Opinion
AP-15-1
03-20-2017
KATHLEEN BRYANT and THOMAS BRYANT Plaintiffs, v. TOWN OF WISCASSET, ALLEN COHEN, MELISSA COHEN, and BIG AL'S OUTLET, INC., Defendants. v.
Plaintiff's Attorney Jonathan A. Pottle, Esq. Defs. Attorney Town of Wiscasset Mary E. Costigan, Esq. Defs. Attorney.
Plaintiff's Attorney Jonathan A. Pottle, Esq. Defs. Attorney
Town of Wiscasset Mary E. Costigan, Esq. Defs. Attorney.
ORDER ON DEFENDANTS' MOTION TO DISMISS
Lance E, Walker Justice, Superior Court
Before the Court is Defendants Allen and Melissa Cohen's Motion to Dismiss. Cohen Defendants seek dismissal of the final remaining count of this case (Count IV). Defendant claims that the Court does not have jurisdiction over the matter because the count, seeking declaratory judgment that the Cohens' storage of fireworks is in violation of Maine law, should have been brought as an administrative appeal pursuant to Maine Rule of Civil Procedure 80C. Defendants make this assertion based upon the February 24, 2015 letter from Timothy Fuller, Inspection Supervisor for the Office of the State Fire Marshal, to Plaintiffs' attorney, Jonathan Pottle confirming the Cohen Defendants' compliance with Maine Law and NFPA regulation (the "Letter"). According to Defendants, Plaintiffs' only avenue for relief is administrative appeal of the Letter to the Superior Court. Because Plaintiffs failed to timely assert any claim pursuant to 80C, Defendants contend that Plaintiffs are now barred from seeking relief.
Maine Rule of Civil Procedure 12, governing Defenses and Objections, requires the Court to look solely to the Complaint to determine its sufficiency for motions to dismiss brought pursuant to M.R. Civ. P. 12(b)(6). For motions to dismiss for lack of subject matter jurisdiction, the Court is permitted to consider materials outside of the pleadings. Gutierrez v. Gutierrez, 2007 ME 59, ¶ 10, 921 A.2d 153. Furthermore, in determining whether the Court has subject matter jurisdiction, the court makes "no favorable inferences in favor of the plaintiff such as . .. when reviewing a motion to dismiss for failure to state a claim upon which relief can be granted." Tomer v. Me. Human Rights Comm'n, 2008 ME 190, ¶ 9, 962 A.2d 335.
The Superior Court does not have jurisdiction over claims for declaratory judgment claim where the legislature has provided an alternative remedy to the conflict through appeal of an administrative decision. Fisher v. Dame, 433 A.2d 366, 372 (Me. 1981) ("[W]hen a legislative body has made provision, by the terms of a statute or an ordinance, for a direct means by which the decision of an administrative body can be reviewed in a manner to afford adequate remedy, such direct avenue is intended to be exclusive"). In the current case, Defendants argue that because Plaintiffs had the opportunity to bring an action for administrative appeal of the determination made by Fuller, Plaintiffs are barred from seeking declaratory relief. The Court looks not only to the Complaint, but the Court must also look to the Letter in order to determine whether the Court has jurisdiction to consider Plaintiffs claim for declaratory judgment. The Court reviews the Letter in order to determine whether final agency action has occurred.
The Maine Administrative Procedures Act defines final agency action as "a decision by an agency which affects the legal rights, duties or privileges of specific persons, which is dispositive of all issues, legal and factual, and for which no further recourse, appeal or review is provided within the agency." 5 MRS 8002(4).
The Letter declares that the property in question and "building thereon are not in violation of any Maine law or regulation concerning the storage of consumer fireworks. The Letter determines that the property is in compliance with Maine law on firework safety, which affects the legal rights of the parties. The Letter is dispositive of all issues presented to the Office of the State Fire Marshal, and there is no further recourse within the agency. The Court finds that the Letter constitutes final agency action.
Because the Letter constitutes final agency action taken by the Office of the State Fire Marshal, and because declaratory relief may not be sought where there is a legislatively created remedy, Plaintiffs' sole remedy to the determination made concerning the rights and duties of the parties in complying with the state code on fireworks was to appeal the Letter pursuant to Maine Rule of Civil Procedure 80C within the 30 days allowed. See 5 M.R.S. § 11002(3). Therefore, the Court dismisses Count IV for lack of subject matter jurisdiction.
Conclusion
The Court Grants Defendant Cohen's Motion to Dismiss Count IV.