Meyer v. Town of Nantucket

• Decision Date: 06 December 2010
• Docket Number: No. 09-P-1613.,09-P-1613.
• Citation: 78 Mass.App.Ct. 385,937 N.E.2d 990
• Court: Appeals Court of Massachusetts
• Parties: Ernst J. MEYER v. TOWN OF NANTUCKET & another.

937 N.E.2d 990

78 Mass.App.Ct. 385

Ernst J. MEYER

v.TOWN OF NANTUCKET ¹ & another.²

No. 09-P-1613.

Appeals Court of Massachusetts, Suffolk.

Argued Feb. 10, 2010.

Decided Dec. 6, 2010.

Ernst J. Meyer, pro se.

Kimberly M. Saillant, Boston, for town of Nantucket.

Present: KAFKER, VUONO, & SIKORA, JJ.

VUONO, J.

This case arises out of a dispute between the plaintiff, Ernst J. Meyer, and the town of Nantucket over plumbing Meyer installed himself in his Nantucket home. The town plumbing inspector ordered Meyer to remove the plumbing on thegrounds that Meyer failed to obtain a permit prior to installation and that Meyer is not a licensed plumber. The issue is whether G.L. c. 142, which regulates the practice of plumbing in the Commonwealth, exempts homeowners who perform plumbing work in their own homes from its licensing requirements. A related question is whether the plumbing inspector exceeded his authority by issuing the removal order without first inspecting the plumbing for compliance with the State plumbing code.

The pertinent facts are not in dispute. In 1968, Meyer purchased an undeveloped parcel of land located on Red Barn Road in the town of Nantucket (town) with the intention of building a family home. He eventually began construction, performing most of the work himself. On or about March 19, 2007, Meyer submitted an application to the Nantucket building commissioner for a permit to personally install the plumbing for four bathrooms, a kitchen, and a laundry facility.³ Meyer, a retired opthalmologist, is not a plumber by trade and holds no plumbing license.⁴ By letter dated April 5, 2007, the building commissioner rejected Meyer's permit application, stating, "The only person that is allowed to do plumbing work in [Massachusetts] is a [Massachusetts] Licensed Plumber with the proper permit." The letter specifically referenced a State regulation governing the conduct of plumbing in the Commonwealth, which provides in relevant part, "Permits [to perform plumbing work] shallbe issued to licensed plumbers only." 248 Code Mass. Regs. § 3.05(1)(b)(7)(a) (2005). A copy of the regulation was appended to the letter.

Meyer did not appeal the denial of his request for a permit. Rather, taking the position that neither the statute nor the regulations prohibited unlicensed homeowners from installing plumbing in their own homes, Meyer proceeded to install the plumbing without a permit. By September of 2008, Meyer had substantially completed the rough plumbing in his house and had installed onetoilet, one shower, and a hot water heater for his personal use during continued construction.

On November 25, 2008, the Nantucket plumbing inspector (inspector) issued an "Order to Cease and Desist and Abate," instructing Meyer to immediately stop the installation, cease using the plumbing he had installed, and to have the plumbing removed by a licensed plumber. Meyer appealed the order to the Board of State Examiners of Plumbers and Gas Fitters (board), claiming that homeowners like himself were not within the scope of G.L. c. 142, § 3, which, Meyer contended, only requires the licensing of master plumbers, journeyman plumbers, and apprentice plumbers. Meyer also challenged the inspector's authority to order the removal of the plumbing without first inspecting it for compliance with code requirements, and requested to have the plumbing inspected. During the pendency of his appeal before the board, Meyer stopped using the plumbing, but did not remove it. The inspector has never inspected the installed plumbing.

After a hearing, the board issued a final decision and order upholding the order requiring Meyer to cease performing plumbing work and to remove the plumbing.⁵ The board concluded that by doing "work in plumbing" under G.L. c. 142, § 1, as amended by St.1977, c. 843, § 3, Meyer was operating as a journeyman plumber within the meaning of the statute and was, therefore, subject to its licensing requirements. The board further found that the statute contains no homeowner's exemption. Finally, the board found that, although the removal of the plumbing may be burdensome on Meyer, the removal order was within the scope of the inspector's authority under section 10.04 of the State plumbing code, 248 Code Mass. Regs. § 10.04 (2005), and reasonable "in light of the fair warning [given] to ... Meyer." ⁶

On Meyer's complaint for judicial review before the SuperiorCourt, acting on cross motions for judgment on the pleadings, a judge affirmed the board's decision. See G.L. c. 30A, § 14. The judge rejected Meyer's claims that the licensing requirements contained in G.L. c. 142 only apply to individuals in the business of plumbing and that it would be unreasonable to read the statute as prohibiting unlicensed persons from engaging in "do-it-yourself" plumbing in their own homes. The judge also rejected Meyer's constitutional and procedural arguments. The judge entered a judgment dismissing Meyer's complaint.

