MASSACHUSETTS LABORERS DISTRICT COUNCIL & others [Note 1] vs. BOARD OF ELEVATOR REGULATIONS & another. [Note 2]

DREBEN, J. In this action, brought by members of the wrecking industry and their union representatives, a judge of the Superior Court declared that a regulation of the board of elevator regulations (board) was invalid in part. The regulation, 524 Code Mass. Regs. s. 10.00(23) (1991), set forth in the margin, [Note 3] requires that only elevator personnel licensed

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under G. L. c. 143, s. 71B, [Note 4] perform certain demolition work. On cross motions for summary judgment, the judge allowed the plaintiffs' motion, ruling the regulation was invalid

"to the extent that it requires a person licensed under G. L. c. 143, Sec. 71B to dismantle or remove an elevator or elevator equipment in a building or structure undergoing repairs, renovations or remodeling, or where the hoistway is intended for reuse, after the elevator has been decommissioned (that is, once the elevator car, weights, and cables have been placed at their lowest level in the building or structure)."

In its appeal, the board presses its statutory authority to adopt the regulation. [Note 5] We conclude that the statute enabling the board to issue regulations, when read with the statute requiring licensure of certain elevator personnel, does not authorize the regulation. Accordingly, we affirm the judgment.

We turn first to the enabling act, G. L. c. 143, s. 68. See Simon v. State Examrs. of Electricians, 395 Mass. 238, 242 (1985); Worcester Sand & Gravel Co. v. Board of Fire Prevention Regulations, 400 Mass. 464, 466 (1987). In relevant part, the statute reads:

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"The board of elevator regulations shall promulgate amendments to the regulations relating to the construction, installation, alteration and operation of all elevators, and relative to the location, design and construction of shafts or enclosures for elevators, safety devices, gates and other safeguards, protection against the elevator or hoisting machinery, and means to prevent the spread of fire ...." [Note 6]

See also s. 69 which provides the procedure for drafting and issuing amendments to the regulations.

The licensing statute to which the judge and the disputed regulation refer, G. L. C. 143, s. 71B, is administered by the board of examiners, and not the board of elevator regulations. [Note 7] Section 71B provides in relevant part:

"No person shall work as an elevator constructor, maintenance man and repairman in the construction, maintenance or repair of elevators unless he holds a license therefor granted by the board."

The statute is a penal one as s. 71D provides for a fine of not less than $500 nor more than $1,000 for anyone working "as a constructor, maintenance man and repairman in the

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construction, maintenance or repair of elevators without a license."

Both s. 68, the enabling act, and s. 71B, the licensing act, use similar terms -- s. 68 speaks of "construction, installation, alteration and operation" of elevators, and s. 71B of "construction, maintenance or repair." Neither refers to removing or dismantling elevators.

Moreover, long-standing practice supports the wreckers' claims that the regulation is unauthorized. See Simon v. State Examrs. of Electricians, 395 Mass. at 246 ("want of assertion of power by those who presumably would be alert to exercise it is . . . significant"). An affidavit of one of the plaintiffs, [Note 8] which appears uncontested, avers that until paragraph 23 of the regulation was added, "there was never any question that removal of elevators was part of a demolition contractor's work" whether the building was to be demolished or gutted out and renovated.

The board seeks to sustain its regulation on two grounds. First it claims that since elevator equipment removed from a building may be reinstalled in other buildings following decommissioning, the regulation falls within the board's statutory authority. This argument appears specious since installing (or reinstalling) an elevator is governed by G. L. c. 143, s.s. 62-63, and requires both inspection and certification prior to use.

The board also argues that the regulation is directly related to its statutory authority to adopt regulations relating to "protection against the elevator or hoisting machinery and means to prevent the spread of fire." G. L. c. 143, s. 68. The board's safety argument relies heavily on the affidavit submitted by board chairman Edward Sullivan, the "experienced elevator constructor," who, because of his private interest, "excused himself from the board" at the public hearing on the regulations. See note 6, supra. Sullivan's affidavit recounted one incident where unlicensed laborers removed some elevator equipment with a torch causing electric wiring to catch on fire. It was his "opinion" that licensed elevator personnel would not have used a torch.

Sullivan's safety concern may be overstated as evidenced by

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the following comments made at the public hearing by the chairman of the meeting, the building inspector of Danvers: "[A]ll of the accidents that were reported seemed to occur when the car of the elevator was in some position other than at its lowest level parked, so to speak, or as the code refers to it, placed out of service." See 524 Code Mass. Regs. s. 11.00 (1986) ("Elevators Placed Out of Service"). The building inspector saw no need for the requirement of a licensed elevator constructor once the safety precautions of placing the cab and counterweights at their lowest level were taken. In this connection, we note that under the judge's order the decommissioning of elevators, the more dangerous portion of the operation, is left to licensed elevator personnel.

Even if Sullivan's opinion that licensed elevator personnel would not have used a torch on electric wiring is taken as valid, see Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 438 (1995) (on summary judgment review is in the light most favorable to the nonmoving party), there is no reason why safety regulations may not be propounded to apply to nonlicensed as well as to licensed elevator personnel. [Note 9]

The question here, as in Simon v. State Examrs. of Electricians, 395 Mass. at 242 & 249, a case upon which the plaintiffs rely, is whether the Legislature intended a broad or narrow reach to the terms of the enabling act, particularly in view of the penal licensure provision. Simon instructs, at 249, that where, as here, the licensure statute is penal, it "must be as strictly construed as a criminal law." We conclude that, although the board's claim of authority under s.s. 68 and 69 is entitled to some weight, the statutes do not give it the authority to accord to licensed elevator workers such exclusive func-

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tions as it ordered. Neither the literal words of the enabling act nor Legislative policy suggests that the Legislature intended the board to grant elevator personnel a legal monopoly over removal of elevators by extending the licensure act. See Simon, supra at 249. [Note 10]

Judgment affirmed.