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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) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6599 September 26, 1989 MOBILE HOME COMMISSION: Review and approval of municipal licensing of mobile home installers, repairers, or mobile home parks MOBILE HOME AND MOBILE HOME PARKS: Municipal licensing of mobile home installers, repairers, or mobile home parks MUNICIPALITIES: Licensing of mobile home installers, repairers, or mobile home parks Municipal licensing requirements and license fee schedules for mobile home repairers and installers are subject to review and approval by the Mobile Home Commission. Municipal licensing requirements for mobile home parks are subject to review and approval by the Mobile Home Commission. Honorable Michael J. Bennane State Representative The Capitol Lansing, MI 48909 You have requested my opinion with respect to three questions concerning the role of local governmental units in the regulation of mobile homes and mobile home businesses pursuant to the Mobile Home Commission Act (Act), 1987 PA 96, MCL 125.2301 et seq; MSA 19.855(101) et seq. As background to your questions, you state: "Currently, several local government units are requiring the licensure of mobile home installers and repairers as a precondition to securing a building permit to site mobile homes as required under ... [1972 PA 230, MCL 125.1501 et seq; MSA 5.2949(1) et seq]. As you may know, mobile home installers and repairers are currently licensed at the State level under the Mobile Home Commission Act ... . In addition, some local governments are imposing additional licensing requirements on mobile home parks without the authorization of the Mobile Home Commission. "These additional local government requirements are causing a great deal of confusion within the mobile home industry and are creating extra costs for both the licensees and the consumers." Since your first two questions are related, they will be considered together and may be stated as follows: 1. May a local government, as defined in Sec. 2(f) of the Act, properly establish a licensing requirement for an installer and repairer, as defined in Sec. 2(e) of the Act, in the absence of a rule promulgated by the Mobile Home Commission under Sec. 5(1)(d) of the Act? 2. May a local government properly charge a license fee to mobile home installers and repairers in the absence of the Mobile Home Commission authorizing such a local fee by a rule promulgated under Sec. 9 of the Act? The licensing of mobile home installers and repairers by the Commission is expressly provided for by Sec. 21 of the Act, MCL 125.2321; MSA 19.855(121), which provides, in relevant part: "(2) A mobile home dealer, mobile home installer, or repairer may obtain an initial or renewal license by filing with the commission an application together with consent to service of process in a form prescribed by the commission pursuant to section 35." "(5) The annual license fee for a mobile home installer or repairer is $50.00 or any other lesser amount established pursuant to section 9(5) [of the Act]." Section 5 of the Act, MCL 125.2305; MSA 19.855(105), provides as follows regarding the rules (1) of the Commission, sometimes referred to as a mobile home code (Code), with respect to mobile home installers and repairers: "(1) The commission shall promulgate the mobile home code subject to section 4. The code shall consist of rules governing all of the following: ".... "(c) The business practices of mobile home installers and repairers. "(d) The licensure and regulations of mobile home installers and repairers." (Emphasis added.) Under the rules of the Commission, "a person who installs or repairs mobile homes for compensation shall be licensed as a mobile home installer and repairer." 1979 AC, R 125.1401. Section 4 of the Act, MCL 125.2304; MSA 19.855(104), sets forth certain powers of the Commission, including the power to: "(a) Promulgate rules to implement and administer this act. "(b) Act for the purpose of establishing a uniform policy relating to all phases of mobile home businesses, mobile home parks, and seasonal mobile home parks. "(c) Determine the sufficiency of local mobile home ordinances which are designed to provide local governments with superintending control over mobile home businesses, mobile home parks, or seasonal mobile homes parks." Nothing in the Act expressly requires mobile home installers and repairers to obtain licenses for their occupations from local units of government. However, local units of government are authorized by various statutes to require licenses for business establishments, for which reasonable license fees may be charged to defray the expense of regulation. MCL 41.181; MSA 5.45(1) (general townships), MCL 42.15; MSA 5.46(15) (charter townships), MCL 117.4i(4); MSA 5.2082(4) (home rule cities), MCL 67.2; MSA 5.1286 (general law villages), and MCL 78.24(a); MSA 5.1534(a) (home rule villages). Merrelli v. St Clair Shores, 355 Mich 575; 96 NW2d 144 (1959), Checker Cab Co v. Twp of Romulus, 371 Mich 232; 123 NW2d 772 (1963). The Act empowers