Opinion
Civil Action Number 00A-10-001-JOH
Submitted: February 1, 2001
Decided: April 17, 2001
Upon Appeal from a Decision of the Board of Plumbing Examiners — AFFIRMED.
Leo John Ramunno, Esq., of Wilmington, Delaware, attorney for appellant.
Stephani J. Ballard, Esq., Deputy Attorney General, Department of Justice for Board of Plumbing Examiners.
MEMORANDUM OPINION
Damian A. Nardo, Jr., has appealed a decision of the Board of Plumbing Examiners denying him permission to sit for the examination for licensure as a plumber. The Board's decision was based on Nardo's conviction of a felony. The statutes governing licensure of plumbers renders ineligible for examinations those applicants who have engaged in any activity which could lead to disciplinary action being taken against a licensed plumber. One such activity is becoming a convicted felon.
The Board held it was without discretion in refusing to allow Nardo to take the examination. A licensed plumber, however, who becomes a convicted felon may be disciplined. Further, if the Board imposes discipline in that instance, it has a range of options to impose from reprimand to revocation.
The issues before the Court are whether the Board does or does not have the discretion to permit a convicted felon to sit for the examination. Or, since it has discretion in dealing with licensed plumbers who become convicted felons, does it somehow have similar discretion when dealing with applicants? If applicants are treated differently from licensed plumbers, is there a violation of equal protection?
The Court holds the Board did not err in concluding it had no discretion in denying Nardo to sit for the examination. Whatever discretion it has in disciplining licensed plumbers who become convicted felons does not apply to applicants. The disparate treatment of applicants and licensed plumbers in this instance does not violate equal protection of the laws. The Board's decision is AFFIRMED.
FACTS
Nardo worked almost seven years in the plumbing trade with his father, a licensed plumber. He completed apprenticeship programs in plumbing and HVAC. He filed an application on March 16, 2000 with the Division of Professional Regulation to sit for the licensure examination to become a licensed plumber. The application asks if the applicant was ever convicted of a felony. Nardo replied that he had and his application went before the Board.
In a letter dated June 1, 2000, the Board advised Nardo that he did not meet the statutory criteria to sit for the examination because of his felony conviction. The letter also advised him of his right to a hearing on the proposed denial, the right to counsel, and the right to present evidence at the hearing. On June 8, 2000, Nardo requested a hearing before the Board.
The Board held the hearing on August 1, 2000. Nardo argued the statutory licensure scheme should not constitute a mandatory bar to licensure because the scheme treats applicants differently from licensed plumbers. He contended that the statutory scheme provides that licensed plumbers who become convicted felons "may" be subject to discipline, which can be far less than revocation, but an applicant is denied the right to sit for the examination when previously convicted of a felony. He argued this distinction is a violation of equal protection and due process. Additionally, Nardo argued the statutes are unconstitutionally vague or unfair in their application to licensed plumbers versus applicants.
In its order dated September 12, 2000, the Board held that a license, once obtained, is a property right and the State must bear the burden of proving grounds for discipline to revoke or penalize the license holder. But, on the other hand, an applicant for licensure holds no existing property right and has the burden to meet all of the qualifications for licensure, as established by the legislature. The Board denied Nardo permission to sit for the examination because one of the qualifications for licensure is the absence of a felony conviction at the time of application and, here, Nardo stipulated to a previous felony conviction. It held that the regulatory statutes under which it operates give it no discretion in denying the ability to take the examination. The Board also did not agree that the statutes were unconstitutionally vague or unfair by stating "[the statute] sets forth a clear mandate that an applicant for examination `shall not' have engaged in any specific acts or offenses subjecting a licensed plumber including a felony conviction."
Board Decision, September 12, 2000, at 3.
APPLICABLE STANDARD
On appeal from the Board, the function of this Court is to ascertain whether the Board's findings are supported by substantial evidence and free from legal error. When there are no factual disputes, as in this case, this Court, on review, must determine whether the Board committed legal error.DISCUSSION
The resolution of the issues in this case starts with a review of the applicable licensure statutes. The first relates to the qualification of applicants for licensure:
(a) Prior to applying for a plumbing license in the State, each applicant must, after receiving a Journeyman's Certificate issued by a plumbing apprenticeship program which meets or exceeds the Federal Bureau of Apprenticeship and Training Standards, perform plumbing services for at least 2 years under the supervision of a licensed plumber. In lieu of a Journeyman's Certificate, an applicant must have performed plumbing services for at least 7 years under the supervision of a licensed plumber and have completed the state-approved series of tests offered by Delaware apprenticeship schools.
(b) Each applicant shall provide such information as may be required on an application form designed and furnished by the Board and approved by the Division of Professional Regulation. No application form shall require a picture of the applicant, information relating to citizenship, place of birth, or length of State residency, or personal references.
(c) An applicant shall not have engaged in any of the acts or offenses that would be grounds for disciplinary action under this chapter, and shall not have any disciplinary proceedings or unresolved complaints pending against him or her in any jurisdiction when the applicant has previously been or currently is licensed or certified as a plumber.
