> Here is the part of the NYS Law that authorizes a state
> appointed apiary inspector (with scant qualifications)
> to come on your property without your permission:
No, that's just a summary from Cornell. The actual law is here, and is even
more pathetic than the summary one would lead one to think:
http://eshpa.org/beekeeping-laws/
Scroll down to NY Article 15, Section 173.
"The commissioner shall have access to all apiaries, structures, appliances
or premises where bees or honey or comb used in apiaries may be. He may open
any hive, colony, package or receptacle of any kind containing or which he
has reason to believe contains any bees, comb, bee products, used beekeeping
appliances, or anything else which
is capable of transmitting contagious or infectious diseases of bees or
which is capable of harboring insects or parasitic organisms adversely
affecting bees, or species or subspecies of bees which have been determined
by him to cause injury, directly or indirectly, to this state's useful bee
population, crops, or other plants."
And in 174:
"No person shall resist, impede or hinder the commissioner or his duly
authorized representatives in the discharge of his or their duties."
...and in 175-d:
"every person violating any of the provisions of the bee disease law shall
be subject to a penalty in the sum of not less than fifty dollars nor more
than two hundred dollars for
the first violation, nor more than four hundred dollars for the second and
each subsequent violation. Under Section 40 of the same law, a person who
shall fail to obey any order of the commissioner, or who shall violate any
rule of the department shall be subject to a penalty not exceeding the sum
of two hundred dollars for each and every first offense, and a penalty not
exceeding the sum of four hundred dollars for a second and each subsequent
offense."
Section 40 itself makes clear that these are PER DAY fines:
"...Every violation of such order, or of the rules of the department, shall
be a separate and distinct offense, and in case of a continuing violation,
every day's continuance thereof shall be a separate and distinct offense."
So, warrantless, suspicionless searches of private homes and property
sometimes with destruction of private property and livestock without due
process, and if the citizen refuses to submit to the warrantless search,
DAILY fines are levied. Over "bee health"? Not exactly the sort of
compelling human health and safety concern surrounding things like West Nile
Virus or antibiotic-resistant tuberculosis, is it? Moreso when far more
civilized places do things like shake the bees onto new gear and burn simply
the woodenware, rather than burn the hive and the bees.
A very thoughtful paper on the issue of "Warrantless Administrative
Searches" and relevant NY court cases is linked to below, but the simple
short summary is that the first person to challenge the NY inspection laws
will win as easily as the Allinders did in "Allinder v. State of Ohio, 614
F. Supp. 282 (N.D. Ohio 1985)", where the Court ordered:
"the Ohio Department of Agriculture is permanently enjoined and restrained
from conducting warrantless, nonconsensual inspections"
There's lots and lots of cases about this subject, many of them Supreme
Court rulings. I can summarize all of it by saying that one needs an
overwhelmingly compelling public interest to make any dent at all in the
"right to be free from unreasonable searches" under Article 1, Section 12 of
the NY State Constitution, and the Fourth Amendment of the United States
Constitution.
Allinder proved that in the slam-dunk Ohio case decades ago, I have no idea
why NY thinks that they are any different. Somehow Ohio has a fine apiary
program, even if they are forced to respect the right of citizens, perhaps
because it is combined inspections with the sort of funded extension program
that gave us people like Jim Tew.
The Allinder ruling (worth a read, as it shows the Court's lack of tolerance
for the State's excuses)
https://law.justia.com/cases/federal/district-courts/FSupp/614/282/2142143/
https://tinyurl.com/yckqfgjn
The beard-stroking thoughtful piece about how this trick never works without
a very compelling and serious public interest to support warrantless search:
http://digitalcommons.tourolaw.edu/cgi/viewcontent.cgi?article=2675&context=
lawreview
https://tinyurl.com/y7tle3m3
***********************************************
The BEE-L mailing list is powered by L-Soft's renowned
LISTSERV(R) list management software. For more information, go to:
http://www.lsoft.com/LISTSERV-powered.html
|
