When a chain restaurant builds a new location using a corporate prototype plan, can a North Carolina county environmental health specialist re-review and disapprove the inside design, or only the site-specific outside factors?

Plain-English summary

A Guilford County attorney asked how plan review for prototype franchise or chain restaurants was divided between State reviewers and county environmental health specialists. The AG said 15A N.C.A.C. 18A.2607 required approval by both the State and county, but the county's authority came from the State's delegation under G.S. 130A-4.

The State approved the prototype plan. That approval generally did not cover facilities outside the restaurant walls because those might depend on the site. The county specialist could review site-specific factors for a particular restaurant, under State supervision, but could not disapprove a part of the plan already approved by the State. The county did not need to re-review the approved building plan except where it had changed. The opinion says any identified or recommended change to a State-approved plan must itself be approved by the State.

The opinion does not enumerate site-specific factors, prescribe a procedure for reporting suspected code violations, or say when construction may begin. It addresses prototype chain and franchise plans, without giving a separate rule for independently designed restaurants.

Currency note

This is a 1995 reading of the cited rule and statutes. Check the current food-service rules and the State's present delegation before using it for a new restaurant project.

Background and statutory framework

The opinion describes restaurant sanitation as a State program. It says the State had preempted county rulemaking on the grading and permitting of food and lodging facilities under G.S. § 130A-39(b). County specialists performed only the review delegated to them under G.S. 130A-4. The central division in this opinion is between a State-approved prototype and site-specific features for a particular location.

Common questions

May a county specialist reject a part of a prototype already approved by the State?

The AG said no. The opinion says a county specialist has no authority to disapprove a State-approved part of the plan.

What happens when a change to the approved plan is identified or recommended?

The opinion says the change must receive State approval. It does not specify who reports the change or describe a food-code violation procedure.

Does State prototype approval alone complete all plan review?

No. The opinion says the rule requires approval by both State and county and assigns the county review of site-specific factors. It does not specify a construction-start deadline or permit sequence.

Does this opinion explain review of independently designed restaurants?

No. The request and answer concern prototype franchise or chain restaurants.

Source

• Landing page: https://ncdoj.gov/opinions/food-service-establishments-standards-and-approvals-of-plan/

Citations

• 15A N.C.A.C. 18A.2607 (plan approval)
• G.S. 130A-4 (delegated county authority)
• G.S. § 130A-39(b) (county rulemaking restriction)

Original opinion text

August 25, 1995

J. Edwin Pons
Guilford County Attorney's Office
Post Office Box 3427
Greensboro, NC 27402

RE: Advisory Opinion; Food Service Establishments; Standards and Approvals of Plan; 15A NCAC 18A.2607

Dear Mr. Pons:

You have asked for an explanation of the relative duties of the county environmental health specialists and the State reviewers regarding plan review of prototype "franchised" or "chain" restaurants.

15A N.C.A.C. 18A.2607 requires approval of these plans by both the State and the county. However, the county's responsibilities are only those which have been delegated to it by the State under G.S. 130A-4. The restaurant sanitation program is a State program. In fact, the State has so completely preempted the field that a county is specifically prohibited from enacting a rule concerning the grading and permitting of food and lodging facilities. See, G.S. § 130A-39(b).

The State approves prototype plans for franchised or chain restaurants. Generally, the approval does not include facilities outside of the walls of the restaurant building because the outside facilities may be affected by the site. The county environmental health specialists, therefore, are delegated the authority to review those site specific factors which affect the particular restaurant. The county environmental health specialists exercise that authority under the supervision of the State and have no authority to disapprove any part of the plan which has been approved by the State. See, G.S. 130A-4. The site rarely affects the inside design of the building. Since the county cannot disapprove the plan that has been approved by the State, the county need not re-review the plan for the construction and contents of the building except to the extent that changes have been made to the approved plan. If changes to the State approved plan are identified or recommended, those changes must be approved by the State.

If we can be of further assistance to you or if you have additional questions, please do not hesitate to call on us.

Ann Reed
Senior Deputy Attorney General

Mabel Y. Bullock
Special Deputy Attorney General