STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5873

April 15, 1981

PUBLIC HEALTH CODE:

Regulation of food service establishments

WORDS AND PHRASES:

'Food service establishment'

A convenience store which prepares and serves foods and drinks for immediate consumption off the premises in addition to selling packaged foods as a grocery must be licensed as a 'food service establishment' under the Public Health Code.

Mr. Robert L. Kaczmarek

Saginaw County Prosecutor

111 South Michigan Avenue

Saginaw, Michigan 48602

You have requested my opinion whether a convenience store engaged in food service activities constitutes a grocery store which is exempt from the licensure provisions of the Public Health Code, 1978 PA 368, Sec. 12904; MCLA 333.12904; MSA 14.15(12904), hereafter the Public Health Code.

You advise me that the convenience store in question prepares and serves the following comestibles for direct consumption; sausage within a bun heated in a rotating grill; donuts purchased from a bakery for resale; coffee brewed on the premises; and, assorted prepackaged sandwiches and canned soups. These food items, although prepared and served by the convenience store for direct consumption, are not permitted to be consumed inside the store. In addition, the convenience store sells many other food products like a grocery store.

The Public Health Code, supra, part 129, Secs. 12901-12922 regulates food service sanitation. The Public Health Code Sec. 12901(1)(a), supra, defines 'food service establishment' as:

However, the second and third sentence of section 12901(1)(a), supra, states:

The Public Health Code, supra, Sec. 12904(1), provides, in part, that 'a person shall not operate a food service establishment, . . . in this state without a license issued by the department [of Public Health].'

Therefore, a food service establishment, as defined in the Public Health Code, Sec. 12901(1)(a), supra, must be licensed by the Department of Public Health.

OAG, 1979-1980, No 5517, p 303 (July 31, 1979), held that pursuant to the last sentence of the Public Health Code, Sec. 12901(1)(a), supra, a meeting or a fund raiser of a charitable, religious, fraternal, service, civic or other nonprofit organization at which there is sold home-baked goods or there is served home-prepared food is exempt from regulation, and need not be licensed, as a food service establishment. Accordingly, the exemption from licensure as a food service establishment contained in section 12901(1)(a), supra, appears to be based on the occasional and periodic, as opposed to daily and continuous, sale of home-prepared baked goods or service of home-prepared foods.

The first sentence of section 12901(1)(a), supra, statutorily specifying that certain entities are food service establishments which must be licensed, also embraces any

Licensure of food service establishments is designed to promote and protect the public health, pursuant to Const 1963, art 4, Sec. 51. However, it is also evident that the second sentence of the Public Health Code, Sec. 12901(1)(a), supra, is a 'nonapplication provision' specifying certain entities which are deemed not to be food service establishments required to be licensed by the Department of Public Health. The basis for this 'non-application provision' is grounded in the fact that inspection of such facilities is performed by the Department of Agriculture pursuant to statutory authorization.

The food processing act of 1977, 1978 PA 328; MCLA 289.801 et seq; MSA 12.895(1) et seq, hereafter the food processing act of 1977, provides that the Department of Agriculture shall license and regulate those persons engaged in the business of processing food or drink for human consumption. In OAG, 1979-1980, No 5546, p 352 (August 16, 1979), it was held that the state under 1978 PA 328, supra, has pre-empted the field of regulation with respect to food processors. ⁽¹⁾

Therefore, under 1978 PA 328, supra, processors of food or drink are licensed by the Department of Agriculture, and thus are not deemed to be 'food service establishments' pursuant to the second sentence of the Public Health Code, Sec. 12901(1)(a), supra, requiring licensing thereunder by the Department of Public Health.

The convenience store in question, in selling processed foods for human consumption, must be licensed by the Department of Agriculture under 1978 PA 328, supra, Sec. 3(1). However, while the convenience store in question prepares and serves food items for direct consumption, it asserts that it is a 'grocery store' pursuant to the second sentence, or nonapplication provision, of the Public Health Code, Sec. 12910(1)(a), supra, and thus is exempt from licensure by the Department of Public Health as a food service establishment.

There are no reported judicial decisions or opinions of this office construing the Public Health Code, Sec. 12901(1)(a), supra, with respect to whether a convenience store engaged in food service activities is a 'grocery store' exempt from licensure as a food service establishment. However, review of two predecessor statutes upon which the Public Health Code, part 129, supra, and, in particular, Sec. 12901(1)(a), supra, is premised, is instructive.

