§ 23-28.2-20 - Right of entry.
SECTION 23-28.2-20
§ 23-28.2-20 Right of entry. – (a) In the discharge of its duties, the authority having jurisdiction shallhave the authority to enter at any reasonable hour, any building, structure, orpremises 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 andadopted thereunder. If any owner, occupant, or other person refuses, impedes,inhibits, interferes with, restricts, or obstructs entry and free access toevery part of the structure, operation, or premise where inspection authorizedby this code is sought, the authority having jurisdiction may:
(1) Seek in a court of competent jurisdiction a searchwarrant so as to apprise the owner, occupant, or other person concerning thenature of the inspection and justification for it, and may seek the assistanceof police authorities in presenting the warrant;
(2) Revoke or suspend any license, permit, or otherpermission 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 suchplaces as the fire marshal or his or her designee deems necessary to carry outhis or her responsibilities under any provision of law subject to theprovisions set forth below. Places of assembly, including nightclubs, shall bevisited at least annually and reviewed for operational compliance during actualhours of maximum operation, regardless of the time. Complete inspections ofnightclubs, shall be conducted at least annually.
(4) For criminal investigations, the fire marshal and thedeputy state fire marshal(s) on his or her full time staff shall, pursuant tochapter 5 of title 12, seek a search warrant from an official of a courtauthorized to issue warrants, unless a search without a warrant is otherwiseallowed or provided by law;
(5) All administrative inspections shall be conductedpursuant 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 administrativeinspections if conducted under the following circumstances, in accordance withthe applicable constitutional standards:
(1) For closely regulated industries;
(2) In situations involving open fields or conditions thatare in plain view;
(3) In emergency situations;
(4) In situations presenting an imminent threat to theenvironment or public health, safety or welfare;
(5) If the owner, operator, or agent in charge of thefacility, property, site or location consents; or
(6) In other situations in which a warrant is notconstitutionally required.
(c) Whenever it shall be constitutionally or otherwiserequired by law, or whenever the authority having jurisdiction in his or herdiscretion deems it advisable, an administrative search warrant, or itsfunctional equivalent, may be obtained by the authority having jurisdictionfrom a judge or magistrate for the purpose of conducting an administrativeinspection. The warrant shall be issued in accordance with the applicableconstitutional standards for the issuance of administrative search warrants.The administrative standard of probable cause, not the criminal standard ofprobable cause, shall apply to applications for administrative search warrants.
(1) The need for, or reliance upon, an administrative warrantshall not be construed as requiring the authority having jurisdiction toforfeit the element of surprise in his or her inspection efforts.
(2) An administrative warrant issued pursuant to thissubsection must be executed and returned within ten (10) days of its issuancedate unless, upon a showing of need for additional time, the court ordersotherwise.
(3) An administrative warrant may authorize the review andcopying of documents that are relevant to the purpose of the inspection. Ifdocuments must be seized for the purpose of copying, and the warrant authorizessuch seizure, the person executing the warrant shall prepare an inventory ofthe documents taken. The time, place and manner regarding the making of theinventory shall be set forth in the terms of the warrant itself, as dictated bythe court. A copy of the inventory shall be delivered to the person from whosepossession or facility the documents were taken. The seized documents shall becopied as soon as feasible under circumstances preserving their authenticity,then returned to the person from whose possession or facility the documentswere taken.
(4) An administrative warrant may authorize the taking ofsamples of materials that are part of, or are generated, stored or treated atthe facility, property, site or location. Upon request, the fire marshal shallmake split samples available to the person whose facility, property, site orlocation is being inspected.
(5) Service of an administrative warrant may be required onlyto the extent provided for in the terms of the warrant itself by the issuingcourt.
(d) Penalties. Any willful and unjustified refusal of rightof entry and inspection pursuant to an administrative warrant shall constitutea contempt of court and shall subject the refusing party to sanctions, which inthe court's discretion may result in up to six (6) months imprisonment and/or amonetary fine of up to ten thousand dollars ($10,000) per refusal.