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Pinecrest Bed and Breakfast Inn LLC v. Town of Gorham

Superior Court of Maine, Cumberland

October 25, 2016



          Thomas D. Warren, Justice

         Before the court is an appeal by PineCrest Bed and Breakfast Inn LLC from a March 24, 2016 notice of violation issued by the Gorham Fire Department. The notice of violation asserted two fire code violations, but the parties agree that only one of those - an alleged violation based on PineCrest's failure to have a commercial range hood in the inn's kitchen- is the subject of this appeal.[1]

         PineCrest's primary argument is that the notice of violation and the record do not contain findings of fact sufficient to allow meaningful judicial review.

         Review of a municipal decision under Rule 80B is for the purpose of determining whether there was an abuse of discretion, an error of law, or findings not supported by substantial evidence. E.g., Camp v. Town of Shapleigh, 2008 ME 53 ¶ 9, 943 A.2d 595, 598.[2]Substantial evidence is evidence that a reasonable mind would accept as sufficient to form a conclusion even if the evidence would also support a contrary conclusion. Sproul v. Town of Boothbay Harbor, 2000 ME 30 ¶ 8, 746 A.2d 368, 372.

         The Law Court has held that in many cases, in order to allow meaningful judicial review, the municipal agency must articulate the necessary findings of fact. E.g., Christian Fellowship & Renewal Center v. Town of Limington, 2001 ME 16 ¶¶ 12, 14-18, 769 A.2d 834. Where the municipality's findings are insufficient to apprise the reviewing court of the basis for the municipal decision and whether the decision is supported by substantial evidence, remand is appropriate. Id. ¶¶ 14-15; Wells v. Portland Yacht Club, 2001 ME 20 ¶ 10, 771 A.2d 371.

         However, there is no hard and fast rule that when agencies have failed to articulate findings of fact, the case must be remanded. Christian Fellowship, 2001 ME 16 ¶ 19. In some cases the subsidiary facts may be obvious or easily inferred from the record and the general factual findings, and remand is unnecessary. Wells v. Portland Yacht Club, 2001 ME 20 ¶ 10; Christian Fellowship, 2001 ME 16 ¶ 19.

         In this case the notice of violation states only:

A commercial hood with built in fire suppression system is required in your kitchen as the kitchen is being used in your off-site catering business; this is required by the Life Safety Code 101 and NFPA 96 Standards for Commercial Cooking Operations ....

(R. 14).

         This notice sets forth only the most cursory findings of fact and does not set forth the specific sections of the Fire Code that are alleged to be violated. Accordingly, a remand is required unless the necessary facts can be inferred from the record and are essentially uncontested.

         In fact, the necessary facts can readily be inferred from the record. First, although the Fire Code and NFPA Standard 96 - the standard applicable to commercial cooking equipment - do not define "commercial, " the ordinary meaning of commercial means used in commerce. The record establishes it is not disputed that PineCrest is using its cooking equipment in commerce.

         PineCrest's complaint alleges that the bed and breakfast operates with seven guest rooms and houses a restaurant that can accommodate a maximum of 20 guests and serves 8 or 9 guests per night on average. Complaint ¶¶ 14-15. PineCrest's complaint also alleges that the Inn has provided catering services for small on-site and off-site events. Id. ¶ 17.

         In its brief PineCrest asserts that "as a practical matter, the restaurant was closed as of October 2015." PineCrest Br. 2. This fact is not contained in the administrative record. In any event, the record demonstrates that as of the time that notice of violation was issued, the Town had informed PineCrest that a commercial range hood would not be required if all PineCrest was doing was providing a continental breakfast to overnight guests. (Supp. R. 111).[3] However, PineCrest objected, stating that if only continental breakfasts were allowed, "Have you any idea what that would cost in terms of lost revenue?" (Supp. R. 108). PineCrest's emails also object to the imposition of commercial cooking requirements based on the claim that they were not being applied to home catering businesses. (Supp. R. 110). When PineCrest complains that "you cannot strip away the revenue source of a business" (Supp. R. 110), it is acknowledging that it is using its kitchen for commercial purposes.

         Second, some or all of the specific code provisions at issue are identified in an October 15, 2015 response from PineCrest to the Fire Department's initial report, which contained a long list of potential violations, many of which on the list were eventually corrected or otherwise resolved. PineCrest's October 15, 2015 response (R. 10-13) ...

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