1-1900-5791-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA COMMISSIONER OF HEALTH
In the Matter of the Revocation of
the Journeyman Plumbing License of FINDINGS OF FACT,
Timothy A. Lindholm, License No. CONCLUSIONS AND
7322J. RECOMMENDATION
The above-captioned matter came on for hearing before Administrative
Law Judge George A. Beck at 9:30 a.m. on Tuesday, February 18, 1992, at the
Office of Administrative Hearings, 500 Flour Exchange Building, in the City of
Minneapolis, Minnesota. The record closed on April 3, 1992, upon receipt of
the final posthearing memorandum.
Maria C. Christu, Special Assistant Attorney General, Suite 500, 525 Park
Street, St. Paul, Minnesota 55103, appeared on behalf of the Minnesota
Department of Health. Brian R. Salita, Attorney at Law, Edina Executive
Plaza, Suite 209, 5200 Willson Road, Edina, Minnesota 55423 appeared
representing the Licensee, Timothy A. Lindholm.
This report is a recommendation, not a final decision. The Minnesota
Commissioner of Health will make the final decision after a review of the
record and may adopt, reject or modify the Findings of Fact, Conclusions and
Recommendations contained in this Report. Pursuant to Minn. Stat. 14.61 the
final decision of the Commissioner of Health shall not be made until this
Report has been made available to the parties to the proceeding for at least
10 days. An opportunity must be afforded to each party adversely affected by
this Report to file exceptions and present argument to the Commissioner.
Parties should contact Marlene E. Marschall, Commissioner of Health, 717
Delaware Street S.E., Minneapolis, Minnesota 55440 to ascertain the procedure
for filing exceptions or presenting argument.
STATEMENT OF THE ISSUE
The issues in this in this contested case proceeding are whether or not
the Licensee (1) obtained his journeyman plumbing license through error or
fraud in that he did not complete four years of practical plumbing experience
before taking the journeyman plumbing examination and/or (2) engaged in a
willful violation of 326.37 through 326.45 by performing practical plumbing
as a "plumber's apprentice" without the immediate and personal supervision of
a licensed plumber.
Based upon all of the proceedings contained herein, the Administrative Law
Judge makes the following:
FINDINGS OF FACT
1. Timothy A. Lindholm ( "Licensee") has been licensed by the Department
of Health as a journeyman plumber since September of 1990. He owns his own
plumbing business, Tim's Quality Plumbing, which is located in Brooklyn Park
Minnesota. The company provides residential plumbing and light commercial
plumbing services including repair and drain cleaning. The Licensee has owned
this business since 1981. At present he has five employees and approximately
seven people who are part time independent contractors with his company. (T.
18-20.)
2. The Department licenses approximately 5,000 journeyman and master
plumbers (T. 55) and has about 1200 apprentice plumbers registered. (T.58)
3. On August 10, 1988, the Licensee submitted an application for
apprentice plumber registration to the Department. In a section of the
application calling for the names of all plumbing employers and length of
employment, Mr. Lindholm indicated that he worked a total of 4,223 hours for
Ross Taormina from July of 1984 to July of 1986. He also indicated that he
worked a total of 3,120 hours for Tim's Quality Plumbing, Inc. from July of
1986 to July of 1988. (Ex. 8.) As a result of this application, Mr. Lindholm
was registered an an apprentice plumber and given credit for 24 months of
experience.
4. In late July of 1989 Mr. Lindholm submitted an application for
renewal of his apprentice plumber registration. On the form he indicated that
he had worked as 12 months as a plumber's apprentice in the prior year. He
stated that his employer's name was Quality Plumbing and that he had worked a
total of 2,041 hours in the prior year. The blank calling for the signature
of the employer was signed by Lawrence J. Flemming. As a result of this
application, Mr. Lindholm was credited with another 12 months of experience
resulting in a total of 36 months of experience. (Ex. 9.)
