The Mayor of the District of Columbia (the Mayor) has broad authority to enter private property for the purposes of examining the premises to prevent the spread of communicable disease as well as investigate habitability and sanitary conditions. Constitutional principles found in the Fourth, Fifth, and Fourteenth Amendments must be followed; however, when public health concerns are being addressed, particularly in emergency situations, the constitutional restraints are narrowed. The Mayor and the Mayor’s agents may take reasonable actions to investigate, examine, search, seize, abate, or destroy private property that may harm the public’s health, with just compensation concerns addressed after the need for such actions has ended. Preventing foodborne illness outbreaks through inspections and other regulatory actions is a significant public health function performed by the Department of Health (DC Health).
9.2 Constitutional Considerations
9.2.1 The Fourth Amendment: Searches and Seizures
The Fourth Amendment limits the government’s ability to conduct searches and seizures. A “search” occurs when government action infringes upon an expectation of privacy that society recognizes as reasonable. United States v. Jacobson, 466 U.S. 109, 113 (1984). A “seizure” of an individual occurs when government action meaningfully interferes with an individual’s freedom of movement. Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 616 (1989). The duration of the interference is not relevant. Id. A seizure of property occurs when government action meaningfully interferes with an individual’s possessory interest in that property. United States v. Jacobson, 466 U.S. at 113.
Generally speaking, government searches and seizures conducted without consent are considered to be unreasonable unless authorized by a valid search warrant. Camara v. Municipal Court, 387 U.S. at 523, 528-529 (1967). The warrant must be based on probable cause and issued by a neutral magistrate. Maryland v. Pringle, 540 U.S. 366, 369 (2003). Probable cause exists when there are reasonable grounds for the belief of guilt that are particularized with respect to the person, place, or items searched or seized. Id.
Courts determine whether a search is permissible “‘by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’” United States v. Knights, 534 U.S. 112, 118-119 (2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)); see also New Jersey v. T.L.O., 469 U.S. 325, 337 (1985). Thus, privacy expectations are balanced against governmental interests.
Administrative searches of private property, such as health and safety inspections, fall under the Fourth Amendment’s protection against unreasonable searches and seizures, as well as its requirement that warrants not be issued unless there is probable cause. Camara v. Municipal Court, 387 U.S. 534 (1967). Administrative warrants, however, may be based on a “modified probable cause” standard that is satisfied by a showing of specific evidence of an existing violation, or reasonable legislative or administrative standards for conducting an inspection of a particular individual or establishment. Marshall v. Barlow’s, Inc., 436 U.S. 307, 312 (1978); Michigan v. Tyler, 436 U.S. 499, 506 (1978). See, e.g., D.C. Official Code § 42-3131.02(b).
There is also a “special needs exception” to the Fourth Amendment’s warrant requirement that may be applicable in the public health emergency context, where “special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.” Board of Education v. Earls, 536 U.S. 822, 829 (2002). When applying this exception, courts must balance the individual’s privacy expectation against the government’s interests, with consideration of relevant context-specific factors. These factors include:
- The nature of the privacy interest affected by the government action;
- The character of the government intrusion on the individual’s privacy interest; and
- The nature and immediacy of concerns giving rise to government action and the efficacy of the action in addressing those concerns. Board of Education v. Earls, 536 U.S. at 830-38.
The government’s interest much be substantial if the individual’s privacy interest is high. A substantial government interest includes “exigent conditions” where the government seeks to discover “latent or hidden conditions” or to “prevent the development of hazardous conditions,” Board of Education v. Earls, 536 U.S. at 828-29, or strives to “protect or preserve life.” Mincey v. Arizona, 437 U.S. 385, 392-93 (1978). Facts supporting the seriousness of the threat and the need for immediate government action can assist in rationalizing a warrantless search or seizure in the context of communicable diseases and other health hazards. Camara v. Municipal Court, 387 U.S. at 539.
There is extensive case law related to the government’s ability to conduct searches and seizures under the Fourth Amendment and a full discussion is beyond the scope of this Manual.
9.2.2 Fifth Amendment: Just Compensation
Under the Fifth Amendment of the United States Constitution, “no person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The Fourteenth Amendment applies the Fifth Amendment’s Taking Clause to state action. Generally speaking, the government must pay just compensation for private property taken for public use pursuant to its eminent domain power. In order to trigger the just compensation requirement, there must first be a government “taking.” Where there is a legitimate exercise of the police power supported by a substantial government interest, the test is whether the owner has been deprived of property rights. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1051 (1992).
However, when the taking is made to address a public health hazard related to the property, there is no deprivation of property rights because all property is held under the implied obligation that its use will not injure the community. Keystone Bituminous Coal Assoc. v. DeBenedictis, 480 U.S. 470, 491-92 (1987). Thus, as the United States Supreme Court has stated, “[s]ince no individual has a right to use his property so as to create a nuisance or otherwise harm others, the State has not taken anything when it asserts its power to enjoin the nuisance-like activity.” Id. at 491.
