Amicus Curiae Brief — Cedar Point Nursery, et al., Petitioners v. Victoria Hassid, et al.
Supreme Court briefFeb 12, 2021
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NO. 20-107
IN THE
CEDAR POINT NURSERY, ET AL.,
Petitioners,
v.
VICTORIA HASSID, ET AL.,
Respondents.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF OF LOCAL GOVERNMENTS AS AMICI CURIAE
IN SUPPORT OF RESPONDENTS
PETER S. HOLMES
City Attorney
JEREMIAH E. MILLER
ERICA R. FRANKLIN
DERRICK DE VERA
Seattle City Attorney’s Office
701 Fifth Avenue, Ste 2050
Seattle, WA 98104
Counsel for City of Seattle
JAMES R. WILLIAMS
County Counsel
TONY LOPRESTI
MICHAEL L. ROSSI
MARY E. HANNA-WEIR
JEREMY A. AVILA
Office of the County Counsel
70 W. Hedding St.
East Wing, 9th Floor
San José, CA 95110
Counsel for County of Santa Clara
February 12, 2021
JONATHAN B. MILLER
Counsel of Record
LIJIA GONG
MICHAEL ADAME
MARTHA CARDENAS DELGADILLO
Public Rights Project
4096 Piedmont Avenue #149
Oakland, CA 94611
(646) 831-6113
jon@publicrightsproject.org
Counsel for Amici Curiae
RAYMOND P. TOLENTINO
MAXIMILLIAN L. FELDMAN
Kaplan Hecker & Fink LLP
350 Fifth Avenue, Ste 7110
New York, NY 10118
Counsel for City of Seattle
JESSICA M. SCHELLER
LAUREN E. MILLER
Cook County State’s
Attorney’s Office
500 Richard J. Daley Center
Chicago, IL 60602
Counsel for Cook County
i
TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE ............................... 1
SUMMARY OF ARGUMENT .................................... 2
ARGUMENT ............................................................... 4
I.
II.
Petitioners’ Per Se Takings Rule Would
Undermine
Core
Governmental
Functions.......................................................... 4
A.
Local governmental regulatory
functions depend on reasonable
entry onto private property .................. 4
B.
Local
governments
authorize
private individuals to enter
private property to achieve
regulatory goals..................................... 9
C.
Local governments routinely limit
the right to exclude to further
important regulatory objectives ......... 11
D.
Petitioners’ proposed rule would
impose overwhelming burdens on
local governments ............................... 14
Petitioners’ Sweeping Expansion of the
Per Se Takings Doctrine Would Disturb
Well-Established Legal Principles ................ 16
A.
Petitioners’ proposed rule is flatly
inconsistent with this Court’s
longstanding takings jurisprudence ..... 16
ii
B.
Petitioners’ proposed rule would
inject uncertainty and confusion
into judicial review of local
government action under the
Fourth Amendment............................. 21
CONCLUSION ......................................................... 25
Appendix A – List of Amici Local
Governments...................................................... App. 1
Appendix B – City and County Ordinances and
Regulations ........................................................ App. 2
iii
TABLE OF AUTHORITIES
Page(s)
CASES
Ark. Game & Fish Comm’n v. United States,
568 U.S. 23 (2012) ..................................... 16, 17, 19
Camara v. Mun. Ct. of City & Cnty. of San
Francisco, 387 U.S. 523 (1967) ..................... 1, 2, 21
County of Cook v. Landings Condominium Ass’n
Bldg. E, Case No. 19 MI 400266 (Cook Cnty. Cir.
Ct. Feb. 6, 2019) ...................................................... 7
Curtis v. Irwin Indus., Inc.,
913 F.3d 1146 (9th Cir. 2019) ............................... 20
Dolan v. City of Tigard,
512 U.S. 374 (1994) ............................................... 17
Franklin Mem’l Hosp. v. Harvey,
575 F.3d 121 (1st Cir. 2009).................................. 18
Heart of Atlanta Motel v. United States,
379 U.S. 241 (1964) ............................................... 12
Hilton Washington Corp. v. District of Columbia,
777 F.2d 47 (D.C. Cir. 1985) ................................. 18
Horne v. Dep’t of Agric.,
576 U.S. 350 (2015) ............................................... 16
Kovacs v. Cooper,
336 U.S. 77 (1949) ................................................... 1
Lingle v. Chevron U.S.A. Inc.,
544 U.S. 528 (2005) ......................................... 16, 17
Loretto v. Teleprompter Manhattan CATV Corp.,
458 U.S. 419 (1982) ......................................... 16, 17
iv
Lucas v. S.C. Coastal Council,
505 U.S. 1003 (1992) ............................................. 15
Murr v. Wisconsin,
137 S. Ct. 1933 (2017) ..................................... 17, 18
Naegele Outdoor Advert., Inc. v. City of Durham,
803 F. Supp. 1068 (M.D.N.C. 1992), aff’d,
19 F.3d 11 (4th Cir. 1994) ..................................... 18
New York v. Burger,
482 U.S. 691 (1987) ................................................. 8
Nollan v. Cal. Coastal Comm’n,
483 U.S. 825 (1987) ............................................... 16
Penn Central Transportation Co. v. City of
New York, 438 U.S. 104 (1978) ................. 17, 18, 21
Presley v. City of Charlottesville,
464 F.3d 480 (4th Cir. 2006) ................................. 22
Rose Acre Farms, Inc. v. United States,
559 F.3d 1260 (Fed. Cir. 2009) ............................. 18
See v. City of Seattle,
387 U.S. 541 (1967) ............................................... 21
Soldal v. Cook Cnty., Ill.,
506 U.S. 56 (1992) ................................................. 22
Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l
Planning Agency, 535 U.S. 302 (2002) ........... 15, 17
United States v. Jones,
565 U.S. 400 (2012) ............................................... 23
Wyman v. James,
400 U.S. 309 (1971) ............................................... 23
v
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. IV ........................................passim
U.S. Const. amend. V .......................................... 22, 23
STATE STATUTES AND REGULATIONS
Cal. Code Regs. tit. 8, § 20900 .................................. 19
Cal. Code Regs. tit. 8, § 20900(e) ................................ 3
Cal. Food & Agric. Code § 5023....................... 5, 18, 20
Cal. Health & Safety Code § 127405 ........................ 13
Colo. Rev. Stat. § 18-1.3-202(2) ................................. 10
Colo. Rev. Stat. § 18-1.3-204(2)(a)(X) ....................... 10
Fla. Stat. Ann. § 948.03(1)(b) .................................... 10
Fla. Stat. Ann. § 948.15 ............................................. 10
Ga. Code Ann. § 42-8-35(a)(4) .................................. 10
Ga. Comp. R. & Regs. 503-1.02 ................................. 10
210 Ill. Comp. Stat. Ann. § 89/10 .............................. 13
430 Ill. Comp. Stat. Ann. § 66/65(d).......................... 14
10-144-150 Me.Code.R. § 1.01(A) .............................. 13
10-144-150 Me.Code.R. § 1.02(C) .............................. 13
Mo. Rev. Stat § 559.600 ............................................. 10
Utah Admin. Code R156-50-601 ............................... 10
Wash. State Code § 70.77.580 ................................... 14
vi
LOCAL ORDINANCES
City of Boston, Mass., Ord. Code § 17-10.8 ................ 5
City of Boston, Mass. Ord. Code § 17-9.2(b) ............... 6
City of Cincinnati, Ohio, Ord. Code § 603-1 ............... 5
City of Cincinnati, Ohio, Ord. Code § 604-11 ............. 9
City of Columbus, Ohio, Ord. Code § 540.10 .............. 8
City of Columbus, Ohio, Ord. Code § 573.05 .............. 5
