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 

MIKE COX, ATTORNEY GENERAL

CONST 1963, ART 5, 5:

MANUFACTURED HOUSING COMMISSION:

Manufactured Housing Commission as examining or licensing board of a profession under Const 1963, art 5, 5

 

The Manufactured Housing Commission established under the Mobile Home Commission Act, MCL 125.2301 et seq, is not an "appointed examining or licensing board of a profession" within the meaning of Const 1963, art 5, 5.

Opinion No.  7163

September 28, 2004

Honorable Valde Garcia
State Senator
The Capitol
Lansing, MI  48918 

You have asked whether the Manufactured Housing Commission established under the Mobile Home Commission Act is an appointed examining or licensing board of a profession within the meaning of Const 1963, art 5, 5, and if so, what professions the Commission regulates. 

Const 1963, art 5, 5, provides:
                        A majority of the members of an appointed examining or licensing board of a profession shall be members of that profession. 

Your question requires consideration of whether the Manufactured Housing Commission is an appointed board, whether it exercises examining or licensing authority, and whether the activities over which any such authority is exercised constitute a "profession" within the meaning of Const 1963, art 5, 5.  

The Legislature created the Manufactured Housing Commission[1] (Commission) in the Mobile Home Commission Act (Act), 1987 PA 96, MCL 125.2301 et seq, within the then Department of Commerce.[2]  MCL 125.2303(1).  Section 3(2) of the Act, MCL 125.2303(2), provides that each of the Commission's 11 members are appointed by the Governor with the advice and consent of the Senate, making clear that the Commission is an "appointed board" within the meaning of art 5, 5. Membership of the Commission must include each of the following:

(a)  A representative of an organization whose membership consists of mobile home residents.

(b)  A representative of financial institutions.

(c)  Two operators of a licensed mobile home park having 100 or more sites and 1 operator of a licensed mobile home park having less than 100 sites.

(d)  A representative of organized labor.

(e)  An elected official of a local government.

(f)  A licensed mobile home dealer.

(g)  One resident of a licensed mobile home park having 100 or more sites and 1 resident of a licensed mobile home park having less than 100 sites.

(h)  A manufacturer of mobile homes. [MCL 125.2303(3).]

Regarding whether the Commission exercises "examining or licensing" authority within the meaning of Const 1963, art 5, 5, the title to the Act provides an indication of its scope and is generally indicative of legislative intent regarding the matters for which licensing is required:[3]

AN ACT to create a mobile home commission; to prescribe its powers and duties and those of local governments; to provide for a mobile home code and the licensure, regulation, construction, operation, and management of mobile home parks, the licensure and regulation of retail sales dealers, warranties of mobile homes, and service practices of dealers; to provide for the titling of mobile homes; to prescribe the powers and duties of certain agencies and departments; to provide remedies and penalties; to declare the act to be remedial; to repeal this act on a specific date; and to repeal certain acts and parts of acts.  [Emphasis added.]

The Act provides for three types of licensing powers to grant or deny initial licensure, to revoke or suspend an existing license, and to renew an existing license.  The Act divides these powers between the Commission and the Department of Labor and Economic Growth (DLEG).  Generally speaking, under section 16 of the Act, the DLEG grants or denies initial licenses and renewals for mobile home parks.  MCL 125.2316(2) and (3).  Section 21 of the Act authorizes the Commission to grant, deny, or renew licenses of individuals seeking to engage in certain specified occupations:

(1)  A mobile home dealer shall not engage in the retail sale of a mobile home without a license.

(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.

* * *

(6)  A licensed mobile home dealer, mobile home installer, or repairer may file an application for the license of a successor, whether or not the successor is then in existence, for the unexpired portion of the year.  The commission may grant or deny the application.  [MCL 125.2321(1), (2), and (6); emphasis added.]

 It is clear from reading the Act as a whole that the Commission is statutorily empowered to engage in licensing of three distinct occupations: retail sellers of new and used mobile homes; installers of mobile homes; and repairers or servicers of mobile homes.[4] Moreover, the Commission has exclusive authority to impose penalties on licensees including censure, denial of new licensure, and revocation of an existing license, MCL 125.2343(1).  Accordingly, the Commission is an "examining or licensing board"[5] within the meaning of Const 1963, art 5, 5.

It must next be determined whether the Commission is a licensing board "of a profession" as that term is used in Const 1963, art 5, 5.  In 100% Traverse City School Dist v100% Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971), the Michigan Supreme Court stated the primary rule of constitutional construction:

[When a] case requires the construction of a constitution, [ ] the technical rules of statutory construction do not apply. McCulloch v. Maryland (1819), 17 U.S. (4 Wheat) 316, 407 (4 L Ed 579).

