Are sheriff's offices, police, and fire departments exempt from Tennessee's x-ray machine registration fee?

Subject

Opinion No. 11-45, "Public Safety Agencies" Exemption from Registration and Inspection Fee for Radiation Machines, May 18, 2011

Plain-English summary

Tennessee makes anyone who owns and uses a radiation machine (x-ray equipment) register it with the state and pay an annual fee. The Medical Radiation Inspection Safety Act, enacted in 1982, was amended in 1988 to carve out an exemption: "X-ray machines owned and used by public safety agencies of any county, city, municipality" or metropolitan government "shall be registered and inspected . . . but shall not be required to pay any fee" (Tenn. Code Ann. § 68-202-503(d)).

The statute did not define "public safety agencies." For 23 years, the Tennessee Department of Environment and Conservation (TDEC), which runs the program, applied the exemption only to bomb-squad x-ray equipment, the device type the bill's sponsors had talked about. Senator Mike Bell asked whether the term reaches further, to sheriff's offices, police, fire departments, first responders, and similar agencies.

The AG said yes. The ordinary meaning of "public safety agency" covers any agency responsible for protecting public safety from significant danger. Neighboring states (Arkansas, Alabama) define the term in their codes to include fire, law enforcement, ambulance, EMS, and disaster-response agencies. Although legislative history showed sponsors were focused on bomb squads, the legislature used the broader phrase "public safety agencies," and the AG concluded that courts would follow the text. TDEC's longstanding contrary practice was entitled to consideration and respect, but could not override the statute's plain language. Sheriff's offices and police departments don't suddenly stop being "public safety agencies" just because their x-ray machines (jail security, evidence, etc.) aren't on a bomb squad.

Currency note

This opinion was issued in 2011. 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.

In particular, the AG observed that TDEC had been applying the exemption narrowly for 23 years. A reader should confirm whether TDEC's practice changed in response to this opinion, whether the legislature later amended § 68-202-503(d), or whether courts have weighed in.

Background and statutory framework

The fee and the exemption. The 1982 Medical Radiation Inspection Safety Act set up registration and inspection of radiation machines with an annual fee (1982 Tenn. Pub. Acts § 946). The 1988 amendment carved out public safety agencies (1988 Tenn. Pub. Acts § 692). Tenn. Code Ann. § 68-202-503(d) provides:

X-ray machines owned and used by public safety agencies of any county, city, municipality or any area operating under a metropolitan form of government shall be registered and inspected by the department according to the provisions of this part, but shall not be required to pay any fee.

The statute does not define "public safety agencies."

Ordinary-meaning analysis. The AG relied on Lipscomb v. Doe, 32 S.W.3d 840 (Tenn. 2000): legislative intent is to be ascertained from the natural and ordinary meaning of the words used. Dictionary definitions of "public" ("concerning, or affecting the community or the people"), "safety" ("freedom from danger, risk, or injury"), and "agency" ("a business or service authorized to act for others") together suggest that "public safety agency" is any agency responsible for protecting public safety from significant danger, harm, or damage.

Comparative-law support. The AG cited Arkansas's Emergency Services Act (Ark. Code Ann. § 12-75-103(19)(A)) and Alabama's emergency-telephone statute (Ala. Code 1975 § 11-98-1(6)) for the proposition that "public safety agency" in regional usage includes firefighting and rescue, disaster response, law enforcement, ambulance, and EMS services.

Legislative history vs. text. Bill sponsors at three committee meetings and a House session in 1988 described the exemption as targeting bomb-squad x-ray machines. The fiscal note projected a $750 revenue loss because there were only three bomb-squad x-ray machines in the state. The AG acknowledged this history, but turned to In re Estate of Tanner, 295 S.W.3d 610 (Tenn. 2009) ("When a statute is clear, we apply the plain meaning without complicating the task"), and Midwestern Gas Transmission Co. v. Stephenson, 2006 WL 461044 (Tenn. Ct. App. 2006) ("comments made during the General Assembly's debates cannot provide a basis for a construction that is not rooted in the statute's text"), and held that the broader statutory text controls.

