DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES

                             DIRECTOR'S OFFICE

                         BARRIER FREE DESIGN BOARD

                              GENERAL RULES

(By authority conferred on the director of the  department  of  consumer  and 
industry services by section 4 of 1966  PA  1  and  Executive  Reorganization 
Order No. 1996-2, MCL 125.1354 and 445.2001)




R  125.1001   Scope.
  Rule 1. These rules shall govern board procedure for the  implementation of 
its statutory authority contained in the act.

  History:  1979 AC; 1988 AACS.


R  125.1002   Definitions.
  Rule 2. (1) As used in these rules:
  (a) "Act" means Act No. 1 of the Public Acts of 1966,  as  amended,   being 
S125.1351 et seq. of the Michigan Compiled Laws.
  (b) "Agency" means a state department, bureau,  division,  section,  board, 
commission, trustee, authority, or officer created   by   the   constitution, 
statute, or agency action.
  (c) "Applicant" means the  owner  or  the   owner's   builder,   architect, 
engineer, or agent.
  (d) "Appropriate administrative authority" means any of  the  following:
  (i) The department of management and budget.
  (ii) The department of education.
  (iii) The department of labor.
  (iv) A unit of state government which has the   duty   and   responsibility 
for issuing building permits.
  (v) A local unit of government which has the duty  and  responsibility  for 
issuing building permits.
  (e) "Authorized  agent"  means  the  personnel  assigned   to   the   board 
pursuant to section 5(11) of the act.
  (f) "Barrier free design requirements" means the requirements  contained in 
Act No. 230 of the Public Acts of 1972, as amended, being S125.1501  et  seq. 
of the Michigan Compiled Laws, and the rules promulgated  thereunder.
  (g) "Board" means the barrier free design board created by  section  5   of 
the act.
  (h) "Business day" means any day except Saturday,  Sunday,   or   a   state 
holiday.
  (i) "Code" means the state construction code promulgated  pursuant  to  Act 
No. 230 of the Public Acts of 1972, as amended, being S125.1501  et  seq.  of 
the Michigan Compiled Laws.
  (j) "Day" means a calendar day.
  (k) "Owner" means the person conducting business at the public  facility or 
facility used by the public.
  (l) "Party" means a person or agency  named  or   admitted,   or   properly 
seeking or entitled of right to be admitted, as a  party   in   a   contested 
case.
  (m) "Person" means an individual,  partnership,  association,  corporation, 
governmental subdivision, or public or private organization of  any  kind.
  (n) "Petitioner" means a  person  who  files  a   petition   to   intervene 
pursuant to R 125.1005.
  (o) "Presiding officer" means the board or 1 or  more  administrative   law 
judges designated by the board.
  (2) The terms defined in the act have the same  meanings   when   used   in 
these rules.
  (3) The terms defined in the code have the same meanings   when   used   in 
these rules.

  History:  1979 AC; 1988 AACS.


