107oag074

74 [107 Op. Att’y

BUILDING CODES

MANUFACTURED HOMES – FIRE SPRINKLERS – WHETHER
STATE LAW REQUIRES FIRE SPRINKLER SYSTEMS TO BE
INSTALLED IN MANUFACTURED HOMES – WHETHER
FEDERAL LAW WOULD PREEMPT SUCH A REQUIREMENT

March 2, 2022
The Honorable Joseph M. Mitrecic
President, Board of County Commissioners of Worcester County

You have asked whether Maryland law requires the
installation of fire sprinkler systems in manufactured homes.
Manufactured homes, which are built in factories and transportable
on wheels, are constructed in compliance with regulations
developed by the U.S. Department of Housing and Urban
Development (“HUD”). Although a manufactured home might
have a fire sprinkler system, federal law does not require one.
Maryland statutes enforced by the State Fire Marshal do require the
installation of fire sprinklers in certain types of buildings. But last
year, the State Fire Marshal issued informal guidance opining that
while Maryland law requires installation of fire sprinklers in most
types of one- and two-family homes, it does not require them in
manufactured homes.

We agree with the State Fire Marshal that State law does not
currently require the installation of fire sprinklers in manufactured
homes. As an initial matter, although the federal statute that grants
HUD authority over manufactured homes contains an express
preemption provision, it would not preempt a state or local
requirement that manufactured homes be equipped with fire
sprinklers. The federal statute provides that state and local
governments can impose additional requirements on manufactured
homes where HUD’s regulations are silent, and HUD’s regulations
are silent on fire sprinklers.

While the State could mandate fire sprinklers in manufactured
homes, neither the General Assembly nor the Maryland
Department of Labor (“DOL”), which maintains the State’s
building codes and administers the State’s regulatory program for
manufactured homes, has done so. The statewide building
standards administered by DOL—known as the Maryland Building
Performance Standards (“MBPS”)—do require fire sprinklers in
those homes that they govern. But neither the statute adopting the
MBPS nor the MBPS regulations evince an intent to apply to
Gen. 74] 75

manufactured homes. Rather, the State has consistently
maintained a separate statutory and regulatory scheme for
manufactured homes. That is likely because a detailed regulatory
code—the HUD standards—already existed for manufactured
homes when the General Assembly established the MBPS. The
purpose of the MBPS, instead, was to regulate traditional “site-
built” buildings, including site-built homes, which had previously
been subject to a patchwork of inconsistent local requirements.
Notably, both the State Fire Marshal and the Maryland
Department of Housing and Community Development (“DHCD”)
(DOL’s predecessor as building regulator) have also concluded that
the MBPS sprinkler requirement does not govern manufactured
homes. We owe considerable deference to interpretations of
statutes by the agencies charged with administering them. For all
of these reasons, we conclude that the language of the MBPS
statute and regulations, which does not specifically address
manufactured homes, was not intended to cover them. Thus, no
provision of Maryland law currently requires fire sprinklers in
manufactured homes.

I
Background

A. Manufactured Homes

A manufactured home is a single-family home that is built in
a factory on a wheeled chassis, then towed to the site where it will
be used as a house. Maryland Dep’t of Labor, Building Codes
Admin., What Is a Modular and a Manufactured (Mobile) Home?,
https://www.dllr.state.md.us/labor/build/buildmoddef.shtml (last
visited Feb. 25, 2022). Once the home arrives on site, installers
normally remove the wheels, then connect it to utilities and
stabilize it in place. See James Milton Brown & Molly A. Sellman,
Manufactured Housing: The Invalidity of the “Mobility” Standard,
19 Urb. Law. 367, 376 (1987). Manufactured homes are
sometimes called “mobile homes.” Id. at 371. But that term is
often a misnomer: though a manufactured home once placed can
in theory be moved again, that rarely happens in practice, due to
high moving costs and limited options for placement. Amy J.
Schmitz, Promoting the Promise Manufactured Homes Provide for
Affordable Housing, 13 J. Affordable Housing & Community Dev.
L. 384, 385, 389 (2004). Manufactured homes are frequently, but
not always, placed in parks where the residents own their homes
but rent the underlying land from the park owner. Id. at 388. In
2017, there were 39,300 manufactured homes in Maryland (about
76 [107 Op. Att’y

2% of the State’s total housing stock), and since then,
approximately 100 new units per year, on average, have been
shipped to Marylanders.1

HUD is the primary regulator of manufactured home design
and construction under the National Manufactured Home
Construction and Safety Standards Act, 42 U.S.C. §§ 5401-5426
(the “Federal Act”). Congress charged HUD with ensuring that
manufactured homes are durable and safe but also affordable and
subject to nationally uniform standards. 42 U.S.C. § 5401. To
those ends, HUD promulgates and maintains the “Federal
Manufactured Home Construction and Safety Standards” (the
“HUD standards”). 24 C.F.R. pt. 3280. The HUD standards
regulate aspects of the manufactured home including minimum
room size; light and ventilation; structural integrity; insulation;
plumbing, heating, cooling, and electrical systems; and fire safety.
See id. Inspectors certified under HUD’s authority approve each
manufactured home design for compliance with these standards
and oversee construction at each factory. 24 C.F.R. §§ 3282.203,
3282.204, 3282.361, 3282.362. These inspectors issue “HUD
labels” which manufacturers attach to each home to certify
compliance with the HUD standards. Id. § 3282.205, 3282.362.
The Federal Act prohibits the sale of a new manufactured home
without a HUD label. See 42 U.S.C. § 5409.

