Opinion
C.A. No. 06A-12-001 JTV.
Submitted: September 7, 2007.
Decided: December 31, 2007.
Upon Consideration of Plaintiff's Appeal From a Decision of the Electrical Board of Examiners REVERSED REMANDED.
Dean DelCollo, Esq., Delcollo Werb, Newark, Delaware. Attorney for Plaintiff.
Christopher J. Spizzirri, Esq., Department of Justice, Dover, Delaware. Attorneyfor Defendant.
ORDER
Upon consideration of the parties briefs and the record in this case, it appears that:
1. The appellant, Edward Hackendorn, appeals from a decision of the Delaware Board of Electrical Examiners ("Board") which denied his application for an electrician's license. The Board denied his application on the grounds that he "knowingly provided false information on his application." For the reasons which follow in this order, I find that the reason given by the Board for its decision, i.e., that the appellant knowingly provided false information on his application, is not supported by substantial evidence.
Board decision, page 4.
2. The scope of review for an appeal of an administrative agency decision is limited to examining the record for errors of law and determining whether substantial evidence is present on the record to support the agency's findings of fact and conclusions of law. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. On appeal, the court does not "weigh the evidence, determine questions of credibility, or make its own factual findings." Instead, the court reviews the case to determine if the evidence is legally sufficient to support the Board's factual findings. In reviewing the record for substantial evidence, the court must consider the record in the light most favorable to the party prevailing below.
Histed v. E.I. DuPont de Nemours Co., 621 A.2d 340, 342 (Del. 1993).
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981).
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
ILC of Dover, Inc. v. Kelley, 1999 Del. Super. LEXIS 573, at *3.
Spencer v. Suddard, 1997 Del. Super. LEXIS 519, at *6.
3. At one time the appellant was a licensed, Delaware electrician. It appears that his license expired in 2002 for non-renewal. The appellant testified that in June of 2002 he moved from his then residence at 6 Horseshoe Court, Middletown, Delaware, which was the address on file with the Board, to 417 N. Broad Street, Middletown, Delaware. He testified that he did not leave a forwarding address. He testified that at the time he was going through a divorce and a mortgage foreclosure. Before that move, the Board had initiated an investigation into his conduct as an electrician, and in October 2001 the Board's investigator interviewed the appellant. A part of a letter written by the investigator at the time was read into the record as follows:
Mr. Stotler [the investigator] spoke to Mr. Hackendorn who was initially cooperative. Mr. Hackendorn told him he did the work through Bill Mahoney, but he was not able to produce any job orders or other documents even though requested several times.
It appears that this quoted portion is the only part of the investigator's letter or report that is included in the record on appeal. When asked whether he spoke to the investigator, the appellant's testimony was that he had, and the investigator said he would call him back, but that he had heard nothing further from him.
4. In 2003 the Board sent the appellant a notice, registered mail, at the 6 Horseshoe Court address, of its intent to hold an administrative hearing to determine if he should be disciplined. In March 2004 the Board did, in fact, issue the appellant a letter of reprimand after finding that he had worked outside the scope of his limited electrician's license. The appellant did not attend the hearing and did not otherwise respond in any way to the 2003 letter or the 2004 letter of reprimand. He testified that he received neither and was aware of neither.
5. In December 2005 the appellant obtained a Maryland electrician's license. He testified that he has a second home in Maryland and does a lot of work in that area. He then applied to the Board for a reciprocal Delaware electrician's license the next month. In his application, in response to a question as to whether he had been reprimanded regarding his practice as an electrician, he answered "no." Since he had received the above-mentioned reprimand in Delaware in 2004, that answer led to the denial of his application. In the application he reported 417 N. Broad Street, Middletown, Delaware as his address, and received correspondence regarding his hearing on his reciprocity application at that address.
6. In its order denying the appellant's application, the Board made the following findings and conclusions:
1. Mr. Hackendorn admitted that he knew of the previous complaint and investigation into his professional activities.
2. The previous Board decision in that matter is res judicata, including proper service of the complaint. Therefore, as a matter of law, Mr. Hackendorn also knew that the complaint and investigation had proceeded to a full Board hearing, which he then chose not to attend.
