§ 3.1-249.58. (Repealed effective October 1, 2008) Enforcement
A. For the purpose of carrying out the provisions of this chapter the Commissioner may enter any public or private premises operating as a pesticide business at reasonable times, with the consent of the owner or tenant thereof, upon presentation of appropriate credentials in order: (i) to have access for the purpose of inspecting any equipment subject to this chapter, (ii) to inspect storage or disposal areas, (iii) to inspect or investigate complaints of injury to humans, animals, birds or property, (iv) to sample any pesticide being applied or to be applied, or (v) to enforce any other provision of this chapter.
B. Should the Commissioner be denied access to any public or private premises operating as a pesticide business where such access was sought for the purposes set forth in this chapter, he may apply for an administrative search warrant, based upon a petition demonstrating probable cause and supported by an affidavit, issued by any judge having authority to issue criminal warrants or a magistrate whose territorial jurisdiction encompasses the premises to be inspected or entered, if the judicial officer is satisfied that there is reasonable and probable cause for the issuance of an administrative search warrant. No such warrant shall be issued pursuant to this section except upon probable cause, supported by affidavit, particularly describing the place, things or persons to be inspected or tested, and the purpose for which the inspection, testing, or collection of samples for testing is to be made. Probable cause shall be deemed to exist if either (i) reasonable legislative or administrative standards for conducting such inspection, testing or collection of samples for testing are satisfied with respect to the particular place, thing, or person, or (ii) there is cause to believe that there is a condition, object, activity, or circumstance which legally justifies such inspection, testing, or collection of samples for testing. The supporting affidavit shall contain either a statement that consent to inspect, test, or collect samples for testing has been sought and refused or facts or circumstances reasonably justifying the failure to seek such consent in order to enforce effectively the pesticide control laws and regulations of the Commonwealth which authorize such inspection, testing, or collection of samples for testing. In the case of an administrative search warrant based on legislative or administrative standards for selecting places of business for inspection, the affidavit shall contain factual allegations sufficient to justify an independent determination by the court official that the inspection program is based on reasonable standards and that the standards are being applied to a particular place of business in a neutral and fair manner. The issuing judicial officer may examine the affiant under oath or affirmation to verify the accuracy of any matter in the affidavit.
C. Any administrative search warrant shall be effective for a period of not more than fifteen days, unless extended or renewed by the judicial officer who signed and issued the original warrant. The warrant shall be executed and shall be returned to the judicial officer by whom it was issued within the time specified in the warrant or within the extended or renewed time. The return shall list any records removed or samples taken pursuant to the warrant. After the expiration of such time, the warrant, unless executed, shall be void.
D. No warrant shall be executed in the absence of the owner, tenant, operator or agent in charge of the premises, unless specifically authorized by the issuing judicial officer upon a showing that such authority is reasonably necessary to effect the purposes of the law or regulation being enforced. An entry pursuant to this warrant shall not be made forcibly, except that the issuing officer may expressly authorize a forcible entry (i) where facts are shown sufficient to create a reasonable suspicion of an immediate threat to the health and safety of persons or to the environment, or (ii) where facts are shown establishing that reasonable attempts to serve a previous warrant have been unsuccessful. If forcible entry is authorized, the warrant shall be issued jointly to the Commissioner and to a law-enforcement officer who shall accompany the Commissioner's duly authorized agent during the execution of the warrant.
E. No court of the Commonwealth shall have jurisdiction to hear a challenge to the warrant prior to its return to the issuing judicial officer, except as a defense in a contempt proceeding, unless the owner or custodian of the place to be inspected makes by affidavit a substantial preliminary showing accompanied by an offer of proof that (i) a false statement, knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in his affidavit for the administrative search warrant, and (ii) the false statement was necessary to the finding of probable cause. The court shall conduct such expeditious in camera review as the court may deem appropriate.
F. After the warrant has been executed and returned to the issuing judicial officer, the validity of the warrant may be reviewed either as a defense to any Notice of Violation issued by the Commissioner or otherwise by declaratory judgment action brought in a circuit court. In any such action, the review shall be confined to the face of the warrant and affidavits and supporting materials presented to the issuing judicial officer unless the owner or person in charge of the premises inspected makes by affidavit a substantial showing accompanied by an offer of proof that (i) a false statement, knowingly and intentionally, or with reckless disregard for the truth, was made in support of the warrant and (ii) the false statement was necessary to the finding of probable cause. The reviewing court shall not conduct a de novo determination of probable cause, but only determine whether there is substantial evidence in the record supporting the decision to issue the warrant.
(1975, c. 377, § 3.1-249.18; 1989, c. 575; 1993, c. 773.)
Sections: Previous 3.1-249.51 3.1-249.52 3.1-249.53 3.1-249.54 3.1-249.55 3.1-249.56 3.1-249.57 3.1-249.58 3.1-249.59 3.1-249.60 3.1-249.61 3.1-249.62 3.1-249.63 3.1-249.64 3.1-249.65 NextLast modified: April 2, 2009