TITLE 23
Health and Safety

CHAPTER 23-28.2
Division of Fire Safety

SECTION 23-28.2-20


§ 23-28.2-20 Right of entry.

(a) In the discharge of its duties, the authority having jurisdiction shall have the authority to enter at any reasonable hour, any building, structure, or premises in the state to enforce the provisions of the Fire Safety Code, chapters 28.1 – 28.39 of this title and all codes referenced therein and adopted thereunder. If any owner, occupant, or other person refuses, impedes, inhibits, interferes with, restricts, or obstructs entry and free access to every part of the structure, operation, or premise where inspection authorized by this code is sought, the authority having jurisdiction may:

(1) Seek in a court of competent jurisdiction a search warrant so as to apprise the owner, occupant, or other person concerning the nature of the inspection and justification for it, and may seek the assistance of police authorities in presenting the warrant;

(2) Revoke or suspend any license, permit, or other permission regulated under this code where inspection of the structures, operation or premises, is sought to determine compliance with this code;

(3) Enter, examine or survey at any reasonable time such places as the fire marshal or his or her designee deems necessary to carry out his or her responsibilities under any provision of law subject to the provisions set forth below. Places of assembly, including nightclubs, shall be visited at least annually and reviewed for operational compliance during actual hours of maximum operation, regardless of the time. Complete inspections of nightclubs, shall be conducted at least annually.

(4) For criminal investigations, the fire marshal and the deputy state fire marshal(s) on his or her full time staff shall, pursuant to chapter 5 of title 12, seek a search warrant from an official of a court authorized to issue warrants, unless a search without a warrant is otherwise allowed or provided by law;

(5) All administrative inspections shall be conducted pursuant to administrative guidelines promulgated pursuant to chapter 42-35, the "Administrative Procedures Act" with chapter 35 of title 42.

(b) A warrant shall not be required for administrative inspections if conducted under the following circumstances, in accordance with the applicable constitutional standards:

(1) For closely regulated industries;

(2) In situations involving open fields or conditions that are in plain view;

(3) In emergency situations;

(4) In situations presenting an imminent threat to the environment or public health, safety or welfare;

(5) If the owner, operator, or agent in charge of the facility, property, site or location consents; or

(6) In other situations in which a warrant is not constitutionally required.

(c) Whenever it shall be constitutionally or otherwise required by law, or whenever the authority having jurisdiction in his or her discretion deems it advisable, an administrative search warrant, or its functional equivalent, may be obtained by the authority having jurisdiction from a judge or magistrate for the purpose of conducting an administrative inspection. The warrant shall be issued in accordance with the applicable constitutional standards for the issuance of administrative search warrants. The administrative standard of probable cause, not the criminal standard of probable cause, shall apply to applications for administrative search warrants.

(1) The need for, or reliance upon, an administrative warrant shall not be construed as requiring the authority having jurisdiction to forfeit the element of surprise in his or her inspection efforts.

(2) An administrative warrant issued pursuant to this subsection must be executed and returned within ten (10) days of its issuance date unless, upon a showing of need for additional time, the court orders otherwise.

(3) An administrative warrant may authorize the review and copying of documents that are relevant to the purpose of the inspection. If documents must be seized for the purpose of copying, and the warrant authorizes such seizure, the person executing the warrant shall prepare an inventory of the documents taken. The time, place and manner regarding the making of the inventory shall be set forth in the terms of the warrant itself, as dictated by the court. A copy of the inventory shall be delivered to the person from whose possession or facility the documents were taken. The seized documents shall be copied as soon as feasible under circumstances preserving their authenticity, then returned to the person from whose possession or facility the documents were taken.

(4) An administrative warrant may authorize the taking of samples of materials that are part of, or are generated, stored or treated at the facility, property, site or location. Upon request, the fire marshal shall make split samples available to the person whose facility, property, site or location is being inspected.

(5) Service of an administrative warrant may be required only to the extent provided for in the terms of the warrant itself by the issuing court.

(d) Penalties. Any willful and unjustified refusal of right of entry and inspection pursuant to an administrative warrant shall constitute a contempt of court and shall subject the refusing party to sanctions, which in the court's discretion may result in up to six (6) months imprisonment and/or a monetary fine of up to ten thousand dollars ($10,000) per refusal.

History of Section.
(P.L. 1975, ch. 165, § 12; P.L. 1978, ch. 281, § 1; P.L. 2003, ch. 106, § 4; P.L. 2003, ch. 107, § 4; P.L. 2004, ch. 220, § 3; P.L. 2004, ch. 225, § 3.)