Dear Cyndy, Thank you for your letters. My embarrassment at having interfered with your surgical plans has not yet dissipated. Of course, I believe that your postponing the decision about the timing of surgery on the fellow eye is correct. Nothing to be lost, and perhaps something to be gained. My right knee and leg have much improved. The pain has long since gone and the edema is much less. I'm wearing an elastic stocking which seems to help. Last Thursday I finally received the "Administrative Record" which the Plumbing Board is required to file as its answer to my lawsuit. Because I knew it would take possession of my thoughts, I didn't read it until Friday; and since then I have been working on a memorandum (brief) which I won't send until the Nantucket Building Department has filed its answer. They have until April 1, to do so, and may well default, as they did last time, knowing that the courts will never punish them for not complying with the rules. For obvious reasons I haven't been able to accomplish anything else. I am pleased with my Memorandum, as I am usually pleased with what I write, - and since it's in the computer already, it's very easy to attach to this letter, and I will do so, with the obvious proviso that you can erase it with the stroke on the keyboard, if it annoys you. It's already 4 p.m., and I haven't gotten today's views from Nantucket yet. I'll do that next. Then help Klemens put the rack for their skis on the roof of the car. He and his family are going to Bretton Woods early tomorrow morning for 4 days of skiing. The days when I could do that are past. Stay well, and give my best to Ned. Jochen ============================================================ Commonwealth of Massachusetts Superior Court Suffolk, ss. Civil Action No. SUCV2008-05664-E _____________________________________ | Ernst J. Meyer, | appellant | v. | Nantucket Building Department | and | Board of State Examiners of Plumbers | and Gasfitters,| respondents | _____________________________________| Memorandum ========== As of the filing of this Memorandum the appellant has not been served with an Answer by the defendant the Nantucket Building Department. This Memorandum, therefore, addresses only issues raised in the Administrative Record as filed with the Clerk of Suffolk Superior Court on February 10, 2009. The Underlying Issue ==================== The underlying and overarching issue of this controversy is whether or not the State Board of Plumbers and Gas Fitters is legally authorized to criminalize do-it- yourself plumbing, an activity which is widely pursued by citizens of the Commonwealth, an activity which is aided and abetted by hundreds of commercial organizations in the Commonwealth that not only sell plumbing supplies, plumbing tools and plumbing fixtures to the public, but encourage, advise and teach unlicensed persons how to accomplish their do-it- yourself projects. The Office of the Attorney General has consistently declined to take action against do-it- yourself plumbers and against those commercial enterprises which encourage, aid and abet do-it-yourself plumbers. The well-established tolerance by the Office of the Attorney General of do-it-yourself plumbing constitutes endorsement and validation of the plaintiff's interpretation of the law. - 2 - Two Issues of Law ================= This case hinges on two issues of law: 1) Whether pursuant to 142 MGL 1 and 3, the appellant is a journeyman plumber and 2) Whether, if the appellant is not a journeyman plumber pursuant to 142 MGL 1 and 3, and therefore, the appellant, not being a journeyman plumber has the right to engage in do-it-yourself plumbing, the Board of State Examiners of Plumbers and Gas Fitters, (hereinafter "the Board") is authorized under 142 MGL 13, to make rules which deprive the appellant of that right to engage in do-it- yourself plumbing which in enacting 142 MGL 1 and 3, the General Court has implicitly preserved for him. 142 MGL 13 authorizes the Board to make "rules and regulations relative to the construction, alteration repair and inspection of plumbing ... which rules shall be reasonable uniform and based on generally accepted standards of plumbing practice;" One Issue of Fact ================= 3) In the event that the Court finds that the law did prohibit the appellant from engaging in do-it-yourself plumbing, and that the Nantucket plumbing inspector did have discretion to order, sight unseen, the destruction of the appellant's plumbing, then there arises an issue of fact: to wit, whether the plumbing inspector's