Minnesota State Plumbing Board File No. PB0098
M. Rusert, David J. Warden, Nilan Johnson Lewis PA,
Minneapolis, Minnesota (for relator)
Ellison, Attorney General, Christopher M. Kaisershot,
Assistant Attorney General, St. Paul, Minnesota (for
Considered and decided by Rodenberg, Presiding Judge; Cleary,
Chief Judge; and Bjorkman, Judge.
interpretation of the Minnesota Plumbing Code issued by the
Minnesota Plumbing Board pursuant to Minn. Stat. §
326B.127, subd. 5 (2018), is subject to certiorari review by
the court of appeals in the manner provided by Minn. Stat.
§ 14.69 (2018).
CLEARY, CHIEF JUDGE
an appeal from a final interpretation of the Minnesota
Plumbing Code issued by respondent Minnesota Plumbing Board
(the board) under Minn. Stat. § 326B.127, subd. 5
(2018). The board interpreted Minn. R. 4714.0603.2 (2017) and
Table 603.2 to prohibit any valve from being installed
downstream of an atmospheric vacuum breaker (AVB). Relator
ITW Food Equipment Group LLC, a/k/a Hobart (ITW FEG),
initiated a certiorari appeal challenging the board's
final interpretation, arguing that the board's decision
is flawed due to an error of law, arbitrary and capricious,
unsupported by substantial evidence, and based on unlawful
procedure. We affirm.
manufactures commercial food equipment, including
dishwashers, for institutional use. In 2008, ITW FEG began
selling its CLe series commercial conveyor dishwasher, and in
2017, it released its updated CLeN series. In August 2018,
Minnesota Department of Labor and Industry (DOLI) inspectors
denied approval of at least four of ITW FEG's CLeN
dishwashers that were installed in Minnesota public schools,
stating that the dishwashers failed to comply with Minn. R.
4714.0603.2 and the Minnesota Plumbing Code's
backflow-prevention provisions because the CLeN model
contained a valve downstream from an AVB.
September 5, 2018, ITW FEG submitted a request to the board
for final interpretation, citing for review Minn. R.
4714.0603.2. In its request for interpretation, ITW FEG
asserted that the CLeN dishwasher design complies with the
Minnesota Plumbing Code because: (1) the design does not
include a valve downstream that would affect the AVB; (2) the
language in Table 603.2 that prohibits the installation of
valves downstream from an AVB "is made in reference to
the table header and is not intended to be [an enforceable
criterion], but rather general guidance"; and (3) when
properly installed, there is no reasonable risk for back
pressure or backsiphonage, "thereby complying with the
intent of the rule and negating [the DOLI inspector's]
suggestion of adding additional back flow prevention,
upstream and external from the listed appliance." ITW
FEG further stated that, under Minn. R. 4714.0603.2,
"[v]alves that control the AVB are not allowed
downstream from the AVB. Other valves - are just fine."
October 8, 2018, the board convened a special meeting and
considered ITW FEG's request for interpretation. During
the meeting, an ITW FEG engineer presented the design of the
CLeN dishwasher to the board, and during his presentation, he
showed the board a valve downstream from the AVB, stating
that it was not a control valve, but a supplementary fill
valve. The engineer also argued that because the AVB is
always open to atmosphere, the design meets the intent of the
plumbing code. A representative for ITW FEG was also present
during the meeting, and while participating in the discussion
with board members, he stated, "So, in any event,
we're hoping that the Board can understand what the risk
factor is here and read the code and understand what the
intent was, as opposed to just the letter. It's the
intent that matters in the code." The board disagreed
and, in a nine-to-one vote, determined that, pursuant to
Table 603.2, "no valves are allowed downstream of an
atmospheric vacuum breaker (AVB), in accordance with ASSE
1001-2008." This certiorari appeal follows.
is the proper standard of review on appeal from a final
interpretation issued by the Minnesota Plumbing Board under
Minn. Stat. § 326B.127, subd. 5?
the board's final interpretation of Minn. R. 4714.0603.2
and Table 603.2 to prohibit valves from being installed