Find Legal Information

Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

GARRY FOURRE, LICENSED ON-SITE                                   No.  41614-0-II
TREATMENT DESIGNER,

                             Appellant,

       v.

BOARD OF ENGINEERS AND LAND                                UNPUBLISHED OPINION
SURVEYORS OF THE WASHINGTON 
STATE BOARD OF LICENSING,

                             Respondent.

       Johanson, J.  --  Garry Fourre appeals from a final administrative order revoking his 

professional license.  Fourre argues that the Board of Registration for Professional Engineers and 

Land Surveyors (Board) (1) failed to give adequate notice of the charges against him, thereby 

violating his due process rights; (2) based its final order on a void original order; (3) arbitrarily 

and capriciously revoked his license; and (4) failed to support its findings with substantial 

evidence.  We hold that the Board gave Fourre both adequate notice and hearing, the original 

order was valid, the Board acted honestly on due consideration, and that substantial evidence 

supports the Board's findings of fact.  Accordingly, we affirm the Board's license revocation 

order.

                                            FACTS

       Gary Fourre was a licensed on-site wastewater treatment designer residing and practicing 

in Thurston County.  The Board regulates licensed on-site treatment designers in the State of  

No. 41614-0-II

Washington.  In June 2005, the Thurston County Department of Environmental Health (Health 

Department) filed a formal complaint letter with the Board, sending a copy of the complaint letter 

to Fourre.  The Health Department informed the Board that it was filing the complaint after three 

attempts to resolve issues with Fourre.  The complaint letter stated that in his proposals, Fourre 

consistently failed to provide adequate and accurate information regarding a variety of significant 

facts such as soil type, existing sewer lines, and compliance with local codes.  The complaint letter 

detailed specific problems on four different proposed building sites.  The complaint letter 

emphasized:

       The issues identified are not "minor" professional disagreements.  They are related 
       to incomplete and inaccurate proposals      that do not    provide the necessary 
       information needed to review proposals in a timely manner.

Clerk's Papers (CP) at 93 (emphasis added).

       In response to the Health Department's complaint letter, the Board served Fourre with a 

statement of charges in May 2007, informing Fourre that if proven, the charges constituted 

professional misconduct contrary to WAC 196-33-200(1)(b), (2) and to RCW 18.235.130(4) and 

(11).  The statement of charges included the text of the applicable statutes and regulation, and it 

also informed Fourre that he could request a formal hearing on the allegations.  Fourre timely 

requested a hearing. 

       At an October 2008 hearing, the Board admitted several exhibits and heard testimony 

from four witnesses, including Fourre, who appeared pro se.  On February 13, 2009, the Board 

issued an order with findings of fact and conclusions of law (February 13 order).  The Board 

found in favor of Fourre on several of the charges.  But the Board also found that:

              Clear cogent and convincing evidence on Cases Nos. 1, 2 and 3 establishes 

                                               2 

No. 41614-0-II

       Respondent consistently failed at the outset to provide adequate information to 
       support his designs and, as such, failed to meet the expectation of his profession 
       contained in WAC 196-33-200(1) "to apply the skills diligence and judgment 
       required by the professional standard of care."

CP at 30.

       The February 13 order stated that (1) Fourre must  submit a list       of proposed peer 

reviewers to the Board within 30 days; and (2) after approval of peer reviewer(s), he must submit 

five peer-approved future designs to the Board, with three of the future designs to be located in 

Thurston County; and (3) in the event that Fourre could not satisfy the above terms within the 

time frames ordered, he should write Deputy Executive Director Robert Fuller and he would 

receive a written response accepting or denying his request for accommodation.  This order also 

provided that, should Fourre disagree with the written response, the Board's presiding officer 

would review his request and the staff member's decision.  Further, the order stated that under 

RCW 34.05.470, Fourre may request reconsideration in writing, provided that the Board actually 

receives it within 10 days, and that the Board "is deemed to have denied" the reconsideration 

petition if, within 20 days, it neither disposes of the petition nor serves written notice specifying 

when it will act.  Administrative Record (AR) at 22.
       On February 26, Fourre requested the Board to reconsider1 the February 13 order.  The 

