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Barkau v. Ruggirello

Michigan Court of Appeals
Oct 8, 1980
113 Mich. App. 642 (Mich. Ct. App. 1980)

Opinion

Docket No. 43798.

Decided October 8, 1980. Rehearing granted November 18, 1980. Rehearing decided March 2, 1982.

Carl Ziemba, for defendants.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and David W. Silver, Assistant Attorney General, intervenor.

Amici Curiae:

Jennifer S. Bidwell and Michael Leonard, for Michigan Legal Services.

Egnor, Hamilton Muth, for Michigan Mobile Homeowners Association.

ON REHEARING

Before: ALLEN, P.J., and V.J. BRENNAN and MacKENZIE, JJ.


In Barkau v Ruggirello, 100 Mich. App. 617; 300 N.W.2d 342 (1980), we reversed the trial court's decision to issue a permanent injunction which allowed plaintiffs to sell their mobile home on a leased site in defendants' mobile-home park and restrained defendants from interfering with the quiet enjoyment of the premises by the purchaser. We remanded the case for trial. Although it was perhaps unnecessary for our decision on appeal, in order to prevent the issue from arising on remand we addressed the parties' contentions concerning the validity of a proposed rule promulgated by the Mobile Home Commission and concluded that promulgation of the rule was beyond the statutory powers of the commission. Following our decision, we granted motions by the Attorney General of the State of Michigan for intervention and for rehearing. We also permitted Michigan Legal Services and the Michigan Mobile Homeowners Association to file briefs as amici curiae.

The proposed rule at issue became 1979 AC, R 125.2004(1), which provided:

"A mobile home park shall not deny a tenant the right to sell his or her mobile home, on site, at a price of his or her own choosing, to any individual, if the purchaser qualifies for tenancy and the mobile home meets the conditions of the written park rules, except that age shall not be used as the sole basis for refusing to allow a mobile home to remain in the park."

The subsequent amendment to the rule appears at 1980 AACS, R 125.2004; that amendment did not change the rule in a manner relevant to our decision.

Intervenor and amici curiae have offered various arguments designed to show that the rule is sound public policy. Such arguments would be better directed to the Legislature. As we noted in our previous opinion, the question before us is "whether the rule is within the matter covered by the enabling statute". See Chesapeake Ohio R Co v Public Service Comm, 59 Mich. App. 88, 98-99; 228 N.W.2d 843 (1975). The enabling statute in question is the Mobile Home Commission Act, MCL 125.1101 et seq.; MSA 19.855(1) et seq. We have carefully considered the act and are unable to find authority for promulgation of the rule in question.

Intervenor and amici curiae rely on the commission's authority to promulgate the mobile-home code. MCL 125.1105(1); MSA 19.855(5)(1) provides, in relevant part:

"The commission shall promulgate the mobile home code subject to section 4. The code shall consist of rules governing:

"(a) The licensure, density, layout, permits for construction, construction of mobile home parks including standards for roads, utilities, open space, or proposed recreational facilities, and safety measures sufficient to protect health, safety, and welfare of mobile home park residents, except water supply, sewage collection and treatment, and drainage facilities which are regulated by the department of public health.

"(b) The business, sales, and service practices of mobile home dealers.

* * *

"(g) Abuses relating to:

* * *

"(iv) Used mobile homes. A mobile home dealer shall provide detailed listing of its service records for used mobile homes which are being sold by the dealer and of which the dealer has knowledge."

The rule cannot be justified under any of the foregoing provisions. The rule is not concerned with "the licensure, density, layout, permits for construction [or] construction of mobile home parks". It is not a standard for "roads, utilities, open space, or proposed recreational facilities". It does not involve "safety measures". The rule does not relate to the "business, sales, and service practices of mobile home dealers"; it applies to mobile-home park owners and operators. In context, it is apparent that the provision involving "abuses related to * * * used mobile homes" was directed at the sale of used mobile homes by dealers.

Another source of the commission's authority to promulgate rules is MCL 125.1104(1); MSA 19.855(4)(1) which provides, in relevant part:

"The commission may: (a) Promulgate rules to implement and administer this act."

Intervenor and amici argue that the rule implements and administers § 27 of the act. MCL 125.1127; MSA 19.855(27) provides:

"(1) A person shall not, in connection with the offer, sale, purchase, or rental of a mobile home, mobile home site, or equipment, relating thereto:

"(a) Employ a devise, scheme, or artifice to defraud.

"(b) Make an untrue statement of material fact or omit to state a material fact necessary to make the statement not misleading, in the light of the circumstances under which it is made.

"(2) A person shall not wilfully authorize, direct, or aid in publication, advertisement, distribution, or circulation of a statement or representation concerning a mobile home, mobile home site, or equipment relating thereto, which misrepresents the facts concerning the mobile home, mobile home site, or equipment relating thereto.