The Federal Act preempts state and local regulation of any
“aspect of [manufactured home] performance” that the HUD
standards address. Id. § 5403(d). But the Act also expressly
recognizes that states can regulate “any manufactured home
construction or safety issue” where no HUD standard applies. Id.
§ 5422(a). The Act also allows a state to take over enforcement of
the HUD standards as a delegate of HUD, subject to the same
preemption rules. See id. § 5422(b). Within Maryland, DOL
oversees enforcement of the HUD program, having taken over that
role from DHCD in 2018. Md. Code Ann., Pub. Safety (“PS”)
§ 12-312; 2018 Md. Laws, ch. 673.

B. Other Types of Single-Family Homes

Other statutory and regulatory schemes govern the design and
construction of other types of homes. A “site-built” or “stick-built”
1
See U.S. Census Bureau, American Housing Survey, Maryland—General
Housing Data (2017), https://www.census.gov/programs-surveys/ahs.html;
U.S. Census Bureau, Manufactured Housing Survey, Shipments of New
Manufactured Homes (2021), https://www.census.gov/data/tables/time-
series/econ/mhs/shipments.html.
Gen. 74] 77

home is constructed in the traditional manner—from scratch, on the
site where it will permanently stand. In Maryland, local
governments are the primary regulators of site-built homes,
although, as we will explain, the State has attempted to balance that
local autonomy with uniform statewide standards. See PS §§ 12-
502 to 12-505.

Originally, the regulation of site-built home construction was
exclusively a matter for local governments, which focused on
preventing fires. 5 Philip L. Bruner & Patrick J. O’Connor, Jr.,
Construction Law § 16:2 (Aug. 2021 update). For example, a 1799
Baltimore City ordinance prohibited the construction of wooden
buildings in the City center. Baltimore City Ord. No. 22 (June 11,
1799). Over time, as construction techniques grew more complex
and builders adopted more dangerous technologies, regional and
national standard-setting organizations began to develop model
building codes, which local and state governments would then
adopt. Bruner & O’Connor, supra, § 16:2. Local jurisdictions in
Maryland adopted a variety of model codes—with the Building
Officials and Code Administrators (“BOCA”) Code as the most
popular—and some continued with no code at all. Report of the
Maryland Building Performance Standards Task Force 3 (1993)
(“MBPS Report”); 1993 Md. Laws, ch. 200 (Preamble).

To clear away this regulatory tangle, the General Assembly in
1993 directed DHCD to establish by regulation a new statewide
building code: the Maryland Building Performance Standards.
1993 Md. Laws, ch. 200 (enacting Art. 83B, §§ 6-401 to 6-406,
now codified as amended at PS §§ 12-501 to 12-510). The new
MBPS regulations were based on the BOCA Code and
incorporated it by reference. Id. (enacting Art. 83B, § 6-402, now
codified as amended at PS § 12-503). The MBPS statute required
each local jurisdiction to use the MBPS as its building code but
allowed local governments to adopt local amendments to the
MBPS regulations, including amendments establishing different or
less stringent standards. See id. (codified as amended at PS §§ 12-
503 and 12-504). Thus, each MBPS provision applies in each
jurisdiction unless the local government opts out of a particular
requirement. The State also continued to leave building code
enforcement to localities. Id. (codified as amended at PS § 12-
502(c)). In 2000, several standard-setting organizations merged
into the International Codes Council, and the new International
Building Code superseded the BOCA Code. See 2000 Md. Laws,
ch. 39.
78 [107 Op. Att’y

Today, the MBPS regulations incorporate several
International Codes, each regulating a different construction-
related subject. COMAR 09.12.51.04. Most relevant here, the
International Residential Code (“IRC”) sets standards for the
design and construction of one- and two-family homes.2 When the
International Codes Council updates one of these model codes
(which normally happens every three years), the Department of
Labor must update the MBPS within eighteen months, though the
agency has some discretion to make modifications to the codes
before adopting each version as part of the MBPS. PS § 12-503.

“Modular homes” make up a third category distinct from both
manufactured and site-built homes. Modular homes are built in a
factory (often in multiple sections) like a manufactured home, but
they are designed to be installed on a permanent foundation and
never moved again, like a site-built home. What Is a Modular and
a Manufactured (Mobile) Home?, supra. HUD does not regulate
modular homes. See 42 U.S.C. § 5403(f). In Maryland, modular
homes are classified as “industrialized buildings,” which are
subject to a set of DOL regulations that is based on, but separate
from, the MBPS. See PS §§ 12-301(d), 12-305. However, the
industrialized building regulations incorporate many of the same
model code provisions by reference, which means that in substance
modular homes, like site-built homes, are mainly governed by the
International Residential Code. See COMAR 09.12.50.02-1,
09.12.52.06, 09.12.52.07.
C. Fire Sprinklers

The question of whether to mandate the installation of fire
sprinklers in new buildings, especially single-family homes, has
been the subject of frequent policy debates in recent years. A fire
sprinkler system consists of sprinkler heads in various rooms of a
building, connected to pressurized water pipes. If the air temperature
around a sprinkler head reaches a certain level, indicating that there
is a fire in the room, that sprinkler head opens and sprays water to
extinguish the fire or at least suppress it long enough for the
building’s occupants to escape and for firefighters to arrive.3

