Housing, inspection, and statute-of-limitations issues.

A permit or license from a public health agency is a very common legal requirement for installation of an onsite sewage disposal system, disposal of solid waste, digging of a well, renting of apartments, or operation of a restaurant, grocery store, barbershop, or tattoo parlor. (1) Usually, the permit or license specifies, as a requirement or condition, that the recipient allow health inspections. (2) Case 1 in this month's column examines the extent of the right a housing code enforcement agency has to inspect apartments under an ordinance that requires permit recipients to allow inspections.

Case 2 also involves inspections. In this case, the inspection was conducted by sheriff deputies interested in investigating a possible methamphetamine laboratory The interesting part is that the deputies went to the property to arrest the owner with an outstanding warrant for a misdemeanor--a sewage violation--and were accompanied by public health officials.

The third case, too, concerns the involvement of a public health agency with housing certificates. This case has general application; the concept at issue is "exhaustion of administrative remedies." (3)

The final case is about a statute of limitations. A statute of limitations is a legislative determination of the maximum time a person may take to file a lawsuit about some legal matter. (4) Except in the case of written contracts that specify" periods of time, the statutory maximum amount of time to sue varies from state to state, generally depending on the nature of the dispute and the condition of the parties. Many people are familiar with statutes of limitations in civil actions for malpractice, negligence, trespass, workers' compensation, and so forth. Few environmental health professionals know, however, that there are statutes of limitations for environmental crimes.

Case #1: No Conviction for Exercising a Constitutional Right (5)

Pottsville, Pennsylvania, had an ordinance requiring owners of residential rental property to pay a modest fee and allow triennial inspections of the apartments. The ordinance provided that

C. Failure of the owner to permit access to conduct ... inspections shall be deemed a violation of this article.

D. For the purpose of enforcing this article, the Code Enforcement Officer or designee may seek to obtain a search warrant issued by a competent authority for the purpose of compelling an inspection for a residential unit.

Violation of the ordinance could result in a $300 fine or 30 days in jail, or both, for a first offense; a $600 fine or 60 days in jail, or both, for a second offense; and a $1,000 fine or 90 days in jail, or both, for all subsequent offenses.

Despite being notified of the requirements specified by the ordinance, an owner of numerous apartments refused to pay the inspection fee or allow any inspections of his units, instead of obtaining a search warrant, however, the city issued him a citation with a charge that he had "failed to provide access for required rental property inspection." He was convicted by a district justice and again by the Pennsylvania Court of Common Pleas. The issue on the second appeal was whether a person could be criminally convicted for refusing to allow a code enforcement inspector non-consensual and warrant-less access to his residential apartments.

In Camara v. Municipal Ct. of City and County of San Francisco (6) and See v. City of Seattle, (7) the U.S. Supreme Court ruled in 1967 that Fourth Amendment rights protect homeowners and businesspersons from unreasonable health inspections if the owner has a reasonable expectation of privacy Public health inspections of protected property are reasonable if done with consent or a warrant. Business property is not protected if it is open to plain view or the industry is "closely regulated" or "pervasively regulated," as is the case with liquor, firearms, and mines. Residential rental property, however, is not "closely regulated." (8)

So the city argued that having to obtain search warrants to inspect apartments would make it "virtually impossible" to operate its program. This same argument was rejected by the U.S. Supreme Court in Camara and by the Pennsylvania appellate court. Indeed, the Pottsville ordinance specifically provided for search warrants, which could be issued pursuant to a general administrative plan "derived from neutral sources."

In this case, no warrant was obtained, and the owner was convicted solely for refusing to allow an inspection. The court said: In Simpson, a civil lawsuit, we held that absent consent to search, a warrant was required. Certainly, in this case, where Tobin has been criminally convicted, we can require no less. Therefore, we hold that, under Camara and Simpson, the conviction cannot stand. To allow it to stand would be to convict Tobin for exercising his constitutional rights under the Fourth Amendment.... [A]n administrative warrant must be obtained prior to convicting an owner for failing to permit access to conduct inspections under the Ordinance. Because no warrant was issued, Tohin's conviction violated his Fourth Amendment rights to be free from unreasonable searches.

