Can a Washington Department of Health inspector enter an occupied hotel or motel room with the guest's permission to check for health and safety violations as part of a routine licensing inspection?

Plain-English summary

Representative Dave Upthegrove asked the AG whether the Department of Health, when conducting a routine inspection of a hotel or motel for licensing purposes, can enter an occupied room if the occupant consents. The answer was no.

The Department's authority to inspect transient accommodations comes from RCW 70.62. The statute generally lets the Department license and inspect facilities to enforce maintenance and operation standards. RCW 70.62.250 sets out the Department's powers in detail. Subsection (2), however, contains a flat proviso: the Department cannot inspect occupied rooms.

The AG read the proviso to bar inspection of a room leased to a patron or guest regardless of whether that person is present or consents. The opinion addressed inspections under RCW 70.62; it did not decide questions about other sources of authority.

The AG's reasoning rested on the limited-authority doctrine for administrative agencies. The opinion explains that an administrative agency has only those powers expressly granted by statute or necessarily implied. Implied powers must be lawful and necessary to executing express powers. Here, the legislature gave the Department broad inspection power but expressly limited it for occupied rooms. Implying a consent exception would expand the Department's power beyond what the legislature wrote. A guest's consent does not change the room's occupied status under the statute.

The opinion defines an occupied room as one leased to a patron or guest, whether that guest is physically present or away. An empty room between guests is different from a leased room whose guest has stepped out. The Department cannot enter the leased room for inspection under RCW 70.62.250(2), even if the guest invites the inspector in.

For an inspection under this statute, an inspector should check whether a room is currently leased before entering it. The opinion does not identify a consent exception or prescribe a different inspection procedure.

Currency note

This opinion was issued in 2012. 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 a "transient accommodation" under Washington law?
RCW 70.62.210(1) defines it as "any facility or place offering three or more lodging units to travelers and transient guests." The opinion applies that definition to hotel and motel rooms.

What does the Department of Health inspect for?
RCW 70.62.240 directs the Board of Health to adopt substantive maintenance and operation standards. The opinion cites WAC 246-360 as the rules adopted under that authority.

Can an inspector enter while a guest is away or the room is being cleaned during the stay?
No. The opinion says a hotel customer occupies a room by leasing it, even when not physically present. A room being cleaned during a guest's stay remains leased and is still off-limits for this inspection.

Can the Department inspect the room after the guest's stay ends?
The opinion's restriction applies while the room is leased to a patron or guest. Its conclusion does not bar inspection of a room that is no longer occupied in that sense, subject to the statute's other terms.

Does the opinion decide whether other regulators may enter occupied rooms?
No. Its question and answer concern the Department of Health's inspection authority under RCW 70.62.250(2).

Does a guest's complaint or consent allow entry during the stay?
The opinion finds consent irrelevant to the statutory prohibition. It does not analyze a complaint procedure or any separate source of inspection authority.

Background and statutory framework

The Department of Health's transient-accommodation authority is in RCW 70.62. RCW 70.62.200 grants the licensing-and-inspection authority. RCW 70.62.250 defines the Department's powers including the limit in subsection (2). The implementing rules are in WAC 246-360.

The limited-authority doctrine for administrative agencies described in the opinion constrains how the Department can read its own power. Where the legislature expressly limits power, the agency cannot expand the limit through interpretation, even with the consent of the affected party.

Citations and references

Statutes and rules:

• RCW 70.62.200 (DOH authority)
• RCW 70.62.210(1) (transient accommodation defined)
• RCW 70.62.220, .240, .250, .250(2), .260, .270, .280
• WAC 246-360 (transient accommodation rules)
• WAC 246-360-035 (inspection rules)

Cases:

• Ass'n of Washington Bus. v. Dep't of Revenue, 155 Wn.2d 430, 120 P.3d 46 (2005)
• Tuerk v. Dep't of Licensing, 123 Wn.2d 120, 864 P.2d 1382 (1994)

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/inspection-occupied-hotel-and-motel-rooms

Original opinion text

Attorney General Rob McKenna

HEALTH—TRANSIENT ACCOMODATIONS—Inspection Of Occupied Hotel And Motel Rooms

The Department of Health is precluded by statute from inspecting occupied rooms when conducting inspections of transient accommodations, without regard to presence or consent of the occupant.

February 9, 2012

The Honorable Dave Upthegrove

State Representative, District 33

PO Box 40600

Olympia, WA 98504-0600

Cite As:

AGO 2012 No. 2

Dear Representative Upthegrove:

By letter previously acknowledged, you have requested our opinion on the following question, which I have paraphrased as follows:

Does the proviso in RCW 70.62.250(2) prohibit the Department of Health from entering, after obtaining permission, occupied transient accommodation rooms to conduct health and safety licensing inspections? [1]

BRIEF ANSWER

Yes. RCW 70.62.250(2) explicitly prohibits entry into occupied transient accommodation rooms for inspections, without regard to tenant permission or presence.

ANALYSIS

Among the powers and responsibilities of the Department of Health are licensing and inspecting transient accommodations to enforce maintenance and operation standards for the purpose of protecting the health and safety of guests. RCW 70.62.200; WAC 246-360. Transient accommodations are broadly defined to include any “facility or place offering three or more lodging units to travelers and transient guests.” RCW 70.62.210(1). The legislature

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directed the Board of Health to adopt rules creating substantive maintenance and operation standards to protect the health and safety of those using transient accommodations.

