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. 6644 June 15, 1990 ADULT FOSTER CARE FACILITIES: Inspection by local fire marshal FIREMEN AND FIRE DEPARTMENTS: Inspection of adult foster care facilities by local fire marshals A local fire marshal may not inspect an adult foster care facility unless the local fire marshal is employed by a city with a population of not less than 1,000,000 and the State Fire Marshal has contracted with the local fire marshal for such inspections. Honorable Burton Leland State Representative The Capitol Lansing, MI You have requested my opinion on the following question relating to fire inspections of adult foster care facilities: Do Sections 11 and 33 of the Adult Foster Care Facility Licensing Act, P.A. 218 of 1979, allow a local fire marshal such as the City of Detroit to inspect an adult foster care facility if the State of Michigan through the state fire marshal's office already inspects the adult foster care facility and there are no contracts with the local fire marshal for an inspection? The licensing and regulation of adult foster care facilities is the responsibility of the Michigan Department of Social Services and is governed by the provisions of The Adult Foster Care Facility Licensing Act, 1979 PA 218 as amended; MCL 400.701 et seq; MSA 16.610(51) et seq. Section 9(1) of the Act, MCL 400.709(1); MSA 16.610(59)(1), provides: The department shall administer this act and shall require reports, establish procedures, make inspections, and conduct investigations pursuant to law to enforce the requirements of this act and the rules promulgated under this act. Under the Act, the responsibility for the promulgation of fire prevention and safety rules applying to adult foster care facilities is to be a cooperative undertaking of the Department of Social Services and the state fire safety board as set forth in section 10 of the Act, MCL 400.710; MSA 16.610(60), which provides in pertinent part: (1) The department shall promulgate rules pursuant to the administrative procedures act of 1969, Act No. 306 of the Public Acts of 1969, as amended, being sections 24.201 to 24.328 of the Michigan Compiled Laws in the areas provided under subsection (4). (2) The state fire safety board created under the fire prevention code, Act No. 207 of the Public Acts of 1941, as amended, being sections 29.1 to 29.33 of the Michigan Compiled Laws, shall promulgate rules providing for adequate fire prevention and safety in an adult foster care facility licensed or proposed to be licensed for more than 6 adults. The rules shall be promulgated in cooperation with the department and shall provide for the protection of the health, safety, and welfare of the adults residing in a facility.... (4) The rules promulgated by the department under this act shall be restricted to the following: (a) The operation and conduct of adult foster care facilities. ... (e) The appropriateness, safety, cleanliness, and general adequacy of the premises, including maintenance of adequate health standards to provide for the physical comfort, care, protection, and well-being of the adults received and maintenance of adequate fire protection for adult foster care facilities licensed to receive 6 or fewer adults. Rules promulgated in the areas provided by this subdivision shall be promulgated in cooperation with the state fire safety board. The responsibility for fire safety inspection is expressly reserved to the Department and the Fire Marshal Division of the Department of State Police or their designated agents. MCL 400.711; MSA 16.610(61) provides: (1) The director, the director's agent, or personnel of another department or agency, acting at the request of the director, may enter upon the premises of an applicant or licensee at a reasonable time to make inspections, as permitted by applicable law, to determine whether the applicant or licensee is complying with this act and the rules promulgated under this act. ... (2) The department of public health, the fire marshal division of the department of state police, or local authorities, in carrying out this act, may visit an adult foster care facility more often than annually to advise in matters affecting health or fire protection. Inspections shall be made as permitted by law. (3) An adult foster care facility shall be inspected for fire safety by 1 of the following: (a) Department staff, if the facility is licensed or proposed to be licensed for 6 or fewer adults. The department may request that a fire safety inspection be completed or caused to be completed by the state fire marshal, for a facility licensed or proposed to be licensed for 6 or fewer adults, when such an inspection would result in the efficient administration of this act. (b) The state fire marshal or the designated representative of the state fire marshal, if the facility is licensed or proposed to be licensed for more than 6 adults. The state fire marshal shall inspect or cause to be inspected for fire safety an adult foster care facility licensed or proposed to be licensed for 6 or fewer adults upon request by the department. The state fire marshal may contract with the fire marshal of a city having a population of not less than 1,000,000 to inspect adult foster care facilities licensed or proposed to be licensed for more than 6 adults if the facility is located within that city. The fire marshal of a city shall conduct an inspection in compliance with procedures established and on forms provided by the state fire marshal. (4) Except as provided in subsection (3)(b) and section 10(2), the inspector shall administer and enforce the rules promulgated by the department. [Emphasis added.] Section 33 of the Act, MCL 400.733; MSA 16.610(83), contains language expressly exempting adult foster care facilities from all but very limited local government regulation: This act supersedes all local regulations applicable specifically to adult foster care facilities. Local ordinances, regulations, or construction codes regulating institutions shall not be applied to adult foster care large group homes, adult foster care small group homes, or adult foster care family homes. This section shall not be construed to exempt adult foster care facilities from local construction codes which are applicable to private residences. OAG, 1977-78, No 5365, p 594 (August 28, 1978), concluded that local governmental units were expressly precluded from playing a role in the licensing or supervision of adult foster care facilities by 1972 PA 287, the predecessor to the present Act. This conclusion was based upon the doctrine of state preemption of local ordinances as elucidated in People v Llewellyn, 401 Mich 314, 325; 257 NW2d 902 (1977). The Llewellyn court concluded that: [W]here ... the nature of the subject matter regulated called for a uniform state regulatory scheme, supplementary local regulation has been held preempted. ... Section 33 of the Adult Foster Care Licensing Act evidences the intent of the Legislature that local authority over adult foster care facilities be preempted by 1979 PA 218 just as it was preempted in the predecessor act in all but a few instances not at issue here. In Brandon Township v North-Oakland Residential Services, Inc., 110 Mich App 300, 307; 312 NW2d 238 (1981), the Court of Appeals stated that section 33 was "intended by the Legislature to act as notice of state preemption in the field of adult foster care facilities."' It is clear that the Legislature intended that fire inspections of adult foster care facilities be undertaken by either the Department of Social Services or the State Fire Marshal Division of the Department of State Police. The only time that a fire marshal of a city may undertake such an inspection is when the State Fire Marshal contracts for such inspections with the fire marshal of a city with a population of not less than 1,000,000. It is my opinion, therefore, that a local fire marshal may not inspect an adult foster care facility unless the local fire marshal is employed by a city with a population of not less than 1,000,000 and the State Fire Marshal has contracted with the local fire marshal for such inspections. Frank J. Kelley Attorney General