5. On July 16, 1990, Mr. Lindholm filed another application for renewal
of his apprentice plumber registration. This application indicated that his
employer's name was Quality Plumbing and that he had worked a total of 2,199.6
hours for July 1 , 1989 to June 30, 1990. The number of hours worked was
broken down by category as follows:
Water service and sewer installation: 329.9 hours
Water distribution installation 439.0 hours
Drain, waste & vent installation: 380.0 hours
Fixture installation: 281.0 hours
Maintenance & repair of plumbing: 769.7 hours
Total of all hours worked: 2199.6 hours
The application form stated that all work by an apprentice must be certified
as being under the immediate and personal supervision of a plumbing contractor
or licensed plumber. Lawrence J. Flemming signed the form as Mr. Lindholm's
supervisor. (Ex. 10.)
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6 . On August 14, 1990, Mr. Lindholm submitted an application to the
Department for the journeyman plumber examination. The application stated
that the applicant must have at least four years of practical experience in
the installation of plumbing systems as defined in Minnesota Rules. Mr.
Lindholm stated in the application that he had worked a total of 4,647.20
hours for Ross Taormina from September 1984 to July 1987 and that he had
worked a. total of 5,085.60 hours for "Larry Flemming/Quality Plumbing" from
July 1987 to July 1990.
7. All of the above applications submitted by Mr. Lindholm were
verified, that is, he swore before a notary public that the statements he made
were true.
8. The Department requires 1 750 hours of plumbing experience to obtain
credit for I year of experience. (T. 61 . The Department does not give
credit for drain cleaning. (T. 105.) Work outside the State of Minnesota
would not necessarily be disqualified if it was supervised. (T. 111.) The
Department has allowed school work to count for experience only when it
relates to plumbing, such as vocational technical courses. (T. 63.)
9. For substantial portions of the time periods specified in his
applications Mr. Lindholm was not present in the State of Minnesota. During
the school years of 1983-1984 and 1984-1985 the Respondent was a full-time
student at Ambassador College in Big Sandy, Texas. (Ex. 7.) He returned home
to Minnesota during breaks from the school year. From approximately July 10,
1986 to June 15, 1987, the Licensee worked for the Ambassador International
Cultural Foundation in Loch Lommond, Scotland and Amman, Jordan. During this
11-month period, Mr. Lindholm returned to Minnesota one time for approximately
30 days from December 15, 1986 to January 15, 1987. (T. 28.) During the
1987-1988 and 1988-1989 school years, Mr. Lindholm attended Ambassador College
at its campus in Pasadena, California as a full-time student. (Ex. 7.) He
again returned to Minnesota during breaks. (T. 29.) He graduated from
Ambassador College in the spring of 1989. (T. 30.)
10. In Scotland, Mr. Lindholm set up -a plumbing system for a camp. In
Jordan he did plumbing repair work at a facility for handicapped people. He
was not supervised by a plumber at either location. (Ex. 6, p. 5-6) Mr.
Lindholm did some unsupervised residential plumbing work in California when he
was at school (Ex. 6, p. 15)
II. During his absences from Minnesota, Tim's Quality Plumbing continued
to operate. From July 1984 through July 1987, Mr. Lindholm employed Ross
Taormina, a licensed master plumber to run his business. (T. 26.) In July of
1987 Mr. Lindholm hired Lawrence Flemming, a licensed master plumber to run
the business. (T. 28.) Mr. Lindholm never went out on a job with either Mr.
Taormina or Mr. Flemming. (Ex. 6, p. 19)
12. During the time periods covered by his applications, Mr. Lindholm
performed work for Tim's Quality Plumbing when he was in Minnesota. He spent
some time on general office duties. He also performed plumbing work and
repair and maintenance work including drain cleaning and thawing frozen
pipes. He performed plumbing jobs by himself without a licensed plumber being
with him at the job site It was Mr. Lindholm's belief that if' a licensed
plumber was available by telephone for consultation, this was sufficient. (T.
51.)