Deference to TDEC. TDEC had applied the exemption only to local-government bomb squads from 1988 to 2011. The AG quoted H&R Block Eastern Tax Services, Inc. v. State, 267 S.W.3d 848 (Tenn. Ct. App. 2008), that an agency's interpretation is "entitled to consideration and respect," and New England Mutual Life Ins. Co. v. Reece, 83 S.W.2d 238 (1935), that long-standing administrative constructions are not lightly disturbed. But deference cannot override clear text. "Public safety agencies" may be broad, the AG said, but breadth is not the same as ambiguity.

Common questions

Can a sheriff's office stop paying the registration fee on its jail x-ray machines now?

Per this opinion, yes, although that would depend on TDEC adjusting its practice or being directed by a court. The opinion's reasoning is that sheriff's offices, police departments, fire, and EMS qualify as "public safety agencies" and their x-ray machines (whether used for jail/courthouse security, bomb detection, evidence imaging, or medical/dental purposes in jail clinics) fall within the exemption.

Does the exemption apply to state agencies, or only local ones?

The statute lists "county, city, municipality or any area operating under a metropolitan form of government." It is a local-government exemption. State agencies are not covered by its text.

Does the exemption cover private security or private ambulance services?

The text covers "public safety agencies of any county, city, municipality or any area operating under a metropolitan form of government." Private security companies and private ambulance services would not fit the "of any county, city, municipality" structure. Public, government-owned EMS agencies and government fire/rescue agencies clearly qualify.

What about medical and dental x-ray machines used in a jail clinic?

The AG's logic is that the relevant question is who owns and uses the machine, not what it images. If a sheriff's office (a public safety agency) owns and uses the machine, the exemption applies. If a separate jail health-services contractor or a private dental practice owns the equipment, the exemption text would not reach it.

Why did TDEC apply the narrower reading for 23 years?

The legislative-history record made plain that sponsors were thinking about bomb squads. The fiscal note treated the exemption as a $750 revenue loss based on three bomb-squad machines. That gave TDEC a coherent basis for treating the exemption narrowly. The AG simply concluded that the broader textual choice the legislature actually enacted controls in case of conflict.

Does this mean every "public agency" is exempt?

No. The exemption is for "public safety agencies." Agencies whose purpose is not the protection of public safety from significant danger (a parks department, a public library, a school district) would not be covered, even if they own x-ray equipment. The AG framed the test as agencies "responsible for the protection of the safety of the general public from significant danger, harm, or damage."

Citations

• Tenn. Code Ann. § 68-202-503; § 68-202-503(d)
• 1982 Tenn. Pub. Acts § 946; 1988 Tenn. Pub. Acts § 692; 2002 Tenn. Pub. Acts 755
• Ark. Code Ann. § 12-75-103(19)(A); Ala. Code 1975 § 11-98-1(6)
• Lipscomb v. Doe, 32 S.W.3d 840 (Tenn. 2000)
• H&R Block Eastern Tax Services, Inc. v. State, 267 S.W.3d 848 (Tenn. Ct. App. 2008)
• New England Mutual Life Ins. Co. v. Reece, 169 Tenn. 84, 83 S.W.2d 238 (1935)
• In re Estate of Tanner, 295 S.W.3d 610 (Tenn. 2009)
• Midwestern Gas Transmission Co. v. Stephenson, 2006 WL 461044 (Tenn. Ct. App. Feb. 24, 2006)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-045.pdf

Original opinion text

May 18, 2011
Opinion No. 11-45
"Public Safety Agencies" Exemption from Registration and Inspection Fee for Radiation Machines

QUESTION

Does the term "public safety agencies" in Tenn. Code Ann. § 68-202-503(d) include law enforcement agencies, firefighters, first responders, and other such entities whose purpose is to enhance the public welfare, thereby exempting them from the radiation machine annual registration and inspection fee?