R  125.1003   Application  for  exception;  form;  review;   alternatives;
  parties.
  Rule  3.  (1)  When  a  person  receives  notice   from   the   appropriate 
administrative authority  that  plans  and   specifications   submitted   for 
preliminary or final review do not comply with  the   barrier   free   design 
requirements, the person may modify the plans and  specifications  to  comply 
with the requirements or shall submit  an  application   for   exception.   A 
person  may  also  submit  an  application  for  exception   pursuant   to  R 
125.1020.
  (2) An application for an exception shall be on a   form   containing   all 
information so designated  by  the  board  and  shall   be   accompanied   by 
detailed building or site drawings of all  nonconforming  areas.  Dimensioned 
line drawings to scale are sufficient.  Photographs  or   a   brief   written 
explanation,  or  both,  may  be  included.    Plans    and    specifications 
accompanying an application for an exception shall be  sealed  in  accordance 
with Act No. 299 of the Public Acts of 1980, as amended,  being  S339.101  et 
seq. of the Michigan Compiled Laws.
  (3)  An  application  for  an  exception  to  the   barrier   free   design 
requirements shall be mailed or delivered to the  office   of   the   Barrier 
Free Design  Division,  Michigan  Department  of   Labor,   State   Secondary 
Complex, 7150 Harris Drive, Box 30015, Lansing, Michigan 48909.
  (4) Upon receipt  of  an  application  for  an   exception,   the   board's 
authorized agent shall review the application within 10  business  days.   If 
complete, the application shall be forwarded to  the   office   of   hearings 
with a request that a pre-hearing conference and hearing  be  scheduled.   If 
the application is not complete, the applicant shall be   notified   of   the 
additional items necessary to complete the application.  If  the   additional 
items are not received within 30 days, a second request shall  be   sent   to 
the applicant. If after an additional 30 days, the  items   have   been   not 
received, the file  shall  be  closed  and  the  known   parties   shall   be 
notified.
  (5) When requesting an exception, the applicant is  encouraged  to  propose 
alternatives at the time the request is submitted or any  time   before   the 
board takes final action. Alternatives to present   methods   of   compliance 
that are submitted for consideration shall achieve a  level  of   performance 
adequate to meet the intent of  the  act  and  the  rules   and   shall   not 
effectively deviate from the goals and objectives of  the   present   barrier 
free design requirements, while assuring  that  the   health,   safety,   and 
welfare of the people of the state are maintained.
  (6) Parties to  an  exception  application  shall  include   all   of   the 
following parties:
  (a) The applicant or the applicant's representative, or both.
  (b) The appropriate administrative authority.
  (c) Any other  party  which  has  been  admitted   after   petitioning   to 
intervene pursuant to R 125.1005.
  (d)  The  complainant,  if  a  complaint  has  been  filed  pursuant  to  R 
125.1017 before the filing of the exception request.
  (7) The authorized agent shall post, in a conspicuous place  on  a   public 
bulletin board near the offices of the barrier  free   design   division,   a 
copy of all  memoranda  of  transmittal  to  the  office   of   hearings   of 
applications for exception to be scheduled for   a   pre-hearing   conference 
and hearing pursuant to R 125.1003(4). The memorandum  of  transmittal  shall 
include a statement that interested  persons  may   petition   to   intervene 
pursuant to R 125.1005. Upon written request of a  person,   the   authorized 
agent  shall  provide  the  person  with  a  copy  of   the   memoranda    of 
transmittal,  as  well  as  any  material  related   to   the    applications 
specifically identified by the  person.  These  materials   shall   be   made 
available pursuant to Act No. 442 of the Public Acts of  1976,  as   amended, 
being S15.231 et seq. of the Michigan Compiled  Laws,  and   known   as   the 
freedom of information act.

  History:  1979 AC; 1988 AACS.


R  125.1004   Hearing; notice; conduct by presiding officer.
  Rule 4. (1) Within 10 business days after receipt of  an  application   for 
exception or complaint of alleged  noncompliance,   the   presiding   officer 
shall give notice of the pre-hearing conference and hearing  to  the  parties 
and the authorized agent.
  (2) The notice of hearing shall comply with the requirements of  section 71 
of Act No. 306 of the Public Acts of 1969, as amended, being S24.271  of  the 
Michigan Compiled Laws.
  (3) In addition to the requirements of section 71 of Act No.  306  of   the 
Public Acts of 1969, as amended, the notice shall contain  a  statement  that 
all hearings shall be conducted in a barrier free location.
  (4) A hearing shall be conducted by the presiding   officer   pursuant   to 
Act No. 306 of the Public Acts of  1969,  as  amended,   being   S24.201   et 
seq. of the Michigan Compiled Laws.

  History:  1979 AC; 1988 AACS.


