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. 5130 April 15, 1977 CONSTRUCTION CODE ACT: Attempt of Construction Code Commission to delegate its responsibility to a county. ADMINISTRATIVE LAW AND PROCEDURE: Attempt of Construction Code Commission to delegate its responsibility to a county. COUNTIES: Attempt of Construction Code Commission to delegate its responsibility to a county. The state construction code commission has the duty of determining whether a municipality that has exempted itself from the act and the code by enacting its own code is failing to enforce its local code. The commission may not delegate this duty to the counties. Honorable Harry Gast, Jr. Honorable Ray C. Mittan Honorable Dennis O. Cawthorne Honorable Bela E. Kennedy State Representatives The Capitol Lansing, Michigan 48901 You have requested my opinion with respect to two questions which have arisen concerning the State Construction Code Act, 1972 PA 230; MCLA 125.1501 et seq; MSA 5.2949(1) et seq, hereinafter the Act. Specifically you have asked: '(1) Does the State Construction Code Act of 1972 empower the county to act as the state construction code regulatory agency when local units elect to administer and enforce the Michigan Construction Code? '(2) Does the State Construction Code Act of 1972 empower the county to act as the state construction code regulatory agency when local units elect to exempt themselves from the act?' Section 9 provides in part: '(1) Except as otherwise provided in this section, a county is responsible for administration and enforcement of this act and the code throughout the county. A city or village may by ordinance assume responsibility for administration and enforcement of this act in the city or village. A township may by ordinance assume responsibility for administration and enforcement of this act throughout the township except in cities or villages. Unless otherwise provided by local law or ordinance, the legislative body of a county, city, village or township responsible for administration and enforcement of this act shall designate an enforcing agency that shall discharge the responsibilities of the county, city, village or township under this act. Counties, cities, villages or townships may provide by agreement for joint enforcement of this act. Subject to the other provisions of this act, an enforcing agency may be any official or agent of a county, city, village or township. . . . '(2) Notwithstanding subsection (1), when the commission, after a public hearing and a vote of a majority of the commission, determines that a city, village or township responsible for the administration and enforcement of the code is failing to fulfill its responsibilities with respect to administration and enforcement of the code, the county in which the city, village or township is located shall be responsible for the administration and enforcement. When the commission, after a public hearing and a vote of a majority of the commission, determines that a county responsible for the administration and enforcement of the code is failing to fulfill its responsibilities with respect to administration and enforcement, the executive director of the commission shall be responsible for administration and enforcement, as appropriate, within that county.' Pertinent to your inquiry is R 408.30113 (1) which provides: 'Each county governing body shall be responsible for the administration and enforcement of these rules and shall make certain that municipalities that exempt themselves from the act and code are properly administering and enforcing their codes selected and adopted through passage of an ordinance. The county shall advise the commission concerning the agency it shall designate to carry out these duties.' It will be noted that the Act contains a procedure for determining that a municipality, which has elected to assume responsibilities for administration, is not properly administering and enforcing its own code and a procedure for transferring this responsibility to the county in the event that a municipality is failing to properly administer and enforce its own code. The procedure provided is that the Commission, after public hearing and majority vote, may determine that a municipality is failing to fulfill its administrative and enforcement responsibilities. Thus, your questions concerning the authority of the Construction Code Commission to delegate to and empower a county to monitor the administration and enforcement of codes adopted by municipalities which have elected to be exempt from the act and the code. Accordingly, in response to both of your questions, it is my opinion that subsections 9(1) and (2) of the act, supra, contain the exclusive procedures by which the administration and enforcement of the act and the code may be assumed; moreover, these provisions provide for the exclusive prerequisites by which responsibility may be returned to the county. Rule 408.30113, supra, was obviously adopted by the commission to assist it in providing a method for determining whether local administration and enforcement of the local codes are adequate. However, the commission has no authority to impose this responsibility upon the county since the act reposes the responsibility in the commission. I recognize that the legislature, by adoption of the Act, intended to provide for modern, uniform construction codes throughout the State and to place principal responsibility for insuring administration and enforcement of the Act and the code, including locally-adopted codes, upon the commission. (2) I also recognize that the legislative intent would be frustrated if a municipality that exempted itself from the Act and the code by enacting its own code failed to properly enforce it. However, although the Act provides that a county is responsible for the administration and enforcement of the Act and code throughout the county, except where a municipality elects to administer and enforce the Act and code, there is no legislative provision imposing upon the county the duty to monitor administration and enforcement of municipally-adopted codes. It is, therefore, my opinion that, in the absence of express statutory authority, the commission may not promulgate a rule imposing this responsibility upon a county. Therefore, the commission, not the county, has the authority and the duty to monitor and compel enforcement of local construction codes adopted by municipalities which have exempted themselves from the Act. Frank J. Kelley Attorney General (1)
(2)
Indeed, the House of Representatives rejected by vote of 36 ayes to 66 nays an amendment which would have vested responsibility in the municipality to enforce its own code, the state code and the provisions of the act. 3 House Journal 1971, pp 3602-3603.