OPINION

It is the opinion of this Office that the term "public safety agencies" used in the context of Tenn. Code Ann. § 68-202-503(d) includes law enforcement agencies, firefighters, first responders, and other such entities whose purpose is to enhance the public welfare if they have x-ray machines.

ANALYSIS

In 1982, the General Assembly enacted the Medical Radiation Inspection Safety Act (Act) which provided for the registration and inspection of radiation machines and the payment of an annual registration fee. 1982 Tenn. Pub. Acts § 946. In 1988, the General Assembly amended Tenn. Code Ann. § 68-202-503 to carve out an exemption from the fee requirement for public safety agencies of government entities. 1988 Tenn. Pub. Acts § 692.

The statute at issue is Tenn. Code Ann. § 68-202-503(d), which states:

(d) X-ray machines owned and used by public safety agencies of any county, city, municipality or any area operating under a metropolitan form of government shall be registered and inspected by the department according to the provisions of this part, but shall not be required to pay any fee.

The Act does not provide a definition of "public safety agencies" nor do any of the other environmental regulatory statutes. In the absence of a statutory definition and in light of the fact that the term "public safety agencies" is broad and can encompass different entities, statutory interpretation is required.

The purpose in construing statutes is "to ascertain and give effect to the intention and purpose of the legislature." Lipscomb v. Doe, 32 S.W.3d 840, 844 (Tenn. 2000). Further, "[l]egislative intent is to be ascertained whenever possible from the natural and ordinary meaning of the language used, without forced or subtle construction that would limit or extend the meaning of the language." Id. If a law is challenged, a court can review the law to determine the intent or purpose of the law-creating body at the time of enactment. According to the Tennessee Supreme Court in Lipscomb, "when the statutory language is clear and unambiguous, we must apply its plain meaning in its normal and accepted use, without a forced interpretation that would limit or expand the statute's application." Id.

The natural and ordinary meaning of "public safety agency," based on the common understanding of each of those terms, would encompass any agency that is responsible for the protection of the safety of the general public from significant danger, harm, or damage. Law enforcement agencies, firefighters, first responders, and other such entities whose purpose is to enhance the public welfare would fall within the natural and ordinary meaning of "public safety agency."

This Office also looked at definitions provided by neighboring states. Arkansas provides the definition of "public safety agency" under the Arkansas Emergency Services Act of 1973 as "an agency of the State of Arkansas or a functional division of a political subdivision that provides firefighting and rescue, natural or human-caused disaster or major emergency response, law enforcement, and ambulance or emergency medical services." Ark. Code Ann. § 12-75-103(19)(A). Alabama provides a very similar definition of "public safety agency" for purposes of emergency telephone services for counties and municipal corporations as "an agency of the State of Alabama, or a functional division of a political subdivision, that provides fire fighting, rescue, natural or man-caused disaster, or major emergency response, law enforcement, ambulance, or emergency medical services." Ala. Code 1975 § 11-98-1(6). These definitions are not provided in the context of x-ray machine registration and inspection, and they are not controlling of the interpretation of Tennessee's laws. Nevertheless, they provide examples of what are considered public safety agencies.

In reviewing the legislative history of 1988 Tenn. Pub. Acts § 692, which created the fee exemption for public safety agencies, it is clear that the legislators intended for the fee exemption to apply to public safety agencies that have bomb squads that use x-ray equipment. The bill was described by bill sponsors before three committees and during a House session. At each meeting, the bill sponsor clearly stated that the bill concerned bomb squad x-ray machines. At the March 9, 1988, meeting of the Senate General Welfare, Health & Human Resources Committee the Senate bill sponsor stated that the bill exempts bomb squad x-ray equipment and that there are only three in the state. He continued that the exemption would allow more money to remain in the bomb squad budgets. Senator Douglas Henry noted that the agency administering the program stated it tried to make the medical radiation inspection program a fee-supported program and expressed concern as to whether the amount of fees exempted by the bill would impact the program. It was indicated that the fiscal impact was to be only $750.

