Opinion
100248/15
04-05-2016
In the Matter of the Application of Mark Venezio, Petitioner, v. The New York City Department of Buildings, and THE DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, Respondents.
Gregory T. Chillino, Esq., New York City, for petitioner. Zachary W. Carter, Corporation Counsel, New York (Frances Polifione of counsel), for respondents.
Gregory T. Chillino, Esq., New York City, for petitioner. Zachary W. Carter, Corporation Counsel, New York (Frances Polifione of counsel), for respondents. Gerald Lebovits, J.
Recitation, as required by CPLR 2219 (a), of the papers considered in reviewing the petition.
PapersNumbered
Notice of Petition1 Respondents' Verified Answer2 Respondents' Memorandum of Law in Opposition 3 Petitioner's Verified Reply4 Gerald Lebovits, J.
Upon the foregoing papers, it is ordered that the petition is denied.
Petitioner, Mark Venezio, commenced this Article 78 proceeding against respondents, the New York City Department of Buildings (DOB) and the Department of Citywide Administrative Services, to annul the DOB's denial of petitioner's application for a master plumbing license and to order the DOB to issue the license. At oral argument, petitioner sought only the remedy of remittal.
The DOB denied petitioner's application on July 16, 2014, on the ground that petitioner did not fulfill the requisite seven years' experience in the design and installation of plumbing systems under the direct and continuing supervision of a licensed master plumber. The DOB credited petitioner with six years, seven months, and seventeen days' qualifying experience. Petitioner argues that the DOB's failure to credit or consider petitioner's two years of experience at Pumping Solutions, and the subsequent denial of his application, was arbitrary and capricious.
The DOB's denial of petitioner's application for a master plumbing license was not arbitrary and capricious. A court may not annul an agency's determination unless, on review, the court finds the determination to be arbitrary and capricious: without sound basis in reason and generally taken without regard to the facts. (Matter of Pell v Bd. of Educ. of Union Free Sch. Dist., 34 NY2d 222, 231 [1974].)
The DOB reasonably discounted petitioner's plumbing experience at Pumping Solutions. Petitioner was not under the direct and continuing supervision of a licensed plumber. An applicant must have seven years' total experience in the design and installation of plumbing systems under the direct and continuing supervision of a licensed master plumber. (Administrative Code of the City of New York § 28-403.8.1.) An applicant is under the direct and continuing supervision of a master plumber when the applicant is in the direct employ of the master plumber or a plumbing-authorized business employing the master plumber. (See Administrative Code § 28-401.3.) An applicant has the burden to provide documentation that supports the qualifying experience. (Rules of the City of NY Department of Building [1 RCNY] § 104-01 [e].)
Petitioner did not provide sufficient evidence to establish seven years of experience in the design and installation of plumbing systems under the direct and continuing supervision of a licensed master plumber. Petitioner submitted documentation to the DOB that he was employed by Mr. Ward at Pumping Solutions. Pumping Solutions is not a business authorized to engage in plumbing work. Mr. Ward identified himself only as a master plumber at PSI Plumbing, Inc. Mr. Ward is not a master plumber at Pumping Solutions. Therefore, petitioner's two years of plumbing experience at Pumping Solutions was not under the direct and continuous supervision, or direct employ, of a licensed master plumber or a plumbing-authorized business employing the master plumber.
The DOB reasonably applied the Code that was in effect at the time of petitioner's application. An agency generally makes a determination on an application based on the law that exists at the time of the decision. (Solomon v Dept. of Bldgs. of the City of New York, 46 AD3d 370, 372 [1st Dept 2007]; see also Ziffrin, Inc. v United States, 318 US 73, 78 [1943] [holding that agencies must apply current law when making determinations for permits for future acts].)
On July 1, 2008, an amendment of the Code took effect. The Code before that amendment did not define "direct and continuous supervision" as requiring an applicant to be directly employed by a master plumber or a plumbing-authorized business employing a master plumber. (See Montanez v City of New York Dept. of Bldgs., 8 Misc 3d 405, 409 [App Term 1st Dept 2005].) Petitioner's argument that the DOB should have applied the pre-amendment Code because petitioner worked at Pumping Solutions from January 1, 2004, to February 2006, is unpersuasive. When the DOB issued its final denial of petitioner's application on July 16, 2014, the amended Code had been in effect for six years. Therefore, the DOB applied the correct Code.
The DOB reasonably discounted petitioner's plumbing design experience at Pumping Solutions because petitioner was not under the direct and continuous supervision of a master plumber. Petitioner's argument differentiating "design of plumbing" and "installation of plumbing" is immaterial. Petitioner concedes that "design of plumbing" still requires direct and continuous supervision of a master plumber, which he did not have under the Code in effect at the time the DOB reviewed his application.
The DOB reasonably discounted petitioner's inspection work at Pumping Solutions. Qualifying inspection experience must be at an "agency or other entity, acceptable to the commissioner, whose duties primarily involve the inspection of plumbing." (Administrative Code § 28-408.3 [5].) An agency or entity acceptable to the commissioner is an agency or entity licensed by the DOB to perform inspection work. (See General City Law § 48.) Pumping Solutions is not licensed or approved by the DOB to perform inspection work. Thus, the DOB reasonably omitted petitioner's inspection work at Pumping Solutions as qualifying experience for the license.
Therefore, respondents' denial of petitioner's application was not arbitrary or capricious.
ORDERED and ADJUDGED that the petition is denied and the instant proceeding is dismissed.
This opinion is the court's decision and order. Dated: April 5, 2016 J.S.C.