Language and the Law. (Legal Briefs)

By Sikora, Vincent A. | Journal of Environmental Health, June 2003 | Go to article overview

Language and the Law. (Legal Briefs)


Sikora, Vincent A., Journal of Environmental Health


For most environmental health professionals, the interpretation of statutes, ordinances, and regulations is a daily activity Environmental health requirements duties are expressed in words. Although the English language may be, at times, beautiful, it can also be inexact. "If the English language made any sense, a catastrophe would be an apostrophe with fur," as Doug Larson put it. (1) The inexactness results in complication and often controversy when written legal commands are applied to a myriad of real-life situations.

This month's column looks at three cases in which definitions of terms played an important role. The first case concerns the production and sale of goat cheese from a Virginia farm and whether that activity violated Virginia law. Case 2 is a return to the issue of health department liability in North Carolina. The issue was first addressed in this column in June 2001. (2) The new case involves a preapproval of an onsite sewage disposal system at a proposed subdivision, which was subsequently formally disapproved.

The third case concerns the doctrine prohibiting ex post facto criminal laws. The case arose over lead poisoning in Toledo, Ohio.

Case #1: Goat Cheese Cannot Be Made and Sold at Home (3)

A Virginia woman had a farm and, in her home, made cheese from goats' milk. The cheese was then sold to the public. The Virginia Department of Agriculture charged her with 1) offering adulterated food for sale, 2) offering misbranded food for sale, 3) refusing entry for inspection, and 4) operating a food-manufacturing plant without inspection. She was convicted of offering misbranded food for sale and operating a food-manufacturing plant without inspection. The other charges were dismissed. She appealed, claiming the statute did not apply to her.

"Food-manufacturing plant" is undefined in the Virginia Code. "Manufacture" means "transformation of a raw material into an article of substantially different character." The conversion of goats' milk into cheese is manufacturing.

According to the federal food regulations that Virginia had adopted (21 C.F.R. [section] 110.3 [k]), "Plant means a building or facility or parts thereof, used for or in connection with the manufacturing, packaging, labeling, or holding of human food." The dictionary offers a similar definition of "plant." Therefore, the conclusion was that the conversion of goats' milk into cheese in a dwelling, which is a "building," was a "food-manufacturing plant."

During the trial, the director of consumer protection of the Virginia Department of Agriculture testified as an expert witness and as a member of the department. That testimony was challenged as irrelevant and improper opinion. The court of appeals, however, upheld the testimony, saying,

An expert's testimony is admissible not only when scientific knowledge is required, but when experience and observation ... give the expert knowledge of a subject beyond that of persons of common intelligence and ordinary experience.

Finally, the defendant argued that the cheese had not been misbranded because it was sold in bulk by the pound and was not packaged. The defendant's practice was, after a customer had identified what was desired, merely to place each cheese in a zip-lock bag and write on it for the purchaser's convenience. The dictionary definition of "package," however, is "a commodity in its container; a unit of product uniformly processed, wrapped or sealed for distribution." Therefore, the zip-lock bag constituted a "package." The conviction was upheld.

Case #2: Health Department Liability (4)

An environmental health specialist of the Orange County Health Department of North Carolina conducted a subdivision site evaluation at the owners' request--and upon payment of a fee--to determine whether the soil could support another onsite sewage disposal system. After the evaluation, the owners developed plans and submitted them to the county planning department, constructed an access road, and purchased a mobile home to place on the property The county planning department required that the final plat be approved by the Orange County Health Department. …

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