Rush v. Obledo

• Decision Date: 18 May 1981
• Docket Number: No. C-79-2256-MHP.,C-79-2256-MHP.
• Citation: 517 F. Supp. 905
• Parties: Kathleen RUSH, Eleanor Fraser, San Mateo County Daycare Association, Plaintiffs, v. Mario OBLEDO, Secretary, California Health and Welfare Agency; Marion J. Woods, Director, Department of Social Services; Ann Bersinger, Deputy Director Community Care Licensing, Department of Social Services; Gary L. Baysmore, Unit Supervisor, Licensing and Certification Division, Department of Social Services; Tony Lee, Social Worker, Department of Social Services; Jesus Longorio, Social Worker, Department of Social Services, Defendants.
• Court: U.S. District Court — Northern District of California

517 F. Supp. 905

Kathleen RUSH, Eleanor Fraser, San Mateo County Daycare Association, Plaintiffs, v. Mario OBLEDO, Secretary, California Health and Welfare Agency; Marion J. Woods, Director, Department of Social Services; Ann Bersinger, Deputy Director Community Care Licensing, Department of Social Services; Gary L. Baysmore, Unit Supervisor, Licensing and Certification Division, Department of Social Services; Tony Lee, Social Worker, Department of Social Services; Jesus Longorio, Social Worker, Department of Social Services, Defendants.

No. C-79-2256-MHP.

United States District Court, N. D. California.

May 18, 1981.

Charles B. Klinedinst, Barry Murphy, John Kelson, Pettit & Martin, San Francisco, Cal., for plaintiffs; Marsha Rosen, Lawyers for Urban Affairs, Lujuana Wolfe Treadwell, Bay Area Child Care, San Francisco, Cal., of counsel.

George Deukmejian, Atty. Gen. of Cal., Stephanie Wald, Deputy Atty. Gen., San Francisco, Cal., for defendants.

OPINION

PATEL, District Judge.

This case raises the question whether the California state statutes and regulations permitting warrantless inspection of family day care homes violate the Fourth Amendment to the United States Constitution. The parties agree that there are no disputes as to material facts. The case is therefore before the court on cross-motions for summary judgment.

FACTUAL BACKGROUND

The pertinent facts are stipulated or uncontroverted. Plaintiffs are: an operator of a licensed family day care home in San Mateo County, California¹; and an association of licensed family day care providers in the same county. "A family day care home is generally defined as a private home in which regular care is given to 6 or fewer children, including the caregiver's own, for any part of a 24-hour day."² Family day care homes are very different from institutional day care centers. They are private residences in which a provider cares for a small number of children, often the children of neighbors or acquaintances.³ Under California law, operating a family day care home for six or fewer children (plus any resident children) is considered a residential use of property, and the home may not be treated differently from other single-family dwellings for local zoning, building or safety code purposes. Cal.Health & Safety Code § 1529.5.

A California statute authorizes unannounced warrantless inspections of family day care homes at any time. Cal.Health & Safety Code § 1533. The implementing regulation limits inspections to the hours of operation of the home; it also provides that refusal to admit the inspector shall constitute cause for revocation or suspension of the home's license. 22 Cal.Admin.Code § 86025. The parties have stipulated that the state's policy is to conduct inspections of family day care homes without notice.⁴ Inspections are conducted at least once every two years. See Cal.Health & Safety Code § 1528(a). It is also stipulated that the state draws no policy distinction for this purpose between family day care homes and other community care facilities such as nursing homes or large institutional day care centers.

Finally, the state apparently takes the position that the statute authorizes warrantless inspection of unlicensed as well as licensed homes. Certainly, the statute is not by its terms limited in application to licensed facilities; it authorizes inspection of "any place providing personal care, supervision and services." Cal.Health & Safety Code § 1533 (emphasis added).⁵

Plaintiffs brought this action seeking a declaratory judgment that Health & Safety Code § 1533 and the implementing regulations are unconstitutional, at least as applied to family day care homes, and an injunction against further warrantless inspections under these provisions.