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13. Through discovery, the Department has asked Respondent for any
document showing hours he worked for Tim's Quality Plumbing from 1 984 through
1990. The invoices supplied by Mr. Lindholm which bear his name as the
serviceman for the calendar year 1986 indicate that he performed 12.5 hours of
work of which 8.25 hours were maintenance work. (Ex. 13.) For calendar year
1987, the invoices indicate Mr. Lindholm worked 68.5 total hours of which 46.5
hours were maintenance work. In calendar year 1988, the invoices indicate
that the Licensee worked 57 hours of which 28 were maintenance work. The
invoices indicate that Mr. Lindholm worked with another person during 5.5 hour
in calendar year 1987, however, the other persons listed were apparently not
licensed plumbers. (T. 76.)
14. Mr. Lindholm advised the Department that he worked the following
hours doing plumbing within the State of Minnesota during 1987-1988:
July 1, 1987 August 16, 1987 SUM/BR 369
Oct. 2, 1987 Oct 21, 1987 FALL/BR 104
Nov 25, 1987 Nov 30, 1987 THAN/BR 36
Dec 30, 1987 Jan 12, 1988 WIN/BR 99
Mar 9, 1988 April 13, 1988 SPR/BR 108
May 3, 1988 June 30, 1988 SUM/BR 270
986
July 1, 1988 Aug 22, 1988 SUM/BR 405
Sept 20, 1988 Oct 10, 1988 FALL/BR 112
Nov 23, 1988 Nov 28, 1988 THAN/BR n/a
Dec 30, 1988 Jan 16, 1989 WIN/BR 126
Apr 14, 1989 May 1, 1989 SPR/BR 126
May 19, 1989 June 30, 1989 GRADUA 261
1030
TOTAL 2016
(Ex. 12.)
15. Mr. Lindholm has advised the Department that he has the following
hours of practical plumbing experience within the State of Minnesota:
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Period Hours
to July 1, 1988 3500.00
(Ross Taormina)
July 1, 1988 to June 30, 1989 1030.00
(Flemming)
July, 1989 to June 1990 2199.00
(Flemming)
July 1, 1990 to September 15, 1990 435.00
TOTAL HOURS 7164.00
(Ex. B.)
16. The Licensee worked alone on most of the plumbing jobs he did for
Quality Plumbing. (Ex. 6. p. 21,30. T. 50-51,177.) The Department has
received no complaints about the quality of the Licensee's plumbing work. (T.
142.) Mt. Lindholm did very well in courses he took on the plumbing code and
on how to design plumbing systems. (T. 186.)-
17. Since the apprentice statute was passed in 1986, the Department has
interpreted the "immediate and personal" supervision requirement to mean that
the licensed plumber must be on-site with the apprentice. (Ex. 23, p. 14. T.
64.)
18. The Department sends a newsletter called "The Catch Basin" to each
licensed plumber and registered plumbing apprentice in the State of
Minnesota. (T. 82.) The October 1986 issue of the newsletter advised readers
of the amendment of the state statute dealing with plumbers apprentices and
stated the requirements of four years of practical plumbing experience in
order to be eligible for the journeyman plumbing examination. (Ex. 17.)
19. In January 1989, the Department sent a memorandum to building
officials and plumbing inspectors in the State of Minnesota asking their help
in ensuring 'that all plumber's apprentices were registered with the State.
The memorandum stated that "plumber's apprentices must work under the
immediate and personal supervision of a licensed master or journeyman plumber,
or plumbing contractor." (Ex. 18.)
20. In April of 1989, the Department received an inquiry from a resident
of Hibbing, Minnesota asking, among other things, whether an apprentice
plumber had to be supervised By a licensed master plumber while doing home
repair work for pay. In a letter dated April 24, 1989, the Department advised
this person that
1. A plumber's apprentice must work under the immediate and personal
supervision of either a licensed master or licensed journeyman
plumber in cities of over 5,000 population such as Hibbing.
