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ITW Food Equipment Group LLC v. Minnesota Plumbing Board

Court of Appeals of Minnesota

July 1, 2019

ITW Food Equipment Group LLC, a/k/a Hobart, Relator,
v.
Minnesota Plumbing Board, Respondent.

          Minnesota State Plumbing Board File No. PB0098

          Scott M. Rusert, David J. Warden, Nilan Johnson Lewis PA, Minneapolis, Minnesota (for relator)

          Keith Ellison, Attorney General, Christopher M. Kaisershot, Assistant Attorney General, St. Paul, Minnesota (for respondent)

          Considered and decided by Rodenberg, Presiding Judge; Cleary, Chief Judge; and Bjorkman, Judge.

         SYLLABUS

         A final 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).

          OPINION

          CLEARY, CHIEF JUDGE

         This is 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[1] 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.

         FACTS

         ITW FEG 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.

         On 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."

         On 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.

         ISSUES

         I. What 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?

         II. Was the board's final interpretation of Minn. R. 4714.0603.2 and Table 603.2 to prohibit valves from being installed ...


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