COURT OF
APPEALS DECISION DATED AND
RELEASED September
30, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-0408
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
AL
BELMORE, AS BUSINESS MANAGER, AND
SPRINKLER
FITTERS LOCAL #183,
Plaintiffs-Appellants,
v.
DEPARTMENT
OF INDUSTRY, LABOR AND HUMAN
RELATIONS,
AND CAROL SKORNICKA,
Defendants-Respondents.
APPEAL
from an order of the circuit court for Dane County: GERALD C.
NICHOL, Judge. Affirmed.
Before
Dykman, P.J., Vergeront and Deininger, JJ.
DYKMAN,
P.J. Al Belmore and Sprinkler Fitters
Local #183 appeal from an order denying their petition for a writ of
mandamus. The appellants sought the
assistance of the circuit court to compel the Department of Industry, Labor and
Human Relations (DILHR) to interpret Chapter 145, Stats., and Wis. Adm.
Code § ILHR 81.10(6) as
requiring that licensed fitters perform all installation and maintenance of
water-based fire protection systems, except for weekly or monthly testing. The circuit court denied the appellants'
petition, ruling that mandamus is inappropriate in this case. The appellants raise the following issues on
appeal: (1) whether mandamus is an appropriate remedy to compel DILHR to change
its interpretation of Chapter 145 and § ILHR 81.10(6); and (2) whether the
trial court erred in deferring to DILHR's interpretation of the rule. We conclude that the trial court did not
erroneously exercise its discretion in denying the petition and that the
agency's interpretation of Chapter 145 and § ILHR 81.10(6) was reasonable. We therefore affirm.
BACKGROUND
In
January 1994, DILHR enacted a rule which adopted NFPA 25. NFPA 25, established by the National Fire
Protection Association, contains the minimum requirements for the inspection,
testing and maintenance of existing water-based fire protection systems.
With
the adoption of the new requirements of NFPA 25, DILHR began to receive
inquiries questioning who may conduct the inspection, testing and maintenance
of existing water-based fire protection systems. On June 30 and July 14, 1994, DILHR concluded that weekly and
monthly testing could be conducted by unlicensed individuals, but all other
inspection, testing and maintenance could only be performed by licensed
journeyman automatic fire sprinkler fitters, employed by licensed automatic
fire sprinkler contractors.[1] On January 3, 1995, DILHR changed its
interpretation, concluding that automatic fire sprinkler contractors may assign
inspection and testing activities to any of their employees who they feel are
qualified to perform the work.[2]
Al
Belmore and Sprinkler Fitters Local #183 petitioned for a writ of mandamus to
compel DILHR to return to its original interpretation. The circuit court denied the petition, and
Belmore and Local #183 appeal.
WRIT OF MANDAMUS
In
reviewing a mandamus action, we will uphold the action of the trial court in
either granting or denying the writ unless the court erroneously exercised its
discretion. State ex rel.
Kurkierewicz v. Cannon, 42 Wis.2d 368, 375-76, 166 N.W.2d 255, 258
(1969). In Lake Bluff Housing
Partners v. City of South Milwaukee, 197 Wis.2d 157, 170, 540 N.W.2d
189, 194 (1995), the supreme court stated:
Mandamus is an extraordinary legal remedy, available
only to parties that can show that the writ is based on a "clear, specific
legal right which is free from substantial doubt." A party seeking mandamus must also show that
the duty sought to be enforced is positive and plain; that substantial damage
will result if the duty is not performed; and that no other adequate remedy at
law exists.
(Citations omitted.)
The
circuit court did not erroneously exercise its discretion in denying the
appellants' petition for a writ of mandamus.
"A writ of mandamus lies to compel public officers to perform their
prescribed statutory duties." Morrissette
v. DeZonia, 63 Wis.2d 429, 432, 217 N.W.2d 377, 379 (1974). The appellants cite no authority indicating
that DILHR has a positive and plain duty to interpret Chapter 145, Stats., and Wis. Adm. Code § IHLR 81.10(6) in the manner they
desired. Therefore, mandamus does not
lie.
