Can a New York county adopt a local law requiring food service establishments (restaurants, convenience stores, grocery stores) to employ at least one certified 'responsible on-site' food handler, or is that occupied by State law?

Subject

Authority of a New York county to enact a local law establishing a Food Service Employee Certification Program for restaurants, convenience stores, and grocery stores; whether the Program is preempted by the Public Health Law or the Agriculture and Markets Law.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-41_pw.pdf

Plain-English summary

Monroe County (Rochester) was designing a Food Service Employee Certification Program. Every food service establishment in the county, defined broadly to include restaurants, convenience stores, supermarkets, and any place where food is prepared and intended for individual-portion service, would have to employ at least one "Responsible On-Site Person" who held a county-issued Food Service Employee Certificate, obtained by attending a county-run training and passing an exam on food handling. The county attorney asked whether the county had authority to enact this and, if so, whether State law preempted it.

The AG cleared the Program on both fronts. New York counties have broad home rule authority under N.Y. Const. art. IX, § 2(c)(10) and Municipal Home Rule Law § 10(1)(ii)(a)(12) to enact laws relating to the government, protection, order, conduct, safety, health, and well-being of persons or property. Food handler certification fits comfortably within that police-power grant.

As to preemption, the AG examined both regulatory schemes the Program would touch. The Public Health Law expressly contemplates supplementation: PHL § 228(2) authorizes counties to enact sanitary regulations not inconsistent with the State Sanitary Code, and § 228(3) deems any local law meeting the State's minimum standards "not inconsistent." More tellingly, the State Sanitary Code itself encourages food-handler training; 10 NYCRR § 14-1.73 lets the permit-issuing official (the county health commissioner) "establish and conduct or designate training programs and require that owners and/or operators of food service establishments attend them."

The Agriculture and Markets Law lacks an express preemption clause and, in § 3, declares a policy in favor of local initiative and home rule. Section 16(33) actually requires the Commissioner to ensure license applicants comply with local laws. Article 20-C and 1 NYCRR Part 271 set sanitary baselines but do not occupy the field of food-handler training. The AG also walked through Jancyn Mfg. Corp. v Suffolk County, where the Court of Appeals upheld a county sewage-additive regulation more restrictive than State law, to confirm that a stricter local supplement is not inconsistent with a State law unless it prohibits what State law affirmatively permits or imposes additional restrictions that inhibit the operation of the State scheme. The Monroe Program did neither; it merely made mandatory what State regulators only encouraged.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is "home rule" for counties?
New York's constitutional home rule provision (art. IX, § 2(c)) and the Municipal Home Rule Law together give counties (and cities, towns, and villages) broad authority to enact local laws on certain enumerated subjects, including the protection, safety, health, and welfare of their residents. The grant is broad but not unlimited: a local law that conflicts with State law, or that operates in a field the State has preempted, is invalid.

What is preemption?
Preemption is the doctrine that says a local law is invalid when the State has occupied the field, expressly or by implication. The Court of Appeals' test in Jancyn Mfg. Corp. v Suffolk County asks whether the State has expressly declared its intent to preempt, or whether the statutory scheme is so detailed and broad in scope that the Legislature must have intended to supersede all local regulation of the subject matter.

Why didn't the State scheme preempt Monroe County's certification program?
Because the Public Health Law and the Agriculture and Markets Law neither expressly preempted local sanitary regulation, nor did they create a scheme so comprehensive that local supplementation was impossible. The Public Health Law affirmatively invites local sanitary regulations as long as they meet State minimums (PHL § 228(2)–(3)). The Agriculture and Markets Law declares a home-rule-friendly policy in § 3 and directs the Commissioner to check license applicants' local-law compliance in § 16(33).

Can a county impose stricter requirements than the State?
Yes, generally. As Chief Judge Cardozo wrote in Adler v Deegan, "the concern of the State to protect the health and welfare of its inhabitants may not stand in the way of action by the city consistent with the ends envisaged by the State, but adding greater safeguards with reference to related ends that are municipal or urban." A local law adding requirements that point in the same direction as the State scheme is not inconsistent with State law.

What about chain restaurants operating across multiple counties?
The opinion did not address that directly, but a county-by-county certification scheme means a multi-county operator may face different rules in each county. The AG's view is that the State has not made multi-county uniformity a precondition of regulation; if uniformity is desirable, that is for the State Legislature to address by amendment.