 The primary rule is the rule of "common understanding" described by Justice Cooley:

 "A constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it.  'For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.'  (Cooley's Const Lim 81)."  (Emphasis added.)

In House Speaker v Governor, 443 Mich 560, 580-581; 506 NW2d 190 (1993), after endorsing the rule of common understanding, the Court described a second rule of constitutional construction:[6]

[T]he second important rule of constitutional construction . . . requires consideration of "'the circumstances surrounding the adoption of the constitutional provision and the purpose sought to be accomplished . . . .'"  Soap & Detergent, 415 Mich 745, quoting Traverse City School Dist, supra, 384 Mich 405.  Of course, the most instructive tool for discerning the circumstances surrounding the adoption of the provision is the floor debates in the Constitutional Convention record.  However, we have noted previously that consideration of the debates is limited because "[t]hey are individual expressions of concepts as the speakers perceive them (or make an effort to explain them).  Although they are sometimes illuminating, affording a sense of direction, they are not decisive as to the intent of the general convention (or of the people) in adopting the measures."  Regents of the Univ of Michigan v Michigan, 395 Mich 52, 59-60; 235 NW2d 1 (1975).  Nevertheless, we have said that they are particularly helpful "when we find in the debates a recurring thread of explanation binding together the whole of a constitutional concept."  Id. at 60.

Most recently, in People v Nutt, 469 Mich 565, 574 n 7; 677 NW2d 1 (2004), the Court emphasized that the meaning to be ascribed to the Constitution is the meaning that the people understood in 1963 when the Constitution was ratified even if a different meaning might be preferred today:

Additionally, our task is not to impose on the constitutional text at issue . . . the meaning we as judges would prefer, or even the meaning the people of Michigan today would prefer, but to search for contextual clues about what meaning the people who ratified the text in 1963 gave to it.  [Mich. United Conservation Clubs v. Secretary of State (After Remand), 464 Mich. 359, 375; 630 N.W.2d 297 (2001) (Young, J., concurring) (emphasis in original).]

Applying these rules of constitutional construction, OAG, 1975-1976, No 4899, p 181, 183 (October 23, 1975), summarized the purpose sought to be accomplished by art 5, 5, as expressed by the delegates to the Constitutional Convention of 1961:

As indicated by the record of the Constitutional Convention 1961, Official Record, Vol II, pp 1893-1895, Const 1963, art 5, 5 was enacted in part for the purpose of assuring that a majority of one "profession" could not control a licensing or examining board of another "profession" -- thereby controlling the "profession" itself.  Special note was made of the fact that the healing arts were separate and distinct sciences and could not satisfactorily be governed by a competitive school of healing.

While the delegates discussed this provision as redressing a problem that could arise in the healing arts, they did not discuss what was, or was not, embraced within the word "profession." [7]  Nor has any court defined the scope of the word in the context of art 5, 5.[8]

In Michigan Rd Builders Ass'n v Dep't of Management and Budget, 197 Mich App 636, 644-645; 495 NW2d 843 (1992), the Court endorsed the use of a dictionary to arrive at the common meaning of language in the constitution:

A provision creating and defining a right or power should be read according to its natural, common, and most obvious meaning, and consideration of dictionary definitions is appropriate. People v Bissonette, 327 Mich 349, 356-357; 42 NW2d 113 (1950); Syntex Laboratories, Inc v Dep't of Treasury, 188 Mich App 383, 386; 470 NW2d 665 (1991).

 See also Durant v Michigan, 456 Mich 175, 208; 566 NW2d 272 (1997) (relying on a dictionary definition to construe a constitutional term).

 The United States Supreme Court relied upon the common dictionary meaning of the word "profession" in United States v Laws, 163 US 258, 266; 16 S Ct 998; 41 L Ed 151 (1896), quoted in OAG No 4899:

One definition of a profession is an "employment, especially an employment requiring a learned education, as those of divinity, law and physic."  (Worcester's Dictionary, title profession.)  In the Century Dictionary the definition of the word "profession" is given, among others, as "A vocation in which a professed knowledge of some department of science or learning is used by its practical application to the affairs of others, either in advising, guiding, or teaching them, or in serving their interests or welfare in the practice of an art founded on it.  Formerly, theology, law, and medicine were specifically known as the professions; but as the applications of science and learning are extended to other departments of affairs, other vocations also receive the name. The word implies professed attainments in special knowledge as distinguished from mere skill.  A practical dealing with affairs as distinguished from mere study or investigation; and an application of such knowledge to uses for others as a vocation, as distinguished from its pursuit for its own purposes."

 Webster's New Collegiate Dictionary, 2nd Edition (1956), p 674, provided a similar definition of the term:

The occupation, if not commercial, mechanical, agricultural, or the like, to which one devotes oneself; a calling; as, . . . the learned professions, of theology, law and medicine.

