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Welcome back!
While I have 700 other things on this website that need to be done, it would appear that the Emperor has given me an endless work load and an endless supply of topics to blog about here.
While trying to enjoy my Thanksgiving Dinner with approximately 500 guests, all without wearing a mask, all without distancing, consuming plenty of recently prohibited alcohol (prohibited in PA by Sec. of Health Dr. Rachel Levine), and singing holiday carols (prohibited by CA Governor Newson), I was asked a question that I thought needed some serious feedback and attention—
The Department of Health is coming around daily, what do I do if they come to me?
Business owners around my town have been scared straight with the recent government restrictions and the aggressiveness of the Department of Health (DOH). Serving as the Emperors’ modern Schutzstaffel’s (SS) tasks force, the DOH has been bombarding their way into store after store, it doesn’t matter what service you provide, it doesn’t matter what industry you are in, they simply barge right in, uninvited, unexpected, and often, and harass the business owners.
Business owners who want to come off as “good corporate citizens” often play along, promise that they are compliant, and do whatever the Emperor’s Nazi’s tell them. People are terrified of the fines—they are terrified of enforcement—so they simply do whatever they are told.
If you try to ask them, “why are you here?” “is anything wrong” “what did I do wrong?” they will simply respond with nothing—just that you aren’t following the rules. But what are the rules? Who knows…
It is almost as if we are living in the world portrayed by Franz Kafka, in The Trial, where the moment you demand answers, you are responded with “we are lowly employees who can barely make our way through such documents.. but rest assured… That’s the law, what mistake could there be?” You respond by saying, but if you do not know the law, how can I be breaking it, they respond by saying “You see, you claim you are innocent yet you do not know what law you broke!”
Certainly, this catch 22 of stupidity just leaves you stupefied.
Anyway, the point is to discuss here is what do you do, as a business owner, when the DOH pays you a random visit 4 times a week, and harasses you daily?
The end conclusion here is you ought to push back for your rights. Technically, and I’ll have everything posted on our webpage and laid out before, but these rules, regulations and directives of the Emperor are simply illegal, and his excessive enforcement by his SS is also another issue that should be addressed. You must stand up to your bullies, because by simply playing safe and giving in, you do nothing but make it worse for yourself in the long run.
Let’s go into a little background, some humor, some law and some answers!
BACKGROUND.
Back on 10/6/2020, the Emperor decided that he would organize a map of the City into certain zones—RED, ORANGE and YELLOW, and each zone would have certain COVID restrictions. October 6, 2020 Executive Order Cluster Chart EO 202.68
So the first question is—where is his authority to do this? According to Executive Order (EO) No. 202.68, he cited authority in NY Exec §29-a and NY Exec §29-b to issue any directive during a disaster emergency necessary to cope with the disaster.
Of course, that is not what NY Exec §29-a/b permit, but rather he may only be permitted to temporarily suspend certain laws and not create any new laws. On and lets not forget, he also must also provide for the minimum deviation to not upset anything… so this is off the bat illegal and against the law, but whatever.. no one stops the King!
Anyway… so assume for a second that we are just going to ignore his illegal actions here that are contrary to the statute NY Exec §29-a and NY Exec §29-b, lets move on to the restrictions.
He conveniently provided a little map of “clusters.” I have reproduced them here for your convenience!
Whoops… wait.. that’s my God Daughter’s coloring book. Here you go….
Clearly as you can see… these battle lines are clearly based on the science and facts we currently have. If you look a little closer… it almost appears that COVID appears to JUST STOP SHORT of the non-Jewish neighborhoods in Brooklyn!
Silly COVID only seems to infect and be dangerous to predominantly Jewish neighborhoods, like over here on Avenue P and Ocean Parkway. Good thing I live a few blocks away, where COVID doesn’t seem to have such a substantial affect.
