*1 Lansing, NO. Richard C. LOCAL PLUMBERS Plaintiffs-Respondents,†

v. COUGHLIN, Secretary Indus Department John Relations, Defendant-Appellant. & Human try, Labor Appeals Court May 16, January argument 1991. Decided No. 89-1155. Oral 23, 1992. (Also 297.) reported in 481 N.W.2d Petition to review denied. † *3 defendant-appellant

For the the cause was submit- Hanaway, attorney Donald J. ted on the briefs of former Doyle, attorney general, present general, E. James attorney general, Ferino, Richard Michael E. assistant Moriarty, attorney orally general Briles assistant argued by Moriarty. Richard Briles plaintiffs-respondents

For was sub- cause E. mitted on the briefs of Judith Kuhn of Plumbers Local 75 and Matthew R. Robbins and John J. Brennan Goldberg, Brueg- Previant, Uelmen, Gratz, Miller & geman, orally argued Judith S.C. of Milwaukee and E. Kuhn.

Brief of amicus curiae submitted on behalf of Plumbing & Mechanical Contractors Association of Mil- (PMC) orally waukee & Southeastern Wisconsin argued by Godfrey Godfrey, Trump Thomas W. & Hayes of Milwaukee. Dykman Sundby, Gartzke, P.J.,

Before JJ. *4 Department Industry, SUNDBY, J. The Labor (hereafter "department" Human and Relations or DILHR) administers Manufactured Wisconsin Program Building it which bases on its administrative Code, Manufactured by the mandated rules is key program to the 101.77, Stats. secs. 101.70 manu- issues for insignia the Wisconsin to the which conforms housing1 factured bears the housing which Code. Manufactured manufactured, for offered may be insignia Wisconsin conforming installa- in on a the state installed sale and ordinance, rule, regula- site, any other regardless tion ILHR Code secs. Adm. requirement. Wisconsin tion or appeals 20.15(2) (3), 50.125. The and depart- effectively forbids which judgment from a insignia for manufactured issuing ment from with complying without plumbing is installed (2), 145.06(1)(a) Stats. We reverse. sec.

THE ISSUES may is whether the ultimate issue installation housing for sale and manufactured approve (2), 145.06(1)(a) and state, of sec. irrespective in the person 145.06(1)(a) provides that Section "[n]o Stats. housing" one- and includes opinion, "manufactured 1In this dwellings buildings multifamily for manufactured two-family and 101.71(6), components. dwelling Section and manufactured building" Stats., as follows: defines "manufactured compo- any building" (a) or means structure "Manufactured dwelling use as a and: is intended for thereof which nent on-site or assembled and fabricated 1. Is of closed construction connection, installation, or manufacturing for facilities or off-site site; installation, building assembly or at the open or assem- building which is made construction 2. Is a building away manufacturing site from the facilities bled installation, connection, assembly build- installation, on the sought the manufacturer. ing certification site and for which any building" (b) mean does not "Manufactured open any building con- 101.91 or home under s. home or mobile (a)2. par. subject to which is not struction *5 in the state unless plumbing in at may engage or work . . department Section to do so licensed " 145.06(2) plumb- shall install person provides that [n]o in plumber is a licensed master ing unless at all times responsible proper installation who shall be charge, Local No. Plumbers plaintiffs-respondents, ("Plumb- journeyman plumber a Wisconsin-licensed ers"), in adminis- nothing contend that Building Code makes rules or the Manufactured trative Stats., 145.06(l)(a) (2), manu- inapplicable to sec. However, undisputed it is factured permit rules to department construes its administrative for manufactured insignia issue the Wisconsin it to com- plumbing in is installed without housing which Therefore, 145.06(1) (a) (2). the first plying with sec. correctly has con- sub-issue is whether the rules. We conclude that strued its administrative is of its administrative rules department's construction clearly nor erro- language neither inconsistent with their its administrative rules is interpretation neous. Its controlling weight. entitled to therefore may The Plumbers contend that administrative rule which conflicts with not enact an Therefore, sub-issue is whether the state law. the second Building Code authorized the Manufactured adopt interpreted rules which it has its administrative approve, it for sale and installation permitting as state, which the complying has been installed without with sec. 145.06(1)(a) (2), depart- Stats. We conclude that ment's construction of the Manufactured pur- legislative and is consistent with the reasonable Two-Family Dwelling pose enacting the One- and there- Code.2 We Code and the construction. fore defer to that

