Editor’s note: This piece from the SCOV Law Blog is by Elizabeth Kruska.
Khamnei v. Burlington Public Works Commission, 2018 VT 19
The legislative process is often referred to as “how the sausage gets made.” This case is masquerading as a case about a plumbing permit but actually seems to be about legislation.
Here’s the story. We have a statute about plumbing. It says all plumbing work must be done by a licensed plumber. There are exceptions for work done by a property owner in his or her own residence, and maintenance and repair work done by an employee at the owner’s property. If you think about it this makes sense. If you’re an average homeowner and you have a leaky faucet, you can probably roll up your sleeves, grab your nearest wrench, and fix it yourself. And you should be able to do that, because it’s your own home and you’re fixing something. And also because it’s inevitably happening on a Sunday night, because somehow plumbing disasters don’t seem to want to happen during regular business hours. At least, they don’t in my home.
Or, if you’re someone who owns some rental properties, it also makes sense that you or someone employed by you would be able to go into those rental properties to maintain and fix things as needed.
However, if we’re talking about residences that aren’t owner-occupied, once we get into jobs beyond regular maintenance and repair, the statute says they need to be done by a licensed plumber. The spirit of the statute is really one of public safety. It ensures that serious plumbing issues are done by someone who knows what they’re doing.
That brings us to this case. Chris Khamnei owned a property in Burlington that was not his own residence. He wanted to do some particular plumbing work at that property. In 2016 he wanted to connect a hot-cold water supply to an instant water heater and repair a deteriorated cast-iron sewer waste pipe. He applied for permits to do the work, but was denied because he didn’t identify a licensed plumber to do the work. He appealed to the Public Works Commission, which held a hearing. The city plumbing inspector testified that the work identified in the permits was outside the scope of the statutory exceptions. The water heater required installation of anti-scald and shut-off valves and an expansion tank. Replacing the cast-iron pipe would require disconnecting certain lines and installing updated fittings.
Because the work proposed was more extensive than the exceptions envisioned in the statute, and because they weren’t things being done at Khamnei’s own home, the Commission denied the permits.
Khamnei appealed to the Superior Court, which did an on-the-record review, and came to the same conclusion as did the Public Works Commission.
Khamnei appeals to the Supreme Court.
In an appeal like this, the Supreme Court determines whether the facts developed at the Commission level showed a “reasonable basis” for the decision it made. SCOV will affirm if the conclusion is reasonably supported by the evidence.
First, SCOV looks at the statute and found the exceptions for homeowner and property-owner maintenance and repair. Khamnei, interestingly, agreed that the work he proposed to do wasn’t actually maintenance or repair. However, his argument was that the statute also should exempt installations. This argument requires a bit of a deep dive on the statute itself and a bit of an examination of the sausage-making process.
The portion of the statute at issue was originally written in 1959 and exempted work by a “person who regularly employes [sic] a maintenance man whose duties include installation and maintenance of plumbing on the property of that person.” A plain reading of this would suggest that if someone owns a property and has a maintenance employee, that employee could do both maintenance and installation of plumbing work.
The statute was amended in 1969 and 1979 and didn’t change that part. In 1994, however, the statute was amended again, and this time the words “installation and” were removed and other language was changed. It now reads, “[a] person who regularly employs a maintenance person whose duties include the maintenance of plumbing on the property of that person.”
Going deeper, though, the session law has various portions bracketed, underlined, and deleted. However, the relevant portion of the plumber exemption statute — in the session law — didn’t have any parts deleted.
Khamnei’s argument is that the session law was the actual expression of what the Legislature wanted, and because it did not have deletion notations, the words “and installation” needed to be read back into the statute. If those words are read into the statute, that means Khamnei would be able to get his permit for the installation (which he fully agrees was an installation and not simple maintenance or repair) and that he would not have to use a plumber to do the work.
SCOV is not convinced. SCOV has to determine the intent of the Legislature based on the words of the Legislature. The words are meant to be clear and unambiguous so that people know what it means. Courts will always start with the plain reading of a statute, and will always assume the Legislature meant what it said. If the statute is somehow ambiguous, the court can look to other methods of statutory interpretation to figure out what the Legislature meant. However, if it’s unambiguous, the court takes it on its face and that’s it.
SCOV notes, though, that in the event of clerical errors or issues with transcription that it can correct a statute. Even though legislatures all generally employ legislative counsel who can help with things like this, mistakes get made and it isn’t always apparent until a consumer of the sausage, as it were, comes along and can’t make heads or tails of what the statute means. Sausage, of course, includes both heads and tails, because that’s the point of sausage.
In looking at the relevant statute here, SCOV doesn’t find that the statute is unambiguous or somehow leads to an absurd result. It finds that the statute is in keeping with the overall intent of the Legislature. It also found that taking Khamnei’s suggestion of reading the old language back in would be revising the existing statute, which it’s not going to do.
There’s another argument that the projects didn’t require a licensed plumber to do the work. Khamnei argued that another part of the statute which reads “[a] person who performs miscellaneous jobs of manual labor on the person’s own property in the course of which plumbing repairs or alterations are made” creates an exception allowing him to do the work himself.
This is a mixed question of law and fact. In this kind of appeal, SCOV reviews to determine if the facts elicited at the hearing supported the conclusion. SCOV notes that the Commission credited the testimony of the plumbing inspector, who said the work proposed required installation of some new valves and parts. This goes beyond “repairs or alterations.” It doesn’t appear that “repairs” or “alterations” were specifically defined in the statute, so SCOV considers the words’ plain meanings. And just in case there might be a difference in understanding about what the words mean, they busted out a dictionary (well, looked at an online dictionary, which is fine) and used the dictionary definitions. The dictionary definitions of those words suggest that the Legislature’s intent was to permit some plumbing work but not all plumbing work to be done by the landowner.
This wasn’t a question of replacing a knob or tightening a washer. In the case of the water supply work, it would involve adding a whole new heater and safety valves. In the case of the sewer pipe, although that seemed closer to maintenance, it would involve disconnecting certain lines and installing updated fittings. SCOV agrees the Commission heard sufficient evidence to conclude these jobs went beyond simple repair and would require hiring a licensed plumber to do them.
So, SCOV affirms.