Extended Degree Program
Lecture Notes

Approximate Time:

12 hours.

Key Points

1. A Legal Basis. There must be some legal basis in statute or an administrative code, which gives an agency the right to regulate activities (including the right to inspect) in a particular instance, e.g., a food protection program.
2. Standards. There must exist, or be established, some criteria for assessing the risk to the health of the employees and/or the public of a particular situation or event.
3. Observations, Tests and Samples. These are the activities which you perform in order to determine the degree of compliance of a condition or event. What you observe, and record, forms the base on which you make the finding of compliance or non-compliance. It also constitutes 'evidence' should it later be necessary to take the case to legal action.
4. Records and Reports. These are the forms, letters and records which you, other employees, laboratory personnel, etc., write to document your findings. They can also be records which a regulated industry is required to keep and make available to appropriate regulatory authority.

1. Entry , i.e., the legal ability of the regulatory agent to enter private property;
2. Gathering information;¬Ý and
3. Recording and maintaining information.

A.¬Ý Legal Basis

The authority of a government agency to conduct inspections has been the subject of continuing legal debate and litigation. And, as the readings in this unit demonstrate, the legal requirements for conducting an inspection have been fundamentally altered by this litigation. The basic legal authority of the administrative agency has already been discussed in previous lessons. The legal ability of the practitioner to conduct inspections and investigations rests on:

a. Properly delegated police powers;
b. Specific wording of the statutory authorization; and-
c. Broad authority to abate public nuisances.

B.¬Ý Entry

One of the most important points regarding the inspection concerns the inspectors right to enter on private property in order to make his/her investigation. In most instances, in order to make the necessary observation or measurements, to collect samples, it is first necessary to enter onto someone's private property. In this lesson we will examine the legal basis for, and the scope and limits of, the sanitarian's legal ability to enter upon private property for the purpose of conducting an inspection.

1. Inspection Authority: The purpose of an inspection is to collect information--usually information regarding the degree of compliance with some standard of protection of the public's health. The government has inherent and constitutional authority to regulate private activities for the public good. At the same time, there is a strong constitutional prohibition against unreasonable searches.
   
   There are four readings in this lesson which are examples of the delegation of inspection authority and responsibility to administrative agencies. The APHA-CDC Recommended Housing Maintenance and Occupancy Ordinance is typical of the regulations enforced at the state and local level. The Toxic Substances Control Act (PL 94-469), on the other hand is a federal statute which seeks to control the health hazard of toxic chemicals. The Occupational Safety and Health Act and the Federal Food, Drug and Cosmetics Act are two additional examples of federal statutes concerned with two well established, but different types, of environmental health programs.
   
   In each case, the law establishes certain basic requirements or obligations for the enforcement agency. One of the most important of these requirements is that the agency oversee the activities or conduct of certain industries. Explicitly or implicitly, this oversight requirement necessitates that the administrative agency have the ability to conduct inspections. Each of these laws establish this authority. Notice the similarities and differences in the wording of the authority grant in these four laws.
   
2. Inspection vs. Search: A problem has developed in recent years concerning the use of the inspection authority. It has been challenged in a number of court cases as violating constitutionally guaranteed rights or freedoms. The basic problem concerned the issue of whether or not an administrative inspection is a search. In a series of U.S. Supreme Court decisions, the court has decided that it is, and therefore is covered by the constitutional safeguard against unlawful searches and seizure. (The first three cases listed in the suggested readings section are the primary cases involved in this sequence of decisions.) However, the court also recognized that legitimate government objectives would be hampered or rendered impossible if the same degree of "probable cause" were required for an administrative search warrant as for a criminal search warrant. This issue is discussed below and is dealt with at length in the readings for this lesson.
   
3. Consent Inspections: No such problem exists when the inspector has been voluntarily granted permission to conduct an inspection or investigation. There may be, however, some problems in determining whether or not consent was freely given, and over the issue of who may give consent.
   
