Sasa Brothers, Inc. v. State of Rhode Island Contractors' Registration and Licensing Board, 052220 RISUP, PC-2016-5687
|Docket Nº:||C. A. PC-2016-5687|
|Opinion Judge:||K. RODGERS, J.|
|Party Name:||SASA BROTHERS, INC. and BACHAR SASA v. STATE OF RHODE ISLAND CONTRACTORS' REGISTRATION AND LICENSING BOARD and GEORGE W. WHALEN, in his capacity as Executive Director of the CONTRACTORS' REGISTRATION AND LICENSING BOARD|
|Attorney:||For Plaintiff: Stacy K. Hurley, Esq. For Defendant: Mariana Ormonde, Esq.|
|Case Date:||May 22, 2020|
|Court:||Superior Court of Rhode Island|
For Plaintiff: Stacy K. Hurley, Esq.
For Defendant: Mariana Ormonde, Esq.
K. RODGERS, J.
Sasa Brothers, Inc.1 (Sasa Brothers) and Bachar Sasa (Sasa and collectively, Appellants) appeal from a Final Order of the State of Rhode Island Contractors' Registration and Licensing Board (the CRLB or the Board) ordering the suspension of Appellants' contractors' license until certain amounts owed pursuant to a Rhode Island Department of Labor and Training (RIDLT) decision are satisfied. Appellants challenge the Final Order based upon receiving insufficient notice of the hearing, the election of remedies doctrine, and improper individual liability imposed upon Sasa.
Jurisdiction is pursuant to G.L. 1956 § 42-35-15. For the reasons set forth herein, the Board's Final Order is affirmed.
Facts and Travel
The facts that precipitated the penalties imposed by RIDLT are uncontested. In January 2012, E. Patrick Luther (Luther), an investigator with RIDLT, conducted an investigation into a jobsite at Matunuck State Beach. Sasa Brothers was a subcontractor at that jobsite. Luther learned that an employee of Sasa Brothers was performing plumbing services without a license.2 Additionally, Luther spoke to other employees of Sasa Brothers and had reason to believe that they were not being paid the prevailing wage, which is required for services performed on a public works project such as that taking place at Matunuck State Beach. Thereafter, on February 7, 2012, Luther filed a prevailing wage complaint in the RIDLT against Sasa Brothers.
A hearing pursuant to G.L. 1956 § 37-13-14.1 was scheduled for May 22, 2013 before a hearing officer for the Division of Professional Regulations within the RIDLT. Sasa, the president of Sasa Brothers, appeared at that hearing and requested a continuance in order to engage counsel. The continuance was granted, and the matter was rescheduled to June 26, 2013, with notice issued on May 24, 2013. No one appeared on behalf of Sasa Brothers on June 26, 2013, notwithstanding the notice provided. The hearing took place in the absence of any agent or representative of Sasa Brothers.
Following the testimony of Luther and Mark Ryan (Ryan), an investigator in the Prevailing Wage Unit, the hearing officer found that Sasa Brothers provided plumbing services at the Matunuck State Beach Pavilion pursuant to a contract agreement valued over $1000.00; that the work project required the payment of prevailing wages to employees; and that Sasa Brothers willfully failed to pay its employees prevailing wages in violation of Title 37, Chapter 13 of the Rhode Island General Laws. Certified R., at 40.3 Based upon these findings of fact, and in a Decision and Order dated July 1, 2013 (the RIDLT Decision and Order), Sasa Brothers was ordered as follows: (1) to pay prevailing wages plus interest to six employees totaling $13, 564.28; (2) to pay a civil penalty three times the wage due penalty, or $40, 692.84; and (3) to be ineligible to bid on or perform work on any public projects for three years. Id.
