Could Idaho's Plumbing Division issue plumbing permits to people who were not licensed plumbers?
Opinion 86-8: Resolving the licensing-versus-permit conflict in Idaho's Plumbing Act
Plain-English summary
The Department of Labor and Industrial Services asked whether its Plumbing Division could issue plumbing permits to people or firms that were not licensed plumbers. Reading chapter 26 of title 54 together, the Attorney General concluded the Division had that authority in limited situations. The Plumbing Act required a plumbing license to do plumbing work (§ 54-2610) and required a permit before any plumbing work was done (§ 54-2620). Section 54-2602 listed seven license-exempt categories. The exemptions did not all line up with the permit exemptions in § 54-2620, which created a vicious circle: some workers were not allowed to be licensed plumbers but could not get the permits the law also required. The AG walked through each exemption, found that three categories had no conflict (license- and permit-exempt), one had a built-in solution (homeowner doing their own work), one had a separate inspection process for water treatment, one needed the Board to waive the permit-license linkage by rule (sewer/excavating contractors), and one needed either a waiver or a representative-permit approach (on-premises maintenance/construction plumbers employed by the property owner). The AG recommended the Board use its rulemaking authority under § 54-2605, and suggested the legislature ought to clean up the conflict.
Currency note
This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Background and statutory framework
Chapter 26 of title 54 was the Plumbing Act. Sections 54-2608 through 54-2618 created a tiered licensing system (apprentice, journeyman, contractor) with § 54-2611 setting the structure and § 54-2610 making it unlawful to engage in plumbing without a certificate of competency.
Section 54-2602 carved out seven license-exempt situations:
- (a) homeowners doing plumbing work in single or duplex family dwellings;
- (b) farm buildings outside city limits;
- (c) logging, mining, or construction camps;
- (d) piping systems in industrial processing plants outside city limits;
- (e) on-premises plumbing system work by employers who employ their own maintenance or construction plumbers;
- (f) sewer contractors, sewage disposal contractors, or excavating or utility contractors and their employees;
- (g) water treatment installation and repairs on residential or business premises.
Section 54-2620 separately required a permit before any plumbing construction, installation, improvement, extension, or alteration could occur. The permit exemptions in § 54-2620 did not perfectly track the license exemptions in § 54-2602.
What the AG concluded at the time
Three exemptions raised no conflict
For farm buildings outside city limits (§ 54-2602(b)), logging/mining/construction camps (§ 54-2602(c)), and industrial processing plants outside city limits (§ 54-2602(d)), § 54-2620(b) expressly exempted the same projects from permit requirements. Both license and permit are out, so no problem.
Homeowner plumbing had a built-in resolution
For homeowners doing their own work in family dwellings (§ 54-2602(a)), § 54-2620 expressly authorized permits to be issued "to a person who does his own work in a family dwelling as defined in § 54-2602(a)." License not required; permit explicitly available.
Water treatment had a separate inspection track
For water treatment installation and repairs (§ 54-2602(g)), the Plumbing Act provided its own inspection process: when projects were installed, repaired, or completed, they had to be inspected by a designated, qualified, properly identified agent of the Department for workmanship and code compliance. That language paralleled the generic inspection authority in § 54-2624, and the surety bond provisions added another layer of protection. The AG concluded there was no need to rely on § 54-2620 permits at all for water treatment.
Sewer/excavating contractors required a waiver
Section 54-2602(f) was the strongest expression of legislative intent that sewer contractors, sewage disposal contractors, and excavating or utility contractors not be required to hold a plumbing license: "Nothing contained in this section or any other provision of this code shall be construed or applied to require [these contractors] . . . to obtain a valid contractor's certificate of competency." Given that intent, the AG concluded the Department had to waive § 54-2620's requirement that permits issue only to license holders, while retaining the duty to inspect the work and ensure code compliance.
On-premises maintenance plumbers were the most problematic
Section 54-2602(e), enacted in 1963, exempted from licensing those workers on plumbing systems on premises owned or operated by an employer who regularly employed maintenance or construction plumbers. The same 1963 bill removed an earlier permit exemption that had covered the predecessor category. The AG read that history as deliberate: the legislature wanted these projects subject to the permit requirements even though the workers were not licensed.
The Board could close the gap in either of two ways: waive the requirement that permits issue only to licensed plumbers for these projects, or issue permits in the name of a representative of the firm doing the work who would supervise the work. Neither approach was satisfying. Both required rulemaking under § 54-2605. The AG recommended the Board pursue a legislative fix at the next session and offered the office's help in drafting.