100% And Webster's Third New International Dictionary (1968), p 1811, defined "profession":

[A] calling requiring specialized knowledge and often long and intensive preparation including instruction in skills and methods as well as in the scientific, historical, or scholarly principles underlying such skills and methods, maintaining by force of organization or concerted opinion high standards of achievement and conduct, and committing its members to continued study and to a kind of work which has for its prime purpose the rendering of a public service.

 While these definitions do not convey precise, measurable boundaries that outline the scope of the term "profession," they do describe the characteristic attributes of those fields of endeavor that were commonly understood to constitute professions.

 OAG No 4899 considered whether the word "profession" as used in art 5, 5 includes all licensed occupations and concluded:

[W]here the legislature creates a regulatory board with power to license and regulate an occupation, that occupation becomes a profession within the meaning of Const 1963, art 5, 5.  [Id., at pp 183-184.]

 100%That conclusion is not consistent with the common meaning of the word "profession" as shown above, nor by the common meaning of the word "occupation":

That which occupies, or engages, the time and attention; one's principal business; vocation.  [Webster's New Collegiate Dictionary, 2nd Edition (1956), p 581.]

 100%Webster's Third New International Dictionary100% (1968), p 1560, provides a similar definition of "occupation":

[T]he principal business of one's life: a craft, trade, profession or other means of earning a living.

 The word "occupation" is broader in scope than the word "profession."  All professions are occupations, but not all occupations are professions.  Licensing alone does not transform an occupation into a "profession" for purposes of art 5, 5.  To the extent it reaches a contrary conclusion, OAG No 4899 no longer expresses the opinion of the Attorney General.[9]

 Applying the applicable rules of constitutional construction, in order to determine whether any particular occupation is also a profession under art 5,  5, it is necessary to assess the particular attributes of the occupation and compare them to the commonly understood meaning of "profession" discussed above.  The constitution initially imposes that duty on the Legislature.  The Legislature is free to require that a majority of an occupational licensing board be comprised of members of the occupation, even if it is not required to do so by art 5, 5.  The broad discretion of the Legislature is only restrained by art 5, 5 if the members of an appointed board are authorized to examine or license a "profession" as that term was commonly understood when the constitution was adopted.

With regard to the composition of the Commission that licenses the occupations of manufactured housing dealer, installer, or repairer, the Legislature has determined it is not restricted by art 5, 5.  The Mobile Home Commission Act does not require that a majority of the Commission be members of those occupations.  MCL 125.2303(3).  That legislative judgment is subject to "the well-established rule that a statute is presumed to be constitutional unless its unconstitutionality is clearly apparent."  McDougall v Schanz, 461 Mich 15, 24; 597 NW2d 148 (1999).

 Indeed, the Legislature's determination in that regard is consistent with a 1974 opinion of the Attorney General, which applied art 5, 5 to mobile home-related occupations.  The Letter Opinion of the Attorney General to Representative Bobby D. Crim, dated March 5, 1974 (the Crim Letter), addressed the constitutionality of HB 5666, which provided for the creation of an eight-member Mobile Home Commission, only four of whom were to be affiliated with the mobile home industry.[10]  Noting that art 5, 5 was relevant only if the manufacture and sale of mobile homes and the operation of mobile home parks were "professions," the opinion reviewed a number of definitions of the term and concluded that a person engaged in these activities was not a member of a profession within the meaning of art 5, 5:    

In view of these authorities, it is my opinion that a person engaged in the sale and manufacture of mobile homes and the operation of mobile home parks is not a member of a profession within the scope of art 5, 5.  These activities are conducted primarily for financial gain and are properly characterized as the production and sale of goods and related services.  [Crim Letter, dated March 5, 1974.]

 The Legislature's determination finds additional support in the laws that govern the activities licensed by the Commission in the manufactured housing area.  The relevant provisions of the Mobile Home Commission Act indicate that a manufactured housing dealer, installer, or repairer seeking to obtain a license must file an application with consent to service of process.  MCL 125.2321(2).  The license may be issued for not more than one year, MCL 125.2321(3), and certain fees must be paid.  MCL 125.2321(4) and (5).  In addition, a surety bond must be posted by manufactured housing dealers under MCL 125.2322.  These licensing requirements do not involve the extended training or specialized education commonly associated with professions.  Based on those requirements and the commonly understood meaning of the word "profession," the Legislature's judgment that these occupations are not "professions" under art 5, 5 is legally sound.