Whether just compensation is required when property that is not itself a hazard is used in a public health emergency, such as when property is commandeered to use as a shelter for flood victims or a triage center, or when a business is required to alter or reduce its hours, is dependent upon the circumstances. Under District of Columbia (District) law, the Mayor of the District of Columbia (the Mayor) has broad powers over private property when an emergency has been declared. See section 4.0 of this Manual.
There is extensive case law related to just compensation under the Fifth and Fourteenth Amendments and a full discussion is beyond the scope of this Manual.
9.3 Public Nuisance
A “public nuisance” is defined as an unreasonable interference with a right common to the general public. Restatement (Second), Torts, § 821B. Public nuisances include those that interfere with public health, such as harboring diseased animals. Id.
When a public nuisance is identified, the Mayor may remove a nuisance existing in the public streets, roads, alleys, highways, and other places. D.C. Official Code § 5-101.03 (6).
9.4 Sanitary Regulations
9.4.1 Access to Prevent the Spread of Communicable Diseases
The Mayor may enter, examine, and inspect all vessels, premises, grounds, structures, and buildings at no cost and with no interference in order to prevent the spread of communicable disease. D.C. Official Code § 7-138. The owner, his agent, or representative, any lessee or occupant, and any person having care or management of any vessel, premises, grounds, structure, and building must allow such access. Non-compliance with this provision is a misdemeanor punishable by a fine up to $5,000, imprisonment for 90 days, or both. D.C. Official Code § 7-140.
Under the Mayor’s authority to declare a public health emergency, the Mayor has the power to destroy or remove property that is contaminated by a matter or substance that makes it harmful to life and health, leading to imminent danger to persons or property. D.C. Official Code § 7-2304(b)(5). See section 4.2.1 E.
An administrative search warrant may be issued by a District of Columbia Superior Court (Superior Court) judge authorizing the administrative inspection and search of any property or premises, private, commercial, or public, if there is probable cause to believe that: (1) the property is subject to one or more statutes relating to public health, safety, or welfare; (2) entry to such property has been denied to officials authorized to enforce the relevant statutes or regulations, unless special circumstances exist so that prior denial of entry is not required; and (3) reasonable grounds exist for the administrative search and inspection. Super. Ct. Civ. R. 204. See, e.g., D.C. Official Code § 42-3131.02(b).
9.4.2 Inspection of Insanitary Buildings
The Mayor or the Mayor’s designated agent is authorized to investigate and examine the habitability and sanitary condition of all buildings in the District in order to condemn those buildings that are in such insanitary condition as to endanger the health or lives of the occupants of such buildings or those living nearby. The Mayor is also authorized to cause all buildings to be habitable and sanitary or to be demolished and removed. D.C. Official Code § 6-901(a).
Buildings that are under the exclusive jurisdiction of the United States cannot be investigated under this section.
- “Uninhabitable” means being in an unlivable condition due to deterioration and infestation, improper maintenance, decaying structures, insufficient light or ventilation, inadequate plumbing, defective electrical system, or general filthy conditions that may cause health and safety concerns for the public, or that is a fire hazard or nuisance. D.C. Official Code § 6-901(b).
- The Mayor and those acting under his/her authority may peaceably enter into and upon all lands and buildings in the District between the hours of 8:00 am and 5:00 pm for the purpose of inspecting the habitability and sanitary conditions. D.C. Official Code § 6-901(a).
9.4.3 Unsafe Structures
If any building or part of a building, staging, or other structure, or anything attached to or connected to any building or other structure is reported as unsafe from any cause, the Mayor has the authority to examine the structure or excavation. If the Mayor determines that the condition of the structure or excavation presents an imminent threat to public safety requiring that emergency measures be taken immediately, the Mayor may enter the premises without notice or delay to take action to secure the structure or excavation. D.C. Official Code § 6-801.
Special rules apply to buildings and structures that are historic landmarks or that are located in historic districts, and consultation with the State Historic Preservation Officer is necessary before action can be taken under D.C. Official Code § 6-801 or D.C. Official Code § 6-901(a). More information regarding historic preservation issues can be found at: https://planning.dc.gov/. See Mayor's Order 2011-120 (July 18, 2011).
9.4.4 Condemnation of Buildings
In the aftermath of disasters or emergencies, it may be necessary to condemn buildings that were damaged. The Board of Condemnation of Insanitary Buildings, appointed by the Mayor, is responsible for issuing appropriate orders of condemnation that require correction of the conditions leading to condemnation or require the demolition of any buildings. D.C. Official Code § 6-902(a)(1).
For example, in November 2016, Hurricane Matthew caused the condemnation of numerous buildings in North Carolina, including a school. In addition, at least 12 homes were condemned after an April 1, 2017 tornado touched down in Virginia Beach, Virginia.