R  125.1005   Intervention.
  Rule 5. (1) A petition for leave to intervene may be filed at any  stage of 
a proceeding before commencement of the initial hearing.
  (2) The petition shall set forth the interest of the  petitioner  and  show 
that the participation of the petitioner will assist in the  determination of 
the issues in question and that the intervention will not unnecessarily delay 
the proceeding.
  (3)  The  parties  and  the  authorized  agent  shall   be   provided    an 
opportunity to submit briefs on the petition to intervene.
  (4) The presiding officer may grant a petition for intervention to  such an 
extent and upon such terms  as   the   board   or   the   presiding   officer 
determines.
  (5) The presiding officer shall prepare a report outlining   his   or   her 
recommended decision on the petition to intervene and the  report  shall   be 
sent to the petitioner and the parties. Before the board  takes   action   on 
the report, the petitioner and the parties shall have a minimum  of  10  days 
within which to submit  additional  written  notarized   arguments   to   the 
board. The board  shall  review  the  report  and   recommendation   of   the 
presiding officer regarding the petition to intervene   and   shall   affirm, 
modify, or deny the report and recommendation. The board  shall  then  remand 
the matter to the presiding officer for the conduct of a   hearing   on   the 
exception  application  with  all  parties   participating,   including   the 
petitioner if admitted as a party.

  History:  1979 AC; 1988 AACS.


R  125.1006   Statement of position.
  Rule 6. At any time before the  commencement  of  a   hearing,   a   person 
entitled to appear as a party or an intervener and   the   authorized   agent 
may file a statement of position with respect to any issue to be heard.

  History:  1979 AC; 1988 AACS.


R  125.1007   Withdrawal of request for hearing.
  Rule 7. At any stage of the proceedings, an applicant  for  exception   may 
withdraw the request for a hearing. The authorized agent  shall  notify   all 
parties to the exception application of the withdrawal.

  History:  1979 AC; 1988 AACS.


R  125.1008   Pre-hearing conference.
  Rule 8. (1) At any time before a hearing, the presiding officer, on  his or 
her own motion or a motion of  a   party,   may   direct   the   parties   to 
exchange information or to participate in a pre-hearing  conference  for  the 
purpose of considering matters  which  tend  to  simplify   the   issues   or 
expedite the proceedings.
  (2) The presiding officer may issue a pre-hearing  statement  which   shall 
include the arrangements reached by the parties. The   statement   shall   be 
served on the parties and shall be a part of the record.

  History:  1979 AC; 1988 AACS.


R  125.1009   Failure to appear.
  Rule 9. (1) If a party fails to appear  for  a   hearing   or   pre-hearing 
conference after proper notice, that hearing or  pre-hearing  conference  may 
proceed in the absence of a party. If the  applicant   or   the   applicant's 
representative fails to appear, the presiding  officer   shall   prepare   an 
order dismissing the exception request and shall recommend   to   the   board 
that the request for exception be denied.
  (2) The presiding officer, upon a request filed within 10  days  after  the 
scheduled hearing date and upon a showing of good cause,   may   excuse   the 
failure to appear. If the failure to appear is excused, the hearing  shall be 
rescheduled.

   History:  1988 AACS.


R  125.1010   Transcript of testimony.
  Rule 10. A hearing shall be recorded verbatim. The first  party  or  person 
requesting a copy of a transcript shall pay the  costs   of   preparing   the 
transcript. Other parties requesting a copy of the transcript  after  it   is 
prepared shall pay all  costs  associated  with  the   duplication   of   the 
transcripts. If any persons or parties desire a copy   of   the   transcript, 
the costs of preparing the transcript may be divided among  the  parties   or 
persons making the request if they agree to share the   expense   of   having 
the transcript prepared.

  History:  1988 AACS.


R  125.1011   Duties and powers of presiding officer.
  Rule 11. (1) The presiding officer shall conduct a   fair   and   impartial 
hearing, assure that the facts are fully elicited,  adjudicate  all   issues, 
and avoid delay.
  (2) With respect to cases assigned to him or her between   the   time   the 
case is assigned and the report is issued subject  to   the   provisions   of 
chapter 4 of Act No. 306 of the Public Acts of  1969,   as   amended,   being 
S24.271 et seq. of the Michigan Compiled Laws, the  presiding  officer  shall 
have the powers set forth in section 80 of Act No. 306 of the Public  Acts of 
1969, as amended, being S24.280  of   the   Michigan   Compiled   Laws.   The 
presiding  officer  shall  also  have  authority    to    prepare    proposed 
declaratory rulings pursuant to R 125.1025.

  History:  1988 AACS.