City of Houston, Tex., Code of Ord. § 28-370 ............. 8
City of Los Angeles, Cal., Mun. Code § 161.601 ......... 9
City of Madison, Wis., Code of Ord. § 19.08(2)(b) ...... 6
City of Milwaukee, Wis., Code of Ord. § 66-20(4)....... 8
City of Milwaukee, Wis., Code of Ord. § 222-4 ........... 6
City of Minneapolis, Minn., Ord. Code § 216.60 ........ 9
City of Oakland, Cal., Mun. Code § 5.36.170 ............. 8
City of Seattle, Wash., Building Code § 703.4 .......... 13
City of Seattle, Wash., Building Code § 907.2 .......... 13
City of Seattle, Wash., Building Code § 1604.8.2 ..... 13
City of Seattle, Wash., Building Code § 2106.1 ........ 13
City of Seattle, Wash., Mun. Code § 14.06.020(L) ... 12
City of Seattle, Wash., Mun. Code § 14.06.030 ........ 12
City of Seattle, Wash., Mun. Code § 14.06.040 ........ 12
City of Seattle, Wash., Mun. Code § 14.08.020 ........ 12
City of Seattle, Wash., Mun. Code § 14.19.045 ........ 14
City of St. Paul, Minn., Code of Ord. § 58.05 ............. 5
Cook County, Ill., Code of Ord. § 6-28 ...................... 14
vii
Cook County, Ill., Code of Ord. § 42-3 ...................... 14
Cook County, Ill., Code of Ord. § 42-19 .................... 14
Cook County, Ill., Code of Ord. § 42-31 .................... 12
Cook County, Ill., Code of Ord. § 42-37 .................... 12
Cook County, Ill., Code of Ord. § 42-38 .................... 12
Cook County, Ill., Code of Ord. § 42-38(b) ................ 12
Cook County, Ill., Code of Ord. § 54-305(f) ............... 14
Cook County, Ill., Code of Ord. § 102-104(4)10 ........ 13
Cook County, Ill., Code of Ord. §§ 102105(4)(3)(b)(3)(b.1)–(j) ............................................. 6
Cook County, Ill., Code of Ord. § 102105(4)(3)(b)(4)(a) ................................................ 6, 20
Cook County, Ill., Code of Ord. § 102-151 ................ 14
County of Santa Clara, Cal., Ord. Code §§ B11-60–
B11-102 .................................................................... 5
County of Santa Clara, Cal., Ord. Code § B11578(d) ..................................................................... 14
County of Santa Clara, Cal., Ord. Code § C3-6 ........ 13
County of Santa Clara, Cal., Ord. Code § C3-8 ........ 14
Denver, Colo., Mun. Code § 23-3 ................................. 5
Denver, Colo., Mun. Code § 32-17(a) .......................... 6
Hennepin County, Minn., Ord. No. 9, § 3(3) ............ 11
viii
OTHER AUTHORITIES
CASA: Court Appointed Special Advocates for
Children,
https://www.duboiscountyin.org/document_
center/casa/600051.pdf .......................................... 10
Compl., People of the State of California & City of
Oakland v. Crear, Case No. RG 18918472 (Super.
Ct. Alameda Cnty. Aug. 27, 2018) .......................... 7
Nat’l Highway Traffic Safety Admin., EMS System
Demographics tbl. 4 (June 2014) .......................... 11
Our Mission, National CASA/GAL Ass’n,
https://nationalcasagal.org/our-work/missionvision-and-values/ ................................................. 10
1
INTEREST OF AMICI CURIAE
1
Amici curiae are local governments from across the
United States. 2 We write to ensure that this Court
appreciates the full extent of the disruption to local
government operations that would ensue under
Petitioners’ unfounded and perilous interpretation of
the Takings Clause.
Local governments are the first line of protection
for their residents’ health, safety, and welfare. See,
e.g., Kovacs v. Cooper, 336 U.S. 77, 83 (1949) (“The
police power of a state extends beyond health, morals
and safety … to protect the well-being and tranquility
of a community.”). We ensure that food is prepared in
restaurants in a safe and clean manner, that homes
and businesses are safely constructed and equipped
with maintained fire protection, that foster children
are cared for in appropriate and supportive settings,
and that farms and their workers use potentially
dangerous pesticides safely and effectively. To
accomplish these objectives and others, local
governments regularly send inspectors, mandate
signage, and engage in other activities that require
access to private property. That access is not absolute.
But it is robust and regular—as it must be to ensure
actual compliance with our laws and regulations. See,
e.g., Camara v. Mun. Ct. of City & Cnty. of San
1 All parties have consented to the filing of this brief. In addition,
no counsel for a party authored this brief in whole or in part, and
no party or counsel for a party made a monetary contribution
intended to fund its preparation or submission. No person other
than amici or amici’s counsel made a monetary contribution to
the preparation or submission of this brief.
2 A complete list of all amici can be found in Appendix A.
2
Francisco, 387 U.S. 523, 535-36 (1967) (“There is
unanimous agreement among those most familiar
with this field that the only effective way to seek
universal compliance with the minimum standards
required by municipal codes is through routine
periodic inspections ….”). The benefits of inspections
extend beyond simple compliance with local regulatory
provisions; in some circumstances, inspections have
uncovered deeply troubling (and often hidden) harms
and misconduct, including human and labor
trafficking.
We respect the private property rights of our
residents and take care to ensure that local
governmental regulatory inspection and enforcement
efforts fall within the bounds of the Constitution. But
we have an equally solemn duty to protect the health,
safety, and welfare of our communities—especially
that of the most vulnerable. Petitioners’ effort to
manufacture new private property rights at the
expense of crucial and often lifesaving local regulatory
functions is dangerous, ill-considered, and contrary to
this Court’s precedent.
SUMMARY OF ARGUMENT
Entry onto private property is a common
occurrence in the operations of a modern government.
Every day, local governments conduct thousands of
health and safety inspections at businesses of varying
sizes across a wide range of industries and in private
residences. These inspections protect workers,
consumers, residents, and our environment from an
assortment of potential hazards and harms. Some of
these entries rely on surprise. Others occur at a set
time or on a regular schedule with significant
warning. Some entries are authorized by local permits,
3
whereas others are authorized by a warrant or exigent
circumstances. Some entries are limited to narrow
spaces within private property, while others are
expansive in scope. These inspections, with their many
permutations, are a core component of amici’s efforts
to ensure compliance with local laws and to preserve
the safety and welfare of our communities. Whether
through food inspection at processing plants, jobsite
safety reviews, environmental compliance checks, or
at-home visits to protect the welfare of children,
regulators and their designated private partners must
come onto private property to ensure the public good.
Petitioners’ novel theory of takings liability
jeopardizes local governments’ ability to pursue those
critical objectives. Petitioners take specific aim at
California’s Access Regulation, which grants union
organizers scheduled and temporary access to
employer worksites for up to 120 days per year (and is
utilized far less in practice). See Cal. Code Regs. tit.
