Meyer v. Town of Nantucket

937 N.E.2d 990, 78 Mass. App. Ct. 385
CourtMassachusetts Appeals Court
DecidedDecember 6, 2010
DocketNo. 09-P-1613
StatusPublished
Cited by3 cases

This text of 937 N.E.2d 990 (Meyer v. Town of Nantucket) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Meyer v. Town of Nantucket, 937 N.E.2d 990, 78 Mass. App. Ct. 385 (Mass. Ct. App. 2010).

Opinion

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 the [386]*386grounds 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 opthamologist, 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] shall be issued to licensed plumbers only.” 248 Code Mass. Regs. § 3.05(l)(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 one [387]*387toilet, 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 Superior [388]*388Court, 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 (1984). See Goldberg v. Board of Health of Granby, 444 Mass. 627, 632-633 (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 con-[389]*389elude that 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, quoting from Nuclear Metals, Inc. v. Low-Level Radioactive Waste Mgmt. Bd., 421 Mass. 196, 211 (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, quoting from Berrios v. Department of Pub. Welfare, 411 Mass. 587, 595-596 (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 (2009). “A party challenging a regulation bears the burden of proving that the regulation is ‘illegal, arbitrary, or capricious.’ ”

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Cite This Page — Counsel Stack

Bluebook (online)
937 N.E.2d 990, 78 Mass. App. Ct. 385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/meyer-v-town-of-nantucket-massappct-2010.