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City Council v. Michael Naturile Also Known

Decided: August 20, 1975.

CITY COUNCIL OF THE CITY OF ELIZABETH, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF,
v.
MICHAEL NATURILE ALSO KNOWN AS MICHELO G. NATURILE, DEFENDANT



Dreier, J.d.c., Temporarily Assigned.

Dreier

Plaintiff City of Elizabeth, a Faulkner Act municipality, seeks a declaratory judgment on matters affecting the application of the electrical and plumbing regulations in its administrative code and their interrelation with state law. The issues are (1) whether the provisions of N.J.S.A. 45:5A-18(n) require plaintiff to issue an electrical permit to defendant, the owner of property upon which he himself proposes to construct a house for the use of himself or members of his immediate family; (2) whether plaintiff may refuse to receive an application or to issue an electrical permit to any person not a licensed electrician who seeks a permit in the above circumstances (thus challenging the validity of sections 28-12 and 28-53(4) of the plaintiff's administrative code); (3) whether chapter 71 of the plaintiff's code, regulating the business of master electrician, is valid and enforceable, and finally, (4) whether chapter 36 of the code, regulating the business of master plumber, is valid and enforceable.

Prior to May 20, 1975 defendant property owner applied to the proper official for an electrical permit for the purpose of constructing a residence for himself and his family. His application was rejected solely because he was not a licensed electrician. On July 3, 1975 defendant applied to the proper official for a permit to perform plumbing work upon the same premises. That application was similarly denied solely because defendant did not have a plumber's license. This suit ensued. Although some testimony was taken on the return date of plaintiff's order to show cause why the requested declaratory judgment should not be rendered, the basic facts are not in controversy. The city presented no testimony with

respect to the plumbing inspection costs or procedure, but its witnesses candidly noted that electrical reinspections took only about 15 minutes each and that most specific problems could be avoided by additional and more thorough inspections.*fn1

I

We consider first the rejection of the permit for electrical work. N.J.S.A. 45:5A-1 et seq. , the Electrical Contractors Licensing Act of 1962, as amended by L. 1968, c. 17, is a comprehensive act manifesting a legislative determination that problems of statewide concern had developed in an area of potential danger to the public. Its provisions for a board of examiners and the regulations to be adopted by that board show that the Legislature intended to balance the legitimate needs of those engaging in the business of electrical contracting against the proper protection of the consuming public. Both of those factors were considered and language chosen that would intrude no more than necessary on each citizen's constitutional right to liberty and property. The constitutionality of N.J.S.A. 45:5A-1 et seq. was upheld by the New Jersey Supreme Court in Ind. Elec. Assoc. of N.J. v. N.J. Bd. of Exam. , 54 N.J. 466 (1969). Section 18(n) provides that the definition of the business of electrical contracting -- which requires one to secure a business permit under the act -- shall not include:

(n) Work performed by a person on a dwelling that is occupied solely as a residence for himself or for a member or members of his immediate family.

Plaintiff claims that it restricts permits to licensed electricians because of the danger to public health which would result from any alternative, and that its ordinance is authorized by N.J.S.A. 40:48-1 and 40:52-1, as well as the Faulkner Act, N.J.S.A. 40:69A-1 et seq., N.J.S.A. 40:48-1 is general enabling legislation, section 13 of that statute permitting a municipality to "regulate and control the construction, erection, alteration and repair of buildings and structures of every kind within the municipality * * *." This section gives the city power to regulate and control the performance of electrical work, subject to the power of the State to preempt all or any part of the field of regulation, and also subject to the requirement that such regulations be reasonable.

N.J.S.A. 40:52-1(g) provides authority to license and to regulate various kinds of businesses. However, while the business of electrical contractor was held to fall properly within municipal powers under this section in Becker v. Pickersgill , 105 N.J.L. 51 (Sup. Ct. 1928), Salomon v. Jersey City , 12 N.J. 379, 389 (1953), confined this section to cover only "local businesses which may reasonably be considered comparable in type to those specifically enumerated therein * * *" See also, Weiner v. Stratford , 15 N.J. 295, 300 (1954). Neither the business of plumbing nor electrical contracting is enumerated therein. Also, since defendant is not seeking to engage in the electrical contracting business , this section is inapplicable.

It is unnecessary to consider plaintiff's status as a Faulkner Act municipality, since N.J.S.A. 40:69A-28 and 30 explicitly gives such municipalities all powers conferred by "general law," which would include the provisions of N.J.S.A. 40:48-1(13), already noted, and the broad auxiliary powers of N.J.S.A. 40:48-2.

A municipality, however, may not exert its delegated regulatory or police powers in terms which conflict with a state statute, and may not deal with a subject if the Legislature intends its own regulations to be exclusive,

irrespective of whether it exhausts the field or touches only a part of it. State v. Ulesky , 54 N.J. 26, 29 (1969). In determining whether the State has preempted the field, the question is whether the Legislature intended its action to preclude the exercise of delegated police power. In the case of business permits required for electrical work it is clear that N.J.S.A. 45:5A-1 et seq. has preempted the field, at least insofar as it defines who may engage in the business of electrical contracting.

Plaintiff contends, however, that the exemption quoted earlier in N.J.S.A. 45:5A-18(n) refers only to dispensing with a business permit and not to license requirements. But an examination of the other exemptions listed shows that the common consideration in all of them is a judgment of lessened danger, e.g. , specialized work subject to stringent standards by other agencies, proper supervision reasonably to be anticipated by other governmental departments, matters involving very low voltage, or (as with section (n)) the belief that a resident homeowner will exercise due care for the safety of himself and his family -- particularly when the final result of the work in all cases will be subject to outside inspection. If one does not need a business permit to do the actual work, a fortiori he does not need to qualify for and obtain a license to commence the work. He must be issued a construction permit, subject to reasonable municipal inspection permitted by N.J.S.A. 45:5A-17(a).

Plaintiff also would draw a distinction between permission to make minor repairs on an existing dwelling and undertaking the large project of initial construction, claiming that section (n), by referring to a "dwelling that is occupied," contemplates only the former. Such a reading ignores Sands v. N.J. Bd. of Examiners of Electrical Contractors , 90 N.J. Super. 82 (App. Div. 1966), aff'd 54 N.J. 484 (1969), wherein the exempted work was being done by the owner on dwellings to be occupied in the future. This factor was not treated as material by either appellate court. In Sands , however, the owner intended to do electrical work

in houses planned for immediate sale. The Sands courts did not consider § 18(n) specifically, since the events in question had occurred in 1963, five years before the exemption was added to the act (54 N.J. at 486-487). That a building is still under construction is not a ground for distinguishing areas covered by the exemptions is also inferable from the amendment to § 18(k) which in 1968 deleted a former qualification of exempting installation work on "existing buildings" occupied by a firm and replaced it with an exemption for such work on "premises" occupied by a firm.

Moreover, while N.J.S.A. 45:5A-9(a) says that "Any single act or transaction shall constitute engaging in the business of electrical contracting within the meaning of this chapter," the concurrent presence of § 18(n) shows that this provision was intended to reach electricians who hire out either to general contractors or to individual homeowners. Sands v. N.J. Bd. of Examiners, supra , 90 N.J. Super. at 86.

This court finds that the State has preempted the entire electrical contracting licensing area. Were this not so, each municipality could impose varying licensing standards, not only upon defendant but also upon the beneficiaries of every other exemption in the statute. Such a result would impose an undue burden upon government and commerce. Sections 28-12 and 28-53(4) of plaintiff's administrative code are therefore unenforceable insofar as they require rejection of an application for and forbid issuance of a permit to anyone ...


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