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¶ 22. A municipal licensure provision may nevertheless logically conflict with, defeat the purpose of, or violate the spirit of state legislation. The validity of local licensure requirements must therefore be decided by determining whether the individual local licensure requirement can reasonably coexist with the state requirements with which dwelling contractors and dwelling contractor qualifiers must comply.

¶ 23. With respect to any municipal license requirements that impose additional financial responsibility requirements or educational qualifications beyond those required by state law on those seeking a building permit involving construction of dwellings covered by the Dwelling Code, it is my opinion that such municipal ordinances logically conflict with state law and also frustrate its purpose and spirit, and are therefore preempted.[7]

¶ 24. The Dwelling Code is not designed to set minimal requirements that can be exceeded by local ordinance. Instead, the stated purpose of the Dwelling Code is to promote uniformity with respect to the construction and inspection of one- and 2-family dwellings. Wis. Stat. § 101.60. As demonstrated above, the Legislature’s implicit recognition in 1979 that municipalities have licensure authority stems from the Dwelling Code’s grant of authority to the municipalities to exercise jurisdiction “over the construction and inspection of new dwellings[.]” Wis. Stat. § 101.65(1)(a). But that exercise must “meet the requirements of the one- and 2-family dwelling code[.]” Id.

¶ 25. The Dwelling Code expressly creates state requirements relating to the financial responsibility and education of those applying for building permits. Wis. Stat. § 101.654. The Legislature’s education requirements addressed both those who were qualified to obtain building permits when education requirements were enacted—continuing education but not examination—as well as those wishing to be newly qualified to obtain a permit—education and examination. Wis. Stat. § 101.654(c); Wis. Stat. § 101.654(1m)(b)3. Thus, the state education requirements speak to not only continuing education, but also the education requirements for those who wish to enter the field. Id.; compare also Wis. Stat. § 101.625(2) to Wis. Stat. § 101.625(3) (distinguishing dwelling contractor certification council’s duties to recommend to the Department of Commerce those courses appropriate for continuing education and those examination requirements that would be required for new dwelling contractors). In sum, for a municipality’s jurisdiction to “meet the requirements” of the Dwelling Code, it may not impose additional certification or licensure requirements with respect to the financial capability, education, and examination requirements of those seeking to obtain building permits. To do so would logically conflict with the Dwelling Code, defeat its purpose, and violate its spirit.

¶ 26. The fact that Wisconsin law restricts the ability of the Department of Commerce to prohibit local licensure by rule does not undermine my conclusion. Wisconsin Stat. § 101.63(2) limits only the authority of the Department of Commerce to adopt certain rules, it does not (and cannot) prevent subsequently enacted state law from doing so. The acts creating the state’s certification criteria for dwelling contractors with respect to financial responsibility, education, and examination requirements were passed after the Legislature enacted Wis. Stat. § 101.63(2). It is these acts, not an agency rule, that give rise to preemption in the context addressed in this opinion.

CONCLUSION

¶ 27. 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.

              Sincerely,

              J.B. VAN HOLLEN

              Attorney General

JBVH:KMS:cla

1

  Hereafter, the term “dwelling contractors” refers to persons who obtain building permits to perform work on one and two family dwellings in which they have no legal or equitable interest.

2

For example, the certification requirements do not apply to the owner of a dwelling who resides or will reside in the dwelling. Wis. Stat. § 101.654(1)(b).

3

While the remainder of Wis. Stat. § 101.63(2) addresses inspectors, as opposed to contractors, the placement of this provision in this subsection does not overcome the plain reading that dwelling contractors, and not inspectors, are the subject of the limitation on the Department of Commerce’s power to prohibit licensure. The phrase “performing work on” contemplates building, not inspecting. The phrase “inspecting” is used elsewhere in Wis. Stat. § 101.63(2), indicating the Legislature was not referring to inspectors and inspecting when it chose the phrase “performing work on” in the last sentence of Wis. Stat. § 101.63(2).

4

  Cities and villages possess both constitutional and statutory home rule authority. Wis. Const. art. XI, § 3(1); Wis. Stat. §§ 62.11(5) and 61.34(1). Counties have only statutory administrative home rule powers. Wis. Stat. § 59.03(1). Towns do not have home rule powers. In 1979, existing legal authority was to the effect that even those towns that possessed village powers could not exercise those statutory powers granted villages under Wis. Stat. § 61.34(1) because “[t]he attempted exercise by towns of the general home rule power is inherently inconsistent with the constitutional rule requiring one system of uniform town government.” 66 Op. Att’y Gen. 58, 59 (1977). Compare Town of Beloit v. County of Rock, 2003 WI 8, ¶ 23, 259 Wis. 2d 37, 657 N.W.2d 344. In 1979, the county administrative home rule statutes had not yet been enacted. 77 Op. Att’y Gen. 113, 116 (1988) subsequently concluded that county administrative home rule statutes “expand upon and ‘fill the gaps’ in the organizational and administrative structure which is already in place[.]” Also see Jackson County v. State, 2006 WI 96, ¶ 17, 293 Wis. 2d 497, 717 N.W.2d 713 (holding that a county’s power to rescind a tax deed “must be found in a statute or necessarily be implied from a statute [other than the county administrative home rule statutes], in order for that power to exist.”).

5

Exempted from this provision are owners who reside or intend to reside in the dwelling for which he or she is seeking a permit and persons who hold a current license as defined in Wis. Stat. § 101.02(21)(a), so long as the work to be performed is work for which the license is held. Wis. Stat. § 101.654(1)(b), (c).

6

Certain individuals who had held or applied for a certificate of financial responsibility between April 11 and 14, 2006 were not required to take these classes and examinations to obtain dwelling contractor certification qualifier, but must meet specified continuing education requirements to obtain a renewal. Wis. Admin. Code § Comm 5.315(2)(c)2., (3); see also Wis. Stat. § 101.654(1m)(c), (d) (stating that the rules promulgated under Wis. Stat. § 101.654(1m) shall not require a person holding a certificate of financial responsibility on April 11, 2006 to pass an examination on continuing education courses and permitting different course requirements for persons who held a certificate of financial responsibility on April 11, 2006 and for those who did not).

7

Any lesser financial responsibility or education requirement required by a local ordinance is expressly prohibited, as municipalities are prohibited from issuing building permits that those who have not complied with the financial responsibility and education requirements in Wis. Stat. § 101.65(1m).