There is no jurisdiction to hold a hearing because the appeal of the two citations was not timely made. Respondent's Motion to Dismiss for this reason is allowed. Petitioner, the sole owner and proprietor of a business that worked on a public construction project at a library, was issued citations by OAG-FLD for failing to pay the prevailing wage to one of his workers on this project, for failing to maintain payroll records on the project, and for failing to make these records available for inspection by OAG-FLD. The record shows Petitioner was able, before the citations were issued, to communicate about the issues raised in the citations with OAG-FLD through telephone conversations. The record shows he received the citations. His claim of having been in poor health with cancer does not excuse his untimely filed appeals.
DECISION ON RESPONDENT'S MOTION TO DISMISS
Pursuant to G.L. c. 149, § 27C(b)(4), James M. Cooley, on behalf of himself and his company, Contract Floor Installations and Construction Co., Inc., filed an appeal of two civil citations issued on June 30, 2008 by the Office of the Attorney General-Fair Labor Division (OAG-FLD). The appeal of the two citations was filed on August 9, 2008 with the Division of Administrative Law Appeals (DALA), and on August 8, 2008 with the OAG-FLD. On August 29, 2008, OAG-FLD filed a Motion To Dismiss Mr. Cooley's appeal of the two citations as untimely filed. I have marked documents into evidence for purposes of deciding the Motion to Dismiss. They are listed in Attachment 1. (Exs. 1 & A - L)
FINDINGS OF FACT
Based on the documentary evidence presented and the reasonable inferences drawn therefrom, I make the following findings of fact:
1. James M. Cooley has been the owner and sole officer of Contract Flooring Installations and Construction, Inc. at all times relevant. He incorporated this business as Contract Flooring Installations Company, Inc. on March 13, 2003. (Ex. A-4)
2. Mr. Cooley entered into a public works contract and worked on the Mattapoisett, MA library. At least some of the work his company did on this public works project occurred in September and October 2007. (Exs. A, A-1, B-1, H & L.)
3. Mr. Cooley's company has also been called Contract Flooring & Tile and Contract Flooring and Construction. The address for his company, including during September and October 2007 and thereafter, is 100 Gibson Street, Dorchester, MA 02122. (Exs. A, A-1, A-4, D, H & L.)
4. On December 3, 2007, Thomas Zine, Jr. or Tom Zine, filed a complaint with OAG-FLD for non-payment of wages claiming he worked for Mr. Cooley on the Mattapoisett Library public works project during the September to October 2007 time period. (Exs. A-1, B-1, D, H & L.)
5. From December 2007 to June 2008, OAG-FLD Inspector Mario Paiva
investigated Mr. Cooley and his company regarding Mr. Zine's complaint. On February 26, 2008, Mr. Paiva called the Mattapoisett Library seeking copies of certified payroll records on the work done by Mr. Cooley's company. The same day Inspector Paiva mailed a letter to Mr. Cooley and his company at 100 Gibson Street, Dorcester, MA 02122, seeking these same payroll records. This letter was sent by regular and by certified mail. The letter sent by regular mail was not returned as undeliverable, but the certified mailing had not been claimed by the close of March 2008. (Exs. A, A-2 & A-3.)
6. Mr. Paiva received a telephone call on February 28, 2008 from the Clerk of the Works on the Mattapoisett Library project who told him he could not find any certified payroll records for Mr. Cooley's company. On March 13, 2008, Mr. Paiva researched Mr. Cooley's company in the Massachusetts Secretary of State's corporations database. He learned Mr. Cooley was the president of a company called Contract Flooring and Installations, Inc. He also found an address for Mr. Cooley at 38 Boxberry Avenue in Vineyard Haven, MA. On this same date he called telephone numbers he thought would work to reach Mr. Cooley's company, but received either a busy signal or a voice mail message saying the mailbox was full. (Exs. A & A-4.)
7. On March 16, 2008, Mr. Paiva received a fax from Mr. Cooley. In it Mr. Cooley acknowledged Mr. Paiva was seeking the certified payroll records. Then, on March 21, 2008, Mr. Paiva received a telephone message from Mr. Cooley explaining how he had been ill and unable to respond to the payroll records demand. Mr. Paiva called Mr. Cooley back but was only able to leave a voice message asking for the certified payroll records. When Mr. Paiva spoke to Mr. Cooley on the telephone on April 1, 2008, Mr. Cooley explained that his payroll records had been on a computer that was damaged and that he was trying to get it repaired to see if this data could be saved. He also said he had been in the hospital. Mr. Cooley asked for another copy of the February 26, 2008 letter that sought the payroll records, and Mr. Paiva sent it to him by fax.
