20161014.00ack The consequence of this case is anomie and lawlessness, intellectual and moral chaos. The credibility of the inspector, of the building commissioner, of the building department of the Board of selectmen, of the Town of Nantucket, of the Plumbing Board, its Chairman and its lawyer, of the Division of professional Licensure, of the Government Bureau, of the Attorney General, of the Governor¬ of the Superior Court. To be determined is the credibility of the Appeals Court. The legislature for enacting a patently unconstitutional law. Every facet of government collapses in falsehood. Language loses its meaning; there is no truth. There is only deceit. In the Stop and Shop parking lot that clear warm December day, it was obvious that until the plumbing had been approved, Margaret and I could not stay in the house, - we drove to the Steamship Wharf, obtained a reservation for the evening boat, drove to Madaket to collect our clothes and came home to Belmont. I now renewed my efforts to find a plumber. As if I hadn't tried before! I made telephone calls to all the plumbers in the directory. Mr. Mike White Faucetman Plumbing Dear Mr. White, .PP Thank you for your telephone advice. .PP The address of my house is 3 Red Barn Road, Nantucket. When one drives out on Madaket Road there is an intersection with Cambridge Street about 1/2 mile from the ocean. At this intersection there is on your right a large blue and white sign :Madaket Marine", on the left there is a large sign "Tristrams Landing". At this intersection you turn left (east) past the Tristram's Landing sign onto South Cambridge Street, which soon becomes a dirt road and leads down to the single lane Massasoit Bridge across Long Pond. Upon crossing Long Pond the road branches. Red Barn Road veers off to the right, up a small incline. At the top of this incline there branches a single lane dirt road 300 feet to a transformer, and at the transformer there is a driveway, 250 feet long, which leads to the house. .PP Attached is a plumbing permit application completed except for the plumber's signature. For the purpose of certifying that I do not require you to have current liability insurance, you have my permission to act as my agent and so to endorse the application. Please let me know the plumbing permit fee. I would also like to pay you in advance for your estimate and for your obtaining the plumbing permit. Please let me know the amount of the check I should mail to you. Please advise me when you would like me to meet you at the house. .PP Thank you for your help. .nf Sincerely yours, Ernst J. Meyer Ernst J. Meyer 174 School Street Belmont, Massachusetts 02478 617-484-8109 617-548-5758 (cell) 617-489-1043 (fax with prior notice) ernstmeyer@earthlink.net December 2, 2008 Mr. Mike White Faucetman Plumbing Dear Mr. White, Thank you for your telephone advice. The address of my house is 3 Red Barn Road, Nantucket. When one drives out on Madaket Road there is an intersection with Cambridge Street about 1/2 mile from the ocean. At this intersection there is on your right a large blue and white sign :Madaket Marine", on the left there is a large sign "Tristrams Landing". At this intersection you turn left (east) past the Tristram's Landing sign onto South Cambridge Street, which soon becomes a dirt road and leads down to the single lane Massasoit Bridge across Long Pond. Upon crossing Long Pond the road branches. Red Barn Road veers off to the right, up a small incline. At the top of this incline there branches a single lane dirt road 300 feet to a transformer, and at the transformer there is a driveway, 250 feet long, which leads to the house. Attached is a plumbing permit application completed except for the plumber's signature. For the purpose of certifying that I do not require you to have current liability insurance, you have my permission to act as my agent and so to endorse the application. Please let me know the plumbing permit fee. I would also like to pay you in advance for your estimate and for your obtaining the plumbing permit. Please let me know the amount of the check I should mail to you. Please advise me when you would like me to meet you at the house. Thank you for your help. Sincerely yours, Ernst J. Meyer Mr. Mike White Faucetman Plumbing Dear Mr. White, .PP Thank you for your telephone advice. .PP I'm sorry I couldn't make a fax connection. The information for the plumbing permit is as follows: BLDG. Permit # 637-07 Building Location: 3 Red Barn Road Owner's Name: Ernst J. Meyer Map 59.3; Parcel 44; Type of occupancy: single family New X ; Plans submitted: No X The address of my house is 3 Red Barn Road, Nantucket. When one drives out on Madaket Road there is an intersection with Cambridge Street about 1/2 mile from the ocean. At this intersection there is on your right a large blue and white sign :Madaket Marine", on the left there is a large sign "Tristrams