Did the AG say the Program had to set its standards as high as the State's?
Yes. The opinion repeatedly noted that the county's training and certification must meet at least the minimum standards prescribed by the State Sanitary Code (PHL § 228(3)) and the State's food handling regulations. A local program that fell below the State minimum would be inconsistent with State law and invalid.

Background and statutory framework

The State Sanitary Code is the principal regulatory framework for restaurant and food-service sanitation in New York. The Public Health Council adopts the Code under PHL § 225(4). Part 14 of the Code (10 NYCRR Part 14) governs food service establishments, setting requirements for facilities, food handling, temperature control, and employee hygiene. The Code's permit system is administered by "permit-issuing officials," typically county health commissioners in counties that operate a county health department under PHL § 347.

The Agriculture and Markets Law overlaps where retail food sales (rather than on-premises preparation) are concerned. Article 20-C licenses food service establishments outside the Public Health Law framework, and 1 NYCRR Part 271 sets retail-food sanitary standards. The Department's enabling statute, AML § 16, includes both a cooperation duty with local health departments (§ 16(24)) and a duty to require license applicants to demonstrate compliance with local laws (§ 16(33)). Section 3 declares the statute's policy favors "local initiative and government" and "home-rule measures."

The Court of Appeals' Jancyn line of cases is the central preemption authority. In Jancyn, Suffolk County had prohibited the sale of sewage-system cleaning additives that lacked county approval, while the State scheme regulated the same products through the DEC. The Court found no preemption and no express conflict: regulating the same subject matter is not, by itself, a conflict; the local law must "prohibit what State law expressly permits" or block the operation of State law. Hertz Corp. v City of New York (preempting New York City's limitation on out-of-borough rental-car surcharges) and Matter of Bri-Mar Corp. v Town Board of the Town of Knox (upholding a stricter local sanitary regulation) are companion authorities at the two ends of the spectrum.

Citations

• N.Y. Const. art. IX, § 2(c)(10) (home rule)
• Municipal Home Rule Law § 10(1)(ii)(a)(12) (local laws on health and welfare)
• Public Health Law § 225(4) (State Sanitary Code)
• Public Health Law § 228 (relation of State Sanitary Code to local regulation)
• Public Health Law § 347 (powers of county boards of health)
• Public Health Law §§ 1350 et seq. (food handling provisions)
• Agriculture and Markets Law § 3 (policy favoring home rule)
• Agriculture and Markets Law § 16(24) (cooperation with local health departments)
• Agriculture and Markets Law § 16(33) (license applicant local-law compliance)
• Agriculture and Markets Law §§ 251-z-1 et seq. (Article 20-C food service licensing)
• 10 NYCRR § 14-1.73 (permit-issuing official may require training)
• 10 NYCRR § 14-1.190 (definition of "permit-issuing official")
• 1 NYCRR § 261.8(c) (retail food employee training)
• New York State Club Assn., Inc. v City of New York, 69 NY2d 211 (1987)
• Jancyn Mfg. Corp. v Suffolk County, 71 NY2d 91 (1987)
• Hertz Corp. v City of New York, 80 NY2d 565 (1992)
• Matter of Bri-Mar Corp. v Town Board of the Town of Knox, 74 NY2d 826 (1989)
• Bracker v Cohen, 204 AD2d 115 (1st Dept 1994)
• Adler v Deegan, 251 NY 467 (1929)

