The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5424 January 19, 1979 ARCHITECTS: Requirement of seal on plans for licensed adult foster care and child foster care facilities ENGINEERS: Requirement of seal on plans for licensed adult foster care and child foster care facilities DEPARTMENT OF SOCIAL SERVICES: Requirement of seal of architects and engineers on plans for licensed adult foster and child foster care facilities ADULT FOSTER CARE FACILITY: Requirement of seal of architects and engineers on plans for licensed adult foster and child foster care facilities CHILD FOSTER CARE FACILITY: Requirement of seal of architects and engineers on plans for licensed adult foster and child foster care facilities WORDS AND PHRASES: 'public works'; 'engage in' Where an adult foster care facility or a child foster care facility is constructed solely by persons in the private sector, it is not a 'public work' and 1937 PA 240, Sec. 18, does not require an architect or engineer seal on such projects. Conversely, where an adult foster care facility or a child foster care facility is operated, constructed by or at the direction of the state, it is a 'public work' within the meaning of 1937 PA 240, Sec. 18, and the Department of Social Services must comply with the requirements thereof. Adult foster care facilities and child foster care facilities are residential buildings and therefore plans and specifications for their construction need not be prepared by a registered architect or a registered professional engineer under seal unless the facility contains more than 3500 square feet of calculated floor area. Mr. John T. Dempsey Director Department of Social Services 300 South Capitol Avenue Lansing Michigan 48926 You have requested my opinion on the following questions: (1) 1. Are licensed adult foster care and child foster care facilities 'public works' within the meaning of 1937 PA 240, Sec. 18; MCLA 338.568; MSA 18.84(18)? 2. Does 1937 PA 240; MCLA 338.551 et seq; MSA 18.84(1) et seq, require preparation of plans and specifications for Department of Social Services licensed or approved facilities to bear the seal, even if the facility is not defined as a public work, if the building or modification costs more than $5,000.00 or the building contains more than 3,500 square feet of calculated floor area? With respect to your first question, 1937 PA 240, Sec. 18, supra, provides: 'It is unlawful for this state, or for any of its political subdivisions, or any county, city, town, township, village or school district to engage in the construction of any public work involving architecture or professional engineering, unless the plans and specifications and estimates have been prepared by, and the construction executed under the direct supervision of, a registered architect or a registered professional engineer, and unless any survey of land on which any such public work has been or is to be constructed shall be made under the supervision of a registered land surveyor. However, nothing in this section shall be held to apply to any public work wherein the contemplated expenditure for the completed project does not exceed $5,000.00.' (emphasis added) A 'public work' is defined in OAG, 1939-1940, p 358, 359 (December 15, 1939). In that opinion, a definition of public work as contained in 50 Corpus Juris 867 was referred to, which states as follows: "A work in which the state is interested; every species and character of work done for the public, and for which the taxpaying citizens are liable; work by or for the state and by or for a municipal corporation and contractors therewith." 1937 PA 240, Sec. 18, supra, further states that the state or a political subdivision thereof must 'engage in' the construction. The phrase 'engage in' has been defined in the case of Massachusetts Protective Association, Inc v Lewis, 72 F2d 952, 956 (CA 3, 1934), as follows: '. . . 'to take a part; to devote attention and effort; to employ one's self; to enlist; to carry on; to conduct . . .' (citations omitted)' Thus, the phrase 'engage in' indicates legislative intent that the state or its political subdivision carry on the construction itself or employ the services of another to do so for its benefit. The vast majority of the facilities you made reference to in your letter are not operated by the Department of Social Services; they are privately owned, constructed and operated. They are facilities that are constructed solely by the private sector and therefore do not fall within the definition of a 'public work'; and 1937 PA 240, Sec. 18, supra, does not require an arhcitect's or engineer's seal on such projects. All the other adult and child foster care facilities operated, constructed by or at the direction of the state are public works within the meaning of 1937 PA 240, Sec. 18, supra. Therefore, the Department of Social Services must comply with the requirements of 1937 PA 240, Sec. 18, supra, when the contemplated expenditure for the completed project exceeds $5,000.00 Your second question asks if 1937 PA 240, supra, requires preparation of plans and specifications for Department of Social Services licensed or approved facilities to bear the seal of a registered architect or professional engineer, although not a public work, if the building or modifications cost more than $5,000.00 