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Apprentices do not need to be under “line of sight” supervision pursuant to the state’s Plumbing Practice Act, the Colorado Court of Appeals decided for the first time on Thursday.

The law “does not expressly provide that compliance requires this specific degree of supervision,” wrote Judge Neeti Vasant Pawar for the three-member panel. 

The Colorado State Plumbing Board disciplined Confidence Plumbing Co., Inc. and its owner, Michael E. Welch, for letting an apprentice use a soldering torch on an Aurora residential project in 2016 without a licensed plumber directly supervising. A building inspector witnessed the situation, observing no licensed plumber in the house with the apprentice.

The board, which licenses and regulates the profession, levied a $2,300 fine. It also suspended Welch’s licenses and his business’s contractor registration for five years. The penalty was harsher than what an administrative law judge recommended because of the “high potential for fire.”

Welch appealed the decision of the board, arguing that “supervision” does not mandate line-of-sight. The statute only orders that “a licensed plumber supervise apprentices at the job site.”

“The supervisor may not have been in that particular home at the time of the complaint, but he was on site,” Welch contended. The board did not define whether a “job site” constituted one home or an entire project with multiple units because they determined it had no bearing on the line-of-sight requirement.

Noting the vagueness of the language, Pawar wrote in the court’s opinion that “the Board has not provided any written guidance in the form of rules or position statements to assist individuals in the plumbing trade in ensuring compliance with the statute.”

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She elaborated that witnesses at Welch’s hearing put forth competing interpretations of supervisory responsibilities, ranging from line-of-sight supervision to being in the vicinity of where the apprentice is working.

The court discovered that the legislature chose to mandate “direct supervision” for electricians, meaning a different standard applied to plumbers. In both cases, the General Assembly omitted line-of-sight from the directive. Further, cases brought under the federal Occupational Safety and Health Act indicated no mandate for line-of-sight supervision.

Pawar did not rule out any of the supervisory interpretations the witnesses generated because “the public policy of ensuring correct and safe installation of plumbing can be achieved” with line-of-sight or proximate supervision. The court concluded, however, that because one licensed journeyman could supervise up to three apprentices at a job site, it would be impractical to require line-of-sight supervision for each. Therefore, the plumbing board created too strict of a standard.

“We conclude that to ‘supervise apprentices at the job site’ means that a licensed plumber must be within a sufficient distance of the apprentice, whether in or outside a building, such that by monitoring, inspecting, and signing off on the apprentice’s work with reasonable frequency, the correct and safe installation of plumbing can be achieved,” wrote Pawar.

Craig L. Pankratz, an attorney at Springer & Steinberg, P.C. who represented Welch, said it would be helpful for the General Assembly to clarify the law, but the court’s decision made that move unnecessary.

“If the General Assembly doesn’t do anything after an appellate court interprets the statue, it’s presumed the appellate court got it right,” he said. “So I guess it’s kind of a wait-and-see.” 

The court dismissed the penalty against Welch. The case is Welch v. Colorado State Plumbing Board.

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