Construction Law Insights

JES Constr., LLC v. Bd. of Contrs., Dep't of Prof'l & Occupational Regulation, 2018 Va. App. LEXIS 361, 2018 WL 6738972 (Va. App. Dec. 26, 2018)

On February 19, 2015, JES Construction, LLC (“JES”) contracted with a homeowner to make certain foundation repairs to the home (the “Contract”). The Contract provided that JES would obtain a permit for its work. On April 23, 2015, six days into the project, the homeowner contacted JES and inquired about whether a permit was obtained. JES said that it had requested a permit, but it had not been delivered. On April 24, 2015, the homeowner learned from Henrico County that JES had not yet applied for a permit. The next day, JES applied for a permit, but the request was rejected. JES corrected the deficiency and Henrico County issued the permit on May 15, 2015.

On May 27, 2015, the County building inspector went to the property to examine the footings, but was unable to do so because JES had covered the footings with dirt. JES failed to request a footings inspection prior to burying the footings. Later JES uncovered the footings and Henrico County approved the inspection. On June 19, 2015, the homeowner filed a complaint with the Department of Professional and Occupational Regulation (“DPOR”), arguing that JES had failed to timely obtain a building permit. Following an informal fact finding (“IFF”) conference, the presiding officer found that JES had failed to obtain a building permit prior to the commencement of work, to request a footings inspection prior to covering the footing, and recommended a $1,000 fine. At a subsequent hearing, DPOR increased the fine to $5,000 and placed JES on a two-year probationary period, with the condition that another violation of 18 VAC 50-22-260(B)(33) would result in an automatic revocation of the license. On appeal, the Circuit Court affirmed the Board for Contractor’s decision. JES appealed the Circuit Court’s decision.

The Supreme Court of Virginia upheld the Circuit Court’s decision. A circuit court’s role in an appeal from an agency decision is equivalent to an appellate court’s role in an appeal from a trial court. The reviewing court may reject an agency’s findings of fact only if a reasonable mind would necessarily come to a different conclusion. The Circuit Court did not err in finding that JES waived its argument that the Board of Contractors (“Board”) failed to provide JES with the required Virginia Code § 2.2-4019(A)(iii) notice that it planned to use prior disciplinary violations in making its decision because JES attended the Board’s hearing but failed to raise the objection during such hearing. Failure to raise an argument until the appeal to the circuit court waives the argument. The Circuit Court did not err in finding that JES was not entitled to a formal hearing. Virginia Code § 2.2-4020(A) provides that a formal hearing is required when expressly provided for by statute and may be provided when not required by statute and the informal procedures fail to dispose of the case. The Board’s basic laws are found in Virginia Code §§ 54.1-1100-1114 and provide for an informal fact- finding conference. Thus, the Board was not required to provide JES with a formal hearing. Finally, there was substantial evidence in the agency’s record to support the Board’s findings because JES admitted before the Board that it had committed the violations, JES cannot take a different position on appeal, and JES cannot argue on appeal that substantial evidence to support the Board’s findings was lacking when it did not raise the issue before the Board.

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