8, § 20900(e). But their proposed rule sweeps far more
broadly. The Access Regulation is no anomaly: it
shares many of the core components of routine
governmental inspection regimes and a variety of
similar policies. It grants a time-limited right of access
for a specific purpose; it is designed to advance the
health and welfare of residents; and (like many other
regulatory regimes) it permits private entities to enter
onto land to advance a government interest. Under
Petitioners’ rule, any governmental interference with
a property owner’s “right to exclude”—from the Access
Regulation at issue in this case to run-of-the-mill
government inspections that local governments
depend on to protect vulnerable communities—could
constitute a per se taking. See Pet. Br. 16-17. That
unprecedented approach conflicts with this Court’s
well-established
takings
jurisprudence
and
4
potentially exposes local governments to broad
constitutional liability for routine entries and
inspections that are already scrutinized (and pass
constitutional muster) under the Fourth Amendment.
That cannot be, and is not, the law.
ARGUMENT
I. Petitioners’ Per Se Takings Rule Would
Undermine Core Governmental Functions.
Petitioners’ expansive reading of the Takings
Clause threatens a vast array of local laws that protect
the health, safety, and welfare of amici’s residents.
These laws vary in nature and scope and cover many
different industries, establishments, and individuals. 3
All share a common thread: they impose reasonable
restrictions on a private property owner’s right to
exclude, in order to protect local residents, including
children, workers, business owners, and other
residents.
A. Local
governmental
regulatory
functions depend on reasonable entry
onto private property.
California’s Access Regulation is not an outlier.
Across the country, countless regulations permit local
government agents to enter onto private property.
These regulations serve as critical tools in executing
local governments’ essential functions and fulfilling
their core mission of protecting their communities.
Food health and safety regulations are
paradigmatic: local governments, including amici,
3 Local ordinances and regulations authorizing such inspections
are noted throughout Part I. In addition, Appendix B describes
other representative examples from amici local governments and
other jurisdictions.
5
require inspections at multiple points along the food
supply chain to protect public health and the safety of
food production. The City of Cincinnati, for instance,
authorizes inspectors to enter slaughterhouses and
fisheries before meat and fish are sent to market,
ensuring the safety of meat and fish sold to grocers and
restaurants. City of Cincinnati, Ohio, Ord. Code
§ 603-1. Likewise, the City and County of Denver
grants its manager of public health and environment
a right of entry into the premises of any food service
licensee, including food processing, wholesale, and
warehouse establishments, as well as retail food
establishments, to protect consumers from food-borne
risks to their health. Denver, Colo., Mun. Code § 23-3.
And the Agricultural Commissioner for the County of
Santa Clara is authorized to enter private property to
quarantine out-of-state produce to protect the food
supply from invasive pests and plant diseases. Cal.
Food & Agric. Code § 5023. 4
Local building, industrial, and environmental
safety codes also routinely authorize entry onto
private property to protect public safety. For example,
the County of Santa Clara authorizes inspections of
onsite wastewater treatment systems on private
property. County of Santa Clara, Cal., Ord.
Code §§ B11-60–B11-102. The City of St. Paul
authorizes its fire department to enter private
property to inspect smoke detectors in dwellings. City
of St. Paul, Minn., Code of Ord. § 58.05. The City of
4 Many local governments similarly require regular inspections
for food carts and trucks that are often deployed to multiple
locations throughout the jurisdiction. See, e.g., City of Boston,
Mass., Ord. Code § 17-10.8; City of Columbus, Ohio, Ord. Code
§ 573.05.
6
Boston requires its health commissioner to inspect any
facility using “large-scale” recombinant DNA
molecules at least once a year. City of Boston, Mass.
Ord. Code § 17-9.2(b). Cook County, Illinois grants its
Building Commissioner “the authority to enter, at any
reasonable hour, any building, structure, or premises
within the unincorporated areas of Cook County to
enforce the provisions of the [Building] Code.” Cook
County, Ill., Code of Ord. § 102-105(4)(3)(b)(4)(a).5
Under this authority, the County conducts building,
electrical, plumbing, elevator, ventilation, fire
prevention, and boiler and refrigeration inspections,
all of which serve to safeguard the buildings in which
residents live and work. See id. §§ 102105(4)(3)(b)(3)(b.1)–(j). 6
These building inspection programs help local
governments identify dangerous or hazardous
conditions and ensure that they are rectified. For
5 The City and County of Denver creates a similar general right
of entry for all of its inspections: “Inspectors and investigators
shall be permitted to have access to licensed premises at all times,
in the course of their duties, concerning the enforcement of the
Charter, ordinances of the city and rules and regulations
promulgated pursuant and thereto.” Denver, Colo., Mun. Code
§ 32-17(a).
Onsite access to buildings is routine. See, e.g., City of
Milwaukee, Wis., Code of Ord. § 222-4 (“[T]he commissioner or
his duly authorized representative may enter all buildings and
premises and all parts thereof, except occupied dwellings, in
order to make an inspection, reinspection, observation,
examination, or test of the electrical equipment or wiring
contained therein ….”); City of Madison, Wis., Code of Ord.
§ 19.08(2)(b) (“The Electrical Inspectors shall make inspections of
all electrical wiring and equipment [and] shall have the right to
enter any building during reasonable hours in the discharge of
their duties ….”).
6
7
example, elevator inspections minimize the risk of
death and serious injury from accidents. In 2018, a
routine inspection performed by the Cook County
Department of Building and Zoning revealed that the
lone elevator in a six-story condominium was unsafe
for use. The elevator was immediately taken out of
service, but subsequent inspections revealed that the
property manager had failed to repair the dangerous
condition and bring the elevator back online, leaving
the (mostly elderly) residents with no working
elevator. Ultimately, the Cook County State’s
Attorney had to obtain a temporary restraining order
directing that the elevator be repaired. See County of
Cook v. Landings Condominium Ass’n Bldg. E, Case
No. 19 MI 400266 (Cook Cnty. Cir. Ct. Feb. 6, 2019).
Beyond addressing whether buildings are generally
safe for occupancy, these inspection programs can help
to identify other specific threats to health and safety.
For example, in recent years, the County of Santa
Clara shut down nine illegal massage businesses
because of building code violations. The County then
partnered with community-based organizations to
address the needs of the workers at these illegal
businesses, many of whom may have been victims of
human trafficking. In the City of Oakland, building
and fire inspections have uncovered often horrific and
dangerous living conditions, prompting the city
attorney to take enforcement action to protect tenants
and others in the community. See, e.g., Compl. ¶¶ 2440, People of the State of California & City of Oakland
v. Crear, Case No. RG 18918472 (Super. Ct. Alameda
Cnty. Aug. 27, 2018).
More broadly, local governments regularly permit
entry onto private property to protect vulnerable
populations from exploitation, abuse, and other harm,
8
whether in the home or in the workplace. The City of
Houston, for instance, authorizes peace officers to
enter massage parlors to conduct inspections pursuant
to Texas state law. See City of Houston, Tex., Code of
Ord. § 28-370. 7 The City of Milwaukee authorizes its
health department to inspect a property “whenever a
child who lives in or visits the property is identified
with a blood lead level” requiring “environmental
intervention.” City of Milwaukee, Wis., Code of
Ord. § 66-20(4). Moreover, the County of Santa Clara
requires that foster parents serving the approximately
1,750 children and youth under County supervision
agree to regular social worker entry as a condition of
licensure and placement of children in foster care.
Because, as this Court has recognized, “surprise is
crucial” to the success of certain regulatory regimes,
New York v. Burger, 482 U.S. 691, 710 (1987), the
County permits (and in some instances requires)
unannounced visits to foster care homes.
