Kaiser v. State of New Hampshire

• Court: District Court, D. New Hampshire
• Decided: July 22, 1996
• Docket: CV-96-207-M
• Status: Published

Opinion

Kaiser v. State of New Hampshire CV-96-207-M 07/22/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Wolfgang W. Kaiser, Plaintiff,

v. Civil No. 96-207-M

State of New Hampshire, Defendant.

O R D E R

Fairly read, plaintiff's complaint alleges that he and his

wife own a tract of land in New Hampshire on which he is building

a retirement home; he wishes to plumb the retirement home

himself, but believes (or has been told by someone) that New

Hampshire's law regulating plumbers and plumbing precludes him

from doing so. Accordingly, he has filed suit against the State

of New Hampshire seeking to have the law (N.H. Rev. Stat. Ann.

Ch. (hereafter "RSA") 329-A) declared unconstitutional.

It is not at all obvious that New Hampshire's law does

prohibit plaintiff from doing the plumbing work himself. See

e.g. RSA 329-A:13, IV (exempting from regulation "an owner or his

agent who installs, repairs or replaces plumbing in his own

residence or any owner or his agent who makes minor

installations, repairs or replacements to property owned by him." (emphasis added)) But that issue, correct interpretation of the

language, is not properly raised in this case. If indeed

plaintiff has been officially advised that he cannot plumb his

intended residence, the matter is probably ripe for presentation

to a state court with jurisdiction to resolve the dispute by

construing the statutory language.

Here, however, the plaintiff's assertion that the regulatory

scheme is Constitutionally deficient on its face is without

merit, whether RSA Ch. 329-A, properly construed, does or does

not prohibit plaintiff, as an unlicensed person, from plumbing

his own residence. Due process reguirements of the United States

Constitution are violated by licensing legislation only where the

legislation is so unreasonable or extravagant as to arbitrarily

and unnecessarily interfere with, or destroy, personal property

rights. See e.g. Smith v. Texas, 233 U.S. 630, 636-37 (1914);

Engel v. O'Malley, 219 U.S. 128 (1910); Watson v. Maryland, 218

U.S. 173, 176 (1910). It cannot be seriously argued that the

state's regulation of plumbing and plumbers is arbitrary or falls

outside the broad scope of its police power to regulate

activities or trades, like plumbing, likely to affect public

health or safety. See e.g. People ex rel. Steoski v. Harford, 36

N.E. 2d 670 (N.Y. 1941). Plaintiff is simply incorrect in

2 asserting that the state's regulatory scheme is either ultra

vires or deprives him of a Constitutional right to engage in

plumbing activity on his own property free from state

interference.

Similarly, to the extent plaintiff appears to challenge a

municipal regulation reguiring an occupancy permit before persons

may inhabit a dwelling, his arguments are egually unavailing.

The state may exercise its police power in that regard because

the interest at stake relates to public health and safety.

Plaintiff's complaint is, therefore, dismissed, without

prejudice, for failure to state a claim upon which relief may be

granted. The State's motion to dismiss (document no. 5) is

granted.

SO ORDERED.

Steven J. McAuliffe United States District Judge

July 22, 1996

cc: Wolfgang W. Kaiser Wynn E. Arnold, Esg.