Discussion. On appeal, Meyer continues to press his argument that the licensing requirements contained in G.L. c. 142, § 3, do not apply to homeowners like himself and, consequently, that the board's decision upholding the inspector's order was based on a error of law. The crux of Meyer's argument is that by promulgating and enforcing regulations which effectively prohibit any unlicensed person from performing plumbing work regardless of circumstance,⁷ the board exceeded its authority under G.L. c. 142, which, according to Meyer, evinces no intent on the part of the Legislature to prohibit unlicensed individuals from installing plumbing in their own homes. In the alternative, Meyer argues that such a prohibition violates due process. We consider these arguments in turn.

1. Validity of the board's regulations. To determine the validity of a duly promulgated administrative agency regulation, we follow the familiar two-step framework established by the United States Supreme Court in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Goldberg v. Board of Health of Granby, 444 Mass. 627, 632-633, 830 N.E.2d 207 (2005). First, using conventional tools of statutory interpretation, we determine "whether the Legislature has spoken with certainty on the topic in question, and if we concludethat the statute is unambiguous, we give effect to the Legislature's intent." Ibid. If, however, there is ambiguity in the statute or the Legislature has not directly addressed the issue, we must proceed to step two and "determine whether the agency's resolution of that issue may 'be reconciled with the governing legislation.' " Id. at 633, 830 N.E.2d 207, quoting from Nuclear Metals, Inc. v. Low-Level Radioactive Waste Mgmt. Bd., 421 Mass. 196, 211, 656 N.E.2d 563 (1995).

Under step two, we are required to give substantial deference to an agency's interpretation of a statute within its charge, and regulations "are not to be declared void unless their provisions cannot by any reasonable construction be interpreted in harmony with the legislative mandate." Goldberg, supra at 633, 830 N.E.2d 207, quoting from Berrios v. Department of Pub. Welfare, 411 Mass. 587, 595-596, 583 N.E.2d 856 (1992). In conducting our analysis, "it is unimportant whether we would have come to the same interpretation of the statute as the agency." Goldberg, supra. See Biogen IDEC MA, Inc. v. Treasurer & Receiver Gen., 454 Mass. 174, 187, 908 N.E.2d 740 (2009). "A party challenging a regulation bears the burden of proving that the regulation is 'illegal, arbitrary, or capricious.' " Ciampi v. Commissioner of Correction, 452 Mass. 162, 166, 892 N.E.2d 270 (2008), quoting from Borden, Inc. v. Commissioner of Pub. Health, 388 Mass. 707, 722, 448 N.E.2d 367, cert. denied sub nom. Formaldehyde Inst., Inc. v. Frechette, 464 U.S. 936, 104 S.Ct. 345, 78 L.Ed.2d 312 (1983).

Informed by these principles, we begin with the statutory text itself. General Laws c. 142 does not specifically address the issue of homeowner installation of plumbing. Section 3 provides that "[n]o person shall engage in the business as a master plumber ... or work as a journeymanplumber ... or as an apprentice plumber ... unless he is lawfully registered, or has been licensed by the [board] as provided in this chapter." G.L. c. 142, § 3, as appearing in St.1977, c. 843, § 4. In turn, § 1 defines "[j]ourneyman plumber" broadly as "a person who himself does any work in plumbing and gas fitting, subject to inspection under any law, rule or regulation."

Meyer urges us to construe these provisions as unambiguously exclusive of homeowners like himself. He argues that because the Legislature specifically defined "[j]ourneyman plumber" as a person who does work in plumbing and gas fitting, doing "work in plumbing" alone does not meet the statutorydefinition. More broadly, he argues that the Legislature's use of the terms "work" and "journeyman" implies that it intended to require licensure only for paid work performed by professionals, not by a lay or unlicensed do-it-yourself plumber.

The town advances the opposite contention, that the plain language of the statute is unambiguously inclusive of homeowners. It argues that the broad definition of "[j]ourneyman plumber" contained in § 1 demonstrates that all persons who themselves do "any work in plumbing" are subject to the licensing requirements set forth in § 3. It further contends that the Legislature's failure to include an express exemption for homeowners or for persons not engaged in the business of plumbing demonstrates that no exception for do-it-yourself plumbing was intended.

"When a statute is 'capable of being understood by reasonably well-informed persons in two or more different senses,' it is ambiguous." Falmouth v. Civil Serv. Commn., 447 Mass. 814, 818, 857 N.E.2d 1052 (2006), quoting from AT & T v. Automatic Sprinkler Appeals Bd., 52 Mass.App.Ct. 11, 14, 750 N.E.2d 505 (2001). Having...