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Municipalities May Not Impose Education or Financial Responsibility Requirements on Dwelling Contractors
Published: August 26, 2010
Authors: Charles V. (Buck) Sweeney and Peter J. Conrad
On August 26, 2010, the Wisconsin Attorney General opined that a city, village, town or county cannot require financial responsibility, education and examination requirements beyond those set by the State for contractors seeking a Uniform Dwelling Code permit.
The Attorney General opinion arose from Juneau County’s request to determine whether a municipality could require certain financial assurance or education requirements as part of a general contractor license. The Attorney General reviewed the history of the Uniform Dwelling Code. Specifically, the Attorney General focused on a 1979 amendment to the Uniform Dwelling Code, which provided that, “the 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.”
In order to determine if this provision permitted a municipality to have financial responsibility and education requirements beyond those set forth in the Uniform Dwelling Code, the Attorney General considered whether local requirements were preempted by the Uniform Dwelling Code. A municipal ordinance is preempted if “(1) the legislature has expressly withdrawn the power of municipalities to act; (2) it logically conflicts with state legislation; (3) it defeats the purpose of state legislation; or (4) it violates the spirit of state legislation.”
The Attorney General noted that the Uniform Dwelling Code is not a minimum requirement which can be exceeded by local ordinance. Rather, the purpose of the Uniform Dwelling Code is to promote uniformity with respect to construction of one- and two-family dwellings. Accordingly, even though municipalities may have licensing authority, that licensing authority must meet the requirements of the Uniform Dwelling Code. Since the Uniform Dwelling Code expressly creates a set of State requirements relating to financial responsibility and education for contractors, a municipality cannot impose additional certification or licensure requirements with respect to those matters. As the Attorney General states, “To do so would logically conflict with the Dwelling Code, defeat its purpose and violate its spirit.”
In a nutshell, this Opinion provides that a local municipality cannot impose contractor requirements beyond those which are already included in the Uniform Dwelling Code. Any ordinance that does so is subject to challenge and may be in violation of the statewide requirements of the Uniform Dwelling Code.
View a copy of the Opinion here
For more information on Wisconsin Uniform Dwelling Code permits, contact Buck Sweeney at 608.283.6743 or csweeney@axley.com, or Peter Conrad at 608.260.2483 or pconrad@axley.com.
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