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Bob Ferguson

AGO 2012 No. 2 -
Attorney General Rob McKenna

HEALTH—TRANSIENT ACCOMODATIONS—Inspection Of Occupied Hotel And Motel Rooms
The Department of Health is precluded by statute from inspecting occupied rooms when conducting inspections of transient accommodations, without regard to presence or consent of the occupant.

February 9, 2012

The Honorable Dave Upthegrove
State Representative, District 33
PO Box 40600
Olympia, WA   98504-0600

Cite As:
AGO 2012 No. 2 

Dear Representative Upthegrove:
            By letter previously acknowledged, you have requested our opinion on the following question, which I have paraphrased as follows:

            Does the proviso in RCW 70.62.250(2) prohibit the Department of Health from entering, after obtaining permission, occupied transient accommodation rooms to conduct health and safety licensing inspections? [1] 


            Yes.  RCW 70.62.250(2) explicitly prohibits entry into occupied transient accommodation rooms for inspections, without regard to tenant permission or presence.


            Among the powers and responsibilities of the Department of Health are licensing and inspecting transient accommodations to enforce maintenance and operation standards for the purpose of protecting the health and safety of guests.  RCW 70.62.200; WAC 246-360.  Transient accommodations are broadly defined to include any “facility or place offering three or more lodging units to travelers and transient guests.”  RCW 70.62.210(1).  The legislature
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directed the Board of Health to adopt rules creating substantive maintenance and operation standards to protect the health and safety of those using transient accommodations. 
RCW 70.62.240.  The Board has done so.  See generally WAC 246-360.  The Department enforces those substantive standards through, among other things, its inspection and licensing program.  See RCW 70.62.220, .250, .260, .270, .280; WAC 246-360-035.
            As a legislatively created administrative agency, the Department has only those powers expressly granted by statute or necessarily implied from the statutes relating to the agency’s powers and duties.  See Ass’n of Washington Bus. v. Dep’t of Revenue, 155 Wn.2d 430, 437, 120 P.3d 46 (2005); Tuerk v. Dep’t of Licensing, 123 Wn.2d 120, 124-25, 864 P.2d 1382 (1994). Implied powers are those that are lawful and necessary to effectively execute those powers or duties the legislature has explicitly granted or imposed.  Tuerk, 123 Wn.2d at 125.  When it directed the Department to inspect and license transient accommodations, the legislature restricted the Department’s authority by the proviso at issue:

            The department is hereby granted and shall have and exercise, in addition to the powers herein granted, all the powers necessary and appropriate to carry out and execute the purposes of this chapter, including but not limited to the power:
            . . . .
            (2) To enter and inspect at any reasonable time any transient accommodation and to make such investigations as are reasonably necessary to carry out the provisions of this chapter and any rules and regulations promulgated thereunder:  PROVIDED, That no room or suite shall be entered for inspection unless said room or suite is not occupied by any patron or guest of the transient accommodation at the time of entry;
             . . . .

RCW 70.62.250.
            In subsection (2) of RCW 70.62.250, the legislature expressly authorized the Department to enter and inspect any transient accommodation in order to enforce RCW 70.62 or the substantive health and safety rules authorized by that chapter.  But the legislature also expressly limited this grant of authority with a proviso that prohibits the Department from entering any “room or suite . . . for inspection unless said room or suite is not occupied by any patron or guest . . . at the time of entry[.]” [2]  When the legislature has expressly prohibited certain agency actions,
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it follows that the legislature cannot have also granted the agency an implied power to perform those same actions.  See Univ. of Washington v. Manson, 98 Wn.2d 552, 562, 656 P.2d 1050 (1983) (agencies lack power to alter statutory requirements).
            The plain language of RCW 70.62.250(2) leads us to conclude that when the Department is conducting an inspection under the authority of RCW 70.62, the Department is expressly prohibited from entering a “room or suite” that is “occupied by” a “patron or guest” “at the time of entry,” without regard to consent to entry.  Consent would be irrelevant, as the room would still be occupied.
            In the context of a hotel or other “transient accommodation,” the commonly understood meaning of an “occupied” room would be a room that is leased to a patron or guest.  RCW 70.62 does not define “occupied.”  An undefined non-technical statutory term is given its ordinary meaning, typically found in its dictionary definition.  State v. Kintz, 169 Wn.2d 537, 547, 238 P.3d 470 (2010).  “Occupied” is the adjective form of the verb “to occupy.”  While one possible connotation of “occupied” would be “physically present,” the applicable dictionary definition of “occupy” is “to reside in as an owner or tenant.”  Webster’s Third New International Dictionary 1561 (2002).  Thus, a hotel customer “occupies” a hotel room by leasing it, even when that tenant is not physically present.  And, under RCW 70.62.250(2), the room is therefore “occupied” when leased to a “patron or guest.”  RCW 70.62 also does not define “patron” or “guest,” but it does define “transient accommodation” to be any facility “offering three or more lodging units to . . . transient guests.”  RCW 70.62.210(1).  In context, then, RCW 70.62.250(2) uses “guest” to mean a person who leases a transient accommodation lodging unit.  The applicable dictionary definition of “patron” is “a steady or regular client.”  Webster’s Third New International Dictionary 1656 (2002).  Thus, a transient accommodation room is “occupied” under RCW 70.62.250(2) when leased to either a repeat or new customer.  The proviso therefore prohibits entering a leased room for inspection, without regard to whether the patron or guest is physically present, as the room would  remain occupied within the meaning of the statute.
            We trust that the foregoing will be useful to you.

   Attorney General
   Assistant Attorney General


            [1] You indicate that the Department of Health trained its surveyors (inspectors) to request permission to enter occupied transient accommodation rooms, when inspecting only vacant rooms would not provide a sufficient inspection sample.  I understand that the Department has ended this practice after review of our July 14, 2011, informal opinion.  This opinion does not address any particular practice or policy or address any particular past entry or inspection, but merely answers the legal question regarding the Department’s authority.
            [2] Provisos do not independently prohibit or authorize actions, but are instead part of a broader statute, merely limiting or providing an exception to the general terms of that broader statute; therefore, they are narrowly construed.  State v. Wright, 84 Wn.2d 645, 652, 529 P.2d 453 (1974); Western Mach. Exch. v. Grays Harbor Cnty., 190 Wash. 447, 452-53, 68 P.2d 613 (1937); see West Valley Land Co. v. Nob Hill Water Ass’n, 107 Wn.2d 359, 369, 729 P.2d 42 (1986).