R  125.1012   Report of presiding officer.
  Rule 12. (1) The presiding officer shall conduct  a   hearing,   in   which 
case such presiding officer shall prepare a written report.  The  report   of 
the presiding officer shall include statements of   fact,   including   those 
factors identified in R 125.1014(2), as applicable,   conclusions   of   law, 
and a recommended decision.
  (2) When the report is filed with the authorized agent of  the  board   and 
the parties, jurisdiction shall rest solely in  the   board.   All   motions, 
petitions, and other pleadings filed  subsequent  to  the   filing   of   the 
report shall be addressed to the authorized agent.
  (3) A party may file comments on, or clarifications   or   objections   to, 
the report of the presiding officer, including written  arguments,  with  the 
board. Any comment, clarification, or objection  shall   be   notarized   and 
received by the board's authorized agent before the board meeting.

  History:  1988 AACS.


R  125.1013   Authority of board.
  Rule 13. (1) In reviewing a report of the presiding officer, the  board, by 
concurrence of a majority vote of the members present at  the  meeting, shall 
have all the powers which it would have if it had  presided  at  the hearing. 
The  board  may  affirm,  modify,  or  reverse   the   presiding    officer's 
determination. In reviewing a proposed declaratory ruling  of  the  presiding 
officer, the board, by concurrence of a majority of the  members  present  at 
the meeting, may affirm, modify, or revise the declaratory ruling.
  (2) If the board finds that the record  is  inadequate,   the   board   may 
order the matter remanded to the  presiding  officer   and   shall   identify 
those items upon which additional information is needed.
  (3) The board may hear oral argument.
  (4) The board, upon request, shall permit a  party  to   submit   a   brief 
relative to an issue raised in the matter before it. The  board  may  request 
briefs from the parties.
  (5) A final decision or order shall be made only  upon   consideration   of 
the record as a whole or such portion thereof as may be cited by  a  party to 
the  proceeding  and  as  supported   by   and   in   accordance   with   the 
competent, material, and substantial evidence.
  (6) Prior to a final decision, the board, on its own motion   or   at   the 
request of a party, may order the matter  to  the   presiding   officer   for 
rehearing.
  (7) After  a  final  decision,  the  board  may  order   a   rehearing   in 
accordance with section 87 of Act No. 306 of the Public Acts  of   1969,   as 
amended, being S24.287 of the Michigan Compiled Laws,  under  the   following 
provisions:
  (a) Within 60 days after the issuance of a final order at the request of a  
party  who  demonstrates   appropriate   justification   for   any   of   the 
following reasons:
  (i) The exception request has been denied with prejudice   based   on   the 
fact that the applicant failed to appear at  the   hearing.   The   rehearing 
will only be granted in this case when  the   applicant   demonstrates   good 
cause for having failed to appear.
  (ii) The project design has changed and the record upon  which  the   board 
based its decision is no longer accurate.
  (iii) Substantial, relevant information which would have  a  bearing   upon 
the decision of the board becomes available, when such  information  was  not 
available at the previous hearing.
  (b) On its own motion if the record of testimony made at  the  hearing   is 
found to be inadequate for purposes of judicial review.

  History:  1988 AACS.