Landing". At this intersection you turn left (east) past the Tristram's Landing sign onto South Cambridge Street, which soon becomes a dirt road and leads down to the single lane Massasoit Bridge across Long Pond. Upon crossing Long Pond the road branches. Red Barn Road veers off to the right, up a small incline. At the top of this incline there branches a single lane dirt road 300 feet to a transformer, and at the transformer there is a driveway, 250 feet long, which leads to the house. .PP Attached is a plumbing permit application completed except for the plumber's signature. For the purpose of certifying that I do not require you to have current liability insurance, you have my permission to act as my agent and so to endorse the application. Please let me know the plumbing permit fee. I would also like to pay you in advance for your estimate and for your obtaining the plumbing permit. Please let me know the amount of the check I should mail to you. Please advise me when you would like me to meet you at the house. .PP Thank you for your help. .nf Sincerely yours, Ernst J. Meyer After about five hours sleep, I awoke this morning with the conviction that neither you nor I should appeal, for the following reasons: 1) You shouldn't appeal because your appeal would be too expensive of your time, energy, earning power and potential legal fees, would add little to the strength of the legal case and would therefore not be beneficial to the family estate. 2) I shouldn't appeal because of my understanding of the way American "justice" works. Having perused on the Internet recent disciplinary actions of the Plumbing Board, I conclude that there is a significant possibility that the Board might punish me for appealing, by interpreting the requirement "to abate" as a requirement to remove what was wrongfully constructed. Appeals to the courts would take years to resolve, and might prove costly and unsuccessful. 3) I was in error in my surmise that this Order to Desist is permanent. On rereading, I conclude that once it is complied with it will be dissolved, and unpermitted plumbing subsequent to the completion of this project would require a second cease and desist order to invoke the statutory penalties. 4) So I will take a shower and start telephoning plumbers, and, unless I hear from you, let the Thursday or Friday deadline for appeal expire. - I doubt that further effort or anxiety over the matter are worth your time. Life is too short. Dear Cyndy, It's been an amazing and somewhat strenuous four days. Monday, three days ago, Klemens drove us to Hyannis for the early boat, which leaves at 9:15 a.m. We habitually travel with far too much luggage. There were three large duffel bags with clothes, the heaviest one of them containing also volumes of building, plumbing and electrical code. In addition I had lashed onto a hand truck four recessed lighting fixtures, two ceiling mounted infra-red electric heaters, one large cardboard box containing four bathroom exhaust fans, and another cardboard box with ducts and sheet metal fittings for the fans' installation. When we arrived at the dock, we stowed the three duffel bags on the baggage cart, and I rolled the hand truck to the bicycle rack beside the pier. Klemens drove back to Boston; Margaret and I sat in the waiting room at the ticket office until the ferry arrived. On Nantucket I had the help of a taxi driver with the three duffel bags. He then took me to the house in Madaket, while Margaret stayed at the pier to guard the hand truck which I had left behind, because it was much too large for the taxi. As soon as I had taken the bags into the house, I drove off to fetch Margaret and the hand truck in the old 1995 Dodge minivan, which I found waiting for me, having left it behind to guard the house. Its doors are so badly rusted, that it is necessary to bandage them with duct tape to keep various gaskets from falling out. As I drove off our land, there were four hunters who had stationed themselves at the entrance of our land. I motioned to to leave. My first stop, after picking up Margaret and the building supplies, was at Marine Home Center, to buy four plastic "No Hunting" signs. Then we drove on to the Stop and Shop to buy groceries for the next several days. But before I had even managed to get out of the car my cellphone rang. It was Laura, my daughter-in-law, who had accepted a certified letter from the Nantucket Plumbing inspector with an official document ordering me to "Cease and Desist" from plumbing without a permit in violation of the Plumbing Code and to commence within twenty-four hours, "Action to abate this violation permanently within three days." "A Massachusetts licensed plumber must apply for and receive the necessary permit(s)." Apparently the friendly framing inspector who had declined to certify the framing because the electrical and plumbing inspections had not been