3. The Board does not find credible Mr. Hackendorn's testimony that he had no knowledge of a sanction in the prior matter before filling out his application. He has admitted knowledge of the complaint and the investigation. He has admitted guilt of the prior allegations, and the record reflects that he admitted that guilt to the investigator at the time. He knew the Board was hearing the matter, yet claims not to have known the Board sanctioned him. The obvious conclusion from the facts in that matter is that the Board issued some sanction. He has offered no credible reason why he would not have reached that obvious conclusion on his own. That Mr. Hackendorn, perhaps, did not open the envelope containing the Board's decison and order in that matter, does not count.
4. The Board, therefore, finds that Mr. Hackendorn knowingly provided false information on his application for licensure in violation of the licensure requirements in 24 Del. C. § 1409.
7. "Knowingly" providing false information requires that the person must have done so consciously and deliberately. While the court is not permitted to substitute its judgment for that of the Board merely because the court disagrees with the conclusion, the court must be able to find substantial evidence in the record, as that standard is defined above, to support a conclusion that the appellant knowingly, i.e. consciously and deliberately, gave a false answer.
Black's Law Dictionary defines knowing as "deliberate; conscious." BLACK'S LAW DICTIONARY (8th ed. 2004).
8. Here, although the appellant was aware in the fall of 2001 that he was being investigated by the Board, there is not evidence sufficient to establish that he had an actual awareness of the outcome of that investigation or the resulting reprimand at the time he filled out his reciprocity application.
9. The notice of hearing mailed to the appellant at his 6 Horseshoe Court address was sent registered mail, but there was apparently no return receipt associated with it, and there is no evidence to show who actually received the correspondence when it arrived at that address, or what he or she did with it.
There is no mention of a return receipt in the record.
10. There is a rebuttable presumption that properly addressed mail is received by the addressee. In addition, mere denial of receipt is insufficient to rebut the presumption. Here, however, the appellant's explanation for why he did not receive the correspondence went beyond mere denial. He offered an explanation which, if believed, would rebut the presumption. The Board contends that it did not find the appellant's testimony to be credible. The Board is, of course, permitted to make that determination and to reject the appellant's testimony as not credible. However, "if the Board chooses to discount the testimony of a witness based on credibility, it must provide specific, relevant reasons for doing so." Here, why the Board refused to believe the appellant's testimony that he had moved without leaving a forwarding address, and did not receive the notice, is not addressed or explained.
Johnson v. Performance Staffing, 2004 Del. Super. 238, at * 2; Schneider v. State Farm Mut. Auto. Ins. Co., 2002 Del. LEXIS 796, at *3.
Johnson, 2004 Del. Super. 238, at * 2; Schneider, 2002 Del. LEXIS 796, at *3.
Nanticoke Homes v. Miller, 2003 Del. Super. LEXIS 333, at *7 (quoting Turbitt v. Blue Hen Lines, Inc., 711 A.2d 1214, 1215) (internal quotation marks omitted).
11. In addition, some of the Board's findings make judgments about the appellant's state of mind which, whether true or untrue, go beyond what can be fairly inferred from the evidence, regardless of one's view of the appellant's credibility. Specifically, the Board's finding that the appellant "chose" not to attend the administrative hearing, and that he should "obviously" have known the outcome of the hearing, if he knew of the hearing, are characterizations which are argumentative rather than factual.
10. The Board concluded that the appellant admitted his guilt to the allegations. However, I find nothing in the record to support the conclusion that the appellant "admitted guilt."
11. For the foregoing reasons, I conclude that Board's finding that the appellant acted knowingly is not supported by substantial evidence. The Board's order is reversed and the matter is remanded further proceedings consistent with this order. I express no opinion as to whether the appellant should or should not be granted or denied an electrician's license.
IT IS SO ORDERED.