Original opinion text

Opn. No. 96-41
NY CONST, ART IX, § 2(c)(10); AGRICULTURE AND MARKETS LAW, ART 20-C, §§ 3, 16, 251-z-1, et
seq.; MUNICIPAL HOME RULE LAW § 10(1)(ii)(a)(12); PUBLIC HEALTH LAW §§ 225(4), 228, 347,
1350, et seq.; 1 NYCRR § 261.8(c); 10 NYCRR, PART 14, §§ 14-1.73, 14-1.190.
A county is authorized to establish a Food Service Employee Certification Program for employees of
establishments where food is handled, such as restaurants, convenience stores and grocery stores. The
Program would not be preempted by State law.
November 14, 1996
Charles S. Turner, Esq. Informal Opinion
County Attorney No. 96-41
Monroe County Office of the Attorney General
County Office Building
39 West Main Street, Room 307
Rochester, NY 14614
Dear Mr. Turner:
Your deputy has asked whether Monroe County is authorized to enact a local law establishing a Food
Service Employee Certification Program (the "Program") for certain employees of establishments where
food is handled, such as restaurants, convenience stores and grocery stores. Assuming the county is
authorized to establish the Program, you inquire whether it would be preempted by State law.
As described in your letter, the proposed local law would require all "Food Service Establishments"
operating within the county to employ at least one "Responsible On Site Person" in possession of a valid
"Food Service Employee Certificate" (the "Certificate"). Included within the term "Food Service
Establishments" is any place where food is prepared and intended for individual portion service to the
public (whether consumption occurs on or off the premises and regardless of whether there is any charge
for the food), any facility under permit as required by Part 14 of the New York State Sanitary Code and
those retail food operations under the jurisdiction of the New York State Department of Agriculture and
Markets. Included are restaurants, convenience stores and supermarkets. The "Responsible On-Site
Person" may be an operator or employee of the Food Service Establishment who has direct responsibility
and is regularly involved in the preparation of food or the supervision of those who prepare food in the
establishment.
The Certificate would be obtained by the operator or employee by attending a Monroe County Food
Service Employee Certification Program and earning an acceptable score on an examination on proper
food handling practice. Notwithstanding any provision of the proposed law or of Part 14 of the New
York State Sanitary Code, no permit would be issued to a food service establishment until it has
employed a Responsible On-Site Person in possession of a valid Certificate. The proposed law states that
nothing therein shall be construed to limit the application of all other provisions of the Monroe County
Sanitary Code or the New York State Sanitary Code pertaining to the issuance of permits to food service
establishments.
The home rule provisions of the State Constitution and the Municipal Home Rule Law grant broad
authority to local governments, including counties, to enact local laws relating to the government,
protection, order, conduct, safety, health and well-being of persons or property therein, provided that
those enactments are not inconsistent with any general law. NY Const, Art IX, § 2(c)(10); Municipal
Home Rule Law § 10(1)(ii)(a)(12); see, New York State Club Assn., Inc. v City of New York, 69 NY2d
211 (1987). The proposed Program clearly relates to these purposes and is thus within the county's
police power, provided that the law is not inconsistent with the Constitution or State law.
A local law will be ruled invalid as inconsistent with State law not only where an express conflict exists
between it and State law, but also where the State has clearly evinced an intent to preempt an entire field,
thereby precluding local regulation of the subject matter. Jancyn Mfg. Corp. v Suffolk County, 71 NY2d
91, 96-97 (1987); Hertz Corp. v City of New York, 80 NY2d 565, 569 (1992). The intent to preempt may
be express or implied. Thus it may be evidenced by an express statement in the statute, or by the
enactment of a statutory scheme so detailed and broad in scope so as to require a determination that the
Legislature impliedly intended to supersede all existing and future regulation of the subject matter.
Jancyn Mfg. Corp. v Suffolk County, supra, 71 NY2d at 99.
The Program proposes to require certification of employees at food establishments regulated by the
Department of Health as well as the Department of Agriculture and Markets. Thus, we have examined
the pertinent provisions of the Public Health Law, the Agriculture and Markets Law and the regulations
promulgated thereunder to assess whether the State has intended to foreclose any such local regulation,
or whether the Program is otherwise inconsistent with existing State statute or regulation.