(Exs. A, A-5 & A-6.)
8. Thereafter, Mr. Cooley sent Mr. Paiva a response by fax addressing the
matters raised regarding the certified payroll records. He noted he had not been well, stating that he had "over 24 trips to the hospital since last February and 50 days in the hospital." He also said he is "almost bankrupt … have not had a payroll in awhile." He further noted he had subcontractors who had not followed through on their work for him as he had planned. (Exs. A & A-5.)
9. OAG-FLD issued two civil citations to Mr. Cooley and his company on June 30, 2008. Citation #PR080045 ordered $1,313.20 in restitution for Mr. Zine for failing to pay him prevailing wages from September 17-20, 2007 as required under the Mattapoisett Library public works project. He also was given a civil penalty of $600.00 for an unintentional violation of the statute. In addition, the Citation included a civil penalty of $500.00 for unintentionally failing to submit true and accurate payroll records covering September 17 to October 20, 2007. Citation #MW080076 ordered Mr. Cooley
to pay a $500 civil penalty for unintentionally failing to furnish records for inspection on
April 4, 2008. (Exs. B, B-1 & B-2.)
10. OAG-FLD mailed the two citations by regular and certified mail to Mr. Cooley and to Contract Floor Installations and Construction Co., Inc. at 100 Gibson Street, Dorchester, MA 02122. The two citations were also mailed by regular mail to Mr. Cooley only, at 39 Boxberry Avenue, Vineyard Haven, MA 02568. These mailings were sent on June 30, 2008. The mailing sent by regular mail to 100 Gibson Street, Dorchester, MA 02122 was not returned to OAG-FLD as undeliverable, but the mailing addressed to Mr. Cooley in Vineyard Haven, MA was returned as undeliverable. The certified mailing sent to 100 Gibson Street was unclaimed as of early August 2008. (Exs. B, B-3 & B-4.)
11. On August 1, 2008, because OAG-FLD had not received an appeal of either of the citations, a Notice of Massachusetts Tax Lien against Mr. Cooley was filed with the Massachusetts Secretary of State as to the corporation and with the Dukes County Registry of Deeds as to the Vineyard Haven address. This was done under the authority of G.L. c. 149, § 27C(b)(7). (Exs. B & B-5.)
12. On August 5, 2008, Mr. Cooley signed the certified mail receipt for the
June 30, 2008 citations contained in the envelope mailed to him and to his company at
100 Gibson Street in Dorchester. (Ex. B-4)
13. Thereafter, Mr. Cooley filed appeals of the two citations with both DALA and OAG-FLD. OAG-FLD received the appeal letter by August 8, 2008. The appeal letter to DALA was postmarked August 9, 2008. (Exs. C & D)
14. In his letter of appeal covering the two citations, Mr. Cooley apologized for not responding sooner, noting he had been "in and out of the hospital for almost a year and a half and pretty much broke and out of business." He noted: "I have been diagnosed with colon cancer and that is the fight that I have taken on as of recent." He explained Mr. Zine had been paid in full by cash because Mr. Zine had no bank account and no identification to cash a check. Mr. Cooley explained that a second check was written to another person who cashed it and paid the cash to Mr. Zine. He noted that the Mattapoisett Library project job superintendent "Bill from Barr, Inc. kept records."
15. Mr. Cooley's appeals were assigned docket numbers by DALA, and the appeals of the two citations were consolidated for hearing. The parties were sent a Notice of Pre-Hearing Conference for September 15, 2008. Counsel for OAG-FLD appeared, but neither Mr. Cooley nor a representative for him appeared. As a result, DALA sent Mr. Cooley an Order to Show Cause why his appeals should not be dismissed due to his failure to appear at the pre-hearing conference. He was given until October 2, 2008 to respond in writing. (Ex. F)
16. Mr. Cooley responded in writing, but failed to provide OAG-FLD with a copy of his written response as called for by 801 CMR 1.01(5)(f). As a result, his response was returned to him with instructions to re-file it once he had provided a copy to OAG-FLD; this occurred. His reasons for not attending the pre-hearing conference were reviewed and accepted by DALA. Mr. Cooley explained how he had been ill for a long time, and either never received the Notice of Pre-Hearing Conference, or simply did not remember it. On August 29, 2008, OAG-FLD had filed a Motion to Dismiss the appeals for lack of jurisdiction because they were not timely filed. Mr. Cooley had been mailed a copy of the Motion along with the documents and legal arguments relied upon by OAG-FLD to support the Motion. This was mailed to Mr. Cooley at the 100 Gibson Street, Dorchester, MA 02122 address, by regular mail, and it was not returned to OAG-FLD as undeliverable. By order of October 31, 2008, DALA instructed Mr. Cooley that the next step in this process was to decide the Motion to Dismiss. He was given until November 12, 2008 to respond in writing to the Motion and/or to request a hearing on the Motion. He did not respond by November 12, 2008, but did by November 24, 2008. He was permitted until December 19, 2008 to respond to the Motion to Dismiss, but he was not granted a hearing on the Motion. He was warned that he would not receive further time extensions to respond to the Motion. (Exs. 1, G, H, I & J.)
