Brooks v. Butler, No. 8319DC948

Docket NºNo. 8319DC948
Citation70 N.C.App. 681, 321 S.E.2d 440
Case DateOctober 16, 1984
CourtCourt of Appeal of North Carolina (US)

Page 440

321 S.E.2d 440
70 N.C.App. 681, 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.
No. 8319DC948.
Court of Appeals of North Carolina.
Oct. 16, 1984.

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 [70 N.C.App. 684] 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

Page 442

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[70 N.C.App. 685] 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...

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8 practice notes
  • State v. Saturno, No. 19602.
    • United States
    • Supreme Court of Connecticut
    • 19 Julio 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” and “have been approved by mo......
  • Brooks v. Stroh Brewery Co., No. 8821SC899
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 5 Septiembre 1989
    ...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 brought by......
  • Commissioner of Labor v. Weekley Homes, No. COA03-1634.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 15 Marzo 2005
    ...preserve 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 supervis......
  • State v. Saturno, SC 19602
    • United States
    • Supreme Court of Connecticut
    • 19 Julio 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
8 cases
  • State v. Saturno, No. 19602.
    • United States
    • Supreme Court of Connecticut
    • 19 Julio 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” and “have been approved by mo......
  • Brooks v. Stroh Brewery Co., No. 8821SC899
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 5 Septiembre 1989
    ...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 brought by......
  • Commissioner of Labor v. Weekley Homes, No. COA03-1634.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 15 Marzo 2005
    ...preserve 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 supervis......
  • State v. Saturno, SC 19602
    • United States
    • Supreme Court of Connecticut
    • 19 Julio 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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