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RUSSELL v. BOARD OF PLUMBING EXAMINERS

September 28, 1999

RAY RUSSELL, ANGELO RAINALDI, JOHN GULICK, AND EDWARD HESS, PLAINTIFFS,
v.
THE BOARD OF PLUMBING EXAMINERS OF THE COUNTY OF WESTCHESTER AND THE COUNTY OF WESTCHESTER, DEFENDANTS.



The opinion of the court was delivered by: Brieant, District Judge.

MEMORANDUM & ORDER

By motion filed on August 18, 1999, and heard on September 17, 1999, plaintiffs Ray Russell, Angelo Rainaldi, John Gulick, and Edward Hess move pursuant to Rule 56, Fed.R.Civ.P., for summary judgment in this action for injunctive relief under the Fourteenth Amendment to the United States Constitution and § 7 of the Privacy Act of 1974. Plaintiffs' claims are supported by the brief of Amicus Curiae United Plumbers of Westchester, Inc., a trade association comprised of Master Plumbers. Defendants filed opposition papers on August 24, 1999, and Plaintiffs filed reply papers on September 7, 1999.

By motion filed August 18, 1999, and heard September 17, 1999, defendants Board of Plumbing Examiners of the County of Westchester and the County of Westchester move pursuant to Rule 56, Fed.R.Civ.P. for summary judgment. Plaintiffs filed opposition papers on September 7, 1999.

FACTUAL BACKGROUND

Plaintiffs Ray Russell, Angelo Rainaldi, John Gulick, and Edward Hess are Master Plumbers.

The County of Westchester comprises six separate incorporated cities; Mount Vernon, New Rochelle, Peekskill, Rye, White Plains and Yonkers, together with nineteen towns; Bedford, Cortlandt, Eastchester, Greenburgh, Harrison, Lewisboro, Mamaroneck, Mount Kisco, Mount Pleasant, New Castle, North Castle, North Salem, Ossining, Pelham, Pound Ridge, Rye, Scarsdale, Somers and Yorktown, as well as twenty-three villages located within one or more towns; Ardsley, Briarcliff Manor, Bronxville, Buchanan, Croton-on-Hudson, Dobbs Ferry, Elmsford, Harrison, Hastings-on-Hudson, Irvington, Larchmont, Mamaroneck, Mount Kisco, Ossining, Pelham, Pelham Manor, Pleasantville, Port Chester, Rye Brook, Scarsdale, Sleepy Hollow, Tarrytown and Tuckahoe. The County of Westchester comprises 450 square miles, and has an estimated population of 900,000.

Prior to January 1, 1996, persons seeking to engage in the work of a Master Plumber obtained licenses in those municipalities which had determined to license that occupation. To obtain a license they were required to pass a test and pay a fee. Four communities, The Village of Larchmont, and the towns of Lewisboro, North Salem, and Somers, did not require a license for Master Plumbers. The County of Westchester did not have statutory authority to issue a Master Plumbers license which would be valid everywhere in the County. The County did not then and does not now enforce local building and plumbing codes, and permits where required for new work were then and are now issued in the local municipality.

By Chapter 563, § 2 of the Laws of 1993, the New York State Legislature enacted § 236 of the County Law effective July 28, 1993. That statute reads as follows:

§ 236. County plumbing licensing

  1. Notwithstanding the provisions of the general city
  law or any other law to the contrary, the county of
  Westchester is hereby authorized to establish a
  Westchester county board of plumbing examiners and to
  empower such board to assume all licensing duties
  within the county of Westchester with respect to the
  licensure of plumbers. The county of Westchester shall
  provide for plumbers' duties and responsibilities in
  accordance with the local law of such county.
  2. Local laws enacted pursuant to this section shall
  supercede the provisions of any licensing requirements
  promulgated by a city pursuant to the general city
  law.

By Local Law 13-1995, adopted by the Westchester County Board of Legislators on October 16, 1995, and approved by the County Executive on October 20, 1995, ("the Law") the County amended its Administrative Code to provide for the examination and County-wide licensing of Master Plumbers and Journey Level Plumbers to be administered by the Board of Plumbing Examiners of the County of Westchester ("the Board"). Familiarity with those provisions of the Administrative Code on the part of the reader is assumed. Relevant portions of the Code provide as follows:

§ 277.508. EXAMINATION; EXCEPTIONS.

D. Master Plumber Grandfather Clause

  (1) All licensed Master Plumbers within the county of
  Westchester as of January 1, 1996, who have actively
  performed as a Master Plumber within a period of one
  (1) year prior to January 1, 1996, shall be issued a
  Master Plumber's License by the County Board of
  Plumbing Examiners restricted to the communities in
  which said Master Plumbers were licensed on January
  1, 1996. The annual fee for this restricted License
  shall be $50.00 for each municipality in which such
  person is licensed on January 1, 1996, but in no
  event, shall such total fee for a restrict License
  exceed $500.00.
  (2) Those individuals working in towns not requiring
  Licenses on January 1, 1996, may receive form the
  County Board of Plumbing Examiners a Master Plumber's
  License restricted to those towns upon application to
  and at the discretion of the County Board of Plumbing
  Examiners based upon the standards set forth in the
  Board's rules and regulations. The annual fee for this
  type of restricted License shall be $50.00 for each
  town in which such person is working on January 1,
  1996.
  (3) No application for any restricted Master Plumber's
  License shall be accepted after December 31, 1996.
  (4) Nothing in this section shall be construed to
  obviate the requirement of this Article for all new
  applicants and present licensed Master Plumbers who
  desire a County-wide Master Plumber's License to apply
  for an application and examination for a County-wide
  Master Plumber's License.
  E. Journey Level Grandfather Clause. All persons
  having worked principally as a full time Journey Level
  Plumber for licensed Master Plumbers in Westchester
  County for a total of five (5) years prior to January
  1, 1996, shall be issued a Journey Level Certification
  to work as a Journey Level Plumber in the County of
  Westchester upon producing satisfactory proof of said
  employment to the County Board of Plumbing Examiners
  that sets the standards for such set forth in the
  Board's rules and regulations. The annual fee for this
  Journey Level Certification shall be $50.00. No
  application for Journey Level Certification under the
  provision of this grandfather clause shall be accepted
  after December 31, 1997.

We note that prior to January 1, 1996, there was no licensing requirement whatever for a Journey Level Plumber, and the work was done by persons who had ...


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