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.

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