STATE OF WISCONSIN
DEPARTMENT OF JUSTICE
J.B. VAN HOLLEN
ATTORNEY GENERAL
Raymond P. Taffora
Deputy Attorney General
114 East, State Capitol
P.O. Box 7857
Madison, WI 53707-7857
608/266-1221
TTY 1-800-947-3529
Date August 26, 2010 OAG—06—10 Mr. Mark B. Hazelbaker
ReStartCorporation Counsel
Juneau County
3555 University Avenue
Madison, WI 53705 BodyStart¶ 1. You indicate that during the course of Juneau County’s comprehensive planning process questions have arisen as to whether local units of government can require local licensure of contractors who obtain building permits to perform work on one and two family dwellings in which they have no legal or equitable interest. You note that in Wis. Stat. § 101.654 the Legislature has prescribed detailed financial responsibility requirements for dwelling contractors. You also note that 2005 Wisconsin Act 200 added a six-hour minimum annual continuing education requirement for dwelling contractor qualifiers to Wis. Stat. § 101.654 and that the minimum continuing education requirement was changed to twelve hours biennially in 2007 Wisconsin Act 14. BACKGROUND
¶ 2. You indicate that you have become aware of cities in Wisconsin outside of Juneau County that require local licensure of dwelling contractors. One such city ordinance requires a “general contractor” to have either four years of apprenticeship plus four years as a journeyman, eight years working for a general contractor in the construction industry, or four years of architectural or engineering education and one year of on-the-job training. Passage of an examination is required in order to obtain a local “general contractor” license. The same ordinance requires a “carpentry contractor” to have four years of apprenticeship, plus two years working as a journeyman in the residential trade, or six years experience in the construction industry. Passage of an examination is required in order to obtain a local “carpentry contractor” license. In order to obtain a building permit to perform work on one and two family dwellings, the ordinance appears to require that a dwelling contractor have at least one locally-licensed “general contractor” or “carpentry contractor” on staff. An ordinance enacted by another city seems to require a minimum of four years of experience and passage of an examination in order to obtain a local contractor’s license. Under that ordinance, at least one such license is apparently required in order to obtain a building permit to perform work on one and two family dwellings in that city. Neither city ordinance appears to impose financial responsibility or continuing education requirements. You apparently are concerned that local units of government in Juneau County may attempt to enact ordinances similar to the two ordinances described.
QUESTION PRESENTED AND BRIEF ANSWER
¶ 3. You ask whether the local ordinances requiring local licensure of dwelling contractors are preempted by the “ONE-AND-2-FAMILY DWELLING CODE,” Wis. Stat. ch. 101, subch. II (the “Dwelling Code”). ¶ 4. A particular municipal licensure requirement may be preempted if that requirement logically conflicts with, defeats the purpose of, or violates the spirit of state contractor financial responsibility and continuing education requirements. In my opinion, ordinances requiring local licensure are preempted if they impose on persons seeking a building permit for one- or 2-family dwellings greater financial responsibility, education, or examination requirements than required by state law.
ANALYSIS
¶ 5. To ascertain whether a municipality may license dwelling contractors, it is first necessary to examine structure of the Dwelling Code.
¶ 6. The Legislature’s stated purpose in enacting the Dwelling Code was to “establish statewide construction standards and inspection procedures” for such dwellings and “promote interstate uniformity in construction standards[.]” Wis. Stat. § 101.60.
¶ 7. To that end, the Dwelling Code vests in the Department of Commerce the power to adopt rules establishing uniform standards for construction and inspection of one- and 2-family dwellings. Wis. Stat. § 101.63(1). The standards are to be nationally recognized, when feasible. Id. In addition to other powers, the Department of Commerce is given rulemaking authority over the certification of inspectors and the certification of dwelling contractors. Wis. Stat. §§ 101.63(2), (2m), 101.654. The certification of dwelling contractors includes education and financial responsibility components. Wis. Stat. § 101.654(1m), (2). The Department of Commerce must also develop a standard building permit form for all new one- and 2-family dwellings. Wis. Stat. § 101.63(7). ¶ 8. Municipal powers are also established in the Dwelling Code. Wis. Stat. § 101.65. The municipal powers provisions are set forth as things municipalities may do, things municipalities may not do, and things municipalities must do. In the first category, municipalities may “[e]xercise jurisdiction over the construction and inspection of new dwellings by passage of ordinances, provided such ordinances meet the requirements of the one- and 2-family dwelling code adopted in accordance with this subchapter.” Wis. Stat. § 101.65(1)(a). These municipalities may also collect fees to defray the costs of jurisdiction, and may also by ordinance provide for remedies and penalties for violations of ordinances passed to enforce the Dwelling Code. Wis. Stat. § 101.65(1)(c), (d). ¶ 9. In the second category, municipalities may not issue building permits to individuals who are not in compliance with the education and financial responsibility certification requirements in Wis. Stat. § 101.654, so long as those requirements apply. Wis. Stat. § 101.65(1m).
