Conrad v. County of Onondaga Exam. Bd. for Plumbers, No. 89-CV-271.

CourtUnited States District Courts. 2nd Circuit. United States District Court of Northern District of New York
Citation758 F. Supp. 824
Decision Date08 March 1991
PartiesDavid CONRAD, Plaintiff, v. The COUNTY OF ONONDAGA EXAMINING BOARD FOR PLUMBERS; Julian M. Charles, Frank R. Ficcara, Jr., Karl A. Engelbrecht, Peter Guala, P.E., Arthur F. Russell, Jr., Patrick A. Leone, Dene C. Zografos, Francis Onofri, Clayton Andrews, Esq., Peter L. Cappuccilli, Sr., Bruce C. Dewey, Richard T. Lafferty, Virgil H. Fraser, P.E., John C. Orr, Jr., John M. Kranik and Joseph Fraser, Individually and as Members of the County of Onondaga Examining Board of Plumbers, Defendants.
Docket NumberNo. 89-CV-271.

758 F. Supp. 824

David CONRAD, Plaintiff,
v.
The COUNTY OF ONONDAGA EXAMINING BOARD FOR PLUMBERS; Julian M. Charles, Frank R. Ficcara, Jr., Karl A. Engelbrecht, Peter Guala, P.E., Arthur F. Russell, Jr., Patrick A. Leone, Dene C. Zografos, Francis Onofri, Clayton Andrews, Esq., Peter L. Cappuccilli, Sr., Bruce C. Dewey, Richard T. Lafferty, Virgil H. Fraser, P.E., John C. Orr, Jr., John M. Kranik and Joseph Fraser, Individually and as Members of the County of Onondaga Examining Board of Plumbers, Defendants.

No. 89-CV-271.

United States District Court, N.D. New York.

March 8, 1991.


758 F. Supp. 825

O'Hara & Crough (Susan T. Johns, of counsel), Syracuse, for plaintiff.

Jon A. Gerber, County Atty., County of Onondaga (Michael Pirro, Asst. County Atty., of counsel), Syracuse, for defendants.

MEMORANDUM-DECISION AND ORDER

McCURN, Chief Judge.

I. Introduction

The plaintiff has commenced an action under 42 U.S.C. § 1983, alleging that the defendants deprived him of property and liberty without due process of law, in violation of the Fourteenth Amendment, by failing to administer a fair, uniformly graded examination for receipt of a Master Plumber's certificate. The certificate is necessary to receive a license as a Master Plumber in Onondaga County. The plaintiff also asserts a cause of action pursuant to Article 78 of the New York Civil Practice Law and Rules, alleging that the defendants' denial of plaintiff's certificate by failing him on the examination was arbitrary and capricious and an abuse of discretion.

The defendants have moved, pursuant to Fed.R.Civ.P. 12(c), for judgment on the pleadings dismissing the complaint. The plaintiff has cross-moved for an amendment of the Rule 16 scheduling order, which closed discovery on June 1, 1990, so that plaintiff may conduct additional discovery related to allegedly unfair testing on the 1987, 1989 and 1990 plumbing examinations. Plaintiff also requests a discovery conference to settle disputes about that discovery.

II. Background1

The plaintiff, David Conrad, is a resident of Onondaga County, and a journeyman

758 F. Supp. 826
plumber, defined in Local Law No. 10 of the administrative rules governing plumbing installations as "any person who has met the requirements of the Onondaga County Examining Board and has further met all current requirements of the Onondaga County Department of Health." On June 24, 1988, plaintiff took an examination administered by the defendant County of Onondaga Examining Board for Plumbers ("Examining Board"), for certification as a "Master Plumber." The examination consisted of a written part, a drawing part, and a practical part

Plaintiff was informed by the Examining Board, by letter dated July 21, 1988, that he had failed the written part of the exam. Plaintiff then reviewed the written portion of the exam with defendants Patrick Leone, Francis Onofri, and Julian Charles, members of the Examining Board. After the review, defendant Onofri informed plaintiff's attorney that plaintiff's failing mark would stand.

