Opinion
NO. 2015-CA-000607-MR
05-13-2016
BARRY RISINGER APPELLANT v. COMMONWEALTH OF KENTUCKY, PUBLIC PROTECTION CABINET, DEPARTMENT OF HOUSING, BUILDINGS AND CONSTRUCTION; and KENTUCKY BOARD OF HEATING, VENTILATION, AND AIR CONDITIONING CONTRACTORS APPELLEES
BRIEF FOR APPELLANT: Mark R. Brengelman Frankfort, Kentucky BRIEF FOR APPELLEES: Michael T. Davis Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 14-CI-01312 OPINION
AFFIRMING BEFORE: JONES, KRAMER, AND TAYLOR, JUDGES. KRAMER, JUDGE: Barry Risinger filed an original action in Franklin Circuit Court contesting an administrative decision of the Public Protection Cabinet, Department of Housing, Buildings and Construction ("Department") to not renew his journeyman and master heating, ventilation, and air conditioning (HVAC) licenses due to (1) his conviction in Texas of "indecency with a child by contact," a felony offense warranting his lifetime registration as a sex offender; and (2) its finding, following an administrative hearing, that he has not been "rehabilitated." See, e.g., Kentucky Revised Statutes (KRS) §§ 198B.672(10); 335B.020; 335B.030; Fisher v. Com., Public Protection Cabinet, Dept. of Housing, Bldgs. and Const., Div. of Plumbing, 403 S.W.3d 69, 72-73 (Ky. App. 2013) (explaining agencies subject to KRS 335B.020, such as the appellees herein, are prohibited from granting convicted felons professional licenses or renewing same without first determining the convicted felon has been rehabilitated). The circuit court affirmed the Department's decision. On appeal, Risinger does not contest the finding that he is not rehabilitated. He argues the circuit court erred because, in his view, only the Kentucky Board of Heating, Ventilation, and Air Conditioning Contractors has authority to refuse to renew his licenses—not the Department, which did so instead—and the administrative action in refusing to renew his licenses was therefore void. Alternatively, Risinger argues the Department should have been equitably estopped from refusing to renew his licenses. Finding no error, we affirm.
As noted, Risinger's first argument is that only the Board could have conducted the Chapter 13B hearing and made the final determination regarding whether to renew his licenses. Risinger draws his sole support from KRS 198B.672, which provides in relevant part:
Subject to a hearing conducted in accordance with KRS Chapter 13B, the board may revoke, suspend, place on probation, or restrict the license or certificate of any licensee or certificate holder; refuse to issue or renew a license or certificate; or reprimand, censure, or fine a licensee or certificate holder for any of the following reasons:
(Emphasis added.)
. . .
(10) Conviction of a felony or of any crime an element of which is dishonesty or fraud, under the laws of any state or of the United States.
However, Kentucky Revised Statute (KRS) 198B.654(2) provides as follows:
(2) The [Kentucky Board of Heating, Ventilation, and Air Conditioning Contractors ("Board")], or its designee, may issue subpoenas, administer oaths, examine witnesses, conduct disciplinary proceedings, investigate allegations of wrongdoing under KRS 198B.650 to 198B.689, issue licenses and certificates, and seek injunctive relief to enforce the provisions of KRS 198B.650 to 198B.689. In seeking injunctive relief, the board shall not be required to post any bond.(Emphasis added.)
The Board has a longstanding interpretation of KRS 198.654(2) as permitting it to authorize a "designee" to conduct a hearing and make a final determination in accordance with KRS 198B.672 regarding whether to refuse to issue or renew a master or journeyman HVAC license or certificate. The Board also represents that the Department—to which it is already attached for "administrative purposes"—is its "designee" regarding the issuance of renewal journeyman and master HVAC licenses. In further support of this point, the Board notes that it requires applications for master and journeyman HVAC renewal licenses to be submitted directly to the Department. See 815 Ky. Admin. Reg. 8:010 § 6 (relating to master HVAC renewal licenses); 815 Ky. Admin. Reg. 8:020 § 6 (relating to journeyman HVAC renewal licenses). It also notes that the Department, and not the Board, has issued and renewed every HVAC license Risinger has ever had, beginning in 2002 and ending with his last renewals on March 8, 2013.
See KRS 198B.652(1).
We agree with the Board's interpretation that either it, or its designee, was authorized to conduct a hearing and make a final determination in accordance with KRS 198B.672 regarding whether to refuse to issue or renew a master or journeyman HVAC license or certificate. The language of KRS 198B.654(2) supports this interpretation, and "[a]lthough our review of the Board's statutory interpretations is less deferential than our review of its factual determinations, nevertheless, an administrative agency's construction of its statutory mandate, particularly its construction of its own regulations, is entitled to respect." See Homestead Nursing Home v. Parker, 86 S.W.3d 424, 426 (Ky. App. 1999) (citations omitted)). Moreover, in the absence of a judicial interpretation to the contrary, "[p]ractical construction of an ambiguous law by administrative officers continued without interruption for a very long period is entitled to controlling weight." GTE v. Revenue Cabinet, 889 S.W.2d 788, 792 (Ky. 1994). As such, we agree the Department had authority to "conduct disciplinary proceedings" under the purview of KRS 198B.672 and, based upon the result of those proceedings, to refuse to issue Risinger renewal journeyman and master HVAC licenses.
Next, we address Risinger's alternate argument that the Department should have been equitably estopped from refusing to renew his licenses. To explain, the Department had longstanding internal policies of (1) effectively presuming every applicant for a license has no disqualifying criminal offenses of record; and (2) not asking its license applicants any questions regarding prior criminal convictions. This policy is borne out in the Department's pleadings and was touched upon in another published case, Fisher v. Com., Public Protection Cabinet, Dept. of Housing, Bldgs. and Const., Div. of Plumbing, 403 S.W.3d 69, 73 (Ky. App. 2013). The upshot of Risinger's argument is that equity requires this policy, as it relates to him, to continue in force because of the lapse of time involved and the impression that he received from the Department that his criminal conviction was immaterial to his licensure. Risinger contends that he was convicted of his felony offense in 1996; was never asked about it by the Board or Department when he applied for and was granted his licenses in 2002; and that the Board or Department should not be allowed to refuse to renew his licenses on that basis twelve years later.
In the answer it filed with the circuit court, the Department admitted Risinger's 2002 licensure application and subsequent annual renewal applications never made any inquiries about felony convictions. The record does not disclose how the Department eventually discovered Risinger's felony conviction and status as a lifetime registered sex offender. --------
As explained in Fisher, however, the Department's internal policy was contrary to its statutory mandate and invalid. Id. at 78. This case, like Fisher, is also an example of an administrative agency's correcting itself once it had perceived a mistake. Equitable estoppel cannot be invoked in this context, where it would disserve sound public policy interests if such recourse were attempted. Delta Air Lines, Inc. v. Commonwealth, Revenue Cabinet, 689 S.W.2d 14, 19-20 (Ky. 1985). Our Supreme Court has held that an agency should correct its mistakes. And, to further paraphrase what the Court explained in Delta, the failure of a public officer to correctly administer the law does not prevent a more diligent and efficient public administrator from doing so, and an erroneous interpretation of the law will not be perpetuated. Id. at 20.
Having determined the balance of Risinger's arguments present no basis of error, we AFFIRM.
ALL CONCUR. BRIEF FOR APPELLANT: Mark R. Brengelman
Frankfort, Kentucky BRIEF FOR APPELLEES: Michael T. Davis
Frankfort, Kentucky