The Public Health Law grants authority to the Public Health Council to enact sanitary regulations,
known as the State Sanitary Code. Public Health Law § 225(4). The Public Health Law contains no
express preemption provision. On the contrary, while it states that the provisions of the Sanitary Code
shall supersede all local ordinances inconsistent therewith (Public Health Law § 228[1]), it provides that
"[e]ach county . . . may enact sanitary regulations not inconsistent with the sanitary code established by
the public health council". Public Health Law § 228(2). Local laws, ordinances and regulations that
comply with at least the minimum standards prescribed by the Sanitary Code are deemed not
inconsistent with the Sanitary Code. Public Health Law § 228(3); see, Matter of Bri-Mar Corp. v Town
Board of the Town of Knox, 74 NY2d 826 (1989). Further, Public Health Law § 347, addressing more
specifically the powers of county boards of health, similarly authorizes those entities to adopt
regulations not inconsistent with the statute or the Sanitary Code. See, 1980 Op Atty Gen (Inf) 198.
These provisions specifically open the subjects within the State Sanitary Code to local regulation,
authorizing localities to supplement the State regulations, provided that such local enactments are not
inconsistent with, and meet the minimum standards of, the Sanitary Code.
We have not discerned any inconsistency between the proposed Program, as described in your letter, and
any existing provision of the Public Health Law or the Sanitary Code. Title VIII of the Public Health
Law addresses food handling, setting forth certain sanitary requirements and the authority of the
Commissioner to conduct inspections. Public Health Law §§ 1350, et seq. Part 14 of the Sanitary Code,
pertaining to food service establishments, contains additional detailed regulations regarding food
handling practices. Neither the statute nor the Sanitary Code requires a training and certification
program on food handling practices. Significantly, however, the Sanitary Code provides that "[t]he
permit-issuing official may establish and conduct or designate training programs and require that owners
and/or operators of food service establishments attend them". 10 NYCRR § 14-1.73. As regards a county,
the "permit-issuing official" is defined as the county health commissioner. 10 NYCRR § 14-1.190. Thus,
the proposed Program would not be inconsistent with the Public Health Law or the Sanitary Code, but is
in fact authorized and encouraged by the foregoing regulation. The Program would, of course, have to
train and certify food handlers in accordance with at least the minimum applicable standards for food
handling set forth in the State statutes and regulations.
Similarly, the Agriculture and Markets Law contains no express preemption provision. Unlike the Public
Health Law, it does not explicitly authorize local sanitary regulation. However, the statute endorses
"local initiative and government" and "home-rule measures" in its "Declaration of policy and purposes"
(Agriculture and Markets Law § 3), negating any legislative intent to fully preempt local legislation
regarding its subject matter. Notably, Agriculture and Markets Law § 16(24) directs the Department of
Agriculture and Markets to "[c]o-operate with local health departments . . . in preventing the production,
manufacture, sale or offering for sale of fraudulent, deleterious or unwholesome food". Also, the
Department has power to require each applicant for a license, permit or registration issued under the
provisions of the Agriculture and Markets Law to satisfy the Commissioner that the applicant is or will
be in compliance with all ordinances or local laws of the county, city, town and village in which the
business or occupation will be conducted and which have a bearing on the applications. Id., § 16(33).
Further, there is no evident inconsistency between the proposed Program and any existing Agriculture
and Markets statute or regulation. Article 20-C of the Agriculture and Markets Law governs food service
establishments, providing for licensing and inspection of such establishments for compliance with
sanitary practices. Agriculture and Markets Law §§ 251-z-1, et seq. The Agriculture and Markets
regulations for retail food stores and other food establishments under the jurisdiction of the Department
set forth food handling and sanitary requirements for such facilities. 1 NYCRR Part 271. No provision of
the Agriculture and Markets Law or regulations thereunder requires a training and certification program
on food handling practices. However, the regulations do address the education and training of personnel
responsible for identifying sanitation failure and food contamination and of food handlers and
supervisors in providing that "plant management shall take all reasonable measures and precautions to
assure the following":