1 The February 13 order separately provided for "accommodation"           and  "reconsideration"
requests.  See AR at 20 (§ 4.11), 21-22.  This is significant because the order stated that the 
Board must respond, in writing, to accommodation requests and made no corresponding 
provision for reconsideration requests.  Fourre characterizes this letter as an "attempt[] to work 
with the Board" implying that it was an accommodation request.  Br. of Appellant at 6.  But we 
reject this characterization because the subject heading of Fourre's letter states, "Reconsideration 
of Final Order-Board" and the letter begins by expressly stating, "I request reconsideration of the 
final order." CP at 35.
                                               3 

No. 41614-0-II

Board denied Fourre's reconsideration request.2 Fourre did not submit a list of peer reviewers to 

the Board within the order's 30-day time frame.  

       On May 22, Fourre submitted a letter to the Board with the subject heading "Motion for 

Modification of imposed conditions based upon Conflict of Interests and Failure to identify a 

willing peer reviewer."3 CP at 39.  In it, he told the Board that the order's requirement created a 

"conflict of interest" because any professional qualified to be his peer reviewer would also be his 

competitor and that he was unable to find a willing qualified peer reviewer.  CP at 39.

       On June 1, Deputy Executive Director Fuller responded to Fourre by letter with the 

subject line "Request to modify Final Order," stating that Fuller had attempted to reach Fourre, 

without success, and requested Fourre to contact him.  AR at 6.  Receiving no response, Fuller 

again wrote to Fourre on July 21, expressly informing Fourre that the Board had  denied his 

reconsideration motion in March, and requesting that Fourre contact him.  Fourre telephoned 

Fuller in late August or early September.4  

2 The record merely states that the Board denied his request; it does not indicate that the Board 
responded to Fourre's letter.  But the order informed Fourre that if the Board did not act on his 
reconsideration motion within 20 days, the Board was "deemed"              to have denied his 
reconsideration motion.  AR at 22; RCW 34.05.470(3); see n.1 supra.

3 Fourre also characterizes this letter as a "request for accommodation." Br. of Appellant at 7.  
The Board characterizes this letter as an untimely reconsideration motion.  Even if we consider a 
request for "modification" to be equivalent to a request for "accommodation," Fourre's May 22, 
2009 request was untimely as of March 17, 2009.

4 Fourre states that he and Fuller discussed the possibility of Fourre engaging a peer reviewer 
employed by Thurston County or practicing outside of Fourre's range of practice.  The Board 
claims that during this phone call, Fuller asked Fourre to "follow up with the call" and Fourre did 
nothing.  Br. of Resp't at 6.  But the information in the record cannot verify these claims and we 
do not consider them. 
                                               4 

No. 41614-0-II

       On December 30, the Board sent Fourre a second statement of charges, informing him 

that he had failed to comply with the February 13 order and that the Board could sanction him by 

revoking his license.  Fourre requested a Brief Adjudicative Proceeding (BAP) to dispute the 

Board's decision.  The Board scheduled the BAP for March 8, 2010, and informed Fourre that 

the proceeding was a record review without oral testimony and that he could submit additional 

materials for review.  On March 25, 2010, after the BAP, the Board's presiding officer issued an 

order (BAP order), finding that (1) Fourre's objections to the February 13 order were untimely, 

(2)  Fourre did not comply with the February 13 order to identify three peer reviewers, (3) 

Fourre's objections did not excuse his failure to comply,      (4) the Board denied Fourre's 

reconsideration request, (5) the February 13 order "stands," and (6) the Board established by 

clear and convincing evidence that Fourre violated at least one time-defined term of the original 

order and had yet to comply with the other terms.  AR at 35.

