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Mechanical Contractors Association of New Jersey Inc. v. State

Decided: April 14, 1992.

THE MECHANICAL CONTRACTORS ASSOCIATION OF NEW JERSEY, INC.; THE NEW JERSEY ASSOCIATION OF PLUMBING-HEATING-COOLING CONTRACTORS, INC.; WILLIAM J. BULMAN; M & R MECHANICAL CONTRACTORS, INC.; GARNET PLUMBING & HEATING CO., INC.; GERD W. VOGES; AND JOSEPH L. ROSSI, PLAINTIFFS-APPELLANTS,
v.
STATE OF NEW JERSEY; ROBERT J. DEL TUFO, ATTORNEY GENERAL OF NEW JERSEY; AND MELVIN R. PRIMAS, COMMISSIONER OF THE DEPARTMENT OF COMMUNITY AFFAIRS, DEFENDANTS-RESPONDENTS, AND HEAVY & GENERAL LABORERS LOCAL UNION NO. 472, AN UNINCORPORATED LABOR ORGANIZATION; HEAVY & GENERAL LABORERS LOCAL UNION NO. 172, AN UNINCORPORATED LABOR ORGANIZATION; ALPHONSO PEREZ, AN INDIVIDUAL AND MARK GIBSON, AN INDIVIDUAL, AND UTILITY & TRANSPORTATION CONTRACTORS ASSOCIATION OF NEW JERSEY, INC., A NOT-FOR-PROFIT CORPORATION OF THE STATE OF NEW JERSEY; JAMES CONSTRUCTION CO., INC., A NEW JERSEY CORPORATION; FRANKLYN M. GROSSO; AND JOSEPH D. D'ANNUNZIO, INTERVENORS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Union County.

J.h. Coleman, Stern and Keefe. The opinion of the court was delivered by Stern, J.A.D.

Stern

STERN, J.A.D.

Plaintiffs appeal from a judgment entered on February 19, 1991, denying their motion for summary judgment and granting the cross motions for summary judgment filed by defendants and intervenors. The trial Judge "[a]dJudged and decreed that N.J.S.A. 45:14C-2(g) is unconstitutional." We affirm the judgment.

I.

In January 1988, by L. 1987, c. 442, effective January 15, 1988, the Legislature adopted N.J.S.A. 45:14C-2(g), as part of a package to establish a uniform licensing requirement for plumbers. Subject to certain "grandfather" provisions for the holders of a "master plumber's license," see N.J.S.A. 45:14C-12.1, -16, the legislation eliminated the licensing of plumbers at the local level (see N.J.S.A. 45:14C-12.2, -14), provided for licensing only by the State Board of Examiners of Master Plumbers (see N.J.S.A. 45:14C-12.3, -15), and permitted only "licensed master plumbers" to act as "plumbing contractor[s]." See N.J.S.A. 45:14C-2(h). N.J.S.A. 45:14C-2 defines the basic terms as used in the Act,*fn1 and N.J.S.A. 45:14C-2(g) provides:

"plumbing" means the practice, materials and fixtures used in the installation, maintenance, extension, alteration, repair and removal of all piping, plumbing

fixtures, plumbing appliances and plumbing apparatus in connection with any of the following: sanitary drainage, storm facilities and building sewers to their respective final connection to an approved point of disposal, venting systems, public and private water supply systems of any premises to and within the property line of any building, structure or conveyance to their final connection with an approved supply system. Plumbing shall also mean the practice and materials used in the installation, maintenance, extension, alteration, repair or removal of storm water, refrigeration and air conditioning drains, liquid waste or sewage. (emphasis added).

N.J.S.A. 45:14C-2(h) defines "plumbing contractor" as "any licensed master plumber, firm, partnership, corporation or other legal entity which undertakes or offers to undertake for another the planning, laying out, supervising, installing or making of additions, alterations and repairs in the installation of plumbing."*fn2 N.J.S.A. 45:14C-2(h) further provides that "[i]n order to act as 'a plumbing contractor,' a licensed master plumber shall be the holder of not less than 10% of . . . the ownership of any other firm or legal entity engaging in the business of plumbing contracting in the State and shall employ either journeymen plumbers or apprentice plumbers or both."

After the amendment took effect, municipal code officials questioned whether they were required to grant installation permits regarding underground water, sewer and drainage pipes on "construction sites" (i.e. between the structure and the property line) only to a "plumbing contractor." In response to questions regarding the new policy and practices relating to the granting of permits by plumbing subcode officials and plumbing inspectors, the Attorney General issued a formal opinion letter to the Department of Community Affairs and to the State Board of Examiners of Master Plumbers concluding that

N.J.S.A. 45:14C-2(g), insofar as it reserves the installation or removal of piping and plumbing fixtures necessarily related thereto for any water supply, sanitary

(sewer) or storm drainage systems located between a property line and a building located on such property and reserves such work to licensed master plumbers, is unconstitutional and, therefore invalid and unenforceable.

It also concluded that "a license issued by the Board may not be legally required to perform the work of installing piping and the necessary fixtures for providing water, sewer and drainage systems between a structure and the property line for the parcel on which the structure is located."

Plaintiffs thereafter filed this complaint and sought injunctive relief against the Attorney General and the defendant state agencies, seeking to enforce the statute and prohibiting non-enforcement of the Act's licensing ...


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