Case #2: Police Inspection Pursuant to Public Health Arrest Warrant (9)

A deputy sheriff suspected that there was a methamphetamine-manufacturing laboratory at a house. He lacked sufficient information, however, for a search warrant. So he checked for unserved arrest warrants and discovered that the property owner had an outstanding misdemeanor arrest warrant for a sewage violation.

Then several deputies went to the property with a health department representative to serve the misdemeanor arrest warrant. At the property, the deputies walked through an opening in a gated fence that had "no trespassing" and "do not block" signs on it. The health department representative remained outside the fence.

The deputies went to the structure to find the owner, but only two women came to the door. Although both one deputy and the women at the doorway called out the owner's name without receiving any answer, the deputy still believed the owner was present. So the deputy went inside to see if the owner was there. The owner was absent, but the deputy did find a methamphetamine laboratory. Later, the owner came toward the house from some nearby woods and was arrested.

The owner was convicted of the crime of methamphetamine manufacturing. Nothing was mentioned about the outcome of the sewage violation charge. On appeal, he argued that the drug evidence should have been suppressed because the deputies' entry onto the property violated his Fourth Amendment rights.

A valid arrest warrant for a felony or misdemeanor charge implicitly carries with it limited authority to enter a dwelling in which a suspect lives if a deputy has reason to objectively believe a suspect is inside. Once inside looking for the suspect, a deputy may see whatever is in plain view and may use it as evidence for the existing or another criminal charge. In this case, a deputy testified that he believed the owner was inside on the basis of prior information and the behavior of the women. Therefore, the evidence of drug manufacturing gathered in the house by the deputy was admissible against the owner, and the conviction was upheld.

Case #3: Exhaustion of Administrative Remedies (10)

The Town of Fairfield, Connecticut, required owners of residential rental property to annually obtain a certificate of occupancy from the health director and to pay a fee. The application for the certificate required a listing of the tenants' names and ages, relationships among the tenants, and their license plate numbers. In addition, tenants had to sign the application, swearing their compliance with applicable regulations and with occupancy limitations.

After several years of paying the certificate fee, one landlord decided to challenge the law in court and sued the town. About a week later, the town issued the landlord an order of non-compliance. Under Connecticut law, an order of non-compliance from a local health director may be appealed to the state commissioner of public health. So the landlord appealed to the commissioner. He later withdrew his appeal, however.

The original lawsuit went to trial. The judge held that the information about tenants on the application form was not reasonably related to health and safety issues, and that the town's concerns were adequately addressed in its zoning regulations. The town appealed, claiming that the landlord had failed to exhaust his administrative remedies by dropping his appeal to the state public health commissioner.

"Exhaustion of administrative remedies" is a judicial doctrine requiring that a person use available and adequate administrative remedies before resorting to an independent lawsuit. The doctrine exists to create an orderly and efficient process of resolving disputes with administrative agencies, and to conserve judicial resources. It allows courts to benefit from an agency's findings of fact and conclusions of law while giving the agency the chance to correct any errors or mistakes; the agency also gets the opportunity to properly and fairly dispose of disputes within its special area of expertise.

The judicial requirement of "exhaustion of administrative remedies" has some exceptions. A major exception occurs if the administrative remedy would be futile or inadequate. In Connecticut, the state commissioner of public health can vacate, modify, or affirm the order of a local health director. The commissioner can determine if a health code exceeds the authority of the town or is inconsistent with the state public health code, and may fashion an appropriate remedy. The commissioner is presumed to have substantial knowledge of what is reasonably necessary to effectuate local health laws. Furthermore, a person disappointed with the commissioner's decision may then appeal to the court.

The Connecticut Supreme Court held that the issue of whether a local regulation reasonably relates to health and sanitation is a factual matter. The commissioner of public health is best qualified to undertake a factual inquiry on that issue, and was entrusted by the legislature to perform those duties. Therefore, since the administrative remedies were adequate and the landlord had not exhausted them, the decision of the trial court was reversed.

Case #4: Criminal Statute of Limitations (11)

Thoro Products had manufactured spot remover and other cleaning products since 1902. Around 1948 it moved to Arvada, Colorado.