I. CONSTRUCTION OF ADMINIS- DEPARTMENT'S TRATIVE RULES has examine how the construed We first two-family and rules as to one- its administrative has multifamily The rules to authorize it to interpreted its administrative the Wisconsin Manufactured adopt and administer Housing Bulletin to Program. Information Inspection Agencies, June Manufacturers (hereafter DILHR, "Infor- Safety Buildings & Division Bulletin"). pro- describes the The mation as follows: gram apply program to manufac- intended structures, "closed-panel" which would be diffi-

tured However, plant. inspect leaving the cult to after open-panel program may be used for structures as compliance requirements, a Assuming with code well. (label) affixed to the Insignia would be Wisconsin site building. inspector at the installation local basically accept building being as will the labeled normally on-site code-complying, inspect will only. other accessible work local trades- Please note that various state and any apply work licensing requirements do on-site argu have abandoned their that the Plumbers 2 Weconclude declaratory unappealed by department is ment bound that al., Bellman, al. v. et No. Plumbers Local No. et judgment in 1987). (Jan. 5, any 86-CV-0039, In County Dane Circuit Court event, whether the to decide we do not have a record sufficient litigated and decided that action. before us were issues building requirements any code do that local and apply dwellings. of multi-unit work on-site [Emphasis added.] Scope. Bulletin,

Information provides Procedures, 8.b, "[o]n-site that Section by plumbing must . . . installed Wisconsin licensed be in-plant plumbing, plumbers." Bulletin. For Information plans however, must be submitted to Approval Application. Plumbing Id. Bureau a Product as principle expression Applying that at sec. 8.a. other, Local v. Teamsters Union one excludes County, 62, 67, 2d 203 N.W.2d 57 Wis. Waukesha (1973), department has that the inter- we conclude require in-plant plumbing preted be its rules not to plumbers. installed Wisconsin-licensed *7 department's con- We next consider whether the authorizing to of its rules as it struction administrative adopt Manufactured and administer Wisconsin language Building Program inconsistent of is with clearly v. Board or erroneous. See the rules of Pfeiffer Regents, 146, 154-55, N.W.2d 283 110 Wis. 2d (1983) (An agency's interpretation of its administrative weight controlling regulation to unless own entitled language regulation with or inconsistent of the erroneous). clearly of

The rules and enforcement as administration housing two-family are the Uni- one- and contained Dwelling Code, ILHR form Wis. Adm. Code chs. 20 to Subchapter governs 20.17, V, ILHR 25.3 secs. 20.12 to provides: ILHR

3 Wisconsin Adm. Code sec. 20.01 purpose The of is to uniform statewide con- this code establish inspection procedures 2-family one- and struction standards and for dwellings buildings dwellings and for in accordance manufactured 101.70, requirements 101.60 and with the of ss. Stats. manufacture, inspection of installation and the design, two-family housing.4 one- and manufactured enforcement rules on which and The administration multifamily include manufac- relies to Building Program in the tured 50.06(2) in Wis. Adm. Code secs. ILHR are contained 50.125, the Commercial Code.5 and prescribed in Adm. procedures are Wis.

Inspection II, ILHR subchapter ch. ILHR and Code ch. ILHR 26 the stan- Wisconsin Adm. Code ch. establishes (intro) provides: 20.02 Section ILHR apply provisions con- ILHR 20 to 25 shall to the chs. inspection procedures 2- used for all new one- and struction newly buildings dwellings family dwellings, care, community-based providing facilities residential constructed services for 3 to 8 unrelated adults. treatment and 20.05(2) provides: ILHR Section apply provisions not residences occu- code shall this living independently occupied

pied by 2 such 3 or more families purposes. used also for business families and provides: ILHR 20.12 Adm. Code sec. 4 Wisconsin manufacture, govern design, part [subchapter shall This V] inspection dwellings, manufactured of manufactured installation building systems systems components building of the dis- and the playing insignia. Wisconsin 50.06(2) provides: ILHR Adm. Code sec. 5 Wisconsin 101.75(2), Stats., multi-family s. all manufactured Pursuant to comply dwellings approved by department shall be deemed building regulations requirements of all ordinances and with the siting zoning any except government related to those local *8 to, setback, including, building requirements side and not limited but requirements. yard requirements property line and rear (intro.) provides: Section ILHR 50.125 insignia multi- be installed on a manufactured A Wisconsin shall department inspected dwelling approved by family and at plant. manufacturing inspectors and for certification procedures dards and enforcement of the independent inspection agencies for Commercial Dwelling Code and the Uniform Reg., Adm. Code ILHR 26.01.6 Wisconsin Code. Section 1, 1978, 276, procedures These eff. Jan. 1979. Dec. No. multifamily two-family and manufac apply to one- and tured 81.40, establish the stan- ILHR 81.301 to

