The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5165

March 10, 1977

LICENSES AND PERMITS:

Nurserymen

NURSERIES AND NURSERY STOCK:

Licensing of nurserymen

Nurserymen are not required to be licensed pursuant to the statute regulating residential builders, residential maintenance and alteration contractors and nurserymen may sustain a cause of action in regard to a transaction involving the nursery business whether licensed or not.

Honorable Robert VanderLaan

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion as to whether nurserymen are required to be licensed pursuant to 1965 PA 383, MCLA 338.1501 et seq; MSA 18.86(101) et seq, and also whether a nurseryman who is not licensed pursuant to the Act may maintain a cause of action in the courts of this state in regard to transactions involving the nursery business.

1965 PA 383, supra, generally provides for the licensing and regulation of residential builders, residential maintenance and alteration contractors and salesmen.

Persons, other than residential builders, required to be licensed pursuant to 1965 PA 383, supra, are governed by the provisions of section 4(3), which provides in pertinent part:

'The commission, upon application, may issue a residential maintenance and alteration contractor's license to an applicant who, upon written examination, shall qualify therefor, which shall authorize the licensee according to his qualifications, crafts, and trades to engage in the activities of a residential maintenance and alteration contractor. Licenses shall include the following crafts and trades, but not be limited thereto: Carpentry, concrete work, electrical work, swimming pools, waterproofing basements, excavation, heating, air conditioning installation, insulation work, lathing, masonry work, painting and decorating, plastering, plumbing work, roofing, siding, screens and storm sash installation, sheet metal work, tile and marble work, house moving and raising, and house wrecking.'

In a letter opinion to the Director of the Department of Licensing and Regulation dated May 16, 1972, a copy of which is appended hereto, I advised that the Department had the authority to add crafts or trades to those enumerated in section 4(3), supra, by promulgating administrative rules. However, the Director is not free to add any and all crafts or trades to those enumerated in the statute. It has been held that general words used after specific words are to be confined to things ejusdem generis with the things previously specified. People v Powell, 280 Mich 699; 274 NW 372; 111 ALR 721 (1937); Brooks v Cook, 44 Mich 617; 7 NW 216 (1880). The same rules should also apply when the general words appear before the specific words. The phrase ejusdem generis means of the same kind or species. Jads, Inc v Detroit, 41 Mich App 693; 200 NW2d 715 (1972).

The activities of a nurseryman is not the same kind of craft or trade that fits the mold of residential maintenance and alteration contractor as enumerated in 1965 PA 383, Sec. 4(3), supra. Moreover, we deal here with a penal statute. 1965 PA 383, Sec. 16, supra, and Sec. 4(3), supra. The Act does not give a person pursuing the calling of nurserymen fair notice that his contemplated conduct is forbidden by this statute. See concurring opinion of Judge Borradile in Jads, Inc v Detroit, supra. It must be concluded, therefore, that 1965 PA 383, Sec. 4(3), supra, does not require 'nurserymen' to be licensed and a nurseryman may sustain a cause of action in regard to a transaction involving the nursery business whether licensed or not.

Frank J. Kelley

Attorney General

Attachment

May 16, 1972.

Mr. Charles E. Harmon, Director

Dept. of Licensing and Regulation

1033 South Washington Avenue

Lansing, Michigan 48926

Dear. Mr. Harmon:

In your letter of October 18, 1971, you state:

'. . . the Department and the Board have had cause to be concerned about the activities of persons who, as contractors, change the character of residential premises in additional ways, such as installing thereon or therein sound systems, communication systems, vacuum cleaning systems, underground sprinkler systems, burglar alarm systems, and/or television antennas.'

You have requested my opinion on the following question regarding the residential builders' and maintenance and alteration contractors' licensing act, being 1965 PA 383, as amended; MCLA 338.501 et seq; MSA 18.86(101) et seq:

1 'Whether or not the Department of Licensing and Regulation has the authority to add crafts and trades other than those specifically enumerated in Section 2(b), Section 2(c) and Section 4(3) of Act 383 Public Acts of 1965, as amended, by administrative adjudication or otherwise.

1(a) 'Specifically, may the Department of Licensing and Regulation and the Residential Builders' and Maintenance and Alteration Contractors' Board, without the promulgation of a rule, require licensure of persons, who as contractors, change, alter or add to residential premises by engaging in any of the following trades, crafts or vocations: installation or erection on, or affixing on or in, such premises awnings, asphalt paving, fences, driwall, laminated plastics, water conditioners, television antennas, sound systems, communication systems, vacuum cleaning systems, underground sprinkler systems, burglar alarm systems, and/or television antennas.

