Kirk v. Delaware Board of Electrical Examiners

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
TOM L. KIRK )
)
Appellant, )
) C.A. No. N19A-04-005 CEB
v. )
)
DELAWARE BOARD OF )
ELECTRICAL EXAMINERS, )
)
Appellees. )
Submitted: December 31, 2019
Decided: July 9, 2020
Appeal from a Decision of the
Delaware Board of Electrical Examiners.
AFFIRMED
ORDER
1. The Court has under consideration an appeal of Tom L. Kirk (“Kirk”)
from a decision of the Delaware Board of Electrical Examiners (“Board”). The
Board agreed with the recommendations of the Hearing Officer and found that Mr.
Kirk violated Delaware law by permitting an unlicensed employee to perform
electrical work. The Board’s decision is affirmed for the reasons stated below.
2. Kirk is a licensed electrician whose company won a bid to complete a
majority of the electrical work for a Planet Fitness project in 2018. A complaint was
1
filed against Kirk’s company. 1 The complaint alleged that Kirk’s company
employed a worker, Mr. Aldaz, who performed electrical work without an electrical
license. 2
3. There is no dispute that at the time of the incident and the hearing, Mr.
Aldaz was not a licensed electrician. There is no dispute that Mr. Aldaz was
employed at the time by respondent Mr. Kirk and Mr. Kirk was, therefore, subject
to the sanctions of 24 Del. C. §1423 (duty to report) and §1412 (grounds for
discipline) to the extent that one of his employees engaged in electrical work.
4. The only real dispute before the Board was whether Mr. Aldaz was
performing “electrical work,” with Respondent taking the position that he was
working on low voltage data or telephone wiring, which concededly does not require
an electrician’s license and the Board’s inspector and witnesses taking the position
that he was working on 120 volt electrical wiring. Whatever it was, the inspector
observed him, 20 feet up on a scissor jack platform, labeling (or relabeling) wires.
The Hearing Examiner found that the evidence preponderated that Aldaz was
working on electrical wiring and not telephone or data wires. That finding, being
subject to the credibility of the witnesses, is supported by some of the conflicting
evidence and must be credited on this appeal.
1
Board of Electrical Examiners’ Record. D.I. 15 at Tab E.
2
Id.
2
5. The primary objective of the Board of Electrical Examiners “to which
all other objectives and purposes are secondary, is to protect the general public.”3
The Boards secondary objective is to maintain professional competency in the
electrical field and to adjudicate violations of non-compliance.4 One cannot “engage
in the practice of providing electrical services” without a license issued by the
Board.5
6. As to what constitutes, “providing electrical services,” the term is not
defined by the Code precisely. A regulation issued by the Board states that
"To perform ‘electrical services’ or ‘electrical work’ means to perform,
maintain, troubleshoot or supervise any electrical work covered by the
National Electrical Code (NEC) as adopted by the Delaware State Fire
Prevention Commission which may include but is not limited to the
installation, erection, or repair of any electrical conductor, molding,
duct, raceway, conduit, machinery, apparatus, device, or fixture for the
purpose of lighting, heating, or power in or on any structure.”6
7. Throughout the proceedings, Respondent has made much of the fact
that the NEC was not introduced as an exhibit nor was a specific definition culled
from the NEC that defined “electrical service” or “electrical work.” Three
explanations are possible: 1) the Board did not have a copy, 2) electrical work is a
defined term and connecting or labeling 120 volt wires on a scaffold is not
3
24 Del. C. § 1401.
4
Id.; 24 Del. C. § 1412(a)(2).
5
24 Del. C. § 1407.
6
24 DE ADC 1400-1.0.
3
considered electrical work (in which case the Respondent would surely have raised
it), or 3) these terms are simply not defined by the NEC at all.
8. Further complicating matters is the fact that the Board’s definition of
“electrical work” is that it is “electrical work” covered by the NEC. We might avoid
the linguistic tautology presented by this unfortunate phrase if we consider that the
goal was to include everything “covered” by the NEC, which we can presume is an
exhaustive catalogue of all things involving electrical connections, loads, overloads,
etc. Support for this proposition is found in the fact that the regulation goes on to
state that it “includes, but is not limited to the installation, erection, or repair of any
electrical conductor, molding, duct, raceway, conduit, machinery, apparatus, device,
or fixture…”7
9. The Court notes how much easier this review would have been if a copy
of the NEC were in the record and the Hearing Examiner had referred to it in her
ruling. But it is not for the Hearing Examiner to propound the evidence; that is a
function left to the parties. Here, neither did. Because neither did, the Court must
conclude that the NEC is not helpful in resolving the question whether working on
a raised platform with 120 volt wiring either labeling or relabeling wires is “electrical
work.”