These types of inspections go well beyond the
narrow exceptions to the Takings Clause outlined by
Petitioners’ amici, such as abating an existing
nuisance, addressing an imminent danger, or
engaging in criminal law enforcement. See, e.g.,
Oklahoma Br. 18-24; U.S. Br. 30. Those exceptions—
which may rest on (for example) complex distinctions
between what counts as an “imminent” danger—
would invite, rather than avoid, “arbitrary linealso City of Columbus, Ohio, Ord. Code § 540.10 (“No
registration to operate a massage or bath establishment shall be
issued, renewed or continued unless an inspection discloses that
the establishment complies” with certain requirements); City of
Oakland, Cal., Mun. Code § 5.36.170 (“City or county employees
charged with the enforcement of this chapter may enter the
premises of any massage establishment during regular business
hours as may be necessary in performance of their duties.”).
7 See
9
drawing.” Pet. Br. 16. Equally unavailing is the
Chamber of Commerce’s related assertion that “core
governmental functions” are “generally lawful” under
the unconstitutional conditions doctrine, “which
permits the government to condition grants of licenses
on grantees’ willingness to allow reasonable
inspections.” U.S. Chamber of Commerce Br. 18; see
also U.S. Br. 31-33. To be sure, local governments
often require consent to enter property as a condition
of a license or permit, but they also routinely
implement regulations authorizing entry onto private
property apart from any licensing requirement. See,
e.g., City of Cincinnati, Ohio, Ord. Code § 604-11
(authorizing access to buildings and premises for the
purpose of rat control inspections); City of Los
Angeles, Cal., Mun. Code § 161.601 (authorizing entry
onto residential rental properties between 8:00 a.m.
and 6:00 p.m.); City of Minneapolis, Minn., Ord. Code
§ 216.60 (authorizing inspection of any water well
supply). In any event, Petitioners should not be
permitted to dictate the manner in which local
governments choose to regulate, and amici should not
be forced to adopt licensing schemes to implement
reasonable regulations to protect the health, safety,
and welfare of their residents.
B. Local governments authorize private
individuals to enter private property to
achieve regulatory goals.
Local governments also frequently partner with
private entities to provide essential services or to
enforce critical laws. In many of these public-private
partnerships, private entities are authorized to enter
onto private property for important public policy
reasons.
10
For example, many foster-care programs
administered by local and state governments rely
heavily on partnerships with private organizations to
protect children and keep families intact. CASA/GAL
is one such private organization that works in 49
states to recruit and train volunteer court-appointed
special advocates for children “so every child who has
experienced abuse or neglect can be safe, have a
permanent home, and the opportunity to thrive.” 8 The
duties of these court-appointed special advocates
include both announced and unannounced home
visits. 9
In addition, local governments partner with
private entities to protect residents from substandard
housing. The County of Santa Clara, for instance,
retains private contractors to perform housing quality
standards inspections for its supportive housing
programs.
Similarly, local governments in many states
contract out probation services to private entities. See,
e.g., Colo. Rev. Stat. § 18-1.3-202(2); Fla. Stat. Ann.
§ 948.15; Ga. Comp. R. & Regs. 503-1.02; Mo. Rev. Stat
§ 559.600; Utah Admin. Code R156-50-601. Because
statutes in those states empower courts to mandate
home visits by probation officers, access to private
property is necessary to provide probation services.
Our
Mission,
National
CASA/GAL
Ass’n,
https://nationalcasagal.org/our-work/mission-vision-and-values/
(last visited February 12, 2021).
8
CASA: Court Appointed Special Advocates for Children,
https://www.duboiscountyin.org/document_center/casa/600051.p
df (last visited February 12, 2021).
9
11
See Colo. Rev. Stat. § 18-1.3-204(2)(a)(X); Fla. Stat.
Ann. § 948.03(1)(b); Ga. Code Ann. § 42-8-35(a)(4).
Many local governments also partner with private
entities, whether non-profit or for-profit, to provide
emergency medical services. See generally Nat’l
Highway Traffic Safety Admin., EMS System
Demographics tbl. 4 (June 2014) (indicating that a
substantial number of EMS providers are private),
available
at
https://www.ems.gov/pdf/National
_EMS_Assessment_Demographics_2011.pdf; see also,
e.g., Hennepin County, Minn., Ord. No. 9, § 3(3)
(defining “Ambulance provider” to include “any
individual, firm, partnership, corporation, trustee,
association, or unit of government, licensed … to
provide ambulance services”). Indeed, private EMSproviders frequently serve as paramedic providers and
provide EMS transport in many of the country’s
largest cities. For example, the County of Santa Clara,
which includes the tenth largest city in the United
States (the City of San José) contracts with
Rural/Metro Ambulance for nearly all of the county’s
9-1-1 ambulance services. These private EMSproviders, like public providers, often need to access
private property to respond to medical emergencies.
C. Local governments routinely limit the
right to exclude to further important
regulatory objectives.
Petitioners’ nebulous rule not only endangers the
governmental inspection regimes outlined above; it
also invites litigants to challenge any restriction on a
private property owner’s right to exclude as a per se
taking. Pet. Br. 17 (“The right to exclude is too
important to be left at the mercy of government
officials who will inevitably seek as much public access
12
as possible without paying for it.”). Many important
local regulatory efforts, including those outside the
context of governmental inspections, impose limits on
the right to exclude.
Myriad local housing and public accommodations
regulations, for example, prohibit property owners
from denying housing or services to any individual
based upon unlawful discrimination. See, e.g., Cook
County, Ill., Code of Ord. § 42-37 (public
accommodations ordinance); id. § 42-38 (fair housing
ordinance); City of Seattle, Wash., Mun. Code
§ 14.06.030 (public accommodations ordinance); id.
§ 14.08.040 (fair housing ordinance). In fact, several
amici go beyond federal and state protections to
prohibit such discrimination on the basis of source of
income, criminal history, marital status, political
ideology, and other categories. 10 These regulations are
plainly constitutional under the Takings Clause. See
Heart of Atlanta Motel v. United States, 379 U.S. 241,
258-59 (1964) (“[A]ppellant has no ‘right’ to select its
guests as it sees fit, free from governmental
regulation.”). But Petitioners’ ill-defined per se rule
e.g., Cook County, Ill., Code of Ord. § 42-31 (defining
“unlawful discrimination” to include discrimination on the basis
of, among other things, “ancestry, sexual orientation, marital
status, parental status, military discharge status, source of
income, gender identity or housing status”); id. § 42-38(b)
(prohibiting housing discrimination based upon covered criminal
history); City of Seattle, Wash., Mun. Code § 14.06.020(L)
(defining “discrimination” to include discrimination on the basis
of, among other things, “marital status, parental status, sexual
orientation, gender identity, political ideology, honorably
discharged veteran or military status [or] participation in a
Section 8 program”); id. § 14.08.020 (similarly defining
discrimination with respect to unfair housing discrimination).
10 See,
13
risks emboldening private property owners to advance
the (specious) argument that local governments must
pay them whenever civil rights laws require them to
serve an individual whom they would prefer not to
serve, in exchange for the right to do business locally.