Sections plumbing procedures for certification dards and independent inspection agen- inspectors plumbing code for one- cies for enforcement of the state two-family two-family dwellings, including one- and dwellings. Section ILHR 81.301. Manu- manufactured multifamily must facturers of independent inspec- with the or an contract in-plant inspections. conduct Sections agency tion 51.01(79a).7 50.18(2), 51.01(71p) ILHR 6 Chapter by ch. ILHR 26 Wis. Adm. IND 26 was renumbered Reg., Feb. No. eff. March 1985. 50.18(2) provides:

7 Wisconsin Adm. Code sec. ILHR multi-family dwellings Manufacturers of shall contract with the independent inspection in-plant agency or an to conduct inspections multi-family dwellings to assure that the manufactured compliance plans approved by department. All cue with the inspections performed by inspector indepen- or shall be a certified inspection agency. dent 51.01(71p) provides: Section ILHR firm, Independent inspection agency any person, means associa- tion, partnership corporation, municipal corporation, other than a perform inspections certified certified under this code. 51.01(79a) provides: Section ILHR multi-family dwelling any means structure or component multi-family dwelling for use as which is intended manufacturer, sought by for which certification is and which is of construction, open or fabricated or assembled on-site or off- closed *9 participate in Wisconsin's Manufactured In order complete Program, Building a manufacturer must a by developed steps model on a national based number Standards, Documents "Model Bureau of the National Inspection Approval, Evaluation, of Manu- and for the Buildings," Science Series NBS factured 1976).8 (July Dep't Bul- Information of Commerce U.S. incorporated Authority. in letin, These documents are 20.24(3). by Dwelling As ILHR sec. Uniform Bulletin, the in Information listed (1) plans, specifica- Submitting building steps include: department for examina- to the tions and calculations (2) in-plant plumbing approval; work, sub- For tion and mitting plans department's Plumbing as a Bureau to the (3) compli- Application; Submitting Approval a Product approval; manual9 to the ance assurance (4) by In-plant inspections or a certified (5) by inspections inspection agency; On-site department. inspections local requirements, compliance

Assuming with code insignia may to manu- the Wisconsin affix manufacturer building buildings Information material. factured installation, assembly manufacturing in facilities for site code, purpose building manufac- For of this at the site. installation living multi-family dwelling units attached means 3 or more tured occupancy living together, business attached or 2 or more units and a together. file the offices of Science Series 87 is on 8 NBS state, secretary and the revisor of statutes. department, 20.24(intro.). See Wis. Adm. Code sec. ILHR " 9 system 'Compliance program' the detailed assurance means assuring manufactured dwell methods of documentation and manufactured, stored, ings dwelling components trans are assembled, with this ported, and installed accordance handled dwelling] ILHR Adm. Code sec. code." Wisconsin [uniform systems. 20.07(19). components may Dwelling include 20.07(9). Section ILHR Bulletin, is mandated Scope. insignia The Wisconsin 101.73, Stats., provides part: depart- "The sec. (7) insignia ... an recognize ment shall Issue or *10 conform to the manufac- compliance dwellings department may building "recognize" tured code." The reciprocity insignia through agree- of another state 101.74(7), "All ment under sec. Stats. manufactured manufactured, sold for initial use or installed buildings display insignia this shall . . . the issued or within state 101.73(7) 101.74(7) ss. . . .." Sec- recognized under 101.75(2), tion Stats. insignia effect of the is stated Wis. Adm. sec. ILHR 20.15 as follows:

Code

(2) dwellings Manufactured and manufactured building components bearing insignia the Wisconsin comply dwelling] are with this deemed [uniform code, except requirements, to installation site as regardless any ordinance, provisions other rule, regulation requirement. [Emphasis added.]

(3) dwellings components bearing may insignia the Wisconsin be manufac- tured, offered for sale and shall be entitled to be anywhere installed in Wisconsin where the installa- complies provisions tion site with the other of this dwelling] code. [uniform applies only

Section ILHR 20.15 to one- and two- However, family manufactured housing. the Wisconsin insignia placed department-approved must be on multi- family In housing. manufactured Section ILHR 50.125. administering Building Program, the Manufactured department gives insig- the same effect to the Wisconsin multifamily nia when attached to manufactured housing two-family as when it attached to one- and manufac- housing. tured has construed secs. ILHR 20.15 and 50.125 to make local and state trades- licensing requirements inapplicable to manufactured Dwelling requires

The Uniform Code that one- and two-family dwellings provided manufactured be with systems plumbing accordance with chs. ILHR 82 to 84. Section ILHR 25.01. The Wisconsin Manufac- Building Program requires tured that all com- ply (ILHR 81-85). Plumbing with the Wisconsin require- Bulletin, Information Procedures sec. l.c. This multifamily housing gov- ment extends to manufactured erned the Commercial Code.