the Commission to establish "uniform policy relating to all phases of mobile home businesses," and "determine the sufficiency of local mobile home ordinances." MCL 125.2304(1)(b) and (c); MSA 19.855(104)(1)(b) and (c). The Commission is also required to consult with "local governments in developing the procedures for effective coordination of efforts." MCL 125.2306(3); MSA 19.855(106)(3). Section 17(2) of the Act, MCL 125.2317(2); MSA 19.855(117)(2), recognizes without elaboration that a unit of local government may be issuing licenses in this field: "Except for purposes of issuing a license or renewing a license pursuant to this act, a local government may not make an inspection unless it has reason to believe that this act, the code, or rules promulgated pursuant to this act were violated." The role of local government in enforcing ordinances relating to the mobile home business is emphasized by Sec. 45(2) of the Act, MCL 125.2345(2), MSA 19.855(145)(2), which states: "This act shall not be construed to prohibit a municipality from enforcing its local ordinances or from taking any other appropriate action to protect the public health, safety, or welfare as authorized by law or its charter." In an attempt at reconciling the conflicting goals of (1) having the Commission develop "uniform policy," and (2) permitting enforcement of local ordinances, the Legislature provided for review by the Commission of proposed local "standards" which are higher than those of the Act and the Code through Sec. 7(1) of the Act, MCL 125.2307(1); MSA 19.855(107)(1): "A local government which proposes a standard related to mobile home parks or seasonal mobile home parks, or related to mobile homes located within a mobile home park or a seasonal mobile home park that is higher than the standard provided in this act or the code; or a standard related to the business, sales, and service practices of mobile home dealers, or the business of mobile home installers and repairers, that is higher than the standard provided in this act or the code shall file the proposed standard with the commission. The commission may promulgate rules to establish the criteria and procedure for implementation of higher standards by a local government. The commission shall review and approve the proposed standard unless the standard is unreasonable, arbitrary, or not in the public interest. If the commission does not approve or disapprove the proposed standard within 60 days after it is filed with the commission, the standard shall be considered approved unless the local government grants the commission additional time to consider the standard. After the proposed standard is approved, the local government may adopt the standard by ordinance. The ordinance shall relate to a specific section of the code." (Emphasis added.) A review of the Commission's rules indicates at least one instance of the Commission exercising its discretion to specify in its rules "criteria ... for implementation of higher standards by a local government." 1985 AACS, R 125.1130(5), states that local units of government shall not impose standards for construction of mobile homes which are at variance with certain federal statutes: "A municipality or local government shall not impose a local standard on the construction of a mobile home that is higher or different than the federal standard established under the national manufactured housing construction and safety standards act of 1974, as amended, 42 U.S.C. Sec. 601 et seq. and the standards promulgated thereunder by the United States department of housing and urban development, being 24 C.F.R. Sec. 3280." In the absence of specified criteria set forth in its rules, the Commission is required by Sec. 7(1) of the Act to approve a proposed higher standard unless the standard is "unreasonable, arbitrary or not in the public interest." Your questions present the issue of whether local licensing requirements and license fee schedules for mobile home installers and repairers are the type of "higher standard" which may be proposed to the Commission under Sec. 7(1) of the Act, MCL 125.2307(1); MSA 19.855(107)(1). A reading of the Act as a whole leads to the conclusion that since local licensing requirements and license fee schedules for mobile home repairers and installers impose additional regulatory burdens on repairers and installers, those local licensing requirements and license fee schedules are among the type of higher standards which local units are permitted to adopt subject to the review of the Commission. Alternative constructions would be inconsistent with the Act's stated purposes. For example, to conclude that local units are not authorized to license these occupations because they are licensed at the state level by the Commission would contradict the declaration in Sec. 45(2) of the Act, MCL 125.2345(2); MSA 19.855(145)(2), that the Act is to be construed so that cities, villages, and townships may enforce their local ordinances and take other appropriate action (i.e., licensing) to protect the public health, safety, or welfare as authorized by law or charter. Conversely, to