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STATE OF MICHIGAN
COURT OF APPEALS


FLUOROSCAN IMAGING SYSTEM, Plaintiff-Appellant, v DEPARTMENT OF PUBLIC HEALTH, Defendant-Appellee.

UNPUBLISHED January 10, 1997

No. 171354 Ingham Circuit Court LC No. 92-72638-CZ

Before: Smolenski, P.J., and Holbrook, Jr., and F.D. Brouillette,* JJ. PER CURIAM. Plaintiff appeals as of right from an Ingham Circuit Court order affirming a declaratory ruling issued by defendant Department of Public Health. We affirm the circuit court's order. The essential facts of this matter are undisputed. In October 1987, the Michigan Radiation Advisory Board (RAB) unanimously approved a resolution advising defendant Department of Public Health that extremity fluoroscopy machines were not warranted for human medical application because of the limited benefits to patients in comparison to the potential risks of radiation. Since early 1988, defendant has disseminated the RAB's resolution in letters to known manufacturers and users of extremity fluoroscopy equipment and indicated its acceptance of and concurrence with the RAB's position. The resolution notwithstanding, defendant has continued to register and license extremity fluoroscopy machines for use in this state. Plaintiff Fluoroscan Imaging Systems, Inc.,1 a manufacturer and marketer of extremity fluoroscopy machines, requested that RAB members attend a demonstration of plaintiff's equipment and that they reconsider their position. Two RAB members attended a demonstration of plaintiff's equipment, resulting in the board unanimously reaffirming its resolution. Plaintiff then requested a declaratory ruling from defendant regarding the applicability of certain provisions of the Public Health Code, MCL 333.2601 et seq.; MSA 14.15(2601) et seq., to defendant's action. Defendant issued a declaratory ruling that disputed certain facts as set forth by plaintiff and addressed the applicability of some, but not all, of the statutory provisions cited in plaintiff's written request. In November 1992, plaintiff filed a complaint in Ingham Circuit Court seeking a * Circuit judge, sitting on the Court of Appeals by assignment. -1

declaratory judgment that defendant should have promulgated rules governing its action and an injunction against further dissemination of the resolution, which plaintiff claimed was based on incomplete data and had caused a number of its customers to cancel orders for equipment. Following a hearing on plaintiff's request for a preliminary injunction and defendant's motion for summary disposition, the court remanded the matter to defendant for an evidentiary hearing, if deemed necessary, to resolve disputed facts, and for issuance of a declaratory ruling. On remand, the parties agreed to a set of stipulated facts rather than conduct an evidentiary hearing and defendant issued a second declaratory ruling. On plaintiff's petition for review, a hearing was held after which the court affirmed defendant's declaratory ruling. Plaintiff now appeals as of right to this Court. Plaintiff challenges defendant's dissemination of the resolution of its statutorily created advisory board by a two-pronged argument. First, plaintiff argues that the resolution be set aside on procedural grounds because defendant failed to promulgate the policy as a rule pursuant to its statutory authority under Parts 26 and 135 of the Public Health Code. Second, plaintiff argues that if indeed this Court concludes that the resolution is a "rule" it is invalid pursuant to MCL 333.13521(2); MSA 14.15(13521)(2), which precludes defendant from issuing rules that limit radiation exposure to patients for lawful therapeutic or research purposes. Under these facts, we find no merit to plaintiff's arguments. This Court reviews a declaratory ruling issued by an administrative agency in the same manner as an agency final decision or order in a contested case, i.e., pursuant to the judicial review provisions of the Administrative Procedures Act. MCL 24.263; MSA 3.560(163), MCL 24.306; MSA 3.560(206); Michigan Ass'n of Intermediate Special Educ Administrators v Dep't of Social Services, 207 Mich App 491, 494; 526 NW2d 36 (1994). Because the facts of this case are undisputed, the scope of this Court's review is limited to the questions of law addressed in defendant's declaratory ruling. Legal rulings of administrative agencies are not accorded the deference that is accorded to factual findings. An agency's legal rulings will be set aside on appeal if they are in violation of the constitution or a statute, or are affected by substantial and material error of law. Amalgamated Transit Union, Local 154, AFL-CIO v Southeastern Michigan Transportation Authority, 437 Mich 441, 450; 473 NW2d 249 (1991). See also MCL 24.306(1)(a), (f); MSA 3.560(206)(1)(a), (f). Plaintiff first argues that defendant's adoption of the RAB's resolution should have been promulgated as a rule pursuant to defendant's statutory authority under Parts 26 and 135 of the Public Health Code. Pursuant to the Public Health Code, defendant "shall continually and diligently endeavor to prevent disease, prolong life, and promote the public health" through its statutory authority of "general supervision of the interests of the health and life of the people of this state." MCL 333.2221(1), (2)(a); MSA 14.15(2221)(1), (2)(a). Under Part 135 of the PHC--entitled "Radiation Control"--defendant is designated as "the radiation control agency of this state and shall coordinate radiation control programs of state departments acting within their statutory authorities." MCL 333.13515; MSA 14.15(13515). The Radiation Advisory Board was created under Part 135 as an independent advisory board whose members are appointed by the governor with the advice and consent of the senate. MCL -2

333.13531; MSA 14.15(13531). The RAB's sole statutory duty is to "furnish to the department technical advice the board deems desirable or the department may reasonably request on matters relating to the radiation control program." MCL 333.13531; MSA 14.15(13531). The rule promulgation requirements regarding radiation control are set forth in

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