Jenna’s Daily Journal column today is excellent. It discusses a new controversy over whether dogs should be allowed in the outside areas of restaurants. Read her column to get all the background.
Apparently, there’s a bit of confusion among the counties and the state as to whether the current regulations would allow dogs. The statutory authority for this regulatory provision comes from G.S. 130A-248.
The state’s Division of Environmental Health is going to amend the regulations soon to clarify whether dogs are allowed. For the most part, this is purely a policy decision for the Division not a legal decision, since the regulations (agency-created), not the statutes (legislature-created), are what is confusing the counties. However, the state should at least consider the intent of those that drafted the existing regulations.
The confusion that exists is really hard for me to understand–it seems pretty clear to me that dogs are not prohibited in outside areas of restaurants. This is the same conclusion reached by the Wake County attorney.
WARNING: Lots of legalese to follow. Here’s the regulatory language:
Except as specified below, live animals shall not be
allowed in a food preparation or storage area. Live animals shall be allowed
in the following situations if their presence will not result in the
contamination of food, clean equipment, utensils, linens, and unwrapped
single-service and single-use items:
(1) fish or crustacea in aquariums or display
tanks;
(2) patrol dogs accompanying police or security
officers in offices and dining, sales, and storage areas; and
(3) service animals accompanying persons with
disabilities in areas that are not used for food preparation.
Jenna explains the reported confusion:
The News & Observer points out that the provision that local
and state officials cite as their authority for banning dogs is
contradictory. The first sentence says, ?live animals shall not be
allowed in a food preparation or storage area,? which doesn?t appear to
exclude animals from dining areas.”
But officials cite an exception to the rule that allows ?service
animals accompanying persons with disabilities in areas that are not
used for food preparation.? They interpret the exception to mean that
nonservice animals are excluded from dining areas ? both inside and
outside.
1) Exceptions Don’t Expand Prohibitions: The general prohibition is the first line: live animals can’t go in food preparation or
storage areas. Then you have mandated exceptions to the general
prohibition–one doesn’t look to exceptions to expand a prohibition.
2) Not Contradictory: All three subsections are inconsistent (or incompatible) with the general prohibition, and therefore are exceptions to the general rule. As a result, there is no contradiction.
The service animal exception states that service animals aren’t allowed in food preparation areas only. Storage areas are not included. In fact, service animals must be allowed in storage areas.
The service animal exception really is no different than the patrol dog exception. It makes it clear that patrol dogs can go into storage areas. Unless both these exceptions existed from the general prohibition, both service animals and patrol dogs couldn’t go into storage areas.
3) Mandates: The reason why the exceptions include additional areas (beyond food prep and storage areas) where animals can go (e.g. dining areas) is because these exceptions are also mandates. Just because there’s a prohibition on some areas where live animals can go doesn’t mean that live animals, as a matter of law, must be allowed to go into other areas.
For example, if I say dogs can’t go into storage areas, that doesn’t mean dogs must be allowed to go into dining areas. If I want dogs to be required by law to be allowed in dining areas, I would be required to say that. This is exactly what this regulatory section is doing–stating a prohibition on where animals can’t go and then creating mandates on where animals must be allowed to go.
In addition, just because there’s a mandate that service animals are allowed in dining areas doesn’t mean, as seems to be inferred, that there’s a prohibition on nonservice animals from going into dining areas as well. The fact that nonservice animals weren’t included in the regulations simply means that the law doesn’t require restaurant owners to allow nonservice animals in dining areas. It doesn’t say anything, one way or another, whether nonservice animals can go in dining areas.
Bottom Line: These regulations don’t prohibit animals from being in dining areas.
