North Carolina Lawyers Weekly
Winkler v. State Board of Examiners of Plumbing, Heating & Fire Sprinklers Contractors (Lawyers Weekly No. 011-327-16, 32 pp.) (Donna Stroud, J.) Appealed from Watauga County Superior Court (Jeff Hunt, J.) N.C. App.
Holding: Although petitioner’s “Heating Group 3 Class II” license would not have allowed him to install, alter or restore a hotel pool heater, the respondent State Board of Examiners of Plumbing, Heating & Fire Sprinklers Contractors did not have the authority to discipline petitioner for merely inspecting or evaluating the pool heater and its exhaust system.
We reverse and remand the part of respondent’s order that disciplined petitioner for his work related to the pool heater. We affirm the part of the order that disciplined petitioner for his planned installation of a new HVAC system in the hotel.
Staff from a Best Western Hotel in Boone called petitioner – who had done work on some of their houses – to figure out why the hotel pool’s heater wasn’t working. After petitioner and hotel maintenance staff turned the pool heater’s gas supply back on, carbon monoxide killed three people in the room above the pool equipment room.
Respondent suspended petitioner’s license, which was limited to HVAC work on detached residential structures. Petitioner contends respondent lacked the authority to discipline him for his work on the pool heater. The court agrees.
G.S. § 87-23 sets forth respondent’s authority to “revoke or suspend” a license or to “order the reprimand or probation of” a contractor under the board’s authority. However, G.S. § 87-21(c) exempts certain acts from the provisions of G.S. Ch. 87, Art. 2. “The provisions of this Article shall not apply to those who make minor repairs or minor replacements to an already installed system of plumbing, heating or air conditioning….”
Respondent argues that petitioner “restored” the pool heater within the meaning of G.S. § 87-21(a)(5) “when he restored the gas connection to the unit,” thereby putting it back into operation.
Even if the meaning of “restore” is so broad as to cover the mere act of turning an existing heating system on, there is no dispute that petitioner is “engaged in the business of” heating contracting and that he is licensed by respondent to engage in this business. Thus, the question here is whether his actions as to the pool heater fall within Article 2’s authorization of disciplinary action, as it clearly exempts minor repairs or minor replacements to an already installed system.
The pool heater was an “already installed system.” Petitioner did not replace any parts of the pool heater or its exhaust system, and he did not change the “energy source, fuel type, or routing or sizing of venting or piping,” so he did not “repair” the system or “replace” any component of the system as contemplated by § 87-21(c).
Petitioner turned the gas on. This is not enough to constitute an installation, alteration, or restoration under § 87-21(a)(5).
As a practical matter, if we were to read the statute as respondent requests, a contractor would have to hold the highest level license before he could even examine or inspect a problem with an existing system to determine if he is capable of fixing it, since he could be subject to discipline in the event of any future harm caused by the system even if he did not actually repair it. There would be no practical use for different levels of licensure.
According to regulations adopted by respondent, a “minor repair” does not include any “connection, repair or alteration which if poorly performed creates a risk” of carbon monoxide exposure. 21 N.C.A.C. 50.0506. However, petitioner did not “repair” the pool heater as defined by § 50.0506, nor did he perform, poorly or otherwise, any “connection, repair or alteration” to the “already existing system.”
Essentially, petitioner inspected or evaluated the pool heater and its exhaust system, but “inspection” and “evaluation” are not included under Article 2.
We are required to strictly construe the statute and to focus on the conduct specifically prohibited and not upon the underlying objectives and general principles. Under that standard, respondent acted beyond its disciplinary jurisdiction by imposing sanctions for petitioner’s inspections of the pool heater and exhaust system. To the extent that respondent’s order imposed discipline for these actions, it must be vacated.
Respondent did have the authority to discipline petitioner for his planned installation of an HVAC system in the hotel.
Affirmed in part; reversed and remanded in part.