Common questions
Could a farmer working on plumbing in a city-limits farm building skip both license and permit?
No. The (b) exemption was explicitly limited to farm buildings outside city limits. Inside city limits, both license and permit requirements applied.
What about a homeowner who hired a friend (not a licensed plumber) to do plumbing in their home?
The (a) exemption was for the owner doing the work. A non-licensed friend would not fit the exemption, and § 54-2610's prohibition on unlicensed plumbing would apply.
If the Board issued a waiver-based permit, who was responsible if the work failed inspection?
The opinion did not assign liability beyond noting that the Department retained its duty to inspect the work and insure compliance with appropriate plumbing codes. The Board's rule-making process would presumably have to address responsibility.
Citations
- Idaho Code § 54-2601 et seq. — Plumbing Act framework.
- Idaho Code § 54-2602 — license exemptions; seven categories.
- Idaho Code § 54-2610 — unlawful to engage in plumbing without a certificate of competency.
- Idaho Code § 54-2620 — permit requirement and its narrower exemptions.
- Idaho Code § 54-2624 — generic inspection authority.
- Idaho Code § 54-2605 — Board's rulemaking authority.
- 1963 Idaho Session Laws, chapter 138 — added § 54-2602(e) and removed parallel permit exemption.
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP86-08.pdf
Original opinion text
STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
JIM JONES
ATTORNEY GENERAL
BOISE 83720
TELEPHONE (208) 334-2400
ATTORNEY GENERAL OPINION NO. 86-8
TO: Gary Gould, Director
Department of Labor and Industrial Services
STATEHOUSE MAIL
Per Your Request For Attorney General's Opinion
QUESTION PRESENTED:
You have asked whether the plumbing division of the State Department of Labor and Industrial Services has the authority to issue plumbing permits to nonlicensed individuals or firms, other than those identified in Section 54-2602(a), (b), (c) and (d), Idaho Code and, if so, how such permits should be issued.
CONCLUSIONS:
-
The plumbing division of the State Department of Labor and Industrial Services has authority, pursuant to chapter 26 of title 54 of the Idaho Code, to issue plumbing permits to nonlicensed individuals or firms when necessary to protect the public health and safety.
-
The process for issuing such permits is within the discretionary powers of the board as the board shall establish by exercise of its rulemaking powers.
ANALYSIS:
The question presented involves an apparent conflict between the license and permit provisions of the Plumbing Act in chapter 26 of title 54 of the Idaho Code.
The licensing provisions are set forth in Idaho Code §§ 54-2608 through 54-2618 and provide a system of competency certificates progressing from plumbing apprentice to plumbing journeyman to plumbing contractor. Idaho Code § 54-2611. It is unlawful to engage in plumbing unless one has a certificate of competency (license). Idaho Code § 54-2610. Idaho Code § 54-2602 provides exemptions from this licensing requirement in seven limited situations, which may be described in shorthand form as follows:
(a) owners doing plumbing work in single or duplex family dwellings;
(b) farm buildings outside city limits;
(c) logging, mining or construction camps;
(d) piping systems in industrial processing plants outside city limits;
(e) on-premise plumbing system work by employers who employ their own maintenance or construction plumbers;
(f) sewer contractors, sewage disposal contractors, or excavating or utility contractors and their employees;
(g) water treatment installation and repairs on residential or business premises.
Thus, the licensing provisions are clear. Persons who perform plumbing work must be licensed except in these seven situations.
The conflict arises in trying to dovetail these clear licensing provisions of Section 54-2602 with the equally clear permit provisions of Section 54-2620. That section makes it unlawful for anyone to do:
[a]ny construction, installation, improvement, extension or alteration of any plumbing system in any building, residence or structure, or service lines thereto, in the state of Idaho, without first procuring a permit from the department of labor and industrial services authorizing such work to be done, . . .
Again, there are exceptions. However, the exceptions to the permit requirements in Section 54-2620 do not perfectly parallel the exceptions to the licensing requirements in Section 54-2602. The best way to resolve the conflicts is to walk through the exceptions one at a time.
The easiest cases are the three situations outlined in Idaho Code § 54-2602(b), (c) and (d). As noted earlier, these deal with farm buildings outside city limits; logging, mining or constructions camps; and piping systems in industrial processing plants outside city limits. Persons working on such projects do not need to be licensed plumbers. Such projects are also expressly exempted from plumbing job permit requirements. See, Idaho Code § 54-2620(b). Thus, no conflict or confusion occurs in these three situations because all such projects are exempt from both the licensing and permit requirements.
