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03/10/95 ERNEST SMITH v. MADISON COUNTY COMMISSION

March 10, 1995

ERNEST SMITH
v.
MADISON COUNTY COMMISSION AND THE HOME BUILDERS LICENSURE BOARD



Appeal from Madison Circuit Court. (CV-93-1939). William D. Page, TRIAL JUDGE.

Released for Publication June 30, 1995.

Jones, Maddox, Shores, Houston, Ingram, Cook, and Butts, JJ., concur.

The opinion of the court was delivered by: Jones

JONES, RETIRED JUSTICE.

Ernest Smith sought an injunction *fn1 prohibiting the Madison County Commission from enforcing its building code. The circuit court denied the injunction. Smith appealed, presenting a single issue: Whether the Madison County Commission's statutory authority to enforce its building code ended through application of Alabama's "Sunset Act." *fn2 We affirm the trial court's order, which was based on the court's holding that the Commission's authority had not ended.

The issue arises in the following context: Before 1992, Alabama counties had no authority to enact building codes to address home building problems within unincorporated areas. On May 21, 1992, the Alabama legislature enacted Act No. 92-608, Ala. Acts 1992. Section 12 of that act states:

"The county commissions of the several counties are authorized and empowered to adopt building laws and codes by ordinance which shall apply in the unincorporated areas of the county."

Section 3 of Act No. 92-608 created a new state agency, "The Home Builders Licensure Board" ("the Board"), whose purpose is expressed in the Act's title: "An Act

"Relating to the regulation of the home building industry; providing for examinations and the issuance of licenses to persons in the home building industry by examination and otherwise; providing for adoption by counties of residential housing building codes; creating the Home Builders Licensure Board and imposing licensing fees and penalties for violations of this act."

Section 1 of Act No. 92-608 (entitled "Background and legislative intent") states:

"In the interest of the public health, safety, welfare, and consumer protection and to regulate the home building and private dwelling construction industry, the purpose of this act and the intent of the legislature in passing it, is to provide for the licensure of those persons who engage in home building and private dwelling construction, including remodelling, and to provide home building standards in the State of Alabama."

The first aspect of the legislative scheme, establishing the Board to regulate the home building industry, concerned itself with who was building houses in rural areas; the second aspect, empowering county commissioners to set standards, concerned itself with how the houses were being built.

Section 17 of Act No. 92-608 (entitled "Sunset Provision"), states:

"The Home Builders Licensure Board shall be an enumerated board pursuant to ยงยง 41-20-1 through 41-20-16, Code of Alabama 1975, as amended, and shall be reviewed at the same ...


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