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johnbsims3
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# Posted: 6 Oct 2008 18:37
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Number: AGO 74-292
Date: September 23, 1974
Subject: Inspecting private buildings without a warrant
074-292 -- September 23, 1974
MUNICIPALITIES
MAY NOT INSPECT PRIVATE BUILDINGS WITHOUT WARRANT

To: Michael E. Zealy, Tamarac City Attorney, Fort Lauderdale

Prepared by: Staff

QUESTION:
May the city council provide for the entry upon and
inspection of private buildings and construction projects
within the municipality in order to investigate its
building department and to insure proper conduct of the
building inspectors and officials of the city in the
enforcement of the South Florida Building Code?

SUMMARY:
The governing body of the City of Tamarac cannot validly
provide for the warrantless entry upon and inspection of
private buildings and construction projects within that
municipality for the purpose of investigating the city's
building department or to insure proper conduct of the
city's building inspectors and officials in the enforcement
of the South Florida Building Code as statutorily
incorporated into Ch. 71-575, Laws of Florida, and made
applicable to all municipalities and unincorporated areas
of Broward County.
Section 201.2 of the South Florida Building Code, 1970 Dade County
edition (hereinafter referred to as the "code"), provides as follows:
Right of Entry. Upon presentation of the proper
credentials, the Building Official or his duly authorized
representatives may enter, at any reasonable time, any
building, structures or premises for the purpose of
inspection or to prevent violation of this Code. (Emphasis
supplied.)
The code, which goes on to establish detailed building
construction requirements and standards, was made applicable to all
municipalities and unincorporated areas of Broward County by Ch. 71-
575, Laws of Florida. You inquire as to whether the foregoing right
of entry provision of the code is limited in application to the
building official and his duly authorized representatives for the
purpose of code enforcement or whether other persons authorized by
the governing body of the city may also enter private buildings,
structures, and premises and inspect the same as a means of
investigating the city's building department, its building officials
and inspectors, and alleged violations of the statutory building
code.
In this regard, the Fourth Amendment to the United States
Constitution, made applicable to the states through the due process
clause of the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, reh.
den. 368 U.S. 871 (1961), guarantees to all persons the right of
privacy free from unreasonable state intrusion. See also Art. I, s.
12, State Const. The effect of these organic provisions securing
freedom from unreasonable searches is, in general and except as an
incident to lawful arrest, to render a warrant necessary whenever a
search of a person's private premises is to be made, 29 Fla. Jur.
Search and Seizure s. 27, p. 251; and, generally, no search warrant
is issuable except on probable cause. Id. at s. 31, p. 255.
With respect to the instant inquiry, this "probable cause"
requirement has been relaxed in the area of "administrative
searches." Thus, the United States Supreme Court, in Camara v.
Municipal Court, 387 U.S. 523 (1967), held that administrative
inspections to enforce community health and welfare regulations could
be made on less than probable cause to believe that particular
dwellings were the sites of particular violations. [See] 387 U.S. at
534-536, 538. Yet the court insisted that the inspector obtain
either consent or a warrant supported by particular physical and
demographic characteristics of the areas to be searched. Id. See
also See v. City of Seattle, 387 U.S. 541, 545 (1970), in which the
court concluded that administrative entry, without consent, upon the
portions of commercial premises which are not open to the public may
be compelled only through prosecution or physical force within the
framework of a warrant procedure.
More recently, the United States Supreme Court has established a
limited exception to this "administrative warrant" requirement,
holding that, even in the absence of consent, an administrative
inspection may be made without a warrant if the business searched is
one in which there is a legitimate public interest in close
regulation and if the search is conducted under the authority of a
statute meeting certain specificity requirements. United States v.
Biswell, 406 U.S. 311 (1972); 29 Fla. Jur. Search and Seizure s. 11,
p. 225. In Biswell, the court upheld a warrantless search made
pursuant to a federal statute permitting entry "during business hours
[of] the premises (including places of storage) of [regulated
firearms businesses] for the purpose of inspecting or examining (1)
any records or documents required to be kept . . . and (2) any
firearms or ammunition kept or stored . . . at such premises." [See]
18 U.S.C. s. 923(g). The search was lawful despite the absence of a
warrant since it was made "[i]n the context of a regulatory
inspection system of business premises which is carefully limited in
time, place and scope. . . ." [See] 406 U.S. at 315.