2
All HUD-regulated manufactured homes are single-family homes.
See 24 C.F.R. § 3282.8(l).
3
Nat’l Fire Protection Ass’n, How Home Fire Sprinklers Work,
https://www.nfpa.org/Public-Education/Staying-safe/Safety-
equipment/Home-fire-sprinklers/Fire-Sprinkler-Initiative/Take-
action/Free-downloads/How-sprinklers-work (last visited Feb. 25,
2022).
Gen. 74] 79

Proponents of mandated fire sprinkler installation argue that
fire sprinkler systems dramatically reduce house-fire deaths among
civilians and firefighters.4 For example, as of 2020, Prince
George’s County had not recorded a single fire death in a home
with a functioning sprinkler system for nearly thirty years,
compared to an average of ten fire deaths per year in homes without
sprinklers. Hearing on H.B. 823 Before the House Env’t & Transp.
Comm., 2020 Leg., Reg. Sess. (Feb. 25, 2020) (written testimony
of the Prince George’s County Executive). Opponents contend,
however, that sprinkler systems are costly to install and that
mandating them across the board could impair the availability of
affordable housing. See, e.g., Hearing on S.B. 602 Before the
Senate Educ., Health, & Env’tl Affairs Comm., 2012 Leg., Reg.
Sess. (Feb. 28, 2012) (written testimony of the Caroline County
Commissioners).

In 2008, the International Codes Council amended the
International Residential Code to mandate fire sprinklers in those
new one- and two-family homes covered by the IRC. ICC
Approves Sprinkler Requirement in Family Dwellings, 32
Construction Cont. L. Rep. 247 (Nov. 6, 2008). The IRC’s new
sprinkler mandate took effect in Maryland on January 1, 2011, after
DHCD updated the MBPS regulations to incorporate the new Code
version. 36:16 Md. Reg. 1255, 1255 (July 31, 2009). Several local
governments then exercised their local amendment authority to opt
out. See PS § 12-504; Revised Fiscal & Policy Note for H.B. 366,
2012 Leg., Reg. Sess. The General Assembly responded in 2012
by prohibiting local governments from opting out of the MBPS
sprinkler mandate. 2012 Md. Laws, chs. 265, 266 (enacting PS
§ 12-504(a)(1)(iii)). In 2020, the General Assembly, concerned
that some jurisdictions were still not enforcing the sprinkler
mandate, transferred responsibility for its enforcement to the State
Fire Marshal. 2020 Md. Laws, ch. 334 (enacting PS § 6-305(a)(3));
Hearing on H.B. 823 Before the House Env’t & Transp. Comm.,
2020 Leg., Reg. Sess. (Feb. 25, 2020).

None of these statutory and regulatory amendments addressed
whether or how the sprinkler mandate would apply to
manufactured homes. A 2017 memorandum issued by DHCD
concluded that State law does not currently require fire sprinklers
in manufactured homes. Memorandum from Norman C. Wang,
Director, Maryland Codes Administration, to Maryland Local
Building Officials and the Office of the Maryland State Fire
4
See Marty Ahrens, Nat’l Fire Protection Ass’n, U.S. Experience With
Sprinklers (Oct. 2021), https://www.nfpa.org/News-and-Research/Data-
research-and-tools/Suppression/US-Experience-with-Sprinklers.
80 [107 Op. Att’y

Marshal (Aug. 11, 2017) (“Wang Memorandum”). And in 2021,
the State Fire Marshal also opined that State law requires sprinklers
in new one- and two-family site-built and modular homes but not
in manufactured homes. Office of the State Fire Marshal,
Requirements for Automatic Residential Fire Sprinkler Systems in
One- and Two-Family Dwellings (May 17, 2021) (“Fire Marshal
Memorandum”). But we have not previously addressed this issue.

II
Analysis

To answer your question, we first consider whether the
preemption provision in the Federal Act that applies to
manufactured homes would bar Maryland from imposing a fire
sprinkler requirement on such homes. We conclude that it would
not, because while the HUD standards address some aspects of fire
safety, they do not address fire sprinklers or fire suppression more
generally. We also conclude, however, that Maryland law does not
currently apply a fire sprinkler mandate to manufactured homes.
The Maryland Building Performance Standards—the source of the
State’s fire-sprinkler mandate for one- and two-family homes—
were not intended to govern manufactured homes, which have had
their own regulatory regime since before the MBPS took effect.

A. Federal Preemption

The Federal Act governing manufactured homes is structured
to balance national uniformity with state and local autonomy. The
statute preempts state and local law governing manufactured home
construction and safety, but only when it addresses an “aspect of
performance” that the HUD standards also address. See 42 U.S.C.
§§ 5403(d), 5422(a). As we will explain, because the HUD
standards address fire safety generally but not fire sprinklers in
particular, the Federal Act would not preempt a state or local fire
sprinkler mandate.

