Nickerson v. Reitsma

• Decision Date: 15 June 2004
• Docket Number: No. 2002-531-M.P.,2002-531-M.P.
• Citation: 853 A.2d 1202
• Parties: David NICKERSON et al. v. Jan H. REITSMA, in his capacity as Director of the Rhode Island Department of Environmental Management.
• Court: Rhode Island Supreme Court

853 A.2d 1202

David NICKERSON et al. v. Jan H. REITSMA, in his capacity as Director of the Rhode Island Department of Environmental Management.

No. 2002-531-M.P.

Supreme Court of Rhode Island.

June 15, 2004.

Raymond A. Lafazia, Esq., Providence, for Plaintiff.

Brian A. Wagner, Esq., Providence, for Defendant.

Present: WILLIAMS, C.J., FLANDERS, and GOLDBERG, JJ.

OPINION

GOLDBERG, Justice.

This case came before the Supreme Court on May 12, 2004, pursuant to a petition for certiorari filed by the petitioner, the Rhode Island Department of Environmental Management (DEM or petitioner), seeking review of a Superior Court judgment setting aside an administrative penalty assessed against respondents, David Nickerson, Michael Nickerson and Allen Nickerson (respondents). The petitioner contends that the Superior Court justice violated the Rhode Island Administrative Procedures Act (APA), G.L.1956 § 42-35-15, by entertaining new evidence in the context of an administrative appeal and abused his discretion and erred as a matter of law in setting aside the penalty despite his finding that the agency decision contained no error of law or fact. For the reasons set forth herein, we quash the judgment of the Superior Court.

Facts

In October 1994, respondents and their brother, Warren B. Nickerson, Jr. (Nickerson), took title to the subject property, which is at 190 East Main Road in Little Compton (the property). The respondents subsequently sold their interest to Nickerson in March 1997. On May 23, 2000, DEM issued a notice of violation (NOV) to Nickerson and respondents for various regulatory violations relating to the improper operation and maintenance of underground gasoline storage tanks on the property. In response, respondents requested an administrative hearing pursuant to G.L.1956 § 42-17.1-2(u)(1) and (3). Nickerson did not request an administrative hearing; consequently, he was defaulted and was not a party to that proceeding.

The administrative hearing took place on May 14, 2001. Throughout the hearing, respondents neither disputed their ownership of the property from October 1994 through March 1997, nor the alleged regulatory violations. In their defense, respondents asserted that they should not be held responsible for the alleged violations because Nickerson alone operated and maintained the property, notwithstanding their record ownership of the property.

In the meantime, on July 18, 2001, after the close of the evidence but before the hearing officer made a decision, the state filed a civil complaint against Nickerson, seeking to enforce the NOV and compel the removal of the underground storage tanks and remediation of any contamination. The final agency decision was entered on November 20, 2001, sustaining the NOV and ordering respondents to jointly and severally pay a penalty of $20,070. On December 12, 2001, respondents appealed the final decision to the Superior Court pursuant to § 42-35-15(b), and it is that administrative appeal that is now before this Court.

On June 17, 2002, over DEM's objections, the trial justice ordered that the administrative appeal be consolidated with the civil enforcement action then pending against Nickerson. The appeal and civil trial were called ready before the trial justice on August 2, 2002. After hearing oral arguments, the trial justice concluded that "the hearing officer functioned properly, [and] committed no errors of law or fact." Despite this conclusion and DEM's strenuous objections, the trial justice proceeded to hear testimony from Nickerson about efforts he made to cleanup the property after the administrative hearing had concluded. The trial justice explained that although he was limited to considering the administrative record concerning respondents' appeal, "to pretend that [the administrative appeal and the civil enforcement action] somehow have no connection with each other would be * * * the height of judicially-willed blindness." After Nickerson testified, the trial justice found the hearing officer's findings of fact to be supported by the evidence produced at the administrative hearing. Although the trial justice sustained the hearing officer's decision, he vacated the penalties assessed against respondents based upon the post-hearing cleanup efforts Nickerson made.¹

Standard of Review

It is well settled that this Court limits its review on certiorari "to examining the record to determine if an error of law has been committed." City of Providence v. S & J 351, Inc., 693 A.2d 665, 667 (R.I.1997) (per curiam) (quoting Matter of Falstaff Brewing Corp. Re: Narragansett Brewery Fire, 637 A.2d 1047, 1049 (R.I.1994)). "We do not weigh the evidence presented below, but rather inspect the record to determine if any legally competent evidence exists therein to support the findings made by the trial justice." Id.

Discussion

Although § 42-35-15 of the APA provides for review of administrative determinations, that review is circumscribed and limited to "an examination of the certified record to determine if there is any legally competent evidence therein to support the agency's decision." Barrington School Committee v. Rhode Island State Labor Relations Board, 608 A.2d 1126, 1138 (R.I.1992). "If competent evidence exists in the [certified] record * * * the court is required to uphold the agency's conclusions." Id.; see also Rhode Island Public Telecommunications Authority v. Rhode Island State Labor Relations Board, 650 A.2d 479, 485 (R.I.1994)

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"However, [the Court] may reverse, modify, or remand the agency's decision if the decision is violative of constitutional or statutory provisions, is in excess of the statutory authority of the agency, is made upon unlawful procedure, is affected by other errors of law, is

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