   The three cases listed below helped to delineate the basic parameters surrounding the issue of consent. In each, the court found that consent had been given and that the inspection findings were therefore valid. However, each is concerned with a slightly different aspect of consent.
   1. U.S. v. Thriftimart¬Ý - The issue in this case is whether the informal consent given by the warehouse is sufficient for a "waiver of their constitutional rights" for an adminis-trative inspection.
   2. Milliken v. OSAHRC - Continued the examination of the type of consent necessary for a warrantless inspection, i.e., what burden does an inspector have to inform a person of the constitutional right to refuse an inspection, and what constitutes coercion.
   3. Marshall v. Western Waterproofing - Raised several issues.
      1) Who may give consent?
      2) Can agency rules assist or hamper the inspector's ability to make an inspection?
      3) What constitutes prejudice?
      
      A pattern emerges from studying the readings in each of these cases.
      • An inspector, as a general rule, must have either consent or a search warrant in order to conduct an inspection.
      • The requirement for consent for an inspection is not strict as for a police search, i.e., consent may be informal.
      • Consent may be given by any adult individual who has charge, care or control (partial or whole) of a place.

C.¬Ý Warrants

Inspections may also be conducted with a warrant. The U.S Constitution says "warrants shall issue, but upon probable cause, supported by oath or affirmation...". But what is "probable cause" in order to obtain an inspection warrant? The following cases should stimulate consideration of some of the important aspects of this question which will have a direct bearing on how the inspection function is performed.

In the case of Marshall v. Barlow's, an inspection was made, without a search warrant, and over the objection of the owner. In this case the court held that the inspection was not valid because it violated the Fourth Amendment protection against warrantless searches and prohibited the agency from enforcing any violations found as a result of the illegal inspection.

1. Requirements:

a. Northwest Airlines - Establishes the two grounds for an administrative search warrant: "(1) specific evidence of existing violations, or (2)¬Ý a showing that reasonable legislative or administrative standards for conducting an inspection are satisfied with respect to a particular establishment."

The decisions rendered in this case should provide useful guidance in two aspects of any routine inspection program. The first is -- what are the necessary elements which should be¬Ý incorporated in the description of an inspection program? And, the second is how much and what kind of information is needed on the affidavit for a search warrant?

b. California v. Salwasser - further attempts to define the requirements necessary for an inspection warrant. Like many of the cases which have set precedents concerning the rights and requirements for an inspector to conduct his/her investigations, this cases concerns an OSHA inspection.

c. Marshall v. Horn Seed Co. - is another OSHA case involving an application for a warrant. The judge in this case noted that there are two grounds for seeking a warrant; (1) as part of a regulatory compliance program in which establishments are routinely selected for inspection and regulation, and (2) as a result of a complaint. In regard to the later, the judge listed the general types of information the court would like presented on an affidavit. These are:

1) The affidavit should state whether or not the complaint was received personally or by some other specific official known to the affiant.
2) While the name of the complainant need not be given, the magistrate should be informed as to the source of the complaint (employee, competitor, customer, visitor, etc.)
3) The magistrate must be informed of the underlying facts and surrounding circumstances which the complainant has provided.
4)¬Ý If the complaint is in writing, it should be attached to the affidavit, although the name of the complainant may be deleted.
5) The affiant should specify the steps he/she or other officials took to verify the information on the complaint.
6) The affiant should relate any personal observations he/ she has made of the premises and the establishments past
7) The affidavit should include the number of prior entries, or attempted entries, the scope of the search, the time of day when it is proposed to be made, and other relevant factors.
The judge does not say all of it must be presented, but rather the agency must present what data it does have in each of these areas.

2. Exceptions to the Warrant Requirement:¬Ý While, as a general rule, an inspector needs to secure a warrant in order to enter an establishment without the owner's or manager's consent, there are exceptions.¬Ý The three most important exceptions are discussed below.

a. The 'Open Fields' or 'Plain View' Doctrines -- These realted doctrinse state that a situation which may be generally seen by the public, e.g., an open field viewed from a public road, is not covered¬Ý by the protection of an individual's privacy under the Fourth Amendment. This means that if an event or situation can be observed from an area normally open to the public, an inspector need have neither consent nor a warrant in order for his/her observations to be legally valid. This obviously opens up a new set of questions about what criteria defines what is normally open to the public.

