Attorney General: Honorable J. Robert Galvin, M.D., M.P.H., 2005-023 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

September 7, 2005

The Honorable J. Robert Galvin, M.D., M.P.H.
Commissioiner
Department of Public Health
410 Capitol Avenue
Hartford, CT 06134

Dear Commissioner Galvin:

Your department has requested our opinion as to the authority of a local health department to conduct warrantless inspections and its authority to issue "hold" orders on food items. You have asked three questions.

First, you have inquired whether local food sanitarians have the authority to undertake warrantless inspections of food service establishments without the express consent of the establishment owners. Second, you have inquired whether personnel or sanitarians under the supervision and control of a local health director have the authority to issue "hold" orders on food items to prevent them from being further used, sold, or moved. Finally, you have inquired whether such a "hold" order, if within the authority of a food sanitarian to issue, is enforceable if issued by an authorized agent of a local director of health in the form of a signed inspection form.

It is our opinion that local food sanitarians have the authority to conduct warrantless inspections of food service establishments without the express consent of the establishment owners. Also, local health directors and their agents have the authority to issue "hold" orders on unsafe food and drink to prevent it from being used, sold or removed from a food establishment. Finally, "hold" orders issued as signed inspection forms are enforceable in and of themselves without an additional order from the local director of health.

I.
Food sanitarians have the authority to undertake warrantless inspections of food service establishments without the express consent of the establishment owners.

States have a significant interest in the preservation of the public health, and it is within their inherent power to regulate the production, distribution and sale of food and drink items as they may affect the public health. 36A C.J.A. Food 5 (1961). In Connecticut, pursuant to Conn. Gen. Stat. 19a-2a, the Commissioner of Public Health is charged with the preservation of the public health and is granted broad authority to achieve this purpose. Stepney, LLC v. Town of Fairfield, 263 Conn. 558, 821 A.2d 725 (2003) (the legislature has "vested the Commissioner of Public Health with expansive powers with respect to enacting and enforcing public health law"); Shelton v. Shelton, 111 Conn. 433, 437, 150 A. 811 (1930) ("The many recorded instances in which the courts have sustained [the] power of [food] regulation bear witness to the liberality of their viewpoint where the public health and safety are concerned"). Our State Supreme Court has recognized that at times it is both necessary and proper for the Commissioner of Public Health to infringe on the rights of property owners if they are acting in a manner that may be detrimental to the public health. DeMello v. Town of Plainville, 170 Conn. 675, 679, 368 A.2d 71 (1976).

Pursuant to Conn. Gen. Stat. 19a-36a, the Commissioner of Public Health is required to establish regulations concerning food service establishments, including regulations setting forth the "responsibilities of local health departments in monitoring compliance of food establishments." (Emphasis added).  As a matter of course, and particularly in the context of public health, health agencies must conduct inspections to ensure compliance with regulatory provisions. See e.g. See v. City of Seattle, 387 U.S. 541, 543-45, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967) ("[o]fficial entry upon commercial property is a technique commonly adopted by administrative agencies at all levels of government to enforce a variety of regulatory laws"). The Commissioner has duly enacted 19-13-B42(t)(5) RCSA which provides, in pertinent part:

(t) All food establishments shall be inspected by the director of health, registered sanitarian, or an authorized agent of the director of health . . .

(5) . . . The director of health, registered sanitarian or authorized agent after proper identification, shall be permitted to enter, at any reasonable time, any food service establishment for the purpose of making inspections to determine compliance with this section. He shall be permitted to examine the records of the establishment to obtain information pertaining to food and supplies purchased, received, or used, and persons employed, but not including financial records.

You ask whether the Fourth Amendment of the U.S. Constitution or art. I, 7 of the Connecticut Constitution prohibit warrantless inspections of food service establishments in the absence of owner consent. In our opinion, food sanitarians have the legal authority to conduct these inspections without express owner consent, since the inspections authorized pursuant to 19-13-B42(t)(5) RCSA fall squarely within the exception to the Fourth Amendment warrant requirement for administrative inspections of "closely or pervasively" regulated industries.

