Johnson's Markets, Inc. v. New Carlisle Dept. of Health

• Decision Date: 06 March 1991
• Docket Number: No. 89-1916,89-1916
• Citation: 58 Ohio St.3d 28,567 N.E.2d 1018
• Parties: JOHNSON'S MARKETS, INC., Appellant, v. NEW CARLISLE DEPARTMENT OF HEALTH, Appellee; Ohio Department of Agriculture, Appellant.
• Court: Ohio Supreme Court

Page 28

58 Ohio St.3d 28

567 N.E.2d 1018

JOHNSON'S MARKETS, INC., Appellant, v. NEW CARLISLE DEPARTMENT OF HEALTH, Appellee;

Ohio Department of Agriculture, Appellant.

No. 89-1916.

Supreme Court of Ohio.

Submitted Nov. 27, 1990.

Decided March 6, 1991.

Syllabus by the Court.

The Ohio Department of Agriculture does not have exclusive authority to regulate the sanitary conditions of food establishments. Local boards of health may also statutorily prescribe some sanitary regulations for food establishments. (R.C. 3709.20, 3709.22, 913.41 and 913.42, construed in pari materia; R.C. 1.51, applied.)

This action arose when the plaintiff-appellant, Johnson's Markets, Inc., d.b.a. Johnson's Super Value, filed a complaint in the Common Pleas Court of Clark County against the defendant-appellee, New Carlisle Department of Health, and the defendant-appellant, Ohio Department of Agriculture, seeking a declaration that certain regulations adopted by the New Carlisle Department of Health were invalid and unconstitutional under the Ohio Constitution.

The basic elements of this action are, in essence, as follows: Johnson's Super Value is a store selling, among other items, various food products, all of which are for consumption off the premises. In 1983 the New Carlisle Department of Health passed Regulation 83-02 which deals with food establishments. Section 6.1 of Regulation 83-02 sets forth that "[e]very food establishment and all parts thereof and places appurtenant to the food establishment shall be maintained in good repair and shall be kept thoroughly clean and free from any accumulation of filth, garbage, rubbish, or other waste." The regulation also covers items such as ventilation, lighting, toilet facilities and handwashing facilities. It also covers the storing, cleaning and bactericidal treatment of utensils and fixtures. Also provided for are the proper storage of wastes and the refrigeration of foods. The regulation also provides that "all foods shall be clean, wholesome, free from spoilage * * * " (Section 7.2) and that any unwholesome food may be condemned. Further, the regulation requires food establishments to submit plans to the health department for any extensive alteration of the facility.

Johnson's Super Value is a "food establishment" as defined in Section 1.1 of Regulation 83-02, as passed by the New Carlisle Department of Health, which section, in pertinent part, is as follows:

"FOOD ESTABLISHMENT means any place where temporary or permanent, stationary or mobile, or whether it be considered public, semi-public or private, where food or drink or food or drink constituent or additive is prepared, processed, manufactured, packaged, stored, served, sold or offered for sale for human consumption; provided that the following places are not included:

" * * *

"Food service operations as defined in Section 3732.01 of the Ohio Revised Code.

"Dairy plants, meat plants, slaughterhouses and abattoirs which are under other regulations of this Board of Health or under regulations of the State of Ohio, Department of Health or Department of Agriculture."

Johnson's Super Value is not a "food service operation" as defined by R.C. 3732.01, which section, in pertinent part, is as follows:

"(A) A 'food service operation' means:

"(1) Any place, including any governmental operation, where meals or lunches, or portions thereof, are prepared or served for a consideration, regardless of whether the meals, lunches, or portions are to be consumed on or off the premises, except:

" * * *

"(e) Food-processing and food-manufacturing establishments."

The Director of Agriculture claims that he has exclusive authority to regulate food processing and food manufacturing establishments as provided in R.C. 913.41 and 913.42. R.C. 913.41 states:

"No proprietor, owner, or manager of a bakery, confectionery, creamery, dairy, dairy barn, milk depot, laboratory, hotel, restaurant, eating house, packing house, slaughterhouse, ice cream factory, canning factory, or place where a food product is manufactured, packed, stored, deposited, collected, prepared, produced, or sold for any purpose, shall fail to place it in a clean and sanitary condition within ten days after being duly notified in writing or by posting the notice provided for in section 913.42 of the Revised Code, or fail to keep it in such condition thereafter."

