State ex rel. Rhodes v. Cook

• Decision Date: 09 November 1967
• Docket Number: No. 38364,38364
• Citation: 433 P.2d 677,72 Wn.2d 436
• Court: Washington Supreme Court
• Parties: STATE ex rel. Wilmer RHODES, Appellant, v. Grant K. COOK, Respondent.

Page 436

72 Wn.2d 436

433 P.2d 677

STATE ex rel. Wilmer RHODES, Appellant, v. Grant K. COOK, Respondent.

No. 38364.

Supreme Court of Washington, En Banc.

Nov. 9, 1967.

Rehearing Denied Jan. 3, 1968.

Niemeier & Hamilton, E. A. Niemeier, Poulsbo, Keane, Haessler, Bauman & Harper, Frank A. Bauman, Donald H. Pearlman, Bruce L. Engel, Portland, for appellant.

Robert E. Schillberg, Pros. Atty., Gerald R. Gates, Deputy Pros. Atty., Everett, for respondent.

FINLEY, Chief Justice.

Appellant, petitioner below, purchased a single-family dwelling and moved it to his lot in Everett. He intended to rent the house, and in preparing it for rental found it necessary to do some plumbing work therein. He applied for a permit to do the plumbing, intending to purchase the materials and do the work himself. Appellant is not a certified plumbing contractor, and made no application for such certification. The permit was denied because the plumbing he intended to do was not in a house occupied or designed to be occupied by him.

Snohomish County has adopted the Uniform Plumbing Code, 1961 Edition, promulgated by the Western Plumbing Officials Association. The preamble to this code states that it is:

An ordinance providing for the protection of the public health and safety, and the qualification and registration of persons engaged in the business of plumbing, or laboring at the trade of plumbing; requiring a permit and inspection for the installation or alteration of plumbing and drainage systems * * *

Section 1.8 of said code provides that no plumbing work shall be commenced in any building without a permit. The challenged portion of the code, section 1.10, provides that no permit shall be issued for any plumbing or drainage work regulated by the code except to a person holding a valid, unexpired and unrevoked plumbing contractors certificate of qualification.

However, subsection (c) to said section 1.10 contains an exception to the certification requirement under six conditions:

(1) When the person desires to do plumbing or drainage work in a single family dwelling (2) When such dwelling is to be used exclusively for living purposes;

(3) When the person who will do the work is the bona fide owner of the dwelling;

(4) When the dwelling is occupied or designed to be occupied by said owner;

(5) Provided that said owner shall personally purchase all material; and

(6) Provided that such owner shall personally perform all labor in connection therewith.

The code also sets out detailed requirements for materials to be used, and for inspection and testing of all work before it is covered or hidden from view. The person doing the work is required to notify the board of plumbing inspectors when the work is ready to be inspected, and the work must meet the minimum standards set out by the code before approval will be given.

Appellant petitioned the trial court for a writ of mandamus, requiring respondent to issue a plumbing permit to appellant. His affidavit in support of his application for the writ stated that appellant was willing to comply with the standards for plumbing set out in the code, and to have his work inspected according to the code.

Appellant contends that since he intends to comply with the code standards, the requirement that nonresident homeowners be licensed to do plumbing on their own premises is not reasonably related to the public health, and therefore unduly restricts his lawful activities upon private property, in violation of the due process provisions of the Washington State Constitution, art. 1, § 3, and in violation of the fourteenth amendment to the United States Constitution. Appellant contends also that the classification set out in section 1.10(c) between resident homeowners and nonresident homeowners with regard to the requirement for certification is arbitrary and unreasonable, in that it is not designed to protect the public health and safety, and therefore deprives him of equal protection of the laws, in violation of art. 1, § 12 of the Washington State Constitution, and in violation of the fourteenth amendment to the United States Constitution.

Due Process

The trial court, dismissing appellant's application for writ of mandamus, held that section 1.10 of the plumbing code does not violate state or federal constitutional due process standards.

