Opposition Brief — Roehsler v. Middlesex County Health Department

No. 02-1064

IN THE

Supreme Court of the United States

PETER ROEHSLER,

Petitioner,

V.

MIDDLESEX COUNTY, NEW JERSEY,

HEALTH DEPARTMENT,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI

TO THE SUPERIOR Court OF NEW JERSEY, APPELLATE DIVISION

BRIEF IN OPPOSITION

GaIL COOKSON

Counsel of Record

Rosert W. GLUCK

MANDELBAUM, SALSBURG, GOLD

Lazris, DISCENZA & STEINBERG

Attorneys for Respondent

155 Prospect Avenue

West Orange, NJ 07052

(973) 736-4000

17889] ce

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

1

TABLE OF CONTENTS

; Page

Table of Cited Authorities ......... ccc ec cecens ll

Counter-Statement of the Case ................. l

Preliminary Statement ... 2.0... 0c ccc cscs sees 1

Counterstatement of Facts b ek koe noenaawies 2

Er ee ere eee 5

OE RINE ook ics vive seenicvivenes 6

Reasons for Denying the Petition ............... 8

POINT I

The Recycling Compliance Programs Of

The Middlesex County Health Department

Conform To Statutory And Settled Consti-

CRIS IE 55k fn bee se kis ewe ve ive 8

POINT II

Middlesex County Health Department Is

Entitled By Statute To Its Fees Upon.

Prevailing On Petitioner’s Challenge To The

NN i PETA in ed ion os dace <ne wees 14

tae c aka 16

il

TABLE OF CITED AUTHORITIES

Page

CASES CITED

A.A. Mastrangelo, Inc. v. Commissioner of

Department Of Envt’l. Protection, 90 N.J. 666

CTO o> 5 v's 6 Siw dGRS VERRIER Serene 12

Atlantic Coast Demolition & Recycling, Inc. v. Bd.

Of Chosen Freeholders of Atlantic County et al.,

SO F308 FR GIGS 6s 5 054553 5S eee 13

Camara v. Municipal Court, 387 U.S. 523 (1967) ... 11

Colonnade Catering Corp. v. United States, 397 U.S.

12S) tank aide Cee 11

Donovan v. Dewey, 452 U.S. 594 (1981) ......... 1]

In re Martin, 90 N.J. 295 (1982) ............0.. 11

New Jersey Dept of Envt'l. Protection v. Duran,

251 N.J. Super. 55 (App. Div. 1991)....... .. 11-12

New Jersey Transit PBA Local 304 v. New Jersey

Transit, 147 2. TOTEM 4 ok vette ene 12

New York v. Burger, 482 U.S. 691 (1987)........ 11, 13

Southern Ocean Landfill v. Mayor of Ocean

Township, 64 N.J. 190 (1974)... ........006. 13

iil

Cited Authorities

Page

Transport Workers’ Union of Philadelphia, Local 234

v. Southeaster Pennsylvania Transp. Auth.,

884 F.2d 709 (3d-Cir. 1989) ............58.. 11,14

United States v. Biswell, 406 U.S. 311 (1972) ..... 11

UNITED STATES CONSTITUTION

I os dso ea SON VA 5S 0d kee ke 10

STATUTES CITED

I 5 10 ed's bv ve wd dw by bess 3

oe te gs Ge og 3, 10

Ne 2

NE MME aes Che bao elN ie eek ee Se ce. 12

ee ae =.. 7,14

I rn kos ces Os kas cd oles edcks 2

ES a 2 |) rr 2

Oe Be se 2

IP 65h sony c's sive vseswssuseeves 9

iv

Cited Authorities

Page

PR. ad de I Sn 0 ha cb eU eens beeeeues 3, 10

“FE Pas UE Sb Ls he ow Mee Ce ee 3

REGULATION CITED

we eS Pree eTeTER TEE eT PLETE eL 3, 10

1

COUNTER-STATEMENT OF THE CASE

PRELIMINARY STATEMENT

The recycling and solid waste laws in New Jersey govern

a pervasively regulated industry that has been a matter of

grave public concern for several decades and oft-times in

crisis. Respondent Middlesex County Health Department has

been expressly authorized by the New Jersey Department of

Environmental Protection to conduct environmental

inspections of commercial properties in order to monitor

compliance with the recycling and solid waste regulations.

