Are Philadelphia small businesses required to let “vaccination inspectors” into their establishments to verify patrons and employees’ vaccination status?
Despite the widespread availability of vaccines, an extremely low death rate, and proof that restrictions are destroying small businesses struggling to survive, Philadelphia, unlike any other county in Commonwealth or New Jersey, is requiring that restaurants verify patron vaccination status. These Philadelphia restaurants are required to turn away any patron who isn’t vaccinated even if that patron agrees to wear a mask upon entering and exiting.
The same city with a skyrocketing crime rate, a failing education system, a widespread business failures, encouraged all citizens to stay home and practice social distancing to help slow the spread of the virus. Even after various vaccines and a low death, the City, run by career government employees, however, apparently isn’t concerned about helping small businesses recover.
Many businesses owners don’t agree with the vaccination verification mandate and believe that it is simply not economically feasible to turn away paying customers without losing their businesses entirely especially after nearly 2 years of restrictions. They want to operate freely despite the order. Our criminal defense law firm has received questions about whether a business owner in Pennsylvania and New Jersey must open their door if enforcement official demand entry to verify enforcement.
Is the Philadelphia vaccination verification enforcement an illegal search?
The answer to this question is in the state and US Constitution, which prohibits the illegal search and seizure of a person’s residence or place of business without a warrant (Article 1, Section 8 of Pennsylvania Constitution; Article 1, Paragraph 7 of the New Jersey Constitution; 4th & 14th Amendments to the US Constitution).
Law Enforcement Searches & Seizure
All citizens who maintain a business in Pennsylvania and New Jersey maintain a presumption against warrantless searches by law enforcement (Police, State Police, FBI, DEA, ATF). This presumption is very similar to the presumption enjoyed by citizens for their residence. All warrantless searches are considered unconstitutional unless the government can overcome the presumption. As I have written in previous blog articles, videos, and stated in podcasts, the search of a home or place of business is much different that the search of a vehicle. While New Jersey, unlike Pennsylvania, allow the warrantless search of vehicles provided that police can establish probable cause for the search, the expectation of privacy in a vehicle is much lower.
Never consent to a search!
While you have these constitutional protections within your home and place of business, giving consent or making voluntary, and possibly statements, could possible negate them! Never give consent to enter or search. Never make any statement! This is the single number one rule that every criminal defense lawyer should stress to their clients and their families. Giving consent and making statements will never help your case!
Administrative Searches
There is a difference between the search of a business and a home, however, with regards to administrative searches (Food & Drug Administration (FDA), Liquor Control Board (LCB), L&I (Licenses & Inspection), Health Department). If your business falls within an industry which is highly regulated, for instance liquor, food services, real estate, cosmetology, etc., the knock at the door may be the Department of Public Health, the FDA, Liquor Control Board, or some other government agency which is authorized to search your building as a condition to your license to operate. These administrative searches fall outside of the protections under the Constitution.
This distinction will allow Philadelphia the ability to enforce its vaccination mandate. While business are required to admit inspectors, patrons aren’t required or obligated to speak with them. They can simply ignore them and if an inspector attempts to physically remove a patron, they legally permitted to use whatever force necessary to defend themselves or others against harm.
The 3 Requirements of Warrantless Administrative Searches
Warrantless administrative searches are legal and therefore permissible for a regulated business if they satisfy 3 criteria:
- There must be a substantial government interest.
- The warrantless inspection must be necessary to further the government interest which would include maintain certain regulatory safety practices.
- A regulatory statute must exist which advises the owner of the business that a search is being made pursuant to the law and has a properly defined scope.
While administrative searches are an exception to the search warrant requirement, there are still constitutional protections associated with them. An administrative search that is not clearly authorized by any regulatory statute or regulation is inconsistent with the Fourth Amendment and therefore unconstitutional.
What is the bottom line about Philadelphia’s vaccination mandate
If your Philadelphia small business is shut down due to this new vaccination mandate you do have the right to say no if police or other members of law enforcement want to come in or search the property. You DO NOT, however, have the same right if it an administrative agency such as the Pennsylvania Department of Health and the search is administratively authorized. The administrative search is an exception to the warrant requirement even if members of law enforcement participate in it provided that there is a regulatory basis for it.
How administrative searches can turn into criminal prosecutions
In closing, please understand that if during an administrative search or inspection some type of contraband (illegal drugs, guns, firearms) is found, you can be prosecuted for it. If your business is closed by force and or if contraband is found, do not make any statement to police or any member of any government agency. All of your statements are potentially incriminating and admissible at a later trial or other administrative hearing.
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