Carl E. Mooradian, Esq. Corporation Counsel, City of Niagara Falls

You have asked whether a plumbing subcontractor is considered to be "in the employ" of the person he renders service to for purposes of article 4 of the General City Law.

Section 45 of the General City Law requires that persons "desiring or intending to conduct the trade, business or calling of a plumber or of plumbing in a city[^*] of this state as employing or master plumber" must be certified by that city's examining board of plumbers. "Employing or master plumber" is defined as "a person having a regular place of business and who, by himself or journeyman plumbers in his employ, performs plumbing work" (General City Law, § 40).

As stated in your letter, the City of Niagara Falls is faced with a situation where a master plumber from another jurisdiction has been working as a subcontractor for a master plumber who holds a certificate from the City of Niagara Falls. The subcontractor does not have a certificate from the City of Niagara Falls. Your question is whether, under the terms of section 40 of the General City Law, the subcontractor is considered to be in the employ of the master plumber holding a certificate from the City of Niagara Falls, thus enabling him to provide plumbing services without being personally certified.

Under the statute, only journeyman plumbers in the employ of a certified master plumber need not be certified. We believe the Legislature intended that only employees of the certified master plumber need not be certified. Through this scheme, the public is protected from unskilled plumbing work by the certification required of the employing or master plumber who employs, supervises and controls the journeyman plumber's work activities (see 1981 Op Atty Gen [Inf] 285). A subcontractor by definition is not an employee and the master plumber could not exercise the requisite control over his work. Thus, a subcontractor may not perform plumbing work in the city without certification.

You have also asked, in the event that there is a violation of the General City Law, which party would be in violation, the master plumber from Niagara Falls, or the subcontractor.

Section 45 of the General City Law makes it unlawful for a non-certified person to engage in the business of plumbing. A non-licensed subcontractor who engages in the business of plumbing would, therefore, be in violation of this section. Section 55 of the General City Law makes violations of the provisions of article 4 misdemeanors.

We conclude that a subcontractor providing plumbing services to a certified master plumber is not considered to be employed by that master plumber within the meaning of article 4 of the General City Law, and, therefore, must be certified to perform plumbing work in a city.

^* This provision does not apply in the cities of New York, Binghamton, Schenectady, Poughkeepsie and Glens Falls (General City Law, § 57).