Brooks v. Butler, 8319DC948

Decision Date16 October 1984
Docket NumberNo. 8319DC948,8319DC948
Citation70 N.C.App. 681,321 S.E.2d 440
Parties, 1984-1985 O.S.H.D. (CCH) P 27,197 John C. BROOKS, Commissioner of Labor of the State of North Carolina v. Cornelius BUTLER, d/b/a Butler Trailer Manufacturing Company.
CourtNorth Carolina Court of Appeals

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Tiara B. Smiley, Raleigh, for petitioner-appellant.

Hester, Johnson & Johnson by W. Leslie Johnson, Jr., Elizabethtown, and McCarty, Wilson, Rader & Mash by Robert E. Rader, Jr., Ennis, Tex., for respondent-appellee.

JOHNSON, Judge.

On 21 December 1982, North Carolina Department of Labor Office of Occupational Safety and Health (hereinafter OSH) Officer John G. Morand and his area supervisor Frank K. Trogden went to the premises of respondent for the purposes of conducting a safety inspection in order to ascertain whether he was complying with the safety regulations of the Occupational Safety and Health Act of North Carolina (hereinafter OSHANC).

Morand and Trogden met with respondent, presented their credentials, and stated that they were there to conduct an OSH inspection. Respondent refused permission to proceed stating that OSH needed a warrant.

On 22 December 1982, Chief Magistrate Crofts, upon an ex parte application made on the same date by Morand, issued a warrant pursuant to G.S. 15-27.2 for the inspection of Butler Trailer Manufacturing Company (hereinafter Butler). On that same date, Morand and Trogden returned to Butler to serve the inspection warrant and to conduct the inspection of the premises. On the advice of his counsel, respondent refused entry to Butler on the grounds that the warrant was improperly issued, and that it violated the Fourth, Fifth and Fourteenth Amendments of the Constitution of the United States.

Following respondent's refusal to permit inspection, the Commissioner of Labor petitioned the district court for an adjudication of civil contempt.

After a hearing, the trial court held that the warrant was invalid and should be quashed because the warrant was issued ex parte and the supporting affidavit failed to provide the magistrate with information sufficient to determine: the reasonableness of the inspection program; and that the program was applied to Butler in a neutral manner.

The primary question presented by this appeal is whether the district court properly granted respondent's motion to quash the OSH inspection warrant. Petitioner contends that the warrant application was sufficient to permit the magistrate to make an informed probable cause determination. We agree.

The North Carolina Legislature has established pursuant to G.S. 95-136 a detailed program of inspection for industries to determine whether the workplace is free from recognized hazards which are likely to cause death or injury to the employees. Under the Federal Occupational Health and Safety Act (hereinafter OSHA), North Carolina is permitted to administer and operate its own plan under federal supervision. 29 U.S.C.A. § 667. The entry and inspection provision of OSHANC are essentially identical to those of OSHA of 1970. In fact, OSHA has been adopted in this State pursuant to G.S. 95-131. For these reasons, federal court decisions interpreting OSHA have been followed by North Carolina courts when interpreting OSHANC.

It is well recognized that administrative inspections of business establishments must conform to the Fourth Amendment which requires a finding of probable cause to support the issuance of a warrant. Marshall v. Barlow's Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). Thus, a warrant based on probable cause is required for nonconsensual administrative inspections. Probable cause in the criminal sense is not required, however. Marshall v. Barlow's Inc., supra, 436 U.S. at 320, 98 S.Ct. at 1824, 56 L.Ed.2d at 316. Specifically, probable cause for an administration inspection warrant may be based on "specific evidence of an existing violation" or "a showing that reasonable legislature or administrative standards for conducting an ... inspection are satisfied with respect to a particular [establishment]." Id. at 320, 98 S.Ct. at 1824, 56 L.Ed.2d 316. See also, Camara v. Municipal Court, 387 U.S. at 538, 87 S.Ct. at 1735, 18 L.Ed.2d 930.

In the case herein, petitioner relied on the second standard for establishing probable cause in seeking its inspection warrant. In order to meet the requirements of this standard, an applicant for an inspection warrant must show that: (1) there exists a legally authorized inspection program which naturally included the property; (2) that the general administrative enforcement plan is based on reasonable legislative or administrative standards; and (3) that the administrative standards are being applied to the particular establishment on a neutral basis. Gooden v. Brooks, Comr. of Labor, 39 N.C.App. 519, 251 S.E.2d 698 (1979), cert. granted, 297 N.C. 299, 254 S.E.2d 923, cert. vacated, 298 N.C. 806, 261 S.E.2d 919 (1979), G.S. 15-27.2. These requirements comport with the Barlow's and Camara requirements that the warrant application show that "a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources," and "that the general administrative plan for enforcement is based upon reasonable legislative or administrative standards." Id. 39 N.C.App. at 524, 251 S.E.2d at 702.

