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Khamnei v. Burlington Public Works Commission

Supreme Court of Vermont

February 16, 2018

Chris Khamnei
v.
Burlington Public Works Commission

         On Appeal from Superior Court, Chittenden Unit, Civil Division Robert A. Mello, J.

          Chris C. Khamnei, Pro Se, Burlington, Petitioner-Appellant.

          Eugene M. Bergman, Senior Assistant City Attorney, Burlington, for Respondent-Appellee.

          PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Davenport, Supr. J. (Ret.), Specially Assigned

          EATON, J.

         ¶ 1. Applicant Chris Khamnei appeals a decision of the superior court affirming the Burlington Public Works Commission's denial of his request for permits to complete plumbing work in a building he owns because he failed to identify the name of a licensed professional plumber who would perform the work. On appeal, applicant argues that the applicable statute and accompanying regulations allow property owners to perform this type of work without a plumbing license. We affirm.

         ¶ 2. The underlying facts are not disputed. Applicant owns property located in Burlington, Vermont. Applicant does not reside in the property. In February 2016, he submitted applications for two permits to perform plumbing work at the property, which he described as follows: (1) connect a hot-cold water supply to a Jacuzzi instant hot water heater, and (2) repair a deteriorated cast iron sewer-waste pipe. The city plumbing inspector determined that that this work required a licensed professional plumber, and because applicant had failed to identify one, denied the permit.

         ¶ 3. Applicant appealed to the Burlington Public Works Commission. Before the Commission, he argued that the statute exempted property owners or their maintenance workers from the obligation of having a licensed individual perform the type of work that applicant was proposing. The Commission held a hearing at which both applicant and the plumbing inspector appeared. The plumbing inspector testified regarding the scope of work that would be required to perform the tasks that applicant had listed on the permit applications. The inspector stated that to connect the water supply to the new Jacuzzi water heater would require installation of shut-off and anti-scald valves as well as an expansion tank, and that to replace the cast iron pipe would entail disconnecting branch lines and installing updated fittings. The inspector opined that this work was more than maintenance, repair, or alteration, and thus fell outside of the statutory exception to the requirement that a licensed plumber perform the work. The Commission took a narrow view of the statutory exceptions in light of the licensing and permitting laws' purpose of protecting public health, safety, and welfare. The Commission concluded that the work described was more than simple maintenance, repair, or alteration, and affirmed the plumbing inspector's decision.[1]

         ¶ 4. Applicant appealed the Commission's decision to the superior court, which conducted an on-the-record review. See V.R.C.P. 74 (providing review of agency action when appeal is provided by statute); In re Soon Kwon, 2011 VT 26, ¶ 6, 189 Vt. 598, 19 A.3d 139 (mem.) (explaining that review of agency decisions is presumed to be "on-the-record"). The parties submitted legal memoranda in support of their positions. The court concluded that the statutory exemptions did not apply and affirmed the decision of the Public Works Commission. Applicant then appealed to this Court.

         ¶ 5. When there is an intermediate level of appeal from a decision of an administrative body, this Court applies the same standard of review as in the intermediate appeal. Rhoades Salvage/ABC Metals v. Town of Milton Selectboard, 2010 VT 82, ¶ 13, 188 Vt. 629, 9 A.3d 685 (mem.). As applied in this case, this Court must determine, like the superior court, whether the facts developed before the Public Works Commission demonstrate there was a "reasonable basis" for its decision. See State Dep't of Taxes v. Tri-State Indus. Laundries, Inc., 138 Vt. 292, 294, 415 A.2d 216, 218 (1980) ("[J]udicial review of agency findings is ordinarily limited to whether, on the record developed before the agency, there is any reasonable basis for the finding."). Findings of fact will be affirmed if supported by the evidence. In re Agency of Admin., 141 Vt. 68, 74-75, 444 A.2d 1349, 1352 (1982).

         ¶ 6. We begin with the statutory framework. Pursuant to statute, "[a]ll plumbing and specialty work performed in Vermont shall be performed by persons licensed under [the plumbing] chapter." 26 V.S.A. § 2198(a). The statute contains seven exceptions to this licensing requirement. One applies to single-family owner-occupied dwellings and broadly exempts "[a]ny plumbing and specialty work performed by an owner or the owner's regular employees." Id. § 2198(a)(1). The two most relevant to this appeal exempt certain types of work performed either by the owner or a regular maintenance worker on an owner's property not occupied by the owner.

         ¶ 7. Section 2198(a)(3) exempts from the licensing requirement work performed by "[a] person who regularly employs a maintenance person whose duties include the maintenance of plumbing on the property of that person." Applicant agrees that the work he proposes is not "maintenance." He contends, however, that there was an error in the statutory drafting and that the statute should be read to also exempt installation. Some statutory history is necessary to understand this argument. The provision at issue was adopted in 1959, and exempted work by "[a] person who regularly employes [sic] a maintenance man whose duties include installation and maintenance of plumbing on the property of that person." 1959, No. 215, § 16(c). The statute was amended 1969 and 1979, but neither amendment changed the language of § 2198(a)(3). See 1969, No. 84, § 9; 1979, No. 122, § 6 (Adj. Sess.). In 1994, § 2198(a) was substantially amended. 1993, No. 176, § 18 (Adj. Sess.). The session law indicates the changes that were made by indicating deleted language with a bracket and asterisk while showing added language with underlining. Many changes are indicated in this manner throughout § 2198(a). Although the text of (a)(3) is not bracketed or underlined, two changes to the text appear in the session law: first, "maintenance man" is changed to "maintenance person"; and second, "installation and" is removed. The revised provision, which remains in effect, exempts work by "[a] person who regularly employs a maintenance person whose duties include the maintenance of plumbing on the property of that person." 26 V.S.A. § 2198(a)(3).

         ¶ 8. Applicant argues that because the changes to § 2198(a)(3) were not properly notated in the session law, there was a mistake and therefore the words "installation and" should be read back into the statute. In construing statutes, our "principal goal is to effectuate the intent of the Legislature." Tarrant v. Dep't of Taxes, 169 Vt. 189, 197, 733 A.2d 733, 739 (1999). We first look to the language and give effect to the plain meaning of the statutory language used "because we presume that it shows the intent of the Legislature." State v. Papazoni, 159 Vt. 578, 580, 622 A.2d 501, 503 (1993). If the language is ambiguous, "legislative intent must be determined through consideration of the entire statute, including its subject matter, effects and consequences, as well as the reason and spirit of the law." Tarrant, 169 Vt. at 197, 733 A.2d at 739.

         ¶ 9. Here, the statute as written is unambiguous. It exempts maintenance, not installation. Applicant's argument is that "installation and" should be read back into the statute because it was not properly removed in the session law. He asserts that removal of "installation and" was a mistake. Courts in general are very cautious to make changes to the express language used by the Legislature unless it is evident that the language does not promote the intent of the statute. See In re C.S., 158 Vt. 339, 343, 609 A.2d 641, 643 (1992) ("We may correct a statute whose language does not promote the intent of the Legislature due to clerical error in transcription, writing, or redrafting."); see also Cave City Nursing Home, Inc. v. Ark. Dep't of Human Servs., 89 S.W.3d 884, 889 (Ark. 2002) ("This court is very hesitant to interpret a legislative act in a manner contrary to its express language, unless it is clear that a drafting error or omission has circumvented legislative intent."). Courts supply words to a statute under very limited circumstances including where necessary ...


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