This State has expended considerable time and resources to

cleanup the environment and bring the waste industries into

the modern era of recycling, proper end-use and a competitive

marketplace. New Jersey can ill afford to have further

environmental harm done by commercial and industrial

establishments that might opt for the protection of privacy

and darkness to engage in waste disposal activities.

In October 2000, Middlesex County attempted to conduct

a routine recycling inspection of an industrial complex owned

and operated by Petitioner Roehsler, doing business as the

Viking Terminal in Sayreville, New Jersey. Petitioner refused

to allow any entry by county inspectors and threatened

criminal response. Proper resort to the courts has resulted in

a determination that Middlesex County has the authority to

undertake that inspection and has not violated the

constitutional rights of the Petitioner. The Courts below have

upheld that reasonable determination. This Court should

leave those holdings undisturbed.

2

COUNTERSTATEMENT OF FACTS

Pursuant to its obligations under the Solid Waste

Management Act, N.J.S.A. 13:1E-1, et seg. (“SWMA”),

Middlesex County (“County”) developed and adopted the

Middlesex County Solid Waste Management Plan (“County

Plan”) which comprehensively sets forth the County’s solid

waste disposal and recycling strategies. These strategies

include “procedures for coordinating all activities related to

the collection and disposal of solid waste by every person

engaging such process within the solid waste management

district.” N.J.S.A. 13:1E-1. Public notice and hearings were

held on the development and proposal of the County Plan in

accordance with the provisions of SWMA. The public

hearings afforded all interested persons an opportunity to

submit comments and formal written objections to the County

Plan. N.J.S.A. 13:1E-23. The County Plan was duly adopted

by the County and then approved by the New Jersey

Department of Environmental Protection (“NJDEP”), after

notice to all relevant government agencies for comment.

N.J.S.A. 13:1E-23(g)-(h).

The Middlesex County Health Department (“Depart-

ment”) is designated and certified by the NJDEP as the local

environmental health agency under the County Env::on-

mental Health Act, N.J.S.A. 26:3A2-21, et seg. (“CEHA”).

CEHA provides for the administration of environmental

health services by county departments of health throughout

the State utilizing uniform performance standards

promulgated by NJDEP. Pursuant to CEHA, the Department

is empowered to act on behalf of NJDEP in Middlesex County

and to enforce the various State statutes, rules and regulations

relating to environmental health, including, but not limited

to, SWMA and the County Plan. CEHA further provides that

3

the administration of the responsibilities of a CEHA county

health department shall include the following:

The monitoring and enforcement of environmental

health standards, the operation of a technical

resource center and the enactment and

enforcement of environmental health ordinances

to control air pollution, solid waste, hazardous

waste, noise, pesticides, radiation, and water

pollution, to protect workers and the public from

hazardous substances and toxic catastrophes, and

to protect against other threats to environmental

health.

[N.J.S.A. 26:3A2-22] CEHA defines “monitor” to mean

“check, test, observe, survey or inspect to determine

compliance with environmental health standards.” N.J.S.A.

26:3A2-23(e) (emphasis added). A CEHA certified agency

also has been delegated the authority granted to the NIDEP

to act as its agent in areas involving environmental health.

This includes the right to enter and inspect “any business

premise or building during normal hours or other reasonable

times.” N.J.A.C. 7:1G-1.5. Failure by a business to allow

such an inspection after presentation of official credentials

is a criminal offense. N.J.S.A. 2C:29-1. Thus, CEHA

expressly confers upon county health agencies the authority

to conduct inspections in order to determine compliance with

the County Plan and SWMA. N.J.S.A. 26:3A2-25.

Viking Terrainal (“Terminal”) is a large industrial park

owned and operated by Petitioner Peter Roehsler in an

industrial section of Sayreville, New Jersey. Within the

Terminal, Roehsler operates his marine supply business,

Viking Terminal Marine Company (“Viking Marine”) and

4

leases space within the Terminal to several other businesses,

which also operate on the property. According to the records

of the Sayreville Bureau of Fire Safety, the businesses located

at the Terminal include Elmar Trucking, M.T. Performance,

Delcanzo Trucking, Avalanchi Global, Santora Electric,

Silver Star, Dave’s Towing, Allegro Enterprises, Advanced

Cleaning Systems, Riccardi Trucking, B&T Auto, Ju Jo

Livery, RTM Contractors, Al’s Cycle and Atlantic Fabricators,

in addition to Viking Marine.

