Chris Khamnei v. Burlington Public Works Commission
No. 2017-122
Supreme Court of Vermont
February 16, 2018
2018 VT 19
Robert A. Mello, J.
November Term, 2017
Chris C. Khamnei, Pro Se, Burlington, Petitioner-Appellant.
Eugene M. Bergman, Senior Assistant City Attorney, Burlington, for Respondent-Appellee.
PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Davenport, Supr. J. (Ret.), Specially Assigned
¶ 1. EATON, J. Applicant Chris Khamnei appeals a decision of the superior court affirming the Burlington Public Works Commission‘s denial of his request for permits to complеte plumbing work in a building he owns because he failed to identify the name of a licensed professional plumber who would perform the work. On appeal, applicant argues that the applicable statute and accompanying regulations allow property owners to perform this type of work without a plumbing license. We affirm.
¶ 2. The underlying facts are not disputed. Applicant owns property located in Burlington, Vermont. Applicant does not reside in the property. In February 2016, he submitted applications for two permits to perform plumbing work at the property, which he described as follows: (1) connect a hot-cold water supply to a Jacuzzi instant hot water heater, and (2) repair a
¶ 3. Applicant appealed to the Burlington Public Works Commission. Before the Commission, he argued that the statute exempted property owners or their maintenance workers from the obligation of having a licensed individual perform the type of work that applicant was proposing. The Commission held a hearing at which both applicant and the plumbing inspector appeared. The plumbing inspector testified regarding the scope of work that would be required to perform the tasks that applicant had listed on the permit applications. The inspector stated that to connect the water supply to the new Jacuzzi water heater would require installation of shut-off and anti-scald valves as well as an expansion tank, and that to replace the cast iron рipe would entail disconnecting branch lines and installing updated fittings. The inspector opined that this work was more than maintenance, repair, or alteration, and thus fell outside of the statutory exception to the requirement that a licensed plumber perform the work. The Commission took a narrow view of the statutory exceptions in light of the licensing and permitting laws’ purpose of protecting public health, safety, and welfare. The Commission concluded that the work described was more than simple maintenance, repair, or alteration, and affirmed the plumbing inspector‘s decision.1
¶ 4. Applicant appealed the Commission‘s decision to the superior court, which conduсted an on-the-record review. See
¶ 5. When there is an intermediate level of appeal from a decision of an administrative body, this Court applies the same standard of review as in the intermediate appeal. Rhoades Salvage/ABC Metals v. Town of Milton Selectboard, 2010 VT 82, ¶ 13, 188 Vt. 629, 9 A.3d 685 (mem.). As applied in this case, this Court must determine, like the superior court, whether the facts developed before the Public Works Commission demonstrate there was a “reasonable basis” for its decision. See State Dep‘t of Taxes v. Tri-State Indus. Laundries, Inc., 138 Vt. 292, 294, 415 A.2d 216, 218 (1980) (“[J]udicial review of agency findings is ordinarily limited to whether, on the record developed before the agency, there is any reasonable basis for the finding.“). Findings of fact will be affirmed if supported by the evidenсe. In re Agency of Admin., 141 Vt. 68, 74-75, 444 A.2d 1349, 1352 (1982).
¶ 6. We begin with the statutory framework. Pursuant to statute, “[a]ll plumbing and specialty work performed in Vermont shall be performed by persons licensed under [the plumbing] chapter.”
¶ 7. Section 2198(a)(3) exempts from the licensing requirement work performed by “[a] person who regularly employs a maintenance person whose duties include the maintenance of plumbing on the property of that person.” Applicant agrees that the work he proposes is not “maintenance.” He contends, however, that there was an error in the statutory drafting and that the statute should be read to аlso exempt installation. Some statutory history is necessary to understand this argument. The provision at issue was adopted in 1959, and exempted work by “[a]
¶ 8. Applicant argues that because the changes to § 2198(a)(3) were not properly notated in the session law, there was a mistake and therefore the words “installation and” should be read back into the statute. In construing statutes, our “principal goal is to effectuate the intent of the Legislature.” Tarrant v. Dep‘t of Taxes, 169 Vt. 189, 197, 733 A.2d 733, 739 (1999). We first look to the lаnguage and give effect to the plain meaning of the statutory language used “because we presume that it shows the intent of the Legislature.” State v. Papazoni, 159 Vt. 578, 580, 622 A.2d 501, 503 (1993). If the language is ambiguous, “legislative intent must be determined through consideration of the entire statute, including its subject matter, effects and consequences, as well as the reason and spirit of the law.” Tarrant, 169 Vt. at 197, 733 A.2d at 739.