The state agency that administers the program is the Tennessee Department of Environment and Conservation (TDEC) under its Division of Radiological Health. It is this Office's understanding that since Tenn. Code Ann. § 68-202-503(d) was amended in 1988 to exempt public safety agencies, TDEC has applied the fee exemption only to local public safety agencies with bomb squads that use x-ray machines. All other local agencies, including law enforcement agencies, have been required to pay the fee for x-ray machines. TDEC has assessed the fee for local government x-ray machines used for courthouse and jail security as well as medical and dental x-ray machines used in jails. TDEC's practice of exempting only local government bomb squads has lasted from 1988 to 2011, almost 23 years. The General Assembly amended Tenn. Code Ann. § 68-202-503 only once more in the past 23 years, in 2002, and it amended paragraph (b) and not paragraph (d), which is the subject of this opinion request. 2002 Tenn. Pub. Acts 755.

While an agency's interpretation of a statute is neither controlling nor presumed correct, it is "entitled to consideration and respect." H&R Block Eastern Tax Services, Inc. v. State, Dep't. of Commerce and Insurance, 267 S.W.3d 848, 854-56 (Tenn. Ct. App.), appeal denied, (Aug. 25, 2008). In addition, "[w]hen such an administrative construction persists for a long period, without legislative action, the court is particularly loath to disturb that construction." New England Mutual Life Ins. Co. v. Reece, 169 Tenn. 84, 94, 83 S.W.2d 238 (1935).

Legislative history and administrative interpretation are useful tools of statutory construction. They are properly invoked, however, only when the statutory language itself is ambiguous; where the statutory language is clear, courts treat that language as the best and controlling indication of legislative intent. See In re Estate of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009) ("When a statute is clear, we apply the plain meaning without complicating the task. It is only when a statute is ambiguous that we may reference the broader statutory scheme, the history of the legislation, or other sources."); Midwestern Gas Transmission Co. v. Stephenson, 2006 WL 461044, at 4 (Tenn. Ct. App. Feb. 24, 2006) ("When the meaning of statutory language is clear, we must interpret it as written, rather than using the tools of construction to give the statute another meaning.") (citations omitted). "Public safety agencies" may be a broad term, but that quality does not make it inherently ambiguous. Because of its breadth, there may be entities whose status as a public safety agency is unclear, and in such cases resort to statutory construction tools might be appropriate. Ambiguities at the margin of a statute, however, would not appear to justify the use of such tools to exclude entities that clearly fall within the definition of a "public safety agency." To conclude otherwise would mean that a sheriff's office or police department would not qualify as a "public safety agency" unless it had bomb squad x-ray machines. Such an interpretation would be a "forced construction" clearly at odds with the common understanding of the language in question. See Lipscomb, 32 S.W.3d at 844; Midwestern Gas Transmission, 2006 WL 461044, at 4 ("[C]omments made during the General Assembly's debates cannot provide a basis for a construction that is not rooted in the statute's text.").

Accordingly, even though the legislative history reveals that the primary focus of the exemption under Tenn. Code Ann. § 68-202-503 was bomb squads that use x-ray machines, the General Assembly used the term "public safety agencies" and not "bomb squads" in Tenn. Code Ann. § 68-202-503(d). While the focus of the sponsors may have been bomb squads, the language of the bill is broader than that. When interpreting such statutes, we must be guided principally by the terms they use, even when they are broad in scope. See Lipscomb, 32 S.W.3d at 844. While we are mindful of the weight given to long-standing administrative interpretations of a statute, we are not convinced that the deference normally accorded such interpretations can overcome the plain language of the statute here. Thus, it is the opinion of this Office that as used in Tenn. Code Ann. § 68-202-503(d), "public safety agency" includes all public agencies ordinarily thought of as protecting public safety and enhancing security and which use x-ray machines. All such agencies may qualify for the fee exemption.

ROBERT E. COOPER, JR.
Attorney General and Reporter

CHARLES L. LEWIS
Deputy Attorney General

SOHNIA W. HONG
Senior Counsel

Requested by:
The Honorable Mike Bell
State Senator
302 War Memorial Building
Nashville, Tennessee 37243