On appeal from the Division of Consumer Affairs, Board of Examiners of Master Plumbers.
Approved for Publication June 23, 1995.
Before Judges Long, A.m. Stein and P.g. Levy. The opinion of the court was delivered by A.m. Stein, J.A.D.
The opinion of the court was delivered by: Stein
Following a lengthy hearing, the New Jersey State Board of Master Plumbers, by unanimous vote, found that Joseph Fichner, Jr., a licensed master plumber, had engaged in unconscionable overpricing of services performed for seven of his customers, such conduct constituting occupational misconduct and fraud and misrepresentation in violation of N.J.S.A. 45:1-21(b) and (e). As to one of the customers, the Board also found that he violated pricing guidelines for licensed plumbers set forth in N.J.A.C. 13:32-1.12.
This was the second time that the Board had found Fichner guilty of misconduct charges. In October 1989 the Board found that Fichner had unconscionably overcharged five customers, those prior acts also constituting occupational misconduct and fraud and misrepresentation. In the earlier proceeding, the Board reprimanded Fichner, assessed a civil penalty of $5,000 and required him to make restitution to the five customers whom he had overcharged. We affirmed. I/M/O Joseph Fichner, Jr., A-1571-89T3 (App. Div. March 20, 1991).
This time the Board took more severe action against Fichner. Because of what it understandably considered to be his egregious conduct in continuing to engage in unconscionable commercial practices, the Board: suspended Fichner's master plumber's license for five years, with the suspension stayed contingent upon compliance with all other terms of its order; ordered him to pay a civil penalty of $5,000 on each of the seven counts for a total of $35,000; required him to pay the State's costs in the amount of $9,844.50; and ordered him to make restitution to the various customers whom he had overcharged. This appeal followed.
The parties filed briefs and the matter was submitted to us for determination without oral argument. The appeal then took on a different dimension, unrelated to the merits of the substantive issues originally raised by Fichner.
Fichner's attorney moved to supplement the record. He argued that the decision of the Board must be set aside because several of its members did not have the statutory qualifications to serve on the Board. Fichner claims that he discovered this information while the appeal was pending. We required the Attorney General to provide us with appropriate information as to the qualifications of the Board's members at the time of their appointment. It turned out that Fichner and his attorney were correct. Three of the seven Board members were not statutorily qualified to hold office.
The State Board of Examiners of Master Plumbers consists of nine citizens appointed by the Governor:
Three members shall be master plumbers of at least 10 years experience, one shall be a local plumbing inspector who has held such appointment for at least 10 years, one shall be a journeyman plumber of at least 10 years experience and 2 shall be representatives of the public having no association with the plumbing industry.
N.J.S.A. 45:1-2.2b provides for the appointment of one additional public member to the Board. The ninth member is the head of a department or holder of a designated office of a department in the executive branch appointed by the Governor. N.J.S.A. 45:1-2.2c.
There were two vacancies on the Board throughout Fichner's hearings: a Section 14C-3 public member and the Section 2.2c State government member. At the time of Fichner's hearings, the seven members were Mengste Thomas El, Jack Levee and Robert W. Smith, the three master plumber members; Thomas J. Biondi, the plumbing inspector member; Thomas F. Daly, the journeyman member; Michael D. Landolfi, one of the two public members appointed pursuant to N.J.S.A. 45:14C-3; and James P. Kehoe, the Section 2.2b member. The second Section 14C:3 public member, Charles Scheller, participated on the first three hearing dates, was absent from the last two hearings, was also absent from the executive session of May 27, 1993, ...