606 F.2d 693 (6th Cir. 1979), 79-1111, Marshall v. Nolichuckey Sand Co., Inc.

Docket Nº:79-1111.
Citation:606 F.2d 693
Party Name:Ray MARSHALL, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. NOLICHUCKEY SAND COMPANY, INC., Defendant-Appellant.
Case Date:October 05, 1979
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 693

606 F.2d 693 (6th Cir. 1979)

Ray MARSHALL, Secretary of Labor, United States Department

of Labor, Plaintiff-Appellee,

v.

NOLICHUCKEY SAND COMPANY, INC., Defendant-Appellant.

No. 79-1111.

United States Court of Appeals, Sixth Circuit

October 5, 1979

Argued June 22, 1979.

C. Berkeley Bell, Bell & Rogers, Herbert R. Silvers, Silvers, Randall & Laughlin, Greeneville, Tenn., for defendant-appellant.

Thomas A. Mascolino, Carin Ann Claus, Morell Mullins, Ronald E. Meisburg, Dept. of Labor, Washington, D. C., John H. Cary, U. S. Atty., Richard K. Harris, Asst. U. S. Atty., Knoxville, Tenn., for plaintiff-appellee.

Before EDWARDS, Chief Judge, and CELEBREZZE and LIVELY, Circuit Judges.

LIVELY, Circuit Judge.

The question for decision in this case: May an inspector of the Mine Safety & Health Administration enter the premises of a sand and gravel operation to make a routine inspection without a search warrant? The district court held that no warrant was required and enjoined the defendant from refusing to permit inspection of its premises by authorized representatives of the plaintiff.

The case was submitted to the district court on a stipulation and the testimony of a single witness the supervisor of the inspector

Page 694

who was refused entry by the defendant. This witness was called by the defendant. The plaintiff offered no evidence, relying on the terms of a statute, the Federal Mine Safety and Health Amendments Act of 1977 1 (the Act or the 1977 Amendments Act) and its legislative history.

There is no description or picture of the sand and gravel operation of the defendant in the record. It appears, however, that it is a typical rock quarry or gravel pit where work is done on the surface of the land, with no underground tunnels or shafts. Nevertheless, the parties stipulated that the operation of the defendant is subject to the Act, which refers to "coal or other mine." Included in the definition of "coal or other mine" is "an area of land from which minerals are extracted in nonliquid form . . . ." 30 U.S.C.A. § 802(h)(1)(A) (1979 pocket part). The issue, then, is whether the provisions of the Act which permit warrantless routine inspections of such "mines" offend the Fourth Amendment to the Constitution.

Since the decision of the Supreme Court in See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), it has been settled that the Fourth Amendment warrant requirement does apply generally to code-enforcement inspections of commercial structures. However, the Supreme Court has subsequently identified two exceptions to the general requirement of a warrant. In Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), the Court held that an establishment licensed to sell liquor could be searched by an inspector without a warrant. Noting the long history of government regulation of the liquor industry, the Court held that Congress has broad authority to determine standards of reasonableness for searches and seizures related to enforcement of such regulations. The Court later held that a treasury agent may make a warrantless search of premises of a licensed gun dealer. United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972). While regulation of firearms does not have the long history applicable to the liquor industry, the Court found that close scrutiny of interstate traffic of firearms "is undeniably of central importance to federal efforts to prevent violent crime and to assist the States in regulating the firearms traffic within their borders." 406 U.S. at 315, 92 S.Ct. at 1596.

The two exceptions identified by the Court relate to particular industries those with a long history of close regulation and...

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