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2 An apprentice working on any job in a city of over 5,000 in
population must be accompanied by a licensed plumber who will
supervise his work.
(Ex. 19.)
21. In a January 1990 issue of "The Catch Basin" portions of the laws
pertaining to plumber's apprentices were quoted to advise readers that
plumber's apprentices had to be registered with the Commissioner of Health and
had to work as an employee of a plumbing contractor under the immediate and
personal supervision of either a master or a journeyman plumber or a plumbing
contractor. It also advised readers that when a plumber's apprentice had
completed four years as a registered apprentice, he or !;he would be eligible
to take the journeyman plumbing exam. (Ex. 20.)
22. In August of 1990 an ad hoc advisory work group on the Minnesota
Plumbing Program submitted a report to the Commissioner of Health. One of the
recommendations of the group in regard to plumber's apprentices was that
The ratio of plumber's apprentices to plumbers should be one apprentice
for the first plumber, and one additional apprentice for each two
additional plumbers on the job. A plumbing company may not employ more
apprentices than can be supervised under the designated ratio. Al so,
there should be a penalty for unsupervised apprentices or noncompliance
with the designated ratio. MDH should -review the ratio at the time of
apprentice registration.
(Ex. 21. p. 10.)
Based upon the foregoing Findings of Fact, the Administrative Law Judge
makes the following:
CONCLUSIONS
1. The Commissioner of Health and the Administrative Law Judge have
jurisdiction in this matter pursuant to Minn. Stat. 326.43 and 14.50.
2. The Department of Health has complied with all relevant, substantive
and procedural requirements of statutes and rule.
3. The Licensee received proper and timely notice of the hearing in this
matter.
4. The Department has the burden of proof under MInn. Rule 1400.7300,
subp. 5. to establish that the Licensee's journeyman plumber's license should
be revoked
5. Minn. Stat. 326.43 provides in part as follows:
The Board (sic) may revoke any license obtained through error or
fraud, or if the licensee is shown to be incompetent, and for a
willful violation of any of its rules, or of local ordinances
applicable to such work, or of sections 326.37 to 326.45, or for
knowingly aiding or abetting one to do plumbing work who is not
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properly licensed or the employing by a master plumber of an
unlicensed person to do plumbing work in places where licenses
are required . . . .
6. Minn. Stat. 326.401, subds. 1 and 2 provides as follows:
Subdivision 1. Registration. a plumber's apprentice must be
registered with the commissioner of Health -on a registration
application form supplied by the commissioner showing the date
of beginning training, age, schooling, previous experience,
employer, and other information required by the commissioner.
Subd. 2. Journeyman exam. A plumber's apprentice who has
completed four years of practical plumbing experience is
eligible to take the journeyman plumbing examination. Up to 24
months of practical plumbing experience prior to registration as
an apprentice may be applied to the four-year experience
requirement. However, none of this practical plumbing
experience may be applied if the person does not have any
practical plumbing experience in the 12-month period immediately
prior to registration. The commissioner may adopt rules to
evaluate whether the person's past practical plumbing experience
is applicable in preparing for the journeyman's examination. If
two years after completing the training the person has not taken
the examination, the four years of experience shall be forfeited.
The commissioner may allow an extension of the two year period
for taking the exam for cases of hardship or other appropriate
circumstances.
7. Minn. Stat. 326.01, subd. 9 defines "plumber's apprentice" as
follows:
A "plumber's apprentice" is any person, other than a journeyman
or master plumber, who, as a principal occupation, is engaged in
working as an employee of a plumbing contractor under the
immediate and personal supervision of either a master or a
journeyman plumber or plumbing contractor in learning and
assisting in the installation of plumbing.
8. Minn. Rule pt. 4715.0100 subp. 7 6 . defines "plumbing". it states
that:
"Plumbing" means the business, trade, or work having to do with
the installation, removal , alteration, or repair of plumbing and
drainage systems or parts thereof.