We conclude that the construction of relating two-family its administrative rules to one- and multifamily authorizing as it adopt and administer the Wisconsin Manufactured *11 Building Program is neither inconsistent with the lan- guage clearly of the rules or erroneous.

LEGISLATIVE AUTHORITY remaining question legislature The is whether the department adopt authorized the to the rules which it permit adopt has construed to it to and administer the Building Program. Wisconsin 227.10(2), provides: Stats., Plumbers sec. cite which "No agency may promulgate a rule which conflicts with state provision, In law." view of this the Plumbers contend department's relating that the rules to manufactured housing require must be construed to that the housing in manufactured be installed Wisconsin- plumbers supervision licensed under the of Wisconsin- plumbers. They argue depart- licensed master that the may ment administer the Wisconsin Manufactured

983 requirements Building "repealing" without the Program 145.06(1)(a) (2), Stats. The of sec. 145.06(l)(a) (2) applies only to site- argues sec. that of and on-site installation manufactured housing built whether Plumbers assert that the Manufac adopt permits the to tured 145.06(1)(a) rules which sec. administrative make Stats., (2), in-plant plumb to inapplicable installation of question first legal is a ing expertise has to impression no which to we not defer They argue decide. therefore should department's construction of the Code. "Where is legal question is concerned and there no evidence any special expertise experience, weight to be interpretation no agency weight afforded an is at all." LIRC, 75, 84, No. v. 154 2d Local 695 Wis. 452 N.W.2d however, case, (1990). great In this give we of Manufac weight construction presented We case with tured Code. are this unique department's expertise circumstance that the of the experience contributed to the formulation required inter legislation subsequently it was which interpretation "An pret. regula of a statute or agency's . . helped develop persuasive . evi tion it meaning statute or regulation." dence EPA, Harnischfeger Corp. Supp. v. United States F. Youakim, (E.D. 1981) Miller (citing Wis. v. *12 (1979)). 125, 144 440 U.S. secretary was a executive

member of governor's task force recommended Two-Family Dwelling enactment of the One- and Code of Task Building Report and Manufactured Code. 24, 1970), (Sept. on i files of Force Codes at Council, Division, & Dwelling Safety Buildings A representative DILHR. of the served on Subcommittee. Id at ii. The administrator Plumbing Safety of the & Buildings Division coordinated the work chairpersons of the in of the subcommittees preparing Id. at iv. Report. the Task Force We conclude that because of unique these circum department's stances and the experience extensive applying plumbing the state code to manufactured hous ing, give we must construction highest Code the level of defer give ence courts agency interpretations of statutes. WERC, County See Sauk v. 406, 413, 165 Wis. 2d 267, 270 (1991) (if N.W.2d agency's experience, technical competence specialized knowledge agency aid the statute, interpreting applying its conclusions are deference). entitled to 1966,

Since at least plumbing the installation of prefabricated buildings manufactured has been approved "product approval" reviewed and on a basis. director, Affidavit of A. Sargent, James Bureau of Plumbing, plumbing DILHR. The administration of the code was from Department transferred of Health and 30, April Social Services to DILHR 1980. Sec- effective 221, Thus, tion ch. Laws of plumbing 1979. section of DHSS became a division of DILHR. When enacted, the Manufactured Building Code was sec. 145.025, (1975) Stats. was require created to DHSS to cooperate in adopting relating with DILHR rules establishing qualifications for the certifi- persons performing plumbing inspections cation of Section ch. Laws of 1975. *13 admin- history,

In conclude that the view of this we adopted not practice which DHSS was inter- istrative plumbing rupted by of administration of the the transfer prac- The administrative from DHSS to DILHR. code in manu- plumbing of reviewing of the installation tice is, product approval there- housing on a basis factured fore, a long-standing legal "Where consistent. is factual determinations or question intertwined with or where the policy with value or determinations law is agency's interpretation application of long to standing, agency a court should defer , of fact and primary responsibility has for determination WERC, 413, County Sauk v. 165 Wis. 2d at 477 policy." Bend Educ. Ass'n v. (quoting at West N.W.2d WERC, 2d 357 N.W.2d 539-40 Wis. added)). (1984) (emphasis is the level highest This interpretations give to stat- agency deference courts appropriate, Id. level we utes. Where this of deference only refuse to the if agency's interpretation will to defer Id. level of it is irrational. We conclude this defer- appropriate. ence is DuPont, Support

