DCK Pacific Guam LLC v. Ordonez
Opinion
1 IN THE SUPERIOR COURT OF GUAM 2 >
~.- r ~- ;:: ,_ I 1 c~ ! .. .. \ OF caUR BY 3 DCK PACIFIC GUAM LLC, ) Special Proceedings Case No. ) SPOl18-09 4 Petitioner, ) v. ) 5 ) EDUARDO R. ORDONEZ, in his capacity ) DECISION AND ORDER 6 as Executive Director ofthe Contractors ) re: Writ of Mandate License Board and RICHARD ) 7 QUIAMBAO, in his capacity as Board ) Chairman of Contractors License Board, and ) 8 the CONTRACTORS LICENSE BOARD of ) the Government of Guam, ) 9 ) Respondents. ) 10 )
11 This matter came before the Honorable Judge Michael Bordallo on October 13, 2011. 12 Petitioner was represented by Attorney Thomas McKee Tarpley. Respondents were represented 13 by Assistant Attorney General David J. Highsmith. Having reviewed the motions, memoranda and 14 record herein the court now issued the following decision and order. 15 BACKGROUND 16 On July 9, 2009, Petitioner filed an exparte verified petition for alternative writ of mandate. 17 It alleges that the Contractors License Board of the Government of Guam ("CLB") had 18 improperly issued a May 21,2009 decision and order imposing a $20,000.00 fine upon Petitioner 19 when its tank fabrication company was found to not possess a current business registration and 20 contractor's license. After the Petitioner presented evidence that a clerical error caused the non 21 registration, CLB reduced the fine from $70,000.00 to the $20,000.00 indicated in its decision. 22 On August 15,2011, the Petitioner filed an amended petition for alternative writ of mandate. 23 On August 30, 2011 the court issued a corrected alternative writ of mandate ordering the 24 Respondents to vacate the penalty assessment against Petitioner or alternately show cause for 25 noncompliance. 1 DISCUSSION
2 Pursuant to section 9240 ofthe "Administrative Adjudication Law" ("AAL"), the standard
3 of review to be applied by a trial court, upon judicial review of the agency's action, is as follows:
4 "If the agency decision is not in accordance with law or not supported by substantial evidence,
5 the court shall order the agency to take action according to law or the evidence." 5 GCA § 9240
6 (2005). The court always reviews questions oflaw de novo. Nissan Motor Corp. in Guam v. Sea
7 Star Group Inc., 2002 Guam 5 , 10. Further, the Court must weigh the record as a whole,
8 weighing both the evidence that supports and evidence that detracts from the agency's decision.
9 Lopezv. Guerrero, 882 F.Supp 952 (D. Guam App. Div. 1995) citing Baxter v. Sullivan, 923 F.2d
10 1391 (9th Cir. 1991). Additionally, the court must uphold the agency's decision where the
11 evidence is susceptible to more than one rational interpretation. Gallant v. Heckler, 753 F.2d
12 1450,1453 (9th Cir.1984).
13 The court is required to affirm the CLB' s findings of fact, and any conclusions resulting
14 therefrom, if supported by substantial evidence. Fagan v. Dell'Isola, 2006 Guam 11 , 11. This
15 is because a reviewing body "may not substitute its views for those of the [agency], but instead
16 must accept the [agency's] findings unless they are contrary to law, irrational, or unsupported by
17 substantial evidence."Id. Thus, the court must first determine whether the CLB's decision was in
18 accordance with law. 5 GCA § 9240 (2005); 22 GCA § 9122 (2005). Second, the court must
19 determine whether the CLB' s decision was supported by substantial evidence.! 5 GCA § 9240.
20 "[S]ubstantial evidence is defined as 'such relevant evidence as a reasonable mind might accept
21 as adequate to support a conclusion." Bondoc v. Worker's Comp. Comm'n, 2000 Guam 6,6.
23 24 !The court need not decide whether the CLB's decision was supported by substantial 25 evidence because the decision was not in accordance with law.
Page 2 of 4
OR\G\\'~AL 1 Whether the CLB's decision was "in accordance with the law"
2 In reviewing the CLB's decision and order, it is necessary to begin our discussion with
3 whether the decision was in accordance with the law. In doing so, the court must determine
4 whether the CLB's decision to impose a $20,000.00 fine upon Petitioner was legal. In their
5 opposition memorandum, Respondents argue that the passage ofP.L. 30-11 just a few days before
6 the initial fine increased the permissible fines. Petitioner on the other hand argues that at the time
7 it allegedly committed the offense, the rules and regulations of the CLB then in effect limited
8 fines for violations to no more than $10,000.00. Thus, the issue before the court is what rules and
9 regulations apply to the Petitioner's offense in the instant case.
10 There is a presumption against retroactive application of new laws to pending cases. In re
Ii Arrowhead Estates Dev. Co., 42 F.3d 1306, 1311 (9 th eirc. 1994). Also, "[r]etroactive legislation
12 presents problems of unfairness that are more serious than those posed by prospective legislation,
13 because it can deprive citizens of legitimate expectations and upset transaction." Gen. Motors
14 Corp. V. Romein, 503 U.S.181, 191 (1992). Elementary considerations of fairness dictate that
15 individuals should have an opportunity to know what the law is and to conform their conduct
16 accordingly; settled expectations should not be lightly disrupted. Langdrafv. USI Film Products,
17 511 U.S. 244, 265 (1994). For that reason, the "principle that the legal effect of conduct should
18 ordinarily be assessed under the law that existed when the conduct took place has timeless and
19 universal appeal." Kaiser Aluminum & Chemical Corp. V. Bonjorno, 494 U.S. 827, 850 (1990).
20 In the instant case, there is no dispute that at the time the tank fabrication company was
21 found to not possess a current business registration and contractor's license the applicable rules
22 and regulations limited fines for violations to no more than $10,000.00. Although P.L. 30-11 was
23 passed just a few days before the initial fine which increased the permissible fines, the violation
24 took place before P.L. 30-11 was passed. Thus, the conduct should have been assessed under the
25 Page 3 of 4 1 law that existed when the conduct took place because the Petitioner had the opportunity to know
2 the law at that time. Because the CLB fmed the Petitioner based on the guidelines set out in P.L.
3 . 30-11 its decision and order was not in accordance with law. 4 CONCLUSION
5 Based on the foregoing, the court finds that the CLB erred when it failed to assess the
6 violation with the applicable rules and regulations that limited fmes for violations to no more than
7 $10,000.00. Therefore, the court finds that the CLB's decision was not in "accordance with the
8 law" and orders the CLB to vacate its decision to fine the Petitioner $20,000.00. The court also
9 instructs the CLB to reassess the violation in light of Section 1.4 of the Rules and Regulations of
10 the Guam Contractors License Board then in effect.
11 12 SO ORDERED, this Jl of~ day 2012.
13 14 15 LE MICHAEL J. BORDALLO 16 17 18 19 20 21 22 23 I do hereby certify thilt the mr&;lOln\; Ie a full true ...d corraa copy of the
24 origIMI 00 file in lhe o~ of the cIsrk of1lte ~Ior Court of Guam. I)&Mci at~>
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