R  125.1014   Criteria   for   final   board   decisions   on    exception
  applications; compelling need.
  Rule 14. (1) All final board decisions on exception   requests   shall   be 
based on the record and on a finding of fact and conclusion   of   law   that 
the applicant proves or fails to  prove  compelling  need   to   warrant   an 
exception from any or all barrier free design  requirements.  The   applicant 
has the burden  of  proving  that  an  exception  should   be   granted.   An 
exception is in effect a special license to deviate from  rules  which   have 
uniform applicability to  all  facilities.  Compelling   need   may   involve 
exceptional  circumstances,   such   as    site    limitations,    structural 
limitations, jurisdictional  conflicts,  or  severe  economic  difficulty.
Compelling need may be present if the literal application   of   a   specific 
barrier free design requirement would  result   in   exceptional,   practical 
difficulty  to  the  applicant.  Evidence  admitted  to   prove   or   refute 
compelling need shall be governed by rules applicable to  a   nonjury   civil 
case in circuit court and evidence  relied  on  by   a   reasonably   prudent 
person in the conduct of his or her affairs.
  (2) In addition to section 5a(2)  of  the  act,  factors   which   may   be 
considered in determining whether compelling need   has   been   demonstrated 
include the following, if applicable:
  (a)  Circumstances  which  required  compliance,  such  as   any   of   the 
following:
  (i) Use group change.
  (ii) New construction.
  (iii) Occupancy load change.
  (iv) Alteration other than ordinary maintenance.
  (v) Addition.
  (b) The total project cost, including all of the following:
  (i) The total construction or remodeling cost.
  (ii) Land acquisition cost.
  (iii) Cost for furnishings.
  (iv) Purchase price of the structure.
  (c) Nature of the business or facility.
  (d) Anticipated public traffic.
  (e) Hours and days of operation.
  (f) Financial position of the business or agency.
  (g) Age of the business.
  (h) Lease provisions, if the applicant is a lessee of  the  facility;   and 
the name and  address  of  the  owner,  if  the  owner   refuses   to   allow 
compliance with the barrier free design requirements.
  (i) Tax abatements, tax  credits,  and  tax  deductions   for   which   the 
project qualifies.
  (j) Age of existing building.
  (k) Size of all levels and areas of the project and the size of the area or 
areas proposed to be inaccessible.
  (l) Use of the area proposed to be inaccessible.
  (m) Aspects of the project that do comply with the  barrier   free   design 
requirements.
  (n) Number of employees who will be using the area or facility.
  (o) Description of the job duties of the employees.
  (p) Vertical distance from grade to entrance level.
  (q) Vertical distance or distances between floor levels.
  (r) Width and layout of existing stairways.
  (s) Cost of compliance in relation to the total project cost,  the  size of 
the area proposed to be inaccessible, and the use of the area  proposed to be 
inaccessible.
  (t) Existing structural limitations.
  (u) Site restrictions, such as any of the following:
  (i) Size of site.
  (ii) Greenbelt or set-back requirements.
  (iii) Off-street parking requirements.
  (iv) Unusual soil or site conditions.
  (v) Spatial and financial feasibility  of   alternatives   to   compliance, 
such as any of the following:
  (i) Ramp with slightly steeper slope.
  (ii) Alternative lifting devices such as a special  elevating   device   or 
wheelchair lifting device.
  (iii) Accessible entrance other than the nearest entrance.
  (iv) Unisex barrier free bathroom.
  (w) Feasibility of an exception for a stated period of  time  after   which 
compliance with the  requirements  would  be  achieved  and   the   plan   or 
proposal for compliance.
  (x) Duplication of facilities available.
  (y) Historic designation and character of the facility,  as  determined  by 
the Michigan bureau of history, department of state, or  the  United   States 
department of the interior as specified in R 408.30428.
  (z) Similar projects previously reviewed by the board.
  (aa) Whether the applicant complied with the  requirements   contained   in 
section 10 of Act No. 230 of the Public Acts of 1972,   as   amended,   being 
S125.1501 et seq. of the Michigan Compiled Laws, known  as  the  construction 
code act.
  (bb) Whether the project was started or constructed, or  both,  pursuant to 
a permit based on  plans   or   specifications   that   complied   with   the 
barrier free design requirements, in accordance with section 11 of Act No.
230 of the Public Acts  of  1972,  as  amended,  being   S125.1511   of   the 
Michigan Compiled Laws, known as the construction code act.
  (cc) Any other factual information related  to  the   project   which   the 
applicant believes should be considered by the board.

  History:  1988 AACS.


R  125.1015   Conduct of the board; decorum; orders.
  Rule 15. (1) The presiding officer at a hearing and the  chairperson  at  a 
board  meeting  shall  remain  impartial  and  avoid   any   appearance    of 
partiality. Parties shall  be  guaranteed  their  due   process   and   equal 
protection rights. Parties and board members shall be treated  courteously at 
all times. Inquiries by board  members  shall   be   directed   through   the 
chairperson and shall not be argumentative. Board members shall not engage in 
argumentative discussions among  themselves  in   the   presence   of   other 
persons at the board meeting.
  (2) The presiding officer at a hearing and the chairperson   at   a   board 
meeting shall ensure decorum. Any person, including a board  member,  may  be 
excluded from the hearing or board meeting or the hearing  or  board  meeting 
may be adjourned,  when  necessary,  to  avoid  undue   disruption   of   the 
proceeding.

