Opinion
14-P-1444
06-08-2015
VALDEMIRO PINA v. BOARD OF STATE EXAMINERS OF PLUMBERS AND GAS FITTERS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Valdemiro Pina (Pina) appeals from a Superior Court judgment affirming a decision of the Board of State Examiners of Plumbers and Gas Fitters (board). We affirm.
Background. The following facts are taken from the administrative record and the judge's memorandum of decision and order on Pina's motion for judgment on the pleadings.
In 2011, Pina owned a residential rental property located at 43 Wendover Street in the Dorchester section of Boston. On February 23, 2011, the tenants reported smelling gas. Pina went to the property and identified the stove as the source of the smell. Pina called several licensed professionals to service the stove or to help him install a used stove that he had stored in the basement. No one was available to help, so Pina, sensing imminent danger from the gas leak, installed the used stove himself. Three days later, he obtained a gas fitting permit, purchased a new stove, and had a licensed professional install it.
The judge's decision misidentifies the property as being located at 42 Wendover Street.
Pina is not registered or licensed by the board to perform plumbing or gas fitting work in Massachusetts. On February 25, 2011, after inspecting the property and learning that Pina had installed the used stove himself, a board inspector filed a complaint against Pina for unlicensed performance of gas fitting work. The board filed an order to show cause why Pina should not be ordered to pay a fine for violating G. L. c. 142, § 3, and moved for a summary decision on its complaint. Citing Meyer v. Nantucket, 78 Mass. App. Ct. 385 (2010), a hearing officer allowed the motion on the basis that "[n]either the statute nor the case law provides an exception for emergencies [to the requirement that plumbing and gas work be performed by licensed professionals]." After a sanctions hearing, Pina was ordered to pay a civil administrative penalty of $1,000. Pina sought review in the Superior Court, where the judge rejected his arguments that the term "gas fitting" in § 3 is ambiguous and that the statute is arbitrary and capricious and violates due process. Pina's motion for judgment on the pleadings was denied, and the board's decision affirmed.
That statute provides, in pertinent part, that "[n]o person shall engage in the business as a master plumber or a master gas fitter or work as a journeyman plumber or as a journeyman gas fitter . . . unless he is lawfully registered, or has been licensed by the examiners as provided in this chapter."
Discussion. On appeal, Pina first argues that he could not be fined under G. L. c. 112, § 65A, because he did not perform work for another or collect a fee; therefore, he did not "engage in the practice of a trade or profession" for which a license was required. He then challenges the validity of G. L. c. 142, § 3, and "the regulations embodied in 248 Code Mass. Regs. § 3.05(1)(b)(8)(a) (2005)." We need not address these arguments, which were not raised before the board or the Superior Court. See Springfield v. Civil Serv. Commn., 469 Mass. 370, 382 (2014) ("Failure to raise an issue before . . . an administrative agency, and a reviewing court precludes a party from raising it on appeal"); Catlin v. Board of Registration of Architects, 414 Mass. 1, 7 n.7 (1992) ("To preserve an issue for appeal from an agency's decision, a party must raise the issue before the agency"). We note, however, that "one becomes engaged in the business of a master [gas fitter]" when he performs gas fitting work "with his own hands," Attorney Gen. v. Union Plumbing Co., 301 Mass. 86, 89 (1938), and that Pina admits that he installed the stove himself. Therefore, he was engaged in the business of a master gas fitter within the meaning of § 3. Pina's challenge to the validity of the board's regulations fails; "[r]egulations prohibiting unlicensed individuals -- even nonprofessionals working in their own homes -- from performing [gas fitting] work are clearly consonant with th[e] prophylactic purpose" of G. L. c. 142. Meyer, supra at 391.
General Laws c. 112, § 65A, provides, in pertinent part, that the board may assess and collect a civil administrative penalty not to exceed $1,000 for a first violation from "a person who, without holding the required license, certificate, registration or authority, engages in the practice of a trade or profession for which a license, certificate, registration or authority is required."
We thus turn to Pina's appeal from the denial of his motion for judgment on the pleadings, and review de novo the motion judge's conclusions of law. Professional Fire Fighters v. Commonwealth, 72 Mass. App. Ct. 66, 73 (2008). The judge applied the correct legal standard to judicial review of agency decisions, and we see no error in his conclusions. The case is controlled in all material respects by our analysis and conclusion in Meyer: "no homeowner's exception [to G. L. c. 142, § 3] exists," and "the board's resolution of the issue [of whether an "emergency exception" exists] may reasonably be harmonized with the legislative mandate." Meyer, supra at 387-388 n.6, 390. Pina could have called the fire department, stayed on the line with the gas company's emergency leak-reporting line, or capped the gas connection behind the stove until a licensed gas fitter could respond if he truly considered the leak to be a life-threatening emergency. Instead, he disconnected the stove, used his pliers to shut off the gas valve, inserted a different stove, reconnected the gas line and tested the connection. "It is obvious that if [such] work be badly done the public health may be endangered," Commonwealth v. Beaulieu, 213 Mass. 138, 142 (1912), and Pina admitted that he had never performed such work before. "Licensure requirements . . . guarantee that licensed [gas fitters] and plumbers have a minimum level of experience in the field," Mercado v. Manny's T.V. & Appliance, Inc., 77 Mass. App. Ct. 135, 139 (2010), in view of the significant public risk posed by "the incapacity and ignorance of" persons working with gas without being qualified to do so. Beaulieu, supra. It is undisputed that Pina installed a gas stove without a permit, and we see nothing arbitrary or capricious about the board's determination that his actions violated G. L. c. 142, § 3, and were subject to sanction under G. L. c. 112, § 65A.
Pina testified that one plumber said he could come by 5:00 P.M. and that he (Pina) could have gotten a cap for the stove.
Judgment affirmed.
By the Court (Vuono, Meade & Carhart, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: June 8, 2015.