Fred W. Allnutt, Inc. v. Commissioner of Labor and Industry

• Citation: 289 Md. 35,421 A.2d 1360
• Decision Date: 10 November 1980
• Docket Number: No. 2,2
• Parties: , 1980 O.S.H.D. (CCH) P 24,947 FRED W. ALLNUTT, INC. v. COMMISSIONER OF LABOR AND INDUSTRY.
• Court: Court of Appeals of Maryland

Page 35

289 Md. 35

421 A.2d 1360, 1980 O.S.H.D. (CCH) P 24,947

FRED W. ALLNUTT, INC. v. COMMISSIONER OF LABOR AND INDUSTRY.

No. 2.

Court of Appeals of Maryland.

Nov. 10, 1980.

James L. Mayer (Richard B. Talkin and Talkin & Abramson, on brief), Columbia, for appellant.

Leonard C. Redmond, III, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen. and Alma L. Borenstein, Asst. Atty. Gen., on brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

MURPHY, Chief Judge.

We granted certiorari in this case to determine whether a District Court's order denying a motion to quash an administrative search warrant constitutes a final judgment appealable under Maryland Code (1974, 1980 Repl. Vol.) § 12- 401(a) of the Courts and Judicial Proceedings Article.

By ch. 59 of the Acts of 1973, the General Assembly enacted the Maryland Occupational Safety and Health Act (MOSHA), now codified as Maryland Code (1957, 1979 Repl. Vol. 1980 Cum.Supp.), Art. 89, §§ 28-49C. The intent and purpose of the Act, as set forth in § 28(c), is "to assure as far as possible every working man and woman in the State of Maryland safe and healthful working conditions." The Commissioner of Labor and Industry is charged with the responsibility of administering the provisions of the Act. Section 35(a) authorizes the Commissioner or his representatives:

"to enter without delay and at reasonable times any factory, plant, establishment, construction site or other area, work place, place of employment, or environment where work is performed by an employee of an employer, to inspect and investigate any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, agent or employee."

By ch. 443 of the Acts of 1978, codified as § 2A of Art. 89, an investigator or inspector of the Division of Labor and Industry ¹ is authorized, in connection with inspections under § 35(a), to apply "to the District Court for an administrative search warrant under the following conditions:

(1) He is authorized or required by law to make an inspection of certain premises or property in the State;

(2) He seeks access to such premises or property for the purpose of making an inspection; and

(3) He is denied access after making a proper request for access of the owner, lessee, tenant, or other person in charge of the premises or property.

(b) A judge of the District Court may issue an administrative search warrant if the application specifies the nature, scope, and purpose of the inspection to be performed by the applicant and upon a showing that:

(1) The applicant is authorized or required by law to make the inspection;

(2) The applicant was denied access to the premises or property after having made a proper request for access at a reasonable time;

(3) The application is approved by the Attorney General; and

(4) The inspection is sought for safety or health related purposes."

On September 24, 1979, a Division inspector attempted to inspect the headquarters and maintenance shop of Fred W. Allnutt, Inc. (Allnutt). Allnutt's president refused to consent to the inspection, and the inspector applied for an administrative search warrant pursuant to § 2A. The application for the warrant recited that entry to the premises was for the purpose of inspecting and investigating "the safety and health conditions of said workplace or premises assuring that the employer ... is furnishing to its employees ... a place of employment ... free from recognized hazards that are causing or are likely to cause death or serious physical injuries to its employees" and to determine compliance with the provisions of MOSHA. In addition to containing the requisite statutory recitals, the application stated that the inspection was based upon "a general administrative plan" for the enforcement of MOSHA requiring "general schedule inspections and investigations carried out in accordance with criteria based upon accident experience and number of employees exposed in particular industries." The application further recited that Allnutt was "part of an industry that has a higher ratio of accidents in comparison to other industries." Allnutt's "compliance history" was appended to the application for the warrant.

Judge Raymond J. Kane, Jr. of the District Court for Howard County issued the administrative search warrant on September 24. Allnutt filed a motion to quash the warrant in the District Court, claiming, among other things, that it was issued in violation of the Fourth Amendment to the federal constitution and Article 26 of the Maryland Declaration of Rights. The motion was denied and Allnutt appealed to the Circuit Court for Howard County. The Commissioner filed a motion in the circuit court raising preliminary objections to the appeal, contending that the District Court's denial of Allnutt's motion to quash the warrant was not an appealable final order. The circuit court agreed and dismissed Allnutt's appeal, following which we granted certiorari.