Federal law can preempt state law in one of three ways. See
Kansas v. Garcia, 140 S. Ct. 791, 801 (2020). First, federal law
may expressly preempt state law. See, e.g., Coventry Health Care
of Mo., Inc. v. Nevils, 137 S. Ct. 1190, 1194 (2017). Second,
federal law may implicitly preempt a state from legislating in a
particular “field,” by covering that field so comprehensively as to
leave no room for state legislation on the same topic. See, e.g.,
Kurns v. Railroad Friction Prods. Corp., 565 U.S. 625, 630-31
(2012). Third, state law may be preempted when it conflicts with
federal law, either by placing an actor in a position where
Gen. 74] 81

compliance with both federal and state law is impossible, see, e.g.,
Mutual Pharm. Co. v. Bartlett, 570 U.S. 472, 479-80 (2013), or by
posing an “obstacle to the accomplishment and execution of the full
purposes and objectives” of the federal law, see, e.g., Arizona v.
United States, 567 U.S. 387, 399-400 (2012) (citation omitted). In
doubtful cases, federal courts will apply a presumption against
federal preemption, especially when “the historic police powers of
the States” are involved. See, e.g., Wyeth v. Levine, 555 U.S. 555,
565 (2009).

The Federal Act contains an express preemption provision,
but it is limited in scope. The Act first provides that when a HUD
manufactured home standard exists in a particular area, conflicting
or additional state or local standards are displaced:

Whenever a Federal manufactured home
construction and safety standard established
under this chapter is in effect, no State or
political subdivision of a State shall have any
authority either to establish, or to continue in
effect, with respect to any manufactured home
covered, any standard regarding the
construction or safety applicable to the same
aspect of performance of such manufactured
home which is not identical to the Federal
manufactured home construction and safety
standard. Federal preemption under this
subsection shall be broadly and liberally
construed to ensure that disparate State or
local requirements or standards do not affect
the uniformity and comprehensiveness of the
standards promulgated under this section nor
the Federal superintendence of the
manufactured housing industry as established
by this chapter.

42 U.S.C. § 5403(d) (emphasis added). The statute thus suggests
that states and localities may enforce standards for manufactured
home construction and safety as long as they do not address an
“aspect of performance” that the HUD standards also address.
Section 5422(a) confirms that suggestion:
Nothing in this chapter shall prevent any State
agency or court from asserting jurisdiction
under State law over any manufactured home
construction or safety issue with respect to
82 [107 Op. Att’y

which no Federal manufactured home
construction and safety standard has been
established pursuant to the provisions of
section 5403 of this title.

42 U.S.C. § 5422(a). The reference to state agencies alongside
courts confirms Congress contemplated that not only state common
law and statutes but also state regulations could apply to
manufactured homes, provided they address an “issue” that federal
regulations do not address. See id.

The HUD standards are silent regarding fire sprinklers. It is
true that the standards do address fire safety generally. 24 C.F.R.
§§ 3280.201 to 3280.210. But HUD’s fire safety standards
primarily deal with the flammability of construction materials, see,
e.g., id. § 3280.203, and smoke alarms, id. § 3280.209. They do
not address fire suppressing or fire extinguishing systems, let alone
automatic fire sprinklers specifically. Thus, it appears that a state
or local sprinkler mandate for manufactured homes would not be
preempted under § 5403(d) and § 5422(a), because there is no
federal standard addressing that particular “aspect of performance”
of manufactured homes.

This conclusion accords with HUD’s consistent, albeit
informal, view. “When considering whether a federal statute
preempts state law, we may look to the pronouncements of the
federal agency that administers the statute for guidance.”
CallerID4u, Inc. v. MCI Commc’ns Servs. Inc., 880 F.3d 1048,
1061 (9th Cir. 2018) (citing Wyeth, 555 U.S. at 576-77). Here,
those pronouncements confirm that state sprinkler requirements are
not preempted. In 1992, for example, the HUD official in charge
of the agency’s manufactured housing program advised that a local
sprinkler mandate in Massachusetts was not preempted,
presumably because the HUD standards did not address sprinklers.
Letter from David C. Nimmer, Director, Office of Manufactured
Housing and Regulatory Functions, U.S. Dep’t of Hous. & Urb.
Dev., to Jerry C. Connors, President, Manufactured Housing Inst.
(Jan. 23, 1992) (included in bill file for H.B. 316, 1992 Leg., Reg.
Sess.). And an informal guidance document currently available on
HUD’s website states that “HUD has long held that state and local
sprinkler requirements are . . . not preempted by the general fire
safety standards.”5

U.S. Dep’t of Hous. & Urban Dev., FAQs: Manufactured Housing
5

Improvement Act of 2000, https://www.hud.gov/program_offices/
Gen. 74] 83

It might be argued that the phrase “aspect of performance”
should be read more expansively as referring to a broad category
of regulation, like fire safety. On that view, because the HUD
standards address some aspects of fire safety, state and local
regulation would be foreclosed as to all aspects of fire safety in
manufactured homes. But HUD has not construed the preemption
standard so broadly; instead, the agency’s view has been that “for
there to be Federal preemption, there must be a specific aspect of a
Federal performance standard which duplicates a local standard.”
Manufactured Housing Construction and Safety Standards: Notice
of Internal Guidance on Preemption, 62 Fed. Reg. 3456, 3458 (Jan.
23, 1997) (emphasis added).

