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In the Matter of Public Service Electric and Gas Company

November 12, 1999

IN THE MATTER OF PUBLIC SERVICE ELECTRIC AND GAS COMPANY.


Before Judges Petrella, Conley and Coburn.

The opinion of the court was delivered by: Petrella, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 27, 1999 - Decided November 12, 1999

On appeal from the New Jersey Board of Examiners of Master Plumbers.

The opinion of the court was delivered by

Petitioner Public Service Electric and Gas Company (PSE&G) appeals from a decision of the New Jersey Board of Examiners of Master Plumbers (Board) *fn1 that denied approval to its proposed program, previously conditionally approved by the Board of Public Utilities (BPU), for the sale by it of water heaters and their installation by licensed plumbers.

PSE&G had applied to the BPU for approval to amend a previously approved expanded appliance program to include a water heater replacement program for consumers. The BPU approved PSE&G's application on June 25, 1998, but because of an objection, the approval was subject to the approval of the Board that enforces the Plumbing License Law. The effective date of the BPU approval was stayed for thirty days. On the same day the Coalition for Fair Competition (Coalition), a plumbers' association group, applied to the Board on an emergent basis for a cease and desist order, alleging that PSE&G's proposed program would violate the Plumbing License Law.

On June 27, 1998, the Board denied the Coalition's application but ordered PSE&G to show cause at a July 23, 1998 hearing at which the Coalition was allowed to participate as amicus. The Board ultimately concluded that PSE&G's proposed program would violate the plumbing contractor provisions of N.J.S.A. 45:14C-2 and the prohibition against advertising plumbing services by entities other than plumbers or plumbing contractors in N.J.S.A. 45:14C-12.3. After PSE&G appealed, the Board supplemented its order with additional findings on October 8, 1998.

PSE&G argues that: (1) it is not a plumbing contractor as a matter of law because it does not propose to perform plumbing work and does not propose to employ journeymen or apprentice plumbers; (2) the Board's interpretation of the Plumbing License Law does not further the statute's purpose; (3) neither the Board's interpretation nor the classification it creates bears any relation to the public need sought to be filled by the Plumbing License Law and, accordingly, the Board's interpretation violates the state and federal constitutions; and (4) the Board's order is arbitrary and capricious.

Essentially, PSE&G proposes to, upon request, replace a homeowner's water heater with a unit purchased directly from it at a standard rate, and package it with a charge for installation by a licensed plumber. The actual installation would be subcontracted out to licensed independent plumbing contractors.

A PSE&G customer electing to take advantage of the program could choose to be billed on a regular utility bill or to pay PSE&G directly. PSE&G would be responsible for paying the plumbing subcontractors and for customer satisfaction with the materials *fn2 and work. If the customer subsequently had a problem with the water heater, it could contact PSE&G which would send out a licensed plumbing subcontractor to correct the problem. PSE&G asserts that it would play no role in the actual installation of water heaters other than to subcontract out the work. Plans regarding advertisement of the program were not yet finalized. *fn3

The Board determined that the proposed program would violate the plumbing statute because in its view PSE&G would be acting as a plumbing contractor without complying with the statutory requirements. The Board relied on advice provided by the attorney general in an opinion letter to the Division of Consumer Affairs and the Board regarding an earlier disciplinary complaint against Sears Roebuck. Informal Op. Att'y Gen. 97-0198 (December 18, 1997). This document was not a formal opinion of the attorney general and was captioned as "Attorney-client privileged" information. See Weiner v. County of Essex, 262 N.J. Super. 270, 281 n.2, 282 (Law Div. 1992). Its legal viability is not clear. Compare Lowe v. Zarghami, 158 N.J. 606, 623 (1999) (Attorney General Formal Opinion authorized Board of Trustees of medical school to establish faculty program.).

The Sears Roebuck matter involved a program offered by Sears in 1997 when, according to the informal opinion letter, it "published advertisements offering full plumbing services in its national and local advertising" and subcontracted out the plumbing services. It is not clear exactly what form the advertising took. The Board issued an order requiring Sears to cease and desist advertising the program unless it complied with the Plumbing License Law. Ultimately, Sears settled the matter by forming a subsidiary, Sears Plumbing LLC, to advertise and provide plumbing services in New Jersey. The opinion letter in Sears did note that there was "no prohibition of the practice of [ ] subcontracting" with respect to general contractors.

I.

Our scope of review *fn4 of an administrative agency's decision is generally limited. State v. Locurto, 157 N.J. 463, 470-471 (1997). We review whether the findings made could reasonably have been reached on "sufficient" or "substantial" credible evidence present in the record, considering the proofs as a whole, and giving "due regard" to the agency's expertise. Ibid.; In re Taylor, 158 N.J. 644, 655-656 (1999). However, when issues of law are involved, less deference need be accorded. See Manalapan Realty v. Township Committee, 140 N.J. 366, 378 (1995). See also ...


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