(c) Education and Training. Personnel responsible for identifying sanitation failure or food
contamination should have a background of education or experience or a combination
thereof, to provide a level of competency necessary for production of clean and safe food.
Food handlers and supervisors should receive appropriate training in proper food-handling
techniques and food-protection principles and should be cognizant of the danger of poor
personal hygiene and unsanitary practices. 1 NYCRR § 261.8(c).

This regulation encourages training of food handlers and supervisors in appropriate food handling
practices. The fact that the proposed Program would mandate what this regulation only encourages does
not render the Program inconsistent therewith.

As long as a local law neither prohibits what would be permissible under State law nor imposes
prerequisites or additional restrictions on rights granted under State law so as to inhibit the
operation of the State's general laws, it cannot be said to be inconsistent with the State law.
Bracker v Cohen, 204 AD2d 115, 116 (1st Dept 1994); see, New York State Club Assn. v City of
New York, 69 NY2d 211, 217 (1987).

The Program would prohibit nothing that is expressly permissible under State law. To the extent that the
Program would impose mandatory certification as an additional prerequisite for an establishment's
operation, it cannot be said to inhibit the operation of the State's general law. To the contrary, the
Program would make mandatory what is strongly encouraged by the foregoing regulation, promoting
rather than inhibiting the State's goal of assuring proper food handling and sanitation practices.
In Jancyn Mfg. Corp. v Suffolk County, 71 NY2d 91, supra, State law prohibited the sale and use of
certain sewage system cleaning additives in Suffolk and Nassau Counties and empowered the
Commissioner of the Department of Environmental Conservation to promulgate regulations requiring
that manufacturers of other cleaning additives submit information regarding their chemical components
and the nature and extent of research concerning their effects, if any, on ground water. The Commissioner
was empowered to prohibit or restrict the sale and use of a product found likely to endanger the
environment.
In issue was the validity of a Suffolk County local law prohibiting the sale of sewage cleaning additives
without prior approval by the Suffolk County Commissioner of the Department of Health Services.
Under the local law, a person could obtain approval by submitting scientific data demonstrating to the
Commissioner's satisfaction that the product would not adversely affect ground waters.
The plaintiff submitted information regarding its product to the Department of Environmental
Conservation and received approval under State law to sell the product. However, under the provisions
of the Suffolk County local law, the county prohibited the sale of plaintiff's product. The Court of
Appeals found no express conflict between the local and State regulations, reasoning that no right or
benefit was expressly given to a manufacturer under State law which was curtailed or taken away by
local law.

Rather, the State law expressly imposes an obligation on manufacturers of cesspool additives to
provide information relating to the environmental impact of their products. The fact that both the
State and local laws seek to regulate the same subject matter does not in and of itself give rise to
an express conflict. Jancyn Mfg. Corp. v Suffolk County, supra, 71 NY2d at 97.

Like the local law in Jancyn, Monroe County's proposed local law is consistent with the policy
established by State law to have properly trained food handlers and supervisors in food service
establishments. The fact that the local law would establish stricter requirements than State law to
accomplish this policy does not lead to a conclusion that the local law is inconsistent with State law.
Jancyn Mfg. Corp. v Suffolk County, 71 NY2d 91, supra. Any argument that the proposed local law, in
requiring certification, "prohibits what State law would allow" (State law encourages but does not
require training) and is, therefore, invalid, is without merit. Jancyn Mfg. Corp. v Suffolk County, supra,
71 NY2d at 100. In the absence of preemption "[t]his statement of the law is much too broad. If this
were the rule, the power of local governments to regulate would be illusory." Jancyn Mfg. Corp. v
Suffolk County, supra, 71 NY2d at 100.
As Chief Judge Cardozo said in an often-cited concurring opinion in a seminal decision affecting home
rule powers:

The concern of the State to protect the health and welfare of its inhabitants may not stand in
the way of action by the city consistent with the ends envisaged by the State, but adding
greater safeguards with reference to related ends that are municipal or urban. So the statute
says. So, it may be argued, the law would say anyhow, if the statute had been silent. Adler v
Deegan, 251 NY 467, 486 (1929).

Accordingly, the proposed Program would not be inconsistent with the Agriculture and Markets Law
and the regulations thereunder. Again, it is essential that the Program train in accordance with at least
the minimum sanitary standards set forth in the State statutes and regulations.
We conclude that a county possesses home rule authority to establish a Food Service Employee
Certification Program for employees of establishments where food is handled, such as restaurants,
convenience stores and grocery stores. The State Legislature has not evinced an intent to preempt wholly
the field of food handler regulation, nor is the proposed Program inconsistent with any existing State
statute or regulation. Accordingly, the Program would not be preempted by State law.
The Attorney General renders formal opinions only to officers and departments of the State government.
This perforce is an informal and unofficial expression of the views of this office.
Very truly yours,
ROBERT GOLDFARB
Assistant Attorney General

1 Opinions of the Attorney General do not review local enactments. These are matters appropriately left
with local officials familiar with local conditions and local legislative intent. This opinion is limited to
the specific questions raised and the Program as described in your letter.
2 In your July 31, 1996 letter, you state that the Director of the Monroe County Health Department
would define course requirements and issue the certificate.