March 14, 1985

Mr. Bob D. Voeltz 
Administrator 
State Electrical Commission 
125 West Capitol 
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 85-13

Ordinances affecting electricians

Dear Mr. Voeltz:

You have requested an official opinion based upon the following facts:

FACTS: 

An ordinance adopted by the City of Fort Pierre provides, in part, that: 

Only electrical contractors may do electrical work within the City and shall first be licensed by the City of Fort Pierre.  Said contractors shall be responsible for each person or persons working under his supervision. The City Council is hereby authorized to examine such applications upon proof that he is licensed by the State of South Dakota and issue a license to the same.  The license shall be valid from the day of issuance thereof to the 31st day of December of the same calendar year. 

SDCL 36-16-15 and SDCL 36-16-16 specifically allow certain persons or businesses to be exempted from the requirements of obtaining a wiring permit.

Based upon the foregoing, you have asked the following questions:

QUESTIONS: 

1.  Can the City of Fort Pierre, through the ordinance noted above, prohibit a homeowner from wiring in his own premises? 

2.  Can Class B electricians be prohibited under a local electrical inspection system, whether it is the inspection system of a county,  municipality, or other local governmental governmental entity, from engaging in residential or farm wiring?

SDCL 36-16-15 allows individuals to install electrical wiring and fixtures in their own premises without securing an electrician's permit.  SDCL 36-16-35 allows municipalities and the other entities listed in that statute to make and enforce stricter standards for electricians than those found in current law.  While a local inspection system may employ 'more stringent requirements' pursuant to SDCL 36-16-35, there is nothing in the statutory language which authorizes the prohibition of electrical work allowed by statute. The Fort Pierre ordinance must be examined with these points in mind.

The language of Section 6, subsection 3 of the above ordinance, set out supra, prohibits anyone other than an electrical contractor from performing electrical work in Fort Pierre.  Such a prohibition is in conflict with SDCL 36-16-15, the homeowner's exemption, and SDCL 36-16-14, which allows a Class B electrician to engage in farm and residential wiring.  It is well established that 'A municipality cannot lawfully forbid what the legislature has expressly licensed, authorized, or required . . . (Footnote 14)' Volunteers of America Care Facility v. Village of Brown Deer, 97 Wis.2d 619, --, 294 N.W.2d 44, 47, 48 (1980).  (Footnote omitted.)  See also Wisconsin's Environmental Decade, Inc. v. Department of Natural Resources, 85 Wis.2d 18, 271 N.W.2d 69 (1970). In addition, 'A municipal ordinance cannot be allowed to change a statutory  provision either by enlargement or diminution.'  North Liberty Land Company v. Incorporated City of , 311 N.W.2d 101, 103 (Ia. 1981).  It should be clear from the above that the language of the Fort Pierre ordinance restricting electrical work to electrical contractors impermissibly limits the statutory authority of homeowners and Class B electricians to perform residential wiring (and farm wiring in the case of Class B electricians).

ANSWERS:

Therefore, it is my opinion, in answer to your first question, that the City of Fort Pierre cannot prohibit a homeowner from wiring in his own premises.  As to your second question, it is my opinion that Class B electricians cannot be prohibited under local inspection systems from engaging in residential or farm wiring.

Respectfully submitted,

Mark V. Meierhenry
Attorney General