¶ 10. In the third category, municipalities must use the Department of Commerce’s standard building permit for new dwellings. Wis. Stat. § 101.65(3). They must also require an owner who applies for a building permit to sign a statement acknowledging certain liabilities if the owner hires a contractor who is not bonded or insured as required by Wis. Stat. § 101.654(2)(a) to perform work. Wis. Stat. § 101.65(1r).
¶ 11. Absent from the provisions delineating a municipality’s powers under the Dwelling Code is any reference to a municipal power to license or certify contractors. Curiously, however, Wis. Stat. § 101.63(2)—which otherwise governs the state certification of inspectors and not contractors—provides that “[t]he department [of commerce] may not adopt any rule which prohibits any city, village, town or county from licensing persons for performing work on a dwelling in which the licensed person has no legal or equitable interest.” This language, which appears to prevent the Department of Commerce from preventing local licensure of dwelling contractors, was added to Wis. Stat. § 101.63(2) in ch. 221, sec. 545, Laws of 1979. ¶ 12. In construing the meaning of this language, “‘It must be presumed that the legislature did not intend to legislate in vain, and that it had a specific purpose in mind.’” Haas v. Welch, 207 Wis. 84, 86, 240 N.W. 789 (1932), quoting Harris v. Halverson, 192 Wis. 71, 76, 211 N.W. 295 (1927). “When the legislature enacts a statute, it is presumed to act with full knowledge of the existing laws, including statutes.” Mack v. Joint School District No. 3, 92 Wis. 2d 476, 489, 285 N.W.2d 604 (1979). The Legislature is presumed to know the meaning of the words it selects, and to “‘cho[o]se its terms carefully and precisely to express its meaning.’” Johnson v. City of Edgerton, 207 Wis. 2d 343, 351, 558 N.W.2d 653 (Ct. App. 1996), quoting Ball v. District No. 4, Area Board, 117 Wis. 2d 529, 539, 345 N.W.2d 389 (1984). “It should never be presumed that any part, much less all, of a statute is meaningless.” 73 Op. Att’y Gen. 120, 121 (1984), citing Associated Hospital Service v. Milwaukee, 13 Wis. 2d 447, 109 N.W.2d 271 (1961). Accord State v. Wisconsin Telephone Co., 91 Wis. 2d 702, 714-15, 284 N.W.2d 41 (1979). Although the last sentence of Wis. Stat. § 101.63(2) does not itself grant authority to local units of government to require local licensure of dwelling contractors, it appears that when the language was enacted the Legislature must have been of the view that cities, villages, towns, and counties did possess the authority to require local licensure of dwelling contractors. If that were not the case, there was no apparent purpose for the enactment of that language. ¶ 13. When ch. 221, sec. 545, Laws of 1979 was enacted, the only possible source of authority to justify the Legislature’s view that all four principal local units of government—cities, villages, towns, and counties—may require local licensure of dwelling contractors was Wis. Stat. § 101.65(1) (1979). That subsection authorized all four local units of government to “[e]xercise jurisdiction over the construction and inspection of new dwellings by passage of ordinances, provided such ordinances meet the requirements of the one- and 2-family dwelling code . . . .” In Town of Clearfield v. Cushman, 150 Wis. 2d 10, 2021, 440 N.W.2d 777 (1989), the court held that “[f]rom its statutorily assigned responsibilities, the Town has implicit power to require building permits.” The court reasoned that “‘[W]hen specific duties are intrusted to [towns] and made obligatory on their part, it must be assumed that it was the legislative intent to give them ample authority to carry out those duties.’” Cushman, 150 Wis. 2d at 21. In light of the enactment of the last sentence of Wis. Stat. § 101.63(2), the Legislature must have been of the view that the language in Wis. Stat. § 101.65(1) (1979) authorizing cities, villages, towns, and counties to “[e]xercise jurisdiction over the construction and inspection of new dwellings by passage of ordinances . . .” constituted an implied legislative grant of authority to require local licensure of dwelling contractors.