Condemnation procedures are outlined in D.C. Official Code § 6-903 with review of condemnation orders and appeals found at D.C. Official Code §§ 6-913, 6-914. However, in emergencies when many buildings need to be condemned, it may be necessary to waive these steps via a declaration of public emergency issued by the Mayor. See section 4.2 of the Manual.
9.5 Food Establishment Inspections
9.5.1 Food Establishment Defined
A full listing of what constitutes a “food establishment” can be found at 25-A DCMR § 9901.
A food establishment does not include the following:
- An establishment that offers only prepackaged foods that are not potentially hazardous due to the need for time or temperature control for safety;
- A produce stand that only offers whole, uncut, fresh fruits and vegetables;
- A food processing plant, including one that is located on the premises of a food establishment;
- A kitchen in a private home where only food that is not potentially hazardous due to the need for time or temperature control for safety, is prepared for sale or served at any function such as a religious or charitable organization’s bake sale where the consumer is informed by a clearly visible placard that the food is prepared in a kitchen that is not subject to regulation or inspection by the District of Columbia Department of Health (DC Health);
- An area where food that is prepared in a kitchen in a private home where only food that is not potentially hazardous due to the need for time or temperature control for safety, is sold or offered for human consumption;
- A kitchen in a private home, including a child development home; a community residential home; or a bed and breakfast operation that prepares and offers food to guests if the home is owner occupied, the number of available guest bedrooms does not exceed three, breakfast is the only meal offered, the number of guests served does not exceed nine, and the consumer is informed by statements contained in published ads, mailed brochures, and placards posted at the registration area that the food is prepared in a kitchen that is not regulated and inspected by DC Health;
- A private home that receives catering or home-delivered food;
- A private club, or a church, which serves occasional meals at not more than 24 events during a 12-month period; and
- The United States Senate’s and House of Representative’s restaurants.
9.5.2 Right to Enter and Inspect a Food Establishment
After DC Health representatives present official credentials and provide notice of the intent to conduct an inspection in accordance with the Food Code, the person in charge must allow access to DC Health during regular hours of operation to: (1) determine if the food establishment is in compliance with the Food Code; (2) examine and sample the food; (3) obtain information, and examine records related to the food purchased, received, or used by the food establishment. 25-A DCMR § 4402.1
If access is denied to DC Health, the agency’s representative will inform the person in charge that: (1) access is required under the license obtained under the Food Code; (2) access is a condition of a continued food establishment license; (3) if access denied, an inspection order allowing access may be obtained; and (4) DC Health is making a final request for access. 25-A DCMR § 4402.2.
While foodborne illness outbreaks are not likely to result in a declared emergency, they still have the potential to sicken large numbers of people, triggering the need for action from DC Health. Thus, the right to inspect food establishments may be crucial to protecting the public’s health.
9.5.3 Imminent Health Hazard
An “imminent health hazard,” is defined as a significant threat or danger to health that is considered to exist when there is sufficient evidence to show that a product, practice, circumstance, or event creates a situation that requires immediate correction or cessation of operations to prevent injury based on the number of potential injuries, and the nature, severity, and duration of the anticipated injury. 25-A DCMR § 9901.1. If an imminent health hazard is identified, a food establishment must immediately discontinue operations and notify DC Health. 25-A DCMR § 4408.
Violations of the Food Code come with a range of penalties, including embargo orders; revocation or suspension of license; condemnation order; civil fines, fees, and penalties; and criminal fines and penalties (including imprisonment). 25-A DCMR Chapter 47. Judicial review in accordance with the District of Columbia Administrative Procedures Act is available to persons subject to a final order or decision by DC Health. 25-A DCMR § 4900.1.
9.5.4 Prevention of Foodborne Disease Transmission by Food Employees
DC Health will take the following actions when it has probable cause to believe that a food employee: (1) has transmitted a disease; (2) may be infected with a disease in a communicable form that is transmissible through food; (3) may be a carrier of an infectious agent that causes a disease that is transmissible through food; or (4) is affected with a boil, an infected wound, or acute respiratory infection:
- Secure a confidential medical history of the food employee suspected of transmitting disease or making other investigations as deemed appropriate; and
- Require appropriate medical examinations, including collection of specimens for laboratory analysis, of a suspected food employee.
Based on the investigation findings, DC Health may issue an order to the suspected food employee taking one or more of the following control measures:
- Restricting the food employee’s service to the food establishment;
- Excluding the food employee from the food establishment; or
- Closing the food establishment by summarily suspending a license to operate in accordance with the Food Code.
The order or restriction or exclusion may be issued without prior warning, notice of a hearing, or a hearing if the order: (1) states the reasons for the restriction or exclusion that is ordered; (2) states the evidence that must be provided by the suspected food employee or licensee in order to demonstrate that the reasons for the restriction or exclusion are eliminated; (3) states that the suspected food employee or licensee may request a hearing by submitting a timely request as provided in the Food Code; and (4) provides the name and address of the DC Health representative to whom the hearing request may be made. 25-A DCMR 4502.1.