9. Minn. Rule pt. 4715.0100 subp. 81 . defines "plumbing system". it
states that:
The "plumbing system" means and includes all potable water
supplies and distribution pipes, all plumbing fixtures and
traps, all drainage and vent pipes and all building drains,
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including their respective joints and connections, devices and
appurtenances within the property lines of the premises and
shall include a potable water treatment or using equipment.
10. The Department has proved by a preponderance of the evidence that the
licensee had not completed four years of practical plumbing experience before
taking the journeyman plumbing examination.
11. The Department has proved by a preponderance of the evidence that the
licensee's practical plumbing experience was not under the "immediate and
personal supervision" of either a master or journeyman plumber or plumbing
contractor.
12. The Department has proved by a preponderance of the evidence that the
licensee obtained his journeyman's plumbing license through error or fraud.
13. The Department has proved by a preponderance of the evidence that the
licensee has violated Minn. Stat. 326.01, subd. 9, which requires a
plumber's apprentice to work under the immediate and personal supervision of
either a master or journeyman plumber or plumbing contractor.
14. That Ex. 21 should be and is received into evidence in this contested
case proceeding.
15. Based upon the foregoing conclusions, Administrative Law Judge makes
the following:
RECOMMENDATION
IT IS HEREBY RECOMMENDED: that the Commissioner of Health take
disciplinary -action against the journeyman's plumbing license of Timothy A.
Lindholm.
Dated: April 1992.
GEORGE A. BECK
Administrative Law Judge
NOTICE
Pursuant to Minn. Stat. 14.62, subd. 1, the agency is required to serve
its Final decision upon each party and the Administrative Law Judge by first
class mail.
Reported By: Taped. Transcript prepared by Jeffrey J. Watczak, Court Reporter.
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MEMORANDUM
The Department of Health has the burden of proof in this proceeding to
show that the Respondent, Mr. Lindholm obtained his license through error or
fraud and that he violated the plumbing law by performing plumbing work while
unlicensed without the immediate and personal supervision of a licensed
plumber. Minn. Stat 326.401 , subd. 2 requires a plumber's apprentice to
complete four years of practical plumbing experience in order to be eligible
to take the journeyman plumbing examination. The Department has interpreted
the statute to mean that an apprentice must work 1,750 hours per year for a
total of 7,000 hours before he is permitted to take the journeyman examination.
All of the applications submitted were verified, meaning that the Licensee
swore under oath before a notary public that the contents of the affidavit
were true. Nonetheless, the applications for registration and for taking the
journeyman examination filed by the Licensee contain a number of discrepancies
when compared to the facts in this record. For the years 1984 through 1986,
Mr. Lindholm claimed 4,223 hours in his first application. A normal 40-hour
work week would yield 2,080 hours per year without holidays, vacation or sick
leave. However, the Licensee did not disclose to the Department that during
the 1984-85 school year he was a full-time student at Ambassador College in
Texas. He returned to Minnesota only for breaks during the school year. He
was in Minnesota full-time from the spring of 1985 to June of 1986. If it is
assumed that Mr. Lindholm worked over 2,000 hours during 1985-86 which would
represent full-time employment, it does not-seem possible that he would have
been able to work another 2,000 hours in plumbing while attending school full
time as a student in Texas. Mr. Lindholm did not claim that the had done
plumbing work in Texas or had taken plumbing related courses in school.
In his initial application the Licensee also claimed that he worked 3,120
hours in plumbing from 1986 to 1988. He did not disclose however that he was
out of the country in Scotland and Jordan from July of 1986 to June of 1987.
He returned to Minnesota for one break, which, together with some other days
in June of 1987, meant that he was in Minnesota for approximately 58 days
during 1986-87. This would have permitted him to work a maximum of perhaps
450 hours in Minnesota. Mr. Lindholm also failed to disclose that during
1987-88 he was a full-time student in school at Ambassador College in
California and was home in Minnesota only for breaks. When the Department
began to question his record of plumbing experience, Mr. Lindholm advised the
Department that he had worked a total of 986 hours in plumbing work in
Minnesota during 1987-88 while he was home on breaks. (Finding of Fact No.