conclude that local licensing regulations were not subject to Commission review as "higher standards" would defeat the Commission's statutorily-mandated role of developing uniform policy regarding the mobile home business and determining "the sufficiency of local mobile home ordinances which are designed to provide local governments with superintending control over mobile home businesses." MCL 125.2304(1)(b) and (c); MSA 19.855(104)(1)(b) and (c). Thus, a mobile home installer or repairer must obtain a license from the Commission and such local licenses as are required by standards filed with the Commission and approved as provided in Sec. 7(1) of the Act. Since local licensing fees are not remitted to the Commission, those fees are not to be included in the calculation of the licensing fee of up to $50 which may be charged annually by the Commission pursuant to Sec. 21(5) of the Act, MCL 125.2321(5); MSA 19.855(121)(5). It is noted that the Commission has proposed the following rule which expressly states that local units of government are not to require licenses of those persons licensed under the Act unless the local license required has been approved by the Commission: "Rule 200C. LOCAL GOVERNMENT, AS DEFINED IN THE ACT, SHALL NOT REQUIRE A PERSON LICENSED UNDER THE ACT TO OBTAIN A LOCAL LICENSE OR TO REGISTER THEIR LICENSE UNLESS THE REQUIREMENT IS ESTABLISHED BY ORDINANCE AND THE ORDINANCE IS APPROVED BY THE COMMISSION PURSUANT TO SECTION 7(2), OF THE ACT, BEING Sec. 125.2307 OF THE MICHIGAN COMPILED LAWS." [Proposed Rule 125.1200C, 1989 MR 4, p 98.] The proposed rule appears to be essentially a restatement, with specific reference to licensing, of the requirements set forth in Sec. 7(1) of the Act for Commission approval of any local higher standard in the field of mobile home regulation. Since proposed standards filed with the Commission pursuant to Sec. 7(1) of the Act are, by the terms of that section, to be higher than the standards of the Act and the Code, the Commission is not required to amend the Code by adopting a rule authorizing a proposed higher standard as part of its review and approval procedures under Sec. 7(1) of the Act, MCL 125.2307(1); MSA 19.855(107)(1). It is my opinion, in answer to your first and second questions, that local licensing requirements and license fee schedules for mobile home repairers and installers are among the type of higher standards, over and above the requirements of the Mobile Home Commission Act and mobile home code, which local units may establish, as long as the standards dards are filed with the Commission and approved as provided for in the Mobile Home Commission Act. It is further my opinion that the adoption by the Commission of a rule authorizing a proposed local licensing requirement and license fee schedule is not a prerequisite to the Commission's review and approval. Your third question may be stated as follows: May a local government properly impose additional licensing requirements on mobile home parks in the absence of a rule authorizing such local requirements promulgated by the Mobile Home Commission under Sec. 5 of the Act? As described above, Sec. 7(1) of the Act, MCL 125.2307(1); MSA 19.855(107)(1), provides for a process whereby a unit of local government may, subject to the approval of the Commission, impose standards related to mobile home parks which are in addition to, and thus higher than, those provided in the Act or the Code. Under MCL 125.2305(1); MSA 19.855(105)(1), the Commission is to adopt a mobile home code which consists of rules governing, inter alia: "(a) The licensure, density, layout, permits for construction, construction of mobile home parks including standards for roads, utilities, open space, or proposed recreational facilities, and safety measures sufficient to protect health, safety, and welfare of mobile home park residents, except water supply, sewage collection and treatment, and drainage facilities which are regulated by the department of public health." There is nothing in the Act which requires the Commission to adopt a rule authorizing local units to propose higher standards for mobile home parks. The Legislature has empowered local units to do so subject to review and approval by the Commission. It is my opinion, in answer to your third question, that local units of government may impose licensing requirements on mobile home parks which are in addition to, and thus higher than, the standards which are set forth in the Mobile Home Commission Act or the mobile home code in the absence of a Commission rule authorizing such higher local standards, as long as the standards are filed with the Commission and approved as provided in the Mobile Home Commission Act. Frank J. Kelley Attorney General (1 The rules of the Mobile Home Commission are set forth in 1979 AC, R 125)
"Any administrative rules promulgated under Act No. 419 of the Public Acts of 1976 shall be considered to have remained in effect and without interruption pursuant to this act regardless of the repeal of Act No. 419 of the Public Acts of 1976."
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