¶ 9. Here, the stаtute as written is unambiguous. It exempts maintenance, not installation. Applicant‘s argument is that “installation and” should be read back into the statute because it was not properly removed in the session law. He asserts that removal of “installation
courts may provide minor omissions or make minor substitutions in the enactments of the legislature where (1) such action is necessary in order to give vitality to or prevent absolute absurdity in the acts of the legislature; (2) an omission has occurred or a correction is necessary because of a clerical or typographical error; (3) the legislation, as enacted, was obviously not within the comprehension of the legislative body, and (4) the legislative intention, with respect to the enactment, is clear.
Woerner v. City of Indianapolis, 177 N.E.2d 34, 38 (Ind. 1961).
¶ 10. These narrow exceptions do not apply in this case.2 While it is evident that the statutory language was altered without the proper notation in the session law, it is not obvious that the revision was done erroneously. The revisions in § 2198(а)(3) are not contrary to the purpose of the statute and do not produce an absurd result. In fact, the alterations to § 2198(a)(3) are consistent with the other changes made at that time and with the overall intent of the statute. The
¶ 11. For these reasons, we decline to read “installation and” into § 2198(a)(3) and apply its language as written. Given applicant‘s concession that the work he proposed was not maintenance, this exception does not relieve applicant of the obligation to have a licensed individual perform the work he proposed.
¶ 12. Applicant also argues that the work did not require a licensed plumber under the statutory exemption for work performed by “[a] person who performs miscellaneous jobs of manual labor on the person‘s own property in the course of which plumbing repairs or alterations are made.”
¶ 13. To ascertain whether the work applicant proposes fits within the statutory exemption involves questions of law and fact. The scope of the work to be performed is a factual question; the meaning of the statutory language is a legal question. As to the factual determination, the Commission credited the testimony of the plumbing inspector that the work proposed by applicant required installation of additional plumbing fixtures, including shut-off and anti-scald valves, an expansion tank, and updated fittings. On appeal, we employ the same standard as the superior court and give deference to the findings of the Commission. Soon Kwon, 2011 VT 26, ¶ 7. Because these findings are supported by the evidence, we accept them on appeal. Therefore, we must determine whether there was a reasonable basis for the Commission‘s decision that the work proposed was not “repairs or alterations” within the meaning of § 2198(a)(5). See Soon Kwon, 2011 VT 26, ¶ 6 (explaining that this Court will affirm agency decision that has “any reasonable basis“).
¶ 14. The terms “repairs” and “alterations” are not defined in the statute. “Words that are not defined within a statute are given their plain and ordinary meaning, which may be obtained by resorting to dictiоnary definitions.” Franks v. Town of Essex, 2013 VT 84, ¶ 8, 194 Vt. 595, 87 A.3d 418. “Repairs” is defined by the Cambridge dictionary as “to put something that is damaged, broken, or not working correctly, back into good condition or make it work again.” Repair, Cambridge Dictionary (2018), https://dictionary.cambridge.org/dictionary/english/repair [https://perma.cc/E279-JB2B]. “Alteration” is defined as “a change, usually a slight change, in
¶ 15. The statutory scheme and the statutory purpose also provide some guidance about the intended scope of repairs and alterations. See State v. Love, 2017 VT 75, ¶ 9, __ Vt. __, 174 A.3d 761 (“If the statutory language provides insufficient guidance to ascertain legislative intent, we look beyond the language of a particular section standing alone to the whole statute, the subject matter, its effects and consequences, and the reason and spirit of the law.” (quotation omitted)). The exemption related to work by an owner in an owner-occupied residence exempts “[a]ny plumbing and specialty work,” which demonstrates that repairs and alterations was meant to be something less than “any” plumbing work. To construe repairs and alterations broadly would produce an effect contrary to legislative intent. That the § 2198(a)(5) exemption was intended to be more limited than that for owner-occupied single-family dwellings is also consistent with the public-protection purpose of the statute. Both the common definitions and the statutory structure and intent support a conclusion that the Legislature‘s use of the words repairs and alterations was meant to exempt work by an owner that fixes broken plumbing or makes slight changes to the structure of thе plumbing.
¶ 16. We conclude that there was a reasonable basis for the Commission‘s conclusion that the work applicant proposed in this case was not “repairs or alterations.”
Affirmed.
FOR THE COURT:
Associate Justice