made, discovered on returning to his office, that no plumbing permit had ever been issued, and set in motion the legal machinery that was enacted to protect the health and welfare of the people of Massachusetts. I told Margaret under the circumstances it would be impossible for us to stay, inasmuch as merely turning on the water and flushing the toilets might be construed as a violation of the Order, penalty for which is $1000, with each day deemed to constitute a separate offense, - much too expensive for my budget. We would return on the evening boat if we could get a reservation. Notwithstanding considerable discomfort, I concluded that waiting until we got back to the Steamship Authority Terminal, - which has very elegant toilet facilities, was the better part of valor. We left the house at 3:15, to be at the wharf in time to claim our standby reservation for the 5:30 boat. On the way to town, we made a short detour to Madaket beach. Obviously it had sustained further severe erosion. Yet another house at the water's edge was being hoisted onto an array of I-beams for removal to a safer site. I was reminded that a fate worse than a Stop Plumbing Order would have befallen me if I had realized my wish for an ocean-front house. Not surprisingly, on the trip to Belmont I was preoccupied, and have been since, - with the consequences of this not entirely unexpected turn of events. I had anticipated that the Town might make trouble over our living in the house during construction and for that reason we had moved out before the framing inspector was invited in. Since in any event, a plumbing permit is required precedent to a framing inspection, the stop work order seems gratuitous; It has no practical consequences except to interrupt the construction and to make the plumbing more expensive for me. In retrospect, my judgment to postpone the framing inspection until I had completed the plumbing was correct. At this juncture, the Stop Plumbing order gives me a persuasive starting point for negotiations with plumbers. I no longer need to ask them "Will you pull a permit for me, and let me so some or all of the work?" I now ask them: "Can you get me out of trouble?" Few, if any of them, perceive the irony in my request. I use the 2009 Nantucket Telephone directory, and starting with "Abrams Point Plumbing 508-257-4678" which had been disconnected, I call each of 16 numbers in succession: one fails to answer, but rings interminably, three are not in service, one answered with a fax tone, and ten had answering machines. On the sixteenth try to a number listed under the not exactly confidence inspiring appellation "Faucetman Plumbing" I receive an answer from a human being, one Mike White, no less, who confided that he answered the phone in person, because he was not very busy. He spoke with me as if he had only been waiting for problems such as mine to demonstrate his interest, who offered to obtain a permit for me right away and asked me to fax to him a completed plumbing permit application with a covering letter containing essential details. I did so yesterday afternoon, haven't heard from him since, and left a message on his answering machine, to which I have not yet had a reply. As time went on, I had five other responses all willing to help - for a fee, most of them implying that a personal conversation with the inspector was essential. Tony Barone gave, in a somewhat hostile tone, a lecture about how in Massachusetts, everything, even a faucet repair, has to be done by a plumber; David Dussault and Dennis Parks confronted me with the threat that "he (the inspector) might make you tear it all out." David Kinney asked me where I had gone to school to learn plumbing. "Harvard" was not the answer he expected. The most interesting conversation was with a plumber named Joe Ciarmataro, about whom some weeks ago I read a rather foolish newspaper story in The Independent. It was during the recent political campaign in which "Joe the Plumber" was an issue. Nantucket, according to the newspaper, had its own Plumber Joe, namely Joe Ciarmataro who was significant not because he had challenged Barack Obama about a tax issue, but because he had filed suit against a local bank for having saddled him with a mortgage which he could not afford. I noted that William Ciarmataro, the plumbing inspector who had issued the Order to Stop and Desist had the same last name as Nantucket's Plumber Joe. When he returned my call, I asked early in the conversation whether he was related to the Inspector? Is he your father? No, he's my brother. I'm in deep trouble, I said. I explained that I had forfeited even the right to visit the toilet in my own house. Will you rescue me from your brother? I implored. Sounds to me, he said, as if you just need someone to pull a permit for you. why don't you ask my brother. He can suggest the names of someone who will pull a permit