In Re Public Service Electric and Gas Company

325 N.J. Super. 477, 739 A.2d 991 (App. Div. 1999)
  • Opinion Date: November 12, 1999

PLUMBERS; LICENSING—A utility company that sells water heaters and hires plumbers to install them is not a plumbing contractor requiring a plumbing licence.

A public utility proposed, “upon request, [to] replace a homeowner’s water heater with a unit purchased directly from it at a standard rate, and package it without a charge for installation by a licensed plumber. The actual installation would be subcontracted out to licensed independent plumbing contractors.” The customer would be billed by the utility company, which would pay the plumbing subcontractors and be responsible for the customer’s satisfaction with the materials and work. The New Jersey Board of Master Plumbers (Board) determined that the proposed program would violate the plumbing statute because the utility company would be acting as a plumbing contractor without complying with the statutory requirements. In particular, the statute requires that “a person, firm, partnership, corporation or other legal entity shall not engage in the business of plumbing contracting or advertise in any manner as a plumbing contractor ... unless authorized to act as a plumbing contractor pursuant to the provisions of this ... act.” Under the Act, “Plumbing” means the “practice, materials and fixtures used in the installation, maintenance, ... of all piping, plumbing fixtures, ... .” A “plumbing contractor means any licensed master plumber, firm, ... or other legal entity which undertakes or offers to undertake for another the ... supervising, ... of plumbing.” To act as a plumbing contractor, a licensed master plumber must hold not less than a 10% interest in the business and must employ journeymen or apprentice plumbers, or both. The board took the position that in order for the utility company to offer to provide plumbing assistance, it needed to form a plumbing contractor with a licensed master plumber owning 10% of the business. It acknowledged that the utility company could form such a subsidiary company, and that this would be acceptable to the Board. The Court, however, viewed this as requiring what would be “an unnecessary straw man.” The Court found that under the statute a plumbing contractor is intended to be an entity that performs plumbing work through its employees. Here, neither the utility company nor any of its subsidiaries would employ plumbers or perform plumbing work. The Board took the position that a plumbing contractor is not required to have journeymen or apprentice employees. However, the Court cited the definition of plumbing contractor which states explicitly, in the conjunctive, that a plumbing contractor “shall employ either journeymen plumbers or apprentice plumbers or both.” The board further argued that the actions of the utility company, such as fielding calls and deciding what type of water heater to install constitute “planning and supervision” under the statute. The Court opined that if the Board’s position were correct, even a seller of water heaters could not make such a recommendation without violating the law. Under the Court’s analysis, the Board’s interpretation of the statute was found to be far too expansive where the utility company would only be subcontracting out plumbing work, and would not be doing the work of planning or laying out the plumbing and repairs in the sense intended by the statute. Nor would it employ journeymen or apprentices. “As we read this somewhat ambiguous statute, its language does not prohibit the services and subcontracting proposed by [the utility company]. [The utility company] proposes merely to hire licensed plumbers to install water heaters and provide follow-up service. It is not offering the service of plumbing, but merely the service of hiring a plumber to do a specific and delineated job. The proposed service’s similarity to that of a ‛broker’ was even acknowledged in the Board’s findings.” In conclusion, the Court held that the utility company was not in the plumbing business and did not advertise such a business.