determination that the appellant's plumbing should be destroyed was abuse of discretion. The interpretation of 142 MGL 1 and 3 ===================================== A) The argument from logic On Page 37 of the Administrative Record the Board of State Examiners of Plumbers and Gas Fitters (hereinafter "the Board"), cites 142 MGL 3: No 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. It further adduces the definition of "journeyman plumber" in 142 MGL 1 as - 3 - "a person who himself does any work in plumbing and gas fitting, subject to inspection under any law, rule or regulation." The Board interprets these Sections of the Statute as prohibiting the appellant from engaging in unlicensed do-it- yourself plumbing. The appellant argues to the contrary, that these Sections of the Statute must be interpreted to exactly the opposite effect and that they do NOT prohibit him from engaging in unlicensed do-it-yourself plumbing. The statute defines the journeyman plumber who is required to be licensed as "a person who himself does any work in plumbing AND gas fitting". (Upper case emphasis added here and throughout below.) This definition, which is purported to deprive the appellant of a civil right, must be accurately construed. If a journeyman plumber is "a person who himself does any work in plumbing AND gas fitting" then a person who himself does work in plumbing but who does NOT do work in gas fitting, is NOT a journeyman plumber. According to the definition, a person must do work BOTH in plumbing AND gas fitting in order to be categorized as a journeyman plumber. The appellant's Amended Appeal states affirmatively that he did not, does not, and will not do any work in gas fitting, an assertion which the Board does not dispute. The appellant claims that since he does NOT do any work in gas fitting, his plumbing activities alone do not satisfy the definition of 142 MGL 1 of a journeyman plumber and that therefore his plumbing requires no license. Moreover that the definition of "journeyman plumber" as one "who himself does any work in plumbing AND gas fitting" was not an inadvertent slip-up by the draftsman of the code, must be conclusively inferred from the circumstance that from 1894 until 1977, the definition of journeyman plumber was "a person who himself does any work in plumbing." The restriction "AND gas fitting" was appended in 1977 to yield the present formulation. Inasmuch as the class of persons who do work in both plumbing and gas fitting is smaller, likely much smaller, than the class of persons who do work only in plumbing, the General Court in 1977 deliberately reduced the class of persons who are journeyman plumbers and require to be licensed, and deliberately enlarged the class of persons who are not journeyman plumbers and who are therefore permitted to do plumbing without a license. The word "AND" with its mathematical logical implication is the most definite and unambiguous concept in the language. The appellant respectfully states that if the foregoing argument is persuasive to the Court, then the ensuing paragraphs are redundant. - 4 - B) The Argument from Semantics Significantly, 142 MGL relies on only one term: "do any work in plumbing" to characterize plumbing activity and makes no reference to persons "engaging in" plumbing. 142 and 143 MGL, however use two terms: "engage in gas fitting" and "do any work in gas fitting" to characterize gas fitting activity. Given the close analogy between plumbing and gas fitting, a determination of the meaning of "do any work in gas fitting" will shed light on the disputed meaning of "do any work in plumbing." Statutes must be interpreted to minimize ambiguity. Hence there is a strong presumption that two different terms describing a given domain are not synonymous. "do any work in gas fitting" must be deemed distinct from "engage in gas fitting". Therefore, if it is intuitively obvious that all persons who do work in gas fitting thereby also engage in gas fitting, the converse cannot be true. Not everyone who engages in gas fitting, does work in gas fitting; accordingly there must be a class of persons who engage in gas fitting who do not do work in gas fitting; and given the close analogy between plumbing and gas fitting, there will be a class of persons who engage in plumbing but who do not do work in plumbing. The members of this class, to which the appellant belongs, are, by definition, not journeyman plumbers, and do not require to be licensed. C) The Arguments from Context It is a matter of common, universal experience, that the intrinsic