The
appellants argue that DILHR's obligation may be compelled by mandamus despite
the fact that the court needed to interpret Chapter 145, Stats., and Wis. Adm. Code § IHLR 81.10(6) in determining DILHR's
duty. They rely on State ex rel.
Althouse v. City of Madison, 79 Wis.2d 97, 255 N.W.2d 449 (1977) and Morrissette
v. DeZonia, 63 Wis.2d 429, 217 N.W.2d 377 (1974). In both Althouse and Morrissette,
the supreme court engaged in statutory construction before concluding that
mandamus was appropriate. In Althouse,
the court concluded, "[T]he fact that the duty imposed involves the
construction of a statute does not mean that the obligation set forth in the
statute may not be compelled by mandamus." Id. at 106, 255 N.W.2d at 453.
The
appellants' reliance on Althouse and Morrissette is
misplaced. The circuit court did not
deny the appellants' petition because the issue involved statutory
construction. Rather, the court denied
the appellants' petition because DILHR did not have a duty to interpret Chapter
145 and § IHLR 81.10(6) in the manner desired by the appellants.
The
circuit court's denial of the appellants' petition is consistent with Althouse
and Morrissette. The Althouse
court concluded that mandamus was appropriate because the duty imposed by statute
was "unequivocally of a mandatory, ministerial, nondiscretionary
nature.... The duty on its face is
positive, plain, and unequivocal."
Id. at 107, 255 N.W.2d at 453. Likewise, the Morrissette court concluded that
mandamus was appropriate because the applicable statute set up a "clear
and unambiguous duty." 63 Wis.2d
at 433, 217 N.W.2d at 379. DILHR, on
the other hand, did not have a positive and plain duty to interpret Wis. Adm. Code § ILHR 81.10(6) in the
way appellants suggest. Rather, DILHR's
interpretation was a discretionary act.
Because DILHR does not have a plain and unequivocal duty to interpret §
IHLR 81.10(6) in the manner desired by the appellants, the circuit court did
not erroneously exercise its discretion in denying the petition.[3]
DECLARATORY RELIEF
The
appellants argue that when a circuit court decides that mandamus is not
appropriate, it should treat the action as if it had been brought as an action for
declaratory relief. See Milwaukee
County v. Schmidt, 52 Wis.2d 58, 65-66, 187 N.W.2d 777, 780-81
(1971). DILHR does not dispute this
contention. We will do so.
DILHR
interpreted Wis. Adm. Code § ILHR
81.10(6)[4]
and § 145.15(4), Stats., in
concluding that automatic fire sprinkler contractors may assign inspection and
testing activities to any of their employees who they feel are qualified to
perform the work. "We accord great
weight to DILHR'S interpretation of its own rules, unless the interpretation is
plainly erroneous or inconsistent with DILHR's rules." Milwaukee Area Joint Plumbing
Apprenticeship Comm. v. DILHR, 172 Wis.2d 299, 314, 493 N.W.2d 744, 750
(Ct. App. 1992). In addition, we will
accord either great weight or due weight to DILHR's interpretation of
§ 145.15(4) because DILHR has expertise and specialized knowledge in the
area of automatic fire sprinkler fitter licensing, as evidenced by the
administrative rules in § IHLR 81.10 regulating the area. See UFE Inc. v. LIRC,
201 Wis.2d 274, 284-87, 548 N.W.2d 57, 61-63 (1996). Under either level of deference, we will uphold DILHR's
interpretation unless a more reasonable interpretation is available. Id. at 287 n.3, 548 N.W.2d at
63.
Wisconsin Adm. Code § ILHR 81.10(6) provides: "Allowable Maintenance. The
weekly or monthly testing of sprinkler alarm equipment, fire pumps, vales, or
appurtenances; the refilling of storage and pressure tanks; or the replacement
of automatic fire sprinkler heads under emergency conditions, shall not require
licensure under ch. 145, Stats."
The appellants argue that Wis.
