McLaughlin v. Kings Island, Div. of Taft Broadcasting Co.

• Decision Date: 06 June 1988
• Docket Number: No. 87-3457,87-3457
• Parties: , 13 O.S.H. Cas.(BNA) 1755, 1988 O.S.H.D. (CCH) P 28,231 Ann McLAUGHLIN, * United States Secretary of Labor, Petitioner, v. KINGS ISLAND, DIVISION OF TAFT BROADCASTING COMPANY, and Occupational Safety and Health Review Commission, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 990

849 F.2d 990

56 USLW 2729, 13 O.S.H. Cas.(BNA) 1755,

1988 O.S.H.D. (CCH) P 28,231

Ann McLAUGHLIN, ^* United States Secretary of

Labor, Petitioner, v. KINGS ISLAND, DIVISION OF TAFT BROADCASTING COMPANY, and Occupational Safety and Health Review Commission,

Respondents.

No. 87-3457.

United States Court of Appeals, Sixth Circuit.

Argued March 17, 1988.

Decided and Filed June 6, 1988.

George E. Salem, Sol. of Labor, Cynthia L. Attwood, Assoc. Sol. for OSH, Joseph M. Woodward, Appellate Litigation, Andrea C. Casson, Asst. Counsel for Appellate Lit., U.S. Dept. of Labor, Washington, D.C. Ellen L. Beard (argued), for petitioner.

A. Christian Worrell, III (argued), Bruce A. Hoffman, Kings Island, Graydon, Head & Ritchey, Cincinnati, Ohio, Ray H. Darling, Jr., Executive Secretary, OSHRC, Washington, D.C., for respondents.

Before MILBURN and BOGGS, Circuit Judges, and ALDRICH, District Judge ^**.

MILBURN, Circuit Judge.

Petitioner Secretary of Labor ("the Secretary") seeks review of a decision and order of the Occupational Safety and Health Review Commission ("the Commission") finding 29 C.F.R. Sec. 1904.7(a), promulgated by the Secretary under the Occupational Safety and Health Act ("OSHA" or "the Act"), 29 U.S.C. Secs. 651-78, to be in violation of the Fourth Amendment's prohibition against unreasonable searches and seizures. For the reasons that follow, we affirm.

I.

On September 1, 1982, OSHA compliance officer Frank Carroll went to a theme park located near Cincinnati, Ohio, operated by Kings Island, a division of Taft Broadcasting Company ("Kings Island"), to conduct an investigation of an employee health complaint alleging that fog used in a theatrical performance at the theme park irritated employees' eyes and upper respiratory systems. The Secretary concedes that there was no other reason for the inspection. Carroll requested permission to examine Kings Island's OSHA Form 200s ¹ for the previous three years, and explained that he was requesting that the records be made available to him so he could review them for hygienic and environmental problems in general. Carroll did not present a search warrant or administrative subpoena at any time before, during, or subsequent to the inspection.

Carroll was informed that Kings Island would consent to an inspection of the premises and records limited solely to the scope of the employee complaint but would not produce any other records for examination without a search warrant or other legal process. On September 22, 1982, the Secretary issued an Other Than Serious Citation ² for failing to provide the records upon request. The citation was not accompanied by a proposed penalty but directed immediate abatement by production of the records.

Kings Island timely contested the citation and the matter came before an Occupational Safety and Health Review Commission Administrative Law Judge ("ALJ"). The ALJ issued a decision granting the Secretary's motion for summary judgment and finding Kings Island in violation of the Act for failing to produce the requested records, notwithstanding that no warrant or other legal process was ever obtained requiring Kings Island to produce the records.

Kings Island then petitioned the Commission for review, and on review, the Commission reversed the ALJ's decision. The Commission held that the Secretary's regulation violates the Fourth Amendment of the United States Constitution to the extent that it purports to authorize an inspection of business records without a warrant or its equivalent, and vacated the citation. Thereafter, the Secretary timely petitioned this court for review of the Commission's decision.

II.

OSHA, 29 U.S.C. Sec. 651 et seq., was enacted "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources." 29 U.S.C. Sec. 651(b). To enforce the Act's provisions, the Act provides "for appropriate reporting procedures with respect to occupational safety and health...." 29 U.S.C. Sec. 651(b)(12).

The specific record keeping and reporting responsibilities of employers are set out in 29 U.S.C. Sec. 657. Each employer is required to "make, keep and preserve, and make available to the Secretary ... such records regarding his activities relating to [the Act]" as the Secretary "may prescribe by regulation as necessary or appropriate for the enforcement of [the Act] or for developing information regarding the causes and prevention of occupational accidents and illnesses." 29 U.S.C. Sec. 657(c)(1). The Act also imposes a mandatory duty on the Secretary to prescribe regulations "requiring employers to maintain accurate records of, and to make periodic reports on, work-related deaths, injuries and illnesses other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job." 29 U.S.C. Sec. 657(c)(2). The Act further requires the Secretary to "compile accurate statistics on work injuries and illnesses," and specifically authorizes the Secretary to require employers to file reports "[o]n the basis of the records made and kept pursuant to section 657(c)...." 29 U.S.C. Secs. 673(a) and (e).

Pursuant to the authority conferred by the Act, the Secretary has promulgated regulations on record keeping and reporting of occupational injuries and illnesses. See 29 C.F.R. Sec. 1904. Employers are required to "maintain in each establishment a log and summary of all recordable occupational injuries and illnesses for that establishment," using OSHA Form 200 or an equivalent. 29 C.F.R. Sec. 1904.2. Each employer is required to "have available for inspection" a more detailed "supplementary record for each occupational injury or illness," recorded on either Form 101 or an acceptable alternative record. 29 C.F.R. Sec. 1904.4. An employer is also required to post at his work site an annual summary of each establishment's occupational injuries and illnesses, comprised of the year's totals from OSHA Form 200s. 29 C.F.R. Sec. 1904.5. The records must be retained in each establishment for a period of five (5) years. 29 C.F.R. Sec. 1904.6. Finally, the regulations provide, in relevant part:

Each employer shall provide, upon request, records provided for in Secs. 1904.2, 1904.4, and 1904.5, for inspection and copying by any representative of the Secretary of Labor for the purpose of carrying out the provisions of the act....

29 C.F.R. Sec. 1904.7(a).

With respect to the records at issue in this case, the OSHA Operations Manual permits access to be achieved by means of a subpoena or a warrant, but does not require either type of legal process. On the contrary, Chapter VI of the Manual specifically provides that "[i]f the employer fails upon request to provide records required ... for inspection and copying ... a citation for violation of 1904.7 shall normally be issued." Occupational Safety and Health Administration Field Operations Manual VI-17.

III.

The question before this court is whether a search warrant or its equivalent is required before the nonconsensual search of an employer's occupational health and safety records. We hold that the regulations in question, insofar as they allow such a nonconsensual search, are in violation of the Fourth Amendment of the United States Constitution.

In See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), the Supreme Court held that, like the search of a private home, the search of a business is presumptively unreasonable if conducted without a warrant, as a businessman's Fourth Amendment guarantees are "placed in jeopardy if the decision to enter and inspect for violation of regulatory laws can be made and enforced by the inspector in the field without official authority evidenced by a warrant." Id. at 543, 87 S.Ct. at 1739. Indeed,

[i]t cannot be doubted that the Fourth Amendment's commands grew in large measure out of the colonists' experience with the writs of assistance and their memories of the general warrants formerly in use in England. These writs, which were issued on executive rather than judicial authority, granted sweeping power to customs officials and other agents of the King to search at large for smuggled goods.

United States v. Chadwick, 433 U.S. 1, 7-8, 97 S.Ct. 2476, 2481-82, 53 L.Ed.2d 538 (1977). "Against this background, it is untenable that the ban on warrantless searches was not intended to shield places of business as well as of residence." Marshall v. Barlow's, Inc., 436 U.S. 307, 312, 98 S.Ct. 1816, 1820, 56 L.Ed.2d 305 (1978). However, as the Court recognized in See, a warrant is not always required, as an administrative subpoena, sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome, will be adequate in certain situations. See, 387 U.S. at 544-45, 87 S.Ct. at 1739-40.

While the owner or operator of a business has a recognized privacy interest in commercial property, that expectation of privacy "is different from, and indeed less than, a similar expectation in an individual's home." New York v. Burger, 107 S.Ct. 2636, 2642 (1987). In that regard, an exception to the warrant requirement has been recognized for searches of pervasively or closely regulated industries. See Burger, supra (junkyard industry); Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981) (coal mining); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (firearms); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) (liquor); see also United States v. Acklen, 690 F.2d 70 (6th Cir.1982) (pharmacies); Marshall v. Nolichuckey Sand Co., 606 F.2d 693 (6th Cir.1979) (sand and gravel industry), cert. denied, 446 U.S. 908, 100 S.Ct. 1835, 64 L.Ed.2d 261 (1980).

The rationale for the pervasively regulated industry exception...