The Code Official 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 Official is authorized to pursue recourse as provided by law.
(2009 Code, § 29-1-24)
Editor’s note:
This section establishes the right of the Code Official to enter the premises in order to make the inspections required by § 151.052. The right to enter structures or premises is limited. First, to protect the right of privacy, the owner or occupant must grant the Code Official 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. Unless the inspector has reasonable cause to believe that a violation of the Code exists, access may be unattainable. Third, Code Officials 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 Official’s authority.
Searches of a private residence to gather information for the purpose of enforcing codes, ordinances or regulations are considered unreasonable and are prohibited by the Fourth Amendment to the U.S. Constitution. “Reasonable cause” in the context of this section must be distinguished from “probable cause”, which is required to gain access to property in criminal cases. The burden of proof establishing reasonable cause may vary among jurisdictions. Usually, an inspector must show that the property is subject to inspection under the provisions of the Code; that the interests of the public health, safety and welfare outweigh the individual’s right to maintain privacy; and that such an inspection is required solely to determine compliance with the provisions of the Code.
Many jurisdictions do not recognize the concept of an administrative warrant and may require the Code Official 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 Official 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 Official 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.