And even if courts reject these baseless and disruptive
lawsuits, local governments would still be forced to
shoulder substantial litigation costs. 11
Petitioners’ proposed rule would also invite
enterprising litigants to challenge regulations
requiring the installation of devices intended to
protect public safety. Consistent with widely accepted
safety standards, local governments regularly require
property owners to install and maintain certain fire
safety instruments, ranging from fire alarm systems
and extinguishers to sprinklers and standpipes. See,
e.g., Cook County, Ill., Code of Ord. § 102-104(4)10;
County of Santa Clara, Cal., Ord. Code § C3-6; City of
Seattle, Wash., Building Code §§ 703.4, 907.2. These
regulations are carefully tailored to protect residents
from natural disasters—including earthquakes,
For similar reasons, Petitioners’ rule could even inspire
constitutional challenges to state statutes and regulations that
require hospitals to provide critical health care services, or health
care discounts, to low-income patients. See, e.g., Cal. Health &
Safety Code § 127405 (requiring hospitals to have a discount
payment program and charity care policy for low-income
patients); 210 Ill. Comp. Stat. Ann. § 89/10 (requiring Illinois
hospitals to give certain uninsured patients a discount on their
medical bills); 10-144-150 Me. Code. R. §§ 1.01(A), 1.02(C) (“No
hospital shall deny services to any Maine resident solely because
of the inability of the individual to pay for those services.”); see
also Franklin Mem’l Hosp. v. Harvey, 575 F.3d 121, 126 (1st Cir.
2009) (holding that Maine statute did not constitute a per se
taking).
11
14
wildfires, and freezing temperatures. See City of
Seattle, Wash., Building Code §§ 1604.8.2, 2106.1
(specifying design features in earthquake zones);
County of Santa Clara, Cal., Ord. Code § C3-8
(requiring special fire-retardant roof coverings in
areas affected by wildfires); Cook County, Ill., Code of
Ord. § 102-151 (requiring heating systems in localities
prone to frequent winter freezing).
In addition, local governments routinely require
businesses to post signage to promote public health
and safety. For instance, Cook County requires
tobacco product retailers to post signs warning that it
is a violation of law to sell tobacco products to any
person under the age of eighteen. See Cook County,
Ill., Code of Ord. § 54-305(f); see also County of Santa
Clara, Cal., Ord. Code § B11-578(d) (similar
requirements for anyone under the age of twenty-one).
Similar regulations abound for products including
alcohol, see, e.g., Cook County, Ill., Code of Ord. § 6-28,
fireworks, see, e.g., Wash. State Code § 70.77.580, and
firearms, see, e.g., 430 Ill. Comp. Stat. Ann. § 66/65(d),
and local governments frequently require businesses
to post signs regarding worker protections like the
minimum wage or earned sick leave, see, e.g., Cook
County, Ill., Code of Ord. §§ 42-3, 42-19; City of
Seattle, Wash., Mun. Code § 14.19.045. Although
these workaday regulations fall well within
constitutional bounds, Petitioners’ revolutionary per
se rule could open the floodgates to an onslaught of
time-consuming and costly, albeit baseless, takings
challenges.
15
D. Petitioners’ proposed rule would
impose overwhelming burdens on local
governments.
Petitioners’ theory of takings liability would permit
private property owners to contest and demand
compensation for each of the essential exercises of
local government police powers outlined above. The
extraordinary burdens imposed on local governments
would be crippling.
For starters, Petitioners’ position seemingly
requires local governments to compensate all property
owners falling within the scope of the regulations
discussed above. See Pet. Br. 14 (arguing that the
Access Regulation authorizes a taking “from every
agricultural business in the state”). Beyond those
prohibitive costs, local governments might need to
develop new mechanisms to evaluate the multiplicity
of new takings claims that will follow from Petitioners’
novel rule. For example, governments may need to
employ, or partner with, appraisers to make
individualized assessments of the fair market value of
each alleged taking. And they will need to bear the
added costs of defending against an avalanche of
federal takings lawsuits, including paying attorney’s
fees in some instances.
This Court has previously refused to impose per se
takings liability when doing so “would undoubtedly
require changes in numerous practices that have long
been considered permissible exercises of police power.”
Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l
Planning Agency, 535 U.S. 302, 335 (2002). There is no
reason to depart from that principle. Petitioners’ new
per se rule would endanger local governance, by
precipitating challenges to long-settled regulation of
16
health, safety, and welfare and by imposing untenable
costs on routine exercises of local government police
powers.
II.
Petitioners’ Sweeping Expansion of the
Per Se Takings Doctrine Would Disturb
Well-Established Legal Principles.
In addition to threatening the viability of
innumerable
local
government
regulations,
Petitioners’ far-reaching rule would mark a radical
departure from this Court’s settled precedent under
the Takings Clause and the Fourth Amendment.
A. Petitioners’ proposed rule is flatly
inconsistent
with
this
Court’s
longstanding takings jurisprudence.
Under this Court’s precedent, claims that a
government regulation effects a taking are generally
evaluated under a flexible standard. The per se
takings doctrine applies only to “narrow categories” of
government action. Lingle v. Chevron U.S.A. Inc., 544
U.S. 528, 538 (2005). “The paradigmatic taking
requiring just compensation is a direct government
appropriation or physical invasion of private
property.” Id. at 537; see also Horne v. Dep’t of Agric.,
576 U.S. 350, 357 (2015) (holding that a “classic taking
[is one] in which the government directly appropriates
private property for its own use”) (alteration in
original) (internal quotation marks omitted).
Beyond this “paradigmatic taking,” this Court has
applied a per se rule in two exceedingly rare
circumstances. First, the Court has recognized that “a
permanent physical occupation of property authorized
by government is a taking.” Ark. Game & Fish Comm’n
v. United States, 568 U.S. 23, 31 (2012) (citing Loretto
17
v. Teleprompter Manhattan CATV Corp., 458 U.S. 419,
426 (1982)). So, for instance, a government regulation
requiring private property owners to grant the public
“a permanent and continuous right of access to and
fro” would constitute a per se taking. Nollan v. Cal.
Coastal Comm’n, 483 U.S. 825, 832 (1987); see also
Dolan v. City of Tigard, 512 U.S. 374, 394 (1994)
(holding that a “permanent recreational easement” on
private property that “eviscerate[s]” the owner’s “right
to exclude” constitutes a per se taking). But mere
temporary invasions on private property would not.
See Loretto, 458 U.S. at 428. Second, the Court has
held that “a regulation that permanently requires a
property owner to sacrifice all economically beneficial
uses of his or her land” is a per se taking. Ark. Game &
Fish Comm’n, 568 U.S. at 32 (emphasis added) (citing
Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019
(1992)).
“Outside these two relatively narrow categories,”
claims under the Takings Clause “are governed by the
standards set forth in” Penn Central Transportation
Co. v. City of New York, 438 U.S. 104 (1978). Lingle,
544 U.S. at 538. Under the Penn Central test, courts
must evaluate (among other things) the “character of
the action and [] the nature and extent of the
interference with rights.” Penn Central, 438 U.S. at
130; see also Murr v. Wisconsin, 137 S. Ct. 1933, 1942
(2017) (observing that the Court’s takings
jurisprudence “has been characterized by ‘ad hoc,
factual inquiries, designed to allow careful
examination and weighing of all the relevant
circumstances’”) (quoting Tahoe-Sierra, 535 U.S. at
322). That multi-factor test is well-suited to balancing
the public and private interests at stake in the wide
range of settings in which local governmental
18
regulation arises. See Murr, 137 S. Ct. at 1951
(Roberts, C.J., dissenting) (observing that the Court’s
regulatory takings approach “strikes a balance
between property owners’ rights and the government’s
authority to advance the common good” and ensures
“that [property owners] will be compensated for
particularly onerous regulatory actions, while
governments maintain the freedom to adjust the
benefits and burdens of property ownership without
incurring crippling costs from each alteration”).
