Request By:
David W. Carby, Esquire
General Counsel
Kentucky Board of
Medical Licensure
3532 Ephraim McDowell Drive
Louisville, Kentucky 40205-0379
Opinion
Opinion By: David L. Armstrong, Attorney General; George Geoghegan, III., Assistant Attorney General
In a letter to this Office former general counsel R. Thomas Carter requested an opinion addressing the following inquiries:
1). Whether either KRS 218A.230(5) or KRS 311.605(2), or both empower investigators of the Kentucky Board of Medical Licensure to inspect pharmacy records?
2). Whether KRS 218A.240 prohibits the seizure of pharmacy records by anyone other than agents of the Cabinet for Human Resources and Kentucky Board of Pharmacy?
3). Whether police officers may seize pharmacy records, without a warrant, upon discovery of evidence during an inspection?
4). In the event you determine that a warrant is required, whether level of probable cause required for the Board's agents, and for police officers respectively is lower than that required for a criminal violation in general?
5). Whether agents of the Board may release to the police patient records, seized by the Board, which the police themselves could not obtain for lack of probable cause?
Before addressing the foregoing guestions, it is necessary to review generally the law on search and seizure as it relates to administrative boards and agencies.
In
Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967), the Supreme Court of the United States held that, although a housing inspector may not conduct a warrantless search, a warrant authorizing such an inspection may be issued upon less than the customary amount of evidence required for a showing of probable cause in a criminal case. The Court said that such a warrant could be issued upon a showing that the proposed inspection complied with "reasonable legislative or administrative standards."
A few years later the Court considered the question of warrantless searches in traditionally closely regulated industries. In
Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S. Ct. 774, 25 L. Ed. 2d 60 (1970), the Court held that a warrant was not necessary to conduct an inspection of the business premises of a liquor licensee because of the "long history of the regulation of the liquor industry during pre-Fourth Amendment days." In
United States v. Biswell, 406 U.S. 311, 92 S. Ct. 1593, 32 L. Ed. 2d 87 (1972), the Court upheld a federal agent's warrantless inspection of a licensed gin dealer's storeroom. This warrantless inspection was, however, conducted pursuant to a federal statute which was specific as to the parameter of such an inspection.
In
Yocum v. Burnette Tractor Co., Inc., Ky.App., 555 S.W.2d 823 (1977), the Court of Appeals considered a case wherein a compliance officer for the Kentucky Occupational Safety and Health Program called upon Burnette Tractor Company to conduct a routine safety and health inspection. The officer had no specific information which led to the search and had no warrant. The officer advised Mr. Burnette that he was relying on KRS Chapter 338 as his authority to conduct a warrantless routine inspection. Burnette refused admission to the officer. The Commissioner of Labor filed a civil action in the Franklin Circuit Court seeking a mandatory injunction requiring burnette to permit the compliance officer to conduct a warrantless inspection. The Circuit Court denied relief and the Commissioner of Labor appealed. The Court of Appeals affirmed the decision of the Circuit Court, but in doing so said:
[2] In the absence of any showing that the business of the Appellee, Burnette Tractor Company, Inc., is inherently dangerous, such as mining operations where inspections have been permitted under Mine Safety Acts; or in the absence of any showing that their business was subject to Federal or state regulation and/or license, such as guns, liquor and drugs; or pervasively regulated or an industry with a long history of regulation, a search and inspection of the closed areas of the premises, i.e., those portions of the premises not customarily open to the public, will not be permitted without a search warrant or court order, either of which must be based upon a showing of probable cause. Id., p. 825. Affirmed and extended in 566 S.W.2d 755 (1978).
This Office concludes that, in view of the wording in the foregoing quotation, warrantless routine administrative inspections and certain types of criminal investigations are compatible with both the Kentucky and the United States Constitutions so long as they are conducted pursuant to narrowly drawn statutes and are confined to an industry which is inherently dangerous or which is closely regulated and licensed, such as in the area of guns, alcohol, or drugs, or which has a long history of close governmental supervision. The pharmacy and medical professions have been closely regulated for years because of the great potential for injury to the public through drug abuse. The members of these professions are licensed by state licensure boards. Certainly in these professions the General Assembly would be authorized to adopt statutes authorizing warrantless routine inspections for the purpose of policing the specific profession involved.