Plaintiff claims that some questions on the exam were vague, confusing, or irrelevant. He also asserts that the Examining Board's procedure of having a single board member grade an exam allows for unfairly subjective grading, and that a review course conducted before the exam by defendant Onofri did not cover items that were on the exam. Plaintiff also avers that the plaintiff and other applicants were not provided with up-to-date plumbing code books, although there were several questions related to the code on the exam. Plaintiff further alleges that "a very small percentage" of applicants pass the Master Plumber's exam each year. In his first cause of action, the plaintiff asserts that the failure of the defendants to provide a fair examination, to provide adequate review of the exam, to provide uniform grading of the exam, and defendant Onofri's "misrepresentations" in conducting the review course, have deprived him of his property right "to become self-employed in the business of plumbing in Onondaga County," and to the earnings and benefits associated with such employment, without due process of law, in derogation of the Fourteenth Amendment. In his second cause of action, the plaintiff claims that the defendants' actions have likewise deprived him of his liberty interest protected by the Fourteenth Amendment "to pursue the calling of his choice." Plaintiff also asserts in a third claim for relief, brought under Article 78 of the New York Civil Practice Law and Rules, that the decision by the Examining Board to refuse plaintiff a certificate of competency was arbitrary and capricious and an abuse of discretion.2

The defendants have brought a motion for judgment on the pleadings, on the grounds that (1) plaintiff does not have a protected property interest in becoming a Master Plumber; (2) plaintiff does not have a protected liberty interest in engaging in the business of a Master Plumber; and (3)

758 F. Supp. 827
if the court dismisses the federal constitutional claims, the court lacks pendent jurisdiction over plaintiff's Article 78 cause of action. The plaintiff contends that the defendants have waived their defense to plaintiff's second cause of action, since the defendants have admitted in their verified answer paragraph "33" of the complaint, which states
Plaintiff has a liberty interest protected by the 14th Amendment of the United States Constitution to pursue the calling of his choice and in the profits or emoluments deriving therefrom.

Plaintiff also argues that, notwithstanding defendants' waiver of their defense to his liberty interest, he has a protected liberty interest in the pursuit of his profession, and a protected property interest in becoming a Master Plumber.

Plaintiff has also cross-moved for an amendment of the existing Rule 16 scheduling order, which set the deadline for discovery on June 1, 1990, and has requested a discovery conference. Plaintiff claims that, although his complaint contains allegations which refer only to the 1988 Master Plumber's exam, he wishes to assert that a scheme of unfair testing has permeated the exam process since his first attempt at the test, in 1987, through the most recent exam, in 1990, which he also failed. Plaintiff states that defendants have refused his requests for discovery pertaining to the other examinations.

III. Discussion

A. Plaintiff's Property Interest

Plaintiff alleges in the complaint that he has a property right protected by the Fourteenth Amendment in "(a) obtaining a Master Plumber's license and (b) the earnings and other compensation to be derived from his ability to engage in the business of plumbing." Complaint, ¶ 27. The standard for determining the existence of a property right protected by the Fourteenth Amendment was stated by the Supreme Court in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972):

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.

Id. at 577, 92 S.Ct. at 2709 (emphasis added); see also S & D Maintenance Co. v. Goldin, 844 F.2d 962, 966 (2d Cir.1988); Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 58 (2d Cir.1985).

The plaintiff argues that, since he was entitled to take the examination because of his status as a journeyman plumber, his property interest was denied by the failure of the defendants to provide a fair exam to test his capacity and fitness to be a Master Plumber. While plaintiff was therefore entitled to take the examination, and the denial of the right to take the exam might constitute deprivation of a property interest protected by the Fourteenth Amendment, plaintiff has no legitimate claim of entitlement to become a Master Plumber. "The Fourteenth Amendment's procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits." Roth, 408 U.S. at 575, 92 S.Ct. at 2708 (emphasis added).

