State v. Phelps

• Citation: 467 P.2d 923,12 Ariz.App. 83
• Decision Date: 16 April 1970
• Docket Number: CA-CR,No. 1,1
• Parties: The STATE of Arizona, Appellee, v. Wayne E. PHELPS, Appellant. 209.
• Court: Court of Appeals of Arizona

Page 923

467 P.2d 923

12 Ariz.App. 83

The STATE of Arizona, Appellee, v. Wayne E. PHELPS, Appellant.

No. 1 CA-CR 209.

Court of Appeals of Arizona, Division 1, Department A.

April 16, 1970.

Rehearing Denied May 11, 1970.

Review Denied June 9, 1970.

Robert K. Corbin, former Maricopa County Atty., Moise Berger, Maricopa County Atty., by William Carter and Alice A. Wright, Deputy County Attys., Phoenix, for appellee.

Standage, Allen & Phelps, by Gove L. Allen, Mesa, for appellant.

CAMERON, Judge.

Defendant, Wayne E. Phelps, appeals from the finding and judgment by the court of guilty to the charge of (1) operating a food establishment without first having obtained a valid license or permit, and (2) willfully refusing to admit a Maricopa County Health Department inspector into the premises for the purpose of making an inspection. Both charges are allegedly in violation of § 36--184 and § 36--191 A.R.S. and Chapter 8, Section 1, Regulations 3 and 4 of the Maricopa County Health Code.

We are called upon to determine whether the delegation of authority to the Maricopa County Health Department is sufficient and definite enough to allow a violation of the rules and regulations of the said department to be a crime (misdemeanor) under the State statute (§ 36--191 A.R.S.).

The essential facts are as follows. Wayne E. Phelps has operated a grocery store and meat market in the City of Mesa, Arizona, since 1953. He procured both 'Retail Food Establishment' and 'Meat Department' permits from the Maricopa County Health Department on 9 June 1966. On 1 January 1967, the new Maricopa County Health Code became effective. This code required a valid permit for a period of one year from the date of issuance and also required the payment of a fee for each permit obtained. Defendant failed to renew his previous permit which expired on 9 June 1967.

On 9 November 1967, the County Health Department inspector made an inspection of the defendant's store. The inspector was advised by the defendant that while the inspections were welcomed, he must first obtain the defendant's permission for the inspection.

On 27 November 1967, the inspector came to the store in defendant's absence, unannounced but during business hours, and began an inspection. The defendant returned shortly thereafter and told the inspector to leave.

On 29 November 1967, the inspector filed a criminal complaint against the defendant in the Justice Court, Mesa Precinct, alleging 5 separate counts all violations of A.R.S. § 36--191, § 36--184, and the Maricopa County Health Code. Defendant was found guilty of 3 of the 5 counts. Defendant appealed to the Superior Court and on a trial de novo (to the court) was found guilty of Count I, operating a grocery and meat market without a valid permit and Count III, willfully refusing to admit a representative of the Maricopa County Health Department for the purpose of inspection.

Defendant has appealed to this Court (see A.R.S. § 22--375, subsec. A) claiming that the convictions are void, being based upon an unconstitutional delegation of the legislative power. The facts necessary to support such convictions are not in dispute.

Article I of Title 36 of the Arizona statutes creates the State Board of Health and gives the State Board the power to provide reasonable and necessary regulations concerning the sale and distribution of food and drink. The statute further provides:

'* * * The regulations Shall provide for the Inspection and Licensing of premises and vehicles so used. * * *.' A.R.S. § 36--105, subsec. B, (4), as amended. (emphasis ours)

Section E provides further:

'The provisions of regulations adopted by the board under the authority conferred by this section shall be observed throughout the state and shall be enforced by each local board of health, But nothing herein shall be deemed to limit the right of any local board of health or county board of supervisors to adopt such ordinances, rules and regulations as authorized by law within its jurisdiction, provided that such ordinances, rules and regulations do not conflict with the state law and are equal to or more restrictive than the provisions of the regulations of the state board of health.' A.R.S. § 36--105, subsec. E, as amended. (emphasis ours)

Article 4 of Title 36 titled 'Local Health Departments' specifically allows the county health departments to make their own rules and regulations:

'The board of health of each county or city-county health departments * * * Shall make rules and regulations, not inconsistent with the rules and regulations of the state department of health, for the protection and preservation of public health.' A.R.S. § 36--184, subsec. B, par. 4. (emphasis ours) See also § 11--251, subsecs. 17 and 30 A.R.S.

