Welch v. Colorado State Plumbing Board
2020 COA 130. No. 19CA1144. Plumbing Practice Act—Unconstitutionally Vague—CRS § 12-155-124—Supervision.
August 27, 2020
A plumbing apprentice working for Confidence Plumbing Co., Inc. (Confidence) performed plumbing work in an unfinished house that was part of a master-planned community. A city building inspector saw the apprentice using a soldering torch on a domestic water line when a licensed plumber was not present in the house. The building inspector filed a complaint with the Colorado State Plumbing Board (Board), and the Attorney General filed a petition with the Office of Administrative Courts charging Welch and Confidence with failing to supervise the apprentice in violation of CRS § 12-155-124.3. An administrative law judge (ALJ) held a hearing and found that Welch and Confidence violated CRS § 12-155-124 by allowing a plumbing apprentice to use a soldering torch without having line-of-sight supervision from a licensed plumber. The Board adopted the ALJ’s findings and conclusions and suspended Welch’s journeyman and master plumber licenses and Confidence’s plumbing contractor registration for five years, and imposed a $2,300 fine.
On appeal, Welch and Confidence argued that CRS § 12-155-124 must be declared void because it contains impermissibly vague terms and standards in that it doesn’t clearly define “supervision,” “job site,” and “supervise apprentices at the job site.” While the challenged terms are ambiguous, they are capable of a constitutional construction.
Welch and Confidence also argued that the Board’s interpretation of “supervision” to mean line-of-sight oversight of apprentices at the job site was erroneous. The Court of Appeals concluded that to “supervise apprentices at the job site” means that a licensed plumber must be within a sufficient distance of the apprentice, whether in or outside a building, to monitor, inspect, and sign off on the apprentice’s work with reasonable frequency. Therefore, the Board erred in its interpretation of the statute.
In the initial order, the ALJ found that the supervising journeyman plumber was working near the house in which the apprentice was working when the apprentice was using the soldering torch. The ALJ also adopted as part of her findings Welch’s testimony that (1) all houses in the master-planned community were the “job site,” with journeymen at the site working in multiple houses; and (2) the supervising journeymen were expected to inspect and sign off on the work done on the premises that day or face disciplinary measures. Accordingly, Welch and Confidence complied with the requirements of CRS § 12-155-124.
The order was vacated.
Plumbing Practice Act, Unconstitutionally Vague, CRS § 12-155-124, Supervision