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. 6671

December 20, 1990

ADULT FOSTER CARE FACILITIES:

Application of barrier free design act to small group homes for twelve residents

BARRIER FREE DESIGN:

Application of barrier free design act to adult foster care small group homes for twelve residents

An adult foster care small group home, to be constructed for twelve residents, is not exempt from the requirements of the barrier free design act.

Honorable Gary L. Randall

State Representative

The Capitol

Lansing, Michigan 48909

You have requested my opinion whether an adult foster care small group home, to be constructed to house twelve residents, is exempt from the requirements of the barrier free design act.

1966 PA 1, commonly known as the barrier free design act, MCL 125.1351 et seq; MSA 3.447(121) et seq, requires that, with certain exceptions, any "public facility" or "facility used by the public" must be constructed so as to permit access by physically limited persons. The requirements of the Act apply to all new construction of such facilities as well as to those existing facilities which undergo a "change in use group or occupancy load, or an alteration other than ordinary maintenance ...." MCL 125.1352(1) and (2); MSA 3.447(122)(1) and (2). Section 1(d) of the Act, MCL 125.1351(d); MSA 3.447(121)(d), provides:

" 'Facility used by the public' means a building, structure, or improved area utilized for purposes of education, employment, housing other than a privately owned 1 or 2 family dwelling, transportation, or recreation and for the purchase, rental, or acquisition of goods or services. ..." (Emphasis added.)

It is necessary, therefore, to consider whether an adult foster care small group home for twelve residents may be considered to be a "1 or 2 family dwelling" which is exempt from the requirements of the barrier free design act.

Section 3, subsections (5) and (7) of the Adult Foster Care Facility Licensing Act, MCL 400.703(5) and (7); MSA 16.610(53)(5) and (7), provide:

"(5) 'Adult foster care family home' means a private residence with the approved capacity to receive 6 or fewer adults to be provided with foster care for 5 or more days a week and for 2 or more consecutive weeks. ...

 

"(7) 'Adult foster care small group home' means an adult foster care facility with the approved capacity to receive 12 or fewer adults who shall be provided foster care." (Emphasis added.)

Thus, the Legislature has defined an adult foster care home for six or fewer adults as a "private residence" and has denominated such a home as a "family home." This definition rather clearly suggests that such a home for six or fewer adults does qualify as a "1 or 2 family dwelling" exempt from the barrier free design act. See, e.g., City of Livonia v DSS, 423 Mich 466, 527; 378 NW2d 402 (1985), where the Court held, inter alia, that a foster care facility licensed to care for six or less persons "is being occupied by a single family and is being used for residential purposes ...." In contrast, the Legislature has defined an adult foster care home for twelve residents as a "facility" rather than as a "residence" and, further, has denominated such a home as a "small group home" rather than as a "family home." The significant differences in the definitions of these two terms rather clearly indicate the Legislature's intent to differentiate between homes for six or fewer adults and facilities for twelve or fewer adults.

A similar legislative intent is apparent in a related provision set forth in the city and village zoning act, MCL 125.581 et seq; MSA 5.2931 et seq. Section 3b(2) of that Act, MCL 125.583b(2); MSA 5.2933(2)(2), provides that state licensed residential facilities caring for six or less persons shall be considered a permitted use in residential areas zoned for "single family dwellings ...." See, City of Livonia, supra. No similar exemption from local zoning laws has been provided for larger residential facilities designed to house more than six residents.

In light of these authorities, it must be concluded that an adult foster care small group home to be constructed to house twelve residents is not a "1 or 2 family dwelling" for purposes of exemption from the barrier free design act.

Your letter also asks whether the barrier free design act could be characterized as a local regulation that is superseded by section 33 of the Adult Foster Care Facility Licensing Act (AFCFLA), MCL 400.733; MSA 16.610(83). That section provides:

"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."

The barrier free design act, however, is simply not a local ordinance or regulation. To the contrary, it is a state statute enacted by the Legislature. It is significant, moreover, that while section 8 of the State Construction Code Act of 1972, MCL 125.1508; MSA 5.2949(8), allows local governmental units to exempt themselves from certain of the provisions of that Code, it explicitly prohibits a local unit of government from exempting itself from or modifying the requirements of the barrier free design act, which "shall be effective throughout the state." See, MCL 125.1508(10); MSA 5.2949(8)(10). Thus, while a local unit of government may assume responsibility for enforcing the State Construction Code, MCL 125.1509(1); MSA 5.2949(9)(1), the barrier free design act is to remain uniformly applicable throughout the State.

It is my opinion, therefore, that an adult foster care small group home, to be constructed for twelve residents, is not exempt from the requirements of the barrier free design act.

Frank J. Kelley

Attorney General