Gaining Access for Inspections
Remember: LBOH are responsible for protecting the public's health. To do so, they must monitor compliance with public and environmental health regulations and laws. A key way to monitor compliance is to conduct inspections.
There are a number of ways for LBOH in Massachusetts to gain access for inspections. The preferred way is to ask permission, regardless of whether the inspection is on private property or in a regulated establishment.
Think about how you usually gain access for inspections. Before moving on, consider the approach you might take for emergency and non-emergency situations.
Except in emergency situations, a LBOH must ask for permission to gain access for inspections. Obtaining an administrative search warrant can be time-consuming, so it is recommended that LBOH exhaust all attempts to gain permission first. For example, if an inspector fails to make contact with the owner of a property that requires inspection, the inspector should send an official letter by certified mail and by first class, prepaid mail, requesting an inspection. If there is no response, a second letter should be posted at the front entrance of the property. If there is still no response, the details of the attempts should be documented to support an administrative search warrant request
Who Can Give Permission and What if it's Denied?
The person who can give permission for inspections will vary depending on the type of property.
- For regulated private and public establishments open to the public - the owner, manager, or person in charge can give permission.
- For private property that is not housing - the owner, occupant, or the occupant's representative can give permission.
- For housing - the occupant or the occupant's representative (not the owner or property manager) can give permission.
- For public buildings – the manager or person in charge can give permission.
Certain federal and state-owned buildings are not, by law, subject to LBOH authority. When a LBOH needs to inspect these premises, he/she should contact the municipal attorney first.
If permission is not granted and it's an emergency situation...
- Ordinary procedures can be suspended. 310 CMR 11.05 and 105 CMR 400.200 allow LBOH to take any action deemed necessary to meet an emergency. MGL Ch111 s30 allows the LBOH to appoint an agent or director of public health to act for them in cases of an emergency. This agent/director can decide which procedures or actions are necessary to protect the public's health during the emergency and must report them to the LBOH for approval/ratification within 48 hours of the action.
If permission is not granted and it's a non-emergency situation...
- Make observations based on what is visible from plain view or from a legally obtainable vantage point (using plain view principle described below).
- Seek an administrative search warrant.
- Never force your way in.
- Pursue revocation or suspension of any license, permit, or other permission regulated under a code.
Plain View Principle
If a LBOH is denied permission to enter to inspect the property, or if no one is on the premises, the LBOH can legally make observations, take photographs, and document conditions as long as they are:
- In plain view from the front entrance
- Seen from a legally obtainable vantage point
Legally obtainable vantage points can include sidewalks, adjacent properties (with that owner's permission), and common areas (i.e., hallways and entryways of an apartment building).