August 21, 2007

ATTORNEY GENERAL OPINION NO. 2007- 24

H. David Starkey

Chief Legal Counsel

Kansas Department of Agriculture

109 SW 9th Street

Topeka, Kansas 66612

Re:	Hotels, Lodginghouses and Restaurants--Food Service and Lodging Establishments--License for Food Service Establishment Required

Public Health--Food, Drugs and Cosmetics--Retail Food Stores; License Requirements, Fees, Inspections, Denial, Hearing, Display

Synopsis:	The limited regulation authority granted to the Secretary of Agriculture is not sufficient to establish a single composite or component license for a retail food store and food service establishment when the retail food store owns and operates a food service establishment located in the same retail food store. Cited herein: K.S.A. 36-501; 36-507; K.S.A. 2006 Supp. 65-688; 65-
689; 74-581.

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Dear Mr. Starkey:

As Chief Legal Counsel for the Kansas Department of Agriculture, you inquire whether the Secretary of the Department of Agriculture (Secretary) may provide by regulation for a single license for a retail food store and food service establishment when the retail food store owns and operates a food service establishment located in the same retail food store.

While it appears reasonable in the scenario you present for the Department to issue one license, as opposed to two, due to the limited regulation authority within the current statutory licensure scheme, two licenses are required.

The Food Service and Lodging Establishments Act1 provides the statutory basis by which the Secretary licenses2 food service establishments.3 Within that Act, K.S.A. 36-507 grants the Secretary authority to adopt regulations, but only to establish "minimum standards for the safe and sanitary operation of food service establishments" that are "designed to ensure the health, comfort and safety of the guests in food service establishments." This is the extent of the Secretary's authority to adopt regulations, which clearly does not include authority to establish a single composite or component license for a retail food store and food service establishment when the retail food store owns and operates a food service establishment located in the same retail food store.

The Secretary also licenses4 retail food stores. The Secretary's authority to adopt regulations under the retail food stores licensing statutes5 is even more limited, authorizing the Secretary to adopt regulations "establishing a graduated inspection fee schedule to cover all of the cost of inspection of retail food stores" with a maximum fee not exceeding $200.6 Additionally, the Secretary has authority to "adopt rules and regulations necessary to carry out the provisions of this section."7 "This section" refers to K.S.A. 2006 Supp. 65-
688.8 Besides the authority to establish appropriate inspection fees, this section grants the Secretary authority to adopt regulations that pertain to inspections themselves. Again, this limited regulation authority is not sufficient to establish a single composite or component license for a retail food store and food service establishment when the retail food store owns and operates a food service establishment located in the same retail food store.

We are constrained to reach this conclusion based on established case law as exemplified by Woods v. Midwest Conveyor Co.9 In Woods, the Kansas Commission on Civil Rights had adopted a regulation that allowed it to award punitive damages. This regulation was declared void by the Court as exceeding the statutory authority of the agency:

"However, the Commission cannot pull itself up by its own bootstraps. The power to adopt rules and regulations is administrative in nature, not legislative, and to be valid must be within the authority conferred. An administrative rule or regulation which goes beyond that which the legislature has authorized, or which violates the statute, or which alters, extends, or limits the source of its legislative powers is void."10

Should the Secretary of Agriculture wish to proceed with single composite or component license, remedial legislation would be required.

Sincerely,

Paul J. Morrison

Attorney General

Camille Nohe

Assistant Attorney General

PJM:MF:CN:jm