MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2018	ME	145	
Docket:	      Pen-18-89	
Submitted	
  On	Briefs:	 September	26,	2018	
Decided:	     October	30,	2018	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
	
	
                                 TOWN	OF	GLENBURN	
                                          	
                                         v.	
                                          	
                                  SIDNEY	PINKHAM	
	
	
PER	CURIAM	

	      [¶1]	 	 Sidney	 Pinkham	 appeals	 from	 a	 judgment	 entered	 by	 the	 District	

Court	 (Bangor,	 Jordan,	 J.)	 in	 favor	 of	 the	 Town	 of	 Glenburn	 on	 its	 land	 use	

violation	 complaint	 filed	 pursuant	 to	 30-A	 M.R.S.	 §	 4452	 (2017)	 and	

M.R.	Civ.	P.	80K.		Pinkham	asserts	that	the	court	violated	his	right	to	procedural	

due	process	and	abused	its	discretion	during	the	hearing	on	the	complaint	by	

(1)	 allowing	 one	 of	 the	 Town’s	 witnesses	 to	 testify	 by	 telephone,	 see	

M.R.	Civ.	P.	43;	 and	 (2)	 failing	 to	 exclude	 two	 hearsay	 statements	 on	 its	 own	

initiative.		He	further	argues	that	the	court	erred	in	not	making	explicit	findings	

addressing	the	statutory	factors	to	be	considered	in	setting	the	amount	of	the	

civil	penalty	that	it	imposed.		See	30-A	M.R.S.	§	4452(3)(E).		Because	the	record	

is	devoid	of	 any	evidence	of	one	of	the	factors	that	30-A	 M.R.S.	§	4452(3)(E)	
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requires	the	court	to	consider,	we	vacate	the	imposition	of	the	civil	penalty.		In	

all	other	respects,	including	the	award	of	attorney	fees	and	costs	pursuant	to	

30-A	M.R.S.	§	4452(3)(D),	we	affirm	the	judgment.

                                  I.		BACKGROUND	

      [¶2]		At	the	hearing	on	this	matter,	the	court	heard	testimony	from	two	

witnesses:	 the	 owner	 of	 property	 that	 abuts	 Pinkham’s,	 who	 testified	

telephonically,	 and	 the	 Town’s	 Code	 Enforcement	 Officer.	 	 In	 its	 resulting	

judgment,	 the	 court	 found	 the	 following	 facts,	“which	 are	 viewed	 in	 the	 light	

most	favorable	to	support	the	trial	court’s	judgment.”		MacMahon	v.	Tinkham,	

2015	 ME	 9,	 ¶	 4,	 109	 A.3d	 1141.	 	 Pinkham	 was	 the	 owner	 of	 property	 in	 the	

Town	from	December	22,	2016,	through	August	18,	2017.		During	that	time,	the	

mobile	home	located	on	the	property	had	plumbing	fixtures	installed	but	was	

not	connected	to	a	sewage	disposal	system.		Additionally,	the	plumbing	fixtures	

were	not	supplied	with	potable	running	water,	and	a	portable	toilet	was	used	

as	a	substitute	for	a	permanent	toilet.	

      [¶3]	 	 On	 September	 8,	 2017,	 the	 Town	 filed	 a	 land	 use	 citation	 and	

complaint	 in	 the	 District	 Court	 pursuant	 to	 30-A	 M.R.S.	 §	 4452	 and	

M.R.	Civ.	P.	80K,	 alleging	 that	 Pinkham’s	 property	 was	 in	 violation	 of	 a	

wastewater	disposal	rule	promulgated	by	the	Department	of	Health	and	Human	
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Services,	16	C.M.R.	10	144	241-22	§	4(I)	(2015),	and	sections	305	and	601	of	

the	Uniform	Plumbing	Code,	as	adopted	by	8	C.M.R.	02	395	4-1	§	1	(2016).		The	

Town	sought	a	civil	monetary	penalty	and	attorney	fees	as	well	as	an	order	from	

the	court	requiring	Pinkham	to	remove	the	violations	and	enjoining	him	from	

occupying	the	property	until	he	complied.	