The "grounds for discipline" referred to in subsection (c) are set out in another statute which provides, in part:
(a) The following conditions and actions may result in disciplinary sanctions as set forth in § 1811 of this title if, after a hearing, the Board finds that a licensed plumber:
(1) Has engaged or knowingly cooperated in fraud or material deception in order to be licensed;
(2) Has engaged in illegal, incompetent or negligent conduct in the provision of plumbing services;
(3) Has been convicted of a felony, or, as a plumber or otherwise, in the practice of his or her profession has knowingly engaged in an act of consumer fraud or deception, engaged in the restraint of competition, or participated in price fixing activities;
Nardo's initial argument is that these statutes contain ambiguities. His argument appears to be twofold. One part appears to be that § 1806(c) and § 1810(a)(3) are unconstitutionally vague. The other part of this argument seems to be the two statutes are ambiguous to the degree that the Board had the discretion to let him take the examination.
As to his constitutional argument, it is unclear what is the basis of this contention. A statute is unconstitutionally vague if it fails to "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly" and "[it] must provide explicit standards so as to avoid its arbitrary and discriminatory enforcement."
Givens v. Delaware Harness Racing Comm., Del.Super., C.A. No. 00A-05-002, Vaughn, J. (December 29, 2000) (citing Hopkins v. Mayor and Council of Wilmington, 600 F. Supp. 542, 533 (1984).
This first contention cannot withstand scrutiny. The words "shall not" and "felony" are neither obscure, ambiguous or lacking in notice of content. It seems that he contends the word "felony" in § 1810(a)(3) is vague because it can refer to almost anything. Granted, there is no qualifier attached to "felony," perhaps, to limit the kind of felony subjecting one to discipline, but that does not make it vague. But, Nardo understood he had to answer affirmatively when asked if he had been convicted of a felony. The reading of § 1806(c) and § 1810(a)(3) separately or together does not void them for vagueness.
The other part of his argument seems to be on a non-constitutional, statutory interpretation level. In interpreting a statute, the Court's role is to determine and give effect to the legislature's intent. When a statute is unambiguous and there is no reasonable doubt as to its meaning, the Court must give effect to its literal meaning. There is nothing ambiguous about the words "shall not" as they appear in § 1806(c). They clearly convey a mandatory requirement. To be eligible for an examination, an applicant shall not be a convicted felon.
Richardson v. Wile, Del.Supr., 535 A.2d 1346, 1348 (1988).
Aizupitis v. State, Del.Supr., 699 A.2d 1092, 1097 (1997).
Miller v. Spicer, Del.Supr., 602 A.2d 65, 67 (1991).
In part, however, Nardo's argument that "shall not" is ambiguous is based on language in § 1810. In itemizing prohibited activities, the statutes says they "may result" in disciplinary action against a licensed plumber. Since, he contends, the imposition of discipline is not automatic, the Board has the discretion to let him sit or not sit for the examination. This interpretation, however, would do violence to the unambiguous statutory language in §§ 1806 and 1810. His argument impermissibly equates "shall" to "may."
But, Nardo points to an additional statute in support of his argument. He cites the statute which itemizes the range of sanctions which the Board is empowered to impose on licensed plumbers. Those sanctions run from a reprimand, to a fine, to license suspension or its revocation. Discipline of a licensed plumber does not have to result under § 1810, but if it does, there is a range of sanctions, he asserts, and the Board has similar discretion to allow him to take the examination.
24 Del. C. § 1811(1), (4), (5) and (6).
This argument, too, runs contrary to the statutory scheme. Statutes must read in pari materia The legislature has drawn a clear distinction between those who are applicants and those who are licensed plumbers. This latter group has achieved a certain status and the scheme utilized in regulating them and imposing discipline is clearly distinct from that relating to applicants. Courts are to avoid absurd results in interpreting statutes. The Court would reach an absurd result if it accepted Nardo's argument blurring the bright line separating applicants from licensed plumbers. Because of that clear distinction and the unambiguous language in § 1806, the Board had no choice but to bar Nardo from taking the examination because of his felony conviction.
Watson v. Burgan, Del.Supr., 610 A.2d 1364, 1368 (1992).
Coastal Barge Corp. v. Coastal Zone Industrial Control Board, Del.Supr., 492 A.2d 1242, 1246 (1985).
Nardo argues, however, that there is case authority supporting the proposition that the Board had the discretion to let him take the examination. He cites Dowling v. Board of Professional Counselors of Mental Health, in an effort to sustain this argument. In Dowling, the administrative board held it was without discretion in rejecting an application for licensure of a person with a misdemeanor record. The statutory scheme regulating counselors provided that an applicant had to show he or she had not been convicted of an offense involving fraud. But, the same statute provided where an applicant had been convicted of a misdemeanor, the administrative board had the discretion to issue a license notwithstanding the misdemeanor conviction.
Del.Super., C.A. No. 96A-02-013, Cooch, J. (August 13, 1996).
