Opinion
DOCKET NO. A-4824-12T2
07-29-2014
IN THE MATTER OF JOHN P. CIOFFI, APPLICATION FOR ELECTRICAL CONTRACTOR'S EXAMINATION
Michael J. Revness argued the cause for appellant John P. Cioffi (Kurtz & Revness, P.C., attorneys; Mr. Revness, on the brief). Joseph Donofrio, Deputy Attorney General, argued the cause for respondent Board of Examiners of Electrical Contractors (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Donofrio, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Grall and Nugent. On appeal from the Board of Examiners of Electrical Contractors, Division of Consumer Affairs. Michael J. Revness argued the cause for appellant John P. Cioffi (Kurtz & Revness, P.C., attorneys; Mr. Revness, on the brief). Joseph Donofrio, Deputy Attorney General, argued the cause for respondent Board of Examiners of Electrical Contractors (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Donofrio, on the brief). PER CURIAM
A person who wants to work as an electrical contractor is required by the Electrical Contractors Licensing Act of 1962 (the Act), N.J.S.A. 45:5A-1 to -38, to obtain a license from the Board of Examiners of Electrical Contractors (the Board) after passing an examination. To sit for the exam, the applicant must have, among other qualifications, "at least five years of practical hands-on experience working with tools in the installation, alteration, or repair of wiring for electric light, heat or power, which work shall have been done in compliance with the National Electrical Code." N.J.A.C. 13:31-2.1(a)(3). In the case before us, the Board disapproved appellant John Cioffi's application to sit for the examination because his experience consisted of installing and repairing low-voltage fire and burglar alarms but did not include installing or repairing high-voltage electric light, heat or power. Appellant appealed the Board's final determination and now argues that the Board's disapproval of his application was unreasonable, arbitrary and capricious. We disagree and therefore affirm.
The facts are not in dispute. In February 2012, appellant submitted an "Application for Examination" to the Board. In the section of the application requiring appellant to detail his experience, he set forth his educational background, listed the licenses he held, and identified the following work:
8/99 — Present - Bergen Protective Systems, Inc. [Duties] Wire, install, and service Fire Alarm Systems, Burglar Alarm Systems, CCTV Systems and Access Control Systems.
Appellant also submitted a Work Experience Certification explaining his electrical installation experience as follows:
Wires, Installs and services Fire Alarm Systems, Burglar Alarm Systems, CCTV Systems
and Access Control Systems for residential, commercial and industrial installations. Works with various tools of the trade, including but not limited to, volt-meters, hand tools (screwdrivers/pliers, etc.), EMT conduit, pipe benders.
The Board disapproved appellant's application. In a letter to appellant explaining the Board's reasons, a Senior Management Assistant wrote:
The Board directs your attention to N.J.A.C. 13:31-2.1(a)3 which states:
Applicants for examination for a license as an electrical contractor shall present proof to the Board that the applicant has had, immediately preceding the submission of the application, at least five years of practical hands-on experience working with tools in the installation, alteration, or repair of wiring for electric light, heat or power, which work shall have been done in compliance with the National Electrical Code. "Practical hands-on experience" shall not include time spent in supervising, engaging in the practice of engineering, estimating and performing other managerial tasks.
The Senior Management Assistant enclosed a work experience certification form, invited appellant to have his employer complete it "for any additional work experience you may have to further qualify you for the Electrical Contractor's License Examination," and she advised appellant that upon receipt of additional information she would present the application to the Board for its reconsideration.
Appellant responded by having an attorney send a letter to the Board asking "the Board to please provide [him] with the specific reasons why [appellant's] Application was disapproved, along with any laws, rules or regulations which support the reasons therefor." After appellant's attorney sent two more letters, the Board had a deputy attorney general (DAG) write to appellant.
