Opinion
Aug. 1, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 156
A. Allen Brown, Delta, for plaintiff-appellee.
Duke W. Dunbar, Atty. Gen., William Tucker, Asst. Atty. Gen., Denver, for defendants-appellants.
COYTE, Judge.
Plaintiff filed his complaint in the District Court of Delta County against defendants as members of the Examining Board of Plumbers of the State of Colorado. By his action he sought to compel the issuance to him of a master plumber's license under the provisions of 1971 Perm.Supp., C.R.S. 1963, 142--1--13, which reads as follows:
'Licensees from other states. The board may license without examination, upon the payment of the required fee, applicants who are duly licensed under the laws of other states having requirements for the licensing and regulating of the plumbing trade, deemed by the board to be equivalent to the requirements of this state.'
Plaintiff held a master plumber's license from the State of Texas and after moving to Colorado made application for a Colorado license, without examination, which was denied by the Board.
At the conclusion of the trial to the court, the court found that the Board had acted in an arbitrary and capricious manner and ordered the issuance of a license. Members of the Board seek reversal of the judgment. We agree with the orders of the trial court and affirm its judgment.
From the record it appears that plaintiff visited the office of the Examining Board of Plumbers and talked with Mr. Aikele, Secretary-Treasurer of the Board. He gave plaintiff an application form for a license as a master plumber. He advised plaintiff that the Board would require a copy of plaintiff's high school diploma, his master plumber's certificate, his yearly card, and three letters of reference from persons who were familiar with plaintiff's work where he had worked the past twenty-four years, the last four of which were as a master plumber. Plaintiff forwarded his application to the Board on the 29th of September. On the 5th of October plaintiff received a letter returning his check and advising him that the Board 'denied your license by reciprocity.' This was before plaintiff had had an opportunity to furnish the three references. On the bottom of the application which plaintiff had submitted was written: 'This man was in my office this week. I would recommend accepting the application for master plumber but not by reciprocity.' There is no showing that the Board ever met, voted, or acted upon this application. Later, on the 13th of January, plaintiff and his attorney met with the Board. The minutes of that meeting reflect:
'Mr. Davenport (president of the Board) opened the meeting and read the first item on the agenda, which was discussion with Mr. James M. Whitfield and his attorney regarding application for license by reciprocity.'
The minutes disclose further discussion relative to lack of reciprocity with the State of Texas and research done by the secretary on reciprocity. The minutes further reflect that Mr. Aikele did not feel that Texas had a comparable examination. The Board unanimously denied Mr. Whitfield's license by reciprocity.
In the pre-trial conference defendants, for the first time, itemized seven requirements to be met before a master's license could be issued under the above-mentioned statute. This was after the issuance of the license had been first denied in October without any apparent Board action and again after the hearing before the Board in January.
The president of the Board testified that it had been the policy of the Examining Board to refuse to grant licenses on the basis of the above statute. He further stated that it was not of concern to the Board that Mr. Whitfield had been engaged in the plumbing trade in Houston for 24 years because the Board had not set up any reciprocal agreements with any state, particularly the state of Texas. He also stated that the state of Texas does not reciprocate with the state of Colorado.
At the conclusion of the trial, the court made the following pertinent findings:
'The Court further finds that the record discloses that the Board acted in an arbitrary and capricious manner throughout its transactions with the plaintiff, and by its actions shut the door of opportunity for the plaintiff to carry on his trade in this State and contrary to the intent and spirit of the law.
'The Court further finds that the plaintiff was engaged in the plumbing trade in the City of Houston, Texas, and vicinity for a period of twenty-four years and that he took and passed an examination which entitled him to receive a Master Plumber's License and that following the filing of this case, the plaintiff was advised of seven requirements to be met before such a license could be granted. That he did meet such seven requirements to the satisfaction of this Court and that the plaintiff is entitled to receive a Master Plumber's License under the provisions of CRS 1963 142--1--13, and that he is entitled to a relief set forth in CRS 1963 3--16--5.'
We agree that the Examining Board acted in an arbitrary and capricious manner in dealing with plaintiff. It misconceived the intent to 1971 Perm.Supp., C.R.S.1963, 142--1--13, in that it considered that the statute was only applicable where there was a reciprocal agreement with another state. The statute does not mention reciprocity and has nothing to do with reciprocity.
The Board, through its secretary-treasurer, first purported to deny plaintiff's application without Board action and without investigation. Later, when the members met with plaintiff and his attorney, they still talked about reciprocity and made no disclosure as to the seven requirements. They waited until suit had been on file for approximately two months, then mentioned the seven requirements at the pre-trial conference. No evidence was introduced at the trial to indicate that these requirements were in written form. As stated in Linder v. Copeland, 137 Colo. 53, 320 P.2d 972:
'An administrative board which is charged with a duty to hear and determine applications for licenses to follow an occupation involving personal skill, specialized training and expert knowledge in a particular field, and which presupposes a period of novitiate, is not thereby empowered to shut the door of opportunity in that field to any person who possesses the required qualifications. The legislature is authorized to prescribe only such qualifications as are reasonably necessary to protect the public interest. The law does not authorize, and the courts will not uphold, any action of an administrative board which savors of monopolistic control over the right of any qualified person to follow his chosen profession.'
The Board complains that the court erred in allowing members of the Board to be cross-examined over objection of counsel. Each member of the Board was subpoenaed and called as an adverse witness under the statute. There were no protective orders requested by the members of the Board; nor were any protective orders issued by the court prior to the trial. Objection was made to interrogation by plaintiff's counsel into the manner and reason used by the individual members of the Board in arriving at their decision. We have read the entire record. While plaintiff's counsel was allowed to interrogate freely as to the meetings that had occurred relative to plaintiff's application and as to what was done at the meetings, the court stopped short of allowing counsel to interrogate as to a reason for the individual members voting as they did. The interrogation falls far short of the errors complained of in State Civil Service Commission v. Colorado State Board of Health, 111 Colo. 109, 138 P.2d 934, and Board of Education v. District Court, Colo., 483 P.2d 361. Additionally, since trial was to the court, the fact that some inadmissible evidence may have crept into the record is not grounds for reversal. Rosenthal v. Whitehead, 171 Colo. 347, 467 P.2d 831. There was no prejudicial error in this regard.
Judgment affirmed.
ENOCH and PIERCE, JJ., concur.