This Court meticulously reviewed the legislative history of these enactments and employed well-known principles of statutory construction in reaching its holding that the administrative board erred in saying it had no discretion. The statutory language, this Court said, permitted the exercise of discretion, in this instance, whether to grant or deny the license being sought.
There is no equivalent language in Chapter 24 authorizing this Board to exercise discretion when dealing with an applicant, such as Nardo, who has a felony conviction. Applying the statutes under which it operites, this Board was compelled to disqualify Nardo, as an applicant, from taking the licensure examination.
Nardo, therefore, says he is treated differently from a licensed plumber. He again cites § 1810 which says a licensed plumber who commits a felony "may" be disciplined. In short, he says even if a licensed plumber commits a felony, the statutory language does not compel the imposition of any discipline. Further, he asserts, even if the Board decides to impose discipline under § 1811, it has a range of sanctions to use. All but revocation are less draconian than being barred from taking the examination, the last step before licensure. In short, he claims that a licensed plumber may not be disciplined for a felony conviction, but if discipline occurs, it can result in a number of possible sanctions, short of losing one's license.
This disparity, he next argues, violates his right of equal protection. Prices Corner Liquors, Inc. v. Delaware Alcoholic Beverage Control Comm. outlined the test to determine whether a statute may survive an equal protection claim.
Del.Supr., 705 A.2d 571 (1998).
As long as there is some rational relationship between a classification and a legitimate state interest, the statute will not be deemed unconstitutional. The United States Supreme Court put it well in its 1993 decision upholding the distinctions in the Cable Communications Policy Act of 1984 (Cable Act):
Whether embodied in the Fourteenth Amendment or inferred from the Fifth, equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against an equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. . . . This standard of review is paradigm of judicial restraint.
Id. at 576-77 (citing FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993).
Nardo has no equal protection or due process claim. The statute does not create a classification. The only plausible classification is that a licensed plumber "may" be punished for a felony conviction, while an applicant is completely barred from sitting for the licensure examination. But, Nardo is not subject to a classification because he is not being treated differently from other applicants.
Applicants and licensed plumbers are not similarly situated. Licensed plumbers have an existing property right in their professional license, while applicants only have expectations to obtain a license. The legislature never drew distinctions from those similarly situated. "[A] protected right in a professional license comes into existence only after a license has been obtained. An applicant for a license has merely an expectation of obtaining a property interest." Nardo has only an expectation to obtain a license and, since he is not being treated differently than other applicants, his equal protection and due process claims must fail.
Walton v. Board of Examiners of Psychologists, Del.Supr., C.A. No. 90A-JN-005, Barron, J. (February 21, 1991).
Despite these other arguments, Nardo's fundamental complaint is addressed to the blanket disqualification of an applicant due to a felony conviction. While it is his essential grievance it is misdirected. The statute is unambiguous. The lack of Board discretion is unambiguous. The Board is administering these statutes, as enacted by the General Assembly. It is, therefore, a clear matter of public policy to be weighed and decided by the legislative branch, not the judicial branch.
The total bar to licensure regarding applicants for a plumbing license who are convicted felons is not unique in professional regulatory statutes. Nardo complains that he is young, 21, had worked for his father, a licensed plumber, for a number of years and looked forward to being a plumber. These are policy considerations, again for the legislature. It has responded in a few instances to allow regulatory boards to have discretion to consider whether a felony conviction should preclude licensure. The Dowling case cited earlier shows, however, that such legislative grant of discretion can be limited to misdemeanors.
See, e.g., Board of Accountancy, 24 Del. C. § 107(a)(1); Board of Podiatry, 24 Del. C. § 508(a)(6); Occupational Therapy, 24 Del. C. § 2008(a)(6); Real Estate Commission, 24 Del. C. § 2907(a)(4); Board of Landscape Architecture, 24 Del. C. § 206(a)(4); Board of Private Investigators and Private Security Agencies, 24 Del. C. § 1314(2); Optometry, 24 Del. C. § 2107(a)(4) and 2113(a)(8); Board of Professional Counselors of Health, 24 Del. C. § 3008(5); Board of Veterinary Medicine, 24 Del. C. § 3307(a)(2); Board of Psychologists, 24 Del. C. § 3508(a)(4), 3509(a)(4) and 3514(a)(2); Board of Clinical Social Work, 24 Del. C. § 3907(a)(2) and 3915(a)(4).
See, e.g., Board of Pharmacy, 24 Del. C. § 2518(a)(4); Council of Professional Engineers, 24 Del. C. § 2817(7); Board of Nursing, 24 Del. C. § 1910(5) and 1922(a)(2); Committee of Dietetics/Nutrition, 24 Del. C. § 3806(f) and 3811(a)(6).
Supra at 8.
In sum, this Court is not the forum to address Nardo's policy argument.
CONCLUSION
For the reasons stated herein, the decision of the Board of Plumbing Examiners is AFFIRMED.
IT IS SO ORDERED.