RCW 70.62.240. The Board has done so. See generally WAC 246-360. The Department enforces those substantive standards through, among other things, its inspection and licensing program. See RCW 70.62.220, .250, .260, .270, .280; WAC 246-360-035.

As a legislatively created administrative agency, the Department has only those powers expressly granted by statute or necessarily implied from the statutes relating to the agency’s powers and duties. See Ass’n of Washington Bus. v. Dep’t of Revenue, 155 Wn.2d 430, 437, 120 P.3d 46 (2005); Tuerk v. Dep’t of Licensing, 123 Wn.2d 120, 124-25, 864 P.2d 1382 (1994). Implied powers are those that are lawful and necessary to effectively execute those powers or duties the legislature has explicitly granted or imposed. Tuerk, 123 Wn.2d at 125. When it directed the Department to inspect and license transient accommodations, the legislature restricted the Department’s authority by the proviso at issue:

The department is hereby granted and shall have and exercise, in addition to the powers herein granted, all the powers necessary and appropriate to carry out and execute the purposes of this chapter, including but not limited to the power:

. . . .

(2) To enter and inspect at any reasonable time any transient accommodation and to make such investigations as are reasonably necessary to carry out the provisions of this chapter and any rules and regulations promulgated thereunder: PROVIDED, That no room or suite shall be entered for inspection unless said room or suite is not occupied by any patron or guest of the transient accommodation at the time of entry;

. . . .

RCW 70.62.250.

In subsection (2) of RCW 70.62.250, the legislature expressly authorized the Department to enter and inspect any transient accommodation in order to enforce RCW 70.62 or the substantive health and safety rules authorized by that chapter. But the legislature also expressly limited this grant of authority with a proviso that prohibits the Department from entering any “room or suite . . . for inspection unless said room or suite is not occupied by any patron or guest . . . at the time of entry[.]” [2] When the legislature has expressly prohibited certain agency actions,

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it follows that the legislature cannot have also granted the agency an implied power to perform those same actions. See Univ. of Washington v. Manson, 98 Wn.2d 552, 562, 656 P.2d 1050 (1983) (agencies lack power to alter statutory requirements).

The plain language of RCW 70.62.250(2) leads us to conclude that when the Department is conducting an inspection under the authority of RCW 70.62, the Department is expressly prohibited from entering a “room or suite” that is “occupied by” a “patron or guest” “at the time of entry,” without regard to consent to entry. Consent would be irrelevant, as the room would still be occupied.

In the context of a hotel or other “transient accommodation,” the commonly understood meaning of an “occupied” room would be a room that is leased to a patron or guest. RCW 70.62 does not define “occupied.” An undefined non-technical statutory term is given its ordinary meaning, typically found in its dictionary definition. State v. Kintz, 169 Wn.2d 537, 547, 238 P.3d 470 (2010). “Occupied” is the adjective form of the verb “to occupy.” While one possible connotation of “occupied” would be “physically present,” the applicable dictionary definition of “occupy” is “to reside in as an owner or tenant.” Webster’s Third New International Dictionary 1561 (2002). Thus, a hotel customer “occupies” a hotel room by leasing it, even when that tenant is not physically present. And, under RCW 70.62.250(2), the room is therefore “occupied” when leased to a “patron or guest.” RCW 70.62 also does not define “patron” or “guest,” but it does define “transient accommodation” to be any facility “offering three or more lodging units to . . . transient guests.” RCW 70.62.210(1). In context, then, RCW 70.62.250(2) uses “guest” to mean a person who leases a transient accommodation lodging unit. The applicable dictionary definition of “patron” is “a steady or regular client.” Webster’s Third New International Dictionary 1656 (2002). Thus, a transient accommodation room is “occupied” under RCW 70.62.250(2) when leased to either a repeat or new customer. The proviso therefore prohibits entering a leased room for inspection, without regard to whether the patron or guest is physically present, as the room would remain occupied within the meaning of the statute.

We trust that the foregoing will be useful to you.

ROBERT M. MCKENNA

Attorney General

//s//

IAN A. NORTHRIP

Assistant Attorney General

wros

[1] You indicate that the Department of Health trained its surveyors (inspectors) to request permission to enter occupied transient accommodation rooms, when inspecting only vacant rooms would not provide a sufficient inspection sample. I understand that the Department has ended this practice after review of our July 14, 2011, informal opinion. This opinion does not address any particular practice or policy or address any particular past entry or inspection, but merely answers the legal question regarding the Department’s authority.
[2] Provisos do not independently prohibit or authorize actions, but are instead part of a broader statute, merely limiting or providing an exception to the general terms of that broader statute; therefore, they are narrowly construed. State v. Wright, 84 Wn.2d 645, 652, 529 P.2d 453 (1974); Western Mach. Exch. v. Grays Harbor Cnty., 190 Wash. 447, 452-53, 68 P.2d 613 (1937); see West Valley Land Co. v. Nob Hill Water Ass’n, 107 Wn.2d 359, 369, 729 P.2d 42 (1986).