The first predecessor statute is 1917 PA 344; MCLA 289.201 et seq; MSA 12.941 et seq, which regulated warehouses, cold storage plants, slaughterhouses and other places where articles of food were manufactured for sale, received, kept, stored, sold or offered for sale. The second statute is 1968 PA 269; MCLA 325.801 et seq; MSA 14.529(1) et seq, which provided for the licensing and regulation of food service establishments. Both 1917 PA 344, supra, and 1968 PA 269, supra, were repealed by the Public Health Code, supra, Sec. 25101(a).

1917 PA 344, supra, Sec. 1 provided:

OAG, 1949-1950, No 878, p 102 (January 19, 1949) concluded that the language of 1917 PA 344, Sec. 1, supra, was sufficiently comprehensive to embrace restaurants within its purview. In so concluding, OAG, No 878, supra, held that the doctrine of ejusdem generis did not limit the general words of 1917 PA 344, Sec. 1, supra, ' . . . 'or other place . . . in which food intended for human consumption,' . . .' to places similar in nature to those enumerated (warehouse, cold storage plant and slaughterhouse), and, thus, included restaurants within the statute's purview.

1968 PA 269, supra, Sec. 1(a), defined the phrase 'food service establishment,' and the definition therein contained is substantively identical to that presently contained in the Public Health Code, Sec. 12901(1)(a), supra. ⁽²⁾ 1968 PA 269, supra, was construed in OAG, 1969-1970, No 4701, p 193 (November 12, 1970) as applicable to the serving of food and beverages in funeral establishments. This conclusion was compelled by the language of 1968 PA 269, Sec. 1(a), supra, providing for the regulation of any '. . . operation where food is served or provided for the public' which same language also appears in the first sentence of the Public Health Code, Sec. 12901(1)(a), supra. OAG, No 4701, supra, stated:

OAG, No 4701, supra, also considered whether the term 'food' used in 1968 PA 269, Sec. 1(a), supra, included beverages as well as solid food substances. 1968 PA 269, supra, Sec. 7, provided in pertinent part:

OAG, No 4701, supra, cited the definition of 'food' that appeared in section A8 of the United States public health food service sanitation ordinance and code of 1962, which definition included beverages:

Therefore, the above definition of 'food,' incorporated by reference into 1968 PA 269, supra, thus embraced the service of beverages in funeral establishments.

The Public Health Code, supra, Sec. 12909(2), contains similar incorporation by reference language first set forth in 1968 PA 269, Sec. 7, supra, and states:

As applied to the Public Health Code, Sec. 12901(1)(a), supra, and your specific inquiry concerning food service establishments which may be regulated thereunder, the following observations from the foregoing analysis of predecessor statutes and opinions of this office rendered thereon may be advanced.

First, I am persuaded that the doctrine of ejusdem generis does not apply to the definition of 'food service establishment' enunciated in the Public Health Code, Sec. 12901(1)(a), supra. A food service establishment may include any '. . . other eating or drinking establishment or operation where food is served or provided for the public.' As noted above at page 6 and Fn 2, supra, this identical language which currently appears in the Public Health Code, Sec. 12901(1)(a), supra, first appeared in 1968 PA 269, Sec. 1(a), supra. OAG, No 4701, supra; cf OAG, No 868, supra.

Secondly, an establishment such as a grocery store which is not otherwise a food service establishment may, indeed, also become a 'food service establishment' where such establishment is an '. . . operation where food is served or provided for the public.' OAG, 4701, supra.

To illustrate, a grocery store which sells from its meat center sausage for home preparation and consumption is not a food service establishment. However, a grocery store which sells to consumers heated sausage in a bun with condiments for direct consumption by the purchaser, off premises, is a food service establishment by virtue of such food service. In this respect, the service of such food for direct consumption is not distinguishable from service of food by other entities, such as a delicatessen department within a supermarket. The delicatessen is regulated as a food service establishment by the first sentence of the Public Health Code, Sec. 12901(1)(a), supra. The processed food articles of the supermarket itself, except for the delicatessen department, are inspected and regulated by the Department of Agriculture under the food processing act of 1977, 1978 PA 328, supra. Thus, the processed foods sold by the supermarket are inspected and regulated by the Department of Agriculture, while the food service activities of the delicatessen department are regulated under the Public Health Code, supra. There is separate, not dual, jurisdiction and regulation.

