Health; Imposition of Fee for Issuance of a Permit

Subject:

Health; Imposition of Fee for Issuance of a Permit

Requested By:

Thomas R. Dundon Health Director Forsyth County

Question:

May a local board of health impose a fee pursuant to G.S. 130-17(e) for the issuance of a permit pursuant to authority delegated by the Department of Human Resources?

Conclusion:

No.

The Commission for Health Services is created by G.S. 143B-142 and is granted certain powers and duties to promulgate rules concerning the public health. The Commission is authorized to adopt rules governing food and lodging establishments, sewage disposal, public water systems, solid waste management, mass gatherings and numerous other matters affecting the public health. The Department of Human Resources is charged with the responsibility of enforcing the State health laws and rules by G.S. 130-11(1). Additionally, the Department may obtain assistance from local health departments in enforcing the health laws and rules. G.S. 143B-142(4) provides in part that "When directed by the Department of Human Resources, local health departments shall enforce Commission for Health Services’ rules and regulations under the supervision of Department of Human Resources." The Department, pursuant to authority contained in G.S. 130-1(d), has authorized individual sanitarians employed by local health departments to enforce State health laws and rules. The individual sanitarians are issued identification cards pursuant to G.S. 128-14.

Local boards of health are also authorized to make rules and regulations as are necessary to protect the public health. Such rules and regualtions may be more stringent than State rules where there is an emergency or "peculiar local condition or circumstance." Otherwise, where there is conflict, the State rules prevail over the local rules and regulations. An exception is provided by G.S. 130-160(b) wherein the local health boards’ rules and regulations governing sewage disposal may be approved by the Commission for Health Services and thereafter enforced by the local health departments instead of the State sewage disposal rules.

The question presented herein arises because G.S. 130-17(e) provides a procedure whereby the local health departments may impose fees for services rendered. A fee plan must be recommended by the local health director and then approved by the local health board and the appropriate board or boards of county commissioners. The fee is limited to "services voluntarily rendered and voluntarily received, but shall not apply where the charging of a fee for a particular service is specifically prohibited by statute, regulation or ordinance." An example of a prohibitory statute is G.S. 130-88, as rewritten by Chapter 56, 1979 Session Laws, which provides in part that "The local health department shall administer the required immunizations without charge." Interpretation of the first phrase "voluntarily rendered and voluntarily received" is assisted by examination of Chapter 508, 1973 Session Laws, which substituted the present language "but shall not apply where . . . " for the prior language "and shall not apply to services required by statute, regulation, or ordinance to be rendered or received." Under the prior language, the local health departments were not authorized to charge a fee for issuance of a permit, for example, for installing a septic tank system because local health regulations required that the site be inspected and permit be issued before the septic tank installed. Under the present language, charging a fee is authorized because, although the permit is still required, charging of a fee is not specifically prohibited. Therefore, in order to give effect to the 1973 amendment, voluntariness cannot be negated merely because inspection and issuance of a permit is required before one undertakes a certain activity. Rather, voluntariness means that one freely applies for a service from the local health department such as the issuance of a permit for a septic tank system.

Although a local health department may impose a fee for services rendered, the question remains whether the department may impose a fee for inspections performed and permits issued at the direction of the Department of Human Resources. Chapter 130 of the General Statutes, which contains most of the public health laws, specifically authorizes the collection of fees by the Department of Human Resources for certain services but is silent concerning the remaining services. For example, G.S. 130-166.55, enacted by Chapter 788, 1979 Session Laws, imposes certain fees for analysis of water samples; G.S. 130-243 requires a one hundred dollar fee to accompany an application for a mass gathering permit; G.S. 130-177 imposes a permit fee on bedding manufacturers; and G.S. 130-166 authorizes the collection of fees for the issuance of certified copies of birth and death certificates. On the other hand, no fee is authorized for solid waste disposal regulation (G.S. 130-166.16 et seq.), for sewage disposal regulation (G.S. 13-160) or food and lodging establishment inspections

(G.S. 72-46 et seq.). Furthermore, there is no general authority equivalent to G.S. 130-17(c) for the Department of Human Resources to impose a fee for services rendered. In fact, Chapter 559, 1979 Session Laws, effective May 1, 1981, states that "legislative grant of authority to an agency to make and promulgate rules shall not be construed as a grant of authority to the agency to establish by rule a fee or a charge for the rendering of any service or fulfilling of any duty to the public, unless the statute expressly provides for the grant of authority to establish a fee or charge for that specific authority." "Agency" is defined to include every State department, institution or agency but to exclude counties and cities.

Construing the foregoing Laws, it is the opinion of this Office that the authority of the Department of Human Resources to impose fees in matters pertaining to the public health is limited to those matters which are expressly authorized by statute. In enforcing State health laws and rules, the local health departments are acting at the direction of the Department of Human Resources, and the local sanitarians are acting as the authorized agents of the Department. Therefore, when local health departments are enforcing State health laws and rules, they are subject to the same limitations as the Department of Human Resources and may only collect fees specifically authorized by statute. When local health departments enforce local rules and regulations, they may collect fees authorized by the local board of health pursuant to G.S. 130-17(e).

Rufus L. Edmisten Attorney General

Robert R. Reilly Assistant Attorney General