12 Conn. App. 251

White Oak Corporation v. Department of Consumer Protection

(5542)

Düpont, C. J., Spallone and Bieluch, Js.

Submitted on briefs June 1

decision released September 8, 1987

Joseph I. Lieberman, attorney general, and Michael A. Arcari and Robert M. Langer, assistant attorneys general, filed a brief for the appellant (defendant).

Mark A. Rosenblum and Robert L. Hirtle, Jr., filed a brief for the appellee (plaintiff).

Spallone, J.

The defendant is appealing from the judgment of the trial court sustaining the plaintiffs administrative appeal.

*252The plaintiff, White Oak Corporation, had contracted with the city of Stamford to perform certain construction work for the city in the downtown area. Under the terms of the contract, the plaintiff was to expand existing intersections, create new intersections and install or improve traffic signals at these intersections. In order for the plaintiff to accomplish the last of these tasks, electrical conduits were laid by the plaintiffs crew of general laborers.1 These laborers were not licensed by the Connecticut Examining Board for Electrical Work (board),2 nor did they have any electrical expertise.

On January 8, 1982, the defendant department of consumer protection filed a complaint with the board alleging that the plaintiff was in violation of General Statutes §§ 20-3343 and 20-3374 by having its agents *253or employees perform electrical work 5 without having a certificate, license or registration to do so.

On February 19,1982, the board held an administrative hearing, pursuant to General Statutes, chapter 54 (the Uniform Administrative Procedure Act), for the purpose of determining whether the plaintiff was in violation of the aforementioned statutes. On May 14,1982, at the conclusion of such hearing, the board found for the defendant and thereupon ordered the plaintiff to immediately and permanently discontinue its unlawful practice of performing electrical work within the state of Connecticut without using properly licensed personnel.

In early June, 1982, the plaintiff duly appealed the board’s decision to the Superior Court. As in the proceedings before the board, the plaintiff argued that its activities fell within the scope of General Statutes § 20-340 (l),6 and it was therefore exempt from the licensing provision of chapter 393 of the General Statutes. The trial court, in construing § 20-340, agreed with the plaintiff and sustained the appeal. The defendant now appeals from the Superior Court’s judgment, claiming only that the trial court incorrectly construed § 20-340 (1). We agree.

In reaching its decision that the plaintiff was exempt from licensing, the trial court first compared the lan*254guage of § 20-340 (1) to that of § 20-340 (3). The court found that if the definitional phrase “persons employed by” contained in subsection (1) were interpreted to mean “employees,” then subsection (3), which specifies “employees,” would be made superfluous. Because such a result is disfavored under traditional rules of statutory construction; Peck v. Jacquemin, 196 Conn. 53, 66, 491 A.2d 1043 (1985); the trial court concluded that the words “persons employed by” must be defined to encompass some group other than “employees.” The court then accepted the plaintiffs argument that, as an independent contractor, the plaintiff was not an employee of the city of Stamford, yet because it was being “employed by” the city to perform the needed construction work, it necessarily fell within the scope of § 20-340 (1).

We find the reasoning of the trial court to be erroneous in several respects. First, we conclude that the trial court misconstrued the relevant exemptions contained in § 20-340. Whereas the exemption contained in § 20-340 (1) applies to “persons employed by any federal, state or municipal agency.” (Emphasis added.) The exemption contained in § 20-340 (3) applies to “employees of any municipal corporation." (Emphasis added.) Because the entities serving as employers in these two subsections are not identical, the trial court’s focus on who is to be employed was misplaced. In other words, if subsection (1) is interpreted to state that “employees of any federal, state or municipal agency” are exempt from licensing, that construction has no effect on the natural reading of subsection (3) exempting “employees of any municipal corporation.”7

*255We also find error in the trial court’s determination that an independent contractor can be exempted from licensing pursuant to § 20-340. It is axiomatic that contractors or independent contractors are not employees of the party for whom they are performing specific work under a specific agreement. The legal incidents of the relationships between an employer and an employee or independent contractor are well established. Lassen v. Stamford Transit Co., 102 Conn. 76, 79-82, 128 A. 117 (1925). “In Alexander v. R.A. Sherman’s Sons Co., 86 Conn. 292, 297, 85 A. 514 [1912], we adopted the definition that ‘[a]n independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work.’ This definition has been amplified in subsequent cases but at no time has the basic principle been altered. See Francis v. Franklin Cafeteria, Inc., 123 Conn. 320, 324, 195 A. 198 [1937]. . . . ‘The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work.’ Beaverdale Memorial Park, Inc. v. Danaher, 127 Conn. 175, 179, 15 A.2d 17 [1940]; see Kaliszewski v. Weathermaster Alsco *256Corporation, 148 Conn. 624, 628, 173 A.2d 497 [1961]; Bourgeois v. Cacciapuoti, 138 Conn. 317, 320-21, 84 A.2d 122 [1951]; Norwalk Gaslight Co. v. Norwalk, 63 Conn. 495, 524, 28 A. 32 [1893].” Darling v. Burrone Bros., Inc., 162 Conn. 187, 195-96, 292 A.2d 912 (1972); see also Spring v. Constantino, 168 Conn. 563, 573-74, 362 A.2d 871 (1975). There seems to be no dispute that the plaintiff was, in fact, a contractor and not an employee.

In addition, if we were to accept the plaintiffs argument that, even as an independent contractor, he was employed by the city, the purpose of the statutory licensing requirements would be undermined. When construing a legislative act, it is incumbent on us to consider “its history, its language, the purpose it is designed to serve and the circumstances surrounding its enactment.” Bahre v. Hogbloom, 162 Conn. 549, 554, 295 A.2d 547 (1972).

Prior to 1965, occupational licensing of various trades in Connecticut was done by municipal ordinances promulgated under local law. See Tenth Connecticut Biennial Report, Legislative Council (1962) p. 85. A study included in that report indicated a need for uniform licensing laws; see id., p. 79; to which the General Assembly responded by enacting Public Acts 1965, No. 493 (now codified in General Statutes, chapter 393). At the time of that enactment, only three licensing exemptions were provided.8

In 1967, an additional exemption was provided for “employees of any contractor while said contractor is performing work for or subject to inspection by any federal, state or municipal agency or corporation other than a municipal building department, or any public *257service company.” Public Acts 1967, No. 789, § 12. This modification was clearly intended to create an exemption where theretofore none had existed, and, by its terms, would have provided an exemption for the plaintiff in this case.9 This exemption, however, was repealed in 1975. See Public Acts 1975, No. 75-464.

The fact that there was at one time an express licensing exemption for the employees of contractors working for a municipal agency or corporation, coupled with the fact that this exemption was retracted more than ten years ago, leads to the inescapable conclusion that the legislature did not intend § 20-340 (1) to provide an exemption for independent contractors.10

There is error, the judgment is set aside and the case is remanded to the trial court with direction to render judgment dismissing the plaintiffs appeal. 11

In this opinion the other judges concurred.

White Oak Corp. v. Department of Consumer Protection
12 Conn. App. 251

Case Details

Name
White Oak Corp. v. Department of Consumer Protection
Decision Date
Sep 8, 1987
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12 Conn. App. 251

Jurisdiction
Connecticut

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