       [¶4]		The	court	ordered	Pinkham	to	maintain	the	property	in	compliance	

with	 regulatory	 requirements	 by	 supplying	 the	 dwelling	 structure	 with	

pressurized	 water	 and	 with	 a	 subsurface	 wastewater	 disposal	 system,1	 and	

further	ordered	him	to	pay	a	 $23,900	civil	monetary	 penalty	 and	reasonable	

attorney	fees.	 	Pinkham	timely	filed	 a	 notice	of	appeal.		 See	14	M.R.S.	§	1901	

(2017);	M.R.	App.	P.	2A,	2B(c)(1).	

                                         II.		DISCUSSION	

       [¶5]	 	 Pinkham	 first	 contends	 that	 the	 court	 violated	 his	 right	 to	

procedural	 due	 process	 and	 abused	 its	 discretion	 during	 the	 hearing	 on	 the	

Town’s	 complaint	 by	 allowing	 one	 of	 the	 Town’s	 witnesses	 to	 testify	 by	

telephone	 and	 by	 failing	 to	 exclude	 two	 hearsay	 statements	 on	 its	 own	

initiative.		We	conclude	that	the	court	acted	within	its	discretion	and	committed	



   1		The	parties	agreed,	and	the	evidence	establishes,	that	the	violations	alleged	in	the	complaint	had	

been	fully	abated	by	late	August	2017,	shortly	before	the	Town	filed	its	land	use	complaint.	
4	

no	due	process	violation	when	it	allowed	a	witness	to	testify	by	telephone.		The	

circumstances	 necessitating	 the	 call	 constituted	 good	 cause,	 and	 the	 court	

safeguarded	 Pinkham’s	 right	 to	 cross-examine	 the	 witness,	 see	 M.R.	

Civ.	P.	43(a),	(i).	

       [¶6]		Similarly,	the	court	committed	no	error	in	not	excluding,	sua	sponte,	

testimony	 from	 the	 Town’s	 Code	 Enforcement	 Officer	 concerning	 two	

out-of-court	statements	made	by	the	witness	who	testified	telephonically.		The	

Town	 did	 not	 offer	 the	 witness’s	 prior	 statements	 for	 their	 truth,	 see	

M.R.	Evid.	801(c)(2),	 rather,	 it	 offered	 them	 (1)	 to	 authenticate	 the	 witness’s	

affidavit	as	part	of	that	witness’s	telephonic	testimony,	see	M.R.	Evid.	901(b)(1),	

and	 (2)	 to	 demonstrate	 that	 the	 witness’s	 prior	 statements	 concerning	

violations	had	the	effect	of	prompting	the	Code	Enforcement	Officer	to	inspect	

Pinkham’s	home,	see	In	re	Hope	H.,	2017	ME	198,	¶	13,	170	A.3d	813;	State	v.	

Harrigan,	662	A.2d	196,	197-98	(Me.	1995).		Furthermore,	the	statements	were	

merely	 cumulative	 of	 the	 live	 telephonic	 testimony,	 rendering	 admissibility	

harmless	even	if	the	statements	were	considered	hearsay.		See	State	v.	Witham,	

1997	 ME	77,	¶	16,	 692	 A.2d	 930	 (concluding	that	admission	of	the	witness’s	

hearsay	 statements	 was	 harmless	 error	 where	 other	 admissible	 testimony	

made	it	highly	probable	that	the	error	did	not	affect	the	verdict).	
                                                                                                              5	

        [¶7]	 	 Pinkham	 next	 argues	 that	 the	 court	 erred	 in	 not	 making	 explicit	

findings	addressing	the	statutory	factors	to	be	considered	in	setting	the	amount	

of	a	civil	penalty.		“On	review	after	a	hearing	in	which	the	court	has	stated	its	

findings,	and	there	has	been	no	motion	for	further	findings,	we	will	infer	that	

the	court	found	all	the	facts	necessary	to	support	its	judgment	if	those	inferred	

findings	 are	 supportable	 by	 evidence	 in	 the	 record.”	 	 State	 v.	 Connor,	