Here on appeal, we must determine whether requiring certification or licensing of persons who desire to do plumbing work on residences which they own but do not intend to occupy, is reasonably related to the public health and safety, considering the detailed requirements set down in the plumbing code, and considering appellant's avowed intention to follow these requirements.

It has been long established that the police power extends to protection of the public health and safety, City of Tacoma v. Fox, 158 Wash. 325, 290 P. 1010 (1930), and that regulation of plumbing in the interest of health and safety is a valid exercise of the police power. City of Spokane v. Latham, 181 Wash. 161, 42 P.2d 427 (1935). Whether the facts of a particular case justify assertion of the police power is a question for the courts. Bowes v. City of Aberdeen, 58 Wash. 535, 109 P. 369, 30 L.R.A., N.S., 709 (1910); City of Spokane v. Latham, supra. There is a presumption that facts justifying a regulation exist if such facts reasonably can be presumed. The test when lawful activity upon private property is involved has been said to be more stringent, however. This court stated in City of Seattle v. Ford, 144 Wash. 107, 257 P. 243 (1927), that where private rights exist the courts should review the legislative action and determine whether the legislative body has imposed unnecessary restrictions upon a lawful occupation or a lawful right. In Brown v. City of Seattle, 150 Wash. 203, 210, 272 P. 517, 278 P. 1022 (1928), we quoted briefly from City of Seattle v. Ford, supra as follows:

The courts will go far in sustaining the exercise of the police power for the preservation of the public health and safety, and, in so doing, private rights in conflict therewith are overridden; but, on the other hand, the courts are equally concerned to see that, under the guise of protecting the public, private business, especially that carried on upon private property, is not arbitrarily restricted * * *.

We conclude that the requirement in section 1.10 for certification of nonresident homeowners is part of the total enforcement scheme of the code, and as such is reasonably related to the public health and safety. Such requirement is a valid exercise of the police power, and is not a violation of federal or state due process standards.

This conclusion is based upon the reasoning that a property owner who does plumbing for others, i.e. for prospective tenants or purchasers of his property, has a similar impact upon the public to a commercial plumber. He is to some extent carrying on a commercial activity, since plumbing is an integral part of the property he intends to rent or sell.

Appellant concedes that licensing of commercial plumbers is reasonably related to the public health and safety. Likewise, it must be conceded that one who does any amount of plumbing for others than himself and his immediate family, although it be more limited than that done by commercial plumbers, is in a position similar to commercial plumbers, and can be required to be certified as to requisite skills.

Although one who does plumbing in a residence which he intends to rent or sell is subject to the laws of landlord-tenant, or of contract, such laws are not designed to protect the public health and safety. Nor are such laws adequate for this purpose.

Testimony at trial indicated that some plumbing defects are extremely difficult to detect, even under the detailed inspection required by the plumbing code, and that the plumbing inspectors rely to some extent upon the skill annd care of commercial plumbers. Licensed plumbers generally do better work than do nonlicensed plumbers. It is, therefore, reasonable to limit noncertified work, and even though all work must be inspected, there is a legitimate reason for the certification requirement set out in section 1.10.

We cannot say that there is no reasonable relation to public health and safety in the requirement that nonresident homeowners be licensed to do plumbing for others; nor can we say that appellant has been arbitrarily deprived of a lawful right.

It is reasonable to assume that the county, when adopting the plumbing code, had such considerations in mind when it limited the right of homeowners to plumb their own premises. Obviously the impact to the public health and safety increases with the number of homeowners who might wish to plumb their premises for rental or sale, and with the number of such premises.

Equal Protection

The state and deferal constitutional provisions for equal protection of the laws require that class legislation must apply alike to all persons within a class, and that reasonable grounds for the distinction must exist between those within and those without a designated class. Clark v. Dwyer, 56 Wash.2d 425, 353 P.2d 941 (1960).

We conclude that the trial court was correct in finding no violation of equal protection...