Robert G. Product Review and chief, DILHR, adopt- that one Division avers reason practice ing reviewing the administrative the installa- product on a plumbing tion of against to Wis- approval discriminating basis was avoid Affidavit, para. 5. The consin manufacturers. DuPont agencies concluded that an out-of-state manufacturer required employ could not be a Wisconsin-licensed 145.06(l)(a), Stats., plumber only prohibits because sec. state," at "in person working from unless department. agencies licensed to do so Id. The require concluded that Wisconsin manufacturers require- employ plumbers Wisconsin-licensed when that imposed on out-of-state manufactur- ment could not be unduly burden Wisconsin businesses. Id. ers would *14 agencies correctly adopted Whether the this admin practice prior to of istrative enactment the Manufac imple Building and the administrative rules tured menting important. longer is no the Code What is important department brought long is that this standing perception administrative construction and its governor's of the law to the deliberations of the Task drafting Building Force and to the of the Manufactured Therefore, Code and the administrative rules. its conclu adopt sion that the Code authorized it to administrative permitting approve housing rules it to irrespective state, sale and installation licensing of the 145.06(1)(a) (2), requirements of sec. Stats., was an informed construction of the Manufac uphold Building will construction tured Code. We that clearly contrary legislative purpose. to the unless it is LIRC, 231, 246, DILHR v. 161 Wis. 2d 467 N.W.2d (1991). that the construc We conclude contrary legislative purpose enacting tion is not to the the Manufactured Code. enacted as

The Manufactured Code was part two-part the second of Wisconsin's attack on the Chapter of crisis which then existed. Laws part Two-Family was the One- and 1975. The first Dwelling Code, 101.66, Stats., secs. 101.60 to uniformity building standards. mandated statewide Chapter of 1975. The Codes were enacted to Laws implement governor's Task the recommendations of the unique Force10which found that "Wisconsin is not implement Force recommendations were Bills to Task 1971 A.B. 1480 introduced in the 1971 and 1973 sessions as well. Report at . . Task Force housing crisis the national building Force diverse recognized The Task vii. development barrier to the ”present[] a formidable codes industry. Under such circum- building broadly of a based stances, building for any organization it is difficult building advantage products take manufacturer production that contributed economics of mass have economy." of our Task significantly to other sectors so Report 3. Force at reported Plumbing Subcommittee to the Task as

Force follows: recognize factory-built must the fact that

We homes, buildings are apartments and commercial certify way phases life. must becoming a of We all factory system that this will *15 in the so construction crossing probably will necessitate state work. This factory products lines sold Wisconsin and so that approved. produced in other states can be in the 54. This concern was echoed Report Task Force at Two-Family Sub- Building of and Code report the One- Id. at 43-46. committee. accepted

The Task Force these recommendations legislation pro- It the subcommittees. recommended pro- product acceptance approval a state-level and vide Task following cedure national consensus standards. Report viii. The Force "This will Force at Task stated: procedure a of man- implementing mean certification components. buildings building ufactured and Such reciprocal procedure system allowing should include a mar- approval governments other state within the with Id. at ix. keting product." area of 1481; 890; A.B. 1004 and 1005. 1971 S.B. However, were not enacted. these bills Building The Manufactured Code and the One- and Two-Family Dwelling not, however, Code were self-exe- cuting. 101.72, Stats., Sections 101.62 and created a Dwelling charged Code Council which was with review- ing existing standards and rules for the construction of two-family dwellings one- and ings and manufactured build- dwellings recommending for a Uniform Dwell- ing Code and a Manufactured Code to adoption. department required The was adopt implement 101.77, rules to secs. 101.70to Stats. 101.73(1) (6), Section Stats. Dwelling Code Council was a broad-based com- including representatives building

mittee trade labor organizations, building inspectors and manufactured representatives. Impact State- Environmental Proposed Dwelling Develop- ment, Code, Code Uniform Safety Buildings Section, Division, ment & DILHR (Jan. 1979), Dwelling Code Council files. workshops proposed held on the Dwelling throughout

Uniform inter- state for organizations. Chapters 20-25, I, ested ing IND Vol. Dwell- Code Council Files. The solicited organizations received comments from and affected enti- Association, the ties such as the Wisconsin Towns County League Association, Boards of Wisconsin Municipalities, Society the Wisconsin of Architects and Inspectors Id. The the Wisconsin Association. impact department prepared state- an environmental *16 Dwelling public Code and held ment on the Uniform hearings report. on its Id. May secretary department 24, 1979, of the

On Chap- Dwelling legislature. sent Uniform Code to the Dwelling 20-25, I, DILHR, Vol. Code Council ters IND. proposed hearings Uni- Files. Each house held on the assembly Dwelling form Id. The Committee on Code. with the discussed the Code Wisconsin Local Affairs Association, municipal rep- a organizations Builders Id. The Dwelling Council. of the Code resentative Uni- hearings adoption of the department public held on Madison, Crosse, Bay, Green Dwelling Code La form Milwaukee, Wausau, Eau Claire. Wiscon- Platteville and was Oct. No. 274 at 6. The Code Reg., sin Adm. department June 1980. Wis- adopted by the effective Reg., Nov. No. 287. consin Adm.

