Association of Contracting Plumbers of City of New York, Inc. v. Fruchtman

| NY | Feb 5, 1985

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Petitioner, an association of licensed master plumbers, by this article 78 proceeding challenges a 1982 directive issued by respondent Commissioner (a) providing that the installation of combination fire standpipes may be performed by either licensed master plumbers or mechanical, sprinkler or steam-fitter contractors, and (b) superseding a 1975 directive which required that such installation be made under the supervision of licensed master plumbers.^* Petitioner charges that issuance of the 1982 directive is arbitrary and contrary to law, constituting an imminent public danger and a threat to health and safety, as well as a Building Code violation and a failure to comply with rule-making procedures and environmental quality review procedures. Special Term dismissed the petition, finding no standing and no cause of action. The Appellate Division affirmed, two Justices concurring on the basis that petitioner has standing both as a trade association on behalf of its members and as representative of the public, but agreeing that no cause of action was stated.

We assume, without deciding, that petitioner has standing to bring this proceeding and, on the merits, agree with the unanimous view of both lower courts that the challenged directive was neither arbitrary nor contrary to law, resulting in dismissal of the petition. The allegation of “imminent danger” that respondents have by improper action jeopardized public health and safety is, as the courts below found, without any demonstrated basis; the directive was issued after review of health and other issues, and a study conducted by an engineering consultant. The purported requirement of the Building Code that installation of combination fire standpipes be only by master plumbers is not imposed by article 17 (Administrative Code of City of New York § C26-1700.1 et seq.), specifically regulating “Fire Alarm, Detection, and Extinguishing Equipment.” Moreover, the 1982 directive itself contemplates that while the combination standpipe may be installed by contractors, any connections with the potable water supply system will be made by master plumbers and will comply with Reference Standard RS-16 (see, Administrative Code, art 16, “Plumbing and Gas Piping”, § C26-1600.1 et seq.). Petitioner further urges that respondents have failed to comply with necessary rule-making procedures under New York City Charter § 1105, but even assuming that a rule or regulation of the Building Department were in issue, the failure to present this specific issue to the court below precludes consideration by us as a ground for reversal (Cohen and Karger, Powers of the New York Court of Appeals § 161 [rev ed]). Finally, petitioner demonstrates no basis for its assertion that the environmental laws are applicable to this administrative directive. Indeed, the State En vironmental Quality Review Act expressly excepts “inspections and licensing activities relating to the qualifications of individuals or businesses to engage in their business or profession” (6 NYCRR 617.13 [b] [11]).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye amd Alexander concur.

Order affirmed, with costs, in a memorandum. Question certified not answered as unnecessary.

* Both directives were issued by Commissioners of the New York City Department of Buildings and spelled out procedures for the installation of fire protection systems under the Administrative Code of the City of New York. Respondent Commissioner’s directive reads in relevant part:

“effective immediately: The following work for the use of a combination standpipe riser serving the sprinkler system and hose bib (and rack) connections for a fire protection system shall only be installed by a Licensed Master Plumber:

“1. Connections to a public water main or any water supply up to and including the check valve, back-flow preventor, or any other suitable protective device required by the Code or specified by the (Architect or) Engineer.

“2. Installation of the fill line serving a combination domestic and fire protection reserve tank, including the tank fill pump.

“3. The connection from the combination fire protection and domestic reserve tank to the combination fire protection line up to and including the control and check valves.

“4. Any connections with the potable water supply system or to any part of the water or sanitary plumbing system from the check valve to the fixture or plumbing line.

“exception: Either a Licensed Master Plumber or a Mechanical, Sprinkler or Steam-fitter Contractor may install the combination standpipe riser, and the sprinkler piping itself provided that the appropriate safeguards of Reference Standard RS-16 and any additional requirements specified by the (Architect or) Engineer have been made for the potable water supply system.”