STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6650

July 17, 1990

HEALTH:

Local health departments; procedures for establishing sanitation fees for food service establishments

PUBLIC HEALTH CODE:

Local health departments; procedures for establishing sanitation fees for food service establishments

District health boards, county boards of commissioners, and city councils are not required to comply with the procedural requirements of sections 2441 and 2442 of the Public Health Code when establishing sanitation service fees; these entities must, however, establish such fees at public meetings complying with the requirements of the Open Meetings Act.

Honorable Ed Giese

State Representative

The Capitol

Lansing, MI 48909

You have requested my opinion as to the method by which sanitation service fees should be established for food service establishments seeking licensure from local health departments pursuant to section 12906 of the Public Health Code, 1978 PA 368, as amended, MCL 333.1101 et seq; MSA 14.15(1101) et seq.

In section 12906 of the Public Health Code, MCL 333.12906; MSA 14.15(12906), the Legislature has provided that each applicant for a license shall pay the local health department the required sanitation service fee "... authorized by section 2444...." Section 2444 of the Public Health Code, MCL 333.2444; MSA 14.15(2444), provides, in pertinent part:

In the case of a district health department, the district board of health fixes the fee. MCL 333.2444; MSA 14.15(2444). In the case of either a county health department or a city health department the fees are fixed by, respectively, the county board of commissioners or the mayor and city council as the local governing entity. See section 2406 of the Public Health Code, MCL 333.2406; MSA 14.15(2406).

Sections 2441 and 2442 of the Public Health Code, MCL 333.2441; MSA 14.15(2441); MCL 333.2442; MSA 14.15(2442), provide the method by which local health departments hold public hearings and adopt regulations. These regulations must be as stringent as state law standards. They supersede conflicting local ordinances and any violation of these regulations is a misdemeanor punishable by imprisonment or fine or both. MCL 333.2441; MSA 14.15(2441). Clearly, a local health department sanitation service fee is not a regulation within the meaning of section 2441 of the Public Health Code that must be as stringent as state law, supersedes conflicting local ordinances and violation of which results in criminal penalties. Further, in section 12906 of the Public Health Code, MCL 333.12906; MSA 14.15(12906), the Legislature has required payment of the sanitation service fee "... authorized by section 2444...." Thus, the fee is established under section 2444 of the Public Health Code rather than sections 2441 and 2442 of the same statute.

District boards of health, county boards of commissioners and city councils are all public bodies subject to the Open Meetings Act, 1976 PA 267, as amended, MCL 15.261 et seq; MSA 4.1800(11). See section 2(a) of the Open Meetings Act, MCL 15.262; MSA 4.1800(12). Thus, their respective decisions to fix or increase sanitation service fees must be made at a public meeting. In addition, persons attending the public meeting have a right to address the public body. See section 3(2) and (5) of the Open Meetings Act, MCL 15.263; MSA 4.1800(13).

It is, therefore, my opinion that district health boards, county boards of commissioners, and city councils are not required to comply with the procedural requirements of sections 2441 and 2442 of the Public Health Code when establishing sanitation service fees; these entities must, however, establish such fees at public meetings complying with the requirements of the Open Meetings Act.

Frank J. Kelley

Attorney General