HEALTH ‑- COUNTIES ‑- CITIES AND TOWNS ‑- BOARDING HOMES FOR THE AGED ‑- PLACES OF REFUGE ‑- REGULATION AND LICENSING

HEALTH ‑- BOARDING HOMES FOR THE AGED ‑- PLACES OF REFUGE ‑- REGULATION AND LICENSING.

COUNTIES ‑- BOARDING HOMES FOR THE AGED ‑- PLACES OF REFUGE ‑- REGULATION AND LICENSING.

CITIES AND TOWNS ‑- BOARDING HOMES FOR THE AGED ‑- PLACES OF REFUGE ‑- REGULATION AND LICENSING.

Local authorities may not enact or enforce local ordinances or regulations pertaining to the licensure and/or inspection of places of refuge or boarding homes for the aged, as defined by chapter 253, Laws of 1957 (chapter 74.32 RCW).

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                                                                February 11, 1958

Honorable Bernard Bucove, M.D.
State Director of Health
214 General Administration Building
Olympia, Washington                                                                                      Cite as:  AGO 57-58 No. 156

Dear Sir:

            You have requested the opinion of this office on the following question:

            In view of the enactment of chapter 253, Laws of 1957 (chapter 18.20 RCW), may cities, towns or counties enact or enforce laws, ordinances or regulations pertaining to the licensure and/or inspection of boarding homes for the aged or places of refuge?

            It is our opinion that this question must be answered in the negative.

                                                                     ANALYSIS

            Prior to the enactment of chapter 253, Laws of 1957, the licensure and regulation of establishments providing housing for aged persons was vested in local authorities by chapter 74.32 RCW pertaining to places of refuge.

             [[Orig. Op. Page 2]]

            RCW 74.32.010 defined a place of refuge as "any . . . building or dwelling for housing the aged, infirm, or imbeciles, wherein three or more persons, not related by blood or marriage to the . . . operator, . . . are lodged or boarded more than fifteen days in any calendar month."  RCW 74.32.020 made it illegal for any person to maintain a place of refuge as defined without obtaining a license from the county commissioners or governing body of the city or town.  These official bodies were empowered by RCW 74.32.090 to make rules and regulations pertaining to the construction and operation of such institutions.

            The legislature, however, in enacting chapter 253, Laws of 1957, repealed chapter 74.32 RCW in its entirety and provided in its stead a comprehensive statute relating to the licensure and inspection of boarding homes for the aged.  This act provides for the enactment of state‑wide [[statewide]]rules and regulations by the state board of health after consultation with an advisory council constituted by law.  The licensure, enforcement and inspection, of all such homes are vested in the state department of health or in such department and a local health department jointly as provided in § 10 of the act (RCW 18.20.100).  This section reads as follows:

            "Where it is determined by the director together with the jurisdictional health officer, that a city, county, city-county health department or health district is qualified to carry out the provisions of this act, he shall authorize such political subdivision or agency to administer and enforce this act, and the rules and regulations promulgated hereunder.

            "Any such authorization may be withdrawn by the director after thirty days' notice in writing to the authorized department should the director determine that the authorized department is unwilling or unable to carry out the duties and responsibilities hereunder."  (Emphasis supplied.)

            A comparison of the provisions of chapter 253, Laws of 1957, with chapter 117, Laws of 1951 (chapter 18.51 RCW), relating to the regulation of nursing homes, reveals that the administrative provisions of the two enactments are essentially identical.  Compare RCW 18.51.020 with 18.20.100; RCW 18.51.090 with 18.20.110.

            A previous opinion of this office dated June 12, 1951, addressed to J. A. Kahl, M.D., Acting State Director of Health (AGO 51-53-69) [[Opinion No. 51-53 No. 69]], a copy of which is enclosed, held that the state has preempted the field of regulation of nursing homes to the exclusion of local authorities.  Inasmuch as the provisions interpreted by that opinion are substantially identical with the corresponding sections of chapter 253, the reasoning of this earlier opinion would  [[Orig. Op. Page 3]] likewise apply to our answer to your query.  Accordingly, the appropriate part of that opinion is quoted below in its entirety.

            "It is a fundamental principle of law that municipal ordinances are inferior and subordinate to the general laws of the state.  Indeed, it is provided by the constitution in section 11, Article XI, that

            "'Any county, city, town or township, may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws.'

            "It is an equally fundamental principle of law that the mere fact that the state has legislated on a subject does not of necessity deprive a municipality of the power to deal with the subject by ordinance.  State ex rel. Isham v. Spokane, 2 Wn. (2d) 392, 98 P. (2d) 306.  Concurrent jurisdiction by the state and a municipality may exist.  Nevertheless, if the state has asserted its sovereign jurisdiction over a given subject matter and there is no room for concurrence, the municipal regulations or ordinances must give way.  State ex rel. Webster v. Superior Court, 67 Wash. 37, 120 Pac. 861; L.R.A. 1915-C 287, Ann. Cas. 1913-D 78;Seattle Electric Co. v. Seattle, 78 Wash. 203, 138 Pac. 892.  Therefore, inquiry must be directed toward the question as to whether or not the legislature intended that a local authority should exercise its powers over a particular subject matter.

            "In passing chapter 117, Laws of 1951, the state has acted in the field of regulation of nursing homes, and the preservation of public health in this aspect has become of general concern to the state.  Can local authorities operate under or enact regulations governing the same subject matter?  The opinion of this office is to the contrary.

            "An examination of the statute does not disclose that a nursing home in order to be invalid operation may also have to conform to local health ordinances.  There is no positive provision that local authorities may also issue licenses for nursing homes.  Generally, it is true that local ordinances may enlarge upon the provisions of a statute to a greater extent than the statute requires.  State ex rel. Isham v. Spokane, supra.  However, section 3 of the act makes provision for cities, counties, or district health departments to participate in the control of nursing homes.  This express reference  [[Orig. Op. Page 4]] to local enforcement of the provisions of chapter 117, Laws of 1951, can only mean that the legislature intended that the local authorities act solely in this manner.  There is no room for concurrent jurisdiction.  To hold otherwise would invoke a lack of uniformity of control over the operation of nursing homes.  It is our opinion that the state has preempted the field of regulation of nursing homes to the exclusion of local authorities except as provided in the statute, and therefore, local authorities may not pass regulations which are more stringent than those provided for in chapter 117, Laws of 1951."

            We therefore conclude that local authorities may not enact or enforce local ordinances or regulations pertaining to the licensure and/or inspection of places of refuge or boarding homes for the aged as defined by chapter 253, Laws of 1957.

            We hope that the foregoing satisfactorily answers your inquiry.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

LIVER J. NEIBEL, JR.
Assistant Attorney General