  History:  1988 AACS.


R  125.1016   Notice of board action.
  Rule  16.  After  board  consideration  of  a    complaint    of    alleged 
noncompliance or a request for exception,  the   board's   authorized   agent 
shall notify the parties on behalf of  the  board  of   the   board   action, 
within 10 business  days,  by  preparing  a  final   order,   remand   order, 
rehearing order, or other communication to the parties.

  History:  1988 AACS.


R  125.1017   Complaint; filing; referral; parties.
  Rule 17. (1) A person may file a complaint  which   alleges   noncompliance 
with  the  barrier  free  design   requirements    with    the    appropriate 
administrative authority or directly with the barrier free  design  board.
Within 5 days after receipt of the  complaint  and   before   taking   direct 
action, the authorized agent shall make a written  acknowledgement   of   the 
complaint to the person making the complaint and shall refer the complaint to 
the appropriate administrative authority  requesting  an   investigation  and 
written response within 15  business  days.  A   complaint   may   be   filed 
anonymously.
  (2) Except in the case of a complaint filed  anonymously,  the  complainant 
and all other parties shall  receive  copies  of   all   correspondence   and 
notices throughout the processing of a complaint and shall  be  notified   of 
the final resolution.
  (3) Parties to a complaint shall include all of the following:
  (a) The complainant or the complainant's representative, or both.
  (b) The owner or the owner's representative, or both.
  (c) The appropriate administrative authority.
  (d) Any other party who has been admitted after  petitioning  to  intervene 
pursuant to R 125.1005.

   History:  1988 AACS.


R  125.1018   Complaint;  failure  to  respond  to  referral;   inadequate
  response.
  Rule 18. (1)  An  appropriate  administrative   authority   may   establish 
necessary  administrative   guidelines   to   process    a    complaint    of 
noncompliance with the barrier free design requirements   pursuant   to   the 
act and similar to the procedures set forth in R 125.1019.
  (2) When the appropriate administrative authority has failed to  respond to 
 a  request  for  investigation,   or   if   the   response   is   considered 
inadequate, the authorized agent shall consult with the  board  and   request 
approval to conduct the investigation. All parties shall   be   notified   of 
the board meeting when the complaint  will  be  considered   and   shall   be 
notified of the board's decision regarding the investigation.

  History:  1988 AACS.