meaning of words is severely limited; that few words, if any, are susceptible of interpretation except in the context in which they are used. Exhibit #1 is a computer printout of the Google instruction "define: right" and demonstrates that this word is uninterpretable except in its context. Similarly the term "journeyman plumber" and its definition in 142 MGL 1 and 3, as well as the associated terms explicitly requiring professional licensure become meaningful only in the contexts in which they occur. The immediate context for the interpretation of the term "journeyman plumber" as used in 142 MGL 1 and 3, is 142 MGL 3 itself: The Context of Plumbing as Business =================================== 142 MGL 3 explicitly addresses plumbing as a business, a trade and occupation. 142 MGL 3 states: No person shall engage in the business as a master plumber or a master gas fitter or work as a journeyman - 5 - plumber or as a journeyman gas fitter or as an apprentice plumber or as an apprentice gas fitter or as an undiluted liquefied petroleum gas installer or as a limited undiluted liquefied petroleum gas installer, nor solicit, by sign, listing or any other form of advertisement, work regulated or controlled by this chapter or by any ordinance, by-law, rule or regulation made hereunder, unless he is lawfully registered, or has been licensed by the examiners as provided in this chapter. Any person so licensed as a master plumber or a journeyman plumber may carry on the work of a gas fitter throughout the commonwealth, notwithstanding any local ordinance, by-law, rule or regulation to the contrary, and may engage in the work of installing house drainage and connecting with common sewers without being required to have any local license therefor, but shall be subject to local regulations relative to permits and bonding requirements. No phrase of the foregoing 142 MGL 3 refers to private activity. Every phrase of the foregoing 142 MGL 3 refers to public activity. The term "journeyman" itself etymologically refers to a workman who works for hire, and who is paid by the day. To the extent that the words "does any work" in the 142 MGL 1 definition of journeyman plumber are open to construction, their interpretation must be governed by the perspective of public commercial activity which suffuses 142 MGL 3. This interpretation is corroborated by the historical consideration that in 1894 when 142 MGL 1 and 3 were initially enacted, the techniques of plumbing were difficult and cumbersome: waste and vent plumbing were accomplished by the use of very heavy cast iron pipes joined with seals of molten lead; supply lines were pipes of galvanized steel that required cutting and threading with expensive machines. There was in 1894 little if any occasion for do-it-yourself plumbing. Accordingly, 142 MGL 1 and 3 was originally aimed not at do-it-yourself hobbyists but against general contractors and their non-plumber employees who had ample opportunity to observe how plumbers did their work, and who might find it practical to purchase and to use expensive plumbing equipment. When in 1977, the General Court saw fit to relax the restrictions on non-professional plumbing by narrowing the definition "journeyman plumber", this may have been the case because the introduction of ABS pipes, easily clamped, and PVC pipes readily glued to their fittings, and of copper tubing quickly soldered with a propane flame, had made plumbing technology accessible to the large Massachusetts population of scientifically sophisticated and technically proficient persons who might wish to do their own plumbing. When technical innovation made do-it-yourself plumbing possible, the General Court relaxed the prohibition against unlicensed plumbing in order not to stand in the way. - 6 - The Context of Professional Licensure ===================================== 142 MGL 1 and 3 must also be interpreted in the context of governmental administration. The Board of State Examiners of Plumbers and Gas Fitters is one of 31 Boards of Professional Licensure in the Division of Professional Licensure under the "Office of Consumer Affairs and Business Regulation". All of these Boards are authorized to regulate business, to examine, license and discipline tradesmen or professional persons who offer their services to the public. None of these Boards is authorized to license, discipline or otherwise control individuals who do not offer their services to the public but act only in their own behalf. All uncertainties and ambiguities concerning the authority of the Board of State