for you. Wouldn't you like to be the one who pulls the permit? I asked. Well, he said, I'll talk to my brother and get back to you tomorrow at the same time as now. If he's true to his word, I should hear from him in about 40 minutes. Joe the Plumber telephoned at about eight o'clock. His voice was dry and rough. "I talked to my brother," he said, "and he wants it all pulled out. When do you want me to come over to start?" Understandably, I was somewhat taken aback. I explained that my mind, at that point was somewhat unsettled, but that I would telephone him, once I knew what I wanted to do. This morning I took the bus and subway to the office of the Plumbing Board to file my appeal from the Plumbing Inspector's decision. I thought the small dingy secretary's office might appear in a chapter of Kafka's novel "Amerika". The Dutch door was blocked with a narrow counter, which was not opened, and where I remained standing during my visit. An obese black skinned woman with brightly dyed red hair shouted to me from the back of the office. When I failed to understand her, she lumbered forward and acknowledged my request to file an appeal. From the computer she generated a form for me to complete, and while I was writing, she disappeared. I waited about fifteen minutes for her to return. But in vain. At the edge of the narrow Dutch door counter stood a small shiny bell fitted with a central plunger, intended to be used to summon assistance. But when I tried to depress it, the plunger proved immobile. Finally I struck the bell with my ball point pen, then promptly as if summoned by magic, there appeared a man in his seventies. He had been sitting not far from the door; I had been able to overhear his informal and somewhat jovial telephone conversations. Referring to the over-weight secretary, I said by way of opening. "The lady has abandoned me." "Oh, but I am here, he replied." His demeanor was in fact very different from hers, and what he told me proved very helpful. My appeal would be adjudicated at the regular meeting of the Board. No preliminary submission of memoranda was required or even expected. The period allowed for my presentation was indeterminate. When I explained my cause, his jovial manner became sombre. "Good luck," he said, as if he felt that my cause was doomed. He then complied with my request for two photocopies of the application which I had signed. He accepted my check for $75. For the copies he made no charge; said it was a Christmas present. As I walked out the door onto Causeway Street, I felt as if enveloped in a Kafka novel of my own, aware that to all concerned my case seemed hopeless, my building project on Nantucket, and I as an indivdual, doomed to failure. So much for today's installment. There's more, much more to come. Please stay well and be happy that you're not building a house on Nantucket. Jochen re: Plumbing at 3 Red Barn Road Mr. William Ciamartaro, Plumbing Inspector Building Department, Town of Nantucket 37 Washington Street Nantucket MA 02554 .sp Dear Mr. Ciamartaro: .PP This will acknowledge receipt of your Notice of Plumbing violation at the above captioned address and your Order to Cease and Abate, dated November 25, 2008. .PP With respect to this Order, I have filed this day with the Board of State Examiners of Plumbers and Gasfitters an "Application for Appeal of an Inspector's Decision," and I enclose a copy of that document herewith. .PP Mr. Mike White, a licensed plumber whom I consulted in compliance with your Order, has advised me that you have decided to require that the premises be stripped of all existing plumbing installations, regardless of whether the structure of such installations is in compliance with the Plumbing Code. To this decision also I respectfully object, and I request the Board of State Examiners and Gasfitters to overrule it. .nf Yours truly, Ernst J. Meyer Ernst J. Meyer, M.D. 174 School Street Belmont, Massachusetts 02478 617-484-8109 ernstmeyer@earthlink.net December 4, 2008 re: Plumbing at 3 Red Barn Road Mr. William Ciamartaro, Plumbing Inspector Building Department, Town of Nantucket 37 Washington Street Nantucket MA 02554 Dear Mr. Ciamartaro: This will acknowledge receipt of your Notice of Plumbing violation at the above captioned address and your Order to Cease and Abate, dated November 25, 2008. With respect to this Order, I have filed this day with the Board of State Examiners of Plumbers and Gasfitters an "Application for Appeal of an Inspector's Decision," and I enclose a copy of that document herewith. Mr. Mike White, a licensed plumber whom I consulted in compliance with your Order, has advised me that you have decided to require that the premises be stripped of all existing plumbing installations, regardless of whether the structure of such installations is in compliance with the Plumbing Code. To this decision also I respectfully object, and I request