Thus, was Dwelling Code drafted Uniform department by having cooperation with the council expertise, by orga- interested was reviewed considerable review, nizations, legislature for its presented to the public hearings. No interested subjected to numerous objected Uniform organization or that individual authority delegated by the exceeded the Dwelling Code legislature Dwelling to the Code Council and department. the Commercial Code provisions

The multifamily manufactured were not relating housing Dwelling in the Uniform Code. We have been included rec- provisions unable determine whether such were Code Dwelling ommended to the However, interdepartmental dated Council. an memo 31, 1979, that May indicates manufacturers they requested permitted be to attach the Wiscon- department-approved manu- multifamily sin insignia 20-25, I, Dwelling housing. Chapters IND Vol. factured proposed files. Council drafted rules "modeled after the [Manufactured Code] proce- with our current administrative [which] blend[] Id. approvals." dures and hearings, held two one in Madison hearing

and one Wausau. The notice stated that deal hearings "proposed were on amendments [which] *17 required plan procedures for with the administrative inspections of manufactured build- review and certified more) (3 pro- dwellings. multi-family ings This for by Chapter gram 405, . . Laws of 1975 is mandated Report legislature department's as advised the Rule "Chapter proposed rules as follows: to the reasons for 1975, creation of rules related mandates the Laws dwellings buildings .. rules . . The for to manufactured Dwelling upon in the Uniform based similar rules are family single family and two Code for manufactured para. Report Chapter dwellings." 50-64, on IND Rules Dwelling files. Code Council scrutiny legislative given public

The intensive given provisions Dwelling not Uniform Code was multifamily relating Building Code Commercial of the scrutiny Apparently was such manufactured necessary First, rules for two reasons. not considered "relatively of manufactured small number a affected buildings housing on effect of . . .." Fiscal Estimate 1979), (Oct. Dwelling proposed DILHR, Code rules already Second, had Council files. inspector place plan approval certifica- function and program could be considered which the tion pro- and enforce the needed to administer modified as public legislative posed Nonetheless, Id. rules. multifamily relating scrutiny proposed rules of the depart- adequate to alert the was proposed consistent with the if rules were not ment purpose. legislative only case,

In defer not this we competence specialized experience, knowl- technical knowledge competence experience, edge, but to the previously Dwelling noted Council. We have of the In a broad-based committee. initial council was that the responsibilities carrying 101.62 and under secs. its out deter- necessary the council 101.72, Stats., it was *18 of a the creation directing intent legislature's mine the Manufac- Code and a Two-Family Dwelling One- and Building Code.11 tured an is accorded level of deference highest

When statute, we will of a agency's construction administrative irrational unless it is construction agency's sustain the Sauk purposes of the statute. with the or inconsistent 267, 406, 413, 477 WERC, N.W.2d 165 Wis. 2d County v. 246, LIRC, 467 161 Wis. 2d at (1991); DILHR v. 270 effect give construed to A statute shall be at 550. N.W.2d Co., 132 Wis. Okray v. Produce idea. State leading to its 1986). (Ct. 825, App. 389 N.W.2d 2d leading idea of clear that Report makes Task Force Manu Dwelling Code and the Two-Family the One- and housing at provide quality Building Code was to factured at an "increasing population cost to a reasonable 1; Task at see also Report Task Force alarming rate." Force con 23. The Task Report at Force neces it was accomplish objective, that cluded that housing manufacturers sary to allow production. of mass advantage of the economies take 3, 7, Plainly, Dwelling Report at 10-12. Task Force that that department considered Code Council and the if manufacturers were be frustrated objective would super- plumbers employ Wisconsin-licensed required to the rules and standards continues to oversee 11 The council two-family dwellings and manufactured for one- and 101.72, Stats., (1989-90) at 559. Section Blue Book Wisconsin that, request "Upon of the provides its own initiative or at department, and make recommenda the council shall consider any department pertaining rules and other matters tions to the Building] subchapter." related to this [Manufactured plumbers on the master by Wisconsin-licensed vised assembly line. the state-level Force also concluded