       Fourre requested administrative review of the BAP order.  Fourre argued that the findings 

of fact and conclusions of law, issued as part of the February 13 order, cleared him of all of the 

charges contained in the May 7, 2007 statement of charges.  Fourre further argued that because 

the Board cleared him of those charges, the February 13 order lacked clear, cogent, and 

convincing evidence.  After reviewing Fourre's request, the Board adopted the findings of fact5

and conclusions of law from the BAP order and issued the June 4, 2010 BAP compliance order

(compliance order).  This compliance  order revoked Fourre's on-site wastewater treatment 

5 Fourre failed to assign error to these findings of fact; thus, we limit our review "to whether they 
support the conclusions of law and judgment."  In re Discipline of Brown, 94 Wn. App. 7, 13, 
972 P.2d 10, review denied, 138 Wn.2d 1010 (1999).
                                               5 

No. 41614-0-II

designer license and informed Fourre of the requirements to reapply for that license.

       Fourre petitioned for review of the compliance  order.  The superior  court affirmed.  

Fourre appeals.

                                               6 

No. 41614-0-II

                                          ANALYSIS

                                     I.  Standard of Review

       "In reviewing a superior court's final order on review of a Board decision, an appellate 

court applies the standards of the Administrative Procedures Act directly to the record before the 

agency, sitting in the same position as the superior court."   Honesty in Envtl. Analysis  &

Legislation (HEAL) v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 96 Wn. App. 522, 526, 

979 P.2d 864 (1999).  We review the Board's legal determinations using the APA's "error of 

law" standard, which allows us to substitute our view of the law for that of the Board.  Verizon 

Nw., Inc. v. Emp't    Sec. Dep't, 164 Wn.2d 909, 915, 194 P.3d 255 (2008); see             RCW 

34.05.570(3)(d).  We review an agency's interpretation or application of the law de novo.  HEAL, 

96 Wn. App. at 526.  We give substantial weight to an agency's interpretation of the law within 

its expertise, such as regulations the agency administers.  Silverstreak, Inc. v. Dep't of Labor & 

Indus., 159 Wn.2d 868, 885, 154 P.3d 891 (2007); Dep't of Labor & Indus. v. Granger, 159 

Wn.2d 752, 764, 153 P.3d 839 (2007).

                                        II.  Due Process 

       Fourre first argues that the Board violated his due process rights by disciplining him for 

uncharged behavior that did not constitute unprofessional conduct.  Specifically, Fourre argues 

that (1) he lacked proper notice of the charges for which he received sanctions; and (2) because 

no statute or code defines the charges for which he received sanctions, he lacked notice that his 

actions constituted unprofessional conduct.  We conclude the Board did not violate Fourre's due 

process rights because (1) it charged him with failing to act within his profession's standard of 

                                               7 

No. 41614-0-II

care, in violation of WAC 196-33-200(1); (2) it provided him with notice and a full evidentiary 

hearing; and (3) it found him in violation of the profession's standard of care as charged.

       Article 1, section 3 of the Washington Constitution provides that no person shall be 

deprived of life, liberty or property without due process of law.  Wash.  Const. art. I, § 3.  

Procedural elements of this constitutional guarantee are notice, the opportunity to appear and to 

defend, before a competent tribunal in an orderly proceeding, adapted to the nature of the case.  

State v. Dolson, 138 Wn.2d 773, 776-77, 982 P.2d 100 (1999).  An agency may not revoke a 

license without due process of law.  Dolson, 138 Wn.2d at 776-77.  Due process requires that the 

agency give the license holder notice of  an opportunity to appear and to defend before the 

revocation.  Dolson, 138 Wn.2d at 777.  The notice must be "reasonably calculated to inform the 

affected party of the pending action and of the opportunity to object."  Dolson, 138 Wn.2d at 

777.

                                    A.  Ample Actual Notice

       Fourre first argues that the Board failed to give him notice that the charge of 

unprofessional conduct included failure to provide adequate information to support designs "at 

the outset." Br. of Appellant at 13.  The record shows, however that both the Health Department 

and the Board provided Fourre with ample notice that professional misconduct involved not only 

finalized designs but also proposed designs.  

