State v. Kokomo Tube Co., No. 2-780A234

Docket NºNo. 2-780A234
Citation426 N.E.2d 1338
Case DateOctober 27, 1981
CourtCourt of Appeals of Indiana

Page 1338

426 N.E.2d 1338
10 O.S.H. Cas. (BNA) 1158
STATE of Indiana and IOSHA Inspector, Appellants (Plaintiffs Below),
v.
KOKOMO TUBE COMPANY, Appellee (Defendant Below).
No. 2-780A234.
Court of Appeals of Indiana, Second District.
Oct. 27, 1981.

Page 1340

Theodore L. Sendak, Atty. Gen., James F. Schmidt, Deputy Atty. Gen., Indianapolis, for appellants.

Charles H. Criss, Fern & Criss, Peru, Donald W. Savelson, Frank T. Mamat, Proskauer, Rose, Goetz & Mendelsohn, Washington, D. C., for appellee.

BUCHANAN, Chief Judge.

CASE SUMMARY

Plaintiffs-appellants State of Indiana and IOSHA Inspector (the State) appeal from the trial court's denial of their request for a warrant to inspect the workplace of defendant-appellee Kokomo Tube Company (the Company) pursuant to § 23.1 1 of the Indiana Occupational Safety and Health Act (IOSHA or Act), which gives IOSHA inspectors the authority to investigate business premises for violations of occupational safety and health standards, the State claiming that the trial court erred in concluding that issuance of a warrant to inspect under the statute depends upon a showing of probable cause to believe that a specific violation of IOSHA exists on the premises.

We reverse.

FACTS

The record discloses that on November 13, 1979, IOSHA Inspector Francis Venters (Venters) entered the Company's plant in Peru for the purpose of inspecting the working area of the business. The Company refused to permit the inspection because Venters did not have a warrant.

On December 17, 1979, the State applied to the Miami Circuit Court for a warrant. In support of its application the State presented the affidavits of Inspector Venters and James J. Denbo (Denbo), IOSHA Director of Building and Factory Inspection. Pertinent paragraphs of the Venters affidavit are as follows:

1. That affiant's superiors assigned him to conduct a general scheduled Target Industries Program inspection of the above premises.

2. That said inspection was attempted by this affiant at the above premises on November 13, 1979, and the affiant was refused entry thereto.

Based on the above information, affiant is requesting this search warrant for Kokomo Tube Company, located at Blair Pike Road, Peru, Miami County, Indiana.

Affiant requests that this search warrant include all rooms, areas or sections of the building and premises used by company employees.

Record at 7.

Relevant paragraphs of the Denbo affidavit provide:

1. That IOSHA inspector Francis Venters was assigned by IOSHA to conduct an inspection of the above premises pursuant to the provisions of the Indiana Occupational Safety and Health Act.

2. That said inspection is a regularly scheduled general inspection by IOSHA pursuant to IC 22-8-1.1-23.1, undertaken because of high hazards present in the manufacture of steel pipe and tubes as determined by statistical surveys of inspections and accident reports by the Department

Page 1341

of Statistics, Indiana Division of Labor, and the Bureau of Labor Statistics, United States Department of Labor, which have caused it to be placed on the Target Industries Program List.

Record at 8.

The trial court, rather than issuing a warrant at that time, set the matter for hearing.

At the hearing on January 23, 1980, Denbo described in detail the program under which the Company, which manufactures steel pipe and tubes, was selected for inspection. The State provides us with a succinct summary of Denbo's testimony in its amended reply brief:

The Target Industries Program is a method used by IOSHA in determining places of employment to be chosen for inspection pursuant to the agency's right to initiate inspections as found in IC 22-8-1.1-23.1.... (S)ome 170 Standard Industrial Classifications (industries) are included within the Program including Standard Industrial Classification Number 3317 which consists of establishments such as Kokomo Tube which are engaged in the manufacture of steel pipe and tubes. These 170 industries are only a portion of the total number of Standard Industrial Classifications which include all different types of employment and have been selected because they have been statistically determined to have high hazards in that they have more than three lost workday injury cases per one hundred employees per year. Ninety-five (95%) percent of IOSHA's general scheduled inspections are made in these high hazard industries. The selection of individual employers within the program is conducted first by excluding all employers that had been inspected in the previous year. The agency then proceeds through the 170 industries in rounds selecting one employer in each industry in each round. The individual establishment chosen for inspection in a particular industry in a particular round is selected based on the size of the employers within the given industry and is done in descending order of size.

