2006 - 2007
Syllabus

This lesson explores the legal basis for conducting inspections and investigations in the practice of environmental health. It will also explore some of the legal ramifications of specific actions. The materials and discussion are intended to show how environmental health practitioners conduct inspections in a legally authorized manner, consistent with their department's mandate, and using tactics and procedures which will ensure the collection and admissibility of evidence.

In the first section of this course we discussed the legal basis of government regulation, the powers of an agency and something of the nature and function of the regulatory agency, i.e., the enforcement of applicable statutes, ordinances, codes, rules and regulations. However, in order to regulate some behavior or activity, it is first necessary to ascertain what is the behavior of the particular individual or establish of concern. In other words, you need to know what is going on; you need to have data. It is essential that you have sufficient, accurate information on which you can base your assessment of the degree of compliance or noncompliance with the appropriate health standards. The principal means by which an agency gathers this kind of information is the inspection or investigation.

The inspection is the functional backbone of the regulatory agency. Environmental health specialists devote a significant, if not a major, portion of their time and efforts to conducting inspections and investigations. Yet, in spite of, or perhaps because of, the routine nature of many inspections, few practitioners bother to consider the inspection in the context of its legal definition, powers and limitations. The inspection is a legal tool which helps the practitioner carry out his/her primary obligation to protect the public health. Like any tool, the inspection has an intended function and is useful only when it is used in its intended manner and setting.

The function of the inspection is, quite simply, to obtain data — through observations, sampling and testing — which will permit the regulatory agent to evaluate a particular circum-stance in terms of its degree of compliance with the applicable standards.
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.

Lesson Objectives

This lesson is intended to provide the student with the information and materials necessary to be able to intelligently discuss:

1. The concept of an "inspection" as a legal tool used in environmental health programs;
2. The general statutory and constitutional considerations involved with the inspector's right to conduct regulatory investigations;
3. The powers, and the statutory and constitutional limits to those powers, delegated by some of the major statutes and rules and regulations enforced by environmental health practitioners; and,
4. The legal issues surrounding the use of the inspection in the investigation of public nuisances.

Lesson Assignment

1. Grad: Chapter 7 -- Searches and Inspections, pp. 122-145.
2. Statutes & Regulations:
• Federal Food, Drug and Cosmetic Act, FDCA, Secs. 304, 702-704 (21 USC §§334, 372-374).
• Resource Conservation and Recovery Ac, RCRA, 42 USC Secs. 6927-6929.
• State Board of Health (RCW 43.20.050)
• Local Health Departments, (RCW 70.05.060-070).
• Solid Waste Management, (RCW 70.95.260-263.)
• Solid Wste Handling (173-304 WAC Secs. 405, 430, 460, 600).
• Food Service Sanitation (248-84 WAC Sec. 085).
• King Co. Food Code, Part 92 (King Co. No. 2)
• King Co. Solid Waste Regulations, Part III Sec. 5 (King Co. No. 8).
3. Required Readings:
   • Reading #14 - Frank v. Maryland, 366 U.S. 278 (1959).
   • Reading #15 - Camara v. San Francisco, 87 S.Ct. 1727 (1967) and See v. Seattle, 87 S.Ct. 1737 (1967).
   • Reading #16 - U.S. v. Thriftimart, Inc. 429 U.S. 1006 (1970).
   • Reading #17 - Marshall v. Barlow's, Inc. 436 U.S. 307 (1978).
   • Reading #18 - Northwest Airlines, Inc. 587 F.2d. 121 (1979).
   • Reading #19 - California v. Salwasser, 6 OSHC 1603 (1978) 
   • Reading #20 - Seattle v. McCready, 124 Wn.2d 300 (1994)
   • Reading #21 - Cantrell, Richard D. "A Method for Investigation of Environmental Complaints", Journal of Environmental Health, 1980, 43(1):14-18.
   • Reading #22 - OSHA Field Inspection Manual (1980)
   • Reading #23 - PHS Food Service Sanitation Manual, Chapter 10.

Lesson Outline

1. Legal Basis
   1. Police Power
   2. Statutory Authorization
   3. Public Nuisances
2. Entry
   1. Inspectional Authority
   2. Inspection vs. Search
   3. Consent Inspections
3. Warrants
   1. Requirements
   2. Exceptions
      • Plain View
      • Prevassively Regulated
      • Effect of Licensing
      • Emergencies
4. Inspection Procedures
1. Complaints
2. Compliance Programming
3. General Procedures

Lecture Slides

References / Additional Readings

1. Gellhorn E, Levin RM. "Searches and Inspections", Chapter 2, Section D in Administrative Law and Process in a Nutshell, West Publishing Co., 1990, pp. 142-146.
2. Gellhorn E, Levin RM. "The Informal Administrative Process", Chapter 5 in Administrative Law and Process in a Nutshell, West Publishing Co., 1990, pp. 160-193.
3. Gellhorn E, Levin RM. "Interests Protected by Due Process", Chapter 6, Section A in Administrative Law and Process in a Nutshell, West Publishing Co., 1990, pp. 194-211.
4. OSHA Field Operations Manual, Chapters II and III.
5. US FDA Food Service Sanitation Manual, Chapter 10.
6. California v. Salwasser, 6 OSHC 1603 (1978).
7. Milliken v. OSAHRC, 7 OSHC 1700 (1979).
8. Marshall v. Western Water-Proofing, 560 F.2d. 947 (1977).
9. Marshall v. Horn Seed Co., 647 F.2d. 96 (1978).
10. Air Pollution Variance Board of Colorado v. Western Alfalfa Corp., 416 U.S. 861 (1974).
11. Donovan v. Dewey, 101 S.Ct. 2534 (1981).
12. U.S. v. Syncon Resins, 16 ERC 1305 (1981).
13. Marshall v. Weyerhauser Co., 456 F.Supp. 474 (1978).
14. Gilbert & Bennett Manufacturing Co., 6 OSHC 215 (1979).
15. APHA-CDC Recommended Housing Ordinance, Secs. X & XI, pp. 28-29.

For Extended Degree Students Only

Key Points

Progress Assessment Exercise

Please proceed to Lesson 7. Permits and Licenses