2006 Code of Virginia § 3.1-249.58 - Enforcement

3.1-249.58. Enforcement.

A. For the purpose of carrying out the provisions of this chapter theCommissioner may enter any public or private premises operating as apesticide business at reasonable times, with the consent of the owner ortenant thereof, upon presentation of appropriate credentials in order: (i) tohave access for the purpose of inspecting any equipment subject to thischapter, (ii) to inspect storage or disposal areas, (iii) to inspect orinvestigate complaints of injury to humans, animals, birds or property, (iv)to sample any pesticide being applied or to be applied, or (v) to enforce anyother provision of this chapter.

B. Should the Commissioner be denied access to any public or private premisesoperating as a pesticide business where such access was sought for thepurposes set forth in this chapter, he may apply for an administrative searchwarrant, based upon a petition demonstrating probable cause and supported byan affidavit, issued by any judge having authority to issue criminal warrantsor a magistrate whose territorial jurisdiction encompasses the premises to beinspected or entered, if the judicial officer is satisfied that there isreasonable and probable cause for the issuance of an administrative searchwarrant. No such warrant shall be issued pursuant to this section exceptupon probable cause, supported by affidavit, particularly describing theplace, things or persons to be inspected or tested, and the purpose for whichthe inspection, testing, or collection of samples for testing is to be made.Probable cause shall be deemed to exist if either (i) reasonable legislativeor administrative standards for conducting such inspection, testing orcollection of samples for testing are satisfied with respect to theparticular place, thing, or person, or (ii) there is cause to believe thatthere is a condition, object, activity, or circumstance which legallyjustifies such inspection, testing, or collection of samples for testing.The supporting affidavit shall contain either a statement that consent toinspect, test, or collect samples for testing has been sought and refused orfacts or circumstances reasonably justifying the failure to seek such consentin order to enforce effectively the pesticide control laws and regulations ofthe Commonwealth which authorize such inspection, testing, or collection ofsamples for testing. In the case of an administrative search warrant basedon legislative or administrative standards for selecting places of businessfor inspection, the affidavit shall contain factual allegations sufficient tojustify an independent determination by the court official that theinspection program is based on reasonable standards and that the standardsare being applied to a particular place of business in a neutral and fairmanner. The issuing judicial officer may examine the affiant under oath oraffirmation to verify the accuracy of any matter in the affidavit.

C. Any administrative search warrant shall be effective for a period of notmore than fifteen days, unless extended or renewed by the judicial officerwho signed and issued the original warrant. The warrant shall be executedand shall be returned to the judicial officer by whom it was issued withinthe time specified in the warrant or within the extended or renewed time.The return shall list any records removed or samples taken pursuant to thewarrant. 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, operatoror agent in charge of the premises, unless specifically authorized by theissuing judicial officer upon a showing that such authority is reasonablynecessary to effect the purposes of the law or regulation being enforced. Anentry pursuant to this warrant shall not be made forcibly, except that theissuing officer may expressly authorize a forcible entry (i) where facts areshown sufficient to create a reasonable suspicion of an immediate threat tothe health and safety of persons or to the environment, or (ii) where factsare shown establishing that reasonable attempts to serve a previous warranthave been unsuccessful. If forcible entry is authorized, the warrant shallbe issued jointly to the Commissioner and to a law-enforcement officer whoshall accompany the Commissioner's duly authorized agent during the executionof the warrant.

E. No court of the Commonwealth shall have jurisdiction to hear a challengeto the warrant prior to its return to the issuing judicial officer, except asa defense in a contempt proceeding, unless the owner or custodian of theplace to be inspected makes by affidavit a substantial preliminary showingaccompanied by an offer of proof that (i) a false statement, knowingly andintentionally, or with reckless disregard for the truth, was included by theaffiant in his affidavit for the administrative search warrant, and (ii) thefalse statement was necessary to the finding of probable cause. The courtshall conduct such expeditious in camera review as the court may deemappropriate.

F. After the warrant has been executed and returned to the issuing judicialofficer, the validity of the warrant may be reviewed either as a defense toany Notice of Violation issued by the Commissioner or otherwise bydeclaratory judgment action brought in a circuit court. In any such action,the review shall be confined to the face of the warrant and affidavits andsupporting materials presented to the issuing judicial officer unless theowner or person in charge of the premises inspected makes by affidavit asubstantial showing accompanied by an offer of proof that (i) a falsestatement, knowingly and intentionally, or with reckless disregard for thetruth, was made in support of the warrant and (ii) the false statement wasnecessary to the finding of probable cause. The reviewing court shall notconduct a de novo determination of probable cause, but only determine whetherthere is substantial evidence in the record supporting the decision to issuethe warrant.

(1975, c. 377, 3.1-249.18; 1989, c. 575; 1993, c. 773.)