Case law under a similar preemption provision in the National
Traffic and Motor Vehicle Safety Act of 1966, on which the HUD
statute’s preemption language appears to have been based, see Pub.
L. No. 89-563, 80 Stat. 718, § 103(d), also favors a narrower
reading. That motor vehicle statute requires that there be a federal
standard addressing the specific safety feature at issue before state
and local requirements will be preempted. See Chrysler Corp. v.
Rhodes, 416 F.2d 319, 325 (1st Cir. 1969), on pet. for reh’g
(interpreting “aspect of performance” as referring to “an item or
category of equipment”); Chrysler Corp. v. Tofany, 419 F.2d 499,
506 (2d Cir. 1969) (same); cf. Freightliner Corp. v. Myrick, 514
U.S. 280, 286-87 (1995) (holding that suspension of one specific
vehicle safety regulation eliminated express preemption on the
topic that regulation had addressed). Notably, Rhodes and Tofany
predate the enactment of the federal manufactured home statute in
1974, suggesting that Congress would have been aware of the
effect of language similar to the language that had been interpreted
in those cases. Under that understanding, then, because the HUD
standards do not address the specific issue of fire sprinklers, the
Federal Act would not expressly preempt a state or local fire
sprinkler mandate.

Nor does field preemption apply here. Congress’s inclusion
of an express preemption provision in a statute ordinarily implies
that there is no field preemption beyond the express preemption
provision’s scope, because the text of the preemption provision
indicates how far Congress wished preemption to extend. See
Myrick, 514 U.S. at 287-89; Sprietsma v. Mercury Marine, 537

housing/rmra/mhs/faqs72010 (last visited Feb. 25, 2022). The document
also references a 2010 proposal by HUD to adopt a voluntary sprinkler
standard that would only apply in jurisdictions that chose to mandate
sprinklers. See id. However, HUD did not ultimately adopt that
proposal, for reasons that are not clear. See 24 C.F.R. pt. 3280, subpt. C.
84 [107 Op. Att’y

U.S. 51, 69 (2002). But see National Fed’n of Blind v. United
Airlines, Inc., 813 F.3d 718, 732-33 (9th Cir. 2016) (holding that
field preemption could apply beyond express preemption in the
particular, heavily regulated area at issue, namely air travel). Here,
that inference is especially strong because Congress in § 5422(a)
expressly recognized the boundaries of the Federal Act’s
preemptive scope. See, e.g., Metrophones Telecomms., Inc. v.
Global Crossing Telecomms., Inc., 423 F.3d 1056, 1072 (9th Cir.
2005) (recognizing under another statutory scheme that “by
expressly limiting federal preemption to state requirements that are
inconsistent with the federal regulations, Congress signaled its
intent not to occupy the entire field” (emphasis omitted)). Courts
have thus held that the Federal Act does not preempt the entire field
of manufactured home construction and safety. See, e.g., In re
FEMA Trailer Formaldehyde Prods. Liab. Litig., 620 F. Supp. 2d
755, 762 (E.D. La. 2009) (so holding in the context of a common-
law tort claim); Harrison v. Skyline Corp., 686 S.E.2d 735, 742
(W.Va. 2009) (same).

Finally, conflict preemption would not defeat a sprinkler
mandate. Although the existence of an express preemption
provision “does not bar the ordinary working of conflict pre-
emption principles,” e.g., Hillman v. Maretta, 569 U.S. 483, 498
(2013) (citation and emphasis omitted), those ordinary principles
indicate that there is no preemption here, under either an
impossibility preemption or an obstacle preemption theory. As an
initial matter, there is no viable argument that it would be
impossible for a manufacturer to comply with both federal law and
a state or local sprinkler mandate, because nothing in the HUD
standards prohibits the installation of fire sprinklers in
manufactured homes. Turning to obstacle preemption, we
recognize that “Federal preemption under [§ 5403(d)] shall be
broadly and liberally construed” to protect the “uniformity and
comprehensiveness” of the HUD standards. 42 U.S.C. § 5403(d).
But § 5422(a)’s express recognition of state authority to regulate
manufactured home construction and safety in areas not subject to
federal standards undermines any claim that a state manufactured
home regulation on a single, limited issue like fire sprinklers could
be an obstacle to the fulfillment of congressional intent. There is
no indication of a congressional purpose to preclude a narrowly
focused state regulation in an area where HUD has been silent (and
acknowledged its silence). See Wyeth, 555 U.S. at 565 (“[T]he
purpose of Congress is the ultimate touchstone in every pre-
emption case.”). National uniformity is only one of the purposes
of the Federal Act; Congress also sought to promote safety and
prevent personal injuries and property damage in manufactured
Gen. 74] 85

homes. See 42 U.S.C. § 5401. Indeed, the Federal Act’s
preemption provisions seem to have been designed to balance
national uniformity with a continuing regulatory role for the states.
See id. §§ 5403(d), 5422(a). The presumption against federal
preemption in areas traditionally subject to state regulation—a
category that certainly includes building codes—strengthens the
conclusion that there is no preemption here. See Wyeth, 555 U.S.
at 565. We thus conclude that the Federal Act leaves state and local
governments free to mandate fire sprinklers in manufactured
homes within their jurisdictions.

B. State Law

We next consider whether State law has in fact mandated fire
sprinklers in manufactured homes in Maryland. In our view, the
answer is no. Although the Maryland Building Performance
Standards do require fire sprinklers in those one- and two-family
homes to which they apply, the General Assembly and the relevant
regulatory agencies did not intend the Standards to apply to HUD-
regulated manufactured homes.6

Given the absence of federal preemption, the General
Assembly could, if it chose, require fire sprinklers in manufactured
homes. Similarly, the Maryland Department of Labor could likely
impose such a requirement under the broad authority delegated by
PS § 12-305(d), which empowers DOL to “adopt regulations that
relate to issues of construction or safety of manufactured homes for
which a federal standard has not been established[.]”7 However,
no current Maryland statute or regulation expressly mandates fire
sprinklers in manufactured homes specifically.