or the building contains more than 3,500 square feet of calculated floor area. 1937 PA 240, supra, Sec. 22(4), provides: 'A person shall not submit to any public official of this state or any political subdivision thereof for approval, a permit or for filing as a public record a plan, specification, report or land survey which does not bear 1 or more seals of a registered architect, registered professional engineer, or registered land surveyor as required by this act, except for public works costing less than $5,000.00 or residential buildings containing not more than 3,500 square feet of calculated floor area.' Thus, 1937 PA 240, Sec. 22(4), supra, establishes two exceptions to the general requirement that all plans and specifications submitted for approval to a public official must bear the seal of a registered architect or professional engineer. The exceptions deal with public works and residential buildings. The exception as to public works is limited in that it applies only to public works costing less than $5,000.00. Therefore, if the project fits within the aforementioned definition of a public work and costs less than $5,000, the plans and specifications need not be sealed to comply with 1937 PA 240, supra. However, if the project falls within the definition of a public work and its cost is $5,000.00 or more, the plans or specifications must bear the seal of a registered architect or a registered professional engineer. The other exception under this section deals with residential buildings containing not more than 3,500 square feet of calculated floor area. Webster's Third New International Dictionary defines 'residential' as: 'Used, serving, or designed as a residence or for occupation by residents [a-hotel].' Webster defines a 'residence' as: 'the place where one actually lives or has his home.' 1937 PA 240, Sec. 22(4), supra, uses the phrase 'residential building,' which connotes a broad rather than restrictive meaning. There is no restriction as to the number of persons residing in the residential building nor is there a restriction regarding the relationship of those so residing. In Tillotson v Gregory, 151 Mich 128, 133; 114 NW 1025, 1027 (1908), the court was confronted with a situation whereby the defendant attempted to construct a four-family flat. The deed conveying the property to the defendant indicated that the property was to be used for residential purposes only. Some of the surrounding land owners sought an injunction based upon their contention that the proposed use was commercial rather than residential in nature. The court said in finding for the defendant: '. . . There is no specific restriction in any deed that but one family shall occupy each house.' The facilities utilized for child foster care residences fall within two categories; the family home, which may contain between one and four children [MCLA 722.111(1)(e)(i)]; and the group home, which shall contain five or six children [MCLA 722.111(1)(e)(ii)]. The rules regulating the child foster care facilities seek to establish a relationship that is as close to a family relationship as is possible. 1962 AACS, R 400.193(18) indicates that the foster family shall be composed of a father and a mother. 1962 AACS, R 400.193(19) indicates that the foster parents are to care for the children and understand their needs. It is my opinion that the child foster care homes fall within the definition of a residential building. It is clear that the facilities in both categories are being used as a place for the children to live. The rules covering the adult foster care facilities establish three different categories. The family home is defined in 1975 AACS, R 400.2103(3) and consists of six adults or less; 1975 AACS, R 400.2103(5) defines the group home, which consists of seven through twenty adults; and the congregate facility is defined in 1975 AACS, R 400.2102(5) and will house over twenty persons. There is no need to determine whether or not a congregate facility falls within the definition of a residential building, thereby qualifying the licensee for an exemption to providing sealed plans and specifications, since 1975 AACS, R 400.2503(3) requires all plans and specifications for such facilities to be prepared by a registered architect or engineer: 'A complete set of plans and specifications prepared by a registered architect or engineer, for any proposed congregate facility building, addition, remodeling or alteration to an existing congregate facility shall be submitted to the appropriate inspecting authority. If the plans and specifications conform with these rules and permission has been completed and before occupancy, the owner shall notify the appropriate inspecting authority and an inspection shall be made to determine if these rules have received compliance. If the construction has been found to be in compliance with the rules, approval for the use and occupancy of the building or addition shall be given.' It is therefore my opinion that the 'family home' and the 'group home' both fall within the definition of a residential building and if the facility contains more than 3,500 square feet of calculated floor area, the plans and specifications must be prepared by a registered architect or a registered professional engineer under seal. Frank J. Kelley Attorney General (1)