These businesses involve services related to automotive,

trucking, electrical, cleaning, air conditioning and fabrication.

As such, it is axiomatic that these industrial sites could result

in the generation of highly regulated waste products and

recyclables, such as motor oil, coolants, chemicals, metals

and tires. These materials, if not properly recycled or disposed

of, can pose a dangerous threat to the public’s health and

safety and the environment. As with other business and

commercial establishments, the Department conducts regular

recycling compliance inspections in order to ensure that these

waste materials are being properly handled.'

1. The compliance requirements for commercial and

institutional owners, operators and contractors is set forth in the

County Plan, Chapter 3, Section C(10)(c). They include the

requirements that:

3. It must be clear to an inspector that the [recycling]

system is being serviced: i.e., containers must be clearly

marked and the area neatly maintained; there must not

be garbage in the recyclables or recyclables in the

garbage; container capacity must be adequate to hold

materials between pick-ups.

(Cont'd)

5

On or about October 2, 2000, the Department attempted

to conduct a recycling compliance inspection of the Viking

Terminal pursuant to its authority and responsibility under

SWMA and CEHA. Petitioner refused to allow the

Department’s inspectors to enter the Terminal. Thereafter,

despite the presentation of credentials and legal authority to

undertake the inspection, Petitioner remained steadfast in his

refusal to allow the Department to conduct a compliance

check. In fact, Petitioner threatened that any Department

employees would be treated as criminal trespassers.

The Department had no recourse but to seek judicial

intervention.

PROCEDURAL HISTORY

On December 28, 2000, the Department filed a Verified

Complaint and Order to Show Cause seeking an order of

entry onto the Viking Terminal property for the purpose of

conducting its recycling compliance inspection. An Order to

Show Cause was entered on January 10, 2001, ordering

Petitioner to show cause why the relief requested should not

be granted. Petitioner filed an Answer on January 29, 2001.

An initial hearing was held on February 16, 2001, before the

Honorable Marina Cordemus, J.S.C. Judge Cordemas carried

the matter. Following reassignment of the matter to the

Honorable Melvin Gelade, J.S.C., a second hearing held on

July 6, 2001. The court orally entered an order that directed

(Cont'd)

5. The owner/operator/contractor is responsible for

arranging for the recyclables to be moved from the

premises and for assuring that they go into the recyclables

market. .. .

[Pa24]

6

Petitioner to allow the inspection to be conducted within

thirty (30) days. The court also denied Petitioner’s request

for a stay. A conforming order was entered on July 20, 2001,

which included provision for the payment by Petitioner of

$5,000 in fees to the Department if this appeal was not

successful. (Pet. App. 10a-12a)

On August 3, 2001, Petitioner filed his Notice of Appeal

and an emergent application seeking a stay of the trial court’s

order. The New Jersey Appellate Division denied the latter

application by order entered on August 10, 2001. On June

11, 2002 the Appellate Division affirmed the trial court

holding the arguments were “without significant merit to

warrant discussion . . .” (Pet. App. la-4a).

On October 17, 2002, the New Jersey Supreme Court

denied Petitioner’s petition for certification and dismissed

his appeal. (Pet. App. 9a). This application for a writ

followed.

SUMMARY OF ARGUMENT

Administrative searches conducted pursuant to the

recycling compliance programs of the Middlesex County

Health Department conform to statutory and established

constitutional standards, thus, there is no compelling

reason to grant this writ. Petitioners business, as well as

other tenants of his industrial park, are involved in activities

likely to generate highly regulated waste products. This

Court, as well as the courts of the State of New Jersey, have

held that in a pervasively regulated industry such as this,

warrantless searches may be conducted so long as there is a

“substantial” government interest, the inspections are

necessary to further the regulatory scheme and the inspection

7

program in terms of certainty and regularity of its application

provides an adequate substitute for a warrant. The recycling

compliance programs of the County meet these standards.