Indeed, courts across the country have long applied
the Penn Central test in evaluating claims under the
Takings Clause. See, e.g., Hilton Washington Corp. v.
District of Columbia, 777 F.2d 47, 49 (D.C. Cir. 1985)
(applying Penn Central test in upholding hotel taxistand regulations against takings challenge); Naegele
Outdoor Advert., Inc. v. City of Durham, 803 F. Supp.
1068, 1074 (M.D.N.C. 1992) (holding regulation of
billboards not a taking under Penn Central), aff’d, 19
F.3d 11 (4th Cir. 1994); see also Rose Acre Farms, Inc.
v. United States, 559 F.3d 1260, 1282-83 (Fed. Cir.
2009) (applying Penn Central in upholding federal
salmonella regulations against takings challenge);
Franklin Mem’l Hosp., 575 F.3d at 126-30 (concluding
that state requirement that hospitals provide free care
to low income patients was not per se taking and
upholding under Penn Central).
Instead of respecting those bedrock principles,
Petitioners invite this Court to toss them aside and
adopt a sweeping rule that would treat any
interference with a private property owner’s right to
exclude as a per se taking. This Court should reject
that misguided invitation to overhaul its established
precedent, for several reasons.
19
To begin, Petitioners’ proposed rule finds no
support in this Court’s precedent and would
dramatically expand the “narrow categories” of per se
takings. Under Petitioners’ view, a government
regulation that authorizes a minimal, time-limited
entry on private property sits on the same
constitutional footing as a land exaction requiring
individuals to permanently open the beachfront
around their home to the public. But that one-size-fitsall approach to per se takings is flatly inconsistent
with this Court’s precedent, which draws a clear
distinction between “permanent physical occupations”
and “temporary invasions of property.” Ark. Game &
Fish Comm’n, 568 U.S. at 36.
Petitioners’ novel rule would also impose
significant costs on local governments, thereby
undermining their efforts to protect the health, safety,
and welfare of residents. As explained above, see supra
Part I, Petitioners’ broad per se rule could subject
those core governmental regulatory functions (and
many others) to potential takings liability, and would
force local governments to defend against a new wave
of protracted federal litigation seeking compensation
for any regulation that has any effect on a private
property owner’s right to exclude.
Finally, and relatedly, Petitioners’ proposed rule
will encourage enterprising litigants to recharacterize
run-of-the-mill exercises of the police power as
“easements.” That is precisely what happened in this
case. Petitioners portray the Access Regulation as an
“easement from every agricultural business in the
state for the benefit of union organizers.” Pet. Br. 14.
That is not correct. Instead, the Access Regulation was
implemented for the benefit of workers. See Cal. Code
20
Regs. tit. 8, § 20900 (“Labor Code Section 1140.2
declares it to be the policy of the State of California to
encourage and protect the right of agricultural
employees to full freedom of association, selforganization, and designation of representatives of
their own choosing.”). And “establishing … worker
rights remains well within the traditional police power
of the states.” Curtis v. Irwin Indus., Inc., 913 F.3d
1146, 1152 (9th Cir. 2019) (Ikuta, J.) (internal
quotation marks omitted). This Court should not
reward Petitioners’ sleight of hand by endorsing an
unprecedented per se takings rule. That maneuver will
not only upend decades of settled case law, but will
also incentivize other private property owners to label
every minor regulatory burden an “easement” to
trigger takings liability. Under Petitioners’ rule, for
instance, a private property owner in Cook County
could argue that the Building Code imposes a
compensable “easement” simply because it authorizes
the Building Commissioner to enter into a building at
“any reasonable hour” for enforcement purposes. Cook
County, Ill., Code of Ord. § 102-105(4)(3)(b)(4)(a).
Likewise, a business owner in the County of Santa
Clara
could
argue
that
the
Agricultural
Commissioner’s authority to enter private property to
inspect out-of-state produce constitutes an easement,
see Cal. Food & Agric. Code § 5023, as could a foster
parent with respect to a child-welfare advocate’s
authority to make a home visit. This Court should not
adopt a theory that would upend this Court’s wellestablished takings jurisprudence and could subject
local governments to crushing liability.
21
B. Petitioners’ proposed rule would inject
uncertainty and confusion into judicial
review of local government action
under the Fourth Amendment.
The fact that Petitioners’ per se rule collides with
this Court’s longstanding takings precedent is reason
enough to reject it. But there is more. Expanding the
per se takings doctrine would also have collateral
effects on this Court’s Fourth Amendment
jurisprudence.
As explained above, local governments enforce a
wide range of civil regulations through entry onto
private property. See supra Part I.A. The
constitutionality of these entries is ordinarily
evaluated under the Fourth Amendment. See See v.
City of Seattle, 387 U.S. 541, 545 (1967) (holding that
Fourth
Amendment
administrative
subpoena
requirements apply to “investigative entry upon
commercial establishments”). The Fourth Amendment
prohibits “unreasonable searches and seizures.” U.S.
Const. amend. IV. The touchstone of the Fourth
Amendment analysis is reasonableness. See Camara,
387 U.S. at 531. Like the Penn Central test, this
relatively
flexible
“reasonableness”
standard
accommodates the wide range of circumstances in
which civil regulatory inspections arise—and the
varying scope of property and privacy interests
implicated by those searches.
A per se rule that any government entry upon a
property constitutes a taking would be entirely
inconsistent with the flexible approach contemplated
by this Court’s Fourth Amendment jurisprudence.
Under Petitioners’ proposed approach, even
governmental inspection programs that require
22
warrants based on probable cause, and thus bear the
quintessential hallmarks of reasonableness under the
Fourth Amendment, would threaten to expose
governments to liability under the Fifth Amendment.
Petitioners’ State amici contend that “reversal in
this case would not impair government’s ability to
conduct searches, inspections, and the like” because
“[a]n entry cannot be both a law enforcement search
and a taking” under the Constitution. Oklahoma Br.
17; see also U.S. Chamber of Commerce Br. 24 (“When
the framers of the Bill of Rights separately enacted the
Fourth and Fifth Amendments, they recognized that
legitimate law enforcement searches were governed by
the reasonableness requirements of the former, and
not the compensation requirement of the latter.”). But
that assertion—which Petitioners have not expressly
endorsed—does little to resolve the uncertainty and
confusion that Petitioners’ proposed per se takings
rule would inject into the constitutional analysis of
these types of inspection regimes.
As an initial matter, this Court has repeatedly held
that “[c]ertain wrongs affect more than a single right
and, accordingly, can implicate more than one of the
Constitution’s commands.” Soldal v. Cook Cnty., Ill.,
506 U.S. 56, 70 (1992). And at least one circuit court
has permitted a plaintiff to proceed with a claim
invoking both the Fourth and Fifth Amendments. See
Presley v. City of Charlottesville, 464 F.3d 480, 487
(4th Cir. 2006). While the Access Regulation in this
case violates neither right, the Court should not ignore
the possible fallout implications that Petitioners’
takings theory has on the Fourth Amendment.
More broadly, Petitioners’ per se takings rule will
invite litigants to engage in fine line-drawing
23
regarding the nature of particular inspections in the
context of other governmental regulatory regimes.
Petitioners’ State amici, for example, appear to argue
that the line between a search that is properly
analyzed under the Fourth Amendment and a taking
that is properly analyzed under the Fifth Amendment
is whether the government’s physical entry onto the
property is for the purpose of obtaining information.
