Town of Ogunquit v. Dept. of Public Safety
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME   47
Docket:	Cum-00-498
Argued:	February 14, 2001
Decided:	March 12, 2001	

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.

TOWN OF OGUNQUIT

v.

DEPARTMENT OF PUBLIC SAFETY et al.

CLIFFORD, J.

	[¶1]  The Town of Ogunquit appeals from the judgment of dismissal
entered in the Administrative Court (Beaudoin, J.) in favor of the
Department of Public Safety, Bureau of Liquor Enforcement, and 13 Main
Street, Inc., d/b/a The Club, in the Town's appeal from a decision of the
Bureau granting a liquor license to The Club.  The Town contends that its
failure to serve the parties by certified mail within thirty days of the decision
of the Bureau was not jurisdictional and did not prejudice the Bureau or The
Club, and, therefore, was an insufficient ground on which to base a dismissal. 
We agree with the Town and vacate the judgment.
	[¶2]  In February of 2000, The Club, a restaurant and dance club, filed
an application for a renewal and an expansion of the scope of its liquor
license with the Town of Ogunquit.  The Selectman denied The Club's
application with regard to the newly constructed deck area, but granted a
license for the remaining establishment.  The Club appealed to the Bureau of
Liquor Enforcement and on June 5, 2000, the Bureau determined that the
Town's denial of the Club's license was without justifiable cause and granted
the license.  See 28-A M.R.S.A. § 653(3)(B) (Supp. 2000).  Pursuant to
section 653(5),{1} the Town timely filed an appeal with the Administrative
Court{2} to vacate the decision of the Bureau on July 5, 2000, and sent copies
of the petition by regular mail to the Attorney General, The Club, and the
Bureau.{3}
	[¶3]  Pursuant to section 11005 of the Administrative Procedure Act
(APA),{4} the Bureau entered its appearance with the Administrative Court on
July 18, 2000, and The Club entered its appearance on July 24, 2000.  The
Club moved the court to dismiss the Town's petition for review because the
Town did not serve the petition on The Club by certified mail as required by
5 M.R.S.A. § 11003.{5}
	[¶4]  The Town then forwarded copies of the petition for review to
The Club and the Bureau, by certified mail, twenty-one days after it filed the
petition.  The Bureau received its copy of the certified mail on
August 2, 2000.  The court granted the motions to dismiss the petition filed
by the Bureau and The Club based on the Town's failure to comply with
service of process requirements set forth in 5 M.R.S.A. § 11003.  The Town
appealed the dismissal to this Court pursuant to 5 M.R.S.A. § 11008 (1989)
and M. Admin. C.R. 80C.

I.

