County boards of health are authorized by state law to inspect food service establishments (restaurants) and tourist courts (hotels and motels) and issue permits for their operation. No person may
In October 1981 the Board adopted a schedule of fees, ranging from $50 to $100, it planned to charge for the inspection of hotels, motels and restaurants in DeKalb County. State law is silent as to the imposition of fees for the inspection of hotels, motels and restaurants. Id. In June 1982 GHTA filed this lawsuit, seeking a declaration that the fees were unlawful, an injunction prohibiting the collection of further fees, and return of any fees already paid to the Board by its DeKalb County members. The Board moved to dismiss, contending that (1) GHTA lacked standing to sue on behalf of its DeKalb County members; (2) the superior court lacked jurisdiction because GHTA failed to exhaust its administrative remedies prior to filing suit; and (3)GHTA failed to state a claim for relief in that OCGA § 31-3-4 (Code Ann. § 88-204) expressly authorized imposition of the inspection fees.
The trial court rejected each of the Board's contentions, denied the motion to dismiss, and certified the case for immediate review by this court. We granted the Board's application for appeal and now affirm.
1. First we address the issue of GHTA's standing to sue as a representative of its member hotel, motel, and restaurant establishments which are subject to the DeKalb County inspection fees. The parties to this appeal have cited no Georgia cases, and we are aware of none, which squarely address the question of "associational standing" as asserted by GHTA in this case.
GHTA meets this test. Each member hotel, motel or restaurant operating in DeKalb County suffers direct economic injury by the assessment of county inspection fees, and would have standing to bring an individual lawsuit challenging the fee system. This action is germane to the stated purposes of GHTA, which include monitoring of industry-related legislation, education of its members, and promotion of the hospitality and travel industry in general. Finally, this suit is primarily seeking declaratory and injunctive relief and does not present complicated issues of individual damages. Thus the relief requested does not require the participation of individual GHTA members. Cf. Equitable Life Assurance Society v. Tinsley Mill Village, 249 Ga. 769 (294 S.E.2d 495) (1982).
We note three policy reasons, apart from the concerns embodied in the Hunt test, which favor associational standing in this case. First, the record clearly demonstrates that GHTA is a zealous advocate of its members' interests, and has provided adequate representation in this suit. Second, allowing associations to represent their members' interest in appropriate cases promotes judicial economy. One litigant can, in a single lawsuit, adequately represent many members with similar interests, thus avoiding repetitive and costly separate actions. This is particularly true where, as in this case, the contested administrative action involves fees so small that separate court challenges by aggrieved members may not be economically feasible. A third policy favoring standing for GHTA in this case was noted by the
We therefore affirm the trial court's finding that GHTA possessed standing to assert its members' rights in this action.
2. The second issue is whether any administrative remedies were available to GHTA, and, if so, whether GHTA was required to exhaust them before bringing this action in superior court.
The trial judge found that the Administrative Procedure Act, OCGA § 50-13-1 et seq. (Code Ann. § 3A-101 et seq.), does not apply to county boards of health, and we agree. County boards of health are not included within the OCGA § 50-13-2 (Code Ann. § 3A-102) definition of "agency," and the Court of Appeals has held that the health boards are not instrumentalities of the Department of Human Resources, Ga. Dept. of Human Resources v. Demory, 138 Ga.App. 888 (227 S.E.2d 788) (1976). Since the Board is not a state agency, APA appeal procedures simply do not apply to policies implemented by it.
Nor does the state statute governing county boards of health provide GHTA or its members with an avenue of administrative appeal from the Board's assessment of inspection fees. OCGA § 31-5-3 (a) (1) (Code Ann. § 88-305) provides: "Any person who is a party to a proceeding and who is aggrieved or adversely affected by any final order or action of a county board of health or agency may have review thereof by appeal to the department..." (Emphasis supplied.) This code section is inapplicable here because there was no "proceeding" or hearing conducted by the Board to which GHTA could have been a party. The Board further argues that the appeal procedures applicable to county boards of health, OCGA § 37-1-40 (Code Ann. § 88-307), should have been exhausted by GHTA prior to filing suit. We disagree. Although OCGA § 37-1-40 (Code Ann. § 88-307) requires that county boards of health conduct a hearing before adopting rules and regulations, it appears from the record that no such hearing was held in this case. Therefore OCGA § 37-1-40 (Code Ann. § 88-307) has no application to this dispute. Because there were no administrative appeal procedures available to GHTA, the doctrine of exhaustion of administrative remedies urged by the Board is inapposite. Cf. Cobb County Health Dept. v. Henson, 226 Ga. 801 (177 S.E.2d 710) (1970). The trial court's ruling on this point was correct.
3. We turn now to the merits of this appeal. The Board contends that its motion to dismiss for failure to state a claim should have been granted. The Board's position is that its fee schedule was clearly authorized by OCGA § 31-3-4 (Code Ann. § 88-204), which empowers county boards of health to "make contracts and establish fees for the
The predecessor of present OCGA § 31-3-4 (Code Ann. § 88-204) was enacted in 1964, modified in 1966, and revised to its present form in 1976. A review of these acts shows that the statute was not intended as a broad authorization to county health boards to charge for their services. Rather it was meant to authorize the assessment of fees for limited, specified categories of personal health care services provided by county boards of health. The original act authorized county health boards to "accept fees for the purpose of providing home nursing services for the chronically ill ..." Ga. Laws 1964, pp. 499, 514. The 1966 amendment expanded the boards' power to allow assessment of fees for "mental health diagnostic and treatment services and ... home health care services ... for the chronically ill and aged ..." Ga. Laws 1966, p. 380. In 1976 the legislature struck entirely the language of subsection (f) of the prior statute and substituted in its place the present OCGA § 31-3-4 (6) (Code Ann. § 88-204), with its "mental and other public health services" language. Ga. Laws 1976, pp. 1420-21. Given this history, we conclude that the legislature, by its use of the language "other public health services" in the 1976 revision, intended to authorize fee collection only for those personal health care services, such as nursing homes services and mental health care, which are provided by county health boards to individual citizens. Assessment of fees for inspection of public hotels, motels and restaurants is simply not within the contemplation of the act.
Judgment affirmed. All the Justices concur.
Lindsey Creek was a zoning case which did not directly address the question of standing of a trade association like GHTA. In the Tinsley Mill case, this court held that an unincorporated association of condominium owners was not a real party in interest to a lawsuit brought to enjoin flooding of a condominium complex and to recover damages for flooding of individual members' land. The decision in that case rested on real party in interest considerations, not standing. See 6 Wright & Miller, Federal Practice and Procedure: Civil § 1542 (1971) (Comparing the concepts of standing, capacity, and real party in interest). Neither party to this appeal has raised the real party in interest issue, and we do not address it.