R.C. 913.42 in part states:

"If the director of agriculture or any of his inspectors or agents, is of the opinion that a place named in section 913.41 of the Revised Code is being operated in violation of such section he shall notify the proprietor, owner, or manager thereof, in writing, to place it in a clean and sanitary condition within a reasonable time to be stated in such notice, which time shall not be less than ten days.

"The director or any of his inspectors or agents shall post in a conspicuous place in such of the places mentioned in section 913.41 of the Revised Code a copy of the sanitary code adopted by the department of agriculture, printed in plain, legible type."

The parties have stipulated that Johnson's Markets is subject to the provisions of R.C. 913.41 and 913.42. The Director of Agriculture also claims to have exclusive jurisdiction over the regulation of food processing and food manufacturing establishments, such as Johnson's, pursuant to R.C. 925.01, which states, in pertinent part:

"The director of agriculture shall establish standards of quality, purity, and strength for foods, when such standards are not otherwise established by any law of this state. Such standards shall conform to the standards for foods adopted by the United States department of agriculture. The director shall make such uniform rules and regulations as may be necessary for the enforcement of the food, drug, dairy, and sanitary laws of this state, provided that he shall not make such rules and regulations for the enforcement of the dairy and sanitary laws where such rules and regulations are otherwise provided for by sections 3707.371 to 3707.376, inclusive, of the Revised Code. * * * "

The Director of Agriculture has, pursuant to general statutory authority, promulgated regulations relative to the sanitary condition of food establishments, which are contained in Ohio Adm.Code Chapter 901:3-29. The Director of Agriculture's regulations, in the main, cover the same sanitary concerns as does the New Carlisle Department of Health regulation, and apply to the same type of items such as lighting, toilet facilities, storing and handling of foods in a sanitary manner, and the general sanitary conditions of the premises. However, as noted infra, there are differences of varying degree between the Director of Agriculture's and New Carlisle's regulations.

Johnson's Super Value has been subject to New Carlisle Department of Health Regulation 83-02 and has, pursuant to such regulation, been subject to inspection by the New Carlisle Department of Health. Johnson's Super Value has also been subject to inspection and orders by the Ohio Department of Agriculture pursuant to Ohio Adm.Code Chapter 901:3-29, promulgated by the Director of Agriculture.

In 1987, Johnson's Super Value commenced remodeling in the meat cutting area which is located in the rear of the store. The remodeling included but was not limited to the addition of a refrigerated delicatessen case, a revolving oven, and a barbecue king unit, and the changing of floor surfaces and wall surfaces. The remodeling was done without submitting any plans to the local health department as required by Sections 4.4, 4.5 and 4.6. of Regulation 83-02.

In April 1987, the New Carlisle Department of Health by its inspector, Bill Wharton, ordered Johnson's Super Value to cease operation of the delicatessen case until compliance was made with items 1, 2, 3 and 4 of the inspection report issued pursuant to Sections 4.4, 4.5, and 4.6 of Regulation 83-02.

The New Carlisle Department of Health claims it opted to pass the subject regulation pursuant to authority granted boards of city health districts by R.C. 3709.20 and 3709.22.

R.C. 3709.20 provides in pertinent part:

"(A) The board of health of a city health district may make such orders and regulations as are necessary for its own government, for the public health, the prevention or restriction of disease, and the prevention, abatement, or suppression of nuisances. Orders and regulations not for the government of the board, but intended for the general public, shall be adopted, advertised, recorded, and certified as are ordinances of municipal corporations and the record thereof shall be given in all courts the same effect as is given such ordinances. * * * "

R.C. 3709.22 provides in pertinent part:

"Each board of health of a city * * * health district * * * may also provide for the inspection of dairies, stores, restaurants, hotels, and other places where food is manufactured, handled, stored, sold or offered for sale, and for the medical inspection of persons employed therein. The board may also provide for the inspection and abatement of nuisances dangerous to public health or comfort, and may take such steps as are necessary to protect the public health and to prevent disease."

The trial court found that no section of the Revised Code granted a local department of health specific authority to prescribe sanitary standards for food establishments. The trial court further found that only the Director of Agriculture has the authority to prescribe sanitary regulations for food establishments. The court further found the New Carlisle Department of Health regulation to be invalid and enjoined it from issuing or enforcing orders pursuant to its general sanitary regulation of food establishments.

The court of appeals reversed the trial court in all respects.

This cause is now before the court pursuant to the allowance of a motion to certify the record.

Gorman, Veskauf, Henson & Wineberg and Robert A. Wineberg,...