While the Fourth Amendment's prohibition against unreasonable searches applies to administrative inspections of commercial establishments, regulatory schemes authorizing warrantless administrative inspections of commercial establishments do not necessarily violate the Fourth Amendment. 68 Am Jur 2d Searches and Seizures  45-48 (2000); See also, Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1980) (an individual has a reduced expectation of privacy in commercial property, allowing greater latitude to warrantless searches). Over the course of two decisions, Camara v. Municipal Court of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) and See v. City of Seattle, supra, the United States Supreme Court established that warrantless administrative inspections of "closely or pervasively" regulated industries were permissible so long as they remained reasonable. In New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987), the Supreme Court held that administrative inspections are reasonable if (i) a substantial state interest buttresses the regulatory scheme affecting the industry, (ii) the inspections are necessary in order to further that scheme, and (iii) the authorizing statute [or regulation] is an adequate substitute for a warrant, in that it informs owners that inspections will occur and it properly limits the scope of those inspections. Id. at 702-3. See also, Contreras v. City of Chicago, 119 F.3d 1286, 1290-1291 (7th Cir. Ill. 1997).

In Burger, the Court held that a warrantless inspection of a junkyard operation was reasonable, noting that the state had a substantial interest in finding and stopping "chop shops," requiring a warrant would frustrate the effectiveness of junkyard inspections, and, finally, the authorizing New York statute made explicit that regular inspections would occur. Id. 482 U.S. at 705-8. There have been a number of cases in different situations in which the expectation of privacy was considered. United States v. Blocker, 104 F.3d 720 (5th Cir. Miss. 1997) (Court found search conducted by an insurance examiner, who contends he was acting as an agent of the United States government did not violate the Fourth Amendment); United States v. Simons, 206 F.3d 392 (4th Cir. 2000) (federal government employer's search of employee's computer and office did not violate employee's Fourth Amendment rights); State v. Welch, 160 Vt. 70, 624 A.2d 1105 (1992) (warrantless searches of pharmacy records is permissible).

Applying these standards to the present question we conclude that inspections of food service establishments as authorized by 19-13-B42(t)(5) RCSA present a similar and compelling instance of reasonable warrantless administrative inspections for the following reasons:

1. The state has a long recognized substantial interest in the regulation of food and food service establishments, with the body of our state's regulatory scheme currently set forth in  19-13-B42 RCSA. See e.g., State v. Stokes, 91 Conn. 67, 98 A. 294 (1916) (public health commissioners, under the charter found in the Special Laws of 1905 (Vol. 14), may protect sanitary interests by regulating the sale of foodstuffs).

2. The ability of food sanitarians to effectively monitor compliance with this regulatory scheme is highly contingent upon their ability to conduct unannounced inspections of food preparers and providers to ensure that all statutory and regulatory standards are being met. Requiring food sanitarians, once denied access, to procure a warrant would frustrate the purpose of the inspection, which is to detect and deter unsanitary conditions. It is foreseeable that delinquent establishment operators would attempt to conceal typical operating conditions or otherwise undermine inspections if advance notice of inspections was required.

3. By its terms,  19-13-B42(t)(5) RCSA explicitly authorizes inspections of food service establishments, thereby providing notice to establishment operators that such random and unannounced regular inspections will occur. Further,  19-13-B42(t) RCSA prohibits food service establishments from operating unless operators allow access to authorized inspectors.

4. Finally,  19-13-B42(t)(5) RCSA properly limits the scope of these inspections to a "reasonable time . . . for the purpose of . . . determin[ing] compliance" with  19-13-B42 RCSA. See also Contreras, supra, 119 F.3d 1286 (finding administrative search of restaurant, authorized by similar regulatory language, not prohibited by the Fourth Amendment).

Additionally, we believe that the food service industry is properly characterized as a "closely or pervasively" regulated industry. The United States Supreme Court in Burger noted that when determining whether an industry qualifies as "closely or pervasively" regulated,

the proper focus is on whether the "regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes."