R  125.1019   Investigation;   administrative   guidelines;   finding   of
  invalidity; determination of violation; notice.
  Rule 19. (1) Upon receipt of approval  from  the  board   to   conduct   an 
investigation of a complaint of alleged  noncompliance   with   the   barrier 
free  design  requirements,  the  authorized   agent    shall    begin    the 
investigation of the allegations of the complaint.
  (2) The board shall formally adopt written  administrative  guidelines  for 
the conduct of a  complaint  investigation.  The   investigation   shall   be 
conducted within 15 business days after the receipt of board approval.
  (3) A notice shall be sent to the owner of the  building,   structure,   or 
improved area in question indicating that a complaint   has   been   received 
and that an investigation will be made. The notice shall indicate the item or 
items alleged to be not in compliance. The notice shall  also   indicate  the 
code requirements related to the item  or  items  alleged  to   be   not   in 
compliance.
  (4) A report summarizing the findings  of  the   investigation   shall   be 
prepared and provided to all parties.
  (5) If the investigation made pursuant to subrule (2) of  this  rule   does 
not disclose a violation of the  barrier  free   design   requirements,   the 
report prepared pursuant to subrule (4)  of  this  rule   shall   include   a 
statement that the complaint is invalid and the rationale for the  finding of 
invalidity, and a notice of  the  determination  of   invalidity   shall   be 
issued. The file shall remain open for 20 business days from  the   date   of 
the notice of the determination of  invalidity  pursuant   to   R   125.1021, 
after which the file shall be closed.  At  the  time  the   notice   of   the 
determination of invalidity is issued, the complainant shall  be  notified of 
the recourse available pursuant to R  125.1021.  The  authorized  agent shall 
refer complaints over which jurisdiction is  lacking  or  which  are found to 
be invalid to other agencies when appropriate.
  (6) If the investigation made pursuant  to  subrule  (2)   of   this   rule 
discloses evidence of noncompliance with the act or a  rule   or   an   order 
issued under the act, the report prepared pursuant to subrule  (4)  of   this 
rule shall include a statement that the complaint is valid  and   state   the 
items in violation. The authorized agent shall send, by  certified  mail,   a 
written first notice of violation to the owner of the building, structure, or 
improved area citing the code  section  violated  and  the  construction   in 
violation. The other parties shall  receive  copies  of   the   notice.   The 
notice shall inform the owner of the corrections required  and  instruct  the 
owner of the action to be taken and the administrative recourse  available as 
provided for in R 125.1020. The  notice  shall  include  a   statement   that 
failure to request a hearing to contest the finding of violation or submit an 
application for exception within 15 business days after receipt of  the first 
notice of violation constitutes a waiver of those  options.   If   the  owner 
does not respond to the first notice of violation within 15 business days,  a 
second and final notice of violation shall be  sent  by  certified mail.

  History:  1988 AACS.


R  125.1020   Finding of violation; election of remedies.
  Rule 20. Within 15 business  days  of  receipt  of  a   first   notice   of 
violation, the owner may elect 1 of the following remedies:
  (a) The owner may concur that a violation  exists  and   agree   to   begin 
immediate efforts to correct the  violation  and   notify   the   appropriate 
administrative authority and the authorized agent of such  action   and   the 
date the corrections will be completed. The authorized   agent   shall   work 
with the appropriate administrative authority to assure that the  facility is 
reinspected to determine compliance. If the complaint was  referred   by  the 
board,  the  board  shall   be   notified,   in   writing,   when   and   how 
compliance was achieved.
  (b) The owner may disagree that a violation exists  and   may   request   a 
hearing to contest the finding of  noncompliance.  Failure   to   request   a 
hearing within 15 business days after  receipt  of  the   first   notice   of 
violation shall constitute a waiver of a right to a hearing. Upon  receipt of 
a request for a hearing, the authorized agent shall notify   the   office  of 
hearings of the request and   the   presiding   officer   shall   arrange   a 
hearing date and prepare notices to all parties,  including  the  complainant 
and the appropriate administrative  authority  without   undue   delay.   The 
hearing shall be held pursuant to chapter 4 of Act No. 306  of   the   Public 
Acts of 1969, as amended, being S24.271 et seq. of  the   Michigan   Compiled 
Laws; R 125.1004, R 125.1005,  R  125.1006,  R  125.1008,   R   125.1009,   R 
125.1010, and R 125.1011; and the report issued pursuant to R 125.1012.
  (c)  The  owner  may  agree  that  a  violation  exists   and   submit   an 
application for exception pursuant to R 125.1003 to seek  additional  time to 
allow correction efforts to be made or to seek a  full  exception   from  the 
requirements. Failure to  submit  an  application  for  exception  within  15 
business days of receipt of the first notice of violation shall constitute  a 
waiver of the right to submit an application for exception.

  History:  1988 AACS.