6
You did not ask, and so we do not consider, whether State law would
preempt a local mandate requiring installation of fire sprinklers in
manufactured homes.
7
We recognize that DOL may not adopt regulations under PS
§ 12-305(d) in any area “reserved to a local government under [PS] § 12-
303.” PS § 12-305(d). PS § 12-303, in turn, reserves local government
authority to enact “uniform fire control regulations.” However, we have
construed the phrase “uniform fire control regulations,” in an opinion
dealing with modular homes, as preserving exclusive local authority only
over fire control regulations that do not directly address building design
and construction, such as subdivision density restrictions and rules for
placement of fire hydrants. 75 Opinions of the Attorney General 308,
314 (1990). Section 12-303 thus would not prevent DOL from adopting
a fire sprinkler mandate for manufactured homes.
86 [107 Op. Att’y

The Maryland Building Performance Standards—the
statewide building regulations maintained by DOL—do clearly
require fire sprinklers. Specifically, the MBPS regulations currently
incorporate the 2018 edition of the International Residential Code.
COMAR 09.12.51.04. The International Residential Code, in turn,
requires the installation of fire sprinklers in new one- and two-
family homes. Int’l Residential Code § R313.2 (2018).8 We thus
consider whether the MBPS requirements apply to manufactured
homes.

If one were to look just at the language of the MBPS statute
(and its implementing regulations) in isolation, that language could
well suggest that their requirements (including the fire sprinkler
mandate) apply to manufactured homes. Under that statute and
those regulations, the MBPS requirements apply to “each building
or structure in the State for which a building permit application is
received by a local jurisdiction[.]” PS § 12-503(c); accord COMAR
09.12.51.06A. The definitions of “building” and “structure” are
taken from the International Building Code, PS § 12-501(b), (i), and
would seem to include a manufactured home. See Int’l Building
Code § 202 (2018) (defining a “structure” as “[t]hat which is built
or constructed” and a “building” as “[a]ny structure utilized or
intended for supporting or sheltering any occupancy”). Maryland
law also requires local building permits for manufactured homes,
and federal law does not exempt manufactured homes from local
permit requirements. PS § 12-312(b)(6); COMAR 09.12.52.15G(3);
24 C.F.R. § 3285.901. If we were to read the MBPS statute in
isolation, then, the MBPS and its fire sprinkler mandate might well
8
It is not clear whether the IRC, taken by itself, applies to
manufactured homes. On the one hand, the IRC by its own terms applies
to the construction of all “detached one- and two-family dwellings and
townhouses” with limited exceptions not relevant here. Int’l Residential
Code § R101.2 (2018). The Code, in turn, defines “dwelling” as “[a]ny
building that contains one or two dwelling units” that are used, intended,
or designed to be occupied “for living purposes,” id. § R202, and defines
“dwelling unit” as “[a] single unit providing complete independent living
facilities for one or more persons,” id. These definitions appear broad
enough to include manufactured homes in the IRC’s scope. On the other
hand, Appendix E to the IRC specifically addresses “manufactured
housing used as dwellings,” but does not set any standards for the design
or construction of the movable portion of the home, deferring instead to
the HUD standards. See id. App’x E. This could imply that the IRC as
a whole is not intended to regulate manufactured home design and
construction. Because we conclude below that the General Assembly
and DOL did not intend the MBPS regulations to apply to manufactured
homes, we need not decide whether the IRC standing alone would apply
to them.
Gen. 74] 87

apply to manufactured homes, as they are “buildings”—structures
that are intended for occupancy—and local building permits must
be obtained in order to install them.

We do not interpret statutes in isolation, however. Instead,
we instead consider the entire statutory scheme, including other
statutes dealing with the same subject. See, e.g., 100 Opinions of
the Attorney General 85, 92-93 (2015). Here, that means we must
consider how a broad reading of PS § 12-503(c) would interact with
other laws governing manufactured homes. In considering the
logical result of such a reading, it is important to note that § 12-
503(c) provides for the application of the MBPS as a whole; it does
not differentiate among particular MBPS provisions. That means
that, if we were to read PS § 12-503(c) as covering manufactured
homes, it would follow that the entirety of the MBPS would apply
to manufactured homes, including the entire International
Residential Code. Under that reading, manufactured homes would
be presumptively subject not only to the IRC’s fire sprinkler
mandate but also to that Code’s provisions governing foundations,
floors and walls, plumbing, electrical systems, and many other
areas. See generally Int’l Residential Code (2018). Although the
Federal Act would preempt any requirement related to an “aspect
of performance” that the HUD standards also address, the IRC’s
comprehensive provisions would apply wherever the Federal Act is
silent. See 42 U.S.C. §§ 5403(d), 5422(a).