Amended reply brief at 12-13.

The trial court again refused to issue a warrant because the affidavits and evidence presented failed to establish probable cause to believe that a specific violation of IOSHA existed on the Company's premises, and so the State appeals.

ISSUES

Two issues are presented for review:

1. What standard of probable cause governs the issuance of a warrant to conduct a nonconsensual inspection of business premises pursuant to Ind.Code § 22-8-1.1-23.1? (hereinafter referred to as the Inspection Statute)

2. Were the affidavits and evidence introduced before the trial court adequate to meet the applicable probable cause standard?

DECISION

ISSUE ONE What standard of probable cause governs the issuance of a warrant to conduct a nonconsensual inspection of business premises pursuant to the Inspection Statute?

PARTIES' CONTENTIONS The State urges us to adopt the standard announced by the United States Supreme Court in Marshall v. Barlow's, Inc., (1978) 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305. Although the Court concluded that nonconsensual warrantless searches of business premises under § 657(a) 2 of the Occupational

Page 1342

Safety and Health Act (OSHA) were unconstitutional, it rejected the argument that the sole standard for issuing warrants under OSHA should be probable cause "in the criminal law sense," saying probable cause could be established either by producing evidence of a violation (criminal standard) or by showing compliance with "reasonable legislative or administrative standards" for inspecting the premises in question. 436 U.S. at 320, 98 S.Ct. at 1824. The State emphasizes the importance of following a mandate from the United States Supreme Court in the fourth amendment area. In addition, the State stresses similarities between penalty provisions under OSHA and IOSHA, arguing that because both statutes impose largely civil sanctions for violations of safety standards, a "noncriminal" standard of probable cause should govern the issuance of warrants to detect such violations.

The Company concedes that the relaxed probable cause standard set forth in Barlow's is proper under a statutory scheme, such as OSHA, which provides for enforcement of safety regulations almost entirely by civil means, but maintains that IOSHA imposes a broad range of criminal sanctions for violations of its safety standards. Thus, criminal probable cause should be the sole standard governing issuance of a warrant to determine compliance with IOSHA's safety regulations.

CONCLUSION Probable cause to conduct a nonconsensual inspection of business premises pursuant to the Inspection Statute can be established by presenting specific evidence of an existing violation or by showing compliance with "reasonable legislative or administrative standards" for inspecting the premises in question.

Our task is to determine the standard of probable cause governing issuance of a warrant to conduct a nonconsensual inspection of business premises under the Inspection Statute a matter of first impression in Indiana. That statute provides:

The commissioner and his designated representatives, on their own motion, or on receipt of a written and signed request for an inspection from an employee or his representative setting forth with reasonable particularity the grounds for inspection, may enter without delay and inspect at all reasonable times places of employment in order to enforce any provisions of this chapter, including occupational safety and health standards. Persons making inspections shall present appropriate credentials to the owner, operator or agent in charge of the place of inspection.

Ind.Code § 22-8-1.1-23.1 (emphasis supplied).

The U.S. Supreme Court, in Marshall v. Barlow's, Inc., supra, endorsed a relaxed standard for issuance of such a warrant under § 657(a) of OSHA, the federal counterpart of the Inspection Statute, which provides that:

(a) In order to carry out the purposes of this chapter, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized

(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and

(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.

29 U.S.C. § 657(a) (hereinafter referred to as the Federal Inspection Statute).

Uniformity between federal and state court decisions in the fourth amendment area is a worthy objective. And we recognize,

Page 1343

as did the Court in Barlow's, that our decision must strike a balance between significant competing interests: The public interest in enforcing health and safety standards in the workplace and the private interest in being...

