City of Overland Park v. Niewald, 72457

• Decision Date: 14 April 1995
• Docket Number: No. 72457,72457
• Citation: 20 Kan.App.2d 909,893 P.2d 848
• Parties: CITY OF OVERLAND PARK, Kansas, Appellee, v. Bryan NIEWALD and Todd Jung, Appellants.
• Court: Kansas Court of Appeals

Page 848

893 P.2d 848

20 Kan.App.2d 909

CITY OF OVERLAND PARK, Kansas, Appellee, v. Bryan NIEWALD and Todd Jung, Appellants.

No. 72457.

Court of Appeals of Kansas.

April 14, 1995.

Review Granted July 6, 1995.

Syllabus by the Court

1. Article 3, § 6 of the Kansas Constitution provides that the district courts shall have such jurisdiction as may be provided by law. K.S.A. 20-301 states that the district courts shall have general original jurisdiction of all matters, both civil and criminal, unless otherwise provided by law.

2. The Fourth Amendment to the United States Constitution is identical in scope to § 15 of the Bill of Rights of the Kansas Constitution; both prohibit unreasonable searches and seizures.

3. Because the underlying governmental interest which constitutes the foundation for the issuance of an administrative search warrant is simply to prevent conditions which constitute hazards to public health, the intrusiveness of such searches must be weighed in terms of the reasonable goal of enforcement of safety codes.

4. In Kansas, the issuance of search warrants in criminal cases is governed by K.S.A.1994 Supp. 22-2502, which provides that a search warrant shall be issued only upon the oral or written statement of any person, under oath or affirmation, which states facts sufficient to show probable cause that a crime has been or is being committed.

5. An administrative search warrant may be based on either (1) specific evidence of an existing violation or (2) a general inspection program based on reasonable legislative or administrative standards derived from neutral sources.

6. No statute exists in the code of civil procedure which specifically authorizes the issuance of administrative search warrants. Under the provisions of K.S.A.1994 Supp. 22-2502, prior to issuing an administrative search warrant, a magistrate or district judge is required to find the pertinent regulation meets the requirements as established in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), thus providing probable cause to search.

Todd Jung and Bryan Niewald, appellants pro se.

J. Bart Budetti, Senior Asst. City Atty., for appellee.

Before LARSON, P.J., RULON and PIERRON, JJ.

RULON, Judge:

Bryan Niewald and Todd Jung, defendants, challenge the district court's jurisdiction over, and the constitutionality of, the issuance of an administrative search warrant allowing the City of Overland Park, plaintiff, to inspect defendants' business for compliance with municipal fire codes. We affirm.

The facts in this case are not in dispute.

Defendants own Central Video Services in Overland Park and refused to allow plaintiff's fire department into their building to inspect for compliance with city fire codes. Upon defendants' refusal to submit to a fire inspection, plaintiff filed a petition in district court asking for an administrative search warrant to allow the City to inspect defendants' business.

Defendants filed a pro se answer challenging the district court's jurisdiction over the matter and generally stating that there was no statutory authority for such a warrant. Defendants further contended if such authority existed, there was no probable cause to issue a warrant. Defendants filed a counterclaim seeking a permanent injunction preventing plaintiff from inspecting their business.

The district court ruled that the challenged city ordinance was constitutional and enforceable against the defendants. The court granted the plaintiff's motion for summary judgment and held that a warrant to enforce the annual fire inspection would be issued to the City.

JURISDICTION

Defendants argue the district court did not have jurisdiction because this was a suit in equity and the plaintiff had not shown a concrete harm or an injury in fact. Defendants contend that absent proof of the court's jurisdiction, the district court did not have jurisdiction and, therefore, the court's order is void.

Article 3, § 6 of the Kansas Constitution provides that the district courts shall have such jurisdiction as may be provided by law. K.S.A. 20-301 states that the district courts "shall have general original jurisdiction of all matters, both civil and criminal, unless otherwise provided by law." Defendants cite no authority indicating that the legislature has enacted provisions excluding an action such as this from the district court's jurisdiction. Consequently, the plain language of the statute indicates that the district court shall have jurisdiction unless the legislature provides that it does not or that jurisdiction lies elsewhere. See Murphy v. City of Topeka, 6 Kan.App.2d 488, 496-97, 630 P.2d 186 (1981).