17. Mr. Cooley produced a response dated December 19, 2008, but it was never received by DALA although it was received in duplicate by OAG-FLD on December 24, 2008. Once Assistant Attorney General Weber received the two copies of Mr. Cooley's response on December 29, 2008, he forwarded one copy of the response to DALA where it was received on December 31, 2008. (Exs. K & L.)
18. In his response, Mr. Cooley states that his computer was repossessed so he had to write out his response. He did not address the timeliness of his appeals of the citations, but instead addressed the merits of why they should not be imposed. He included with his response his letter to OAG-FLD of August 5, 2008 that explains how he had been in and out of the hospital over the past year and a half as well as in financial difficulties and not operating his business. He noted his medical diagnosis of cancer. (Ex. L)
19. There is detailed information on the back of each citation on how to
accomplish an appeal. Explained is the time period in which to accomplish an appeal with language highlighted that calls for an appeal to be filed within ten days of receipt of a citation, and to file the appeal with both OAG-FLD and DALA. (Exs. B-1 & B-2.)
The list of exhibits includes OAG-FLD documents as well as all of Mr. Cooley's filings to date. Mr. Cooley asserts that he has been very ill, sometimes hospitalized, and has been fighting cancer. Although he places his medical condition as occurring over the past one and one-half years, he does not specifically explain why he failed to timely appeal the citations following his receipt of them. Even accepting that there may have been hurdles to timely filing the appeals because of his illness, he did communicate with Mr. Paiva about Mr. Zine's complaint, including offering a defense before the issuance of the citations. I conclude he received the citations mailed to him at the 100 Gibson Street, Dorchester, MA 02122 address. This address appeared on all of his written responses.
Given that he received the citations in a timely manner, and in light of his understanding that OAG-FLD was investigating his payment practices at the Mattapoisett Library project, I conclude Mr. Cooley never offered any credible or sufficient reason to justify being excused from filing the appeals within the required ten-day time period. Mr. Cooley had been addressing with Mr. Paiva the certified payroll records issue and the merits of Mr. Zine's complaint of wages still owed him. Mr. Cooley was not able to provide the documentation OAG-FLD was asking for. He was aware his responses were not leading to a dismissal of the complaints against him. Therefore, I infer, Mr. Cooley knew or should have known further action would be taken against him within a relatively short time period by OAG-FLD. I conclude Mr. Cooley received the citations, knew what they were about, and either neglected to or decided not to appeal them. I find the appeal information on the back of the citations was clear and easy to understand.
Counsel for OAG-FLD cites case law to support the argument that the citations were timely received by Mr. Cooley. The evidence shows that the citations were mailed to Mr. Cooley by OAG-FLD with a good faith and diligent effort to more than one address to ensure he received them in a timely manner following their issuance. See, Commonwealth v. Koney, 42 Mass. 295, 303-304 (1995).
No evidence was provided about any particular impediments to the citations reaching Mr. Cooley at the addresses listed for him. No evidence was presented to show the U.S. Postal Service failed to attempt proper delivery in the normal course. See, Old Colony Railroad Company v. Board of Assessors of Quincy, 305 Mass. 509, 514 (1940). No evidence shows Mr. Cooley did not receive the citations within days of their mailing. 801 CMR 1.01(4)(c) contains guidance as to how long it is expected regular mail will take to be received of "three days after deposit in the U.S. mail," and that the "postmark shall be evidence of the date of mailing."
Moreover, Mr. Cooley cannot use his illness as a defense for failing to timely file the appeals in light of his communications with Mr. Paiva in the investigation of Mr. Zine's
complaint before the citations issued. As noted in Conte v. School Committee of Methuen,
4 Mass. App. Ct. 600, 605 (1976):
It is settled that the party to a transaction, whose rights are liable to be
injuriously affected by notice, cannot willfully shut his eyes to the means
to acquiring knowledge which he knows are at hand and thus escape the
consequences which would flow from the notice had it been actually received.