Examiners of Plumbers and Gas Fitters, must be resolved and adjudicated in the context of authorities also vested in the other thirty Boards under the Division of Professional Licensure. The Context of the Attorney General's Interpretation of the Law ======================================================= By far the most compelling context in which any uncertainties and ambiguities concerning the authority of the Board of State Examiners of Plumbers and Pipe Fitters must be construed are the interpretations implicit in the policies and practices of the Office of the Attorney General. The constraints which the Board seeks to impose on the public are extraordinarily broad. Pursuant to 248 CMR 3.05(b)(1), promulgated by the Board: "Until a Permit has been issued by the Inspector, plumbing or gas fitting work shall not be: a. installed; b. altered; c. removed; d. replaced; or e. repaired." "(c) Exceptions to the Permit Requirement: A Permit is not required for plumbing involving the repair of leaks in a faucet, valve, or other working part of a plumbing fixture, or the clearance of a stoppage." Given that plumbing includes the maintenance of the plumbing system, arguably the leak in any non-working part of a plumbing system, the drainage of the supply system to prevent freezing, and even the replacement of a toilet seat requires a plumbing permit. Thousands of toilet seats are replaced each year in Massachusetts. The number of plumbing permits issued to licensed plumbers for the replacement of toilet seats is very small indeed. - 7 - Thousands of Massachusetts residents each month engage in plumbing procedures which the Board designates as illegal. Do-it-yourself plumbing is rampant in the Commonwealth. Each of the 43 Home Improvement Superstores operated by Home Depot in the Commonwealth and each of the 28 Home Improvement Superstores operated by Lowe's carry comprehensive inventories of plumbing fittings, plumbing pipe and plumbing supplies indiscriminately offered for sale to unlicensed individuals to do their own plumbing. Many of these stores assist such unlicensed individuals the advice of "Master Tradesmen Plumbers" to help them with plumbing projects which the Board stigmatizes as unlawful since it is plumbing performed without a license. The Attorney General's failure to interfere with this purportedly illegal activity in effect makes a mockery of the Board's prohibition and places the Commonwealth's seal of approval on do-it-yourself plumbing. There are in Massachusetts at least four large chains of hardware/home improvement stores, The Home Depot, Lowe's, True Value and Ace all of which advertise and sell to the general public, plumbing supplies and fixtures which according to the Board may lawfully be installed only by licensed plumbers. The larger of these establishments hire experienced plumbers to advise and instruct unlicensed individuals in the mechanics of plumbing. Exhibit 2, is a list of such home improvement stores in Massachusetts which offer plumbing advice and sell plumbing materials to the public. "You Can Do It, We Can Help" is the motto with which The Home Depot's 43 stores in Massachusetts promote, among other projects, do-it-yourself plumbing. The circumstance that the Office of the Attorney General, which so efficiently interdicts the illegal sale of prescription drugs, the illegal sale of of tobacco products and alcohol to minors, makes no effort to stop the purchase of plumbing supplies by unlicensed persons, is conclusive evidence that Departments of the Commonwealth other than the Board of State Examiners of Plumbers and Gas Fitters do not consider do-it-yourself plumbing unlawful. The Irregularities in the Administrative Record =============================================== The Administrative Record (hereinafter AR) filed in this action by the defendant the Board of State Examiners of Plumbers and Gasfitters is irregular in the following respects: 1. The Administrative Record, pp 5-9, reproduces only the first five pages of the appellant's appeal, received on December 10, 2008 and styled "Appeal of Ernst J. Meyer". It is reproduced as pages 5 through 9 of the Administrative Record. The 6th page of that Appeal, (Exhibit 3) is not reproduced. This 6th page contains two prayers for relief - 8 - which the Board has denied, to wit: 5) That the plumbing at 3 Red Barn Road, Nantucket, then be inspected as if this controversy had never arisen. 6) That 248 CMR 3.05(1)(b)(7)(a) be amended as follows: "Permits shall be issued only to licensed plumbers and to those unlicensed persons who do not render plumbing services to the public." 