For 20 years, up to 1984 or 1985, Thoro was a bulk distributor for Dow Chemical Company. Several of the chemicals were toxic solvents. Dow's chemicals were pumped from rail cars into several aboveground storage tanks. Then Thoro loaded the chemicals into trucks for delivery to Dow's customers. Unfortunately, sometimes the chemicals spilled or leaked at the facility. Indeed, in the 1970s, there were three major spills of several hundred gallons of solvent.

Thoro's business declined and was officially dissolved as a Colorado corporation in 1997. In 1995, high concentrations of solvents were found in some wells about one mile away from the Thoro plant. The U.S. Environmental Protection Agency (U.S. EPA) concluded that the solvents had come from the Thoro plant.

Both Thoro and its president were indicted. After a two-week trial, Thoro was convicted of three counts fun-permitted storage and disposal of hazardous wastes, and criminal mischief), and the president was convicted of un-permitted storage and disposal of hazardous wastes. The mare issue on appeal was whether a Colorado statute of limitations applied to the unlawful-disposal charge. The statute of limitations provides that criminal charges must be brought within two years after discovery of a violation or within five years after the date on which the violation occurred, whichever occurs earlier.

The defendants argued that the last act of "disposal" occurred no later than 1985, while Colorado argued that disposal continued because the solvents continued to seep through the soil on the property. The court had to determine whether the continued passive migration of previously leaked or spilled hazardous solvents was a continual "disposal."

The statutory definition of "disposal" does not list or suggest passive migration, and the statute does not declare an act of "disposal" to be a continuing offense. Nonetheless, a violation may still be a continuing offense if its nature shows that the legislature must have considered it one.

A "disposal" actually occurred, however, when Thoro's employees allowed solvents to spill into the soil without a permit. Unlike a conspiracy that continues until a crime is perpetrated or the burial of drums that continually leak wastes into the ground, a crime of spillage was complete at the actual time and place of the spill. Once the hazardous waste was spilled, the crime was completed, and no illegal "disposal" occurred thereafter. Therefore, the statute of limitations had run out, and neither the company nor its president could be criminally charged in 1997 for unlawful disposal in 1985 of hazardous wastes.

Editor's note: Readers who have questions about cases discussed in Legal Briefs may contact Mr. Sikora by e-mail at sikora @etsu.edu.

References

(1) See generally Frank P. Grad, Public Health Law Manual, Chapter 6 (2nd ed., American Public Health Association, 1990).

(2) See Frank P. Grad, Public Health Law Manual, 136-137 (2nd ed., American Public Health Association, 1990).

(3) See Frank P. Grad, Public Health Law Manual, 301-302 (2nd ed., American Public Health Association, 1990).

(4) See George D. Pozgar, Legal Aspects of Health Care Administration, 112 (8th ed., 2002).

(5) Commonwealth v. Tobin, #2205 C.D. 2002, 2003 Pa. Commw. LEXIS 453 (2003), http://www.lexis-nexis.com (7 July, 2003).

(6) Camara v. Municipal Ct. of City and County of San Francisco, 387 U.S. 523, 18 L.Ed.2d 930, 87 S.Ct. 1727 (1967).

(7) See v. City of Seattle, 387 U.S. 543, 18 L.Ed.2d 943, 87 S.Ct. 1737 (1967).

(8) "Closely regulated" businesses are determined by a court for a specific industry, and the definition cannot be generalized. For example, the U.S. Occupational Safety and Health Administration (OSHA) once claimed that all of the many business its regulates are "closely regulated." OSHA regulates a broad range of businesses, however. The U.S. Supreme Court determined that OSHA2s programs were too generalized (Marshall v. Barlow's, Inc., 436 U.S. 307, 56 L.Ed.2d 305, 98 S.Ct. 1816 [1978]). Therefore, OSHA must have consent or a warrant to inspect.

(9) Washington v. Deen, #27240-7-II, 2003 Wash.App. LEXIS 696 (Wash. Ct. App. 2003), http://www.lexis-nexis.com (7/7/03).

(10) Stepney, LLC v. Town of Fairfield, 821 A.2d 725 (Conn. 2003).

(11) People v. Thoro Prod. Co., #01SC419, 2003 Colo. LEXIS 432 (Colo. Sup. Ct. 2003), http://www.lexis-nexis.com (7 July 2003).