Id., 482 U.S. at 705, n.16 quoting Donovan v. Dewey, supra, 452 U.S. 594 at 600.

To date, numerous industries have qualified as "closely or pervasively" regulated, including, but not limited to, Burger, supra, 482 U.S. 691 (junkyards); Blue v. Koren, 72 F.3d 1075 (2d Cir. N.Y. 1995)(nursing homes); and United States v. Biswall, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972)(pawnshops). The food service industry presents a similar example. Connecticut and municipal regulation of food service establishments is well established and longstanding. Further, as enacted,  19-13-B42 RCSA provides a comprehensive regulatory scheme, encompassing detailed operating standards and monitoring procedures, as well as inspection criteria in specific regard to food service establishments. Finally, Connecticut has a well recognized and substantial interest in preserving the public health via food and drink regulation. For these reasons, food service establishment operators and owners are sufficiently aware that their property will be subject to periodic inspections. As a result, the food service industry is squarely within the class of "closely or pervasively" regulated industries.

In summary, in our opinion, sanitarians under the direction of a local health director have the legal authority to conduct warrantless inspections of food service establishments, regardless of whether the establishment owner has consented to the inspection, since administrative inspections of food service establishments, as authorized by 19-13-B42 RCSA, fall squarely within the "closely or pervasively" regulated industry exception to the Fourth Amendment.

II.

Food sanitarians have the authority to issue "hold" orders on food items to prevent them from being used, sold or moved.

Section 19-13-B42(n) RCSA directs DPH, and its delegated authorities, to take action to ensure the safety of food or drink items. Specifically, subsection (n) provides, in pertinent part:

All food and drink in food service establishments . . . shall be . . . safe for human consumption. Any food or drink considered unsafe for human consumption shall be destroyed or disposed of in a manner satisfactory to the director of health.

(Emphasis added). The Department has interpreted  19-13-B42(n) RCSA to permit local health directors and authorized agents to issue "hold" orders once food or drink items are identified as unsafe or potentially unsafe in order to permit further testing or study.

When reviewing public health regulations and statutes, the courts have exhibited significant deference to agency interpretations, and even more so when reviewing an agency's interpretation of its own regulations. 35A Am Jur 2d Food  3 (2001). Our State Supreme Court has expounded upon this principle:

It is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement. This principle applies with even greater force to an agency's interpretation of its own duly adopted regulations.

Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496-7, 512 A.2d 199 (1986) appeal dismissed, 479 U.S. 1023 (1986); JSF Promotions, Inc. v. Administrator, 265 Conn. 413, 828 A.2d 609 (2003) (agency's discretionary determinations are to be accorded considerable weight). This deference to agency interpretations must also be considered in the context of the broad grant of authority by the legislature to the Commissioner of Public Health to undertake those actions necessary to preserve the public health. Stepney, supra.

Turning then to the text of 19-13-B42(n) RCSA, the juxtaposition of "destroy" and "disposed of" is informative. The term "destroy" implies the authority to eliminate or remove, therefore requiring "disposed of" to mean something distinct from the authority to eliminate or remove. Levin-Townsend Computer Corp. v. Hartford, 166 Conn. 405, 409, 349 A.2d 853 (1974) (no word in a statute should be treated as superfluous, void or insignificant unless there are compelling reasons why this principle cannot be followed). As a result, your agency has interpreted "disposed of" to imply the authority to allocate or allot as one sees fit. Webster's New International Dictionary 654 (3rd Edition Unabridged 1993). Thus, the phrase "disposed of" is not a specific action in and of itself, but rather a mandate to take an appropriate action to ensure that potentially unsafe food is not sold for human consumption.

Due to the significant deference accorded to your agency's interpretation of its own regulation, as well as to the fact that a plain reading of "disposed of" indicates significant discretion has been granted to the form of action to be taken, we believe that your agency's interpretation of "disposed of" comes squarely within the scope of  19-13-B42(n) RCSA. For these reasons, the issuance of hold orders appears as a proper and logical exercise of the broad authority granted to your department and its delegated agents to effectively address unsafe and potentially unsafe food and drink items.