14) If the numbers submitted are accurate, they represent a high number of
hours worked per week. For example, during the six-week period from July 1,
1987, to August 16, 1987, Mr. Lindholm stated that he worked 369 hours or
approximately 62 hours per week. Even if the 986 hours are accurate, it
represents only one-third of the hours he initially claimed. None of the
hours claimed by Mr. Lindholm in any of his applications or subsequent
submissions have been supported by any written documentation such as invoices
from his business, except as noted in Finding of Fact No. 13.
In his application submitted for the year 1988-89, the Licensee alleged
that he had worked 12 months for a total of 2,041 hours. He was, however, a
full-time student in California from the fall of 1988 to the spring of 1989,
returning only for breaks. In his prehearing submission to the Department the
Licensee claims that he worked 1 030 hours during breaks while in Minnesota
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and before and after the school year. (Finding of Fact No. 14) He states
that the 1000-hour discrepancy from his original application is made up by
residential plumbing he did in California (T. 38.) and classwork at college.
He acknowledges however that none of this classwork related to plumbing and
was only arguably relevant in that he took some business and computer
courses. Mr. Lindholm did not work 12 months full-time as a plumber as
stated. Nor did he have any reason to believe that business courses or
plumbing work in California could qualify as experience for a Minnesota
apprentice. The Licensee presented no convincing evidence that he did any
significant plumbing work in California.
During 1989-90 the, Licensee was present in Minnesota and claimed 2,199
hours on his application. He claimed a total of in excess of 7,000 for
practical plumbing experience during the four-year period preceding his
application to take the examination.
The Department has sustained its burden of proof to show that it is more
likely than not that the Licensee did not have the experience required by the
statute to take the journeyman examination. Although the Department has the
burden, it is significant that Mr. Lindholm was unable to provide for this
hearing record any written documentation of the hours of plumbing work which
he claims. Additionally, the hours that he has claimed has varied from his
application forms to his prehearing submissions to the Department, to the
evidence submitted at the hearing. The way that the Licensee filled out the
application forms indicate an intent to deceive the Department and weakens his
credibility in regard to the number of hours he claims. First, he failed to
disclose that he was self-employed although one form specifically called for
him to do so. He listed Ross Taormina and Larry Flemming as employers
although they were in fact his employees. He failed to disclose all of his
education presumably because to do so would have indicated to the Department
his absence from the State of Minnesota. Likewise, he failed to disclose that
he was out of the country for one year even though he was apparently
attempting to claim credit for some plumbing work done in Scotland and
Jordan. At no time did his applications ever indicate that any of the work
for which he was claiming credit was done outside the State of Minnesota or
that significant hours were attributable to college classwork. It is
concluded that even apart from the issue of whether the Licensee was properly
supervised, it is more likely than not that he did not have the experience
required by the statute. Even if the total hours submitted by the Licensee at
the hearing were found to be accurate, they total less than 7,000 hours
through June of 1990, the cutoff date for the 1990 examination. (Finding of
Fact No. 15)
The second major issue in this case concerns how a plumber's apprentice
must be supervised. The statutory definition at Minn. Stat. 326.01, subd. 9
states that a plumber's apprentice must be "under the immediate and personal
supervision of either a master or journeyman plumber or plumbing contractor in
learning and assisting in the installation of plumbing." The Licensee admits
that very little of his plumbing experience involved being with a licensed
plumber on the premises where the plumbing work was being done. The Licensee
argues that the supervisory requirement is satisfied if a licensed plumber is
back at the shop and is available for consultation by telephone or for an on
site visit if necessary.