Here, plaintiff was seeking an administrative search warrant to allow inspection of the defendants' building in order to determine compliance with an Overland Park city ordinance. By statute, the municipal court could not issue such a warrant. See K.S.A. 12-4104. Necessarily, absent any limiting statute, the issuance of an administrative search warrant is within the general jurisdiction of the district court.

ADMINISTRATIVE SEARCH WARRANTS

Defendants next claim that because there is no statutory authority for issuance of an administrative search warrant, the district court was required to apply K.S.A.1994 Supp. 22-2502, which mandates a showing of probable cause before issuing the warrant. Defendants contend, because the plaintiff admitted that it had no probable cause to believe that the defendants' property was in violation of any fire code, the district court had no basis to issue a search warrant. We disagree.

The Fourth Amendment to the United States Constitution is identical in scope to § 15 of the Bill of Rights of the Kansas Constitution; both prohibit unreasonable searches and seizures. State ex rel. Love v. One 1967 Chevrolet, 247 Kan. 469, 476, 799 P.2d 1043 (1990). Consequently, United States Supreme Court decisions discussing the constitutionality of administrative searches are persuasive.

Two of the seminal cases dealing with administrative search warrants are Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). The Camara Court held that administrative searches of dwellings were significant intrusions upon the interests protected by the Fourth Amendment and that such searches conducted without warrant procedures lacked the traditional safeguards guaranteed by the Fourth Amendment. 387 U.S. at 534, 87 S.Ct. at 1733-34. However, such a finding was only the beginning of the analysis. Because the governmental " '[P]robable cause' to issue a warrant to inspect must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling. Such standards, which will vary with the municipal program being enforced, may be based on the passage of time, the nature of the building ..., or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling." 387 U.S. at 538, 87 S.Ct. at 1736.

                interest in administrative searches is simply to prevent conditions which constitute hazards to public health and safety, the intrusiveness of such searches must be weighed in terms of the reasonable goal of enforcement of safety codes.  387 U.S. at 534-35, 87 S.Ct. at 1734.   The Court went on to hold
                

The Camara Court further noted that such programs have a long history of judicial and public acceptance and that no other technique would be practical to insure that all dangerous conditions are prevented. "Many such conditions--faulty wiring is an obvious example--are not observable from outside the building and indeed may not be apparent to the inexpert occupant himself." 387 U.S. at 537, 87 S.Ct. at 1735.

Similarly, and more on point, in See v. City of Seattle, the Court considered the same question as in Camara, but in the context of a commercial warehouse owner who denied a city inspector access to his building because the inspector did not have a warrant and did not have probable cause to believe a violation of any ordinance existed. The See Court concluded the businessperson, like the occupant of a residence, has a constitutional right to be free from unreasonable official entries upon his or her private commercial property. 387 U.S. at 543, 87 S.Ct. at 1739. The Court concluded that "administrative entry, without consent, upon the portions of commercial premises which are not open to the public may only be compelled through prosecution or physical force within the framework of a warrant procedure." 387 U.S. at 545, 87 S.Ct. at 1740. The Court was careful to note that it was not implying that business premises could not reasonably be inspected in more situations than private homes, nor did it question the use of licensing regulations which require periodic inspections as a condition of licensing. 387 U.S. at 546, 87 S.Ct. at 1741. In a later case, the Court noted that inspections of commercial property may be unreasonable if the inspections are so random, infrequent, or unpredictable that the owner has no real expectation that his or her property will periodically be inspected. Donovan v. Dewey, 452 U.S. 594, 599, 101 S.Ct. 2534, 2538, 69 L.Ed.2d 262 (1981).

Only one Kansas case has specifically dealt with administrative searches. In State v. Marsh, 16 Kan.App.2d 377, 823 P.2d 823 (1991), this court addressed the issue of the circumstances under which a warrantless administrative search may be carried out. However, the Marsh analysis is only relevant to warrantless search cases involving closely regulated businesses. Here, there is no indication the defendants' business is a closely regulated industry.

Several other states have addressed the issuance of administrative search warrants. In Owens v. City of North Las Vegas, 85 Nev. 105, 450 P.2d...