In its warrant application, which expressly incorporated by reference a supporting affidavit, petitioner gave a detailed description of the administrative inspection program that led to respondent's selection for inspection. The supporting affidavit in pertinent part states:

2. OSH is charged with the administration of OSHANC pursuant to G.S. 95-133. OSHANC authorizes the establishment of a program of inspection for places of employment by representatives of the Commissioner of Labor for the purpose of determining whether an employer is furnishing its employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical injuries to its employees, and whether an employer is complying with OSHANC and the rules and regulations promulgated thereunder. G.S. 95-129 and 95-136.

....

ADMINISTRATIVE STANDARDS FOR THE GENERAL SCHEDULE INSPECTION PROGRAM

5. OSH utilizes a detailed procedure for identifying and selecting particular work establishments for inspection under the General Schedule Inspection Program. The administrative standards or neutral selection factors used to develop the program are designed to provide broad representative inspection coverage of working conditions and to place priority on the most hazardous employment classifications. These factors include: (1) frequency of injury and illness, (2) severity of injury and illness, (3) industry employee density, (4) length of time since last inspection, (5) geographic dispersion of inspection activity, (6) enforcement penetration into a diversity of industrial categories. (OSH Operations Manual, Chapter III.)

6. A selection process has been established by the Enforcement Bureau in conjunction with the Research and Statistics Division of the North Carolina Department of Labor and OSH's Engineering and Research Bureau. Incorporating the above stated administrative standards and selection factors, the U.S. Department of Labor, Bureau of Labor Statistics, in cooperation with the Research and Statistics Division has developed a Hazard Index, which is a function of the lost workday case incidence rate (frequency), the lost workday incidence rate (severity), and industry employee density. Using data compiled in statewide occupational injuries and illnesses surveys, the Research and Statistics Division annually computes the hazard index for each of the approximately sixty Standard Industrial Classification (SIC) Codes relevant to this State....

....

8. Random selection of individual work establishments is accomplished by a computer program developed and maintained for OSH by the Department of Administration Management Information Services Division. The LI100 OSHA Sites Inspection System is a series of computer programs that randomly selects the sites and produces the inspection report. The computer data base includes a comprehensive Employment Security Commission master list of state businesses and industries with SIC classifications....

....

APPLICATION OF THE STANDARDS TO THE NAMED ESTABLISHMENT

9. According to data supplied by the Research and Statistics Division, the industrial classification of SIC Code 37-Transportation Equipment has a hazard index of 11 and with a number 16 ranking falls within the upper half of the "high hazard" list established by OSH for North Carolina. The named establishment Butler Trailer Manufacturing Company is a manufacturer of automobile trailers within SIC Code 3799 and was chosen for a general schedule inspection in accordance with the statistical process of random selection and the administrative standards set out in paragraphs 5-8 above, without the influence of any other factors.

As shown by the data quoted above, the warrant...

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8 cases
  • State v. Saturno
    • United States
    • Supreme Court of Connecticut
    • July 19, 2016
    ...that [ex parte administrative warrants] passed the reasonableness requirement of the [f]ourth [a]mendment”); Brooks v. Butler, 70 N.C.App. 681, 688, 321 S.E.2d 440 (1984) (noting that “[e]x parte warrants are authorized by the regulations governing OSHA” and “have been approved by most fede......
  • Brooks v. Stroh Brewery Co.
    • United States
    • Court of Appeal of North Carolina (US)
    • September 5, 1989
    ...act, this Court has, in the past, looked for guidance to federal court decisions interpreting OSHA. See Brooks, Comr. of Labor v. Butler, 70 N.C.App. 681, 321 S.E.2d 440 (1984), disc. rev. denied and appeal dismissed, 313 N.C. 327, 329 S.E.2d 385 (1985). Since this is the first action broug......
  • Commissioner of Labor v. Weekley Homes, COA03-1634.
    • United States
    • Court of Appeal of North Carolina (US)
    • March 15, 2005
    ...our human resources." 29 U.S.C. § 651. North Carolina, as permitted under the federal act, 29 U.S.C. § 667, Brooks v. Butler, 70 N.C.App. 681, 684, 321 S.E.2d 440, 442 (1984), disc. review denied, 313 N.C. 327, 329 S.E.2d 385 (1985), administers and operates, under federal supervision, its ......
  • State v. Saturno
    • United States
    • Supreme Court of Connecticut
    • July 19, 2016
    ..."meant that [ex parte administrative warrants] passed the reasonableness requirement of the [f]ourth [a]mendment"); Brooks v. Butler, 70 N.C. App. 681, 688, 321 S.E.2d 440 (1984) (noting that "[e]x parte warrants are authorized by the regulations governing OSHA" andPage 16 "have been approv......
  • Request a trial to view additional results

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