       Initially, working directly with Fourre, the Health Department made three attempts to 

resolve issues involving his proposed designs, giving him preliminary notice of potential 

professional misconduct applying to design proposals.  Then, the Health Department sent a formal 

                                               8 

No. 41614-0-II

complaint letter both to the Board and to Fourre, informing Fourre that his proposed designs did 

not meet professional standards.  The formal complaint letter emphasized that Fourre's proposals 

were "incomplete and inaccurate" and "[did] not provide the necessary information needed to 

review proposals in a timely manner." CP at 93.  Further, the complaint letter informed the Board 

and Fourre:

       The time spent in writing revision letters, discussing the requirements with Mr. 
       Fourre, and discussing the cases with applicants that contact our department, is 
       costly to all involved.

CP at 93.  Next, the Board gave Fourre formal notice by providing a statement of charges, which 

included detailed information and identified the alleged professional misconduct as occurring in 

his design proposals.  Furthermore, the statement of charges informed Fourre that, if proven, the 

deficiencies outlined in the statement of charges constituted professional misconduct contrary to 

WAC 196-33-200(1)(b)(2) and RCW 18.235.130(4) and (11), and included the text of the 

applicable statutes and regulation.  The record contradicts Fourre's argument that he lacked 

proper notice that unprofessional conduct included failure to provide adequate information to 

support his proposed designs; thus, his contention fails.

       Fourre also argues that the Board acquitted him of all the charges and then, without 

notice, created a new charge out of the preamble of WAC 196-33-200(1).6     But the Board never 

acquitted Fourre of his unprofessional conduct charge.  Instead, after looking at four separate 

design proposals, the Board found in Fourre's favor concerning several specific charges (i.e.,

6 In his brief, Fourre sometimes references "WAC 296-33-200(1)" but this is not an actual section 
of the WAC.  Presumably, these are typographical errors and Fourre intended to reference WAC 
196-33-100(1) consistently.
                                               9 

No. 41614-0-II

finding that Fourre did not engage in misrepresentation, incompetence, negligence, or 

malpractice) but nevertheless found that in three of the proposed designs, Fourre consistently 

failed to meet the expectation of his profession.  Quoting the regulation on which it relied, the 

Board found that

              Clear cogent and convincing evidence on Cases Nos. 1, 2 and 3 establishes 
       Respondent consistently failed at the outset to provide adequate information to 
       support his designs and, as such, failed to meet the expectation of his profession 
       contained in WAC 196-33-200(1) "to apply the skills diligence and judgment 
       required by the professional standard of care."

CP at 30.  The Board did not acquit Fourre of all of the charges just because the Board made 

some favorable findings.  Accordingly we reject this argument.

                             B.  Board's Application of Regulation

       Next, Fourre argues that the Board's broad application of WAC 196-33-200 did not 

provide him with notice that unprofessional conduct included "failing at the outset to provide 

adequate information to support designs."  Br. of Appellant at 13.  Fourre does not explain why 

he believes the Board's oversight of wastewater designers does not include submitted design 

proposals.  We hold that the Board is uniquely suited to determine how best to apply the 

regulation and that it provided Fourre with due process.

       In analyzing Fourre's challenge to the Board's application of the regulation, we look to 

the regulatory language in WAC 196-33-200 and the rules of statutory construction.  Overlake 

Hosp. Ass'n v. Dep't of Health, 170 Wn.2d 43, 51-52, 239 P.3d 1095 (2010).  WAC 196-33-200 

provides:

       The specialized and complex knowledge required for on-site wastewater treatment
       system design makes it imperative that licensees exercise a standard of care that 
       holds paramount the protection of the health, safety, environment, property, and 