The DAG wrote to appellant and explained that N.J.S.A. 45:5A-9(b) requires that "[a]n applicant . . . shall have been employed or engaged in the business of electrical construction and installation or have equivalent practical experience for a period of not less than five years preceding the time of such application . . . ." The DAG further explained that appellant's application disclosed his experience to be "exclusively in alarm installation, servicing and maintenance," all of which involved "low voltage alarm work." According to the DAG'S letter, "[t]he legislature has determined, pursuant to N.J.S.A. 45:5A-18(j), that any work with a potential of less than 10 volts is not considered electrical work or electrical contracting," and that "N.J.S.A. 45:5A-18(r)[] specifically excluded alarm work from the definition of electrical work and contracting."
The DAG concluded by explaining that because appellant's "practical hands on experience" was mostly in low voltage alarm work, the work was not considered electrical work, electrical construction, or the equivalent of electrical work or construction. The Board adopted and approved the DAG's letter.
Appellant's attorney wrote back and challenged the Board's action approving the DAG's letter because a quorum of Board members had not been present. Appellant's attorney requested that the Board reconsider its action at a meeting when a quorum was present. The attorney asked the Board to consider, among other things, that thirty years earlier the Board had permitted appellant's father to sit for the examination based on the father's experience with electric power for burglar and fire alarms, experience "virtually identical to the experience presented by [appellant] on the application at issue here."
The Board subsequently reconsidered and disapproved appellant's application "for the reasons reflected in [the DAG's] letter dated November 27, 2012." This appeal followed.
We consider appellant's appeal under well-established principles of law. "Administrative agency decisions are subject to a uniform standard of review and will be upheld, unless the decision is 'arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole.'" In re Final Agency Decision of the Bd. of Examiners of Elec. Contractors, 356 N.J. Super. 42, 47 (App. Div. 2002) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)), certif. denied, 176 N.J. 72 (2003).
When reviewing a final agency action under the arbitrary, capricious and unreasonable standard, we must examine whether the agency's decision conforms with relevant law; whether the decision is supported by substantial credible evidence in the record; and whether in applying the law to the facts, the administrative agency clearly erred in reaching its conclusion. In re Stallworth, 208 N.J. 182, 194 (2011). As to the last of those considerations, "[i]t is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (second alteration in original) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)).
The burden of demonstrating that the agency's action was arbitrary, capricious, or unreasonable rests upon the person challenging it. In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006); McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).
With those principles in mind, we turn to appellant's arguments. We begin our analysis of those arguments with the provisions of the Act that apply to this case. N.J.S.A. 45:5A- 9, entitled "Necessity of business permit and license; qualifications; examinations; fees," states in pertinent part:
(a) On or after July 1, 1963, no person shall advertise, enter into, engage in or work in business as an electrical contractor, unless such person has secured a business permit and such person . . . has obtained a license from the board . . . .
(b) Except as otherwise provided in section 10, no person shall be granted an electrical contractor's license unless he shall first establish his qualifications therefor and shall take and pass the examination for electrical contractors. An applicant for such examination shall have been employed or engaged in the business of electrical construction and installation or have equivalent practical experience for a period of not less than five years preceding the time of such application, or shall otherwise establish to the satisfaction of the board that the applicant has the necessary educational background and experience to qualify to take the examination for a license.
The examination shall be so designed as to establish the competence and qualification of the applicant to perform and supervise the various phases of electrical contracting work. Any applicant who shall fail to pass such examination shall not be eligible to retake an examination until six months from the date of such failure.
(c) An applicant for an examination for a license shall apply to the board for permission to take such examination upon forms provided by the board and shall provide the board with such information as shall be necessary to establish his qualifications to take the examination. . . .
The Act exempts certain work from inclusion within the business of electrical contracting requiring a business permit. N.J.S.A. 45:5A-18 provides:
Electrical work or construction which is performed on the following facilities or which is by or for the following agencies shall not be included within the business of electrical contracting so as to require the securing of a business permit under this act:
. . . .
(j) Any work with a potential of less than 10 volts.
To implement the Act's licensing requirement, the Board adopted, among other regulations, N.J.A.C. 13:31-2.1, which states:
(a) Applicants for examination for a license as an electrical contractor shall present proof to the Board that the applicant:
. . . .
