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Local Board of Health of Township of Berkeley v. Johnson

Decided: April 5, 1962.

THE LOCAL BOARD OF HEALTH OF THE TOWNSHIP OF BERKELEY, RESPONDENT,
v.
JAMES E. JOHNSON, DEFENDANT-APPELLANT



Price, Sullivan and Lewis. The opinion of the court was delivered by Lewis, J.A.D.

Lewis

Defendant James E. Johnson was represented by counsel "on the brief" but appeared pro se at oral argument. Johnson was convicted by the local municipal court for engaging in the practice of plumbing, without a permit and a master plumber's license, in violation of the plumbing ordinance in the Township of Berkeley. The Ocean County Court, at a trial de novo on the record below, found the defendant guilty and imposed a fine of $100 and costs on each of two counts.

On March 24, 1960 respondent, Local Board of Health of the Township of Berkeley, adopted by ordinance Part E of the "Standard Building Code of New Jersey," which part is commonly identified as the "Plumbing Code of New Jersey (1953)," approved December 29, 1953 by the State Department of Health for adoption by reference by local boards of health. See N.J.S.A. 40:49-5.1 and N.J.S.A. 26:3-31.1. It was stipulated that on June 21-22 1960 Johnson and his wife were the owners of property known as Korman's Bar and Restaurant, then under construction; defendant had obtained a building permit prior to the effective date (30 days after its first publication) of the plumbing ordinance; and that defendant did not have a plumbing permit or a master plumber's license to practice plumbing in the Township of Berkeley.

The procedural formalities and legislative authority for the referential adoption of the plumbing code are not in dispute. Defendant asserts on appeal that the aforesaid plumbing code is unconstitutional and that his conviction was against the weight of the evidence.

THE CONSTITUTIONAL QUESTIONS.

(1) Johnson maintains that the code does not reasonably relate to public health, safety and welfare. We do not agree. The necessity to regulate building construction has been recognized since the early days of civilization. Municipalities and the Law in Action (1952 ed.), Report of Committee on Building Codes and Fire Prevention Ordinances, pp. 416, 417. See also 7 McQuillin, Municipal Corporations (3 d ed. 1949), sec. 24.538, p. 522. Boards of health are "governmental agencies by which the police law of the state is locally exerted." Fredericks v. Board of Health, West Hoboken , 82 N.J.L. 200, 202 (Sup. Ct. 1912); Zullo v. Board of Health, Woodbridge Twp. , 9 N.J. 431, 436 (1952). It was said in Bd. of Health, Plainfield v. Chas. Simkin & Sons, Inc. , 10 N.J. Super. 301, 305 (Cty. Ct. 1950): "As a general policy, the law has created for master plumbers, on the ground of health protection, a necessity to be examined and licensed and this is an added protection to the public, in addition to requiring proper building plans." The cases are myriad in New Jersey, and need not here be assembled, which proclaim that the safeguarding of public health is a vital element of the sovereign police power. R.S. 26:3-64 authorizes boards of health to enact health ordinances, and under N.J.S.A. 26:3-31(e) such boards are specifically empowered to regulate the practice of plumbing, issue licenses, create examining boards and determine the qualification of applicants. There is no doubt that the regulation under review has a substantial relation to public health, safety and welfare.

(2) Next, it is urged that the standards are inadequate. On this point the code speaks for itself. In extensive terms it includes definitions, general regulations, specifications for materials, and detailed provisions for inspections, tests, licensing and administration. The scope of the ordinance covers minimum safety and health requirements respecting all plumbing and building within the municipality

and the regulatory provisions are general in their application. The mere fact that a distinction is not made between completed buildings and those under construction does not vitiate the ordinance for want of standards, particularly so as in the present case the effective date of the ordinance was not until 30 days after its first publication. If defendant's building was under construction when the ordinance was adopted, he had a reasonable time within which to complete the plumbing work or to meet the permit-licensing requirements before the ordinance became operative. Moreover, there is no proof that any plumbing had been started prior to its effective date, and there is no evidence that defendant or any of his employees made an effort to comply with the code requirements. Weiner v. Borough of Stratford , 15 N.J. 295 (1954), is clearly distinguishable. In that case the licensing ordinance related to "any business, trade or calling" and there was a "complete absence of any standards guiding the determination of the borough council."

(3) Defendant contends the ordinance constitutes an unreasonable interference with a person's right to work and an employer's right to employ. We are directed to subsection 14.1 of the code, entitled "Permits," which requires a permit from the administrative authority before any plumbing work is performed (certain minor plumbing activities being excepted) and that permits shall be issued only to master plumbers (subject to certain limited exceptions); also to subsection 14.5, entitled "License Required," that states inter alia a "person shall not engage in the practice of plumbing unless such person holds a valid master plumber's license issued by the Administrative Authority." A master plumber is defined in the code to be "A person who has had at least two years of experience as a journeyman plumber and is licensed as a master plumber and is engaged in the business of plumbing."

It appears that defendant is the owner, builder and manager of numerous properties (commercial and dwelling-units), some of which are ...


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