We doubt that the General Assembly, in enacting PS § 12-
503(c), intended that result. When the Legislature enacted the
MBPS statute, including § 12-503(c), in 1993, it was aware that a
detailed and complex construction and safety code—the HUD
standards—already existed for manufactured homes. See, e.g.,
Junek v. St. Mary’s County Dep’t of Soc. Servs., 464 Md. 350, 363
(2019) (explaining that the General Assembly is presumed to act
with knowledge of existing law). In fact, the General Assembly
itself had also already enacted separate legislation governing
manufactured homes years earlier, acknowledging the federal
requirements and delegating specific authority to the then-
Department of Economic and Community Development to
supplement the federal requirements by regulation, to the extent
necessary and permitted by federal preemption. 1976 Md. Laws,
ch. 422 (enacting Art. 41, § 266EE-7, now codified as amended at
PS §§ 12-305(d) and 12-312). A statewide code also already
88 [107 Op. Att’y

existed for modular homes. See 1971 Md. Laws, ch. 662 (enacting
Art. 41, § 266EE-3, now codified as amended at PS § 12-305).
The primary purpose behind the MBPS was instead to
establish a statewide building code for site-built buildings, which
were, at the time, governed by a patchwork of inconsistent local
building codes (and, in some jurisdictions, no building code at all).
See 1993 Md. Laws, ch. 200 (Preamble) (explaining that the
purpose of the MBPS was to replace the “nine different codes” for
site-built buildings enacted by “19 counties and 59 municipalities
in Maryland”); MBPS Report, supra, at 3 (same). Because
manufactured homes already had a statewide—indeed, a
nationwide—code (the HUD standards), we infer that the General
Assembly did not expect that the MBPS, a different but largely
overlapping statewide code, would apply to manufactured homes.
Although perhaps DOL could apply the MBPS to manufactured
homes under its regulatory authority (except to the extent
preempted by federal law), see PS § 12-305(d), we do not believe
that the General Assembly intended PS § 12-503(c), which does
not expressly address manufactured homes at all, to have that
effect.

Indeed, in line with that understanding, the General Assembly
has consistently maintained separate statutory and regulatory
schemes for site-built buildings, modular homes, and manufactured
homes. In 1971, when the General Assembly enacted the first State
statute governing manufactured homes and industrialized buildings
(before there was any federal law on the subject), the Legislature
mandated that the then-Department of Economic and Community
Development (“DECD”) adapt one of the national model building
codes for industrialized buildings but that it develop a separate set
of standards for manufactured homes. See 1971 Md. Laws, ch. 662
(enacting Art. 41, § 266EE-3). That distinction suggests a
legislative intent that manufactured homes should be subject to
separate rules developed specifically for them, as opposed to rules
primarily developed for other types of homes. The agency
complied and developed a separate set of regulations for
manufactured homes based on a different model code. See
Memorandum from Dep’t of Econ. & Cmty. Dev. to House Econ.
Matters Comm. on H.B. 724 (1976); 1971 Md. Laws, ch. 662
(enacting Art. 41, § 266EE-3). Another statute passed at the same
session in 1971 directed the agency to develop yet a third code: a
voluntary Model Performance Code for site-built buildings. 1971
Md. Laws, ch. 663 (enacting Art. 41, § 257-J, now codified as
amended at PS § 12-201). This code was to be consistent with the
rules for industrialized buildings but only “to the extent practicable.”
Gen. 74] 89

Id. Thus, the Legislature contemplated, and the appropriate agency
created, distinct regulatory codes for each of the three building
categories.

In 1976, following enactment of the federal manufactured
home statute, Pub. L. No. 93-383, tit. VI, 88 Stat. 633, 700 (1974),
the General Assembly deleted the State statute’s substantive
provisions for manufactured homes, and substituted provisions
authorizing the State to administer the Federal Act as HUD’s
delegate. 1976 Md. Laws, ch. 422. This was a further marker of
legislative intent that manufactured homes be subject to a separate
regulatory scheme—now primarily federal, with the possibility of
limited State-law supplementation. See PS §§ 12-305(d), 12-312.
When the General Assembly enacted the MBPS statute in 1993,
nothing in its text or legislative history suggested an intent to
change this established system and subject site-built homes and
manufactured homes to the same code for the first time, especially
given that manufactured homes were already subject to the HUD
standards. Modular homes, too, remained subject to their own
regulatory scheme, based on but distinct from the MBPS. See PS
§ 12-305; COMAR 09.12.52.07. To be sure, in 2012, the General
Assembly enacted a statute prohibiting local governments from
weakening the MBPS fire sprinkler requirements for those one- and
two-family homes that were subject to the MBPS. 2012 Md. Laws,
chs. 265, 266 (enacting PS § 12-504(a)(1)(iii)). But that enactment
did not purport to extend the MBPS—i.e., to apply the fire sprinkler
mandate to manufactured homes for the first time—only to protect
the MBPS provisions’ existing application from local interference.
The State Fire Marshal, testifying in support of the 2012
legislation, did state that he believed, as a matter of policy, that a
fire-sprinkler mandate should apply to all types of homes including
manufactured homes. See Hearing on S.B. 602 Before the Senate
Educ., Health & Env’tl Affairs Comm., 2012 Leg., Reg. Sess. (Mar.
6, 2012) (statement of the State Fire Marshal); Hearing on H.B.
366 Before the House Env’tl Matters Comm., 2012 Leg., Reg. Sess.
(Feb. 16, 2012) (statement of the State Fire Marshal). But there is
no indication that he thought § 12-504(a)(1)(iii) would have that
effect or, even if he did, that the General Assembly agreed.

