New Jersey State Plumbing Inspectors Ass'n, Inc. v. Sheehan

• Decision Date: 01 November 1978
• Citation: 394 A.2d 1244,163 N.J.Super. 398
• Parties: NEW JERSEY STATE PLUMBING INSPECTORS ASSOCIATION, INC., a corporation not for pecuniary profit, Petitioner-Appellant, v. Patricia Q. SHEEHAN, Commissioner, New Jersey Department of Community Affairs and State of New Jersey, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 398

163 N.J.Super. 398

394 A.2d 1244

NEW JERSEY STATE PLUMBING INSPECTORS ASSOCIATION, INC., a corporation not for pecuniary profit, Petitioner-Appellant, v. Patricia Q. SHEEHAN, Commissioner, New Jersey Department of

Community Affairs and State of New Jersey,

Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Argued Sept. 25, 1978.

Decided Nov. 1, 1978.

Francis F. Welsh, Montclair, for petitioner-appellant.

Dennis J. Krumholz, Deputy Atty. Gen., for defendants-respondents (John J. Degnan, Atty. Gen., attorney; Stephen Skillman, Asst. Atty. Gen., of counsel).

Before Judges ALLCORN, SEIDMAN and BOTTER.

The opinion of the court was delivered by

ALLCORN, P. J. A. D.

Under the provisions of the State Uniform Construction Code Act, N.J.S.A. 52:27D-119 Et seq., adopted in 1975, the Commissioner of Community Affairs of the State is empowered to adopt rules governing, among other things,

* * * the qualifications or licensing, or both, of all persons employed by enforcing agencies of the State to enforce this act or the code (I. e., municipal construction code enforcement officials), except that plumbing inspectors shall be subject to the rules * * * only insofar as such rules are compatible with such rules and regulations, regarding health and plumbing for public and private buildings, as may be promulgated by the Public Health Council in accordance with Title 26 of the Revised Statutes. (N.J.S.A. 52:27D-124(a)(2)).

Pursuant to such authority, the Commissioner of Community Affairs has promulgated regulations governing and setting forth the examination and licensing requirements of all code enforcement personnel, including plumbing inspectors, and providing standards for educational programs for each of the various specialties of code enforcement officials. N.J.A.C. 5:23-5.1 Et seq. Appellant challenges this regulation on the ground that the act does not empower the Commissioner to license, to prescribe licensing qualifications or to prescribe educational and experiential standards for plumbing inspectors. The challenge is founded upon the assertion that such authority is expressly withheld from the Commissioner in the case of plumbing inspectors by the provision of the act which limits the right to promulgate such regulations to those compatible with the "rules and regulations, regarding health and plumbing for public and private buildings, as may be promulgated by the Public Health Council in accordance with Title 26 of the Revised Statutes." N.J.S.A. 52:27D-124(a)(2).

We are dealing with a broad, remedial piece of legislation, the basic purpose of which is to establish and provide for uniform building and construction standards and uniform enforcement policies and practices throughout the entire State. After many years of local control by literally hundreds of municipalities, with varying construction regulations and enforcement policies, the need for the uniformity provided by the act is indeed self-evident. In this light, and in view of the clear language of the statute, the intent of the Legislature to invest the Commissioner of Community Affairs with the power to license all code enforcement officials, including plumbing inspectors, is plainly manifest. The excepting clause quoted above has no application. The licensing of plumbing inspectors has nothing whatever to do with regulations promulgated by the Public Health Council "regarding plumbing for public and private buildings." Each speaks to an entirely different subject matter; there can be and is no incompatibility between them. In re Weston, 36 N.J. 258, 176 A.2d 479 (1961), Cert. den. 369 U.S. 864, 82 S.Ct. 1029, 8 L.Ed.2d 84 (1962). Moreover, the Public Health Council was not and is not empowered to license plumbing inspectors. Under Title 26 of the Revised Statutes that authority was expressly vested in the State Commissioner of Health. N.J.S.A. 26:1A-41(d), (e).

If any doubt were to remain, it is dispelled by the following provisions of N.J.S.A. 52:27D-126(c):

No person shall act as a construction official or subcode official for any municipality unless the commissioner (of Community Affairs) determines that said person is so qualified except for the following: * * * a person holding on the effective date of this act (February 4, 1976) a valid plumbing inspector's license from the Department of Health pursuant to Title 26 of the Revised Statutes may serve as a plumbing subcode official . . . .

Thus, even upon the dubious assumption that the State Uniform Construction Code Act did not effectively repeal the authority of the Commissioner of Health to license plumbing inspectors from and after the effective date of the act, the above-cited portion of the act makes plain that only plumbing inspectors' licenses which were issued by the Commissioner of Health Prior to the effective date of the act will qualify the holders as plumbing subcode enforcement officials. Any such license issued by the Commissioner of Health subsequent thereto would not qualify the holder.

A second regulation adopted by the Commissioner of Community Affairs proscribing certain activities by code enforcement officials, deemed to be in conflict with the proper performance by them of their official duties, also is assailed by the appellant. That regulation, as amended provides (N.J.A.C. 5:23-4.3(c)(6)):

6. Conflict of interest:

i. No person employed by the enforcing agency...