the Board of State Examiners and Gasfitters to overrule it. Yours truly, Ernst J. Meyer cc: Board of State Examiners of Plumbers and Gasfitters cc: Board of State Examiners of Plumbers and Gasfitters NOTICE OF APPEAL I, Ernst J. Meyer, Lessee of the premises at 3 Red Barn Road, Nantucket MA 02554, give notice that I appeal to the Board of State Examiners of Plumbers and Gas Fitters from the Notice of Plumbing/Gas Code Violation and the Order to Cease and Desist and Abate issued on November 25, 2008 by William Ciarmataro, Plumbing/Gas Inspector, copy of which Notice and Order is attached hereto. December 1, 2008 Ernst J. Meyer 174 School Street Belmont MA 02478 617-484-8109 Chapter 142 addresses a professional relationship What Chapter 142 says is that no one can enter into a professional relationship as a plumber unless he is licensed. A professional relationship presupposes a public, or presupposes another person as a member of the public. You cannot be your own lawyer, barber, podiatrist, physician The fact that I shave does not make me a barber, the fact that I put up shelves or build a chair or a table does not make me a carpenter the fact that I change a tire, replace a headlight bulb on my car, does not make me a mechanic. the fact that I argue a case before the appeals court does not make me a lawyer. ==================== No person who may perform plumbing without a permit. A person who is not a licensed plumber may not be issued a permit. Therefore a person who is not a licensed plumber may not perform plumbing. ==================== I'm Ernst Meyer, 78 and 1/2 years old. 40 years ago, I bought a piece of land on Nantucket. Before I die I want to build a house on it to leave to my children and grandchildren. I'm out of work, I live on social security and savings. If this house is to get built, I have to do as much of the construction as I am physically able and legally entitled to perform. I don't have the money to pay $85 or $90 per hour for a plumber. After reviewing the Massachusetts General Laws, the Building Code and the Plumbing Code, I concluded that I am legally permitted to do the plumbing myself. Acting on that belief, installed practically the entire plumbing system. After the system was completed, I was served with the plumbing inspector's order to cease desist and abate. I will contest this order, but unless and until it is vacated, I will comply with it as best I can. 248 CMR is styled "Rules and Regulations Governing Plumbers and Gas Fitters". I can find in this Chapter 248 no authorization for an Order to Cease Desist and Abate by a plumbing inspector, when such Order is addressed to an unlicensed individual. Therefore I believe this order to be ultra vires, and I am uncertain, until its validity is ultimately adjudicated, this order purports to require of me. On November 25, the date on which the Order was issued, the rough plumbing had been complete for several weeks. No further polumbing was intended or contemplated. I had installed a toilet, a shower stall, a laundry tub, a pressure tank and an electric hot water tank, all for use during the continuing construction. Subsequent to the Order, I desisted, at the cost of considerable physical distress, since the nearest public toilet is five miles distant, from the use of all of these facilities. I respectfully request a specific determination whether the Board of State Examiners of Plumbers and Gas Fitters permits or prohibits me from using a functioning toilet, shower stall and/or laundry tub in my own house. I further respectfully a determination of what further actions of abatement, if any, are required of me, and which of these actions, if any, must be taken prior to the final adjudication of this controversy. I have stopped doing any plumbing. What, if anything else must I do now? I am told to hire a licensed plumber who will be instructed by the Inspector to strip the plumbing? Am I required to do so until my appeals are exhausted? I find no provision in the plumbing laws or code for a Stop Work, Cease and Abate Order. Therefore I don't know how to conduct myself. I understand only partially what the Order requires of me. Begin with 24 hours to abate and complete in 3 days? In this case, what does abatement mean? Complete what? Please note that the Order refers only to a licensed plumber's obtaining a permit. But a permit is valid for only 90 days. And it may take much much longer than that for a final judgment. In the meanwhile may I use the plumbing that I have installed without a permit? Permit me to draw your attention to MGL Chapter 143 Section 3N. No person shall engage in gas fitting in the city of Boston without first making application to the building commissioner of said city and obtaining a permit therefor in accordance with the state building code; nor shall any person engage in gas fitting in any other city or town without first giving such