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. 5324 June 21, 1978 CONSTRUCTION CODE ACT: Installation of water conditioning equipment PLUMBERS & PLUMBING: Installation of water conditioning equipment ADMINISTRATIVE LAW & PROCEDURE: Expansion of power by adoption of rules The Michigan Plumbing Law does not require that water conditioning equipment be installed only by a licensed plumber. Inasmuch as an administrative agency may not expand its powers by adoption of rules, the adoption of the Building Officials and Code Administration Basic Plumbing Code by the State Construction Code Commission may not be applied to require that water conditioning equipment be installed by licensed plumbers. Honorable Harry A. DeMaso State Senator 20th District P.O. Box 30036 Lansing, Michigan 48909 You have requested my opinion on the following questions: '1. Does the Michigan Plumbing Law (1) require a water conditioning contractor or water conditioning equipment installer (2) to be licensed as a master or journeyman plumber, or have a licensed plumber do the installation when installing water conditioning equipment? 2. What impact or effect, if any, has the adoption of Act No. 230 of 1972 and its promulgated Plumbing Code Rules have on the ability of the water conditioning contractor or water conditioning equipment installer to obtain a permit for installation?' Your first question has been considered in prior opinions of the Attorney General. These opinions, OAG 1935-1936, No. 114, p 298 (October 10, 1935) and OAG 1947-1948, No. 591, p 454 (August 27, 1947), determined that the connection of water softeners to a water supply system is not covered by the provisions of the Michigan plumbing law, 1929 PA 266, supra, and therefore the licensing requirements of the plumbing law, supra, do not apply to persons involved in the installation of water conditioning equipment. Since the plumbing statute upon which these opinions were based has not been amended, there is no reason to reevaluate these opinions. Your second question essentially deals with the effect of a provision found in the State Construction Code adopted by the Construction Code Commission pursuant to 1972 PA 230; MCLA 125.1501, et seq; MSA 5.2949(1), et seq. The provision in question relates to the requirement adopted by the Commission in the construction code which mandates that any person who engages in plumbing work as defined in the code must have an occupational license as a plumber and obtain all necessary building permits associated with that work. See, Sec. P-201.0, Building Officials and Code Administration, Basic Plumbing Code, May 19, 1975 (hereinafter referred to as the BOCA code). The BOCA code provision respecting plumbing work is broader than that term is used in the Plumbing Law (1929 PA 266) to which my predecessor's opinions were addressed. In sum, the BOCA code provision includes the installation of water conditioning or softening equipment within the meaning of plumbing work. Thus, the question is raised as to whether the adoption of the BOCA code and the relevant plumbing provisions therein mandate that all water conditioning or water softening installations be installed by licensed plumbers. An administrative agency may not, by adoption of rules, assume a power which the legislature has not conferred upon it. Michigan Sportservice, Inc v The Commission of the Department of Revenue, 319 Mich 561; 30 NW2d 281 (1948). The State Construction Code Act of 1972, supra, section 4, provides for the various standards, objectives and purposes of a promulgated construction code. Among them there is: '(d) to eliminate restrictive obsolete, conflicting and unnecessary construction regulations that tend to increase construction costs unnecessarily or restrict the use of new materials, products or methods of construction, or provide preferential treatment to types of classes of materials or products or methods of construction.' Thus, the provision in the BOCA code requiring that installation of water conditioning or softening equipment be done by licensed plumbers is beyond the standards, objectives and purposes of the statute. It is, therefore, my opinion that the BOCA code provision which mandates that water conditioning or softening equipment be installed only by licensed plumbers is beyond the scope of the statute and is an invalid rule. Frank J. Kelley Attorney General (1)
(2)
Water conditioning equipment is frequently referred to as water softening equipment.