	[¶5]  The Town contends that the Administrative Court, in dismissing
the Town's appeal, failed to exercise its discretion because it concluded that
the failure of the Town to serve the petition by certified mail concurrently
with the filing of the petition deprived the court of jurisdiction to hear the
Town's appeal.
	[¶6]  The License Application Procedure Act makes it clear that a
party must appeal a decision of the Bureau to the Administrative Court
within thirty days of the decision by the Bureau.  28-A M.R.S.A. § 653
(Supp. 2000).  Pursuant to the APA, a party seeking review of an
administrative decision must serve the other parties by certified mail. 
5 M.R.S.A. § 11003 (1989).  The Bureau is obligated to file with the court a
copy of the record under review within thirty days after the petition is filed. 
Other participating parties must file with the reviewing court a written
appearance within twenty days after the petition is filed with the court. 
5 M.R.S.A. § 11005 (1989).  Here the Town filed the petition with the
Administrative Court within thirty days of the decision of the Bureau, and
served the parties within that time by regular mail.  Service of the petition
by certified mail, however, was not made until more than thirty days
following the Bureau's decision.
	[¶7]  We review a trial court's interpretation of a statute directly for
error of law and look to the plain meaning of statutory language to "give
effect to the legislative intent."  Koch Ref. Co. v. State Tax Assessor,
1999 ME 35, ¶ 4, 724 A.2d 1251, 1252-53.  We consider the statutory
scheme as a whole to achieve a "harmonious result," and avoid a statutory
construction that creates absurd, illogical, or inconsistent results.  Id.; see
also Fairchild Semiconductor Corp. v. State Tax Assessor, 1999 ME 170,    
¶ 7, 740 A.2d 584, 587.  The language of the APA does not explicitly provide
a time period during which a party must be served by a petitioner.              
5 M.R.S.A. §§ 11003, 11005 (1989).
	[¶8]  The Town contends that it had ninety days to effect service on
the parties and the Attorney General.  Rule 3 of the Maine Rule of Civil
Procedure provides in pertinent part:  "Except as otherwise provided in
these rules, [when] a civil action is commenced by filing a complaint with
the court . . . the return of service shall be filed with the court within 90
days after the filing of the complaint . . . ."  M.R. Civ. P. 3.  Although Rule 3
lends support to the Town's contention, a reading of the entire statutory
scheme leads us to conclude that service of the petition should be served
within the time that the petition must be filed.  28-A M.R.S.A. § 653(5)
(Supp. 2000).  Because an agency must file a record within thirty days of the
petition filing, and interested parties must file their appearance within
twenty days of the filing of the petition, a reading of all of the applicable
statutes suggests that service on a party must be made within the same time
the petition must be filed.  See State v. Maizeroi, 2000 ME 187, ¶ 14, 760
A.2d 638, 643 (looking at other indicia of legislative intent to determine
purpose of legislation).
	[¶9]  Nevertheless, in the circumstances of this case, the Town's
failure to serve The Club and the Bureau by certified mail within thirty days
does not deprive the Administrative Court of its jurisdiction, and does not
require the court to dismiss the Town's petition.
	[¶10]  Failure to serve a defendant in a timely manner may prevent a
court from having personal jurisdiction over that defendant.  Fries v.
Carpenter, 567 A.2d 437, 439 (Me. 1989).  Excessive or unreasonable delay
in service of process may be grounds for dismissal unless shown to be a
result of mistake or excusable neglect.  Dalot v. Smith, 551 A.2d 448, 449
(Me. 1988); see also Thomas v. Thompson, 653 A.2d 417, 420 n.2
(Me. 1995).
	[¶11]  The purpose of timely service is to provide a court with
assurance that the party being served has adequate notice and will not be
prejudiced by having to defend a stale claim.  Jackson v. Borkowski,        
627 A.2d 1010, 1012-13 (Me. 1993) (finding failure to effect service ninety-
two days after complaint filed not excessive nor unreasonable and plaintiffs
made good faith attempt to comply); see also Baker's Table, Inc. v. City of
Portland, 2000 ME 7, ¶ 18, 743 A.2d 237, 243 (considering purpose of rule
to determine if court acted within discretion when it dismissed without
comment).  "A defect in service of process does not automatically create the
type of prejudice requiring dismissal." Jackson, 627 A.2d at 1012-13
(acknowledging court discretion to allow amendment to process or proof of
service unless clear prejudice to substantial rights of party against whom
process served).  A technical violation of a statutorily prescribed manner to
give notice is not fatal when it does not prejudice the party receiving the
notice, and a court may disregard nonprejudicial failure to comply strictly
with notice requirements.  Darling v. Augusta Mental Health Inst., 535 A.2d
421, 426-27 (Me. 1987) (finding failure of doctor to personally sign
certified mail receipt not grounds to declare that plaintiff did not meet
notice requirements); see also Jackson, 627 A.2d at 1013 (declaring self-
evident that failure to make proof of service has no affect on validity of
service).
	[¶12]  In Southridge v. Bd. of Envtl. Prot., 655 A.2d 345 (Me. 1995),
we affirmed the denial of a motion to dismiss a petition for review and failed
to find prejudice to the party, even though the petitioner did not name all
interested parties in the appeal, because the petition contained all
statutorily mandated information, the petitioner sent a copy of the petition
to the party's agent, and the agent was allowed to intervene.  Southridge,
655 A.2d at 347.  We also found no prejudice against a party when the
party's agency, but not the party individually, was named in a complaint, the
party retained counsel, appeared before the court, and answered the
plaintiff's complaint.  Jackson,  627 A.2d at 1014.
	[¶13]  Here, although service by certified mail was not made on The
Club or the Bureau within what we now conclude to be the required time,
there was no actual prejudice to the Bureau or The Club.  They received
copies of the petition by regular mail and had adequate notice.  They both
filed timely letters of appearance and motions to dismiss.  Moreover, the
action taken by the Town to resend the notices by certified mail was
reasonably calculated to provide notice to the Bureau and The Club.  See Roy
v. Buckley, 1997 ME 155, ¶ 12, 698 A.2d 497, 502.  
	[¶14]  In view of the prompt action taken by the Town, and the lack of
prejudice to the parties, the court erred in granting the motion to dismiss
for failure to serve the petition by certified mail at the same time it filed the
petition.{6}