notice as shall be prescribed by rules and regulations made by the board established under section twelve H of chapter twenty-five. I cite this Section not because I have done or propose to do any gas fitting, there's not going to be any gas in my house. I show you this Section to try to persuade you that when the General Court wants to prohibit you from some action, it says so clearly and unambiguously. If you don't find any Section of the General Laws which says No person shall engage in plumbing without being licensed, that's because the General Court never intended to prohibit unlicensed plumbing by everyone. It intended only to prohibit unlicensed plumbing by persons whose plumbing was a business, a profession or a calling. That is the only interpretation of 142 MGL 3 which makes sense. Section 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 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. It is disingenuous to argue that anyone who does plumbing is a journeyman plumber with the conclusion that everyone who does plumbing requires to be licensed. If such had been the intention of the General Court there would have been no need for the catalogue: master plumber, journeyman plumber or apprentice plumber to specify who is required to be licensed. Had the General Court wanted to prohibit unlicensed plumbing by everyone, it could have and it would have said so. Private individuals who do plumbing as a hobby, as recreation, for the pleasure and the beauty of it have always been entitled to do so without a license. The Regulations promulgated by the Board of Plumbing Examiners are calculated to usurp the prerogative of the General Court in determining who requires a plumber's license. 248 CMR 3.05(b)(1)(a) states that until a permit has been issued by the Inspector, plumbing ... work shall not be installed. 248 CNR 3.05(b)(7)(a) states: Permits shall be issued to licensed plumbers only. Thus the Regulations prohibit plumbing by unlicensed individuals; whereas the General Laws permit such plumbing by unlicensed individuals. In the past this discrepancy between the Laws enacted by the General Court and the Regulations enacted by the Plumbing Board has been made tolerable by a compromise: the unlicensed individuals have accepted the need for a professional plumber who would "pull a permit" for them; the licensed plumbers who "pulled" the permit, and the inspectors who gave it to them have acquiesced to the circumstance that much if not all of the work was done by unlicensed individuals. But perhaps the time has come when this discrepancy should be resolved by formal legal adjudication. On Nantucket, in the situation in which I found myself, I did not have the money to pay a plumber to do the work and I was unable to find a plumber who would "pull a permit" for me, and understandably so. Convinced as I was that the Town of Nantucket intent on depriving me of my civil rights, I determined to proceed with what I believe to be the legitimate exercise of my civil rights: I proceeded with the plumbing and have for practical purposes completed it. When my actions came to the attention of the Building Department, there was issued the Stop Work Order which is one of the subjects of this appeal. The second subject of this appeal is the verbal order of the Nantucket plumbing inspector: "I want it all ripped out." I received this order indirectly through two licensed plumbers whom I consulted, Mr. Joe Ciarmataro and Mr. Mike White. Mr. White elaborated that the inspector wanted all the existing plumbing torn out by a licensed plumber, then wanted to inspect to confirm that the existing plumbing had been removed before new plumbing was installed by a licensed plumber. The only pertinent reference I have been able to find is in 248 CMR 3.05(3)(g) (g) Defective Materials and Poor Workmanship. If, at the time of Inspection, any leaks, defective or patched materials or evidence of unskilled or inferior workmanship are found with a plumbing or gas installation, the following procedures shall be followed: 1. The Inspector shall condemn the same affected parts or entire system. 2. The Inspector shall order the Licensee to remove or correct the defective parts, or unskilled or inferior workmanship. 3. No further progress shall be allowed on the work until the defective parts or the unskilled or inferior workmanship is made to be compliant with 248 CMR. While it is certainly possible that on inspection defects would be found such as to warrant condemnation and an order to remove the entire system, there is no statutory presumption that plumbing which has been installed without a permit should be so defective as to require removal. In the instant case there was no inspection whatsoever, and removal was maliciously mandated as a punishment equivalent to a fine of many thousands of dollars. The inspector has never seen the installed system. For all he knows, it might be a model of correctness. Under these circumstances the order to remove it is the epitome of malice if not indeed of cruelty. I request the following: 1) That the Order to Stop Work be rescinded. 