There is likewise no difficulty in construing subsection (a) of Idaho Code § 54-2602 which governs persons doing their own work in family dwellings. Such persons do not need plumbing licenses. They do need permits under Section 54-2620, but that section expressly provides for issuing permits "to a person who does his own work in a family dwelling as defined in § 54-2602(a)."
The most problematic situations are those outlined in Idaho Code § 54-2602(e), (f) and (g). Persons working on projects encompassed by these three subsections are exempted from plumbing licensing requirements. However, the projects themselves are not exempted from plumbing permit requirements.
The conflict arises because plumbing permits can only be issued to persons holding a valid plumbing license. A vicious circle results: The three categories are exempt from licenses, but need permits, but cannot get the permits because permits can only be issued to valid license holders.
Closer analysis yields answers to some, but not all, of these situations.
In the case of water treatment installations and repairs, the general conflict is resolved by the specific provisions of Idaho Code § 54-2602(g). That subsection sets forth a separate inspection process for projects of this type:
[w]hen installed, repaired or completed, [these projects] shall be inspected by a designated, qualified and properly identified agent of the department of labor and industrial services as to quality of workmanship and compliance with the applicable provisions of this act.
The wording here is identical to the generic inspection provisions of Idaho Code § 54-2624. Thus, the public interest is fully protected by the separate inspection provisions of Idaho Code § 54-2602(g) and there is no need to resort to the general permit provisions of Idaho Code §§ 54-2620 to 54-2627. The public health and safety is further protected by surety bond provisions in the same subsection of the code.
There is also little real conflict between the licensing and permitting requirements with regard to sewer contractors, sewage disposal contractors and excavating or utility contractors, listed in Idaho Code § 54-2602(f). Persons engaged in these professions are separately and expressly exempted from the "certificate of competency" (license) requirements of Idaho Code § 54-2610. These same individuals benefit further from the express treatment provided in Section 54-2602(f):
Nothing contained in this section or any other provision of this code shall be construed or applied to require a sewer contractor, sewage disposal contractor, or any excavating or utility contractor . . . to obtain a valid contractor's certificate of competency . . . (emphasis added)
The legislative intent is absolutely clear. Members of this category need not be licensed for any purpose whatsoever.
The permit provisions of the code could not possibly be used to override this strong expression of legislative intent. It is our opinion, therefore, that with respect to the class of contractors in Section 54-2602(f), the department would have to waive the requirement of Section 54-2620 that permits be issued only to persons holding valid licenses. The department would, however, retain its duty to inspect the work such individuals perform and to insure compliance with appropriate plumbing codes.
The final category is even more problematic. Idaho Code § 54-2602(e) provides that no license is needed by persons who "work on plumbing systems on premises owned or operated by an employer who regularly employs maintenance or construction plumbers." This exemption from the licensing requirements was enacted in 1963. Idaho Session Laws, chapter 138.
The same bill that exempted such persons from licensing requirements struck down the permit exemption that had been enjoyed by workers in a previous subsection (e) category. Id. This was a strong indication that the legislature expressly intended to bring these projects within the permit requirements of what is now Idaho Code § 54-2620. This reading is bolstered by the fact that the same legislature also expressly provided in Idaho Code § 54-2602(e) that "alterations, extensions and new construction shall comply with the minimum standards, rules and regulations applicable to plumbing practices provided by this act."
The board can carry out its duties either by waiving the requirement that permits be issued only to licensed plumbers for projects of this type or by issuing permits in the name of a representative of the firm doing the work, who will be responsible for supervising the work. Neither approach is very satisfactory. Either would require that the board engage in rulemaking pursuant to Idaho Code § 54-2605.
We suggest, rather, that the board attempt to amend the code at the next legislative session in a way that comports both with the legislative intent that certain types of work may be done by unlicensed individuals and that work be done in accordance with the applicable plumbing codes. Our office is available to assist in reviewing any such proposed legislative revision.
AUTHORITIES CONSIDERED:
Idaho Code § 54-2601, et seq.
DATED this 12th day of August, 1986.
Attorney General
State of Idaho
Analysis by:
JOHN J. McMAHON
Chief Deputy Attorney General
cc: Idaho Supreme Court
Supreme Court Library
Idaho State Library