                                               10 

No. 41614-0-II

       welfare of the public.
              (1)   Licensees are expected to apply the skill, diligence and judgment 
       required by the professional standard of care, to achieve the goals and objectives 
       agreed with the client or employer, and are expected to promptly inform the client 
       or employer of progress and changes in conditions that may affect the 
       appropriateness or achievability of some or all of the goals and objectives of the 
       client or employer. Licensees are obliged to:
              . . . .
              (b) Be able to demonstrate that their final products and work plans 
              adequately consider the primary importance of protecting the safety, 
              health, property, and welfare of the general public. 
              (c) Approve or seal only documents prepared by them or under their direct 
              supervision. 
              . . . .
       (2)  Licensees shall be competent in the technology, and knowledgeable of the 
       codes, regulations, and guidelines applicable to the services they perform.
              . . . .
       (7)  Licensees shall be objective and truthful in professional documents, reports, 
       statements, or testimony.  They shall include all relevant and pertinent information 
       in such reports, statements or testimony.  They shall not knowingly falsify, 
       misrepresent or conceal a material fact in offering or providing services to a client 
       or employer.
       . . . .
       (22) Professional reports, statements, or testimony made to the public or public 
       entities shall include all relevant and pertinent information to support conclusions 
       or opinions expressed.

       Regarding  when   professional wastewater designers must support their designs, the 

regulation is ambiguous.7   Because the regulation is ambiguous, the question is whether the 

Board's interpretation is consistent with the underlying legislative policy.  See Overlake Hosp. 

Ass'n, 170 Wn.2d at 55.  The legislative policy underlying WAC 196-33-200 is "that licensees 

exercise a standard of care that holds paramount the protection of the health, safety, environment, 

property, and welfare of the public." WAC 196-33-200; RCW 43.20.050(2).

7 Neither the Board nor Fourre specifically argues that the regulation is ambiguous.  The Board 
argues that it is in the best position to interpret the regulation.  Fourre argues the regulation 
specifies many acts of professional misconduct and does not include his behavior.
                                               11 

No. 41614-0-II

       We give the Board's interpretation of ambiguous regulatory language great deference as 

the agency has expertise and insight gained from administering the regulation that we do not 

possess.  Overlake Hosp. Ass'n, 170 Wn.2d at 56.  Additionally, because this matter involves 

factual matters that are "complex, technical, and close to the heart of the agency's expertise," it is 

appropriate to give  "substantial judicial deference" to the Board's view.  Hillis v. Dep't of 

Ecology, 131 Wn.2d 373, 396, 932 P.2d 139 (1997).  Noting that the Board is in the best position 

to determine the appropriate professional standard for wastewater designers, we conclude that the 

regulation sufficiently supports the Board's interpretation that regulation includes submitted 

design proposals.  Thus, the pertinent regulations gave Fourre adequate notice that unprofessional 

conduct included failure "at the outset to provide adequate information to support his designs."  

CP at 30.

                                        C.  Valid Order

       Fourre next argues that the compliance order is void because the Board based it on the 

February 13 order, which he argues is void for violating due process.  As we discussed above, the 

Board did not violate Fourre's due process rights; thus Fourre's argument fails on the merits.  

Additionally, Fourre did not timely appeal the Board's February 13 order, which found he failed 

"to apply the skills[,] diligence and judgment required by the professional standard of care." CP 

at 30.  

       Fourre appeals the compliance order; he may not relitigate the February 13 order now.  

RAP 5.2(a); Buckner, Inc. v. Berkey Irrigation Supply, 89 Wn. App. 906, 911, 951 P.2d 338, 

review denied, 136 Wn.2d 1020 (1998).  Here, the Board gave Fourre ample notice that the 

                                               12 

No. 41614-0-II

regulation governing unprofessional conduct included the failure to provide adequate information 

supporting proposed designs.  Further, nothing about the Board's interpretation of its regulation 

deprived Fourre of notice "reasonably calculated to inform the affected party of the pending 

action and of the opportunity to object."  Dolson, 138 Wn.2d at 777. 

       In addition to ample notice, the Board provided Fourre a full evidentiary hearing, which 

despite making some favorable findings, did not acquit him of all of the charges.  Dolson, 138

Wn.2d at 776-77.  Finally, the Board did not base the compliance order on a void order.  We hold 

that the Board did not violate Fourre's due process rights.

