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2006 Utah Attorney General Reports and Opinions 1 (2006)

handle is hein.sag/sagut0017 and id is 1 raw text is: Utah Attorney General - Mark Shurtleff - Utah Attorney General - Mark Shurtl... Opinion No. 06-002 October 30, 2006 Utah Attorney General's Opinion No. 06-002 David N. Sundwall, M.D. Executive Director Utah State Department of Health 4th Floor, Cannon Health Building P.O. Box 141000 Salt Lake City, Utah 84114-1000 Re: Authority of Local Health Departments to Charge Fees for Mandatory Inspections Director Sundwall: This constitutes a formal Attorney General opinion in response to your query regarding the authority of local health departments (LHDs) to assess fees to school districts for making state-required inspections of school food service facilities. The Office of the Attorney General issued an opinion on this matter in 1999, opining that LHDs lacked authority to assess fees for required inspections. Subsequently in 2002, the state legislature amended Utah Code Ann. § 26A- 1-114, renewing uncertainty about whether LHDs may assess fees. Thus, the essence of your query is whether the current version of_§ 26A- 1-114 authorizes LHDs to assess fees for required inspections of school food service facilities. Factual Background The Local Health Department Act requires the governing body of each county to create its own LHD or to join another county or counties in the creation of a multicounty LHD. (Utah Code Ann. §§ 26A- 1-103 and 105.) These LHDs are responsible for enforcing state health laws, Department of Health rules and regulations, Department of Environmental Quality rules and regulations, and their own regulations and standards. The issue of LHD's charging for school inspections was addressed in 1999 by Assistant Attorney General John McAllister, who concluded that LHDs were required to inspect school food service facilities, but they were not authorized to charge a fee because the inspections constituted a mandatory duty. His conclusion was based on the 1999 version of 26A- 1-114 and on Utah Restaurant Ass'n v. Salt Lake City/County Board of Health. 771 P.2d 671 (Utah App. 1989), which held that LHIDs have no independent authority to charge fees, and that any such authority must be conferred on it by the county which created it, acting within its lawful authority, or by the legislature. Id. at 675. Applying Utah Restaurant Ass'n, AAG McAllister concluded that the legislature had granted LHDs authority to establish fees in connection with their discretionary duties only, such as inspecting private food service establishments. The legislature had not, however, authorized LHIDs to charge fees in connection with their mandatory duties, such as the School Health Inspection Program, because state funds were allocated on a population basis to LHDs to cover the costs of those programs. Current Analysis In its 2002 session, the Utah State Legislature enacted significant amended to Title 26A, the Local Health Department Act. 1/2 12/12/11

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