III.

A "hold" order is enforceable if issued by an authorized agent of a local director of health in the form of a signed inspection form.

Specifically, your inquiry is whether a local director of health must "re-issue" an order each time an authorized agent issues an inspection form with a directive to hold or correct. For the reasons that follow, we believe that under the current regulations an inspection form issued by an authorized agent is legally enforceable. Section 19-13-B42(u)(1) RCSA provides, in pertinent part:

Every food service establishment shall maintain a rating score of eighty (80) or higher . . . [i]f the rating score is below eighty (80) or if there is one (1) or more four (4) demerit point items in violation at the time of inspection, the director of health, registered sanitarian, or authorized agent shall order correction of the items in violation . . .

(Emphasis added). Additionally, subsection (u)(4) provides in pertinent part:

If the rating score is eighty (80) or above or if there are any three (3) demerit point items in violation, the director of health, registered sanitarian or authorized agent shall order correction of any violations and specify the time for correction.

(Emphasis added). Pursuant to 19-13-B42(u) RCSA, failure to comply in a timely manner with a correction order will lead to an order to close the establishment. Read plainly, subsections (u)(1) and (u)(4) explicitly authorize agents themselves to issue orders. This authorization is reinforced implicitly in subsection (u)(6), which describes the right of appeal from such an order. Subsection (u)(6) provides:

The owner or operator of a food service establishment aggrieved by an order, may, within forty-eight (48) hours after such order, appeal to the director of health, who shall thereupon immediately examine into the merits of such case and may vacate, modify or affirm such order. The owner or operator of a food service establishment who is aggrieved by such action of the director of health may, within forty-eight (48) hours after the making of such decision, appeal to the commissioner who shall thereupon immediately notify the authority from whose order the appeal was taken and examine into the merits of such case and may vacate, modify or affirm such action.

(Emphasis added). Specifically, "director of health" refers to the local director of health and "commissioner" refers to the Commissioner of Public Health.  19-13-B42(a)(3), (a)(5) RCSA. By allowing a right of appeal to the local director of health, and then another to the commissioner, subsection (a)(6) makes implicit a right to appeal from an order issued by a registered sanitarian or an authorized agent to the local health director. Thus, pursuant to subsection (u), authorized agents are explicitly and implicitly able to issue appealable orders, which is testament to their enforceability.

We recognize that your question extends to whether the authority to issue corrective orders under subsection (u) includes the authority conferred by subsection (n) to "destroy" or "dispose of" unsafe food items. Specifically, you have inquired whether a corrective order may include a directive to hold or otherwise "dispose of" unsafe food or drink items.

For the reason set forth below, we believe that a directive to hold or otherwise "dispose of" unsafe food or drink contained within a corrective order issued by an authorized agent is enforceable in and of itself, without the need for an additional order to be issued by a local director of health.

A statute must be interpreted as written and considered as a whole, and courts must assume that a reasonable and rational result was intended. Babes (Estate of Babes) v. Bennett, 247 Conn. 256, 721 A.2d 511 (1998); See also Diamond v. Marcinek, 226 Conn. 737, 744 n.8, 629 A.2d 350 (1993) appeal denied, 228 Conn. 915 (1993) (the rules of statutory construction apply to regulations). Because state regulations specifically permit unsafe food or drink to be destroyed or disposed of, it is implicit in the regulatory scheme that local health directors, registered sanitarians, and authorized agents issue corrective orders to hold, destroy or dispose of unsafe food or drink items.1

In summary, each of the questions posed is answered affirmatively.

Very truly yours,


RICHARD BLUMENTHAL
ATTORNEY GENERAL


Richard J. Lynch
Assistant Attorney General



1Local health directors, registered sanitarians, and authorized agents are explicitly authorized to conduct onsite inspections. Section 19-13-B42(t) RCSA. Read together, subsections (u) and (t) generally provide that authorized agents are authorized to both inspect and issue orders.


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Content Last Modified on 9/20/2005 2:36:09 PM