                            III.  No Arbitrary Or Capricious Action 

       Fourre next argues that the Board arbitrarily and capriciously revoked his license because 

the revocation sanction lacked a rational connection to his alleged misconduct.  We hold that the 

Board did not arbitrarily and capriciously revoke Fourre's license.

       An agency's action is arbitrary and capricious when it is "'willful and unreasoning and 

taken without regard to the attending facts or circumstances.'"   Port of Seattle v. Pollution 

Control Hearings Bd., 151 Wn.2d 568, 589, 90 P.3d 659 (2004) (quoting Wash. Indep. Tel. 

Ass'n v. Wash. Utils. & Transp. Comm'n, 149 Wn.2d 17, 26, 65 P.3d 319 (2003)).  But an 

agency's action is not  arbitrary and capricious if the agency acted honestly and with due 

consideration.  Port of Seattle, 151 Wn.2d at 589.

       Fourre argues that the Board's sanctions are arbitrary and capricious because the Board 

revoked his license despite having dismissed the charge that his work constituted a threat to 

public health, safety, or welfare.  But Fourre's argument overlooks that the February 13 order did 

                                               13 

No. 41614-0-II

not revoke his license.  Instead, the February 13 order, which he did not appeal, merely required 

Fourre to identify three peer reviewers, obtain the Board's approval of one peer reviewer, and 

submit five peer-reviewed designs to the Board.  Fourre overlooks that the Board revoked his 

license in June 2010, only after his ongoing noncompliance with the February 13 order.

       Here, the Board revoked Fourre's license following a BAP, which allowed Fourre to 

submit additional materials for review.  Additionally, before issuing the compliance order, the 

Board performed an administrative review of the all materials.  Thus, the Board took action after 

giving Fourre "due consideration."  In re Discipline of Brown, 94 Wn. App. 7, 17, 972 P.2d 10, 

review denied, 138 Wn.2d 1010 (1999).

       We defer to the Board's determination of Fourre's professional misconduct and also to its 

determination of his sanction because both of these determinations involve administrative 

competence peculiar to the Board.  Brown, 94 Wn. App. at 16.  Fourre does not meet the "heavy 

burden" to show that the Board revoked his license as the result of willful or unreasoning action 

and we reject his argument.  Brown, 94 Wn. App. at 16.

                              IV.  Clear and Convincing Evidence 

       Fourre finally argues that clear and convincing evidence does not support the Board's 

license revocation.8   The Board responds that although substantial evidence supports its 

compliance order revoking Fourre's license, Fourre does not challenge the compliance order's 

findings of fact.  We agree with the Board.

8 Fourre confuses the burden of proof, which is clear and convincing evidence, with the standard 
of review, which is substantial evidence.  Heinmiller v. Dep't of Health, 127 Wn.2d 595, 607, 
903 P.2d 433, 909 P.2d 1293, cert. denied, 518 U.S. 1006 (1996).  But the standard is not at 
issue here because Fourre did not assign error to the findings of fact.
                                               14 

No. 41614-0-II

       When the appellant does not assign error to findings of fact, "'the findings become the 

established facts and our review must be limited to whether they support the conclusions of law 

and judgment.'"  Brown, 94 Wn. App. at 13 (quoting In re Infant Child Perry, 31 Wn. App. 268, 

269, 641 P.2d 178 (1982)).  Fourre argues that insufficient evidence supports the compliance 

order revoking his license because he attempted to work with the Board.  But this argument 

directly conflicts with the unchallenged findings of fact adopted in the June 4, 2010 compliance 

order.  Those findings include that (1) Fourre's objections to the February 13 order were 

untimely, (2) Fourre did not comply with the February 13 order to identify three peer reviewers, 

and (3) Fourre's objections did not excuse his failure to comply.  We conclude that Fourre's 

insufficient evidence argument fails.

       Accordingly, we affirm the superior court and the Board's order revoking Fourre's license 

and we deny an award of attorney fees to Fourre because he is not a prevailing party.

       A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it 

is so ordered.

                                                                   Johanson, J.
We concur:

                   Hunt, J.

                Penoyar, C.J.

                                               15