Finally, the meaning of the word 'food' must be ascertained pursuant to the 1976 recommendations of the United States food and drug administration for a food service sanitation manual, including a model food service sanitation ordinance, which is incorporated by reference in the Public Health code, Sec. 12909(2), supra. OAG, No 4701, supra.

The Public Health Code, Sec. 12901(1)(a), supra, second sentence, provides that '[f]ood service establishment shall not apply to a . . . grocery store, . . ..' The phrase 'grocery store' is not further defined in the Public Health Code, supra. In the absence of statutory definition of a term, a term is to be given its plain and ordinary meaning, for it is to be presumed that the Legislature, not having indicated otherwise, so intended. Bingham v American Screw Products Co, 398 Mich 546; 248 NW2d (1976).

Webster's Third International Dictionary defines 'grocery store' as 'the place of business of a retail grocer.' 'Grocer' is further defined as 'a dealer in staple foodstuffs (as coffee, sugar, flour) and usually meats and other foods (as fruits, vegetables, dairy products) and many household supplies (as soap, matches, paper napkins).' It has been held that 'groceries' mean articles for human consumption and articles used in the preparation of food. Darby v Pennsylvania Public Utility Commission, 189 Pa Super 312; 150 A2d 378 (1959). Inasmuch as the Public Health Code, Sec. 12901(1)(a), supra, second sentence thereof, does not provide that a 'convenience store' is exempt from licensure and regulation as a 'food service establishment,' it is assumed that the convenience store in question possesses many features of a 'grocery store' as the term is commonly understood.

However, since the convenience store in question also engages in certain food service activities which you have described, the food service activities of the convenience store are not 'grocery store' functions, for purposes of the food service establishment 'nonapplication provision' contained in the second sentence of the Public Health Code, Sec. 12901(1)(a), supra. Thus, a grocery store engaged in food service activities constitutes a '. . . place in which food or drink is prepared for direct consumption through service on the premises or elsewhere, and any . . . operation where food is served or provided for the public' to the extent such activities are engaged in. The Public Health Code, Sec. 12901(1)(a), supra; OAG, No 868, supra, and No 4701, supra. The food service activities of the convenience store in question clearly constitute 'food' under the provisions of the 1976 recommendations of the United States food and drug administration, model food service sanitation ordinance, ⁽³⁾ incorporated by reference in the Public Health Code, Sec. 12909(2), supra.

Accordingly, a grocery store or convenience store engaged in food service activities is a 'food service establishment,' pursuant to the Public Health Code, Sec. 12901(1)(a), supra. Thus, to the extent such activities are engaged in, the Department of Public Health possesses authority to license and regulate the food service activities of such establishment, pursuant to the Public Health Code, part 129, supra. Although the convenience store is also licensed by the Department of Agriculture under 1978 PA 328, supra, the activities licensed are separate and distinct, so that no dual inspection of the same activity exists.

Conversely, in the situation where a person enters a grocery store and purchases and apple or a candy bar, and proceeds to eat the item, while on the premises of the grocery store, such consumption, though direct, is de minimis and does not result in subjecting to licensure as a 'food service establishment' the otherwise exempt grocery store. This conclusion is supported by the model food service sanitation manual, supra, which provides in Chapter One, 1-101(i), that 'food service establishment' does not include 'retail food stores.' A grocery store which functions as the term is commonly understood, and which does not undertake food service activities by the preparation or service of food for direct consumption does not possess the statutory indicia of a 'food service establishment' which is subject to license and regulation by the Department of Public Health.

It is my opinion, therefore, that convenience stores engaged in food service activities are 'food service establishments' and are subject to the licensure and the food service activities are subject to regulation and inspection under Public Health Code, part 129, and Sec. 12904, supra. ⁽⁴⁾

Frank J. Kelley

See also, the Michigan Food Law of 1968, 1968 PA 39; MCLA 289.701 et seq; MSA 12.933(1) et seq, enacted to regulate the manufacture, distribution and sale of food and to prevent fraud and deception by prohibiting the misbranding, adulteration, manufacture, distribution and sale of foods in violation of the act.