Language and the law. (Legal Briefs).

For most environmental health professionals, the interpretation of statutes, ordinances, and regulations is a daily activity Environmental health requirements duties are expressed in words. Although the English language may be, at times, beautiful, it can also be inexact. "If the English language made any sense, a catastrophe would be an apostrophe with fur," as Doug Larson put it. (1) The inexactness results in complication and often controversy when written legal commands are applied to a myriad of real-life situations.

This month's column looks at three cases in which definitions of terms played an important role. The first case concerns the production and sale of goat cheese from a Virginia farm and whether that activity violated Virginia law. Case 2 is a return to the issue of health department liability in North Carolina. The issue was first addressed in this column in June 2001. (2) The new case involves a preapproval of an onsite sewage disposal system at a proposed subdivision, which was subsequently formally disapproved.

The third case concerns the doctrine prohibiting ex post facto criminal laws. The case arose over lead poisoning in Toledo, Ohio.

Case #1: Goat Cheese Cannot Be Made and Sold at Home (3)

A Virginia woman had a farm and, in her home, made cheese from goats' milk. The cheese was then sold to the public. The Virginia Department of Agriculture charged her with 1) offering adulterated food for sale, 2) offering misbranded food for sale, 3) refusing entry for inspection, and 4) operating a food-manufacturing plant without inspection. She was convicted of offering misbranded food for sale and operating a food-manufacturing plant without inspection. The other charges were dismissed. She appealed, claiming the statute did not apply to her.

"Food-manufacturing plant" is undefined in the Virginia Code. "Manufacture" means "transformation of a raw material into an article of substantially different character." The conversion of goats' milk into cheese is manufacturing.

According to the federal food regulations that Virginia had adopted (21 C.F.R. [section] 110.3 [k]), "Plant means a building or facility or parts thereof, used for or in connection with the manufacturing, packaging, labeling, or holding of human food." The dictionary offers a similar definition of "plant." Therefore, the conclusion was that the conversion of goats' milk into cheese in a dwelling, which is a "building," was a "food-manufacturing plant."

During the trial, the director of consumer protection of the Virginia Department of Agriculture testified as an expert witness and as a member of the department. That testimony was challenged as irrelevant and improper opinion. The court of appeals, however, upheld the testimony, saying,

An expert's testimony is admissible not only when scientific knowledge is required, but when experience and observation ... give the expert knowledge of a subject beyond that of persons of common intelligence and ordinary experience.

Finally, the defendant argued that the cheese had not been misbranded because it was sold in bulk by the pound and was not packaged. The defendant's practice was, after a customer had identified what was desired, merely to place each cheese in a zip-lock bag and write on it for the purchaser's convenience. The dictionary definition of "package," however, is "a commodity in its container; a unit of product uniformly processed, wrapped or sealed for distribution." Therefore, the zip-lock bag constituted a "package." The conviction was upheld.

Case #2: Health Department Liability (4)

An environmental health specialist of the Orange County Health Department of North Carolina conducted a subdivision site evaluation at the owners' request--and upon payment of a fee--to determine whether the soil could support another onsite sewage disposal system. After the evaluation, the owners developed plans and submitted them to the county planning department, constructed an access road, and purchased a mobile home to place on the property The county planning department required that the final plat be approved by the Orange County Health Department.

Despite the earlier site evaluation, the Health Department denied the application. The owners sued the department and the environmental health specialist who had performed the site evaluation, charging negligent misrepresentation.

The primary defense was sovereign immunity According to the court,

As a general rule, the doctrine of governmental, or sovereign immunity bars actions against, inter alia, the state, its counties, and its public officials sued in their official capacity.... The doctrine applies where the entity sued is being sued for the performance of a governmental, rather than a proprietary function........ Absent consent or waiver, the immunity provided by the doctrine is absolute and unqualified.

The sovereign immunity test is simply stated but is usually complicated when applied to actual facts. If the activity is one in which only a governmental agency could engage, it is governmental in nature. It is proprietary and private if any corporation, individual, or group could do the same thing. The owners argued that the fee they had paid and the fact that a soil scientist could have performed the same work made the work proprietary.

The court disagreed because the owners had been seeking to determine whether the health department would issue a sewage disposal permit for the property Only the health department had authority to issue or deny such a permit. This exclusivity made the environmental health specialist's activity a governmental function protected by sovereign immunity.

Although the health department won, the decision is questionable and may offer little comfort for North Carolina health departments. There is no dispute that only the health department may issue the final permit. The mistake occurred in the preliminary evaluation, however, not at the final permit. The landowners relied upon the preliminary evaluation and made a substantial financial commitment. In addition, a fee was charged for the work by the health department. Obviously the health department was not bound by the preliminary evaluation. Moreover, a preliminary soil evaluation seems like an activity that could be performed by any qualified sanitarian or soil scientist, and could, therefore, be a proprietary function, This case emphasizes the potential dangers of health departments giving advisory opinions to landowners who are generally going to rely upon the advice.

Case #3: BK Post Facto Laws (5)

A house was built in Toledo, Ohio, in 1907. In 1952, Toledo adopted an ordinance prohibiting nuisances. Sometime before 1978, lead-based paint was used inside the house. Federal law was amended in 1978 to prohibit lead-based paints in homes. In 1989, a man bought the house and rented it. In 2000, a two-and-a-half-year-old child living in the house became ill and was diagnosed as having elevated blood lead levels.

The health department was notified and inspected the property Samples of paint and dust were collected. Results from analysis of the samples exceeded the lead limits.

The owner was ordered to abate the condition within 90 days. He failed to comply and the health department filed a lawsuit against him. He claimed that he had committed no violation because the lead-based paint had been applied before it became unlawful, and he was protected by the ex post facto clauses. The trial court rejected that argument, however, and a jury convicted him.

The Ohio and federal constitutions prohibit ex post facto laws. An ex post facto law is one that retroactively alters a defendant's rights especially by criminalizing and imposing punishment for an act that was not criminal or punishable at the time it was committed, by increasing the severity of a crime from its level at the time the crime was committed, by increasing the punishment for a crime from the punishment imposed at the time the crime was committed, or by taking away from the protections (as evidentiary protection) afforded the defendant by the law as it existed when the act was committed. (5)

In this case, the nuisance ordinance was adopted in 1952, 37 years before the defendant purchased the property Under the ordinance, no person was allowed to maintain a nuisance in Toledo. What constitutes a nuisance evolves as society changes. Under the nuisance law, the ownership of property that happened to have lead-based paint was a nuisance under the 1952 ordinance. So, when the defendant purchased the property in 1989, he purchased a nuisance. It was irrelevant to the health department whether he knew the paint was a nuisance at the time he purchased the property. No new or additional burdens, duties, obligations, or liabilities were imposed on him in 1989 other than what already existed (i.e., to abate the nuisance).

The conviction was upheld.

Editor's note: Readers who have questions about cases discussed in Legal Briefs may contact Mr. Sikora by e-mail at [e-mail].

References

(1.) Doug Larson, http://www.quotation-spage.com/quotes/ (17 Mar. 2003).

(2.) Vincent A. Sikora, "Issues of Legal Liability for Sanitarians," Journal of Environmental Health, June 2001, at 36.

(3.) McClellan v. Commonwealth, #3445-01-3 (Va. Ct. App. 2003) http://www.loislaw.com (7 Mar., 2003).

(4.) Tabor v. County of Orange, #COA02-423 (N.C. Ct. App. 2003) http://www.loislaw.com (7 Mar., 2003).

(5.) Merriam-Webster's Dictionary of Law 1996. http://dictionary.Ip.findlaw.com/ (18 Mar. 2003).