Statutory presumption, more on statutes of limitations, and the concept of "closely regulated industries".

Onsite sewage disposal systems occasionally fail, or they may be dangerous because of their location. A sewage system failure may present a contact danger for adults and children, create a breeding place for flies and mosquitoes, cause odors, or result in surface water or groundwater contamination. A goal of all environmental health programs is to eliminate such failures.

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A failed onsite sewage system may, however, be difficult to identify. If a failure results in surface ponding, it is relatively easy to locate by sight or odor. The difficulty in identification occurs in situations when the sewage never rises to the surface and is discharging directly into the groundwater. Failures may be proven by a disease outbreak, dye testing, or extensive groundwater sampling. The first case discussed in this month's column, from Wisconsin, used another method to prove a failure--through average groundwater elevations and a statutory presumption.

Case 2 involves onsite sewage disposal in Texas. Homeowners sued the county and two environmental health inspectors for negligence in allowing construction of their house and onsite sewage disposal system in a flood plain.

The third case is from Minnesota. It concerns a citation issued for refusal to allow a boat to be inspected for sport fish. Although the case involved a proposed inspection by a wildlife officer rather than an environmental health officer, it is discussed here because it concerned the exception to the Fourth Amendment for "closely regulated" industries, which might apply to food establishment and other environmental health inspections.

Case #1: Conviction for Illegal Onsite System Upheld (1)

A home on an island in the Sawyer Harbor area of the Town of Nasewaupee, Wisconsin, had been constructed in the 1940s, and used a well and an onsite sewage disposal system. As part of a survey to identify failing or failed sewage disposal systems, the Door County sanitarian, John Teichtler, and assistant sanitarian, Chris Olson, obtained information from the Corps of Engineers about the average elevation of Lake Michigan (578.4 feet mean sea level [MSL]). Since the home was on an island, it was believed that the groundwater elevation would be the same as the lake level. Teichtler and Olson then determined that the island home's onsite sewage disposal system (elevation 579.5 feet MSL) was less than 2 feet above the average lake water level. No water or soil samples were collected, no soil evaluations were made, no dye tests were performed, no infrared photographs were taken, and no wells were installed.

On the basis of the elevations of the lake and sewage system, the environmental health department issued an enforcement order to the homeowner to replace the system. After receiving a time extension, the homeowner still failed to replace the system. The department issued the homeowner a citation for violating the county ordinance.

The trial court found the homeowner guilty of owning and operating a failing sewage disposal system. The homeowner appealed. An appellate court does not decide if it would have delivered the same verdict as the trial court. It reviews the evidence presented at the trial court to determine if there is any credible evidence to sustain the judgment. Since the appellate court reviews only the typed transcript of the trial, witness credibility is for the trial court to decide. After a trial, the evidence, unless patently incredible, is viewed by the appellate court in the light most favorable to the judgement.

During the trial, the homeowner complained that the sanitarians' conclusions were unsupported because they were based on estimates instead of actual measurements. Indeed, the homeowner produced a laboratory sample report showing his well water was bacteriologically safe and photographs of a test pit showing that his sewage disposal system was over 3 feet above the groundwater.

Nonetheless, the trial court rejected that evidence because the depth of the well and the flow of the groundwater could have precluded the migration of contamination to the well, and no morphological evaluation of the soil had been performed to determine possible infiltration of lake water at other times. The trial court therefore accepted the sanitarians' testimony as substantiating the groundwater and sewage system elevations. Since the sanitarians' evidence showed that the difference between the onsite system and the groundwater level was less than 2 feet, it triggered a statutory presumption, without any additional evidence, that the system was discharging partially treated sewage without a permit.

Statutory presumptions are valuable to expedite environmental cases in which evidence is difficult, time consuming, expensive to obtain, or all three. A statutory presumption may be used as long as its preconditions are satisfied and regardless of whether any specific test is identified to rebut the presumption. This case also shows the importance of raising witness credibility with a trial judge instead of hoping for a decision on appeal.

Case #2: Statute of Limitations Precluded Liability (2)

In Hays County, Texas, a landowner wanting to construct a house must obtain a permit from the county environmental health department verifying that the structure and sewage disposal system are not within the 100-year flood plain. Two landowners obtained such permits in the summer of 1996. Once they had the permits, the landowners placed homes and sewage systems on their property in Kyle, Texas.

Shortly after construction of their homes, the Plum Creek Conservation District notified the landowners in the late summer or early fall of 1996 that their homes were actually within the 100-year flood plain. So the homeowners contacted the environmental health department. Upon further evaluation, the environmental health department recognized its mistake and advised the homeowners to move their homes at the expense of the county.

