Legality of a sanitary inspection of an establishment not subject to licensure under 22 M.R.S.A. §2491 et seq.

MAINE STATE LEGISLATURE The following document is provided by the LAW AND LEGISLATIVE DIGITAL LIBRARY at the Maine State Law and Legislative Reference Library http://legislature.maine.gov/lawlib Reproduced from scanned originals with text recognition applied (searchable text may contain some errors and/or omissions) RICHARD s. co,rnN ATTORNEY GENERAL STATE OF MAINE DEPARTMENT OF THE ATTORNEY GENERAL AUGUSTA, MAINE 04333 March 8, 1979 JOHN MR PATERSON DEPUTY ATTORNEY GENERAL TO: James Datsis, Division of Health Engineering, Department of Human Services FROM: Sarah L. Downs, Assistant Attorney General SUBJECT: Legality of a sanitary inspection of an establishment not subject to licensure under 22 M.R.S.A. §2491 et seq. The Division. of Health Engineering of the Department of Human Services seeks advice regarding its authority to conduct a sanitary inspection of the food preparation and service facilities of a non- profit organization which prepares and serves food on twelve diff- erent occasions within a year but which is not subject to the licen- sure requirements of 22 M.R.S.A. §2491 et seq. ISSUE: May the Department conduct a sanitary inspection of food pre- paration and service facilities of an establishment not subject to licensure pursuant to 22 M.R.S.A. §2491 et seq.? CONCLUSION: The Department of Human Services may not conduct an inspectio'n of the food preparation and service facilities of an establishment not subject to licensure pursuant to 22 M.R.S.A. §2491 et seq. absent a health hazard for which there is other statutory authority to in- spect. REASONING: At the outset, it should be noted that the Department has re- presented that a non-profit organization preparing and serving food on twelve different occasions within a year is exempt from licensing under 22 M.R.S.A. §2501. In fact, §2501 only exempts non-profit or- ganizations from Department rules and regulations relating to dis- pensing foods and non-alcoholic beverages. 22 M.R.S.A. §2492 governs which entities are required to be licensed. 22 M.R.S.A. §2497 authorizes the Department of Human Services to enter and inspect any establishment licensed pursuant to 22 M.R.S.A. §2491 et seq. (hereinafter referred to as chapter 562). The purpose of suchinspection is to determine the state of compliance with chapter 562 and with any regulations and rules in.force pursuant thereto. -2- Moreover, there exists a right of entry and inspection if the Depart- ment has reason to believe that a facility is being operated or main- tained without a license. It is axiomatic that investigative powers of an administrative agency are not unbounded, but are derived from, and limited by, author- izing statutes. See, U.S. v. Morton Salt Co., 338 U.S. 632 (1950); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946); NLRB v. United Aircraft Corp., 200 F. Supp. 48 (D.C. Conn. 1961), aff'd, 300 F.2d 442 (2nd Cir. 1962); Temporary State Comm'n on Living Costs, etc. v. Bergman, 353 N.Y.S.2d 977 (1975). Therefore, in regard to an estab- lishment not subject to licensing pursuant to chapter 562, §2497 pro- vides no authority fer the Department to conduct an inspection. There are, of course, situations in which other statutory authority to inspect could be invoked notwithstanding the unlicensed status of an establishment. For instance, 22 M.R.S.A. §1013 gives the Department authority to conduct inspections to determine the actual or threatened presence of a communicable disease. At a local level, pursuant to 22 M.R.S.A. §454, a local health officer has the authority to enter upon or within any premises where nuisa"!1.ceE or conditions dangerous to life are know~ or believed to exist. Sa-rah L. Downs Assistant Attorney General SLD:bw