In Charry v. Hall, 709 F.2d 139 (2d Cir.1983), the court...

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8 practice notes
  • Payne v. Fontenot, Civil Action No. 95-308-B.
    • United States
    • United States District Courts. 5th Circuit. Middle District of Louisiana
    • 16 Agosto 1995
    ...of liquor license to applicant who did not supply all documents is constitutional); Conrad v. County of Onondaga Exam. Bd. for Plumbers, 758 F.Supp. 824 (N.D.N.Y.1991) (holding that failure to qualify for plumber's license does result in property 36 Schware, 353 U.S. at 239, 77 S.Ct. at 756......
  • Mellin v. Flood Brook Union School Dist., No. 00-143.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 21 Diciembre 2001
    ...government action irrespective of the procedures used to take the action. Conrad v. County of Onondaga Examining Bd. for Plumbers, 758 F.Supp. 824, 828 (N.D.N.Y. 1991). Plaintiff grounds her procedural due process claim against the state defendants on her alleged property interest in 790 A.......
  • Benjamin v. Town of Fenton, Civ. No. 94-CV-1631 (FJS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • 7 Julio 1995
    ...equal protection and due process rights and for Article 78 review. See, e.g., Conrad v. County of Onondaga Examining Board for Plumbers, 758 F.Supp. 824 (N.D.N.Y.1991). Therefore, removal was proper under 28 U.S.C. § 1441(b), and this Court has subject matter III. EQUAL PROTECTION Plaintiff......
  • Thomas-Ateba v. Samhsa of the U.S. Gov't, 13-CV-4662 (ARR)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 10 Abril 2014
    ...12to crane operator license where plaintiff failed practical examination); Conrad v. Cnty. of Onondaga Examining Bd. for Plumbers, 758 F. Supp. 824, 827 (N.D.N.Y. 1991) (no legitimate claim of entitlement to master plumber's license where plaintiff had not passed examination).5 Nor can plai......
  • Request a trial to view additional results
8 cases
  • Payne v. Fontenot, Civil Action No. 95-308-B.
    • United States
    • United States District Courts. 5th Circuit. Middle District of Louisiana
    • 16 Agosto 1995
    ...of liquor license to applicant who did not supply all documents is constitutional); Conrad v. County of Onondaga Exam. Bd. for Plumbers, 758 F.Supp. 824 (N.D.N.Y.1991) (holding that failure to qualify for plumber's license does result in property 36 Schware, 353 U.S. at 239, 77 S.Ct. at 756......
  • Mellin v. Flood Brook Union School Dist., No. 00-143.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 21 Diciembre 2001
    ...government action irrespective of the procedures used to take the action. Conrad v. County of Onondaga Examining Bd. for Plumbers, 758 F.Supp. 824, 828 (N.D.N.Y. 1991). Plaintiff grounds her procedural due process claim against the state defendants on her alleged property interest in 790 A.......
  • Benjamin v. Town of Fenton, Civ. No. 94-CV-1631 (FJS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • 7 Julio 1995
    ...equal protection and due process rights and for Article 78 review. See, e.g., Conrad v. County of Onondaga Examining Board for Plumbers, 758 F.Supp. 824 (N.D.N.Y.1991). Therefore, removal was proper under 28 U.S.C. § 1441(b), and this Court has subject matter III. EQUAL PROTECTION Plaintiff......
  • Thomas-Ateba v. Samhsa of the U.S. Gov't, 13-CV-4662 (ARR)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 10 Abril 2014
    ...12to crane operator license where plaintiff failed practical examination); Conrad v. Cnty. of Onondaga Examining Bd. for Plumbers, 758 F. Supp. 824, 827 (N.D.N.Y. 1991) (no legitimate claim of entitlement to master plumber's license where plaintiff had not passed examination).5 Nor can plai......
  • Request a trial to view additional results

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