In Air Pollution Variance Board of Colorado v. Western Alfalfa Corp, the Supreme Court dealt with this question and presents the legal reasoning of the court in allowing warrantless inspections in these situations.

b. Pervasively Regulated Industries -- Two exceptions to the warrant requirement have already been covered -- the liquor industry and the firearms industry. In Donovan v. Dewey the U.S. Supreme Court provides some additional guidance as to what constitutes an industry which has been 'historically' and 'pervasively' regulated.

c. Emergencies -- In U.S. v. Syncon, the Supreme Court again deals with the Fourth Amendment privacy protection -- this time permitting a warrantless inspection and collection of samples based on the existence of an emergency condition. The greatest difficulty with emergency inspections is determining what is an emergency. Though the power to make inspections without a warrant and without consent if an emergency exists, is well defined in the law, the specifications of what actually constitutes an emergency are somewhat vague. Clearly any situation or event which threatens human life or property is an emergency. Thus, there is very little question about conditions involving a fire, flood, or similar occurrences. However, what about a toxic spill which may result in the contamination of groundwater used for drinking? Here the existence of an emergency may depend on when the spill is discovered and/or the toxic properties of the chemical.

d. The Effect of Licensing -- It is important to recognize the implications which the "conditions of licensure" may have on the necessity to obtain a special warrant. This subject will be explored in the next lesson.

D.¬Ý Inspection Procedures

1. Complaints: In a sense complaint inspections are the easiest from a legal perspective. The inspector receives a complaint and verifies that it falls within his/her legal authority to investigate. If the inspector does not have legal authority (statutorily delegated or involving a situation falling withint he general powers delegated to the agency, e.g., local health departments) then the complanit should be forwarded to the appropriate agency for investigation. If the inspector does have jurisdiction over the subject of the complaint, then he/she, conducts the inspection or investigation according to established policies and procedures. (See 3 below.)
   
2. Compliance Programming: This concept involves the development of a plan which details the inspection activities involved, i.e, it spells out how the premises are to be selected and the frequency of the inspections.
   
   One defense used against the administrative agency is the argument that a particular establishment has been singled out unfairly for inspection (in violation of the equal protection and due process requirements). The existence of a plan which details the purpose, require-ments and inspection selection criteria and process are necessary to protect the agency against this defense as well as being good administrative practice.
   
3. General Procedures: The OSHA Field Operations Manual represents a policy and procedure manual for field investigators in an enforcement program based on specific statutory authority (OSHAct). A portion of the manual [ Reading #22 ] has been included in the assignment for this lesson. The Field Operations Manual has been well tested in the courts.¬Ý One reason for this is the nature of the penalty provisions of the Occupational Safety and Health Act. The Act requires that an industry be in compliance with the standards established under its provisions, thus the inspector is looking for non-compliance. Any situation which is not in compliance is a violation and subject to the imposition of a penalty in the same manner as a traffic ticket issued by a uniformed police officer.
   
   Most other environmental health programs, by contrast, look for compliance. If a situation is not in compliance, the responsible party is ordered to bring the situation into compliance within a specified time. The penalty provision takes effect only if there is failure to comply with a lawful order. Reading #23 from the FDA Food Service Sanitation Manual is a typical example.

Progress Assessment Exercise

Download the following Microsoft Word file and answer the questions. Your responses should be brief, yet contain sufficient depth to demonstrate your understanding of the issues and/or concepts involved. All progress assessment exercises should be typewritten, well organized and clearly presented. You will be evaluated on the effectiveness and organization of your responses as well as on the substance of the content. When you have finished, email your answers to the instructor. You may also send them by US mail to:

Mr. Charles D. Treser
Department of Environmental & Occupational Health Sciences
University of Washington
Campus Box 357234
Seattle, WA 98195-7234

Exercise No. 6

When you have finished you should contact the instructor to request the final examination for Part I. of the course.

As part of the final examination, you will need to read the case of Wilson v. the Health and Welfare Corporation of Marion County, (Reading #44) in the supplementary readings.