Petitioner’s argument that a writ must issue because a warrant

is needed to search must fail because the case law in this

area is well settled and the opinions below so holding are

not in conflict with any settled precedent. In short, there are

no compelling reasons for granting Petitioner’s application

for a writ of certiorari.

The Middlesex County Health Department is entitled

to its fees upon prevailing on Petitioner’s challenge to

the inspection. Pursuant to N.J.S.A. 13:1E-9(d)(2), the

Health Department is entitled to a fee award where an

inspection is blocked by the defendant. An Order to this affect

was submitted to the trial court, the fee portion asking for

$12,490.46 supported by documentation. Petitioner objected

to the fee arguing lack of notice and that the fee was

inappropriate. Petitioner did not request argument nor did

he question the amount sought. Nonetheless, the trial court

reduced the award to $5,000. This process and fee amount

has been upheld by latter court opinions. Clearly, Petitioner

was given the opportunity to object, did so and in effect was

partially successful. His due process rights remain in tact.

Again, there is no compelling reason to grant Petitioner’s

application for a writ on the issue of fees.

8

REASONS FOR DENYING THE PETITION

POINT I

THE RECYCLING COMPLIANCE PROGRAMS OF

THE MIDDLESEX COUNTY HEALTH DEPARTMENT

CONFORM TO STATUTORY AND SETTLED CONSTI-

TUTIONAL STANDARDS

Petitioner challenges the authority of the Department to

inspect his commercial property for compliance with the

environmental laws and regulations of this State as violative

of the Fourth Amendment to the United States Constitution.

This argument is plainly without merit and must fail.

The authority of the Department to conduct routine

inspections is clearly and properly premised upon State

statutes and regulation, and does not contravene any

constitutional provisions. "

The Department’s authority to inspect the Viking

Terminal derives from the Recycling chapter of the County

Plan. That document sets forth in relevant part as follows:

The Middlesex County Field Recycling Inspection

Team will conduct a year-round inspection

program to assure that multi-family,

commercial and institutional generators of

solid waste and recyclables understand and

comply with their responsibilities under the

County Plan and State law. This generator

inspection program will operate in all

municipalities. Follow-up inspections will be

made to generators found to be in violation of the

compliance provisions of this plan. Notices of

9

Violation and Penalty Assessments will be issued

as appropriate. The inspectors will be members

of the County Health Department and derive

authority from the Solid Waste Management Act

(N.J.S.A. 13:1E-1 et seg.) via the County

Environmental Health Act. (N.J.S.A. 26:3A2-21,

et seq.) The Penalty Schedule for recycling

violations will be between $25 and $2,500.

(Emphasis Added)

[County Plan, Chapter 3, Section C(6)(c)]

As set forth in the Statement of Facts, supra, the

Department has been certified as the local CEHA agency with

responsibility to enforce and monitor compliance with the

County Plan, as well as SWMA and other environmental

statutes, rules and regulations. CEHA specifically provides

that the administration of the responsibilities of a CEHA

county health department shall include the following:

The monitoring and enforcement of environmental

health standards, the operation of a technical

resource center and the enactment and

enforcement of environmental health ordinances

to control air pollution, solid waste, hazardous

waste, noise, pesticides, radiation, and water

pollution, to protect workers and the public from

hazardous substances and toxic catastrophes, and

to protect against other threats to environmental

health.

[N.J.S.A. 26:3A2-22]

10

CEHA defines “monitor” to include “check, test, observe,

survey or inspect to determine compliance with

environmental health standards.” N.J.S.A. 26:3A2-23(e)

(emphasis added). A CEHA certified agency also has the

delegated authority granted to the NJDEP to act as its agent

in areas involving environmental health. This includes the

right to enter and inspect “any business premise or building

during normal hours or other reasonable times.” N.J.A.C.

7:1G-1.5. Accordingly, there can be no doubt that the

Department had the statutory and regulatory authority to

inspect the Viking Terminal commercial premises for

compliance with the solid waste and recycling provisions of

the County Plan. The same conclusion must be reached by

this Court with respect to the constitutional scope of the

Department’s inspection authority.