The July 1, 2013 RIDLT Decision and Order was mailed on that same day to Sasa Brothers at 36 Hopkins Avenue in Johnston, along with notice of the appeal process pursuant to § 37-13-15. Certified R., at 41. No appeal was taken. On February 13, 2015, Joseph R. Degnan (Degnan), the Assistant Director of RIDLT, sent a "Final Notice" to Sasa Brothers by certified mail at 36 Hopkins Avenue, Johnston, advising that if the penalty of $40, 692.84 and the back wages of $13, 564.28 were not paid within fifteen days, the matter would be referred to a collection agency and to the CRLB, which may revoke, suspend, or refuse to issue, reinstate or reissue a certificate of registration. Certified R., at 43. When no response or payment was forthcoming, on March 20, 2015, Degnan forwarded notice to the CRLB, in accordance with G.L. 1956 §§ 5-65-10(a)(19) and 28-14-19(g), of Sasa Brothers' prevailing wage violation and its failure to remit monies owed pursuant to the RIDLT Decision and Order. Certified R., at 44. The information provided to the CRLB listed two Johnston addresses for Sasa Brothers: 36 Hopkins Avenue as the "Owner HOME Address" and 20 Scituate Avenue as the "BUSINESS Address." Certified R., at 45.
On March 26, 2015, CRLB Executive Director Whelan, mailed written notice to Sasa Brothers and its representative, Sasa, at 36 Hopkins Avenue, Johnston. Certified R., at 52. That notice provided as follows: "There is a violation against the contractor's registration.
"Failure to respond will result in the imposition of a Civil Penalty not to exceed $10, 000.00.
"This action may be contested by requesting a hearing in writing before the Contractors' Registration and Licensing Board or its representative under the authority of Rhode Island General Law Chapter 65, Title 5, within 20 days of this order. If no hearing request is received, the Contractors' Board will issue a Default Final Order in the amount proposed above." Id.
On April 1, 2015, Sasa appeared in person at the CRLB office to discuss the violation and request a hearing. Certified R., at 15. An undated document entitled "History Sheet -Enforcement" contains handwritten notes that reflect that the 36 Hopkins Avenue address "came from the violations screen" and that 20 Scituate Avenue is the "new address per Master Green." Certified R., at 16. That document also includes the handwritten name and telephone number of Appellants' counsel herein. Id.
By way of written notice dated and mailed on April 2, 2015, the hearing Sasa requested was scheduled for April 9, 2015 to determine if the registrant, or those required to be registered, violated §§ 5-65-10(a)(19) and 28-14-19(g). Certified R., at 51. That notice was mailed to Sasa, d/b/a Sasa Brothers Inc. at 20 Scituate Avenue, Johnston. Id. The notice stated that failure to appear at the hearing could result in a ruling against that party and that, pursuant to § 5-65-10, one's registration may also be revoked or suspended, and fines may be imposed. Id.
No one appeared at the April 9, 2015 hearing on behalf of Sasa or Sasa Brothers. Like the June 26, 2013 hearing before the RIDLT Division of Professional Regulations, the April 9, 2015 hearing proceeded in the absence of Appellants. After hearing from Ryan, his superior Lisa Toricchi, and Degnan, the hearing officer issued a Proposed Default Order on May 5, 2015, which was mailed to Sasa on that same day at 36 Hopkins Avenue, Johnston. Certified R., at 31. In addition to reciting the travel of the case before the RIDLT, the CRLB hearing officer found that the parties were properly notified of the April 9, 2015 hearing as notice was sent to the contractor at the last known address on the CRLB's record in accordance with § 5-65-6, and that the respondent is a contractor who is registered or is required to be registered with the CRLB pursuant to § 5-65-3. Certified R., at 34. The hearing officer then found that Sasa Brothers was found to have violated § 37-13-1 and was ordered to pay back wages and a penalty in the RIDLT Decision and Order, which monetary amounts have not been paid, thus triggering § 5-65-10(a)(19) which allows the contractor's registration to be revoked or suspended for failing to comply with the RIDLT Decision and Order. Id. The Proposed Order provides: "The RESPONDENT, Sasa Brothers, Inc...
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