Public Agencies--Authority and Responsibilities.

Environmental health professionals in public employment often face three critical questions:

1. What is the extent of my agency's authority?

2. May I conduct an inspection without consent or a warrant? and

3. What are the consequences if I knowingly do something wrong?

The legal issues are extremely complex, but a few recent cases give some guidance. Of those discussed below, cases 1 and 2 concern the extent of an agency's authority to establish a new hazard analysis critical control (HACCP) procedure or a new prohibition (a municipal ban of all smoking in food service establishments). Case 3 is an excellent example of a creative, lawful, warrantless inspection of a trailer park. Finally, Case 4 addresses the consequences of knowingly filing false reports.

Case #1: USDA Cannot Delegate Meat Inspections

The HACCP approach is an effort to establish constant, government-approved self-surveillance of food handling. In order to be successful, this approach requires a cooperative effort between a government agency and some sector of the food industry. Some consumer groups have criticized this relationship as a compromise of government responsibility, which raises a fundamental legal question: To what extent may an agency turn over to the food industry its inspection responsibility?

The U.S. Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) implemented the HACCP approach by regulation and required meat plants to eventually perform their own meat inspections, subject to FSIS review and oversight. That part of the regulation was challenged by the union representatives of the FSIS food inspectors. The legal question was whether the statutes permit federal inspectors to step back from the processing lines and perform their inspection duties by merely overseeing inspections conducted by plant employees. In American Federation of Government Employees, AFL-CIO v. Glickman, the Court of Appeals agreed with the union and invalidated that part of the USDA regulations.

Since 1907, FSIS inspectors had performed postmortem inspections along slaughter-processing lines using organoleptic methods (sight, touch, and smell). With the HACCP method, FSIS required industry to assume responsibility for producing safe meat and ultimately gave it complete control over production decisions and execution, including carcass inspections.

The court held that the term "inspection" in the statute entails observation, but that not every observation amounts to an inspection. The FSIS system had federal inspectors inspecting people instead of carcasses. The federal statute meant that when meat inspections are performed, it would be by federal inspectors who would make the critical determination whether a product was adulterated. The statute thus prohibited USDA from delegating the inspection of carcasses to private individuals or plant employees.

Case #2: Municipality May Ban Smoking in All Food Service Establishments

Between 1995 and 2000, the Board of Health in the Town of Barnstable, Massachusetts, considered the harmful effects of environmental tobacco smoke (ETS) and decided it was necessary either to require restaurants and bars to construct enclosed smoking areas or to completely prohibit smoking in them. The board chose the latter approach and adopted a regulation banning smoking anywhere in restaurants and bars, A lounge sued the board and asked the court to enjoin enforcement of the regulation. In Tri-Nel Management, Inc. v. Board of Health, the trial court denied the lounge's request for an injunction, and its decision was upheld on appeal.

The lounge made five arguments:

1. the board had exceeded its authority;

2. the regulations were unreasonable;

3. the regulations conflicted with state legislation;

4. the legislature's delegation of authority to a local board of health violated the separation of powers doctrine; and

5. the regulations violated the town's charter.

Many years ago, the Massachusetts legislature had given boards of health authority to "make reasonable health regulations." So the board had authority over ETS as long as the regulations were reasonable.

The lounge claimed that the regulations were unreasonable because exposure to ETS would be insufficient to cause general health effects. There is, however, a strong presumption of the validity of health regulations and of their rationality. A court gives deference to a health board because of the board's expertise and experience in health matters. So, without substantial and impressive counter-proof, the board's regulations were considered reasonable.

An existing Massachusetts statute prohibited smoking in many public places and in restaurants with 75 or more seats except in designated smoking areas. The statute preserved local authority, however, and the general legal principle is that local regulations are valid unless they directly conflict with a state statute or its intent. Therefore, the local regulation was not prohibited.

It is long established that a state legislature may not delegate its authority to an agency without standards. In Massachusetts, the standards were that the board's regulations must pertain to "health" and be "reasonable." Those were sufficient standards.

Finally, the Board of Health regulations did not supersede the power of the Barnstable Town Council. First, the town had an administrative code granting the Board of Health regulatory authority. Second, state legislation gave the board authority independent of the town's charter.

Case #3: Plain-View Inspection

Question: How would you conduct a warrantless inspection of an unlicensed facility in a rural area without the owner's consent? Try a plain-view inspection like that conducted by the environmental health officials of the Lewis County Health Department in Washington.

Pat Waslawski and Chris Cooper were sent by Michael Vinatieri, who was the director of environmental health, to investigate a possible unlicensed recreational-vehicle (RV) park. The park was off an access road connected to a state road. At the turnoff to the access road, a large sign advertised the RV park. The access road had no gate or fence. It had an espresso stand on it, and it served a post office, a fire department, and a business "office." The park owner, who also lived along the road, had previously written the department about trespassing and specified that inspections were only allowed with advance notice.

The environmental health investigators drove a county vehicle onto the access road, and one of them got out of the vehicle to videotape a sewer pipe, water hose, and power cords at one trailer hookup. They videotaped another RV site, and then drove to a gravel parking pad in front of a third RV space. There they encountered the park owner, who ordered them off the property. The investigators had neither a warrant nor consent. So the owner filed a civil-rights lawsuit under 42 U.S.C. [ss]1983 claiming a violation of his Fourth Amendment rights against unreasonable searches.

For the purposes of the Constitution, an inspection is a search. The well-established law is that "inspections for health, safety, and other violations of ... codes must be conducted pursuant to a warrant, or fall within one of the narrowly drawn exceptions to the warrant requirements." The question in the case was whether an inspector's observations and photographs from an access road or area immediately adjacent to the road were a "search" under the Fourth Amendment.

In Peters v. Vinatieri, the court said no and dismissed the case. The Fourth Amendment protects an expectation of privacy that an individual subjectively seeks to preserve and that is recognized by society as reasonable. The park owner had a subjective expectation of privacy. That expectation, however, was not objectively reasonable. He had an advertising billboard at the entrance, which stated that the park was open for commercial uses, and the RV campers were members of the public who had access to the park by traveling down the access road. In addition, the investigators never entered the owner's house or the area immediately around it.

It is not a "search" if an environmental health investigator is at a lawful vantage point and observes something. The access road was such a lawful vantage point. Such an inspection is a "plain view" observation allowed by the Fourth Amendment.

Furthermore, recording an observation by photograph or videotape is not a search or invasion of privacy if the original observation is legal.

Case #4: Criminal conviction for Filing False Report

In State v. Hampton, a sanitarian responsible for inspecting the installation and repair of sewage disposal systems for a county health department in Washington State was criminally convicted for offering a false document to be filed in the department. The document was a final inspection form that incorrectly identified the designer of an on-site sewage disposal system and falsely stated that a required designer's certificate had been obtained. The sanitarian knowingly filed the form, was prosecuted, and was convicted by a jury. The motives for the illegal conduct and the punishment were not stated in the court's opinion.

Cases Cited

American Federation of Government Employees, AFL-CIO v. Glickman, 215 F.3d 7 (D.C. Cir. 2000).

Peters v. Vinatieri, 102 Wash.App. 641, -- P.3d __ (2000).

State v. Hampton, 100 Wash.App. 152, 996 P.2d 1094 (2000).

Tri-Nel Management, Inc. v. Board of Health, 433 Mass. 217, __ N.E.2d __ (2001).

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