439 F.Supp. 1014 (S.D.Ill. 1977), 77-5068, Morris v. United States Dept. of Labor

Docket Nº:77-5068.
Citation:439 F.Supp. 1014
Party Name:Milton MORRIS, an Individual d/b/a Milmor Manufacturing Company, Plaintiff, v. UNITED STATES DEPARTMENT OF LABOR, Defendant.
Case Date:September 20, 1977
Court:United States District Courts, 7th Circuit, Southern District of Illinois
 
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Page 1014

439 F.Supp. 1014 (S.D.Ill. 1977)

Milton MORRIS, an Individual d/b/a Milmor Manufacturing Company, Plaintiff,

v.

UNITED STATES DEPARTMENT OF LABOR, Defendant.

No. 77-5068.

United States District Court, S.D. Illinois, Southern Division.

Sept. 20, 1977

Page 1015

Lueders, Robertson & Konzen by R. Eric Robertson, Granite City, Ill., for plaintiff.

Gerald D. Fines, U.S. Atty., John C. Carver, Asst. U.S. Atty., Springfield, Ill., Timothy J. Pauley, U.S. Dept. of Labor, Chicago, Ill., for defendant.

MEMORANDUM ORDER

J. WALDO ACKERMAN, District Judge.

This cause grows out of plaintiff's motion to quash search warrant issued for an administrative search based on the Occupational Safety and Health Act.

FACTS

Plaintiff Milton Morris owns and operates a steel fabricating business located at 1300 McKinley Avenue, Venice, Illinois.

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The business manufactures various types of containers for trucks and other vehicles and is engaged in interstate commerce. On March 14, 1977, the compliance officer of the Occupational Safety and Health Administration, United States Department of Labor, sought entry into plaintiff's work place at Venice for the purpose of performing an occupational safety and health inspection under the provision of the Occupational Safety and Health Act (29 U.S.C. §§ 651 et seq.). The compliance officer was denied entry.

On April 1, 1977, the compliance officer sought and received a warrant for inspection of plaintiff's premises from United States Magistrate Ronald C. Mottaz. On the same date the compliance officer again presented himself at plaintiff's premises and demanded entry. Plaintiff honored the warrant, but on the same date filed with this Court his petition to quash warrant for inspection under the Occupational Safety and Health Act of 1970 and to suppress the evidence obtained.

On April 8, 1977, plaintiff was issued two citations and notifications of penalties for violations of the Act. On April 28, 1977, petitioner's attorney invoked the jurisdiction of the OSHA Review Commission by a notice of contest. Plaintiff in his notice to the OSHA Commission raised the constitutional defenses that are currently pending here.

The issues are: the constitutionality of the Act itself, the requirement of exhaustion of administrative remedies and the validity of the warrant issued.

I.

The attack on the constitutionality of the Act is based on the premise that since § 8(a) of the Act (29 U.S.C. § 657(a)) 1 on its face authorizes warrantless searches it is in violation of the Fourth Amendment.

A number of courts have spoken to this issue. 2 The constitutionality of that section is currently pending before the Supreme Court in Marshall v. Barlow's, Inc., No. 76-1143, probable jurisdiction noted, 430 U.S. 964, 97 S.Ct. 1642, 52 L.Ed.2d 354 (1977). Under those circumstances it seems sufficient to say that it is this Court's duty to construe a statute, if possible in a manner consistent with the Fourth Amendment. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348, 56 S.Ct. 466, 80 L.Ed. 688 (Brandeis, J. concurring). At least two courts, Brennan v. Gibson's Products, Inc., of Plano, 407 F.Supp. 154 (E.D.Tex.1976) (three-judge court) (appeal pending Fifth Circuit) and Dunlop v. Hertzler Enterprises, Inc., 418 F.Supp. 627 (D.C.N.Mex.1976)

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(three-judge court) (appeal pending Tenth Circuit) have sought to apply this principle by interpreting § 8(a) to require the Secretary to seek an inspection warrant where the OSHA inspectors are refused entry.

I believe this to be the proper interpretation of § 8(a) and the statute is not unconstitutional when so interpreted. Further the Secretary through the OSHA compliance officers followed exactly that procedure in this case.

Thus, the question that remains is whether the warrant here was issued upon a proper showing under the standards announced in the Supreme Court decisions Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1966) and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1966). However, before reaching that question I must deal with defendant's argument concerning exhaustion of administrative remedies.

II.

Defendant asserts that the doctrine of exhaustion of administrative remedies requires that plaintiff present his case to the OSHA Review Commission and that this Court is without jurisdiction to decide the validity of the search warrant. It is clear that Congress, through the creation of the Occupational Safety and Health Act of 1970, created a methodology for the plaintiff to litigate his claim. Under the Act, the petitioner is entitled to a full administrative hearing, 29 U.S.C. § 659(c), with the burden of proof on the Secretary, 29 C.F.R. 2200.73, followed by a complete judicial review in the Court of Appeals, 29 U.S.C. § 660(a), whose judgments are reviewable in the Supreme Court on certiorari, 29 U.S.C. § 660(a); 28 U.S.C. § 1254. In support of its assertion defendant cites the cases of W.E.B. DuBois Clubs of America v. Clark, 389 U.S. 309, 88 S.Ct. 450, 19 L.Ed.2d 546 (1967) and Lance Roofing Co. v. Hodgson, 343 F.Supp. 685 (N.D.GA. 1972) (three-judge court) aff'd mem...

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