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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6458 August 4, 1987 CORRECTIONS, DEPARTMENT OF: MENTAL HEALTH, DEPARTMENT OF: PUBLIC HEALTH, DEPARTMENT OF: Clinical laboratories Clinical laboratories Licensing of clinical laboratories Clinical laboratories operated by the Department of Corrections and the Department of Mental Health, respectively, must be licensed by the Department of Public Health. Mr. Robert Brown, Jr. Director Department of Corrections Mason Building Lansing, MI 48909 Mr. Thomas D. Watkins, Jr. Director Department of Mental Health Lewis Cass Building Lansing, MI 48913 You have requested my opinion on the question whether clinical laboratories operated by the Department of Corrections and by the Department of Mental Health, respectively, must be licensed by the Department of Public Health under the Public Health Code, 1978 PA 368, MCL 333.1101 et seq; MSA 14.15(1101) et seq. Act 368, s 20141, MCL 333.20141; MSA 14.15(20141), prohibits a person from establishing or maintaining and operating a health facility or agency without holding a license from the Department of Public Health. Act 368, s 20109, MCL 333.20109; MSA 14.15(20109), defines a person, inter alia, as a governmental entity. Act 368, s 20106(1), MCL 333.20106(1); MSA 14.15(20106)(1), defines a "health facility or agency" as follows: " 'Health facility or agency', except as provided in section 20115, means: "(a) Ambulance operation or advanced mobile emergency care service, or limited advanced mobile emergency care service. "(b) Clinical laboratory. "(c) County medical care facility. "(d) Freestanding surgical outpatient facility. "(e) Health maintenance organization. "(f) Home for the aged. "(g) Hospital. "(h) Nursing home. "(i) Hospice. "(j) A facility or agency listed in subdivisions (a) to (h) located in a correctional institution or a university, college, or other educational institution." (Emphasis added.) Act 268, s 20106(5), MCL 330.20106(5); MSA 14.15(20106)(5), further defines a "hospital" as follows: " 'Hospital' means a facility offering inpatient, overnight care, and services for observation, diagnosis, and active treatment of an individual with a medical, surgical, obstetric, chronic, or rehabilitative condition requiring the daily direction or supervision of a physician. The term does not include a hospital licensed or operated by the department of mental health." (Emphasis added.) The cardinal rule of statutory construction is to ascertain and give effect to the intention of the Legislature, and where the language employed in the statute is plain, certain and unambiguous, a bare reading suffices and no interpetation is necessary. Grand Rapids v Crocker, 219 Mich 178, 182; 189 NW 221 (1922); In re Chamberlain's Estate, 298 Mich 278, 283; 299 NW 82 (1941); Owendale-Gagetown School Dist v State Bd of Education, 92 Mich App 719, 725; 285 NW2d 435 (1979), aff'd 413 Mich 1, 8; 317 NW2d 529 (1982); Brandon Twp v North-Oakland Residential Services, Inc, 110 Mich App 300, 309; 312 NW2d 238 (1981), lv den 412 Mich 900 (1982). The Department of Corrections is a governmental entity and, thus, a "person" as defined by Act 368, s 20109, MCL 333.20109; MSA 14.15(20109). By legislative definition, a clinical laboratory is a health facility or agency. Act 368, s 20106(1)(b), MCL 333.20106(1)(b); MSA 14.15(20106)(1)(b). Further, any "facility or agency listed in subdivisions (a) to (h) located in a correctional institution" is a health facility or agency. Act 368, s 20106(1)(j), MCL 333.20106(1)(j); MSA 14.15(20106)(1)(j). Therefore, a clinical laboratory operated by the Department of Corrections is a health facility or agency requiring licensure by the Department of Public Health. The same reasoning is applicable to the Department of Mental Health, although there are minor variations. There is no provision in Act 368, s 20106, MCL 333.20106; MSA 14.15(20106), relating to the Department of Mental Health comparable to subsection (1), subdivision (j). As noted above, however, subsection (5) further defines the term "hospital" and expressly excludes hospitals operated by the Department of Mental Health, but not clinical laboratories. Therefore, under the plain, certain and unambiguous language of the Public Health Code, a clinical laboratory operated by the Department of Mental Health must be licensed by the Department of Public Health. No opinion that might be construed as countenancing an impingement upon the "exclusive jurisdiction" (1) of the Department of Corrections over penal institutions would be complete without some discussion of Dearden v Detroit, 403 Mich 257; 269 NW2d 139 (1978), and its progeny, Pecoraro v Dep't of Corrections, 