The statutes also provide:

'A person violating any provision of this article or the rules and regulations adopted thereunder is guilty of a misdemeanor punishable by a find of not less than twenty-five nor more than two hundred dollars, by imprisonment for not more than thirty days, or both.' A.R.S. § 36--191.

It would appear that the legislature intended to confer upon the local boards of health the authority to provide reasonable rules and regulations so long as these rules and regulations were equal to or more restrictive than the rules and regulations of the State Board of Health. It should be noted, however, that the local boards' rules and regulations could only be more restrictive than the regulations of the State Board. Nowhere do we find any indication that the local boards may enact rules and regulations more restrictive than the legislative grant of authority to the State Board of Health. In the instant case, if the State legislature has properly and legally given the State Department of Public Health the power to require an annual license for a fee and the admission of inspectors during business hours, the violation of said rules being a crime under the statute, then the county boards of health also have this power and authority.

It is generally agreed that the legislature may provide criminal penalties for the violation of rules and regulations to be enacted by administrative agencies under proper circumstances. State v. Anklam, 43 Ariz. 362, 31 P.2d 888 (1934), and:

'* * * An administrative agency may not be empowered to impose penalties for violations of duties which it creates under a statute permitting it to make rules, even though the legislature fixed the maximum of the penalty. However, the legislature may validly provide a criminal or penal sanction for the violation of the rules and regulations which it may empower administrative agencies to enact.' 1 Am.Jur.2d, Administrative Law, § 127 (1962).

Also:

'There can be no doubt that criminal penalties may be provided by the legislature for violation of rules and regulations under proper circumstances. * * *.' State v. Allen, 77 N.M. 433, 423 P.2d 867 (1967).

However, it must be remembered that this being a crime, the statute must be strictly construed and not broadened beyond the clear and express intent of the legislature. State v. Wayman, 104 Ariz. 125, 449 P.2d 296 (1969), and:

'* * * Courts administering the criminal law cannot apply sanctions for violation of the mandate of an agency * * * unless that agency's authority is clear and has been conferred in accordance with law.' Gojack v. United States, 384 U.S. 702, 86 S.Ct. 1689, 16 L.Ed.2d 870, 878, 879 (1966).

With these principles in mind let us look at the two convictions in this matter.

FAILURE TO HAVE A VALID PERMIT OF LICENSE

The Maricopa County Health Code, Chapter VIII, Section 1, Regulation 3(a) provides:

'No person shall operate a food establishment without first obtaining and holding a valid permit to do so from the department.'

The County Health Code (Chapter I, Regulation 4) also provides:

'h. No permit shall be issued and no permit is valid until the bona fide permit fee is received by the Department. Fees shall be paid according to the following table:

Meat Market $10.00

Retail Food Establishment $10.00.'

The reasonableness of the amount of these fees is not in question.

The State statute gives to the State Board of Health (and therefore the County Health Department) the power to provide for the 'licensing of premises'. The State Board is not expressly empowered to require an annual license or to require a fee therefor. Subsection C of § 36--187 A.R.S., added in 1969, specifically allows the county boards of health to 'adopt a schedule of reasonable fees to be collected * * * for issuing or renewing licenses or permits.' This provision, however, was not in the statute at the time the defendant was charged.

It could well be argued that if the county board of health has the power to require a license, that logically they also have the right to charge a reasonable fee in connection therewith. With this we disagree. The legislature must specifically authorize the department to charge a fee, reasonable or otherwise, before a citizen may be convicted of a crime for the failure to pay same. In the instant case, the charging of a fee for an annual license clearly exceeded the legislative grant to the State Board and therefore the County Board had no authority to require such a fee. Our Supreme Court has stated:

'It is fundamental in administrative law that an administrative agency or commission must exercise its rule-making authority within the grant of legislative power as expressed in the enabling statut...