Hartford Hospital v. Department of Consumer Protection

BERDON, J.,

dissenting. The decision of the majority unfortunately will have a substantial adverse impact on hospitals and other institutions by requiring them to employ licensed plumbers and other tradesmen in order to perform trivial tasks that are performed everyday by ordinary persons in their own homes. For example, the named plaintiff, Hartford Hospital (plaintiff), which, according to the majority, does not fall within the definition of “industrial firm” in General Statutes § 20-340 (6), will now be required to employ a licensed plumber to replace a faucet in a bathroom sink or, for that matter, to replace the washer in the faucet.1 The court’s decision, applicable to providers of services, such as hospitals, private educational institutions, corporate *724complexes and the like, will not only result in increased labor costs, but also, decreased maintenance services during periods when the economy is robust and skilled labor is scarce.

The plaintiff argues that it is exempt from the statutory licensing requirements2 with respect to plumbing work pursuant to § 20-340 (6) because it falls within the definition of industrial firm. Section 20-340 (6) provides an exemption for “employees of industrial firms whose main duties concern the maintenance of the electrical, plumbing and piping, solar, heating, piping and cooling, or elevator installation, repair and maintenance work of such firm on its own premises or on premises leased by it for its own use . ...” In construing this exemption, we are required to look “to the words of the statute itself, to the legislative history and circumstances surrounding its enactment”; (internal quotation marks omitted) United Illuminating Co. v. New Haven, 240 Conn. 422, 431, 692 A.2d 742 (1997); and to the legislative scheme in which the exemption is set forth. Conway v. Wilton, 238 Conn. 653, 663-64, 680 A.2d 242 (1996). We are also required to use our “common sense” and “assume that [the legislature intended to accomplish] a reasonable and rational result . . . .” (Internal quotation marks omitted.) Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 667, 560 A.2d 975 (1989). I conclude that the majority, by narrowly defining the term industrial firm as one engaged only in manufacturing activities, does nothing to advance the legislative scheme of protecting the consuming public, but, rather, unnecessarily adds costs to vital services required by the public.

*725I begin my analysis with the language of the statute. The defendants, the state department of consumer protection and the state plumbing and piping work examining board do not contest that the plaintiff is clearly a “firm” under any definition of the term, and thus the inquiry is whether a hospital is “industrial” in order to satisfy the requirement for an exemption under § 20-340 (6). The majority concludes that a service provider, like a hospital, does not fit within the “commonly approved usage of the term ‘industrial firm’ ” because that term “more readily brings to mind commercial entities engaged in manufacturing activities.” The dictionary definition of industry, however, includes reference to both manufacturing concerns and providers of services.3 It is an established rule of construction that we not only use our common sense, but “[w]here a statute does not define a term, it is appropriate to look to the common understanding expressed ... in dictionaries.” Doe v. Manson, 183 Conn. 183, 186, 438 A.2d 859 (1981). Moreover, service businesses, such as insurance, health care, credit and banking, are commonly referred to as industry. Thus, the term “industrial firm” is not restricted to manufacturing activities in its common usage.4

