On November 18, 2021, two inspectors from the Division of Occupational Safety and Health were denied consent to inspect the premises of Calvary Chapel of San Jose (Employer), a private school located on church grounds.

On November 29, 2021, the Division sought an “inspection warrant” from the Santa Clara County Superior Court. The Division supported their request for a warrant with two declarations: one from Richard Haskell (Haskell), Associate Safety Engineer, and another from Lisa Brokaw (Brokaw), Staff Attorney. Haskell’s declaration stated, “We were directed to open this inspection in response to a complaint made to the Division’s Fremont District Office on November 16, 2021 that Calvary Christian Academy was not complying with Title 8, section 3205, COVID-19 Prevention, face covering and outbreak reporting requirements.”

On November 29, 2021, a Judge of the Santa Clara County Superior Court granted the Division’s request for an inspection warrant. The Division subsequently conducted a site inspection, commencing on November 30, 2021.

On March 10, 2022, the Division issued five citations to Employer, alleging twelve violations of safety orders contained in title 8 of the California Code of Regulations,1 and totaling $67,330 dollars in penalties. Employer filed timely appeals of all the citations on March 21, 2022.

On July 18, 2022, the Employer filed a motion to suppress evidence, arguing all evidence from the inspection should be suppressed because the warrant had been issued without probable cause. The Division filed an opposition on July 28, 2022. Employer filed a reply on August 16, 2022.

On September 1, 2022, Administrative Law Judge (ALJ) Kerry Lewis issued an Order on Motion to Suppress Evidence, which granted Employer’s motion. The ALJ, relying on the Board’s prior jurisprudence, concluded she had jurisdiction to rule on the motion to suppress evidence, and granted the motion after determining the warrant had been issued without probable cause. The ALJ’s Order also excluded any evidence arising from the Division’s inspection of the site.

The Division filed a Petition for Reconsideration with the Occupational Safety and Health Appeals Board (OSHAB) in the case of In Re Calvary Chapel San Jose -1564732 (November 2023). In this case OSHAB affirmed the ALJ’s ruling that Cal/OSHA’s warrant application lacked the requisite probable cause. However the case was remanded for a ruling, on the application of the good faith exception to suppression of the evidence.

Labor Code section 6314, subdivision (b), states that if permission to investigate a place of employment is refused, the Division may seek an inspection warrant pursuant to Code of Civil Procedure section 1822.50 et seq. “An inspection warrant is an order . . . signed by a judge of a court of record, directed to a state or local official, commanding him to conduct any inspection required or authorized by state or local law or regulation relating to building, fire, safety, plumbing, electrical, health, labor, or zoning.”

The Division’s petition for reconsideration argues, at length, that the Board and its ALJ lack authority to evaluate the validity of the inspection warrant issued by the Santa Clara County Superior Court, and lack authority to grant Employer’s motion to suppress evidence. The Division argues that the California Constitution solely vests courts with original jurisdiction to review such warrants for errors. The Division contends the Legislature can only divest the courts of such jurisdiction if they enact a law pursuant to express or implied constitutional authority, which the Division argues did not happen here.

Additionally, although the Division recognizes that the Board has previously found it had authority to review an inspection warrant based on the California Supreme Court’s decision in Goldin v. Public Utilities Commission (1979) 23 Cal.3d 638 (Goldin), the Division argues that the Goldin decision is inapposite, as it concerns the Public Utilities Commission (PUC) a much different agency with different constitutional authority.

Additionally, although the Division recognizes that the Board has previously found it had authority to review an inspection warrant based on the California Supreme Court’s decision in Goldin v. Public Utilities Commission (1979) 23 Cal.3d 638 (Goldin), the Division argues that the Goldin decision is inapposite, as it concerns the Public Utilities Commission (PUC) a much different agency with different constitutional authority.

Once an appeal has been initiated before the Board, the Board’s operative statutes require parties to contest the citations, and all related issues, to a final decision before the Board prior to seeking judicial review. (Lab. Code, § 6600-6633.) The statutes permit a party aggrieved by a final order or decision of a hearing officer to file a petition for reconsideration before the Board. (Lab. Code, § 6614.) The filing of such a petition for reconsideration is a prerequisite to judicial review, and all issues not in that petition are waived. (Lab. Code, §§ 6615, 6618.) Labor Code section 6615 states,

OSHAB then noted “Taken together, Labor Code sections 6615 and 6618 set forth an exhaustion requirement, providing that all objections, irregularities, and illegalities arising from a final order or decision are waived, and not subject to court review, unless first presented to the Board via a petition for reconsideration. As relevant here, these statutes demonstrate that the adequacy of the warrant must first be presented to the Board, and such remedies exhausted, to prevent waiver.” Thus the Board ruled that it had jurisdiction to entertain a motion to suppress.

Cases discussing the constitutionality of inspection warrants in Cal/OSHA proceedings have stated that the search and seizure requirements of the Fourth Amendment and Article I, section 13, of the California Constitution mandate a probable cause requirement for Cal/OSHA inspection warrants. (Salwasser Mfg. Co. v. Mun. Court (1979) 94 Cal.App.3d 223, 231-232 (Salwasser I).)

The standard of probable cause, i.e., the level of scrutiny required for a Cal/OSHA inspection warrant, is detailed in Salwasser Mfg. Co. v. Occupational Safety & Health Appeals Bd. (1989) 214 Cal.App.3d 625 (Salwasser II). Salwasser II found that the criminal probable cause standard is not applicable when the warrant application is based on employee complaints, and instead called for a “lesser standard of administrative probable cause.” (Salwasser II, supra, 214 Cal.App.3d at 630.) Salwasser II relied on federal circuit court decisions when discussing and defining this lesser standard of administrative probable cause.

“The Board follows the good faith exception to the exclusionary rule. (Southwest Marine, Inc., supra, Cal/OSHA App. 96-1902.) The Board has previously noted that it will only exclude evidence pursuant to the exclusionary rule when it can be established that the warrant was not obtained in good faith.

The Occupational Safety and Health Appeals Board concluded that the “ALJ has not yet ruled on application of the good faith exception in this particular case. Therefore, it remanded this matter back to hearing operations for consideration, and a ruling, on the application of the good faith exception in this case.

Cal//OSHA May Obtain Search Warrant but Must Show Probable Cause