The Code Enforcement Officer is authorized to enter the structure or premises at reasonable times to inspect subject to constitutional restrictions on unreasonable searches and seizures. If entry is refused or not obtained, the Code Enforcement Officer is authorized to pursue recourse as provided by law. (104.4)
The Code Enforcement Officer must have access to a premises so a proper inspection can be made. If the Code Enforcement Officer does not have access, then another inspection must be scheduled.
This Section establishes the right of the Code Enforcement Officer to enter the premises in order to make the inspections required by Section 29-1-23. The right to enter structures or premises is limited. First, to protect the right of privacy, the owner or occupant must grant the Code Enforcement Officer permission before an interior inspection of the property can be conducted. Permission is not required for inspections that can be accomplished from within the public right-of-way. Second, such access may be denied by the owner or occupant. Third, Code Enforcement Officers must present proper identification and request admittance during reasonable hours—usually the normal business hours of the establishment—to be admitted. Fourth, inspections must be aimed at securing or determining compliance with the provisions and intent of the regulations that are specifically within the established scope of the Code Enforcement Officer’s authority.
(Ord. No. 06-01; 01-03-06)
Many jurisdictions do not recognize the concept of an administrative warrant and may require the Code Enforcement Officer to prove probable or reasonable cause in order to gain access upon refusal. This burden of proof is usually more substantial, often requiring the Code Enforcement Officer to stipulate in advance why access is needed (usually access is restricted to gathering evidence for seeking an indictment or making an arrest), what specific items or information is sought, its relevance to the case against the individual subject, how knowledge of the relevance of the information or items sought was obtained and how the evidence sought will be used. In all such cases, the right to privacy must always be weighed against the right of the Code Enforcement Officer to conduct an inspection to verify that the public health, safety and welfare are not in jeopardy. Such important and complex constitutional issues should be discussed with the jurisdiction’s legal counsel. Jurisdictions should establish procedures for securing the necessary court orders when an inspection is deemed necessary following a refusal.