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The Licensee asserts that the Department's interpretation that supervision
must be "on site" is not present in statute or rule and is therefore not
enforceable. tie argues that an analogy should be made to the definition of
the term "personal supervision" which was adopted in 1991 for licensed
electricians. It indicates that a licensed electrician must oversee and
direct the electrical work performed by an unlicensed person by being
immediately available to the unlicensed person at all times for assistance and
direction. The licensed electrician must actually review the electrical work
performed by an unlicensed person. Minn. Stat. 326.01, subd. 6g. (1991
Supp.) The Licensee argues that the Department's interpretation of the
supervision requirement for plumber's apprentices is subjective and has not
been publicized to the regulated community. He suggests that the Department's
interpretation does nothing to protect public safety and is an attempt to
rewrite the requirements of the statute.
The Department and the Administrative Law Judge are obligated to implement
the legislative intent embodied in statute. Minn Stat. 645.08 provides
that words and phrases are to be construed according to their common and
approved usage. The dictionary definition for "immediate" is "close at hand
or near.'' ''Personal" is defined as "done, made, or performed in person". The
American Heritage Dictionary (2nd College Ed.1982). Employing the dictionary
definitions in interpreting the statute appears to mean that supervision by a
licensed plumber would have to be performed in person in the immediate
vicinity of the unlicensed person.
The Minnesota Supreme Court has held that where an agency policy is an
interpretation of a statute consistent with the statute's plain meaning, it
does not constitute improper rulemaking or policymaking. Cable Communications
Board v. NorWest Cable Communications Partnership, 356 N.W.2d 658 (Minn.
1984) Generally some deference is given to an agency's interpretation where
the interpretation is longstanding. Resident v Noot, 305 N.W.2d 311, 312
(Minn. 1981). A longstanding interpretation by an agency usually weighs in
favor of a finding of a mere interpretation of a statute as opposed of a
finding of improper adoption of a rule. White Bear Lake Care Center v.
Minnesota-Department of Public Welfare, 319 N.W.2d 7, 8 (Minn. 1982); Jones
v. Minnesota State Board of Health, 301 Minn. 481, 483, 221 N.W.2d 132, 134
(1974). The record indicates that the Department has interpreted the personal
supervision requirement consistently since the statute was passed in 1986. It
has attempted to publicize the requirements of the statute in its newsletter
sent to licensees and apprentices. In response to an inquiry from a member of
the public in 1989, the Department indicated its interpretation of the
statutory language that an apprentice had to be accompanied by a licensed
plumber to supervise his work. (See Findings of Fact Nos. 18-21)
It is concluded that the words "on site" are not necessary to the
interpretation of the apprentice definition. The words personal and immediate
are specific and not ambiguous. The Department's application of the statute
is consistent with its plain meaning. The plain legislative intent is to
require the licensed plumber to accompany an unlicensed apprentice. The
record indicates that the purpose of an apprentice program is to allow the
unlicensed person to learn from the master or journeyman plumber. Experience
acquired by an apprentice cannot be verified unless there is a direct
relationship of this nature with a licensed plumber. (Ex. 23 p. 12, 30.) As
one witness testified you cannot teach plumbing over the telephone. (T.
155.) While the analogy drawn by the Licensee to supervision of unlicensed
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persons doing electrical work is interesting, it is possible that the
legislature has chosen a different rule for apprentices learning the plumbing
trade than for unlicensed persons learning the electrical trade. It is
therefore concluded that the Licensee violated the apprentice statute by
practicing plumbing without the reqqired supervision and that, additionally,
the experience he did gain in plumbing work was acquired without the
appropriate supervision.
The parties also spent some time in their posthearing briefs discussing
whether maintenance and repair work constitutes plumbing for the purposes of
acquiring experience. The Department does not believe that activities such as
drain cleaning constitute plumbing experience. Some of the Licensee's
experience was acquired in activities such as drain cleaning. It appears that
it is the Department's intent to be sure that applicants have experience in
other areas of plumbing besides just maintenance and repair or drain
cleaning. In light of the above discussions in this memorandum, however, the
question of what constitutes plumbing is not a critical issue.
GAB
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