2) That a licensed plumber hired my me be granted a plumbing permit at the simple, not the quadrupled rate. 3) That the licensed plumber hired by me be explicitly permitted to delegate to me such portion of the plumbing as is mutually agreeable to us. 4) That our work be inspected by an inspector other than Mr. William Ciarmataro. Board of State Examiners of Plumbers and Gas Fitters ==================================================== Appeal of Ernst J. Meyer 1. From an Order to Cease, Desist and Abate, dated November 25, 2008, issued by William Ciarmataro, Plumbing Inspector in Nantucket MA 2. From a Decision by William Ciarmataro to condemn, sight unseen, and to order the removal of a completed rough plumbing installation for four bathrooms, one kitchen and laundry facilities at 3 Red Barn Road in Nantucket MA, because this installation had been made in the absence of a plumbing permit. A My name is Ernst Meyer; I am 78 years old. 40 years ago, I bought a piece of land on Nantucket. Before I die I want to build a house on it to leave to my children and grandchildren. I'm out of work. My wife and I live on social security and savings. If this house is to be completed, I have to do personally as much of the construction as I am physically able and legally entitled to perform. I don't have the money to pay $85 or $90 per hour for a plumber. After reviewing the Massachusetts General Laws, the Building Code and the Plumbing Code, I concluded that I am legally permitted to do the plumbing myself. Acting on that belief, I installed practically the entire rough plumbing system. Some weeks after this installation was complete I was served with the plumbing inspector's order to cease desist and abate. I will contest this order, but unless and until it is vacated, I will comply with it as best I can. 248 CMR is styled "Rules and Regulations Governing Plumbers and Gas Fitters". I cannot find in this Chapter 248 or in any other chapter of the General Laws or of the Regulations, any provision that authorizes a plumbing inspector to issue an Order to Cease Desist and Abate, when such Order is addressed to an unlicensed person. Therefore I believe this Order to be ultra vires, and pending its ultimate adjudication, I am uncertain, what this order purports to require of me. On November 25, the date on which the Order was issued, the rough plumbing had been complete for several weeks, and the installation was ready for inspection. No further plumbing was intended or contemplated. A toilet, a shower stall, a laundry tub, a pressure tank and an electric hot water tank had been installed, all for use during the continuing construction. Subsequent to the Order, I desisted, at the cost of considerable physical distress, since the nearest public toilet is five miles distant, from the use of all of these facilities. In conjunction with this appeal, I respectfully request a specific determination whether pending final adjudication of this controversy, the Board of State Examiners of Plumbers and Gas Fitters permits or prohibits me from using a functioning toilet, a functioning shower stall and/or a functioning laundry tub in my own house. I further respectfully request a determination of what other actions of abatement, if any, are required of me, and which of these actions, if any, must be taken prior to the final adjudication of this controversy. B Permit me to draw your attention to MGL Chapter 143 Section 3N, which states: "No person shall engage in gas fitting in the city of Boston without first making application to the building commissioner of said city and obtaining a permit therefor in accordance with the state building code; nor shall any person engage in gas fitting in any other city or town without first giving such notice as shall be prescribed by rules and regulations made by the board established under section twelve H of chapter twenty-five." I cite this Section not because I have done or propose to do any gas fitting: there's not going to be any gas in my house. I show you this Section to try to persuade you that when the General Court wants to prohibit you from some action, it says so clearly and unambiguously. If you don't find any Section of the General Laws which says "No person shall engage in plumbing without being licensed," that's because the General Court never intended to prohibit unlicensed plumbing by everyone. It intended only to prohibit unlicensed plumbing by persons who do plumbing work in the course of their business, in the course of their trade, or in the course of their profession. Such is the only possible consistent interpretation of 142 MGL 3: "Section 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 