Peters v. Vinatieri, 24085-8-II.

Citation102 Wash. App. 641,9 P.3d 909
Decision Date22 September 2000
Docket NumberNo. 24085-8-II.,24085-8-II.
CourtCourt of Appeals of Washington
PartiesGene PETERS and Church of the Disciples of the Soil, Appellants, v. Michael VINATIERI and Lewis County, a Political Subdivision of the State of Washington, Respondents.

Richard Francis Dejean, Sumner, for Appellants.

Guy M. Bogdanovich, Law, Lyman, Daniel, Kamerer & Bogdanovich, Olympia, for Respondents.

ARMSTRONG, C.J.

To document the possibility of illegal sewer hookups, water conditions, and a public swimming pool at the Riffe Lake Recreation RV Park, two agents of the Lewis County Health Department drove onto an access road owned by the Church of the Disciples of the Soil and videotaped two RV hookups. Gene Peters, who owns and operates the RV park, lives just off the access road. Peters stopped the agents and told them they were trespassing on private property. Peters had earlier warned the Department about trespassing on his property and had told it to contact him before inspecting his property. As a result of the incident, Peters sued the Department and its director for damages under 42 U.S.C. § 1983 for violating his fourth amendment rights and under 42 U.S.C § 1985 for conspiracy to deprive him of equal protection of the laws. He also brought a claim for damages under article 1, section 7 of the state constitution. In addition, he brought common law claims of trespass and invasion of privacy. The trial court granted summary judgment for the Department, and Peters appeals. We affirm.

FACTS

On January 10, 1996, Pat Waslawski and Chris Cooper, employees of the Lewis County Public Services Department in the Environmental Health Division, went to the Riffe Lake Recreation RV Park to "document conditions by photo and/or video camera so that the case file[] ... could be updated and, if necessary, turned over to the Prosecutor's Office for review and possible further action." Waslawski was a supervisor for land use, water, and lab programs. Cooper was the solid waste coordinator. They were sent there by Michael Vinatieri, who was then the Director of the Environmental Health Division. The agents believed that Peters had not obtained a permit to operate the RV park.

Peters has had a long and strained relationship with the Department. In 1981, the Department wrote Peters asking for his cooperation in inspecting his "community" water supply that served trailers at "Mr. Jack Redmon's Grocery Store." Peters wrote back that he did not know of a store by that name and would not cooperate with the Department. He added, "The last time you were on the property here at Glenoma you were trespassing. The place is posted. I suggest you take the time to read the signs. Entry by a Government official without the proper authority is a misdemeanor." The Department then advised Peters of the regulations, again asked for his cooperation, and said the Department would be required to pursue legal action if he failed to provide the requested information. He was also told that "the expansion of the mobile home park of Mr. Jim Redmon and any food service in the grocery store would be limited and/or discontinued." Shortly thereafter, the Department's attorney asked Peters for a voluntary inspection of the well and told him that otherwise the County would ask for a court order. In 1982, the Department's attorney wrote an internal letter stating, "Mr. Peters is taking a very strong stance against any County involvement in the inspection of his public water supply. I anticipate that this case may require some further action by Lewis County Superior Court in order to enable the environmental staff to enter the property and inspect the quality of the water." The letter also indicated that a court order might be required. A later note in July 1982 suggests that the attorney was instructed to "pursue immediate court action" regarding the water supply. It is unclear from the record how this matter was resolved.

Four years later on June 12, 1986, a newspaper reported the grand opening of Riffe Lake Recreation. The report stated:

Gene and Jeannie Peters are opening a recreational vehicle (RV) park and miniature golf course. The new facility is next to the Glenoma Post Office where the Peters are developing a 40-acre tract that includes two miles of nature trails and a year-around [sic] creek with fish in it. The RV park has 15 hookups for water, sewer, and electricity with access to a heated swimming pool, showers and restrooms.