The initial inquiry in any Fourth Amendment challenge

must examine whether the activity being questioned

constitutes a search. The Department will concede for

purposes of this argument that its recycling compliance

inspection of the Viking Terminal would have constituted a

search. Once a determination is made that a “search”

has occurred within the meaning of the Fourth Amendment,

the government must show that the search was “reasonable”

to survive constitutional scrutiny.

There are several ways in which a Fourth Amendment

search may be found to be reasonable. The obvious means

of satisfying the reasonableness standard is through the

judicial issuance of a search warrant. However, it is also well-

established that there are categories of warrantless searches

that have also been upheld as reasonable. For example,

administrative inspections in highly or pervasively regulated

industries have been permitted without probable cause or

11

individualized suspicion as one of the exceptions to the

warrant requirement and do not violate the constitutional

proscription against “unreasonable searches and seizures.”

New York v. Burger, 482 U.S. 691, 712 (1987) (upholding

suspicionless search of automobile junkyard); Camara vy.

Municipal Court, 387 U.S. 523, 540 (1967) (employing

balancing test to assess validity of administrative search).

The administrative search exception has been used

regularly to permit legislatively authorized warrantless

inspections of commercial property in cases in which

- the government interest in conducting the search would

be frustrated by requiring prior notice. See Donovan v.

Dewey, 452 U.S. 594, 598-603 (1981). See also United States

v. Biswell, 406 U.S. 311, 317 (1972) (administrative search

exception extended to safety inspections of firearms dealers);

Colonnade Catering Corp. v. United States, 397 U.S. 72,

76-77 (1970) (approving congressional scheme of warrantless

searches and seizures in liquor industry in light of long history

of regulation of this industry); Transport Workers’ Union of

Philadelphia, Local 234 v. Southeastern Pennsylvania

Transp. Auth., 884 F.2d 709 (3d Cir. 1989) (random drug

testing of employees in safety-sensitive positions was

carefully and constitutionally tailored).

Our New Jersey courts also have applied these

constitutional standards and found similarly that persons

who engage in industries “subject to close supervision

and inspection” have a diminished expectation of privacy.

In re Martin, 90 N.J. 295, 313-14 (1982) (finding that casino

employees have a “limited” expectation of privacy based on

pervasive regulation of casino industry); New Jersey Dept

of Envtl. Protection v. Duran, 251 N.J. Super. 55, 62-63

12

(App. Div. 1991) (fishing industry is pefvasively regulated

and warrantless inspection of vessel in possession of illegal

lobster tails upheld). In order to uphold this regulatory class

of inspections or searches, the courts have established the

following standard of review:

[W]arrantless searches conducted under the

pervasively regulated industry exception are

deemed to be reasonable only so long as three

criteria are met. First there must be a “substantial”

government ipterest that informs the regulatory

scheme pursuant to which the inspection is

made. ... Second, the warrantless inspections

must be “necessary to further [the] regulatory

scheme.” ... [And, flinally, “the statute’s

inspection program, in terms of the certainty and

regularity of its application [must] provid[e] a

constitutionally adequate substitute for a warrant.”

Burger, supra, 482 U.S. at 702-03, 107 S. Ct. at

2644, 96 L. Ed. 2d at 614 (citations omitted).

[New Jersey Transit PBA Local 304 v. New Jersey Transit,

147 N.J. 259 (1997)]

There can be no genuine dispute that the recycling and

disposal of waste materials by businesses in iNew Jersey is a

pervasively regulated area and has been for several decades.

There is a strong public interest in the orderly disposition of

New Jersey’s solid waste because it is “a matter of grave

concern to all citizens” and “an activity thoroughly affected

with the public interest,” which has been mandated by the

Legislature and recognized by the courts. See, e.g., N.J.S.A.

13:1E-2; A.A. Mastrangelo, Inc. v. Commissioner of

Department of Envtl. Protection, 90 N.J. 666 (1982);

13

Southern Ocean Landfill v. Mayor of Ocean Township,

64 N.J. 190, 193-94 (1974). The highly regulated system

governing the management and disposal of solid waste in

New Jersey grew out of a crisis that began in the 1970s as a

result of wide-spread illegal practices in the then-private,

unregulated waste disposal market and the closing of many

landfills due to unsanitary conditions and noncompliance

with newly enacted federal regulations. Mandatory recycling

and reduction of the waste stream requiring ultimate disposal

is a critical component of the SWMA. Atlantic Coast

Demolition & Recycling, Inc. v. Bd. Of Chosen Freeholders

of Atlantic County et al., 48 F.3d 701 (1995). Thus, it is clear

that the regulation of solid waste disposal and recycling by

commercial establishments meets the substantial interest test

under the Fourth Amendment.