Allnutt contends that the denial of its motion to quash was an appealable final order because under § 2A the District Court had jurisdiction only over matters concerning the issuance of the warrant, and once it decided that the warrant would continue in effect, nothing remained to be done by the court. In addition, Allnutt argues that the refusal to grant the motion was a denial of an absolute constitutional right and was therefore immediately appealable. Appellant also suggests that even if the denial of the motion was not a final judgment, the District Court's action was subject to review under the collateral order doctrine. Regarding Art. 89, §§ 2A and 35, appellant argues that § 35 violates both the Fourth Amendment to the United States Constitution and Article 26 of the Maryland Declaration of Rights because it permits nonconsensual warrantless searches of private premises. These sections violate the same constitutional provisions, according to Allnutt, because they permit searches that are not based upon probable cause. Allnutt maintains that § 2A is also defective because it is a "special law" violative of § 33 of Art. III of the Maryland Constitution. Finally, appellant challenges the constitutionality of the search warrant issued in the instant case on the ground that (1) the application did not set forth sufficient facts to show probable cause, (2) the inspector was allowed to perform judicial functions in violation of the separation of powers provisions of the Maryland Constitution, (3) the warrant did not contain a specific description of the areas to be searched or the items to be seized, and (4) the warrant exceeded the scope of the statutory authority under which it was issued. ²

The Commissioner argues that because the District Court's order denying the motion to quash the search warrant did not finally settle and conclude the rights involved in the action between Allnutt and himself, it was an interlocutory rather than a final appealable order. The Commissioner also contends that the District Court's action is not properly reviewable under the collateral order doctrine. He further argues that §§ 2A and 35, taken together, provide adequate safeguards against unreasonable searches and seizures. Finally, the Commissioner denies that the warrant in this case was either lacking in specificity or exceeded the statutory authority under which it was issued.

I

Section 12-401(a) of the Courts Article authorizes an appeal "from a final judgment entered in the District Court." ³ A "final judgment" is defined in § 12-101(f) of the Courts Article as:

"a judgment, decree, sentence, order, determination, decision, or other action by a court, including an orphans' court, from which an appeal, application for leave to appeal, or petition for certiorari may be taken."

We observed in Warren v. State, 281 Md. 179, 377 A.2d 1169 (1977), involving an appeal from the District Court, that § 12-101(f) does not specify what is an appealable final judgment but leaves that determination to the case law. In general, the cases hold that a judgment or order of a court is appealable if it is so final as to deny the appellant the means of further prosecuting or defending his rights and interests in the subject matter of the proceeding. See Peat & Co. v. Los Angeles Rams, 284 Md. 86, 394 A.2d 801 (1978); Warren v. State, supra, 281 Md. at 183, 377 A.2d 1169; D. C. Transit Systems v. S.R.C., 259 Md. 675, 270 A.2d 793 (1970); Concannon v. State Roads Comm., 230 Md. 118, 186 A.2d 220 (1962).

Section 2A of Art. 89 provides for the issuance of an administrative search warrant only if certain prescribed conditions are met. The District Court's power comes exclusively from § 2A, and the court only has jurisdiction either to issue the search warrant or deny the warrant application. Thus, once Judge Kane had issued the warrant and denied Allnutt's motion to quash, nothing remained before the court. Consequently, the District Court's order was appealable as a final judgment under § 12-401(a) of the Courts Article, and the circuit court was in error in dismissing Allnutt's appeal.

An analogous situation was involved in Matter of Restland Memorial Park, 540 F.2d 626 (3rd Cir. 1976), a case arising under the federal Occupational Safety and Health Act (OSHA), 29 U.S.C. §§ 651-678 (1970). There, an inspector who had been refused entry to the Restland Cemetery applied to a federal district court for an inspection warrant. The warrant was issued, and Restland filed a motion to quash after again refusing to admit the inspector. The district court denied the motion and Restland appealed. The appellate court held that it had jurisdiction to hear the appeal, stating (540 F.2d at 627 n. 3):

"The present action is independent of, although ancillary to, any enforcement proceeding that may...