Opinion
No. 16–P–378.
12-09-2016
Brian JANCSY v. BOARD OF STATE EXAMINERS OF ELECTRICIANS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In January, 2011, licensed electrician Brian Jancsy performed residential electrical work without obtaining a permit, as required by law. As a result of that violation, and nineteen prior disciplinary proceedings against him, the board of State examiners of electricians (board) revoked Jancsy's electrician's licenses. Jancsy appealed under G.L. c. 30A, § 14. A Superior Court judge, on cross motions for judgment on the pleadings, affirmed the revocation, reasoning that there was substantial evidence supporting the board's factual findings and that the decision was not arbitrary, capricious, or an abuse of discretion. On appeal, Jancsy claims the board's summary decision was error because there were disputed issues of material fact and that revocation of his licenses was an abuse of discretion. We affirm.
Background. We summarize the undisputed facts from the administrative record. Before January of 2011, there were eight disciplinary actions against Jancsy's journeyman's license and eleven against his master electrician's license. All of these actions were settled by consent agreement and resulted in temporary suspension or revocation of the operative license. These incidents involved, inter alia, discipline for electrical work done improperly, unprofessional conduct, violations of the electrical code, failure to complete work, and failure to obtain permits.
On January 7, 2011, Jancsy began and completed the residential electrical work at issue in this case. He did not, however, notify the local wiring inspector by applying for an electrical permit within five days after commencing the work as required by law. Jancsy did not obtain the permit for the work until March 3, 2011, and the work was not inspected until March 9, 2011, more than two months after he completed the work. Prior to the inspection, the owner of the property filed a complaint with the division of professional licensure regarding the delay.
On July 22, 2011, the board ordered Jancsy to show cause why he should not be sanctioned. The order alleged that Jancsy "failed to notify the Inspector of Wires in writing upon completion of the electrical work he performed at [the property], in violation of [G.L. c. 112, § 61 ; G.L. c. 143, § 3L ; and 237 Code Mass. Regs. § 18.01(4) (2008) ]." Jancsy filed an answer and a request for an adjudicatory hearing.
On March 6, 2014, counsel for the board filed a motion for summary decision. After considering the motion and Jancsy's opposition, a hearing officer for the board concluded that it was undisputed that Jancsy did not give timely written notice or obtain a permit to conduct the electrical work, and was therefore in violation of G.L. c. 143, § 3L, and 237 Code Mass. Regs. § 18.01(4) (2008). Consequently, Jancsy was subject to discipline pursuant to G.L. c. 112, § 61.
Jancsy requested a hearing on sanctions, which was convened on June 18, 2014. Jancsy was present and represented by counsel. In a tentative decision issued on July 24, 2014, which summarized the aggravating and mitigating circumstances, the hearing officer concluded that Jancsy was subject to an appropriate sanction from the board. In a final decision and order dated December 15, 2014, the board adopted the findings of fact and conclusions of law from the tentative decision and revoked Jancsy's electrician's licenses.
Discussion. "Pursuant to G.L. c. 112, § 64, on petition, the court may revise or reverse the board's final decision where the petitioner demonstrates that the board's decision is flawed in accordance with the standards for review enumerated in G.L. c. 30A, § 14(7)." Lawless v. Board of Registration in Pharmacy, 466 Mass. 1010, 1011 (2013). "Under G.L. c. 30A, § 14(7), we may revise or revoke a decision of the board that is (1) in violation of constitutional provisions; (2) in excess of the board's authority; (3) based on an error of law; (4) unsupported by substantial evidence; or (5) arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law." Duggan v. Board of Registration in Nursing, 456 Mass. 666, 673 (2010). We give "due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it." G.L. c. 30A, § 14(7), as appearing in St.1973, c. 1114, § 3.
Under 237 Code Mass. Regs. § 18.01(4) (2008), "[a]ny licensee performing electrical installations shall comply with the uniform state electrical permit application and notification processes as set forth in M.G.L. c. 143, § 3L and the Massachusetts Electrical Code, 527 CMR 12.00." In turn, G.L. c. 143, § 3L, as appearing in St.1977, c. 64, § 1, states that "[n]o person shall install ... any electrical wiring or fixtures ... without first or within five days after commencing the work giving notice to the [local] inspector of wires." Any licensed electrician who fails to comply with the board's regulations is subject to discipline by the board, including suspension or revocation of the license. G.L. c. 112, § 61.
Here, it is undisputed that Jancsy did not provide the required notice to the inspector of wires within five days after commencing the work. He admitted that fact in his answer to the motion for summary decision. Because this material fact alone is sufficient to subject Jancsy to discipline, the hearing officer appropriately issued a summary decision. See Catlin v. Board of Registration of Architects, 414 Mass. 1, 7 (1992) (comparing summary decision standard to Mass.R.Civ.P. 56, 365 Mass. 824 [1974], and affirming board's summary decision where material facts undisputed). Thus, we see no reason to disturb the judge's conclusion that there was substantial evidence that Jancsy violated G.L. c. 143, § 3L, and 237 Code Mass. Regs. § 18.01(4) (2008).
We agree with the hearing officer's assessment that evidence of industry practice and the reason for the delayed inspection, which Jancsy claims he should have been permitted to offer at a hearing on the motion for summary decision, were mitigating factors relevant to the sanction, but did not create a genuine issue of material fact as to whether he was subject to discipline.
Furthermore, we are not persuaded that the sanction imposed by the board and affirmed by the judge was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Under G.L. c. 112, § 61, the board may "suspend, revoke or cancel any certificate, registration, license or authority issued by it," as appearing in St.1987, c. 522, § 3, whenever a license holder has "violated any law, rule or regulation of the board of registration governing the practice of the profession," inserted by St.2004, c. 450, § 2. Jancsy's failure to notify the inspector of wires within the time frame set forth in G.L. c. 143, § 3L, was a violation of that statute and also constituted a violation of 237 Code Mass. Regs. § 18.01(4) (2008). Thus, he was subject to discipline under G.L. c. 112, § 61, up to and including revocation of his license.
Jancsy appeared at the sanctions hearing with counsel and presented evidence in mitigation. He was afforded an opportunity to explain the circumstances that led to the prior disciplinary actions against him. All of this evidence was summarized in the hearing officer's tentative decision. Ultimately, after considering the tentative decision, in particular Jancsy's extensive disciplinary history, the board revoked his licenses. "The board has broad latitude in shaping appropriate sanctions in each case, and we defer to the board's expertise in making those determinations." Anusavice v. Board of Registration in Dentistry, 451 Mass. 786, 801–802 (2008). Such a determination should not be disturbed unless it represents an "abuse of discretion" by the board. Id. at 802. Jancsy has failed to show the extraordinary circumstances that would warrant our interference in the board's exercise of its discretion. See ibid.
Judgment affirmed.