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12/30/87 the County of Macon, v. Board of Education of

December 30, 1987

THE COUNTY OF MACON, PLAINTIFF-APPELLEE

v.

BOARD OF EDUCATION OF DECATUR SCHOOL DISTRICT NO. 61, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

518 N.E.2d 653, 165 Ill. App. 3d 1, 116 Ill. Dec. 31 1987.IL.1947

Appeal from the Circuit Court of Macon County; the Hon. John L. Davis, Judge, presiding.

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. GREEN, P.J., and KNECHT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

Defendant, the Board of Education of Decatur School District No. 61 (district), appeals from an order of the circuit court of Macon County enjoining it from further dispersing food for consumption by its students, faculty, and the public through its public school cafeterias until plaintiff, the County of Macon, has inspected the premises and has issued certificates of operation. For the reasons that follow, we affirm.

On May 10, 1977, Macon County enacted and published an ordinance entitled Macon County Food-Service Sanitation Ordinance, which regulates food-service operations in its jurisdiction. According to the county ordinance all food-service operations in Macon County are required to be licensed. The ordinance is administered in Macon County by the Macon County Health Department (Health Department). Among other things, the Health Department makes sanitary inspections of food-service operations throughout the county.

The district maintains and operates cafeterias in Decatur public schools for its students and teachers. Sanitary inspections of the district's cafeteria were made by the Health Department at least twice a year for 10 years, ending with the year 1985. On October 30, 1985, the district notified the Health Department that it did not desire a license from the Health Department nor did it believe that it was required to secure such a license. The district further informed the Health Department that under its interpretation of section 3-14.22 of the School Code (Ill. Rev. Stat. 1985, ch. 122, par. 3-14.22), only the regional superintendent of schools had jurisdiction concerning the inspection of school cafeterias. On September 11, 1986, the Health Department notified the Decatur school district that it did have the authority to inspect and license the Decatur school district's food-service facilities and that it would be inspecting the public school cafeterias that fall. On September 15, 1986, the district informed the Health Department that it would not change its position on the matter and, therefore, refused to comply with the licensing ordinance or permit sanitary inspections of its school cafeterias. As a result of the controversy, no further inspections were made.

On November 26, 1986, Macon County filed a complaint in the circuit court against the district alleging that the Health Department was acting within its jurisdictional scope in inspecting the school cafeterias. Macon County sought enforcement of its licensing ordinance and to enjoin the district from barring sanitary inspections of the school cafeterias by the Health Department. The district filed an answer to the complaint and a motion to dismiss the complaint (Ill. Rev. Stat. 1985, ch. 110, par. 2-615), alleging that the inspection of school property was within the exclusive jurisdiction of the regional superintendent of schools and that it was immune from suit. The motion to dismiss was denied and a bench trial was held on May 13, 1987.

The evidence adduced at trial reveals the following. In the operation of the district, a school lunch program is provided to students and faculty. The Decatur school district owns the cafeterias and contracts a company named Araserve to manage and operate the cafeterias. Araserve orders all food and supplies necessary and provides the management of all cafeteria employees. The cafeteria facilities and utensils are the property of the district.

A dispute arose in the fall of 1986 as to whether or not the Health Department had authority to inspect the school cafeterias. In September of 1986, the Health Department was making an inspection of Eisenhower High School. The inspector asked James P. Hendren, the director of business affairs and treasurer for the Decatur Public School System, to be present for the inspection. During the inspection the inspector noticed a roach problem in the Eisenhower facility. The inspector told Hendren that he should combine the chemical Pyrethrin with the chemical Dursban that was already being used to remedy the roach problem. The inspector also allegedly threatened to "shut [the operation] down that day, on the spot" if the chemicals were not applied. Hendren then contacted Paul Fleetwood, a licensed technician on staff at the district. Fleetwood stated that the use of this chemical was not allowed in a food preparation area. Hendren informed the inspector of the conflict, and the inspector responded that the district should hire an outside agency to apply the chemicals. The district then hired Ducy Chemical Company to apply only Dursban, the same chemical the school district had been using. Thereafter, the district contacted its attorney, who stated in his opinion, the county Health Department had no jurisdiction in the matter as the regional superintendent was the only person who had jurisdiction to inspect the school premises pursuant to section 3-14.22 of the School Code. Ill. Rev. Stat. 1985, ch. 122, par. 3-14.22.

On June 12, 1987, the trial court entered its judgment order finding that the Health Department had authority pursuant to the provisions of "An Act in relation to the establishment and maintenance of county and multiple-county public health departments" (Public Health and Safety Act) (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 20c13 et seq.) to make sanitary inspections of the facilities owned, occupied, and used by the district in the dispersion of food to its students, faculty, and the public. The court further found that the operation of the school cafeteria was subject to the provisions of the Macon County Food-Service Sanitation Ordinance. Hence, the court enjoined the district from further dispersing food for consumption by its students, faculty, and the public through its public school cafeterias until the Health Department was allowed to inspect the premises and issue the appropriate certificates of operation. The district now appeals. We have allowed the Illinois Attorney General to file an amicus brief.

The district first contends that the Health Department had no authority to inspect its public school cafeterias. It is the district's position that the regional superintendent of schools has the exclusive authority to inspect its schools. After reviewing the relevant statutes and the authority cited by the parties, together with the facts in this case as reflected by the record before us, we conclude that the Macon County Health Department has the authority to inspect public school cafeterias within its jurisdiction.

The State Department of Public Health has general supervision of the interests of health and lives of the people of the State of Illinois. (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 22.) The State Department of Public Health may adopt, promulgate, repeal, and amend rules and regulations and make such sanitary investigations and inspections as may be deemed necessary to preserve and improve the public health, consistent with the law regulating sanitary practices relating to persons handling food served to the public. (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 22(c).) Section 2 provides that all local boards of health and health authorities of any locality shall enforce the rules and regulations so adopted. (Ill. Rev. Stat. 1985, ch. 111 1/2, par. ...


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