On July 28, 1997, the homeowners advised the county officials of the cost of relocation. The county responded five months later requesting documentation of the costs. No settlement was consummated.

As expected, the area flooded in mid-October 1998, damaging the homes. Then the homeowners made written demands to the county on October 31, 1998, for their damages. With no resolution of the problem having occurred, on October 8, 1999, the homeowners sued the county and the two environmental health personnel who had issued the permits for damages to their property caused by negligence in inspecting the properties and granting the permits.

The statute of limitations in Texas for negligence causing property damage is two years. Generally, statutes of limitations designate the maximum time period a person has either to settle a dispute or to file a lawsuit. (3) The periods vary from state to state and for different types of lawsuits. The issue in this case was the starting date for the statute of limitations.

The homeowners argued that the period had started on the date of the 1998 flood since that was when they suffered actual damages. The county argued that the limitations period had begun when the homeowners learned that their homes were in a flood plain.

The start of a statute of limitations is, generally, when facts become known that would give a person a right to sue even if actual physical damage or injury has not yet occurred. A delay in the occurrence of actual damages does not toll, suspend, or extend the limitations period.

In this case, the damages were permanent because the homes could not be in the flood plain. So the cause of action accrued in 1996 when the homeowners actually placed their homes in the flood plain. Since they did not file a lawsuit until 1999, the two-year statute of limitations had expired and their case was properly dismissed.

The case was dismissed on procedural grounds and did not address whether the county or environmental health personnel were immune or liable for such mistakes. Also, apparently, the landowners did not raise a defense to the statute of limitations based on representations by the county official that the country would pay the relocation expenses, which caused the homeowners to delay filing a lawsuit while they negotiated a settlement.

Case #3: Inspection of "Closely Regulated" Industry (4)

Since the U.S. Supreme Court case of Camara v. City and County of San Francisco (5) in 1967, it must be known by all environmental health personnel that any inspection or investigation of residential property is considered a search under the Fourth Amendment. The Supreme Court also held in that case that a person's exercise of Fourth Amendment rights to refuse an inspection of protected property could not result in a citation or fine. (6) That same year, in See v. City of Seattle, the Supreme Court extended the Fourth Amendment protections to government inspections and investigations of commercial property. (7)

Over subsequent years, the Supreme Court never retreated from Camara or See, but defined and refined the concept of property protected by the Fourth Amendment from government inspection. Protected items are now described as those for which the owner or possessor has a reasonable expectation of privacy.

An important exception started to evolve from 1970 to 1972 with cases involving inspections of licensed liquor stores and firearms dealers by federal ATF officers. (8) The Supreme Court held that licensed liquor stores and firearm dealers had no reasonable expectation of privacy because they were closely or pervasively regulated and people entering such a business knew of such regulations and implicitly accepted them. Therefore, such people had no Fourth Amendment rights.

That reasoning was advanced by the U.S. Occupational Safety and Health Administration to justify warrantless inspections of all businesses it regulated. The reasoning was rejected, however, by the Supreme Court, which held that exception would be on an industry-by-industry basis. (9)

A few years later, the Supreme Court approved of warrantless inspections under the Federal Mine Safety and Health Act of 1977 because underground and surface mines were closely regulated and the statutory inspection scheme provided adequate protection against unreasonable inspections.

Then, in 1987, came the final administrative inspection case before the Supreme Court, which involved automobile salvage yards in New York. (10) The Supreme Court approved a state warrantless inspection program of salvage yards and described the elements needed for a warrantless inspection scheme to be constitutional:

    First, there must be a "substantial" government interest that
  informs the regulatory scheme pursuant to which the inspection is
  made....
    Second, the warrantless inspections must be "necessary to further
  [the] regulatory scheme."
    Finally, "the statute's inspection program, in terms of the
  certainty and regularity of its application, [must] provid[e] a
  constitutionally adequate substitute for a warrant...." In other
  words, the regulatory statute must perform the two basic functions of
  a warrant: it must advise the owner of the commercial premises that
  the search is being made pursuant to the law and has a properly
  defined scope, and it must limit the discretion of the inspecting
  officers.... To perform this first function, the statute must be
  "sufficiently comprehensive and defined that the owner of commercial
  property cannot help but be aware that his property will be subject
  to periodic inspections undertaken for specific purposes." In
  addition, in defining how a statute limits the discretion of the
  inspectors, we have observed that it must be "carefully limited in
  time, place, and scope."

With that history in view, we are ready to look at a recent inspection case. The case concerned a request by a Minnesota conservation officer to inspect an open boat on a trailer after the occupants told the officer that they had caught some fish. Sport fishermen in Minnesota have to have a license, and the sport is closely regulated. All the requirements of New York v. Burger were met by the Minnesota statute.

