January 11, 2022
by Bob Incollingo
I was recently asked about the legal responsibility of a consumer to pay for the services of unlicensed well drillers and pump installers. I did my homework and concluded that there is no obligation on the part of a consumer to pay for such services, that such services are provided pursuant to an unlawful and unenforceable contract, and that public policy dictates that the unlicensed provider should forfeit any alternative claim for the reasonable value of such services. In my considered opinion, unlicensed well drillers and pump installers are barred from bringing or maintaining an action in any New Jersey court for the collection of a fee, charge or commission for the performance of any of the activities regulated by the New Jersey Subsurface and Percolating Waters Act, N.J.S.A. 58:4A.1 et seq., and the associated regulations, N.J.A.C. 7:9D, without proving licensure at the time the services were rendered and the alleged cause of action arose. N.J.S.A. 58:4A-6; N.J.A.C. 7:9D-1.6 (c), (d).
In 2011, the New Jersey Department of Environmental protection issued a Compliance Advisory Enforcement Alert, which can be found online at https://www.nj.gov/dep/enforcement/advisories/2011-05.pdf. The Alert demonstrates just how serious the NJDEP is where regulatory compliance is on the line, and states in relevant part,
“The NJDEP responds to and investigates consumer complaints involving improper well construction and well pump installation issues. NJDEP has confirmed a significant number of well and well pump-related violations. The nature of these violations is of great concern, because it threatens the quality of our aquifers and the safety of our water supplies. Some of the confirmed violations include wells and pumps installed by non-licensed or improperly licensed individuals, improper or faulty well construction and well pump installations, failure to obtain required permits, improper decommissioning of wells, and failure to timely submit well records and decommissioning reports.“
(emphasis supplied). The Alert goes on to describe and recommend an avenue for aggrieved consumers to contact the Bureau of Water Systems and Well Permitting for further information and assistance.
In addition to the clear public policy embodied in the foregoing authority, the New Jersey Consumer Fraud Act prohibits merchants, sales people and contractors from using deceptive practices in the sales of goods or services to consumers. The deceptive practice need not be explicit – it can be the “knowing concealment, suppression or omission of any material fact.” N.J.S.A. 56:8-2. In my opinion, knowing omission of the lack of legally required licensure is a perfect example of actionable consumer fraud, and should invalidate any contract for services with the unlicensed party, and subject him or her or it to the award of treble damages, costs of suit and attorney’s fees to the plaintiff consumer.
Finally, while companies routinely offer well drilling, plumbing and water treatment systems at the same time, this does not excuse them from concurrently holding all of the relevant licenses required by law for the separately regulated trades. One size does not fit all, and one can readily find examples online of New Jersey companies which display their Master Plumbers License, Pump Installers License, and HVACR License all at the same time. This is as it should be.
Bob Incollingo is a dedicated South Jersey construction attorney who litigates construction, business, and real estate cases in Gloucester County, Burlington County, and Camden County, New Jersey from his office in Cherry Hill. More articles like this appear on RJILAW.com.
Special thanks to Kevin Anderson and Kevin Anderson Well Drilling LLC for the topic.