The Task system include a should procedure certification states within agreements with other reciprocal allowing Report Task Force marketing area. manufacturer's 101.70, Stats., provide that ix. Sections 101.60 at Code Two-Family Dwelling One- and purposes of the include the Manufactured uniformity" construction interstate "promoting] into to enter authorizing standards purpose This other states. with reciprocal agreements 101.74(7), Stats., 101.64(7) implemented secs. reciprocal to enter into permit *19 standards, laws states where the with other agreements legislative intent of the Wisconsin rules meet the and depart- adopted by the rules codes and administrative Code Dwelling unreasonable for the It was not ment. making department to conclude and the Council be states would with other reciprocal agreements in if other manufacturers unlikely, impossible, if not employ Wisconsin-licensed required to states were of Wisconsin-licensed supervision plumbers under the in manufactured plumbing install to plumbers master likely to retaliate would be Other states manufac- on Wisconsin requirements imposing similar of manufactured The free movement turers. illusory. be would

interstate commerce Stats., have 145.06(1) (a) (2), not does If sec. . . at ("no may . work person effect extraterritorial licensed) (emphasis the state" unless department, Wisconsin added), by the concluded as This is disadvantage. competitive suffer manufacturers correctly result which unreasonable an Pham, 403 State v. Wis. 2d See 137 rejected. (statutes (1987) to must be construed 35, 36 N.W.2d results). unreasonable avoid (2), 145.06(l)(a) given Stats., extrater is If sec. equally Not unreasonable. effect, result ritorial only uniformity purpose legislative to achieve would constitutionality of frustrated, but the be of standards impos (2) questioned, 145.06(1)(a) as would be sec. Dean ing See commerce. on interstate burden an undue (in (1951) City 349, 354 Madison, 340 U.S. Co. v. Milk city power, police economic erect cannot its exercise of against non if reasonable commerce interstate barrier available). discriminatory adequate We are alternatives adequate sec. us to declare that a record do not have (2), prevent 145.06(1)(a) applied sale if plumb housing in Wisconsin of ing by persons other than Wisconsin- installed has been imposes plumbers, on inter an undue burden licensed duty Nonetheless, construe have a we commerce. state potential violation. constitutional to avoid a statute WesleyCo., 105 Wis. Co. v. E.D. Fire Ins. United States (1982). depart 305, 320, N.W.2d 2d duty. same ment has the Dwelling and the Code Council construed the

have insig- recognize an to issue authorize the compliance installation the sale and which allows nia of *20 housing in manufactured in the state of by persons plumbing not are who has been installed 145.06(1)(a) (2), We con- Stats. sec. licensed under and is consis- is reasonable clude that that construction enacting purpose legislative in the One- tent with Two-Family Dwelling and the Manufactured Code to that construction. We therefore defer Code. By the Judgment reversed. Court. — (dissenting). DYKMAN, compli- This is not a J. Stats.,1 145.06, The is whether sec. case. issue cated in plumbing products of man- applies to the installation The Manufactured buildings. ufactured issue. does not address this applied has not

Since at least Instead, 145.06, Stats., sec. to manufactured approved for plumbing plans reviewed approval" buildings "product on a basis. approval," company a submitted "product To obtain specifications prefabricated for or manufactured build- a building ing plumbing. approved, Once containing state. could be sold this protect legislature has concluded residents, be plumbing must

safety of Wisconsin had supervision persons under who have installed proper plumbing in the installation of training extensive See plumbers. master licensed equipment —Wisconsin 145.06(2), a legislature has also enacted sec. Stats. which, except provi- a Building Code for Stats., 145.06, provides part: Section (1)(a) person may engage plumbing in the in or work at No by department. plumber A master unless licensed to do so state person may journeyman. plumbing may No act as a work as department. pipe registered apprentice layer unless with the or (2) plumbing person unless at all times a No shall install plumber charge, responsible be master is in who shall licensed for only proper installation. Licenses shall be issued individuals corpora- any firm or shall issued to or the name no license be any be transferable. It unlawful No such license shall tion. license, directly plumber his to allow the use of licensed master permits indirectly, purpose obtaining or to for others for the local work. to install the use his license others allow [Emphasis added.] *21 validity recognizes of ch. the continued sion which requirement. See secs. Stats., this not mention does Although majority 101.77, examines the 101.70to Stats. reports, advisory commission task force and voluminous indicating nothing specifically that master it finds in-plant required supervise plumbers manu- are not housing projects. factured statutory requirement, specific other

Given subject, legislation a court a different which addresses legislature, usually aware of the conclude the would 145.06(2), requirement plumber Stats., of sec. master housing exempt from that not to manufactured chose requirement. Maxey Redevelopment Auth. v. See of (Ct. Racine, 13, 24, 2d 353 N.W.2d 120 Wis. 1984) (when legislature App. statute, it does so enacts a statutes). duty knowledge existing It is the of full with statutes so that both will be construe two the courts to by implication Repeal operative. is disfa- of a statute Id. vored. Stats, 145.06, sec. than focus on whether