7
24 DE ADC 1400-1.0.
4
10. One can imagine a dispute where the term “electrical work” is more
closely questioned. For example, had the Hearing Examiner concluded that Mr.
Aldaz was indeed labeling low voltage telephone wires as Respondent maintained,
the question whether this constituted electrical work would be more eventful. The
fact findings made by the Hearing Examiner in this case, however, make the decision
relatively easy. Because the regulation explains that the NEC is inclusive, and not a
limitation on the definition of electrical work, the conclusion that Respondent does
not have a winning argument is clear. Mr. Aldaz was installing, erecting or repairing
an electrical conductor (wires are generally known to conduct electricity), as found
as a fact by the Hearing Examiner and the Court finds that Respondents argument
that his specific conduct must be defined in the NEC is unavailing.
11. The Court will note further that it was the Respondent’s license that
was placed on probation; the Board’s ruling had no direct effect on Mr. Aldaz.
Respondent is a licensed electrician. If Mr. Aldaz did not know what “electrical
work” is, the Court may fairly presume that the Respondent did. The Respondent’s
liability stems from the fact that he permitted his employee Mr. Aldaz to work on
what we may fairly presume Respondent knew was electrical work.
12. This was not Kirk’s first time before the Board. In 2015 Mr. Aldaz was
found at another one of Kirk’s building sites “working with electrical conduits”
5
without a valid license.8 Kirk as the supervisor of the project was found in violation
of 24 Del. C. § 1423(a)(c) and § 1412(a)(2).9 Kirk, during the hearing in 2015,
claimed that he did not know Mr. Aldaz was required to have a license to perform
that work. The Board disagreed and found Kirk noncompliant with the statute. The
Board also noted that a laborer is permitted to work on the site without a valid license
provided the individual only performs task such as hauling materials, loading trucks,
and cleaning the site.10
13. Here again, Kirk was found to be in violation of the same statutes
involving the same employee from 2015. The investigators who arrived on the
Planet Fitness site witnessed Mr. Aldaz working on a scissor lift “working on wire
which was coming out of the conduit at the back of the business,” which housed 120
volt electrical wire.11
14. This Court reviews de novo an agency’s interpretation and application
of the relevant statutes.12 The ruling of an administrative agency is not necessarily
controlling on a reviewing court, but the court is entitled to assign weight to the
agency’s interpretation unless the interpretation is clearly erroneous.13 In instances
8
Board of Electrical Examiners’ Record. D.I. 15, Tab D at 3.
9
Id. at 6.
10
Id. at 9.
11
Board of Electrical Examiners’ Record. D.I. 15, Tab A.
12
Public Water Supply Co. v. DiPasquale, 735 A.2d 378, 382 (Del.1999).
13
Nationwide Mut. Ins. Co. v. Krongold, 318 A.2d 606, 609 (Del. Supr. 1974).
6
where there is a dispute over the meaning of a statute, the court seeks to ascertain
the legislative intent while recognizing that Delaware courts emphasize the “plain
meaning” standard when interpreting statutes.14
15. In addition to the “electrical work” argument raised by Kirk, he also
claims that he was denied due process because the charge did not fairly put him on
notice of what he needed to defend against. Due process requires that the parties be
informed of the time, place, date and subject matter of the administrative
proceeding. 15 Kirk argues that he did not receive notice of the subject matter of the
charges against him. But the complaint specifically indicates that the State alleges
that Kirk violated 24 Del. C. § 1412(a)(7), 24 Del. C. § 1423(c) and 24 Del. C. §
1423(a)(2).16 The Complaint also alleges that Mr. Kirk violated the law by
permitting Mr. Aldaz to perform “electrical work that included re-labeling electrical
wires.”17 The complaint also states that Kirk violated the above statutes by not
ensuring that Mr. Aldaz was licensed while performing electrical work and Kirk
failed to report to the Board that Mr. Aldaz was working without a license.
14
New Castle County v. Chrysler Corp., 681 A.2d 1077, 1081 (Del. Super. 1995).
15
Vincent v. Eastern Shore Markets, 970 A.2d 160, 164 (Del. 2009). See also
Carousel Studio v. Unemployment Ins. Appeal Bd., 1990 WL 91108, at *1 (Del.
Super. June 26, 1990).
16
Complaint. D.I. 15 at Tab E.
17
Id.
7
16. This Court finds that Mr. Kirk was fairly on notice of the allegations
against him, as demonstrated by the strong defense presented by his counsel.
Although the factual findings went against him that does nothing to undermine the
basic fairness of the process by which those findings were made.
Having found that Kirk’s due process rights were not violated and that the
Hearing Examiner’s fact findings adequately established in the record, the Court
affirms the decision of the Board.
IT IS SO ORDERED.
Judge Charles E. Butler
8