OFFICES AND OFFICERS - STATE BOARD OF HEALTH - APPLICABILITY OF FOOD AND BEVERAGE WORKERS' PERMITS TO PERSONS HANDLING FOOD AND BEVERAGES ON THE WASHINGTON STATE FERRY SYSTEM

OFFICES AND OFFICERS - STATE BOARD OF HEALTH - APPLICABILITY OF FOOD AND BEVERAGE WORKERS' PERMITS TO PERSONS HANDLING FOOD AND BEVERAGES ON THE WASHINGTON STATE FERRY SYSTEM.

Food and beverage service workers employed by a firm operating the catering concession on the Washington state ferry system are not exempt from the requirements of chapter 69.06 RCW which requires permits prescribed by the state board of health.

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                                                                October 23, 1959

Honorable Bernard Bucove
Director of Health
General Administration Building
Olympia, Washington                                                                                       Cite as:  AGO 59-60 No. 79

Dear Sir:

            By letter previously acknowledged, you have requested the opinion of this office as to the applicability of chapter 69.06 RCW (requiring food and beverage service workers' permits of individuals employed in the handling of unwrapped or unpackaged food) to culinary and food service workers employed by the firm operating the catering concession on the Washington state ferry system.

            It is our conclusion that food service workers on Washington state ferries are not exempt from the requirements of chapter 69.06 RCW.

                                                                     ANALYSIS

            We understand that representatives of a group of these workers claim that they are exempt from the requirements of chapter 69.06 RCW since they are classified as merchant marine personnel by the federal government and are workers in interstate and/or foreign commerce.  They claim further that they have been subjected to an examination by the United States Public Health Service as a condition precedent to being given a food handler's rating and imply that such examination preempts the right of this state to impose other, further or different requirement on them.

             [[Orig. Op. Page 2]]

            RCW 69.06.010 provides as follows:

            "It shall be unlawful for any person to be employed in the handling of unwrapped or unpackaged food unless he or she shall furnish and place on file with the person in charge of such establishment, a food and beverage service worker's permit, as prescribed by the state board of health.  Such permit shall be kept on file by the employer and open for inspection at all reasonable hours by authorized public health officials.  Such permit shall be returned to the employee upon termination of employment.  Permits shall be valid for two years from date of issuance, and each employee shall furnish the person in charge of said food handling establishments such permit biennially."

            The violation of any of the provisions of the chapter is made a misdemeanor by RCW 69.06.060.  RCW 69.06.040 limits the applicability of the act to retail establishments regularly engaged in the business of food handling or food service.  Food workers on ferries and those working in interstate and/or foreign commerce are not specifically exempted by the terms of any of the provisions of chapter 69.06 RCW.  Accordingly, if such exemption is to be allowed it must rest on constitutional grounds, either state or federal.

            Assumingarguendo that the Washington State Ferry System is a part of the network of interstate and foreign commerce, in addition to its strictly intrastate operations, the state may require that food service workers obtain a Food and Beverage Service Worker's Permit unless (1) such requirement is a direct, substantial burden on interstate or foreign commerce or, (2) the federal government has legislated in this area for the protection of the public health in such a manner as to indicate its intention to preempt this field.

            InSavage v. Jones, 225 U.S. 501, 524, 56 L.Ed. 1182, 32 S.Ct. 715, the Supreme Court of the United States states the rule as follows:

            "The state cannot, under cover of exerting its police powers, undertake what amounts essentially to a regulation of interstate commerce, or impose a direct burden upon that commerce (citing cases). . . . But when the local police regulation has real relation to the suitable protection of the people of the state, and is reasonable in its requirements, it is not invalid because it may incidentally affect interstate commerce, provided it does not conflict with legislation enacted by Congress pursuant to its constitutional authority."

             [[Orig. Op. Page 3]]

            and at page 533,

            ". . . the intent to supersede the exercise by the state of its police power as to matters not covered by federal legislation is not to be inferred from the mere fact that Congress has seen fit to circumscribe its regulation and to occupy a limited field.  In other words, such intent is not to be implied unless the act of Congress, fairly interpreted, is in actual conflict with the law of the state."

            See alsoStandard Stock Food v. Wright, 225 U.S. 540, 56 L.Ed. 1197, 32 S.Ct. 784;Reid v. Colorado, 187 U.S. 137, 47 L.Ed. 108, 23 S.Ct. 92.

            Federal supervision of health and sanitation is a responsibility of the Surgeon General of the U.S. Public Health Service.