The CEHA inspection program also meets the other two

prongs of the Burger standard. Without the ability to conduct

regular, unannounced inspections the Department has no way

of determining whether the recyclable products generated by

the Petitioner’s owned and leased business properties are

ending up in the proper end market. Waste items such as

used motor fuel oil or tires cannot easily be traced or tagged

once they leave the premises. An inspection can reveal

whether recyclable materials are in the appropriate waste

containers on site or whether Petitioner and his tenants have

even established regular receptables and collection programs

for such materials. 3

Furthermore, the inspections are regular, infrequent,

nonintrusive and conducted only during reasonable and

normal business hours. They are not conducted on the basis

of unbounded discretion. Furthermore, the Department has

never demanded an inspection of the personal residence of

14

Petitioner. Thus, the standard protocols of these inspections

provide adequate protections and notice in lieu of a search

warrant. Transport Workers’ Union, supra, 884 F.2d at 711.

It would be unreasonable and excessively burdensome for

the Department to apply to a court for a search warrant in

order to conduct routine environmental inspections of the

thousands of business and commercial entities in Middlesex

County.

In sum, the routine environmental inspection sought to

be conducted at Petitioner’s business properties was

reasonable and did not violate Petitioner’s constitutional

right to be free from “unreasonable searches and seizures”.

Thus, the writ should be denied.

POINT II

MIDDLESEX COUNTY HEALTH DEPARTMENT IS

ENTITLED BY STATUTE TO ITS FEES UPON

PREVAILING ON PETITIONER’S CHALLENGE TO

THE INSPECTION

Petitioner has also raised the argument that the

Department is not entitled to the fees and costs it has been

forced to incur by Petitioner’s own unwarranted refusal to

allow the inspection. Having defended its right to conduct

the regulatory inspection, the Department clearly is entitled

to its reasonable fees. N.J.S.A. 13:1E-9(d)(2); County Plan,

Ch. 2, Section D(11).?

2. Middlesex County Public Health Department Enforcement

Protocol provides:

The violator [of rules and regulations governing solid

waste], if found guilty, shall be liable to pay the Court

(Cont'd)

15

Moreover, Petitioner had adequate notice that fees would

be sought by the Department if judicial intervention to

enforce the SWMA and the County Plan was necessitated by

Petitioner’s actions. Jd. The Verified Complaint also apprised

Petitioner that fees would be demanded as part of the relief

sought. The Order of the Court below set forth that the

reasonable level of those fees was $5,000 and would not be

due and owing unless and until the Department prevailed on

the appeal. (Pet. App. 12a)

While the Department sought fees in the amount of over

twelve thousand dollars ($12,000), which were genuinely

incurred by it in prosecuting its Order to Show Cause, and

has now had to incur the additional legal expenses of the

appeal and this petition, the Department did not take a cross-

appeal on the issue and will abide by the trial judge’s

assessment. The Department and the lower court were fully

justified in making this assessment against Petitioner. But

for his refusal to allow the fully authorized Department

‘inspectors to do their job, these legal costs would not have

been incurred. It is unreasonable to expect the other

businesses in Middlesex County to bear the financial burden

of Petitioner’s obstinacy.

(Cont'd)

Judgement. . . . In addition, any person(s) found guilty

of a solid waste violation shall be liable for all costs

incurred by the County of Middlesex including all

litigation costs, fees, and expenses.

16

CONCLUSION

For the reasons set forth above, the Middlesex County

Health Department respectfully requests that this Honorable

Court deny the Petition.

Respectfully submitted,

GaliL CooKSON

Counsel of Record ~

Rosert W. GLuck

MANDELBAUM, SALSBURG, GOLD

LazrRis, DISCENZA & STEINBERG

Attorneys for Respondent

155 Prospect Avenue

West Orange, NJ 07052

(973) 736-4000