Okay, so now… we look to see the where the Emperor provides the data to show that the directives are necessary to cope with the disaster, and why such procedures are reasonably necessary to enforce such directive. See NY Exec §29-a.
Hmm… okay good. He has provided nothing. Good. Very good.
But the point of this Blog isn’t to show how stupid he is—but rather, ever since 10/6/2020, my neighborhood has been HOUNDED DAILY by the City’s modern Schutzstaffel’s (SS) tasks force, known as the Department of Health (DOH).
They come almost every other day and harass the business owners in my neighborhood, demanding that they ensure they are closing prior to 10 pm, ensure they are maintaining a limited capacity, demanding that they enforce masks, enforce 6 ft of space between people, encouraging businesses to engage and throw people out (meanwhile, they fail to mention that the regulation states if you are (i) unable to medically tolerate a face-covering, or (ii) you are able to maintain social distance (i.e. 6 ft between people) you do not have to wear one, nor does a business have to compel you.
I also published the actual law, current and last accessed on 11/29/20, on the website, in the “Policies & Legal” section.
But the question is ARE THEY ALLOWED TO COME EVERY SINGLE DAY AND HOUND US LIKE THIS?
Short Answer. No.
If you currently operate a business that demands an inspection, it will be codified in the statute. For instance—tanning facilities are to permit inspection as necessary pursuant to 10 NYCRR § 72-1.5; those who own “cooling towers” pursuant to 10 NYCRR §4.5; and for those who are engaged in farming, pursuant to 10 NYCRR §15.4.
In every single instance, the inspection right and rules are codified in the statutes.
What about a “personal training studio”, a “social club” or even a “pool hall?” Historically, these were never establishments that required routine visits from the DOH, so how is it that they are permitted to do this now?
The Courts have held that in the context of a regulatory inspection of a business premises, that is carefully limited in time, place, and scope, the legality of the search depends not on consent but on the authority of a valid statute.
Courts, including the United States Supreme Court, have upheld warrantless administrative searches for “pervasively regulated” businesses and for “closely regulated” industries long subject to close supervision and inspection.
People v. Tinneny, 99 Misc. 2d 962, 417 N.Y.S.2d 840, 1979 N.Y. Misc. LEXIS 2369
Not for “personal training studios,” not for “pool halls,” not for local “social clubs.”
I was also told, and I SHIT YOU NOT, that when locked out because the coffee shop required “buzzed entry,” the DOH attempted to climb into the sliding takeout window. That is also not permissible and quite frankly, they are trespassing at that point. The Court is clear, a warrantless administrative searche may be made even without consent provided the entry upon the premises is effectuated without the use of force. People v. Tinneny
Finally, while the general rule is that a businessman’s private commercial property is entitled to 4th Amendment Protection from government intrusion, it is equally clear that a businessman engaged in licensed and regulated enterprise accepts the burden as well as the benefits of his trade. The businessman in a regulated industry in effect consents to the restrictions placed upon him. HOWEVER, the mere existence of a valid regulatory scheme in and of itself cannot derogate constitutional safeguards against unreasonable searches. People v. Tinneny
BIG IDEA. Yes, you are subject to inspection, but REASONABLE, and not EVERY SINGLE DAY OVER NOTHING.
GUIDANCE.
What do you do if you are confronted with the DOH and they endlessly come to inspect your building daily, and harass you incessantly?
- If you are not subject to routine inspections, do not permit entry.
- If you are subject to routine inspections, and they are inspecting you in far greater excess than you are normally subjected to, tell them that they need to leave, there is no reason for them to be here, they came already, and while you consent generally as a business, you do not consent to unreasonable excessive searches.
- Inform them that they are not welcome here, they can call you for a time and an appointment, and if they do not leave, you will physically escort them out.
- This is critical since they are NOT permitted to inspect you without consent if it is by force! This is the law!
- If they refuse to leave, escort them out.
Record all of this, call me, and we will change history.
“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”
Yours in Love, Lifts and Law.
Vinny