100 Mich App 802; 300 NW2d 418 (1980), lv den 411 Mich 973 (1981), and Marquette County v Bd of Control of Northern Michigan University, 111 Mich App 521; 314 NW2d 678 (1981). In Dearden, the court held that the Department of Corrections, in establishing a rehabilitation center in a former convent, was not subject to the Detroit zoning ordinance enacted pursuant to the city-village zoning enabling act, MCL 125.581 et seq; MSA 5.2931 et seq. The salient language in the Dearden opinion is: "We read this language [MCL 791.204; MSA 28.2274] as a clear expression of the Legislature's intent to vest the department with complete jurisdiction over the state's penal institutions, subject only to the constitutional powers of the executive and judiciary, and not subject in any way to any other legislative act, such as the zoning enabling act." 403 Mich at 265. "We hold that in enacting MCL 791.201, et seq; MSA 28.2271, et seq, the Legislature intended to grant the Department of Corrections immunity from local zoning ordinances when establishing state penal institutions." Id. at 267. In Pecoraro, supra, the Court of Appeals relied upon Dearden, in holding that the Department of Corrections in operating the Marquette Prison was not subject to the requirements of the Michigan Housing Act of 1917, MCL 125.401 et seq; MSA 5.2771 et seq. Although Marquette County, supra, did not involve the Department of Corrections, the Court of Appeals relied upon Dearden to hold that the State Construction Code did not apply to a regional university. In so concluding, the court set forth the principle of law that it believed Dearden established, as follows: "In effect, the Court [in Dearden] established another principle of statutory construction which supports defendant in the present case: if one act establishes a state agency's exclusive jurisdiction over certain subject matter and a second act of general application does not state whether it applies to the agency in question, the second act does not apply to that agency." 111 Mich App at 526. In Lawrence v Dep't of Corrections, 88 Mich App 167; 276 NW2d 554 (1979), lv den 407 Mich 909 (1979), however, the Court of Appeals refused to apply Dearden. Over the contention of the Department of Corrections that Dearden was controlling, the court held that the Department of Corrections was subject to the provisions of the Administrative Procedures Act. In reply to the Department of Corrections' reliance on Dearden, the court said: "Recently the Michigan Supreme Court held that the Department of Corrections was immune from local zoning ordinances.... [citing Dearden]. In language unnecessary to the disposition of the issue before the Court in Dearden the Court stated that the department was 'not subject in any way to any other legislative act.' 403 Mich at 265. We are not persuaded that in so saying the Supreme Court intended to rule that the Department of Corrections was not an 'agency' subject to the provisions of the APA." 88 Mich App at 170, n 2. Dearden is clearly distinguishable in its circumstances from the questions being discussed here. First, while a state statute was peripherally involved, in Dearden the exemption was not from a state statute but from a local zoning ordinance. Second, there was no specific mention of the Department of Corrections in the city-village zoning enabling act, while the relevant provisions of the Public Health Code not only include the Department of Corrections within the definition of the term "persons," but, also, specifically refer to the Department of Corrections. There is one more reason why the result in Dearden should not be applied to the matter under consideration here. In its conclusion, the court in Dearden made it clear that it was applying the legislative intent as it was perceived by the court. Here, the legislative intent as expressed in the Public Health Code is that the licensing provisions of the Code apply to the Department of Corrections. Otherwise, there would be no reason (1) to define a person as a public entity, or (2) to specifically define a clinical laboratory located in a correctional institution as a health facility or agency. In short, as distinguished from Dearden, it is clear that the Legislature intended a clinical laboratory operated by the Department of Corrections to be licensed under the provisions of Act 368, s 20141, MCL 333.20141; MSA 14.15(20141). It is my opinion, therefore, that clinical laboratories operated by the Department of Corrections and by the Department of Mental Health, respectively, must be licensed by the Department of Public Health under the provisions of the Public Health Code. Frank J. Kelley Attorney General (1)
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