2. The "Board minutes reflecting in the narrative form the testimony at meeting" (AR 32) are at variance with the account titled "Decision" (AR 37) in the Final Decision and Order signed on January 2, 2009. The "Board minutes reflecting in the narrative form the testimony at meeting" (AR 32) correspond in substance to the appellant's memory of that meeting on December 17, 2008, which he attended. On the other hand, the Board's Final Decision and Order (AR 37), signed on January 2, 2009, describes either a hearing at which the appellant was not present or a hearing essential details of which were fabricated to justify the Board's decision. The Final Decision and Order (AR 37) reads in part as follows: "Mr. Ciarmataro has stated that his decision was based on Massachusetts General Law Chapter 142, Section 3 ...." "Mr. Ciarmataro has emphasized to the Board his belief that Mr. Meyer has engaged in work as a journeyman plumber..." "Mr. Ciarmataro also correctly noted that the Board, pursuant to G.L. c.112 Section 65a, routinely disciplines individuals who engage in the practice of plumbing without a license." (AR 37) The appellant was not present when Mr. Ciarmatoro made any of the foregoing statements. The Final Decision and Order (AR 37) further states: "Mr. Ciarmataro, during the hearing, drew the attention of the Board to a previously decided court case, Herrick v. Arthur E. Butler et al., No 1524 (Nantucket Super. Ct., Aug 29, 1972)." (AR 37) The foregoing statement wrongfully implies that Mr. Ciarmataro "drew the attention of the Board" to Herrick v. Butler at a hearing which the appellant attended. At the hearing which the appellant attended, Mr. Ciarmataro, though present, was not heard by the appellant to say a single word. Either Mr. Ciarmataro's citation of Herrick v. Butler is an invention or it was made at a hearing from which the appellant was excluded. In any event, the reliance of the Board on Herrick v. Butler should serve to invalidate its decision, inasmuch as the Massachusetts Appeals Court does not permit the citation of or reliance on unpublished decisions. (Lyons v. Labor - 9 - Relations Com'n, 476 N.E. 2nd 243) Mr. Ciarmataro's and the Board's reliance on this unpublished case is especially prejudicial inasmuch as the Board has failed to file the document which it cited and on which it purports to rely, and the Administrative Record as filed makes it possible neither for the appellant nor for the Court to evaluate the Board's interpretation. The Administrative Record proceeds: In response to Mr. Ciarmataro's presentation, Mr. Meyer has cited G.L. 143 s 3N with regards to a belief that it allows unlicensed people to engage in gas fitting ..." The foregoing statement is erroneous in two respects: A) It was on December 8 and December 14, that Meyer cited 143 G.L. 3N, at minimum 3 days before he could have responded to a presentation by Mr. Ciarmataro, which, if it had occurred at all, would have happened on December 17, a presentation which, in any case, real or fictitious, Meyer was not privileged to attend. B) There is nothing in the record to indicate that Meyer cited 143 MGL 3N in the belief "that it allows unlicensed people to engage in gas fitting." Precisely the opposite is the case. 143 MGL 3N states: No person shall engage in gas fitting...." Meyer cited 143 MGL 3N as evidence that when the General Court wishes to prohibit all persons from gas fitting, it says "No person shall engage in gas fitting...", with the inference that if the General Court wished to prohibit all persons from plumbing, it would say: "No person shall engage in plumbing ..." But such a statement is nowhere to be found. The hearing of December 17, 2008 was not a full and fair hearing: A) Because the Board based its decision on an unpublished case of which the appellant could have no prior knowledge, B) Because the charge against the appellant, to wit that he was a journeyman plumber was not disclosed to the appellant prior to the hearing, was not disclosed to the appellant at the hearing, but was disclosed to the appellant only in a Final Decision and Order which was received by the appellant on January 5, 2009, nineteen days after the hearing and ten days after he had filed his appeal in the Superior Court. C) Because no stenographic or electronic record of the hearing was created, and the appellant had no opportunity to hear the testimony on the basis of which the Board states that it ruled against him or to cross examine the witness(es) who gave it.