R  125.1021   Finding of invalidity; complainant rights.
  Rule 21.  Within  20  business  days  of  the  date  of   the   notice   of 
invalidity, the complainant may elect 1 of the following alternatives:
  (a) The complainant may accept the findings.  If   the   authorized   agent 
receives no communication from the complainant within that  time  frame,   it 
will be presumed that the complainant accepts the findings   and   the   file 
shall be closed.
  (b)  The  complainant  may  provide  additional   information.    If    the 
additional information challenges the finding of  invalidity,  the  complaint 
shall be processed pursuant to R 125.1018(2).
  (c) A complainant may contest the finding of invalidity and may  request  a 
formal hearing to determine the validity or invalidity of the complaint.
If the complainant  requests  a  formal  hearing,  all   of   the   following 
procedures shall be followed:
  (i) Upon receipt of a  request  for  hearing  by   the   complainant,   the 
authorized agent shall notify the office of hearings of   the   request   and 
the presiding officer will arrange a hearing date and  prepare   notices   to 
all parties and the authorized agent, without undue delay.
  (ii) The hearing shall be conducted pursuant to chapter 4 of Act No. 306 of 
the Public Acts of 1969, as amended,   being   S24.271   et   seq.   of   the 
Michigan Compiled Laws; R 125.1004, R 125.1005, R 125.1006,  R  125.1008,   R 
125.1009, R 125.1010, and R 125.1011; and a report issued   pursuant   to   R 
125.1012.
  (iii) All parties shall be informed of  the  board's   decision.   If   the 
board determines the complaint to be valid and that   a   violation   exists, 
the complaint shall be processed pursuant to  R  125.1019.   If   the   board 
determines that there is  not  a  violation  and  that   the   complaint   is 
invalid, the file shall be closed. If appropriate,  a   referral   shall   be 
made to another agency if the board lacks jurisdiction.

  History:  1988 AACS.


R  125.1022   Criteria for final board decisions on complaints of  alleged
  noncompliance.
  Rule  22.  All  final  board  decisions   on    complaints    of    alleged 
noncompliance shall be based on the record and on a finding   of   fact   and 
conclusion of law that a violation exists or  does  not   exist.   When   the 
hearing  is  conducted  subsequent  to  a   request   made   pursuant   to  R 
125.1020(b), the owner has the burden of proving that a  violation  does  not 
exist. When a hearing   is   conducted   subsequent   to   a   request   made 
pursuant to R 125.1021(c), the complainant has the burden of proving  that  a 
violation exists and may request  that  any   investigation   report   issued 
pursuant to an investigation conducted in accordance  with   R  125.1019   is 
considered and made part of the record.  Evidence  admitted   to   prove   or 
refute a finding shall be governed by rules applicable to  a  nonjury   civil 
case in circuit court and evidence  relied  on  by   a   reasonably   prudent 
person in the conduct of his or her affairs.

  History:  1988 AACS.


R  125.1023   Ex parte communication.
  Rule 23. In accordance with section 85 of Act No. 306 of the Public Acts of 
1969, as amended, being S24.285 of  the  Michigan  Compiled  Laws,  a   board 
member,  the  presiding  officer,  and  the  authorized   agent   shall   not 
communicate directly or indirectly with any person or  party  in   connection 
with any issue of fact or issue of law, except on  notice   and   opportunity 
for all parties to participate,  regarding  an   exception   application   or 
complaint of alleged noncompliance not concluded.

  History:  1988 AACS.


R  125.1024   Inspection and reproduction of documents; costs.
  Rule 24. (1) Subject to the provisions of Act No. 442 of the Public Acts of 
1976, as amended, being S15.231 et  seq.  of  the  Michigan  Compiled   Laws, 
restricting public disclosures  of  information,  a  person   may,   at   the 
offices of the board, inspect and copy a document filed in  a  proceeding.  A 
person may also request copies of a document by  writing   to   the   Barrier 
Free Design  Division,  Michigan  Department  of   Labor,   State   Secondary 
Complex, 7150 Harris Drive, Box 30015, Lansing, Michigan 48909.
  (2) Actual costs of reproduction shall be borne by   the   person   seeking 
the document.

  History:  1988 AACS.


R  125.1025   Rescinded.

  History:  2001 AACS.


R  125.1026   Amendment or rescission of rules.
  Rule 26. The board may at any time, upon its  motion   or   initiative   or 
upon written suggestion of an interested person  setting   forth   reasonable 
grounds therefor, propose amendments or rescissions to any  of  these   rules 
pursuant to Act No. 306 of the Public Acts  of  1969,   as   amended,   being 
S24.201  et  seq. of  the  Michigan  Compiled  Laws,  and   known   as    the 
administrative procedures act.

  History:  1988 AACS.