2009	ME	91,	¶	9,	977	A.2d	1003.	

        [¶8]	 	 In	 this	 case,	 although	 the	 evidence	 supports	 the	 court’s	 ultimate	

finding	that	Pinkham	allowed	the	alleged	plumbing	and	subsurface	wastewater	

disposal	violations	to	occur	on	the	property,	the	record	is	devoid	of	any	mention	

of	a	“municipal	order	to	stop,”	30-A	M.R.S.	§	4452(3)(E)(3),	or	any	other	notice	

to	 the	 landowner	 that	 he	 was	 in	 violation	 of	 the	 ordinance.	 	 Thus,	 on	 the	

evidence	before	it,	the	court	could	not	have	considered	the	extent	to	which	the	

violations	 may	 have	 continued	 after	 notification	 to	 Pinkham—a	 factor	 that	

must	 be	 considered	 by	 the	 court	 before	 assessing	 a	 civil	 penalty.2	 	 In	 the	




   2		Pursuant	to	30-A	M.R.S.	§	4452(3)(E)	(2017),	in	setting	a	civil	penalty,	“the	court	shall	consider,	

but	 is	 not	 limited	 to,	 the	 following:	 (1)	 Prior	 violations	 by	 the	 same	 party;	 (2)	 The	 degree	 of	
environmental	 damage	 that	 cannot	 be	 abated	 or	 corrected;	 (3)	 The	 extent	 to	 which	 the	 violation	
continued	 following	 a	 municipal	 order	 to	 stop;	 and	 (4)	 The	 extent	 to	 which	 the	 municipality	
contributed	to	the	violation	by	providing	the	violator	with	the	incorrect	information	or	by	failing	to	
take	timely	action.”	
6	

absence	of	such	evidence,3	the	imposition	of	the	$23,900	civil	penalty	must	be	

vacated.		However,	because	the	court’s	finding	that	the	violations	occurred	was	

indeed	 fully	 supported	 by	 competent	 evidence	 in	 the	 record,	 the	 award	 of	

attorney	fees	is	affirmed.	

         The	entry	is:	

                            The	 imposition	 of	 a	 civil	 penalty	 pursuant	 to	
                            30-A	 M.R.S.	 §	 4452(3)	 is	 vacated;	 in	 all	 other	
                            respects,	 including	 the	 award	 of	 attorney	 fees	
                            and	costs	pursuant	to	30-A	M.R.S.	§	4452(3)(D),	
                            the	judgment	is	affirmed.	
	
	      	     	    	      	       	
	
Joseph	M.	Baldacci,	Esq.,	Bangor,	for	appellant	Sidney	Pinkham	
	
Kate	J.	Grossman,	Esq.,	Farrell,	Rosenblatt	&	Russell,	Bangor,	for	appellant	Town	
of	Glenburn	
	
	
Bangor	District	Court	docket	number	CV-2017-231	
FOR	CLERK	REFERENCE	ONLY	




     3		Although	service	of	a	Rule	80K	land	use	citation	and	complaint	could	be	construed	as	a	municipal	

order	to	stop,	the	service	here	occurred	after	the	violation	had	been	abated.		Furthermore,	although	
the	complaint	states	that	the	Code	Enforcement	Officer	notified	Pinkham	of	the	violation	by	letter	on	
December	22,	2016,	there	is	no	evidence	in	the	record	consistent	with	that	allegation.		The	contents	
of	 a	 complaint	 do	 not	 constitute	 evidence.	 	 See	 Fuhrmann	 v.	 Staples	 the	 Office	 Superstore	 E.,	 Inc.,	
2012	ME	135,	¶	18,	58	A.3d	1083.	
