August 25, 1995
J. Edwin Pons Guilford County Attorney’s Office Post Office Box 3427 Greensboro, NC 27402
RE: Advisory Opinion; Food Service Establishments; Standards and Approvals of Plan; 15A NCAC 18A.2607
Dear Mr. Pons:
You have asked for an explanation of the relative duties of the county environmental health specialists and the State reviewers regarding plan review of prototype "franchised" or "chain" restaurants.
15A N.C.A.C. 18A.2607 requires approval of these plans by both the State and the county. However, the county’s responsibilities are only those which have been delegated to it by the State under G.S. 130A-4. The restaurant sanitation program is a State program. In fact, the State has so completely preempted the field that a county is specifically prohibited from enacting a rule concerning the grading and permitting of food and lodging facilities. See, G.S. §130A-39(b).
The State approves prototype plans for franchised or chain restaurants. Generally, the approval does not include facilities outside of the walls of the restaurant building because the outside facilities may be affected by the site. The county environmental health specialists, therefore, are delegated the authority to review those site specific factors which affect the particular restaurant. The county environmental health specialists exercise that authority under the supervision of the State and have no authority to disapprove any part of the plan which has been approved by the State. See, G.S. 130A-4. The site rarely affects the inside design of the building. Since the county cannot disapprove the plan that has been approved by the State, the county need not re-review the plan for the construction and contents of the building except to the extent that changes have been made to the approved plan. If changes to the State approved plan are identified or recommended, those changes must be approved by the State.
If we can be of further assistance to you or if you have additional questions, please do not hesitate to call on us.
Ann Reed Senior Deputy Attorney General
Mabel Y. Bullock
Special Deputy Attorney General