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. 6778

December 2, 1993

STATE CONSTRUCTION CODE ACT:

Application of the State Construction Code Act and the State Construction Code to licensed adult foster care homes

ADULT FOSTER CARE FACILITY LICENSING ACT:

Application of the State Construction Code Act and the State Construction Code to licensed adult foster care homes

Adult foster care group homes, licensed to care for 7 to 20 adults, are subject to the State Construction Code, whether enforced by a local unit of government or the Michigan Department of Labor, but only to the extent that the State Construction Code applies to private residences.

Gerald H. Miller

Director

Michigan Department of Social Services

P.O. Box 30037

Lansing, Michigan 48909

You have asked three questions regarding the application of the State Construction Code to adult foster care group homes licensed to care for 7 to 20 adults. Your inquiries have been combined in the following question:

Are adult foster care group homes, licensed to care for 7 to 20 adults, subject to the State Construction Code where that code is enforced by a local unit of government or the Michigan Department of Labor?

The State Construction Code Act of 1972, 1972 PA 230, MCL 125.1501 et seq; MSA 5.2949(1) et seq, provides that a governmental subdivision (county, city, village or township as defined in section 2(t) of that statute) may exercise one of three options:

1. Adopt and enforce a nationally recognized model construction code in lieu of the State Construction Code;

2. Enforce the State Construction Code as promulgated by the State Construction Code Commission, or;

3. Have the state or the county enforce the State Construction Code within its jurisdiction.

See sections 3, 4, 8 and 9 of the State Construction Code Act of 1972.

The Department of Social Services licenses adult foster care facilities under the Adult Foster Care Facility Licensing Act (AFCFLA), 1979 PA 218, MCL 400.701 et seq; MSA 16.610(51) et seq. The act distinguishes among adult foster care facilities based on the maximum number of persons they are licensed to care for. (1) As designated in the AFCFLA:

1. A congregate facility is licensed to house more than 20 adults.

2. A large group home is licensed for 13 to 20 adults.

3. A small group home is licensed to accommodate 12 or fewer adults.

4. A family home is a private residence licensed for 6 or fewer adults, with a member of the household being the licensee.

See, respectively, section 3(3), (6), (7) and (5) of the AFCFLA.

The State Construction Code Act of 1972 contains no express language concerning its application to adult foster care group homes. However, in section 33 of the AFCFLA, the Legislature has expressly addressed the application of construction codes to adult foster care group homes as follows:

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. [ Emphasis added.]

Section 33 clearly supersedes local regulations specifically applicable to adult foster care facilities and prohibits the application of local ordinances, regulations and construction codes governing institutions to adult foster care homes licensed for from 1 to 20 adults while permitting enforcement of construction code provisions applicable to private residences. This section establishes the principle that local units of government may not discriminate between private residences and adult foster care group homes in the application of construction codes.

The only remaining inquiry is whether, in light of the reference to "local" codes in section 33, the enforcement of the State Construction Code in a local unit of government is limited by section 33 of the AFCFLA. The Michigan Supreme Court has consistently held that a statute must be interpreted to effectuate its purpose. White v Ann Arbor, 406 Mich 554, 562; 281 NW2d 283 (1979).

The State Construction Code Act of 1972 is, of course, a state statute. However, the State Construction Code, when it is being enforced within a local unit of government, is a local code within the meaning of section 33 of the AFCFLA. Otherwise, contrary to the express legislative purpose of that statutory provision, a local unit of government may, by opting for the enforcement of the State Construction Code within its boundaries, apply institutional code provisions to adult foster care group homes contrary to the clear intent of the Legislature.

The decision of the Michigan Supreme Court in City of Livonia v Department of Social Services, 423 Mich 466, 378 NW2d 402 (1985) confirms this conclusion. In sustaining section 33 of the AFCFLA against a claim that it impermissibly added a second purpose to the statute, the court quoted with approval from the submission of intervenor-defendants as follows:

[Section] 33 of the act simply precludes a municipality from inappropriately applying the construction code provisions intended to govern institutions to the subject foster care residences. The provision is certainly germane to the general purpose of providing for the licensing and regulation of foster care homes. In the absence of the supersession clause, some municipalities may be inclined to treat adult foster care homes, which are intended to be "normalized residential settings," as hospitals, and thus impose numerous requirements which are not imposed on private residential dwellings. The legislative intent is clear that the subject homes be regarded as homes; the expression of that intent so as to prohibit the practical exclusion of such homes from residential neighborhoods by municipalities acting under the guise of [local construction and fire ordinances] is logical and entirely relevant to the act and its title. [ Emphasis added.]

423 Mich, at 499-500

The Livonia court continued, at page 500, as follows:

Plaintiffs suggest that the restrictions on the applicability of the State Construction Code Act of 1972, MCL 125.1501 et seq.; MSA 5.2949(1) et seq., should have been added to that act, rather than the AFCFLA. However, the Legislature is free either to enact an entirely new act or to amend any act to which the subject of the new legislation is germane, auxiliary, or incidental. This legislative choice will not be invalidated merely because an alternative location for the new legislation might appear to some to be more appropriate. People v Milton, 393 Mich 234, 241; 224 NW2d 266 (1974). [ Emphasis added.]

Contrary to plaintiffs assertions, Sec. 33 will not jeopardize the lives, safety, and welfare of the residents of AFC homes by eliminating all construction and fire safety requirements. Section 33 specifically allows municipalities to enforce local construction codes which are applicable to private residences. Moreover, Secs. 10, 11, and 20 of the AFCFLA require the Department of Social Services to promulgate and enforce adequate fire prevention and safety rules governing AFC facilities. See MCL 400.710, 400.711, 400.720; MSA 16.610(60), 16.610(61), 16.610(70). [ Footnote omitted.]

Thus, our Supreme Court has recognized that section 33 of the AFCFLA is a restriction on the applicability of the State Construction Code Act of 1972 to adult foster care group homes.

The interpretation of section 33 of the AFCFLA in Livonia, supra, compels the conclusion that the purpose of section 33 is to prevent a local unit of government from treating adult foster care group homes differently than private residences in the enforcement of the applicable construction code within that local unit of government. Section 33 furthers the legislative policies of deinstitutionalization and community placement of adults requiring adult foster care so that they may live in normal residential settings.

In summary, a reading of all the provisions of the AFCFLA, as interpreted by the Michigan Supreme Court in Livonia, supra, to effectuate the overriding purpose of that statute by treating adult foster care group homes as residences, compels the conclusion that those portions of the State Construction Code that do not apply to private residences may not be applied to adult foster care group homes licensed to care for 7 to 20 adults.

It is my opinion, therefore, that adult foster care group homes, licensed to care for 7 to 20 adults, are subject to the State Construction Code, whether enforced by a local unit of government or the Michigan Department of Labor, but only to the extent that the State construction Code applies to private residences. (2)

Frank J. Kelley

Attorney General

(1 It should be noted that within each of the categories, an AFC facility is licensed for a specific number of adults rather than for the capacity range of that category) Thus, the reference in this opinion to group homes licensed for 7 to 20 adults is intended to refer to homes licensed for any number of adults within that range.

(2 See, also, OAG, 1989-1990, No 6671, p 421 (December 20, 1990), which concluded that the barrier free design act, 1966 PA 1, MCL 125)1351 et seq; MSA 3.447(121) et seq, the requirements of which are implemented in certain provisions of the State Construction Code, does not apply to privately owned 1 or 2 family dwellings, but does apply to adult foster care group homes to be constructed for 12 residents. That conclusion was based on the barrier free design act definition of a "facility used by the public" as encompassing these group homes.