AGO 1993-002.

• Case Date: January 08, 1993
• Court: Ohio

Ohio Attorney General Opinions 1993. AGO 1993-002. January 8, 1993OPINION NO. 1993-002The Honorable Rebecca J. Ferguson Preble County Prosecuting Attorney Courthouse, Third Floor Eaton, Ohio 45320Dear Prosecutor Ferguson:You have asked whether a county, through its building code and building and electrical inspector, can adopt and enforce standards relating to "manufactured homes" that require more than required by the federal regulations pertaining to manufactured homes and, if so, how can it be accomplished? I.

County Building Code Authority

The authority of a county to establish a building code is set forth in R.C. 307.37(A)(1), which states, in pertinent part:

The board of county commissioners, in addition to its other powers, may adopt, amend, rescind, administer, and enforce regulations pertaining to the erection, construction, repair, alteration, redevelopment, and maintenance of single-family, two-family, and three-family dwellings within the unincorporated territory of the county....

Regulations adopted under R.C. 307.37(A)(1) may govern the installation, maintenance and repair of electrical wiring and equipment. See 1958 Op. Att'y Gen. No. 2516, p. 498. A county may appoint a county building inspector to administer and enforce its building regulations. R.C. 307.38. Thus, as a general proposition, a county may adopt a building code, enforceable by its building and electrical inspector, governing single-family, two-family, and three-family dwellings. The principle issue raised by your request, therefore, is whether a "manufactured home" is subject to regulation under R.C. 307.37 when it is used as a single-family, two-family, or three family dwelling, or whether the federal regulatory scheme governing manufactured homes preempts such county regulatory authority. II.Federal Regulation Of Manufactured Homes A.

General Regulatory Scheme

The federal definition of "manufactured home" is set out at 42 U.S.C. §5402(6), which states:

"manufactured home" means a structure, transportable in one or more sections, which, in the traveling mode, is eight body feet or more in width or forty body feet or more in length or, when erected on site, is three hundred twenty or more square feet, and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air conditioning, and electrical systems contained therein; except that such term shall include any structure which meets all the requirements of this paragraph except the size requirements and with respect to which the manufacturer voluntarily files a certification required by the Secretary and complies with the standards established under this chapter.... (Emphasis added.)

This definition was enacted as part of the National Manufactured Housing Construction and Safety Standards Act of 1974, as amended. 42 U.S.C. §5401 et seq. The Act required the Secretary of Housing and Urban Development (HUD) to establish federal manufactured home construction and safety standards, 42 U.S.C. §5403(a), and further authorized the Secretary to promulgate rules and regulations necessary for administration of the Act, 42 U.S.C. §5424. Procedural and enforcement regulations under this latter authority are codified at 24 C.F.R. pt. 3282. The construction and safety standards are codified at 24 C.F.R. pt. 3280. The construction and safety standards set out specific requirements governing "all equipment and installations in the design, construction, fire safety, plumbing, heat-producing and electrical systems of manufactured homes which are designed to be used as dwelling units." 24 C.F.R. §3280.1(a). HUD enforces the standards by requiring prior approval of manufactured home designs, and by oversight of the manufacturing process and of distribution and sales. See 24 C.F.R. §§3280.3, 3282.201-3282.256, 3282.351-3282.366. Conformity with the standards is evidenced by a certification label affixed to each transportable section of a manufactured home. 24 C.F.R. §3280.8; 24 C.F.R. §3282.7(s); 24 C.F.R. §3282.205; 24 C.F.R. §3282.362(c)(2). B.Federal Preemption Of Local Authority The federal regulations governing manufactured homes used as dwelling units cover many, if not all, of the aspects of construction and safety commonly addressed in county building codes governing single-family to three-family dwellings under R.C. 307.37(A)(1). However, "federal law enacted to regulate a subject regulated by state law is not, ipso facto, deemed to be preemptive of the state law." Jones Metal Products Co. v. Walker, 29 Ohio St. 2d 173, 281 N.E.2d 1 (1972) (syllabus, paragraph one). There are three tests for federal preemption:

Congress may expressly preempt state authority in a given area. Jones v. Rath Packing Co. (1977), 430 U.S. 519. Absent express preemption, where state law conflicts with or frustrates federal law or its objectives, federal law may supersede state law. Florida Lime & Avocado Growers, Inc. v. Paul (1963), 373 U.S. 132. Additionally, if a scheme of federal regulations is so pervasive as to leave no room for the states to supplement it, federal preemption may be found. Rice v. Santa Fe Elevator Corp. (1947), 331 U.S. 218.

State ex rel. Miller v. Industrial Comm'n, 26 Ohio St. 3d 110, 111, 497 N.E.2d 76, 77 (1986), aff'd sub nom. Goodyear Atomic Corp. v. Miller, 486...