The rationale implicitly underlying the Biswell decision is stated
in Colonade Catering Corp. v. United States, 410 F.2d 197 (2d Cir.
1969), rev'd, 397 U.S. 72 (1970):
In contrast to such broad delegation of inspection
authority [as that involved in See, supra], the statutory
grants of inspection power here under review [26 U.S.C. ss.
5146(b) and 7606(a)] are carefully defined and narrowed to
the point where they grant little, if any, more authority
than that which would be extended in a warrant issued by a
magistrate after review. . . .
* * * * *
. . . the imposition of a requirement that alcohol tax
inspectors obtain warrants before carrying out the
specifically defined inspection authorized by statute would
serve no useful purpose in protecting the Fourth Amendment
rights of the liquor dealer. Those rights are already
protected by the restrictions contained in the statute
itself. We are not dealing here with 'area' or 'general'
searches of the type authorized by municipal codes, and
there is no need to utilize the warrant machinery as a
means of establishing standards for protection against
unwarranted intrusions possible under such codes. Here the
area eligible for inspection is clearly and narrowly
defined; the purpose is relevant; the scope is limited; and
all of these aspects are well known to the operators of the
premises being inspected. Nothing of consequence therefore
would be achieved through individualized review by a
magistrate. In the proper exercise of his discretion, the
magistrate would be compelled to issue a warrant as a
matter of course, duplicating the limited authority already
granted by statute. In short, the statute here under
consideration is the equivalent of a warrant. [See] 410 F.
2d at 201, 202.
See also Youghiogheny and Ohio Coal Company v. Morton, 364 F. Supp.
45 (S.D. Ohio 1973) (mine inspection); Terraciano v. Montanye, 360
F.Supp. 1377 (W.D. N.Y. 1973) (pharmacy inspection); United States v.
Lituin, 353 F.Supp. 1333 (D.D.C. 1973) (food and drug inspection);
United States v. Business Builders, Inc., 354 F.Supp. 141 (N.D. Okla.
1973) (food and drug inspection).
Finally, in Youghiogheny and Ohio Coal Company v. Morton, supra,
it was emphasized that warrantless, unannounced administrative
inspections, as contemplated in Biswell, supra, must be for the
purpose of the statute authorizing such inspections and that the
statutory power to inspect cannot be used to conduct a search for
other purposes. [See] 364 F.Supp. at p. 50. See also Olson v.
State, 287 So.2d 313 (Fla. 1973), stating that such warrantless
inspections and searches are constitutionally justified only in those
exceptional situations where the public welfare demands different
treatment for them and only then when the exceptions are made plainly
to appear in the governing statutes. Id., at p. 315.
Applying the foregoing constitutional considerations to the
instant inquiry, there may well be such a legitimate public interest
in the close regulation of building construction under Ch. 71-575,
supra, and the specificity of s. 201.2 of the code (quoted above) as
statutorily incorporated by Ch. 71-575 may be such that the
inspection of buildings, structures, and premises by the building
official or his duly authorized representative may be conducted
without an administrative warrant. Moreover, it is well settled in
this jurisdiction that a statute found on the statute books must be
presumed to be valid and must be given effect until it is judicially
declared unconstitutional. Evans v. Hillsborough County, 186 So.
193, 196 (Fla. 1938). In any event, a determination as to the
necessity of the building official or his duly authorized
representative to obtain an administrative warrant in order to make
inspections and to enforce and prevent violations of the statutory
building code need not be made here, since your inquiry goes to the
authority of other municipal officials to enter upon buildings,
structures, or premises for a purpose other than direct code
enforcement or prevention of violations thereof. And, as previously
noted, valid statutory power to conduct a warrantless inspection for
a particular purpose, if it does exist, cannot be used to conduct a
search for another purpose. See Olson v. State, supra. Thus, in
this instance, s. 201.2 of the code cannot be relied upon as
authority for other municipal officials or their designees to enter
private buildings and enter upon building construction projects to
insure proper conduct by a building official or inspector or to
investigate into a city building department. It might be noted that
s. 203.4(c) of the code provides that the Broward County Board of
Rules and Appeals, upon the request of any person charged with the
responsibility of enforcing the code (including city councilmen), or
upon its own initiative, shall conduct investigations into
enforcement of the code.
In sum, therefore, I am of the opinion that the city council may
not constitutionally provide for the warrantless entry into and
inspection of private buildings and construction projects within the
municipality for the purpose of investigating the city's building
department or to insure proper conduct of the city's building
inspectors and officials in the enforcement of the South Florida
Building Code.

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