*726I also find support for exempting the plaintiff from the licensing requirements in the legislative history and circumstances surrounding the enactment of General Statutes § 20-334. The primary purpose of the licensing requirement in § 20-3345 was to protect the general consuming public from unqualified and/or unscrupulous contractors. Roswell Goodman, the executive director of Hartford Mechanical Contractors, Inc., testified before the legislative committee on General Law when it was considering the bill, which was subsequently codified as § 20-334, that “[n]ot only have we members of this industry, the people who work with the tools and the contractors to consider, but we have got to think about the people who they are serving, the public.” (Emphasis added.) Conn. Joint Standing Committee Hearings, General Law, Pt. 1, 1965 Sess., p. 348. Robert Hartigan, appearing before the same committee on behalf of the Connecticut Light and Power Company, concurred that “the purpose [of § 20-334] is to protect the public and maintain certain minimum standards in competence to the public.” Conn. Joint Standing Committee Hearings, General Law, Pt. 3, 1965 Sess., pp. *7271138-39. Hartigan commented further that, “of course, [the licensing requirements of § 20-334] would not be applicable to our employees who do not work for the general public, but work for companies.” (Emphasis added.) Id., p. 1139. Senator Paul Amenta confirmed this legislative purpose during debate on § 20-334 when he stated, “if a person works for an individual firm, [he is] not going to offer himself to the general public . . . ,”6 61 S. Proc., Pt. 6, 1965 Sess., p. 2187. Furthermore, a review of the specific eleven exemptions in § 20-340 demonstrates that the legislature was concerned with creating a state licensing system for plumbers, electricians and heating and cooling technicians who come into direct contact with the public. For example, employees of “any federal, state or municipal agency,” as set forth in subdivision (1), “employees of stage and theatrical companies,” as set forth in subdivision (9), and “employees of carnivals, circuses or similar transient amusement shows,” as set forth in subdivision (10), all of whom are exempt from the licensing requirements, do not hold themselves out to the public as being qualified to perform plumbing, electrical or heating and cooling services.

The majority argues that if § 20-340 (6) covers employees of the plaintiff, the exemptions created by § 20-340 (9) and (10) for employees of stage and theatrical companies and employees of carnivals, circuses or similar transient amusement shows “would be unnecessary because those persons already would be exempt *728from the statutory licens[ing] requirements by operation of § 20-340 (6).” According to the majority, if the legislature had wanted to limit the statutory licensing requirement to persons who perform services for the general public, “it easily could have done so without creating the numerous exemptions set forth under § 20-340,” and the “fact that [it] eschewed that approach . . . [by creating eight more exemptions] suggests that it did not intend such a sweeping application of § 20-340 (6).”

I disagree with the majority’s conclusion that the legislature did not intend a sweeping application of § 20-340 (6). The legislative history of No. 789, § 12, of the 1967 Public Acts, which added six licensing exemptions; now General Statutes § 20-340 (2), (3), (4), (5), (7) and (9);7 indicates that the exemptions were listed with specificity because the act was “merely a technical amendment” of Public Acts, Spec. Sess., February, 1965, No. 493, § 9. 12 H.R. Proc., Pt. 2, 1967 Sess., p. 5376, *729remarks of Representative Edwin A. Lassman. According to Lassman, the legislature simply wanted to redefine certain “occupational provisions,” and redefine “areas [of Public Acts, Spec. Sess., February, 1965, No. 493, § 9] so that ambiguities could be cleared up in the various fields of licensing.” Id. There is no indication from this history that the legislature wanted local plumbing enforcement officers to limit § 20-340 (6) to manufacturing firms.

I also disagree with the majority’s conclusion that the legislature reasonably could have concluded that it was sound policy to exempt plumbers employed to work in state operated hospitals, such as the state veterans hospital, and elementary, junior high and senior high schools, while requiring employees of private service providers, such as the plaintiff, Yale New Haven Hospital, Trinity College and Wesleyan University, to be licensed before they can perform plumbing tasks. The exemption for employees of industrial firms was one of three exemptions in the original version of § 20-334. The other exemptions were those for employees of federal, state and municipal agencies (now § 20-340 [1]) and public service company employees (now § 20-340 [2]).8 According to the majority, the legislature determined in 1965, that it was acceptable to have unlicensed plumbers work in state operated hospitals, where the plumbing work “is critical to the health and safety of [the] patients,” and public schools, where thousands of young students in the state attend class and may use gas lines for basic laboratory work, but it *730would not be acceptable to have unlicensed plumbers in private hospitals and schools. This distinction does not make sense. “[Compelling principles of statutoiy construction . . . require us to construe a statute in a manner that will not . . . lead to [such] absurd results.” Turner v. Turner, 219 Conn. 703, 712-13, 595 A.2d 297 (1991).