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." It would be disingenuous, it would be contemptuous of logic, and it would mock the legislative intent, to argue, in order to prohibit all plumbing by unlicensed individuals, that everyone who does plumbing is a journeyman plumber. If it had been the intention of the General Court to require licensing of all persons who do plumbing, there would have been no need for the catalogue: master plumber, journeyman plumber apprentice plumber, to specify the license requirement. Had the General Court wanted to prohibit unlicensed plumbing by everyone, it could have and it would have said so. Private persons who do plumbing as a hobby, for recreation, for the pleasure and the beauty of it, have always been entitled to do so without a license. The Regulations promulgated by the Board of State Examiners of Plumbers and Gas Fitters are calculated to usurp the prerogative of the General Court in determining who requires a plumber's license. 248 CMR 3.05(b)(1)(a) states that until a permit has been issued by the Inspector, plumbing ... work shall not be installed. 248 CNR 3.05(b)(7)(a) states:"Permits shall be issued to licensed plumbers only." Thus the Regulations prohibit plumbing by all unlicensed individuals; contradicting the General Laws which permit plumbing by those unlicensed individuals who do not offer their services to the public. In the past this discrepancy between the Laws enacted by the General Court and the Regulations enacted by the Board of State Examiners of Plumbers and Gas Fitters has been made tolerable by a compromise: the unlicensed individuals have accepted the need for a professional plumber who would "pull a permit" for them; the licensed plumbers who "pulled" the permit, and the inspectors who gave it to them have acquiesced to the circumstance that much if not all of the work was done by unlicensed individuals. This hearing will determine whether this compromise is to be sustained or whether this conflict between the statute and the regulations should be resolved by formal legal adjudication. C The second subject of this appeal is the verbal order of the Nantucket plumbing inspector: "I want it all ripped out." I received this order indirectly through two licensed plumbers whom I consulted, Mr. Joe Ciarmataro and Mr. Mike White. Mr. White elaborated that the inspector wanted all the existing plumbing torn out by a licensed plumber, that the inspector then wanted to inspect the premises to confirm that the existing plumbing had been removed prior to the installation of new plumbing by a licensed plumber. The only pertinent reference I have been able to find is in 248 CMR 3.05(3)(g) (g) Defective Materials and Poor Workmanship. If, at the time of Inspection, any leaks, defective or patched materials or evidence of unskilled or inferior workmanship are found with a plumbing or gas installation, the following procedures shall be followed: 1. The Inspector shall condemn the same affected parts or entire system. 2. The Inspector shall order the Licensee to remove or correct the defective parts, or unskilled or inferior workmanship. 3. No further progress shall be allowed on the work until the defective parts or the unskilled or inferior workmanship is made to be compliant with 248 CMR. While it is certainly possible that on inspection of my installation defects would be found such as to warrant condemnation of, and an order to remove the entire system, there is no statutory presumption that plumbing which has been installed without a permit should be so defective as to require removal. In the instant case, there was no inspection whatsoever, and removal was mandated as a punishment equivalent to a fine of many thousands of dollars. The inspector has never seen the installed system. For all he knows, it might be a model of correctness. The inspector has no authority to punish or otherwise discipline an unlicensed person. The order, sight unseen, to expunge an entire installation, equivalent to an unauthorized and arbitrary fine of many thousands of dollars, is an abuse of regulatory discretion. D I request that the Board of State Examiners of Plumbers and Gas Fitters rule as follows: 1) That pending final adjudication of this controversy, the use of the existing toilet, shower stall, and laundry tub at 3 Red Barn Road be permitted. 2) That the Order to Cease, Desist and Abate be rescinded. 3) That a licensed plumber to be hired by the appellant, Ernst J. Meyer, be granted a plumbing permit at the simple, not the quadrupled rate. 4) That the licensed plumber hired by the appellant be explicitly authorized to delegate to him such portion of any required additional plumbing, as is mutually agreeable to the two of them. 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." December 5, 2008 Ernst J. Meyer 174 School Street Belmont MA 02478 617-484-8109 ernstmeyer@earthlink.net