People ex rel. Dunbar v. Giordano
| Decision Date | 01 March 1971 |
| Docket Number | No. 24533,24533 |
| Citation | 173 Colo. 567,481 P.2d 415 |
| Parties | The PEOPLE of the State of Colorado ex rel. Duke W. DUNBAR, Attorney General of the State of Colorado, and the Colorado Department of Health, Plaintiffs in Error, v. Mike GIORDANO and Nancy Giordano, Individually and d/b/a The SPA, Defendants in Error. |
| Court | Colorado Supreme Court |
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., William Tucker, Asst. Atty. Gen., Denver, for The People ex rel. Duke W. Dunbar, Atty. Gen.
David F. Foster, Denver, for Colo. Dept. of Health.
Robert C. Duthie, Durango, for defendants in error.
The State, as the plaintiff in the trial court, sought to enjoin the defendants from operating a public bathing facility in violation of sanitary regulations promulgated by the Colorado Department of Health. These regulations were adopted in January 1967 pursuant to C.R.S.1963, 66--1--7(1) (14). The trial court found that the defendants had not complied with these regulations, and that the regulations as minimum standards were not unreasonable. The trial court, however, entered judgment in favor of the defendants on the basis of its ruling that the statute is unconstitutional because it involves an unlawful delegation of authority by the legislature to the department of health. We reverse and hold that the statute is constitutional and that these regulations are therefore valid.
The regulations provide, among other things, for several alternate methods by which public baths must be maintained in order to keep the baths free of disease organisms. Among the alternate methods provided are: (1) recirculation and filtering of the water and the maintenance of a minimum chlorine residual level; or (2) complete drainage and cleaning of the bath after each usage by an individual bather; or (3) flow-through of fresh water at such a rate that there will be a complete change of water in a specified period of time.
The above regulations and others requiring toilets, showers, dressing facilities and related appurtenances of public baths to be maintained in a clean condition were promulgated and adopted under the authority of C.R.S.1963, 66--1--7(1)(14). The trial court declared this statute unconstitutional because it is
'* * * an unconstitutional delegation of authority by the legislature to the plaintiff (department of health) to establish standards and make regulations without adequate guidelines.'
C.R.S.1963, 66--1--7(1) states that the department of health shall have the power and duty:
'(14) To establish and enforce sanitary standards for the operation and maintenance of orphanges, (sic) day care nurseries, foster homes, summer camps for children, lodging houses, hotels, public conveyances and stations, schools, factories, workshops, industrial and labor camps, recreational resorts and camps, swimming pools, public baths, and other buildings, centers and places used for public gatherings;'
Although the trial court did not mention it, we believe that the following subsection of C.R.S.1963, 66--1--7 is pertinent because it relates to guidelines and the scope of the department of health's authority in adopting standards or regulations for the protection of the public health:
'(19) The phrase 'minimum general sanitary standards' as used in this section shall mean the minimum standards reasonably consistent with protection of the public health, and in the case of minimum general sanitary standards as to the quality of water supplied to the public, the same shall in no event be less than the drinking water standards of the United States Public Health Service. The word 'standards' as used in this section shall mean standards reasonably designed to promote and protect the public health;' (Emphasis added.)
It is a general rule of law that a legislative body may not delegate the power to make a law or define a law, but it may delegate the power to determine some fact or state of things to effectuate the purpose of the law. This rule of law has been adhered to in many Colorado cases, the most recent of which are: Asphalt Paving Company v. Board of County Commissioners, 162 Colo. 254, 425 P.2d 289; State Board of Cosmetology v. Maddux, 162 Colo. 550, 428 P.2d 936; Swisher v. Brown, 157 Colo. 378, 402 P.2d 621; Colorado Anti-Discrimination Commission v. Case, 151 Colo....
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