Rather any ambiguous and, not, if whether there is reason to meaning, majority ignore plain instead subdivides its (1) has as follows: "whether issues (2) correctly rules," construed its administrative Building Code authorized the Manufactured "whether adopt its administrative rules which it permitting approve, interpreted it to for sale and has as state, installation complying with has been installed without (2), 145.06(l)(a) op. Majority at 976.

sec. Stats." interpretation subject lawsuit is the this relevancy 145.06, I of whether sec. Stats. fail to see correctly interpreted its own admin- has Regents, regulations. v. Board istrative Pfeiffer (1983), holds that we Wis. 2d 328 N.W.2d 279 interpretation by weight "the give controlling should *22 regulation." Id. at agency its own an administrative omitted). (citation However, 154, 328 as a N.W.2d at 283 emphasizes, applies to this standard footnote Pfeiffer of an regulation the construction administrative "[w]hen n.12, a is in Id. rather than statute issue." at added) v. (emphasis Udall (quoting at 283 n.12 N.W.2d Tollman, 1, 16 (1965)).2 controversy in this 380 U.S. The erroneously the has case involves whether Stats., 145.06, interpre sec. not whether this interpreted code complies tation with the numerous administrative majority. inquiry the The latter is provisions cited irrelevant. 145.06, department's interpretation

The sec. Stats., majority urges, is to the level "highest the entitled give agency interpretations of stat- of deference courts (citation omitted). This is op. at 986 Majority utes." "the presents unique this circumstance because case expertise department's experience contributed the legislation of the Manufactured to the formulation [the required was Building subsequently which it Code] at 984. interpret." op. Majority prop- no cases majority The cites Wisconsin war- that an statute agency's osition construction par- nearly agency deference where rants conclusive drafting in of a ticipates statute. legislation affecting depart- pending in

involvement thing. unique. agencies not Most do the same ment is continues: 2 The court Pfeiffer specific purposes regula- agency

An knows the administrative Moreover, agency expertise promulgated. has a certain tions it has an regulate. upon to Thus we believe that an in the area it called regulations position interpret agency in is in its own the best underlying purposes. accordance with their at 283. Id. at 328 N.W.2d only participation agency

Agency means that the consid- legislation. agency ered the matters contained may may or not have considered collateral matters. guesswork. Inferences drawn those situations are Regardless, the statute involved in this case is not the (secs. 101.77, Code 101.70 to Stats.), parties' origi- 145.06, Indeed, but sec. Stats. nal briefs Building this case did not mention the Manufactured Only briefing

Code. when this court ordered on parties did the address it. The fact that the extensively was in the involved formulation of the Manufactured Code and the administra- implementing upon tive rules the Code confers it no special expertise nothing to construe a statute that has *23 to do with the Manufactured Code. part majority ignores The also a of the Manufac- legislature tured Code which indicates that the chapter required existence, was aware of 145's and the department compliance to enact rules which assured chapter provides per- 101.73,Stats., with 145. Section in part: tinent

The shall: (2) Adopt plans rules for the examination of specifications periodic in-plant and and for and on- inspections facilities, manufacturing site fabrication, processes, assembly and installation of buildings to ensure that examinations inspections compliance are made with the plumbing adopted by depart- rules ... for indoor the [Emphasis ment under ch. 145. added.] adopted by plumbing One of the rules for indoor chapter under 145 is Wis. Adm. Code sec. 82.40(9): ILHR In BY accordance with

PIPING PLUMBER. 145, Stats., conveys piping water for ch. plumbing consumption, or to fixtures human use or every description, appliances shall department. by persons installed licensed be that the Manufactured legislature Had the intended 145.06(2), supplant sec. insignia plan Building Code's Stats., required it not have would plumbers mandate the use master adopt rules that certainly, legislature And would water pipes. install requirement in the Manufactured have included this not Building Code. is to of the decision substitute majority's effect program" "compliance assurance to substitute

place plumber supervision, and of licensed contrary plumbers for a need for licensed its view the assurance "compliance legislative determination. however, not design, is with concerned program," plans, specifications The best integrity. fabrication by an untrained be rendered unsafe calculations can pro- "compliance A assurance assembly worker. line evaluate, approve model gram" merely document See building. Wisconsin inspect a manufactured 20.24(3). ILHR Adm. Code sec. I majority, I would conclude writing

Were was plainly demonstrated intent legislature's that be installed under dwellings, all plumbing, plumbers. licensed master supervision of Wisconsin