            42 U.S.C.A. 264 provides in part:

            "(a) The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.  For the purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary."

            It might well be that under this provision of the law the Surgeon General could, in fact, prescribe regulations for a licensing system for food handlers engaged in either interstate or foreign commerce.  Whether such regulations would be deemed to be exclusive and to preempt the field is, we think, doubtful.  The United States Supreme Court, in Compagnie Francaise v. Louisiana State Board of Health, 186 U.S. 380, 46 L.Ed. 1209, 22 S.Ct. 811, considered a Federal statute which was the predecessor to Sec. 264 of 42 U.S.C.A.  That statute vested the then Marine Hospital Service with jurisdiction of foreign quarantine.  The Supreme Court held, however, that this did not preclude the States from imposing additional quarantine requirements in the reasonable exercise of the States' police power.  This was true even though in the particular case  [[Orig. Op. Page 4]] the Louisiana quarantine laws in fact imposed an additional and serious burden on foreign commerce.  If the State unreasonably burdens interstate or foreign commerce, the court pointed out that Congress could by affirmative action displace the local laws and substitute laws of its own, and thus correct such excessive exercise of State jurisdiction.  It should be recognized that the statute which was construed in that case clearly did not contemplate the overthrow of existing State quarantine systems.  However, it appears to us that the reasoning of the Supreme Court in that case is equally applicable to the present situation.  Here, the State has imposed upon food handlers engaged solely in intrastate commerce and intrastate commerce incidental to interstate or foreign commerce a uniform system of inspection and work permits.

            Whether or not the Surgeon General could under Sec. 264 undertake to exercise exclusive jurisdiction in this field is not before us.  It is quite clear that he has not in fact done so.  The regulations of the Surgeon General concerning foreign commerce are set forth in 42 C.F.R., Part 71.  We find nothing therein to indicate that the Surgeon General has undertaken the regulation or inspection of food handlers in foreign commerce.  In fact, the only provisions we find relating to food and drink are set forth in subpart L, Sec. 71.601,et seq., and have to do primarily with the securing of food and water at a port, or airport, under the control of the United States, for use aboard a vessel or aircraft engaged in foreign commerce.

            Part 72 of C.F.R. 42 sets forth the interstate quarantine regulations of the Surgeon General.  The definition of "interstate traffic" in Sec. 72.1 (i) would not include traffic between a point in the State of Washington and a point in British Columbia; such traffic clearly would be within the foreign quarantine regulations.  However, the interstate quarantine regulations indicate that the Surgeon General does contemplate the continued existence of State and local health regulations which may affect interstate commerce.  See Sec. 72.3.

            Investigation discloses that merchant marine food handlers are certificated by the Coast Guard and in that order to secure a certificate the food handler must be examined by the U.S. Public Health Service to determine whether he is free from communicable diseases.  The examinations are made pursuant to Coast Guard L.C. Regulation (46 C.F.R. § 12.25-20) which requires a certificate from a medical officer of the U.S. Public Health Service or other reputable physician.  The applicant for a food handler's rating is referred to the U.S. Public Health Service Hospital by the Coast Guard at the time he applies for his rating.  He is examined at that time to determine specifically whether he is free from tuberculosis and venereal disease.  Once certified, apparently no further examination is required.  Thus, the food handler who is determined to be free of communicable diseases at the time he receives his Coast Guard certificate therefore may continue indefinitely to work as a food handler without any further examination of any type.

             [[Orig. Op. Page 5]]

            In view of the broad language in 42 U.S.C.A. 264 and the type of examination and certification required by the Coast Guard and the decisions of the U. S. Supreme Court, particularly the Compagnie Francaise case cited above, it would appear to us to be completely unrealistic and difficult to argue that the Congress or the Federal government has preempted the field of inspection and licensing of food handlers employed in interstate or foreign commerce, to the exclusion of state law.  Therefore, even if the Washington State Ferry System were held to be an integral part of interstate or foreign commerce, it does not appear to us that the imposition of reasonable state regulations would be precluded by either Federal law or constitutional right.

            In accordance with the foregoing, we conclude that food and beverage service workers, as defined by chapter 69.06 RCW, who are working aboard Washington State Ferries must obtain and place on file with their employer a food and beverage service worker's permit as prescribed by the State Board of Health pursuant to RCW 69.06.010.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

OLIVER J. NEIBEL, JR.
Assistant Attorney General