See Oklahoma Br. 16 (citing United States v. Jones,
565 U.S. 400, 404-07 (2012)). Even assuming that
distinction were appropriate, government inspections
often serve both to gather information about potential
violations and to address or ameliorate those
violations. For example, a social services caseworker
on a home visit may seek to identify criminal or
program violations and may also seek to inform or
educate parents. See, e.g., Wyman v. James, 400 U.S.
309, 317 (1971) (“[T]he caseworker’s posture in the
home visit is perhaps, in a sense, both rehabilitative
and investigative.”). Likewise, a food safety inspector
may identify regulatory violations and also generate
information regarding compliance for subject
businesses. And an animal control officer may identify
violations of local ordinances, while also abating
dangers posed by certain animals. Under Petitioners’
rule, nothing would stop litigants in other cases from
arguing that a government regulation constitutes both
a taking under the Takings Clause and a search under
the Fourth Amendment.
24
***
Petitioners’ proposed rule poses severe risks to core
governmental functions that protect the health,
safety, and welfare of local communities; threatens
productive public-private partnerships that further
those core functions; and would introduce chaos into
this Court’s finely tuned precedents governing the
Takings Clause and the Fourth Amendment. This
Court should not follow Petitioners down that deeply
mistaken path.
25
CONCLUSION
For the foregoing reasons, the judgment below
should be affirmed.
Respectfully submitted,
PETER S. HOLMES
City Attorney
JEREMIAH E. MILLER
ERICA R. FRANKLIN
DERRICK DE VERA
Seattle City Attorney’s
Office
701 Fifth Avenue, Ste 2050
Seattle, WA 98104
Counsel for City of Seattle
JAMES R. WILLIAMS
County Counsel
TONY LOPRESTI
MICHAEL L. ROSSI
MARY E. HANNA-WEIR
JEREMY A. AVILA
Office of the County Counsel
70 W. Hedding St.
East Wing, 9th Floor
San José, CA 95110
Counsel for County of Santa
Clara
Dated: February 12, 2021
JONATHAN B. MILLER
Counsel of Record
LIJIA GONG
MICHAEL ADAME
MARTHA CARDENAS
DELGADILLO
Public Rights Project
4096 Piedmont Avenue #149
Oakland, CA 94611
(646) 831-6113
jon@publicrightsproject.org
Counsel for Amici Curiae
RAYMOND P. TOLENTINO
MAXIMILLIAN L. FELDMAN
Kaplan Hecker & Fink LLP
350 Fifth Avenue, Ste 7110
New York, NY 10118
Counsel for City of Seattle
JESSICA M. SCHELLER
LAUREN E. MILLER
Cook County State’s
Attorney’s Office
500 Richard J. Daley Center
Chicago, IL 60602
Counsel for Cook County
26
ADDITIONAL COUNSEL
ESTEBAN A.
AGUILAR, JR.
City Attorney
One Civic Plaza NW
4th Floor, Room 4072
Albuquerque, NM 87102
Attorney for the City of
Albuquerque, New Mexico
ANNE L. MORGAN
City Attorney
P.O. Box 1546
Austin, TX 78767
Attorney for the City of
Austin, Texas
CELIA MEZA
Acting Corporation
Counsel
2 N. LaSalle Street
Suite 580
Chicago, IL 60602
Attorney for the City of
Chicago, Illinois
ANDREW W. GARTH
City Solicitor
801 Plum Street
Room 214
Cincinnati, OH 45202
Attorney for the City of
Cincinnati, Ohio
CHRISTOPHER J. CASO
City Attorney
1500 Marilla Street
Room 7DN
Dallas, TX 75201
Attorney for the City of
Dallas, Texas
KRISTIN M. BRONSON
City Attorney
1437 Bannock Street
Room 353
Denver, CO 80202
Attorney for the City and
County of Denver,
Colorado
CHRISTIAN D.
MENEFEE
County Attorney
1019 Congress
Houston, Texas 77002
Office of the Harris
County, Texas Attorney
MICHAEL N. FEUER
City Attorney
200 N. Main Street
8th Floor
Los Angeles, CA 90012
Attorney for the City of
Los Angeles, California
27
MARGARET C. DAUN
Corporation Counsel
901 N. 9th Street
Room 303
Milwaukee, WI 53233
Attorney for Milwaukee
County, Wisconsin
ROBERT TAYLOR
Interim City Attorney
1221 SW Fourth Avenue
Room 430
Portland, OR 97204
Attorney for the City of
Portland, Oregon
JAMES R.
ROWADER, JR.
City Attorney
City Hall, Room 210
350 S. Fifth Street
Minneapolis, MN 55415
Attorney for the City of
Minneapolis, Minnesota
LYNDSEY M. OLSON
City Attorney
400 City Hall
15 West Kellogg
Boulevard
Saint Paul, MN 55102
Attorney for the City of
Saint Paul, Minnesota
BARBARA J. PARKER
City Attorney
One Frank Ogawa Plaza
Sixth Floor
Oakland, CA 94612
Attorney for the City of
Oakland, California
BARBARA THOMPSON
County Counsel
481 4th Street, #2
Hollister, CA 95023
Attorney for County of
San Benito, California
DIANA P. CORTES
Acting City Solicitor
1515 Arch Street
17th Floor
Philadelphia, PA 19102
Attorney for the City of
Philadelphia,
Pennsylvania
GEORGE S. CARDONA
Interim City Attorney
1685 Main Street
Suite 310
Santa Monica, CA 90401
Attorney for the City of
Santa Monica, California
APPENDIX
App. i
TABLE OF APPENDICES
Appendix A – List of Amici Local
Governments...................................................... App. 1
Appendix B – City and County Ordinances and
Regulations ........................................................ App. 2
App. 1
APPENDIX A
(List of Amici Local Governments)
City of Seattle, Washington
Cook County, Illinois
County of Santa Clara, California
City of Albuquerque, New Mexico
City of Austin, Texas
City of Chicago, Illinois
City of Cincinnati, Ohio
City of Dallas, Texas
City and County of Denver, Colorado
City of Los Angeles, California
Milwaukee County, Wisconsin
City of Minneapolis, Minnesota
City of Oakland, California
City of Philadelphia, Pennsylvania
City of Portland, Oregon
City of St. Paul, Minnesota
County of San Benito, California
City of Santa Monica, California
App. 2
APPENDIX B
The following city and county ordinances and
regulations are representative examples of the types
of inspectional regimes in place across the county.
Animal and Pet Control
Jurisdiction
Citation Short description
City and
County of
Denver, CO
Rev.
Muni.
Code
Sec.
8-103
The Department of
Public Health &
Environment shall
inspect animal shelters,
kennels, pet grooming
shops, pet hospitals,
and pet shops to ensure
compliance with
licensure requirements.
City of
Madison, WI
Gen.
Ord. Sec.
7.29
The Director of Public
Health has the right to
inspect or to order the
inspection of any
premises where fowl
are kept.
City of
Oakland, CA
Gen.
Ord. Sec.
6.08.160
The Officer-In-Charge
of the Animal Control
Section or their
representative has the
right to inspect the
property where any
potentially dangerous
App. 3
Jurisdiction
Citation Short description
dog is kept after giving
24 hours written notice.
County of
Santa Clara,
CA
Ord.
Code
Sec. B3175.
The Manager of Animal
Control or their
representative has the
right to inspect any
animal facility at any
reasonable time.