 The Legislature, therefore, is not constitutionally required to assure that membership on the Commission is comprised of a majority of people in the manufactured housing industry.  It is worth emphasizing, however, that the Legislature commonly creates boards and commissions with licensing and examining authority whose membership is comprised of those with knowledge and expertise in the field they regulate.  This can represent wise public policy.  Nothing in this opinion should be read to discourage the Legislature from so exercising its discretion, nor from employing any other organizational structure that it determines will most effectively advance the public interest, consistent with the limitations of art 5, 5.

It is my opinion, therefore, that the Manufactured Housing Commission established under the Mobile Home Commission Act, MCL 125.2301 et seq, is not an "appointed examining or licensing board of a profession" within the meaning of Const 1963, art 5, 5.

MIKE COX
Attorney General


[1] The Legislature created the "Mobile Home Commission" in section 3(1) of the Mobile Home Commission Act, MCL 125.2303(1), which was renamed the Manufactured Housing Commission in Executive Order 1997-12, C.1.

[2] The Department of Commerce was renamed the Department of Consumer and Industry Services (DCIS) in Executive Order (EO) 1996-2, I.1.  In paragraph II.3 of EO 1996-2, all the statutory authority, duties, functions, and responsibilities of the Commission were transferred from the Department of Commerce to the Director of the DCIS by a Type II transfer.  One year later, however, the same authority, powers, duties, functions, and responsibilities, with the exception of rulemaking authority, were transferred back to the Commission by EO 1997-12, C.1.  The DCIS was renamed the Department of Labor and Economic Growth in EO 2003-18, IIA.1.

[3] See House Speaker v Governor, 443 Mich 560, 591 n 37; 506 NW2d 190 (1993).

[4] The Mobile Home Code is a set of rules governing a wide array of activities associated with manufactured housing promulgated under MCL 125.2305.  Under certain provisions of the Code, 2003 MR 14, R 125.1214g and 125.1214i, applications for licensure as a mobile home retailer and as a mobile home installer and servicer are to be submitted on forms "prescribed by the department."  Those forms indicate that completed applications "will be presented for approval to the Manufactured Housing Commission at its next regularly scheduled meeting."

[5] There is no constitutional distinction between a board and a commission.  Civil Service Comm v Dep't of Labor, 424 Mich 571, 599; 384 NW2d 728 (1986).

[6] There are other rules that apply in special circumstances not present here.  In Silver Creek Drain Dist v Extrusions Division, 468 Mich 367, 375; 663 NW2d 436 (2003), the Court stated that, if "the constitutional language has no plain meaning, but is a technical, legal term, we are to construe those words in their technical, legal sense.  Moreover, in that undertaking, we are to rely on the understanding of the terms by those sophisticated in the law at the time of the constitutional drafting and ratification."

[7] The language that became art 5, 5 was not originally included in Proposal 71 from the committee on the executive branch.  1 Official Record, Constitutional Convention 1961, p 1766.  The framers perceived a need for such a provision during discussion of the section that would impose a limit of 20 principal departments in state government.  Id., at 1767-1768.  The reasons offered in support of the 20-department limitation included comment that it "would not prohibit the creation, for purposes of professional regulation, of professional or quasi-professional licensing boards, made up in whole or in part of members of the profession, in a department of professional standards or of licensing such as now exist in several states."  Id., at 1768.  See also, 2 Official Record, Constitutional Convention 1961, pp 1839-1840, 1893.  The language in question was added to Proposal 71 to limit the authority of the Legislature by requiring that a majority of the members of an appointed professional examining or licensing board be members of the profession.

[8] Nemer v Michigan State Bd of Registration for Architects, Professional Engineers and Land Surveyors, 20 Mich App 429, 434; 174 NW2d 293 (1969), applied the provision based upon an assumption that architects, professional engineers, and land surveyors are members of a profession under art 5, 5, and rejected an attempt by the Legislature to declare them to be members of the same profession under that provision.  The Court did not address what constitutes a "profession."  That issue has, however, been addressed in opinions of the Attorney General.  See, e.g., OAG, 1975-1976, No 4899, p 181 (October 23, 1975), supra, and Letter Opinion of the Attorney General to Representative Bobby D. Crim, dated March 5, 1974, infra.

[9] This opinion will not discuss those opinions decided after OAG 4899, which essentially followed its approach. See, e.g., OAG, 1985-1986, No 6412, p 449 (December 26, 1986), and OAG, 1989-1990, No 6592, p 166 (July 10, 1989).

[10] House Bill 5666 was introduced during the 1973-1974 session of the Legislature, but it was not enacted into law.  House Bill 4181, however, was introduced in the 1975-1976 session and was enacted into law as 1976 PA 419.  Subsections 3(1) to (3) of 1976 PA 419 [then MCL 125.1103(1) to (3)] created a Mobile Home Commission in the then Department of Commerce consisting of 11 members appointed by the Governor identical in composition to that required under present MCL 125.2303(3).