demonstrated prejudice. Bloomstein's petition for appeal was cursory, challenging only two of the hearing officer's sixty-eight findings of fact and offering only conclusory legal statements, including that two expert reports relied on by the hearing officer "should not have been admitted." The petition for appeal does not amount to full briefing. Indeed, in his brief here, Bloomstein challenges other findings of fact, such as the hearing officer's finding regarding stair riser inconsistency, and makes arguments for why the hearing officer should not have relied on the expert reports. Bloomstein also argues to us that "[s]ome of the alleged errors [in construction] were determined to be the result of ...


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