(1973)

PHILIP E. LERMAN, Chairman, Department of Industry, Labor andHuman Relations

You have asked for my opinion on whether your department may require annual registration, licensing and inspection of boarding homes under existing rule-making authority, and whether it can charge a per bed or per room licensing and inspection fee. It is assumed herein that the department will receive federal approval of its plan for continued enforcement of statutes and rules applicable to places of employment.

Your department's authority is stated in ch. 101, Wis. Stats. The basic jurisdiction is over employment, places of employment and public buildings. Section 101.01 (2), Stats

Under secs. 101.01 (2) (h) and 101.02 (15) (a), Stats., your department has jurisdiction over that portion of the boarding house open to the public and where employes work, if the building is used by three or more tenants.

Section 101.01 (2)(h), Stats., reads:

"The term ``public building' as used in ss. 101.01 to 101.2 means and includes any structure, including exterior parts of such building, such as a porch, exterior platform or steps providing means of ingress or egress, used in whole or in part as a place of resort, assemblage, lodging, trade, traffic, occupancy, or use by the public or by 3 or more tenants."

You have not defined or described "boarding homes" in your opinion request. Nor has your department defined "boarding homes" in the definition section of the Wisconsin Administrative Code. Section Ind 51.04, Wis. Adm Code. However, the scope of Ind 54.001, Wis. Adm. Code, includes some boarding homes.

Section Ind 54.001, Wis. Adm. Code, reads:

"This classification includes all factories and workshops (including all places where manual labor is employed), office buildings, telegraph and telephone offices, mercantile establishments where commodities are bought or sold, taverns, warehouses, railroad stations, exhibition buildings, and places where not more than 100 persons assemble for recreation, entertainment, worship, or dining purposes."

"Boarding house" is defined as a house at which persons are boarded. The verb "board" is defined as: to provide with regular meals and often also lodging, usually for compensation. Webster'sSeventh New Collegiate Dictionary.

The term "boarding homes" defined for lien purposes appears in sec. 289.43 (1) (a), Stats:

"``Boarding house' includes a house or building where regular meals are generally furnished or served to three or more persons at a stipulated amount for definite periods of one month or less."

In 56 OAG 36 (1967) we find that dwelling units of row houses are private dwellings excepted from regular fire inspections. Church rectories are not within your jurisdiction under the term "public building." 56 OAG 37 (1967). See also 59 OAG 35 (1970);Rogers v. Oconomowoc (1964), 24 Wis.2d 308, 315-316,128 N.W.2d 640.

Your department has authority to inspect that portion of boarding homes where employes work or where the public or frequenters enter. Your department has authority to inspect prior to occupancy the entire building, if it is designed to accommodate three or more tenants. Section 101.02 (15) (g), Stats., authorizes inspection of the premises of employers or owners for the health, safety and welfare of employes, frequenters, the public or tenants. Subsections 101.14 (1) (b) and (2) (b), Stats., however, exclude from fire inspections the interior of private dwellings.

Your department does not have the authority to require annual registration or licensing of boarding homes nor to charge a per bed or per room licensing and inspection fee. Section 101.19 (1), Stats., enumerates what your department may certify or register, but a boarding home is not listed. Section 101.19 (2), Stats., provides for collection of fees for inspections necessary to determine whether the structure was constructed in accordance with approved plans. There is no provision for collecting any fees for other types of inspections.

It will require legislation to permit your department to completely, and without reservation, inspect boarding homes, to charge inspection fees and to license and collect annual registration fees.

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