The majority points to no legislative history to justify this untenable result. Instead, the majority assumes that there is some form of assurance of safety in private manufacturing firms and federal, state and municipal agencies that does not exist in private service providing firms. The majority argues, without any basis, that hospitals and other service providers are less likely than manufacturing firms to voluntarily employ licensed supervisory employees, who “may be able to rectify problems arising from substandard plumbing and piping work performed by unlicensed personnel.” I disagree with this reasoning because private service providing firms, such as hospitals and schools, have the same incentive as manufacturing entities and public service providers to act with reasonable care and employ licensed supervisory persons — they both want to avoid any liability that could arise from allowing unlicensed plumbers to work without proper supervision. In fact, the plaintiff, like nearly every private hospital in the state, maintains a department of facilities and management, which ensures that its employees perform competent plumbing work under proper supervision.

The majority also argues that it is logical for the state to treat state agencies differently from private firms providing similar services because the legislature reasonably could have entrusted “each of those governmental entities [with] the responsibility for regulatory oversight of its public agencies.” The flaw in this analysis is simple: state agencies are equally as responsible for regulatory oversight of private service providing *731firms like hospitals as they are for public service providing firms. For example, pursuant to § 19-13-D3 (a) (1) and (2) of the Regulations of Connecticut State Agencies, which was adopted by the department of health prior to 1965 when the “industrial firm” exception was created, hospitals are required to provide adequate equipment for patient service, “in accordance with the requirements of the slate department of health,” and “the requirements of the state fire safety code.” (Emphasis added.) Moreover, hospitals have to pass inspection of the local fire marshall each year in order to file their annual applications for operating licenses. Regs., Conn. State Agencies § 19-13-D3 (a) (2). Furthermore, “[a]reas in which explosive gases are used, and areas in which radioactive materials are used shall meet the requirements of the state department of health for adequate protection of patients and personnel.” (Emphasis added.) Regs., Conn. State Agencies § 19-13-D3 (a) (3). Above all else, hospitals must ensure that “[t]he management, personnel, equipment, facilities, sanitation and maintenance of the hospital shall be such as reasonably to ensure the health, comfort and safety of the patients at all times.” Regs., Conn. State Agencies § 19-13-D3 (h) (6) (now § 19-13-D3 [i] [7]). In light of the state’s regulatory oversight of hospitals, it would have been unreasonable for the legislature to have concluded that public hospital employees who perform plumbing work, as opposed to private hospital employees who perform similar work, would be better supervised.9

I conclude that the plaintiff and its employees, the plaintiffs Herve Gelinas, Charles Rowe and Amrit Kalicharen, did not violate the statutory licensing provisions *732of § 20-334 by performing plumbing and piping work on hospital premises without a certificate.

Accordingly, I would affirm the judgment of the trial court.

The nature of the plumbing duties that were at issue in this case is best described by reference to the declaratory ruling of the state plumbing and piping work examining board (board), which includes the following statement: “The aforesaid duties, which [the plaintiff] avers should not require a license, include:

“(a) Maintenance of leaky sinks and drains, and packing of faucets;

“(b) Replacement of valves to correct running toilets;

“(c) Maintenance/replacement of shower heads, hoses and nozzles;

“(d) Maintenance of kitchen garbage disposals;

“(e) Replacement of vacuum breakers on sinks; and

*724“(f) Maintenance and/or unplugging of plaster traps.”

The board ruled that “[a]ll the stated plumbing-related duties involve the performance of plumbing work,” and that a license was required to perform such work.

See footnote 5 of the majority opinion for the text of General Statutes § 20-334, which sets forth the licensing requirements.

Webster’s Third New International Dictionary defines industry in relevant part as: “3a: systematic labor especially] for the creation of value . . . b: a department or branch of a craft, art, business, or manufacture: a division of productive or profit-making labor; esp[ecially]: one that employs a large personnel and capital esp[ecially] in manufacturing . . . c: a group of productive or profit-making enterprises or organizations that have a similar technological structure of production and that produce or supply technically substitutable goods, services or sources of income . . . .” (Emphasis added.)