Our prior opinion on a similar issue also supports the
conclusion that the General Assembly did not intend to apply the
MBPS to manufactured homes by implication in PS § 12-503(c).
Shortly after the General Assembly first enacted legislation
governing “industrialized buildings” (a category that includes
modular homes but not manufactured homes), we opined that the
State Plumbing Regulations issued by the then-Department of
90 [107 Op. Att’y

Licensing and Regulation did not apply to industrialized buildings,
and that only the construction code adopted by DECD specifically
for industrialized buildings governed plumbing requirements for
those buildings. 58 Opinions of the Attorney General 240, 245
(1973). We reasoned there that the General Assembly did not
intend industrialized buildings to be subject to two sets of partially
overlapping State-enacted plumbing regulations. See id. at 242-44.
The same rationale should apply here: because the General
Assembly in 1993 understood that manufactured homes were
already subject to their own pre-existing statutory and regulatory
building code, mostly flowing from the HUD standards, it is
unlikely that there was an intent to also subject them to a second,
overlapping building code, the MBPS.

An interpretation that would purport to impose the entire
MBPS on manufactured homes could also raise obstacle
preemption concerns under the Federal Act, even if its application
were limited to areas where the Federal Act is silent. While
Congress clearly contemplated that a state or local government
could impose individual, specific requirements on manufactured
homes, see 42 U.S.C. § 5422(a), there would at least be a question
as to whether Congress expected a state to be able to impose a
complete, largely overlapping building code, designed for site-built
homes, onto HUD-regulated manufactured homes as well. See
Scurlock v. City of Lynn Haven, 858 F.2d 1521, 1525 (11th Cir.
1988) (holding that city could not use zoning ordinance to require
manufactured homes to comply with a standardized building code
other than the HUD standards); Colorado Mfr’d Hous. Ass’n v.
Board of County Comm’rs, 946 F. Supp. 1539, 1552-53 (D. Colo.
1996) (same). That approach by a state would work a much greater
interference with the administration and national uniformity of the
HUD standards than would a standalone fire sprinkler requirement.
See 42 U.S.C. §§ 5401, 5403(d). Although we do not resolve that
preemption question here, these potential preemption concerns lead
us to favor a reading of PS § 12-503(c) that does not purport to
apply the full set of MBPS provisions to manufactured homes,
especially in the absence of any clear legislative intent to do so.
See, e.g., Bank of Am. v. Stine, 379 Md. 76, 90 (2003) (State statutes
should be construed to avoid federal preemption concerns where
possible).

DOL’s regulations for manufactured and modular buildings
also align with this conclusion. Those regulations are found in a
separate chapter from the MBPS regulations, see COMAR
09.12.52, a further indication that non-site-built homes are not
subject to the MBPS. The scope provision in these regulations
Gen. 74] 91

explains that the HUD standards generally supersede the State’s
regulation of manufactured homes and notes only one express
exception where the agency’s regulations do in fact cover
manufactured homes, namely, COMAR 09.12.52.15. See COMAR
09.12.52.01B. COMAR 09.12.52.15, in turn, imposes only limited
requirements on manufactured homes, relating to auxiliary issues
such as manufactured home installation and local code enforcement,
declaring that the Federal Act otherwise gives HUD “complete
jurisdiction over the design and construction of manufactured
homes” and “supersedes all state laws on this subject.” And
nowhere in these regulations governing manufactured homes is
there any suggestion that the provisions in the separate MBPS
regulations apply. These regulations thus signify a regulatory
intent that manufactured home construction and safety be governed
by federal law.

Finally, the relevant State agencies’ interpretation of the
governing statutes and regulations as not requiring fire sprinklers
in manufactured homes should resolve any remaining doubts. An
agency’s interpretation of the statute it administers is ordinarily
entitled to deference, as is an agency’s interpretation of its own
regulations. See, e.g., Kor-Ko Ltd. v. Maryland Dep’t of Env’t, 451
Md. 401, 412 (2017). DHCD had, until recently, authority to
regulate manufactured home construction and safety, see PS § 12-
305(d), and the State Fire Marshal has authority to enforce the
State’s fire sprinkler mandate, see PS § 6-305(a)(3). Both of these
agencies have opined that State law does not require fire sprinklers in
manufactured homes. See Wang Memorandum, supra; Fire Marshal
Memorandum, supra. Specifically, both have taken the view that the
only State regulation applicable to manufactured home construction
and safety is COMAR 09.12.52.15, which does not contain a
sprinkler mandate. See Wang Memorandum, supra, at 1; Fire
Marshal Memorandum, supra, at 1. Nor has DOL adopted a
different position since inheriting DHCD’s former authority over
manufactured homes. Deference to the agencies’ expertise further
bolsters the conclusion that manufactured homes are not subject to
the sprinkler mandate.

III
Conclusion

In sum, federal law would not preempt a State requirement
that manufactured homes be equipped with fire sprinklers. But
although the Maryland Building Performance Standards,
incorporating the International Residential Code, do require fire
sprinklers in “site-built” one- and two-family homes (and separate
92 [107 Op. Att’y

regulations require fire sprinklers in one- and two-family modular
homes), the General Assembly did not intend the Maryland
Building Performance Standards to apply to manufactured homes,
which have been subject to their own regulatory regime—the HUD
standards—since long before the General Assembly established the
MBPS. Thus, State law does not currently require fire sprinklers
in manufactured homes.

Brian E. Frosh
Attorney General of Maryland

Thomas S. Chapman
Assistant Attorney General

Patrick B. Hughes
Chief Counsel, Opinions and Advice