3. Has had, immediately preceding the submission of the application, at least five years of practical hands-on experience working with tools in the installation, alteration, or repair of wiring for electrical light, heat or power, which work shall have been done in compliance with the National Electrical Code. . . .
Appellant argues that "[n]owhere in the Act is it written that practical hands-on experience working in the installation, alteration or repair of low voltage wiring for power is not the business of electrical contracting and/or would preclude an applicant from sitting for the Examination." Appellant further argues that no regulation promulgated by the Board states "that practical hands-on experience must involve high voltage wiring, as opposed to low voltage wiring"; and that any such interpretation would be at odds with the actual regulations promulgated by the Board. Appellant emphasizes that "the Examination itself provides the final check and balance system to ensure that a person does in fact have the [appropriate] competence and qualifications. . . ."
Appellant's argument is unpersuasive. The Board is required to design an examination that will "establish the competence and qualification of the applicant to perform and supervise the various phases of electrical contracting work." N.J.S.A. 45:5A-9(b). In addition, the Act authorizes the Board to "adopt rules and regulations pursuant to the 'Administrative Procedure Act,' . . . necessary to effectuate the purposes of this [A]ct." N.J.S.A. 45:5A-38. N.J.S.A. 45:5A-18(j) exempts from "inclu[sion] within the business of electrical contracting so as to require the securing of a business permit . . . [a]ny work with a potential of less than [ten] volts." In view of those statutory provisions, the Board's adoption of a regulation requiring an applicant for the exam to have at least five years of experience "in the installation, alteration, or repair of wiring for electric light, heat or power," was well within the authority delegated it by the Act. Further, the Board's interpretation of its own regulation as requiring an applicant to have experience with work involving an electric force or potential of more than ten volts is reasonable, consistent with the Act, and entitled to deference.
Appellant asserts that the Board's regulation does not distinguish between high voltage wiring and low voltage wiring, and that any such interpretation is "plainly at odds with the precise language of the Examination Regulations drafted by the Board." The Board's regulations, however, require experience with wiring "for electric light, heat or power, which work shall have been done in compliance with the National Electrical Code." The Board, whose members include three qualified electrical contractors with at least ten years of experience, a qualified electrical inspector with at least five years of experience, a qualified journeyman employed in the electrical construction industry for at least five years, and a licensed professional engineer with at least five years of experience in the electrical industry, N.J.S.A. 45:5A-3, is certainly aware of the voltage involved in electric light, heat or power installed or repaired in compliance with the National Electrical Code.
Moreover, in view of the Act's exemption from electrical contracting of work involving a potential of less than ten volts, the Board's requirement that an applicant have experience with higher voltage can hardly be deemed to be unreasonable, arbitrary, or capricious. Rather, the Board's "'interpretation of its own rule is owed considerable deference because the agency that drafted and promulgated the rule should know the meaning of that rule.'" In re Freshwater Gen. Permit No. 7, 405 N.J. Super. 204, 213 (App. Div.) (quoting In re Freshwater Wetlands Gen. Permit No. 16, 379 N.J. Super. 331, 341-42 (App. Div. 2005)), certif. denied, 199 N.J. 132 (2009)
Appellant's remaining arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments. Appellant argues that "the Examination itself provides the final check and balance system to ensure that a person does in fact have the competence and qualifications to perform and supervise various phases of electrical contracting work; whether high voltage or low voltage." That argument overlooks N.J.S.A. 45:5A-9(c), which requires an applicant to "provide the Board with such information as shall be necessary to establish his qualifications to take the examination." There is nothing unreasonable, arbitrary, or capricious about requiring applicants to demonstrate a defined level of practical experience before permitting them to take the examination. Nor is it unreasonable to require a level of practical experience in addition to a minimum quantum of knowledge necessary to sit for a written examination.
Lastly, appellant cannot sustain his burden of demonstrating that the Board's action was arbitrary, capricious or unreasonable by citing an instance of a license issued more than thirty years ago, without discussing any intervening amendments to the Act and regulations implementing the Act.
Affirmed.
I hereby certify at the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION