Allinder v. State of Ohio

• Decision Date: 19 July 1985
• Docket Number: No. C 84-7395.,C 84-7395.
• Citation: 614 F. Supp. 282
• Parties: William P. ALLINDER, et al., Plaintiffs, v. STATE OF OHIO, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

614 F. Supp. 282

William P. ALLINDER, et al., Plaintiffs, v. STATE OF OHIO, et al., Defendants.

No. C 84-7395.

United States District Court, N.D. Ohio, W.D.

July 19, 1985.

Gregory Arnold, Toledo, Ohio, for plaintiffs.

John K. Maguire, Asst. Atty. Gen., Columbus, Ohio, for defendants.

MEMORANDUM and ORDER

WALINSKI, District Judge.

This matter is before the Court on a motion for partial summary judgment filed by plaintiffs, William P. Allinder and Caroline I. Allinder. Defendants have filed a memorandum in opposition to the motion for summary judgment. Also before the Court is plaintiffs' reply to defendants' memorandum in opposition. Plaintiffs' motion for partial summary judgment seeks a declaration of this Court that the Ohio Department of Agriculture's apiary inspection program is an unconstitutional exercise of state power in that plaintiffs' apiaries are being inspected by the state without a search warrant, without their prior knowledge and outside their presence; and thus constitute an unreasonable and unlawful search of their property. Plaintiffs further seek a declaration that Ohio Rev.Code § 909.05 is unconstitutional to the extent that it provides legislative authority for the Ohio Department of Agriculture to conduct administrative inspections of plaintiffs' apiaries without securing a search warrant.

On May 9, and 10, 1984, the parties presented testimony and documentary evidence on this issue at a hearing before the Court on plaintiffs' motion for preliminary injunction. In Findings of Fact and Conclusions of Law ("Findings"), filed on July 30, 1984, this Court concluded that the plaintiffs failed to establish irreparable harm and, therefore, denied the motion for preliminary injunction. The July 30th opinion, however, considered at length the warrant requirements relating to administrative searches and found that plaintiff established a substantial likelihood of success on the merits of their claim. The opinion further questioned the existence of material issues of fact concerning the constitutionality of the warrantless search provision of the Ohio Apiary Inspection Law. O.R.C. § 909.05. Plaintiffs then filed the motion sub judice.

Rule 56, Fed.R.Civ.P. directs the disposition of a motion for summary judgment. In relevant part Rule 56(c) states:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ...

In ruling on a motion for summary judgment, the Court's function is to determine if any genuine issue exists, not to resolve any factual issues, and to deny summary judgment if such an issue exists. United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Tee-Pak, Inc. v. St. Regis Paper Co., 491 F.2d 1193 (6th Cir.1974). Further, "in ruling on a motion for summary judgment, the Court must construe the evidence in its most favorable light for the party opposing the motion and against the movant." Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir.1962). To summarize, if the movant demonstrates that he is entitled to a judgment as a matter of law, then the Court must next weigh the evidence in a light most favorable for the party opposing the motion; if reasonable minds could differ as to a material fact in issue, then a genuine factual dispute exists and the motion for summary judgment must be denied.

Rule 56(e) places a responsibility on the party against whom summary judgment is sought to demonstrate that summary judgment is improper, either by showing the existence of a material question of fact or that the underlying substantive law does not permit such a decision. In relevant part the provisions states:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Rule 56(e), Fed.R.Civ.P.

Plaintiffs' complaint argues that the Ohio Apiary Inspection Law, O.R.C. § 909.01 et seq., violates their constitutional rights to be free from (1) unlawful search and seizure and (2) taking property without due process of law. The singular issue upon which plaintiffs seek relief in their motion for partial summary judgment is whether the warrantless search of their apiaries, pursuant to the Ohio Apiary Inspection Law, violates the Fourth Amendment's prohibition against unreasonable searches. The Court's present consideration is therefore limited to that issue.

The United States Supreme Court recently reaffirmed the longstanding view that administrative, nonconsensual entry and search of property is governed by the warrant requirement of the Fourth and Fourteenth Amendments. Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 646, 78 L.Ed.2d 477 (1984). See also Marshall v. Barlow's Inc., 436 U.S. 307, 311-13, 98 S.Ct. 1816, 1819-20, 56 L.Ed.2d 305 (1978); Camara v. Municipal Court, 387 U.S. 523, 528-33, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). The Fourth Amendment's prohibitions against unreasonable searches was extended to administrative inspections of private commercial property nearly a decade and a half ago. Camara, 387 U.S. at 523, 87 S.Ct. at 1727; See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). The reason for this extension was found in the basic purpose of the amendment, which is "to safeguard the privacy and security of individuals against arbitrary invasions by government officials." Camara, 387 U.S. at 528, 87 S.Ct. at 1730.

The Fourth Amendment warrant requirement, however, is not without exception. Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1982); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970). The United States Supreme Court recently stated:

Unlike searches of private homes, which generally must be conducted pursuant to a warrant in order to be reasonable under the Fourth Amendment, legislative schemes authorizing warrantless administrative searches of commercial property do not necessarily violate the Fourth Amendment. See, e.g., United States v. Biswell, 406 U.S. 311 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972); Colonnade Catering Corp. v. United States, 397 U.S. 72 90 S.Ct. 774, 25 L.Ed.2d 60 (1970). The greater latitude to conduct warrantless inspections of commercial property reflects the fact that the expectation of privacy that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual's home, and that his privacy interest may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections. United States v. Biswell, supra, at 316 92 S.Ct. at 1596.

Donovan, 452 U.S. at 598-99, 101 S.Ct. at 2538 (footnote omitted). Courts have been unable to articulate a "ready test" for determining reasonableness other than by balancing the need for the warrantless search against the businessman's privacy interest. Camera, 387 U.S. at 536-37, 87 S.Ct. at 1734-35. The determinative factors to be considered are, whether the state has shown a substantial need for warrantless searches, whether the industry affected is so closely regulated as to provide notice of the prospect of governmental intrusion and whether the statutory scheme enacted "provides an adequate substitute for a warrant in terms of the certainty and regularity of its application."

Donovan, 452 U.S. at 603, 101 S.Ct. at 2540.

First, the Court has some doubt as to the state's need for a warrantless search. The defendants argue that warrantless searches are essential to the apiary inspection system to preserve the advantage of surprise. They assert that "it would be a very simple matter for a beekeeper to remove a diseased hive from the inspector's eyes only to return it to its original position following the inspection." This argument is unpersuasive in light of the testimony at the injunction hearing of the state apiarist, who stated that a vast majority of the beekeepers in Ohio are hobbyists. These hobbyists are unfamiliar with the symptoms of the infectious bee diseases, and consider the state inspection for disease to be a worthwhile service. Moreover, testimony indicated that notice to beekeepers is left to the discretion of the individual inspector. In the instant case, the deputy state inspector called the plaintiffs giving them three days notice of an inspection. The Court, therefore, questions the viability of this "surprise" argument and, in turn, questions the state's showing of need for a warrantless search.

Defendants further submit that obtaining a search warrant for individual apiary inspections would effectively eliminate the apiary inspection program. The state expresses concern as to the administrative burden, as well as the effect the time lapse would have on the program with its unique seasonal nature. This Court is unconvinced, however, that requiring warrants to inspect would impose serious burdens on the inspection system or the courts, would prevent inspections necessary to enforce the statute, or would make the program less effective. As discussed above, it is clear that a great majority of the apiarists can be expected to consent to inspection without a warrant. In those few cases where owners do insist on a warrant, the delay and increased administrative burden will not be so serious as to endanger the inspection program.

Second, the Court must consider whether the beekeeping industry has been "long subject to close...