"(3) A person with knowledge that an advertisement, pamphlet, prospectus, or letter concerning a mobile home, mobile home site, or equipment relating thereto contains a written statement that is false or fraudulent, shall not issue, circulate, publish, or distribute the advertisement, pamphlet, prospectus, or letter concerning a mobile home, mobile home site, or equipment relating thereto.

"(4) A person shall not wilfully make any material misrepresentation in the sale of a mobile home, mobile home site, or equipment relating thereto."

"Fraud" is an intentional perversion or concealment of the truth for the purpose of inducing another in reliance upon it to part with some valuable thing or to surrender a legal right. See Johnston's Administrator v United Airlines, 23 Mich. App. 279, 285; 178 N.W.2d 536 (1970). We fail to see any connection between the rule and fraud or misrepresentation.

It is also argued that the rule implements and administers § 28 of the act. MCL 125.1128; MSA 19.855(28) provides, in relevant part:

"(1) An owner or operator of a mobile home park shall not engage, nor permit an employee or agent to engage, in any of the following methods, acts, or practices, which are defined in this section as unfair or deceptive practices:

"(a) Charging or exacting from a person, directly or indirectly, an entrance fee.

"(b) Requiring a person to purchase directly or indirectly a mobile home from any other person as a condition of entrance to, or lease or rental of, a mobile home park space.

"(c) Charging or exacting from a person, directly or indirectly an exit fee, whether refundable or nonrefundable.

"(d) Requiring, coercing, or inducing a person to purchase, rent, or lease goods or services from another person as a condition for entering into a mobile home park or lease or upon leaving the mobile home park to sell a mobile home through the mobile home park owner or operator, or his agent or designee, or for the rental of space in a mobile home park.

"(e) Charging or exacting from a person, directly or indirectly, money or other thing of value for the provision or distribution of an electric or fuel service without the use of the service by a resident or tenant being first accurately and consistently measured in relation to the actual amount of the use by the resident or tenant unless the electric or fuel service is being included in the rental charge as an incident of tenancy.

"(f) Conspiring, combining, agreeing, or arranging with another person to employ, or aid or abet the employing of, any method, act, or practice which is in violation of this act.

"(g) Renting or leasing a mobile home or site in a mobile home park without offering a written lease." (Emphasis added.)

Under the statute, an owner or operator of a mobile-home park cannot refuse to allow an on-site sale of a mobile home because the parties to the sale have not paid him the equivalent of a fee. Under the rule, an owner or operator cannot refuse to allow an on-site sale because of the age of the mobile home involved. The statute and the rule may be aimed at the same goal, but the means chosen in the rule to achieve that goal are inconsistent with and significantly more restrictive than the means chosen in the statute. We do not believe that the Legislature intended the commission to use its rulemaking powers to work such fundamental changes in the statutory scheme. The rule is not "within the matter covered by the enabling statute", the standard used in Chesapeake Ohio R Co v Public Service Comm, supra; rather, the rule goes beyond the matter covered by the statute.

Intervenor and amici curiae also rely upon the following provision of MCL 125.1104(1); MSA 19.855(4)(1):

"The commission may:

* * *

"(b) Act for the purpose of establishing a uniform policy relating to all phases of mobile home business and use."

Courts construe statutes so that they will be constitutional unless the language used clearly requires the opposite result. People v McQuillan, 392 Mich. 511, 536; 221 N.W.2d 569 (1974). It is well settled that the Legislature cannot constitutionally delegate to another body its lawmaking powers; thus, where the Legislature confers rulemaking authority on an administrative agency, it must prescribe the standards for the agency's guidance which are as reasonably precise as the subject matter requires or permits. See, for example, Osius v St Clair Shores, 344 Mich. 693, 698; 75 N.W.2d 25 (1956). With these principles in mind, we hold that MCL 125.1104(1)(b); MSA 19.855(4)(1)(b) does not permit the commission to promulgate a rule not otherwise within the matter covered by the statute and therefore cannot be used to justify the rule at issue here.

Nothing on rehearing causes us to alter our original disposition of the case. The trial court's decision is reversed, and the case remanded for further proceedings consistent with our opinions.


Summaries of

Barkau v. Ruggirello

Michigan Court of Appeals
Oct 8, 1980
113 Mich. App. 642 (Mich. Ct. App. 1980)
Case details for

Barkau v. Ruggirello

Case Details

Full title:BARKAU v RUGGIRELLO (ON REHEARING)

Court:Michigan Court of Appeals

Date published: Oct 8, 1980

Citations

113 Mich. App. 642 (Mich. Ct. App. 1980)
318 N.W.2d 521

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