Woods & Rohde, Inc. v. State, Dept. of Labor, 2903
| Decision Date | 02 June 1977 |
| Docket Number | No. 2903,2903 |
| Citation | 565 P.2d 138 |
| Parties | 5 O.S.H. Cas. (BNA) 1530, 1977-1978 O.S.H.D. (CCH) P 21,880 WOODS & ROHDE, INC., d/b/a Alaska Truss & Millwork, Roger Woods and Vernon Rohde, Petitioners, v. STATE of Alaska, DEPARTMENT OF LABOR, Respondents. |
| Court | Alaska Supreme Court |
Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, ERWIN and BURKE, JJ.
On April 21, 1976, a compliance officer of the Occupational Safety and Health Division of the State of Alaska, Department of Labor, after presenting his credentials to officials of Alaska Truss & Millwork, attempted to inspect the company's private business premises which were located in Anchorage, Alaska. 1 Entry and inspection was refused by the agents and owners of Alaska Truss & Millwork. According to the Department of Labor, the purpose of the attempted inspection was "to determine whether the company was in compliance with Alaska's occupational safety and health standards, promulgated pursuant to the Occupational Safety and Health Act (OSHA)." 2
Upon petitioners' refusal to allow the compliance officer to conduct an inspection of the business premises of Alaska Truss & Millwork, the compliance officer reported the refusal to the Deputy Director of the Division of Occupational Safety and Health. Respondent Department of Labor filed suit in superior court pursuant to AS 18.60.083(b) and 8 AAC 61.030 3 seeking a temporary restraining order preventing petitioners from refusing entry to authorized compliance officers of the Department of Labor. On April 23, 1976, the superior court entered a temporary restraining order compelling petitioners to submit to entry and inspection. The order of the superior court was thereafter stayed by Justice Burke sitting as a single justice, pursuant to Appellate Rule 37(b), on condition that a petition for review be filed. A petition was thereafter filed and review granted by this court.
The focal point of this controversy centers on AS 18.60.083(a) of Alaska's Occupational Safety and Health Act. This section provides, as to the right of entry and inspection, that:
A representative of the department, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized to (1) enter without delay and at reasonable times a factory, plant, establishment, construction site, or other area, work place or environment where work is performed by an employee of an employer; and (2) inspect and investigate during regular working hours and at other reasonable times, and with reasonable limits and in a reasonable manner, a place of employment and all pertinent conditions, structures, machines, devices, equipment and materials, and to question privately an employer, owner, operator, agent or employee.
As framed by petitioners, the question presented for review in the case at bar is "whether a court of this state may require the owners or occupiers of private premises to submit to a routine search or inspection to determine safety compliance in the absence of a valid search warrant, probable cause to believe a violation exists, or exigent circumstances." According to respondents, the question presented for review is whether "a warrantless OSHA inspection, as authorized by AS 18.60.083(a), (is) an unconstitutional search."
In 1970 the United States Congress enacted the Occupational Safety and Health Act which, although preempting the field, permitted the states to exercise jurisdiction over occupational safety and health under approved state plans with standards which "are or will be at least as effective in providing safe and healthful employment and places of employment as the standards" promulgated under the federal act. 4 The Alaska plan received approval in 1973. Alaska's OSHA is grounded on legislative findings
that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to the people of the state in terms of loss of production, wage loss, medical expenses and disability compensation payments. . . . For these reasons it is found and declared necessary to undertake a program to reduce the incidence of work-related accidents and health hazards in the state. 5
AS 18.60.083(a)(1) and (2), authorizing the right of entry and inspection, substantially parallel the federal counterpart, 29 U.S.C. § 657(a). 6 By its terms, Alaska's OSHA is made applicable to any employer "who has one or more employees." 7 AS 18.60.095 provides penalties for violations of the Act which range from civil fines to fines and imprisonment for specified types of violations. Under the Act, Alaska's Department of Labor is obligated to
establish and enforce occupational safety and health standards that prescribe requirements for safe and healthful working conditions for all employment . . . . 8
In turn, employers are required to do everything necessary to protect the life, health and safety of employees including
complying with all occupational safety and health standards and regulations promulgated by the department. 9
Respondents take the position that in order to insure compliance with OSHA standards, the Alaska act authorizes warrantless administrative entry and inspection. 10 Respondents further note that this right of entry and inspection is specifically limited in that "(i)t must be exercised during regular working hours or other reasonable times, and within reasonable limits and in a reasonable manner." 11 Under AS 18.60.083(a)(1) the right of entry extends only to places where work is performed by an employee. The inspection authorized is confined to places of employment and pertinent conditions, structures, machines, devices, equipment and materials. 12 Further, a representative of the employer must be given an opportunity to accompany the compliance officer in his inspection. 13 The compliance officer making the inspection must meet prescribed minimum qualifications which include at least 5 years general work experience in the field which he or she is assigned to inspect. 14
The foregoing outlines the general statutory setting in which the now questioned right of entry and inspection provided for in AS 18.60.083(a) is found. Resolution of the issue whether warrantless OSHA inspections authorized under AS 18.60.083(a) are constitutional requires analysis of the decisional law pertaining to searches and seizures as well as emerging federal precedent construing the federal counterpart of AS 18.60.083(a).
The seminal decisions in the area of administrative searches 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). In these cases the Supreme Court of the United States reviewed the applicability of the fourth amendment to building inspection programs conducted by local governments. In Camara a lessee had been charged with refusing to allow a city inspector to inspect his premises for possible housing code violations. Camara had refused because the inspector did not have a search warrant, although the inspector did claim lawful authority to conduct the search under the local housing code. 15 The Supreme Court held that the fourth amendment did not permit warrantless administrative inspections such as the one attempted in Camara, overruling an earlier decision, Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877 (1959).
The Supreme Court began its analysis of whether a search warrant was required with recognition of "one governing principle, justified by history and by current experience":
(E)xcept in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant. 16
It considered the three reasons advanced by the Frank court for permitting administrative health and safety inspections without warrants, finding each insufficient to justify another exception to the warrant requirement. First, the Frank court had asserted that these inspections only peripherally infringed upon the interest of personal privacy underlying the fourth amendment and did not infringe at all upon the more important fourth amendment concern of protection from criminal prosecution. The Camara majority disagreed, insisting that the "privacy interest," of the fourth amendment was deserving of the same degree of solicitude accorded the "self-protection interest," and that, ironically self-protection was also threatened by administrative searches because compliance with regulatory laws is typically enforced by criminal complaint. 387 U.S. at 530-31, 87 S.Ct. at 1731-32, 18 L.Ed.2d at 936-37.
Second, the Frank court had concluded that in the context of an administrative search, the warrant machinery could serve no useful function because the decision to inspect a municipal area is based upon assessment of broad factors, such as the area's age and condition and the interval of time since the last inspection. The Frank court reasoned that so long as the municipal ordinance authorizing the inspection imposed reasonable restraints as to the time and manner of inspection, a magistrate could serve no purpose other than to rubber stamp the policy decision to inspect. Again the Camara majority disagreed, finding that the Frank opinion had unduly discounted the purposes of the warrant requirement of the fourth amendment. The Court stated:
Under the present system, when the inspector demands entry, the occupant has no way of knowing whether enforcement of the municipal code involved requires inspection of his premises, no way of knowing the lawful limits of the inspector's power to search, and no way of knowing whether the inspector himself is acting under proper authorization. These are questions...
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