On June 27, 1986, the Department's attorney wrote Peters that the County had no record of the necessary permits to construct a septic system, no records showing an adequate water supply, and no record of the inspection report required for a public swimming pool. Peters responded that he would cooperate but he asked that he "be notified of their coming in advance, so I may aid them in their inspection. If no such notification is sent, they will be instructed to leave." He also asked for copies of all regulations, which were sent by the Department on July 14, 1986. In June 1987, the Department again wrote Peters about violations and advised that it required compliance because Peters was "again advertising [his] facilities to the public."

In September 1987, the Department told Peters that it could not certify his well. The Department reminded Peters that it had received neither a permit application for sewage disposal nor plans or specifications for the swimming pool. A week later, Peters sent a sketch of his swimming pool. But he disagreed with the Department's decision to inspect his water supply. A later letter from the Department's attorney to the Director stated that the Director would make arrangements with a representative of DSHS to meet with Peters to discuss compliance. On June 23, 1988, the Department told Peters that DSHS needed to approve his public swimming pool and that, thereafter, the Department would conduct annual inspections. There is no other documentation in the record concerning the next eight years and whether Riffe Lake Recreation had come into compliance.

On the afternoon of January 10, 1996, Waslawski and Cooper pulled off of State Route 12, across from the RV park. Waslawski believed that Peters did not have an RV park permit. After seeing RV's parked at the site, they decided to document the conditions.

The agents were in a clearly marked Lewis County vehicle. They believed the access road was open to the public. A large sign posted on the access road facing SR 12 advertised:

RIFFE LAKE RECREATION

R.V. PARK

FULL HOOK—UPS

BOONDOCKERS

TENTERS

SHOWERS PHONE

POST OFFICE

DAY-WEEK-MONTH

ESPRESSO MORE

POP & SNACKS ICE FOOD

Several businesses were served by the access road and the agents found no restriction to access, such as no trespassing signs or locked gates.

Waslawski and Cooper drove straight down the access road, past an espresso stand, to the travel trailer parked closest to SR 12. Waslawski videotaped a sewer pipe, water hose, and power cords running from the trailer to the hookup at space number 8.

The agents then drove a short distance forward on the access road near space number 10. According to Peters, they drove to a point immediately east of his residence. The agents heard a shout and a whistle and saw Peters walking toward them from a corner of the residence, which displayed an "office" sign.1 When they saw Peters, they pulled the vehicle forward onto the gravel parking pad in front of space number 10 and turned the car off.

Peters disagrees with the Department's version of events, stating initially that there is no sign inviting the public onto his property. The road on which the agents drove is "clearly a private road and it is maintained entirely by myself." A yellow and black "No Trespassing" sign is posted on the property, and the agents had to drive past the sign to enter his property. The public access serves only the post office and fire department.

Peters also maintains that, although the espresso stand is located along the portion of the access road on which the agents drove, the patrons use a semi-circular driveway and "[t]here is no access to the public, or anyone other than [Peters'] own personal licensees or invitees, beyond, and South of the Espresso stand." A sign on the corner of a building immediately behind and to the left of the espresso stand reads, "for RV customers only." Peters admits that at one time he was going to have the swimming pool, which is located on the access road, opened to the public. But he did not proceed with final approval, and the pool and his private access road were never opened to the public.

Jeannie Layman, who lives with Peters, said the agents drove past the public access that leads to the post office and fire department and drove directly onto private property. One of the agents walked with a camera to the RV's. Layman added, "It clearly appeared that she was engaging in further video taping activities. She walked off the road and onto the property itself."

ANALYSIS
A. Did the Department violate Peters' fourth amendment rights when they drove onto the RV park's access road and videotaped the RV hookups?

Under 42 U.S.C. § 1983, Peters seeks damages from the Department for violating his fourth amendment rights.2 Although there are disputed issues of material fact as to what the access road serves, we hold that Peters had no reasonable expectation of privacy in the area videotaped by the county agents. Thus, the agents did not illegally search the area under the fourth amendment.3

Peters first contends that the Department was required to obtain a warrant before inspecting his property. He cites our recent decision in Thurston County Rental Owners Ass'n v. Thurston County, 85 Wash.App. 171, 931 P.2d 208 (1997). In Thurston County, a homeowners' association argued that the on-site septic tank inspections required by ordinance constituted warrantless searches under the fourth amendment. We...

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