The conservation officer's request to inspect was rejected by the boat occupants. An argument ensued. In order to avoid a physical confrontation, the officer merely issued the boat owner a citation for failure to allow an inspection. The issue in the case was whether the boat owner had a constitutional expectation of privacy in his boat and in his fish that was protected by the Fourth Amendment. If he did, then the citation was invalid because he was merely exercising his constitutional rights. If he did not, then the citation was valid.

The Minnesota Supreme Court, citing similar decisions from California, Montana, and South Dakota, upheld the citation because "a fisherman had no reasonable expectation of privacy in the fish he possessed" and therefore had no right to refuse an inspection. Indeed, no probable cause was even required because he had no Fourth Amendment rights.

For environmental health personnel, the case may be very important to programs that require a license or permit (such as food service operations). The issue is whether such programs can meet the requirements of New York v. Burger. If a program qualifies, the permittee would have no reasonable expectation of privacy and no Fourth Amendment rights to refuse an inspection. Therefore, an inspection request could not lawfully be refused, a citation could be issued for a refusal, and there would be no civil rights liability if legitimate consent to inspect was not properly obtained.

Several cases have upheld FDA's right to perform warrantless food inspections pursuant to the Federal Food, Drug, and Cosmetic Act. (11) In the area of food service facilities, however, only two cases are found addressing whether restaurants are a "closely regulated" industry and the owners therefore lack Fourth Amendment rights to refuse an inspection. Both cases were related to the City of Chicago food code. (12) Both upheld the right of Chicago food safety personnel to perform warrantless inspections because the restaurant had no reasonable expectation of privacy.

The Supreme Court cases tell us that the determination of the lawfulness of warrantless inspections must be made on an industry-by-industry basis and with respect to the specific state statute or local ordinance authorizing the inspection. It is strongly advised that before any agency attempts to use or rely on the closely-regulated-industry exception, it secure an opinion about the applicability of the exception from an attorney general or general counsel.

Since this matter may substantially affect several environmental health programs, more will be written later about it as future cases are decided. Also, access to establishments is a subject that I discuss for over two hours in the FDA course, "Effective Enforcement."

Editor's note: Readers who have questions about cases discussed in Legal Briefs may contact Dr. Sikora by e-mail at [e-mail].

References

(1) Door County v. Wittig, 2003 Wisc.App. LEXIS 1033 (Wisc. Ct. App. 2003).

(2) Campbell v. Hays County, Texas, 2003 Tex.App. LEXIS 8501 (Tex. Ct. App. 2003).

(3) For a discussion of a similar two-year statute of limitation applied in Iowa to preclude any county liability for a defective sewage system, see Richmond v. Clinton County, Iowa, 2003 U.S. App. LEXIS 15476 (8th Cir. 2003), discussed in a previous Legal Briefs column: Vince Sikora, "Duty-to-Inform, Discrimination, and Septic-System Issues," Journal of Environmental Health, Nov. 2003, at 32.

(4) State v. Colosimo, 669 N.W.2d 1 (Minn. 2003).

(5) Camara v. City and County of San Francisco, 387 U.S. 523, 87 S. Ct. 1727 (1967).

(6) The Fourth Amendment is not something to be cavalierly disregarded, because a violation of a person's Fourth Amendment rights under color of state or local law may result in a damage lawsuit under 42 U.S.C. [section] 1983 against the inspector for violation of civil rights.

(7) See v. City of Seattle, 387 U.S. 541, 87 S. Ct. 1737 (1967).

(8) Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S. Ct. 774 (1970); United States v. Biswell, 406 U.S. 311, 92 S. Ct. 1593 (1972).

(9) Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S. Ct. 1816 (1978).

(10) New York v. Burger, 482 U.S. 691, 107 S. Ct. 2636 (1987).

(11) United States v. Gel Spice Co., Inc., 773 F.2d 427 (2nd 1985); United States v. Schiffman, 572 F.2d 1137 (5th Cir. 1978); United States v. New England Grocers Supply Co., 488 F.Supp. 238 (D. Mass. 1980); United States v. Biswa Overseas Co., Inc., 1979 U.S. Dist. LEXIS 11973 (S.D.N.Y. 1979); United States v. Del Campo Baking Mfg. Co., 345 F.Supp. 1371 (D. Del. 1972)

(12) Conteras v. City of Chicago, 119 F.3d 1286 (7th Cir. 1997); City of Chicago v. Pudlo, 462 N.E.2d 494 (Ill. App. Ct. 1984), appeal denied (Ill. Sup. Ct.).

Vincent A. Sikora, J.D., LL.M., R.P.S.

Associate Professor, East Tennessee State University