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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)



Opinion No. 5984

September 29, 1981


Licensure of a cement contractor

An unlicensed cement contractor who performed residential contract work prior to October 21, 1980, was required to be licensed under 1965 PA 383.

Honorable Stephen V. Monsma

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion whether an unlicensed cement contractor who constructed a concrete driveway for a homeowner prior to October 21, 1980 was required to be licensed under the residential builders act, 1965 PA 383; MCLA 338.1501 et seq; MSA 18.86(1) et seq. (1)

Residential concrete work is within the purview of 1965 PA 383, supra, Sec. 2. (2) In People v Samuel Lee, 66 Mich App 5, 9; 238 NW2d 397, 399 (1975), the court concluded that the Legislature, in specifically including the laying of concrete as subject to the terms of 1965 PA 383, supra, had expressly excluded the laying of asphalt. Accordingly, residential concrete work required licensure pursuant to the provisions of 1965 PA 383, supra. (3)

Enforcement of the licensure requirement for residential concrete work is contained in 1965 PA 383, supra, Sec. 16a(1), which pertinently provides that '[a]ll law enforcement officers of this state shall enforce the licensing requirements of this act. The prosecuting attorneys and the attorney general shall prosecute a person violating the licensing requirements of this act.' (4) Finally, it is noted that any matter which was actionable under 1965 PA 383, supra, is saved, and may be brought at the present time, pursuant to RS 1846, ch 1, Sec. 4a; MCLA 8.4a; MSA 2.214, which provides:

'The repeal of any statute or part thereof shall not have the effect to release or relinquish any penalty, forfeiture, or liability incurred under such statute or any part thereof, . . . and such statute and part thereof shall be treated as still remaining in force for the purpose of the instituting or sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.'

See People v Ulysee Gibson, 71 Mich App 220, 225; 247 NW2d 357, 359 (1976), where the court found it to be the legislative intent underlying RS 1846, ch 1, Sec. 4a, supra, to permit prosecution for violations of repealed statutes where the acts complained occurred during the life of the sbsequently repealed statute. OAG, 1979-1980, No 5759, p 933 (August 26, 1980).

It is, therefore, my opinion that an unlicensd cement contractor who performed residential contract work prior to October 21, 1980, was required to be licensed under 1965 PA 383, supra. (5)

Frank J. Kelley

Attorney General

(1) 1965 PA 383, supra, was repealed and its provisions replaced by substantively identical provisions in the Occupational Code, 1980 PA 299, Art 24; MCLA 339.2401 et seq; MSA 18.425(2401) et seq. The Occupational Code took effect October 21, 1980.

(2) To like effect, see 1980 PA 299, Art 24, supra, Sec. 2401.

(3) Id.

(4) See 1980 PA 299, supra, art 6, Secs. 601(1) and 605. See also, RS 1846, ch 14, Sec. 53; MCLA 49.153; MSA 5.751.

(5) See fn 2 and supporting text, supra.


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