The majority mistakenly argues that the plaintiffs construction of General Statutes § 20-330 (2), which defines the term “electrical work,” would allow “all commercial entities” to employ unlicensed personnel to perform its electrical work, and any or all of its elevator installations. The simple response to this argument is that by requiring that the § 20-340 (6) exemption apply only to “employees . . . whose main duties concern the maintenance of . . . [plumbing and other services] on its own premises,” the legislature insured (1) that industrial firms cannot contract for those “dangerous” *726services with outside unlicensed contractors who may be unqualified, and (2) that in all probability employees performing such work would be part of a properly supervised maintenance staff whose main duties include maintaining the firm’s plumbing and other services. (Emphasis added.) Furthermore, it is absurd to believe that a private service providing firm, like the plaintiff here, which must prove each year that it has systems and personnel in place to protect the health and welfare of its patients and personnel or risk losing its operating license; see Regs., Conn. State Agencies § 19-13-D3; would be more likely to allow one of its employees to install an elevator than would supervisors in a public school.

Section 20-334 was also part of a legislative scheme to replace municipal licensing of skilled trades with a uniform statewide system of licensing. White Oak Corp. v. Dept. of Consumer Protection, 12 Conn. App. 251, 256, 530 A.2d 641 (1987). “Prior to 1965, occupational licensing of various trades in Connecticut was done by municipal ordinances promulgated under local law.” Id.; see 61 S. Proc., Pt. 6, 1965 Sess., p. 2186, remarks of Senator Charles T. Alfano (statute designed “to eliminate the necessity of all these men in these trades going to every single community in the state and securing a license and paying a license fee in every town they go into”).

The majority argues that service providing firms are not exempt under § 20-340 (6) because such an exemption would raise significant public health and safety implications. This argument is flawed because the exemption of municipal, state and federal employees, theater and carnival employees and manufacturing employees raises equally as significant public health and safety implications. Indeed, government facilities, entertainment facilities and large manufacturers serve the same number of members of the general public, if not more, than service providing firms.

Public Acts 1967, No. 789, § 12, added the following six exemptions to § 20-340: (1) “employees of industrial firms whose main duties concern the . . . fabrication of electrical, plumbing and piping, heating, piping and cooling ... or elevator installation, repair and maintenance equipment used in the production of goods sold by [such] industrial firms”; (2) “employees of any municipal corporation specially chartered by the state of Connecticut”; (3) “employees of any contractor while said contractor is performing work for or subject to inspection by any federal, state or municipal agency or corporation other than a municipal building department, or any public service company”; (4) “persons engaged in the installation, maintenance, repair and service of electrical or other appliances of a size customarily used for domestic use where such installation commences at an outlet receptacle or connection previously installed by persons licensed to do the same and maintenance, repair and service is confined to the appliance itself and its internal operation”; (5) “persons performing work necessary to the manufacture or repair of any apparatus, appliances, fixtures, equipment or devices produced by it for sale or lease”; and (6) “employees of stage and theatrical companies performing the operation, installation and maintenance of electrical equipment if such installation commences at an outlet receptacle or connection previously installed by persons licensed to make such installation.”

Public Acts, Spec. Sess., February, 1965, No. 493, § 9, provides: “The provisions of [§ 20-334] shall not apply to persons employed by any federal, state or municipal agency, employees of public utilities regulated by the state public utility commission, or employees of industrial firms whose main duties concern the maintenance of the electrical, plumbing, steamfitting or elevator repair work of such firm for its own premises or those leased by it or the fabrication of electrical, plumbing, steamfitting or elevator equipment used in the production of goods sold by such industrial firms.”

It is ironic to note that the majority concludes that the legislature reasonably could have entrusted supervision of transient amusement shows and carnivals to the state fire marshall, and to the requirement that such shows “comply with applicable municipal ordinances and regulations”; General Statutes § 20-340 (10); but that it could not have intended to allow hospitals, which are subject to more stringent regulations than traveling amusements, *732to employ unlicensed persons to perform plumbing tasks, like replacing a faucet in a bathroom sink, because that would subject the public to higher risks.