KRS 217.155(1) authorizes the agents of the Cabinet for Human Resources to conduct warrantless inspections at any place where drugs are manufactured, processed, packed or held for sale. The inspection may be conducted at all reasonable times. KRS 217.215(1) grants agents of the state board of pharmacy the same authority to conduct warrantless inspections. This authority for a warrantless search is, howerer, limited to the premises of a pharmacy licensed by the board.
KRS 218A.240 makes it the duty of all peace officers within the state, agents of the Cabinet for Human Resources, and inspectors of the board of pharmacy to enforce the provisions of KRS Chapter 218A and cooperate with all those charged with enforcement of laws relating to controlled substances.
It is true that under KRS 311.605(2) agents of the state board of medical licensure are authorized to conduct warrantless inspections in order to enforce the provisions of KRS 311.550 to 311.620. But this does not authorize an agent of the medical licensure board to conduct a search of any premises other than one licensed under the provisions of KRS 311.550 to 311.620. Note that the authority of inspectors of the board of pharmacy is apparently limited to premises licensed by that board. KRS 217.215(1). KRS 218A.230(5) does not grant agents authority to conduct inspections. It does nothing more than require the persons in legal possession of drugs to permit inspections by those authorized to conduct same by KRS 218A.240.
In answer to your first question, this Office submits that neither KRS 218A.230(5) nor KRS 311.605(2) empowers the investigators of the Kentucky Board of Medical Licensure to inspect pharmacies or pharmacy records.
Although KRS 218A.240(1) makes it the duty of all peace officers to enforce the provisions of KRS Chapter 218, KRS 218A.240(2) and (3) specifically limit the authority to conduct warrantless inspection to agents of the Cabinet for Human Resources and the inspectors of the Board of Pharmacy. 1 Thus, in answer to your second question this Office opines that no one other than agents of the Cabinet for Human Resources, agents of the office of the Attorney General, and agents of the Board of Pharmacy may seize controlled substance records from a pharmacy without a warrant. Note, however, that with respect to legend drugs as opposed to controlled substances, the agents of the Cabinet for Human Resources and agents of the Board of Pharmacy are limited to copying the records. KRS 217.155 (1)(c). This response would likewise suffice for an answer to your third question. Only those specifically authorized to conduct a warrantless inspection may seize evidence under KRS 218A.240. This, of course, is not to say that the police cannot search and seize records without a warrant when there is traditional probable cause to believe a criminal violation is occurring or has occurred and exigent circumstances exist.
In answer to your fourth question, this Office submits that the basis for a warrantless administrative inspection conducted by agents of the Cabinet for Human Resources and inspectors of the Board of Pharmacy, and a warrantless criminal inspection conducted by agents of the Office of Attorney General with respect to controlled substance violations is set forth in KRS 217.155 (1), 217.215(1), 218A.240(2) & (3). The standard 218A.240(2) & (3). The standard for such an inspection is indeed less than that which is required of police officers. Camara, supra.
In response to your final question, this Office opines that records or evidence seized under KRS 218.240(2) & (3) and KRS 311.605(2) respectively by agents of the Cabinet for Human Resources and agents from the Office of the Attorney General, from any place where drugs are legally kept, records or evidence seized by pharmacy inspectors from pharmacies, and records or evidence seized by investigators of the Kentucky Board of Medical Licensure from licensed premises may be shared with the police. This is true even though the police do not have sufficient cause to seize the items themselves. This is required by KRS 218A.240(1). This situation was condoned in
Gettel v. State, 449 So.2d 413 (Fla. Ap. 2 Dist. 1984). You should, nevertheless, be forewarned that in the event the board investigator and the police engage in collusion such as is described in
Basham v. Commonwealth, Ky., 675 S.W.2d 376 (1984), the answer to your question would be otherwise.
The threshould evidentiary requirement for searches and seizures by administrative boards and agencies and agents of the Office of the Attorney General with respect to controlled substances violations is of a lesser quantum than that generally required in the area of criminal law. Probable cause is set out in the statutes. On the other hand, the statutes authorizing said searches and seizures are necessarily more limited in time, place, and scope than in the criminal law generally. We hope the foregoing discussion has been helpful to your board.
Footnotes
Footnotes
1 Executive Order 80-415 and 1982 Acts, Ch. 379 Section 10 grant to the Office of the Attorney General the same authority held by the agents of the Cabinet for Human Resources with respect to KRS Chapter 218A.