Sam operated a restaurant and George, a health inspector, visited the premises. Finding that one of the waiters had AIDS, George ordered the restaurant closed, using a section of the regulations allowing such closures to prevent the spread of contagious diseases. Sam was very unhappy about the loss of business but didn't want to fire his waiter. He looked up the statutes and regulations governing this area and discovered that the statutory definition of contagious disease would not apply to AIDS, even though AIDS had been specifically included in the regulations. Which of the following is incorrect with respect to Sam's legal position?
A) Sam can reopen the restaurant.
B) Sam can bring a court action for certiorari to have the decision of the health inspector quashed.
C) If there is a privative clause in the statute making the decision of the health inspector final, there is nothing Sam can do.
D) Sam can ask for an order of prohibition to prevent any similar action in the future.
E) Sam can challenge the action even though the closure was authorized in the regulations.

Question

Quizplus · Accepted Answer

EOption C is incorrect because even if there is a privative clause, courts can still review decisions for jurisdictional errors or if they are made in bad faith. Option E is correct because regulations that contradict the statute they are derived from can be challenged in court, as statutes take precedence over regulations.

Sam Operated a Restaurant and George, a Health Inspector, Visited