Building and Construction
Jurisdiction
Citation Short description
City of
Columbus,
OH
Gen.
Ord. Sec.
1145.60
The Director of Public
Utilities has the right
to enter any premise
where wastewater/
stormwater is
generated or treated,
chemicals are stored, or
where records or
monitoring equipment
is kept, to ensure
compliance with code.
City and
County of
Denver, CO
Rev.
Muni.
Code
Sec. 10141
The Manager of
Community Planning &
Development shall
inspect neglected or
derelict properties at
App. 4
Jurisdiction
Citation Short description
least quarterly to
ensure compliance with
code.
City of
Milwaukee,
WI
Code of
Ord. Sec.
8-205
The Commissioner of
Building Inspection
must inspect all water
and sewage plumbing
work prior to
connecting to sewage or
water supply.
City of
Oakland, CA
Gen.
Ord. Sec.
8.54.310
Foreclosed properties
must be inspected to
ensure compliance with
code.
Entertainment Venues
Jurisdiction
Citation Short description
Cook County,
IL
Code of
Ord. Sec.
102105(4)(3)
(b)
(3)(b.2)
The Building
Commissioner must
inspect all buildings
and structures used for
entertainment in an
amusement park before
they are open to the
public.
App. 5
Jurisdiction
Citation Short description
City of Dallas, Code of
TX
Ord. Sec.
9A-12.
Code compliance,
police, and fire
department
representatives may
inspect billiard halls
during business hours.
City of
Portland, OR
City
Code
Sec.
8.20.070
The Health Officer
must inspect public
bathhouses, public and
semi-public swimming
pools, and make
sanitary tests of all
public and semi-public
swimming pools from
time to time.
City of St.
Paul, MN
Code of
Ord. Sec.
415.08
City health, building,
and license inspectors,
and police officers may
inspect licensed
theaters anytime any
person is present on the
premises.
App. 6
Environment
Jurisdiction
Citation Short description
City of
Albuquerque,
NM
Code of
Ord. Sec.
9-5-1-5
The Air Quality Control
Board Environmental
Health Department
may enter any private
or public property,
except private
residences, that the
Department has
reasonable cause to
believe is or will
become a source of air
contaminants
contributing to air
pollution.
City and
County of
Denver, CO
Rev.
Muni.
Code
Sec.
4-8
The Department of
Public Health is
authorized to inspect
all air contamination
sources whenever
necessary to determine
the quantity and
character of air
pollutants.
City of
Portland, OR
City
Code
Sec.
10.50
The Director of
Developmental Services
may inspect wherever it
is necessary to control
the creation of sediment
App. 7
Jurisdiction
Citation Short description
and prevent erosion due
to construction.
County of San Code of
Benito, CA
Ord. Sec.
21.01.13
6
The Health
Department shall have
access to the recycling
areas outside of any
dwelling unit at any
time without prior
notice as a condition for
granting the issuance of
a building permit.
Fire and Emergency
Jurisdiction
Citation Short description
City of
Cincinnati,
OH
Mun.
Code
Sec.
1201-17
The Fire Chief must
inspect premises as
often as necessary to
identify and correct any
conditions liable to
cause fire and
violations of the fire
code.
City of
Columbus,
OH
Gen.
Ord. Sec.
2501.05
The Fire Chief may
enter any premises to
inspect it for
compliance with the fire
code or to enforce the
App. 8
Jurisdiction
Citation Short description
code at any reasonable
time.
Harris
County, TX
Fire
Code
Sec.
104.3
The Fire Code Official
may enter any premises
to inspect it for
compliance with the fire
code or to enforce the
code at any reasonable
time.
City of St.
Paul, MN
Code of
Ord. Sec.
58.05
The Department of
Safety and Inspections
is authorized to enter
any dwelling at any
reasonable time to
inspect smoke
detectors.
Food Safety
Jurisdiction
Citation Short description
City of
Albuquerque,
NM
Code of
Ord. Sec.
9-6-16(B)
The Mayor’s designated
enforcement authority,
shall be permitted to
enter any food
establishment for the
purpose of making
inspections to
determine compliance
App. 9
Jurisdiction
Citation Short description
with the food sanitation
code.
City of
Cincinnati,
OH
Mun.
Code
Sec. 6031
The Health
Commissioner may
enter and inspect any
premises where live
animals and animal
products for
consumption are held,
prepared, slaughtered,
or disposed of.
City of
Madison, WI
Gen.
Ord. Sec.
7.08(5)
The Director of Public
Health must inspect
every restaurant at
least once every 12
months, and make
subsequent inspections
if a violation is found to
ensure compliance.
City of
Milwaukee,
WI
Code of
Ord. Sec.
68-9-2.3
The Health
Department must
inspect all licensed food
dealers at least once
every 12 months, and
make subsequent
inspections if a
violation is found to
ensure compliance.
App. 10
Jurisdiction
Citation Short description
City of
Oakland, CA
Gen.
Ord. Sec.
8.16.050
Milk inspectors have
the authority to enter
and have full access to
any premises or place
where dairy products
are stored, processed, or
transported in.
Housing and Hotels
Jurisdiction
Citation Short description
City of
Boston, MA
Mun.
The Commissioner of
Code
Housing Inspection
Sec. 9-1.2 shall inspect places of
human habitation to
enforce the housing
code.
City of Dallas, Code of
TX
Ord. Sec.
8A-20(b)
The Director of the
department designated
by the city manager
may inspect any
boarding home facility
for violations with this
code or with any other
city ordinances.
App. 11
Industrial Safety
Jurisdiction
Citation Short description
Cook County,
IL
Code of
Ord. Sec.
30-211
The Department of
Environment and
Sustainability may
conduct inspections of
all commercial and
industrial sites.
City of
Columbus,
OH
Gen.
Ord. Sec.
3392.13
The Public Health
Director can order
inspection of any junk
yard, salvage yard, or
impound to determine
compliance with the
code.
City of Dallas, Code of
TX
Ord. Sec.
4955.3(a)
Water industrial users
are to be inspected at
least once each year.
County of San Code of
Benito, CA
Ord. Sec.
15.05.01
3
The Water District
shall have the right to
enter upon any
premises at all
reasonable times to
make inspections and
tests of groundwater
aquifers.
App. 12
Liquor and Controlled Substances
Jurisdiction
Citation Short description
Cook County,
IL
Code of
Ord. Sec.
6-5(a)(2)
The Liquor Control
Commissioner has the
power to enter licensed
premises where liquor
is sold to or consumed
by the public.
City of
Oakland, CA
Planning
Code Sec.
17.156.2
40
Officials responsible for
enforcing the Planning
Code may enter and
inspect any premises
that sell alcohol.
Pest Control
Jurisdiction
Citation Short description
City of
Cincinnati,
OH
Mun.
Code
Sec. 60411
Inspectors of the Board
of Health have
authority to enter and
inspect any premises to
enforce rat control.
City of
Portland, OR
City
Code
Sec. 8.44
The Bureau of Insect
Control has the power
and authority to enter
any premises in the
City to determine the
presence of earwigs,
App. 13
Jurisdiction
Citation Short description
elm leaf beetles,
mosquitoes, and all
other injurious insects.
Social Services
Jurisdiction
Citation Short description
City of Dallas, Code of
TX
Ord. Sec.
33-5
City officials are
authorized to inspect
any assisted living
facility to confirm its
status and to ensure
compliance with the
Texas Health and
Safety Code.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.