Adm. Code § ILHR 81.10(6), by providing that weekly or monthly testing
does not require licensure, implies that all other installation, maintenance,
testing and inspection of automatic fire protection systems requires a licensed
sprinkler fitter. The appellants'
interpretation of § ILHR 81.10(6) is reasonable. However, when we accord great weight to an agency's
interpretation, we will uphold the interpretation as long as it is reasonable
and consistent with the rule's language, regardless of whether other
interpretations are reasonable. See
DILHR v. LIRC, 193 Wis.2d 391, 397, 535 N.W.2d 6, 9 (Ct. App.
1995).
Wisconsin Adm. Code § ILHR 81.10(6) is silent as to whether testing
and maintenance other than weekly or monthly testing must be performed by
licensed sprinkler fitters.
Section 145.15(4), Stats.,
provides that all installation of automatic fire sprinkler systems must be
performed by licensed individuals, but the statutes do not address whether
unlicensed individuals may perform maintenance and testing. Because § 145.15(4) only requires licensure
for sprinkler system installation, DILHR infers that licensure is not required
for persons who perform maintenance and repair or testing and inspection. DILHR's interpretation is as reasonable as
the appellants' interpretation and is not erroneous or inconsistent with its
rules. Therefore, we uphold its
interpretation.
The
appellants argue that DILHR's interpretation is inconsistent with
§ 145.06(1)(a), Stats.,
which provides: "No person may engage in or work at plumbing in the state
unless licensed to do so by the department." The appellants argue that automatic fire protection systems are
plumbing[5]
and, therefore, no person may "engage in or work at" automatic fire
protection systems unless licensed to do so by DILHR. We disagree.
The
legislature provided a separate statutory provision for the licensure of
automatic fire sprinkler system installers.
Section 145.15(4), Stats.,
provides in relevant part: "No
person may install automatic fire sprinkler systems unless licensed or
registered to do so by the department."
If we were to apply § 145.06(1)(a), Stats., to automatic fire protection systems, we would render
§ 145.15(4) superfluous. In State
ex rel. Briggs & Stratton v. Noll, 100 Wis.2d 650, 655, 302 N.W.2d
487, 490 (1981), the supreme court stated:
"It is a cardinal rule of construction that a statute must be
construed if possible so that every portion of it is given effect. A statute should be so construed that no
part of it is rendered superfluous by the construction given." (Citations omitted.) To give effect to § 145.15(4), we
conclude that § 145.06(1)(a) does not apply to automatic fire sprinkler
systems. Therefore, DILHR's
interpretation is not inconsistent with § 145.06(1)(a).
By
the Court.—Order affirmed.
Not
recommended for publication in the official reports.
[1] The June 30 and July 14, 1994 interpretations
were provided by Duane Strassman, Chief of DILHR's Section of General Plumbing,
Fire Sprinkler and Licensing.
[2] The January 3, 1995 interpretation was
provided by Robert DuPont, Director of DILHR's Bureau of Building Water
Systems.
[3] The circuit court also denied the appellants'
petition because it concluded that § 227.12, Stats., which allows labor groups to request that an agency
promulgate a rule, provided the appellants with an adequate legal remedy, and
mandamus is appropriate only when no other adequate remedy at law exists. See Lake Bluff Housing Partners
v. City of South Milwaukee, 197 Wis.2d 157, 170, 540 N.W.2d 189, 194
(1995). The appellants argue that §
227.12 does not provide an adequate remedy.
We do not need to address this issue, however, because we have concluded
on other grounds that mandamus is not appropriate. See Sweet v. Berge, 113 Wis.2d 61, 67, 334
N.W.2d 559, 562 (Ct. App. 1983).
[4] The legislature has charged DILHR with the
authority to prescribe rules as to the qualifications, examination and
licensing of journeymen automatic fire sprinkler system fitters and automatic
fire sprinkler fire contractors.
Section 145.17(2), Stats. DILHR adopted Wis. Adm. Code § ILHR 81.10(6) pursuant to this authority.
[5] "Plumbing" includes: "All
piping, fixtures, appliances, equipment, devices and appurtenances in
connection with the water supply, water distribution and drainage systems,
including hot water storage tanks, water softeners and water heaters connected
with such water and drainage systems and also includes the installation
thereof." Section 145.01(10)(a), Stats.