DISCUSSION

The circumstances in which agents of the state can enter private property without a warrant are limited by the Fourth Amendment, even when the entry is for administrative inspection rather than a criminal search. 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). In this case, to justify its policy of warrantless entry into family day care homes, the state relies on the "closely regulated industry" exception to the warrant requirement for administrative searches. See generally Marshall v. Wait, 628 F.2d 1255 (9th Cir. 1980). Alternatively, the state relies on a general "reasonableness" argument that, on balance, the state's interest in protecting the welfare of the children in care justifies warrantless inspections, especially given that family day care licensees are put on notice that such inspections will occur. Cf. Marshall v. Barlow's, Inc., 436 U.S. at 315-16, 321, 98 S.Ct. at 1821-22 (reasonableness of warrantless searches in future cases will depend on specific enforcement needs and privacy guarantees in particular factual settings).

I Closely Regulated Industry Exception

The "closely regulated industry" exception to the warrant requirement derives from Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), and United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972). In Colonnade, federal agents broke into a locked storeroom in order to seize liquor from a catering establishment that operated under state and federal liquor licenses. A federal statute imposed a fine for refusal to allow inspectors to enter the premises of dealers such as Colonnade. The Supreme Court upheld the validity of the statute because of the long history of regulation of the liquor industry, pointing out that liquor laws existed in England as early as 1661, in colonial America in 1691, and in federal legislation as of 1791. The Court went on to hold that Congress had not intended the statute to authorize forcible entries, and ordered the evidence suppressed.

In Biswell, the Court upheld against a Fourth Amendment challenge a statute, similar to the one at issue in Colonnade, that authorized inspection during business hours of the premises of gun dealers. The Court acknowledged that federal regulation of firearms did not have as long a history as that of liquor. But the Court stressed the vital crime-fighting importance of the gun control statutes, and the crucial role played in the statutory scheme by unannounced, frequent inspections flexible in time and scope. Finally, the Court noted that the inspections posed only limited threats to any justifiable expectation of privacy, because "when a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms and ammunition will be subject to effective inspection." 406 U.S. at 316, 92 S.Ct. at 1596. The Court concluded that "where ... regulatory inspections further urgent federal interest, and the possibilities of abuse and the threat to privacy are not of impressive dimensions," a statutory warrantless inspection does not violate the Fourth Amendment. Id. at 317, 92 S.Ct. at 1597.

The Colonnade/Biswell doctrine is not without limits, however. In Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), a federal statute authorized warrantless inspections of the work areas of any employment facility subject to the broad jurisdictional provisions of the Occupational Safety and Health Act of 1970 (OSHA). The president of Barlow's, Inc. refused to allow an OSHA inspector to conduct a random warrantless inspection of his business, and sued to enjoin enforcement of the statute.

The Supreme Court invalidated the OSHA statute insofar as it purported to permit warrantless inspections. In so doing, the Court declined to apply the "closely regulated industry" exception to all industries within the reach of OSHA. The Court characterized the cases that had formulated the exception as "responses to relatively unique circumstances" existing in particular industries with "such a history of government oversight that no reasonable expectation of privacy ... could exist for a proprietor over the stock of such an enterprise." 436 U.S. at 313, 98 S.Ct. at 1821. "When an entrepreneur embarks upon such a business, he has voluntarily chosen to subject himself to a full arsenal of governmental regulation." Ibid. The Court stressed that closely regulated industries are the exception, not the rule. Ibid.

Under this standard, family day care is not a closely regulated industry, either nationally or in California. "For the most part family day care in this country is provided in the homes of unregulated caregivers who operate informally, independent of any regulatory system or administrative structure." Family Day Care Study at ii (emphasis in original). In 1976 to 1977, it was estimated that there were only about 111,000 regulated family day care homes in the nation, compared to over a million unregulated homes. Id. at 1. As of 1971, regulations governing family day care homes were on the books in 48 states, yet it was estimated at the same time that up to 90% of such homes were operating in an unregulated manner. Compare id. at 12 with id. at ii. Thus, family day care, an industry perhaps as ancient as any known to humanity, was overwhelmingly unregulated as recently as ten years ago.

Of all the states, California does have perhaps the longest and most consistent history of state involvement in day care, including family day care. See id. at 2; Exhibit A to Defendants' Cross-Motion; former Cal.Welf. & Inst.Code § 1620(a) (enacted by 1937 Cal.Stats. ch. 369 at 1076-77; repealed 1965; current version at Cal. Health & Safety Code §§ 1253, 1508). Yet even today in California, regulation of family day care homes is not pervasive or all-encompassing. A license is required,⁶ but the qualifications to obtain such a license are minimal — essentially, anyone in good health who does not have a criminal record...