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21 practice notes
  • HEYDE COMPANIES v. Dove Healthcare, No. 01-0863-FT.
    • United States
    • United States State Supreme Court of Wisconsin
    • 27 Diciembre 2002
    ...intended to benefit from them. See, e.g., Paikoff v. Harris, 185 Misc.2d 372, 377 (N.Y. App. Term 1999); Indiana v. Kokomo Tube Co., 426 N.E.2d 1338, 1345 (Ind. Ct. App. 1981). In the context of penal statutes, this court has held that "if strict construction thwarts the purpose of the legi......
  • Sullivan v. Day, No. 49A02-9505-CV-240
    • United States
    • Indiana Court of Appeals of Indiana
    • 20 Febrero 1996
    ...intended to benefit from it, Control Bd. v. Town of Wolcott (1982) Ind.App., 433 N.E.2d 62, 65; State v. Kokomo Tube (1981) Ind.App., 426 N.E.2d 1338, 1345, states are allowed to fashion their own definition of who is "disabled," which means that Indiana's definition of disability establish......
  • Commissioner of Labor v. Gary Steel Products Corp., No. 49A02-9309-CV-474
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 Noviembre 1994
    ...in its criminal statutes bringing them into line with sections of the revised criminal code. State v. Kokomo Tube Co. (1981), Ind.App., 426 N.E.2d 1338, 3 For cases which reject the injection of a "bad purpose" into the term "willful" for 29 U.S.C. § 666, see e.g. F.X. Messina Construction ......
  • Holmes v. Review Bd. of Indiana Employment Sec. Div., No. 2-283A71
    • United States
    • Indiana Court of Appeals of Indiana
    • 13 Julio 1983
    ...to be liberally construed in favor of those intended to benefit from it. (Citations omitted.) State v. Kokomo Tube Co., (1981) Ind.App., 426 N.E.2d 1338, It is fundamental in statutory construction a statute should be construed so as to ascertain and give effect to the intention of the legi......
  • Request a trial to view additional results
21 cases
  • HEYDE COMPANIES v. Dove Healthcare, No. 01-0863-FT.
    • United States
    • United States State Supreme Court of Wisconsin
    • 27 Diciembre 2002
    ...intended to benefit from them. See, e.g., Paikoff v. Harris, 185 Misc.2d 372, 377 (N.Y. App. Term 1999); Indiana v. Kokomo Tube Co., 426 N.E.2d 1338, 1345 (Ind. Ct. App. 1981). In the context of penal statutes, this court has held that "if strict construction thwarts the purpose of the legi......
  • Sullivan v. Day, No. 49A02-9505-CV-240
    • United States
    • Indiana Court of Appeals of Indiana
    • 20 Febrero 1996
    ...intended to benefit from it, Control Bd. v. Town of Wolcott (1982) Ind.App., 433 N.E.2d 62, 65; State v. Kokomo Tube (1981) Ind.App., 426 N.E.2d 1338, 1345, states are allowed to fashion their own definition of who is "disabled," which means that Indiana's definition of disability establish......
  • Commissioner of Labor v. Gary Steel Products Corp., No. 49A02-9309-CV-474
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 Noviembre 1994
    ...in its criminal statutes bringing them into line with sections of the revised criminal code. State v. Kokomo Tube Co. (1981), Ind.App., 426 N.E.2d 1338, 3 For cases which reject the injection of a "bad purpose" into the term "willful" for 29 U.S.C. § 666, see e.g. F.X. Messina Construction ......
  • Holmes v. Review Bd. of Indiana Employment Sec. Div., No. 2-283A71
    • United States
    • Indiana Court of Appeals of Indiana
    • 13 Julio 1983
    ...to be liberally construed in favor of those intended to benefit from it. (Citations omitted.) State v. Kokomo Tube Co., (1981) Ind.App., 426 N.E.2d 1338, It is fundamental in statutory construction a statute should be construed so as to ascertain and give effect to the intention of the legi......
  • Request a trial to view additional results

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