For these reasons, the Motion to Dismiss for Lack of Jurisdiction due to untimely filed appeals of the citations is allowed. The appeals are hereby dismissed with prejudice.
DIVISION OF ADMINISTRATIVE
Sarah H. Luick, Esq.
Exhibit 1 - August 29, 2008 filed Motion of OAG-FLD to dismiss for lack of
jurisdiction due to untimely filed appeals with legal memorandum in
support of the Motion with Exhibits A, A-1 through
A-6, B, B-1 through B-5, and C.
Exhibit A - Affidavit of OAG-FLD Inspector Mario Paiva.
Exhibit A-1 - December 3, 2007 OAG-FLD complaint of Thomas Zine, Jr. for non-
payment of wages.
Exhibit A-2 - February 26, 2008 G.L. c. 151, § 15 demand for payroll records from
Contract Flooring & Construction sent by Inspector Paiva.
Exhibit A-3 - Copy of certified mail envelope stamped unclaimed by the U.S. Postal
Service as of March 28, 2008.
Exhibit A-4 - Secretary of State database information on Contract Flooring Installations,
Exhibit A-5 - Mr. Cooley's fax response of March 16, 2008 to Inspector Pavia.
Exhibit A-6 - Mr. Pavia's fax to Mr. Cooley of the payroll demand issued February 26,
2008 and a fax activity report.
Exhibit B - Affidavit of OAG-FLD Paralegal Specialist Noreen M. Kelly.
Exhibit B-1 - Citation # PR080045 issued June 30, 2008 to Mr. Cooley and to Contract
Floor Installations and Construction Co., Inc.
Exhibit B-2 - Citation # MW080076 issued June 30, 2008 to Mr. Cooley and to Contract
Floor Installations and Construction Co., Inc.
Exhibit B-3 - Copy of envelope addressed to Mr. Cooley in Vineyard Haven, MA
received on July 8, 2008 by the OAG-FLD returned by the U.S. Postal
Service to OAG-FLD as undeliverable.
Exhibit B-4 - Mr. Cooley's signing of August 5, 2008 for the certified mail sent to him
and to Contract Flooring Installations, Inc. by OAG-FLD.
Exhibit B-5 - Copies of the August 1, 2008 filings by OAG-FLD of the
Massachusetts Tax Lien on a property in Vineyard Haven, MA of Mr.
Cooley and Contract Floor Installations and Construction Co., Inc.
Exhibit C - Acknowledgement by DALA of the filing of appeals by Mr. Cooley and
Contract Floor Installations and Construction Co., Inc. of the two
citations, the filings postmarked August 7 and 9, 2008.
Exhibit D - The two August 5, 2008 letters of appeal of the two citations along with
the envelopes the letters came in, both addressed to DALA.
Exhibit E - The affidavit of Benjamin J. Weber, Esq. of the OAG-FLD with
attachment, Exhibit A, regarding service on Mr. Cooley of the Motion
to Dismiss along with the memorandum in support that included its attached exhibits.
Exhibit F - Order to Show Cause issued to Mr. Cooley on September 18, 2008.
Exhibit G - October 2, 2008 return to Mr. Cooley of his response to the Order to Show
Cause due to a lack of service of his submission on the OAG-FLD.
Exhibit H - October 24, 2008 submission of Mr. Cooley about the Order to Show
Exhibit I - October 31, 2008 order to Mr. Cooley to respond by November 12, 2008
with a submission and/or a request for a hearing on OAG-FLD's
Motion to Dismiss.
Exhibit J - November 21, 2008 letter of Mr. Cooley to DALA explaining he needed
more time to respond, and DALA letter of December 2, 2008 to Mr.
Cooley granting him a time extension to December 19, 2008 to file his
response to the Motion to Dismiss, but not granting him the right to a
hearing on the Motion.
Exhibit K - OAG-FLD's Assistant Attorney General Benjamin J. Weber's cover letter
forwarding Mr. Cooley's response that had been due at DALA by
December 19, 2008 and explaining when and what his office received.
Exhibit L - Mr. Cooley's response dated December 19, 2008 with attachments of his
September 30, 2008 letter and his August 5, 2008 appeal letter, along with
a faint copy of a check, both its front and back side, he had previously
filed and are included in Exhibit H.