II.

	[¶15]  In its brief to us, The Club contends that the Town waived its
right to have the case heard on its merits because it did not brief to this
Court the underlying substantive issues as to the merits of the granting of
the license.  We have never held in an appeal such as this, from a trial court
based on a procedural issue, that the appellant is required to address the
underlying substantive merits of the case when those merits were not
addressed by the trial court.  The issue in this appeal is procedural only, and
the Town's appeal does not fail because it does not address the underlying
merits of the Bureau's grant of the license to The Club.

	The entry is:
Judgment vacated.  Remanded to the
Administrative Court for further proceedings
consistent with this opinion.{7}

Attorneys for plaintiff:

Roy T. Pierce, Esq., (orally)
Jeffrey T. Edwards, Esq.
Geoffrey K. Cummings, Esq.
Preti, Flaherty, Beliveau, Pachios & Haley, LLC
P O Box 9546
Portland, ME 04112-9546

Attorneys for defendants:

John C. Bannon, Esq., (orally)
Murray Plumb & Murray
P O Box 9785
Portland, ME 04112-9785
(for 13 Main Street, Inc.)

G. Steven Rowe, Attorney General
Michelle Robert, Asst. Attorney General, (orally)
6 State House Station
Augusta, ME 04333-0006
(for Dept. of Public Safety)

FOOTNOTES******************************** {1} . The License Application Procedure Act allows for an independent right of appeal from a ruling of the Bureau and reads in pertinent part: Any person or governmental entity aggrieved by a bureau decision under this section may appeal the decision to the Administrative Court within 30 days of receipt of the written decision of the bureau. 28-A M.R.S.A. § 653(5) (Supp. 2000). {2} . As of March 15, 2001, the Administrative Court is abolished and its jurisdiction assumed by the District Court. 28-A M.R.S.A. § 653(5) (Supp. 2000). {3} . The Bureau indicated in its motion to dismiss that the Department of the Attorney General received a copy of its petition on July 5, 2000. At oral argument, the Bureau acknowledged that it received the petition sent by regular mail. {4} . The Administrative Procedures Act provides: The agency shall file in the reviewing court within 30 days after the petition for review is filed, or within such shorter or longer time as the court may allow on motion, the original or a certified copy of the complete record of the proceedings under review. Within 20 days after the petition for review is filed, all parties to the agency proceeding who wish to participate in the review shall file a written appearance which shall state a position with respect to affirmance, vacation, reversal or modification of the decision under review. 5 M.R.S.A. § 11005 (1989). {5} . "The petition for review shall be served by certified mail, return receipt requested, upon: A. The agency; B. All parties to the agency proceeding; and C. The Attorney General." 5 M.R.S.A. § 11003 (1989). "Service by mail shall be complete when the registered or certified mail is delivered and the return receipt signed . . . ." M. Admin. C.R. 4(b). {6} . Because we conclude that the Town's petition was improperly dismissed, we do not address the Town's contention that the Bureau did not provide adequate notice concerning the manner and time frame for making service. {7} . Because the Administrative Court is abolished as of March 15, 2001, see supra note 2, this case will be processed in the District Court on remand.