BY THE COURT:

The judgment is affirmed.

Respondent was charged in Municipal Court with three misdemeanor counts of refusing to allow State agents to inspect his company's premises a "place of employment" in the performance of their duties under the California Occupational Safety and Health Act of 1974 ("OSHA").Ý . . .

The trial court ruled in effect that Respondent was protected by the Fourth Amendment and by Article I, Section 13 of the California Constitution from being required to submit to an OSHA inspection of his company's business premises in the two instances where no warrant for the inspection had been issued and in the third instance where the only warrant issued was without the normal showing of probable cause and without compliance with the inspection warrant provisions of the Code of Civil Procedure.Ý This appeal followed.

Counts One and Two -- Attempted Inspections Without a Warrant.

OSHA was enacted "for the purpose of assuring safe and healthful working conditions for all California working men and women by authorizing the enforcement of effective standards, assisting and encouraging employers to maintain safe and healthful working conditions, and by providing for research, information, education, training, and enforcement in the field of occupational safety and health.Ý Among other things, OSHA enlarged the responsibilities and powers of the State's Division of Industrial Safety to police places of employment for compliance with industrial safety and health standards.*Ý The State agents who attempted to make the inspection in this case were acting under authority of the following paragraph of the statute:

"To make an investigation or inspection, the chief of the division and all employees authorized by him shall, upon presenting appropriate credentials to the employer, have free access to any place of employment.Ý Any person who obstructs or hampers such an investigation which is authorized by the division, is guilty of a misdemeanor." (Labor Code Sec. 6314, Subd.(a).)

No provision is made for a warrant as a preliminary step to an inspection.Ý Inspections that disclose violations of safety or health standards may result in penalties, including misdemeanor punishments. (Labor Code Sec. 6423.)Ý "Civil penalties" of as much as $1,00 per violation, or in more serious cases as $10,000 per violation, may be assessed by the Division. (Labor Code Secs. 6427 and 7435.)

OSHA inspections of private premises are "searches" within the meaning of the Fourth Amendment and Article I, Section 13 of the California Constitution. +++

In Currier, it was held that a city ordinance could not constitutionally require property owners to submit to warrantless inspections of their property in the enforcement of zoning, health and building codes.Ý The reasoning of the District Court of Appeal in reaching that decision applies with equal force to warrantless inspections under OSHA.Ý Auto Equity Sales v. Superior Court (1962) 57 Cal.2d. 450, 455, compels this Court to follow decisions of the District Courts of Appeal.Ý Therefore, based on the holding in Currier, we hold that Respondent was protected by both the Fourth Amendment to the United States Constitution and Article I, Section 13 of the California Constitution from being required to submit his company's premises to warrantless inspections under OSHA.

. . . +++.

Count Three -- Attempted Inspection With a Warrant

After twice being refused admittance to the premises without a warrant, the State inspectors applied for and obtained an "inspection warrant" issued under authority of Code of Civil Procedure, Part 3, Title 13 (Sections 1822.50 to 1822.57).

The warrant commanded the Chief of the Division of Industrial Safety and his authorized representatives, "in the daytime, without notice, to make an inspection of the premises . . . for the purpose of ensuring compliance with all laws and lawful standards, orders and special orders requiring said premises to be safe and healthful, and for carrying out the duties of the Division of Industrial Safety as set forth in Division 5 of the Labor Code of the State of California."Ý The only reference in the warrant to probable cause for its issuance was a statement that proof had been made by declaration "that there exist reasonable legislative and administrative standards for conducting a routine inspection of the premises specified herein."Ý The declaration for issuance of the warrant, after referring to provisions of the Occupational Safety and Health Act, stated that the Division of Industrial safety "has effected a plan of inspection known as the Inspection Scheduling System," and under that under this system places of employment "having a potential for high risk of occupational injuries and/or illnesses are selected for periodic inspection, and are listed alphabetically by city, county and street name, under major categories."Ý Nothing was said in the declaration regarding the premises to be inspected except that a representative of the division had gone there for the purpose of conducting an inspection "pursuant to the requirements of the Inspection Scheduling System" and had be refused admittance.

While the degree of probable cause that will support an inspection warrant arguably need not be as strong as that required for a conventional search warrant, there must still be some showing of probable cause that will make the issuance of the warrant more than a routine ministerial act.Ý Without this the warrant procedure would be little more than an empty formality lending the appearance of legitimacy to what might as well be a warrantless search.Ý According to the Code of Civil Procedure Sec. 1822.52, cause for issuance of an inspection warrant will be deemed to exist "if either reasonable legislative or administrative standards for conducting a routine or area inspection are satisfied with respect to the particular premises."Ý Here, the declaration only repeated some of the language of the statute and added that an "Inspection Scheduling System" had been established; nothing was said to support a conclusion that "reasonable legislative or administrative standards" for conducting the inspection were satisfied with respect to the particular premises.ÝÝ The minimal degree of probable cause required by Sec. 1822.52 therefore was lacking.

The warrant and its attempted execution were defective also in not complying with the following provision of Code of Civil Procedure Sec. 1822.56: "Where prior consent has been sought and refused, notice that a warrant has been issued must be given at least 24 hours before the warrant is executed, unless the judge finds that immediate execution is reasonably necessary in the premises."Ý No such notice was given although prior consent had been sought and refused; yet there was no finding by the judge that immediate execution was necessary in the premises.Ý Appellant argues that the notice requirement could not apply because Labor Code Sec. 6321 expressly prohibits giving advance notice of an OSHA inspection.Ý Section 6321, however, authorizes the Chief of the Division of Industrial safety to permit advance notice of an inspection or investigation.Ý Inasmuch as the warrant was directed to that official and his authorized representatives, there was no obstacle to the giving of the notice.Ý Whatever purpose the notice might have served, no convincing reason has been suggested to excuse its omission, and the requirement of the notice is to explicit to be ignored. (Code of Civil Procedure Sec.1822.56)

In summary, the inspection warrant was issued without a sufficient showing of probable cause and therefore was invalid; also, the attempted execution of the warrant was invalid for noncompliance with the notice requirement of the statute.Ý (Code of Civil Procedure Sec. 1822.56)
 

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*  Labor Code Sec 6307 provides:

"The Division has the power, jurisdiction, and supervision over every employment and place of employment in this state, which is necessary adequately to enforce and administer all laws and lawful standards and orders, or special orders requiring such employment and place of employment to be safe, and requiring to the protection of the life, safety, and health of every employee in such employment or place of employment."

Labor Code Sec. 6309 provides in part:

"Whenever the Division learns or has reason to believe that any employment or place of employment is not safe or is injurious to the welfare of any employee, it may, of its own motion, or upon complaint, summarily investigate the same, with or without notice of hearings."

But also,

"The requirement of this section shall not relieve the division of its requirement to inspect and assure that all places of employment are safe and healthful for employees."