STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5545

August 1, 1979

SOCIAL SERVICES, DEPARTMENT OF:

Adult foster care facilities

ADULT FOSTER CARE FACILITIES:

Right of private person to inspect

TRESPASS:

Criminal and civil remedies

A resident of an adult foster care facility has the right, as a tenant, to have visitors and guests.

A private person may visit public areas of a private adult foster care facility.

A private person who is denied access to private portions of adult foster care facilities and remains on such permises contrary to the direction of the owner or his or her agent may commit a trespass actionable under criminal and civil law.

Private persons may visit public adult foster care facilities subject to regulations of the state.

Honorable Claude A. Trim

State Representative

The Capitol

Lansing, Michigan 48909

You have asked for my opinion on the following three questions:

Before responding to your questions, it must first be noted that any right that the owner or management of a private foster care facility may have to exclude persons who visit it to observe whether proper care is being provided does not extend to the guests or invitees of, or persons conducting lawful business with, the residents of the facility. In that regard, residents of such a facility have the same rights as tenants. See, OAG, 1971-1972, No 4727, p 32 (April 13, 1971).

Turning now to your first question, it must first be stated that a private citizen has no specific statutory authority to carry out an inspection at an adult foster care facility. Moreover, a private individual's right to enter an adult foster care facility is governed solely by the general principles of law applicable to an individual who seeks to enter another's property.

The common law provides that a trepass is an 'unauthorized' intrusion upon the private premises of another'. Giddings v Rogalewski, 192 Mich 319, 326; 158 NW 951 (1916). Inasmuch as the adult foster care facilities to which you refer are private premises, the permission of the owner or his or her authorized agent would be required to avoid the commission of a civil trespass by the unannounced entry upon such facilities by such persons. On the other hand, the law regarding trespass provides that as to those areas of private property which are generally open to the public, it is presumed that the owner has given all who wish to do so permission to enter. Weber v Barry, 66 Mich 127; 33 NW 289 (1887).

Thus, the law regarding trespass would permit a visitor to an adult foster care facility to enter the lobby or any other portion of the facility open to the general public. ⁽¹⁾ However, that general right to entry may be revoked as to all persons. For an individual to remain on the premises after revocation of that general permission has occurred would also constitute a trespass.

It should be further noted that trespass is actionable in both criminal and civil law. Pursuant to 1931 PA 328, Sec. 552; MCLA 750.552; MSA 28.820(1):

Thus, in answer to your first question, although a person without official status may visit an adult foster care facility to observe whether proper care is being given to its residents, the right to do so is limited to the entry to those areas of the adult foster care facility which are open to the general public. Such a person may go no further without the permission of the owner of the facility or his agent.

If the owner or agent refuses to grant permission to the visitor to go beyond the areas open to the general public and the person wishing to visit those areas does so without permission, that entry may be held by a court to constitute a trespass actionable both by civil and criminal proceedings. In addition, if the person making the visit is requested to leave even the areas open to the general public, failure to leave those areas may be found by a court to constitute a trespass.

As to your second question, the Michigan Supreme Court has quoted with approval from Adderley v Florida, 385 US 39, 47; 87 S Ct 242; 17 L Ed 2d 149 (1966), the statement from the opinion of the majority of the Court that '[t]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.' People v Harrison, 383 Mich 585, 592; 178 NW2d 650, 652 (1970). Thus, although permission to enter public places is generally presumed, the State may reasonably regulate such entry where the regulation is necessary to assure that a public facility will fulfill the purposes for which it was intended. Obviously, with respect to a public adult foster care facility, it would be reasonable to regulate visits to the facility where necessary to protect the privacy of the residents for whom the facility is a home.

Further, it is clear that criminal trespass charges, pursuant to MCLA 750.552; MSA 28.820(1), may also be brought with respect to public facilities. People v Priscilla Johnson, 16 Mich App 745, 748; 168 NW2d 913 (1969). See also, OAG, 1975-1976, No 5039, p 618 (September 23, 1976). Thus, the principles discussed in response to your first question would also generally apply to your second question. ⁽²⁾

It is my opinion, therefore, that a person may visit public facilities providing adult foster care services, if any, subject to regulations of the state.

As to your third question, since the law of trespass is unrelated to the source of funding of a private adult foster care facility, the fact of state funding of the facility has no impact upon the answer to Question 1.

Frank J. Kelley