2 'Whether or not the Residential Builders' and Maintenance and Alteration Contractors' Board by administrative rule or otherwise can add crafts and trades other than those specifically enumerated in Section 2(b), Section 2(c) and Section 4(3) of Act 383, Public Acts of 1965, as amended, under the rule making power of section 13a thereof or otherwise.

2(a) 'If your answer to questions numbered 1 and 1(a) are in the negative, may such licensure be required for any of the trades, crafts or vocations mentioned in question 1(a) by promulgation of a rule or rules which would state such requirement?'

The residential builders' and maintenance and alteration contractors' licensing act, supra, hereinafter referred to as the act, defines a 'residential builder' at section 2(b) as:

"Residential builder' means any person engaged in the construction of residential structures or a combination of residential and commercial structures who, for a fixed sum, price, fee, percentage, valuable consideration or other compensation, other than wages, undertakes with another or offers to undertake or purports to have the capacity to undertake with another for the erection, construction, replacement, repair, alteration or any addition to, subtraction from, improvement, movement of, wrecking of or demolition of, a residential structure or combination or residential and commercial structure, or any person who manufactures, assembles, constructs, deals in, distributes residential or combination residential and commercial structures which are prefabricated, preassembled, precut, packaged or shell housing, or any person who erects a residential structure or combination of residential and commercial structure except for his own use and occupancy on his own property.'

A 'residential maintenance and alteration contractor' is defined at section 2(c) as:

"Residential maintenance and alteration contractor' means any person who, for a fixed sum, price, fee, percentage, valuable consideration or other compensation, other than wages, undertakes with another for the repair, alteration or any addition to, subtraction from, improvement of, movement of, wrecking of or demolition of a residential structure or combination of residential and commercial structure, or building of a garage, or laying of concrete on residential property, except for his own use and occupancy. The provisions of this act shall not be construed to prevent a duly licensed residential maintenance and alteration contractor from constructing an addition to an existing residential structure, or any other structure accessory to an existing residential structure.'

The specific crafts and trades requiring a residential maintenance and alteration contractor's license are enumerated in section 4(3) of the act, which reads as follows:

'The commission, upon application, may issue a residential maintenance and alteration contractor's license to any applicant who, upon written examination, shall qualify therefor, which shall authorize the licensee according to his qualifications, crafts and trades to engage in the activities of a residential maintenance and alteration contractor. Licenses shall include the following crafts and trades, but not be limited thereto: Carpentry, concrete work, electrical work, garage building, swimming pools, waterproofing basements, excavation and sewer installation, heating and air conditioning installation, insulation work, lathing, masonry work, painting and decorating, plastering, plumbing work, roofing and siding, screens and storm sash installation, sheet metal work, tile and marble work, house moving and raising and house wrecking. Such license when issued shall specify the particular crafts and trades for which the licensee has qualified. The commission shall not require any applicant to pay more than 1 license fee regardless of the number of crafts and trades for which he is licensed. Nothing contained in this section shall prohibit a specialty contractor from taking and executing a contract involving the use of 2 or more crafts or trades if the performance of the work in the crafts or trades, other than in which he is licensed, is incidental and supplemental to the performance of work in the craft for which the specialty contractor is licensed.'

This section very clearly indicates that those crafts and trades enumerated do not constitute an all inclusive list, but are representative of the type of activity to be regulated by the act.

The avowed purpose of the act is stated in section 1 as:

'In order to safeguard and protect home owners and persons undertaking to become home owners, it shall be unlawful on and after September 1, 1966, for any person to engage in the business of or to act in the capacity of a residential builder or a residential maintenance and alteration contractor and/or salesman in this state without having a license therefor, unless such person is particularly exempted as provided in this act.'

In examining your questions 2 and 2(a) first, we find that the act creates a board within the Department of Licensing and Regulation to administer the statute in light of this purpose and gives to the board rule making power, which is found at section 13a(3) of the act, and contains the following language:

'The board shall promulgate rules and regulations, setting standards of conduct, performance, qualifications and fitness of applicants; examination of applicants; conduct of investigations; settlement of complaints; and disciplinary procedures.'

Comparing the language of section 4(3) with the rule making power in section 13a(3) and using the following rules of construction found at 2 Am Jur 2d, Administrative Law, Sec. 307:

'. . . rules made in the exercise of a power delegated by statute should be construed together with the statute to make, if possible an effectual piece of legislation in harmony with common sense and sound reason.

'. . . generally the same rules of construction and interpretation govern the construction and interpretation of rules and regulations of administrative agencies as apply to statutes in the same filed. . . .'

I conclude that the board by rule may add to the list of crafts presently contained in the statute. I will not attempt to analyze and pass on each craft enumerated in your letter since this would best be done by the board using its administrative expertise. Since I conclude that the board may add crafts by properly promulgated administrative rule, it is not necessary to respond to questions 1 and 1(a).

Frank J. Kelley

Attorney General