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1 Case Study:
Franklin County Public Health (FCPH) began receiving complaints about bed bugs beginning in 2008 from a variety of different locations throughout their jurisdiction. These locations included private homes, apartments, hotels, libraries, schools and day care facilities, firehouses, hospital emergency rooms, student dorms, and jails. With the permission of the Environmental Health (EH) Director and the Health Commissioner, a policy was approved administratively to create a program to address the bed bug concerns within the jurisdiction of FCPH. A FCPH EH Division staff member tracked and responded to 90% of these complaints by either providing bedbug prevention education or an on-site inspection, and spent 75% of his time on the program. This staff member was highly passionate about the bed bug problem and other EH problems within his control. He also had a history of developing and implementing programs to address EH needs and state requirements, because of his passion, that were far in excess of what was normal, to increase the perceived value of his work in FCPH (which he believed was job security). Enforcement against hotel and apartment owners to treat the affected areas were sometimes effective. The FCPHs mission at that time was: Franklin County Public Health improves the health of our communities by preventing disease, promoting healthy living and protecting against public health threats through education, policies, programs and partnerships.
At that time the CDC considered bed bugs a resurging worldwide problem, causing property loss, expense, and inconvenience. The good news is that bed bugs do not transmit disease. The best way to prevent bed bugs is regular inspection for signs of an infestation. Bed bugs should not be considered as a medical or public health hazard, and can be an annoyance because their presence may cause itching and loss of sleep. Sometimes the itching can lead to excessive scratching that can sometimes increase the chance of a secondary skin infection. In the FCPH service area, bedbugs presented a tremendous nuisance to the public. Population groups like the elderly and poor suffered horribly and disproportionately, compared to other groups.
Prior to this time frame, the EPA had banned a pesticide called Propoxor because of the risk of exposure to young children (http://www.huffingtonpost.com/bill-chameides/is-propoxur-the-way-to-no_b_869035.html), the only commercially available pesticide known to eliminate these pests with a few treatments when used according to the label for a cost of around $400-$500. The only other effective method to kill bedbugs was the use of heat treatments that costs thousands of dollars, which needed significant household preparation prior to treatment, and which was not within the abilities of the infirm, elderly, and poor. Without a treatment method that was cost effective, staff felt that they were not doing enough to protect the victims of this nuisance and to improve the quality of their lives. There were no funds available to provide any assistance to pay for the heat treatment method.
A Columbus based advocacy group, which was led by the same person who was in charge of the bed bug response program at FCPH, proposed that letters be written to the governor of Ohio to request that the ban be lifted. The ban was set due to concerns of exposure to small children within the dwellings that were being treated.
The Columbus City Health Department, which served the jurisdiction in Franklin County not served by FCPH, decided by administrative action that they were not going to dedicate staff time to the bed bug problem, because bed bugs were not a public health hazard.
This staff member asked the Environmental Health Director to bring a resolution to the Board of Health (BOH) to approve staff to write a letter asking the governor to force the Ohio EPA to lift the ban on Propoxor. There was no advanced notice to the public at large regarding the resolution. The time, date, and location of the Board meeting was advertised as per state law in the newspaper, 10 days prior to the meeting. The members of the advocacy group knew about the resolution being brought to the BOH
for approval. A resolution before the Board does not require a hearing, but a few members of the advocacy group were in the audience. These members could contribute to the discussion as members of the public if permitted by the Board. This solution would be a win-win for all stakeholders: hotel owners, landlords, FCPH, the pesticide application industry, and the victims of bedbugs.
Using the above case study, answer the question below using the Ethical Analysis Framework in attached Module. The answers MUST be addressed under the three main subject areas in the Framework:
If you were the EH Director, would you bring a resolution to the Board to request that the governor lift the ban. Why or why not? (50 points)
Case 2 Study:
Read the below case entitled C. Rice Packing Co. v. Ballinger, 223 S.W.2d 356 (Ky. Ct. App. 1949). Summarize this case in laymans language using a narrative format in your own words. Do not just copy the case as stated in the document. Do not use legal terminology. For instance, do not use the term appellant, instead translate the term to the definition of appellant for your narrative. Do the same for other legal terms such as complainant, appellant, case at bar that the opinion therein, etc. Translate this legal document into a narrative that a non-lawyer could understand in your own words. (50 points)
C. Rice Packing Co. v. Ballinger, 223 S.W.2d 356 (Ky. Ct. App. 1949)
Court of Appeals of Kentucky (pre-1976)
Filed: September 27th, 1949
Precedential Status: Precedential
Citations: 223 S.W.2d 356, 311 Ky. 38
Docket Number: Unknown
Judges: JUDGE KNIGHT
Nature of suit: Unknown
Appellees, seven in number, including the city of Covington, brought this suit against appellant, C. Rice Packing Co., hereinafter designated as the Company, to enjoin it from operating its slaughter house and meat packing plant in such manner as to make it a nuisance and requiring it to abate the nuisance complained of. The petition sets out numerous acts which it alleges constitute the nuisance complained of. In its answer the defendant denies that it operates its plant in a manner to create a nuisance but alleges that it operates it in accordance with approved and modern methods for the operation of such plants and prays that plaintiffs’ petition be dismissed. With the issues thus made up considerable proof was taken and upon submission of the case the Chancellor, after giving his reasons therefor, entered a judgment perpetually enjoining and restraining defendant “from operating its plant in such manner as would create, cause, or suffer offensive odors to invade the homes of the plaintiffs or to cause such noises as would interfere with the quiet enjoyment of their homes.” It is from this judgment that this appeal is prosecuted.
Facts in the Case.
The appellant Company has been operating a slaughter house and packing plant in the city of Covington for many years and at the present location at Patton and Eastern Avenue for approximately twenty-five years. During all this time, until recent years, the Company has slaughtered at its Covington plant, cattle only. All hogs slaughtered by the Company were slaughtered at its plant in Maysville, Ky. until that plant was destroyed by fire some four or five years ago, since which time both hogs and cattle have been slaughtered at the Covington plant. It is this fact which appears to have given rise to the increased noise, dirt and odors of which appellees complain as the basis of this injunction suit. From 75 to 100 hogs are slaughtered each day three or four days out of the week and from 40 to 60 cattle each *Page 40 working day. After the killings the offal, which includes fat, bones and the intestines from both hogs and cattle, is placed in a cooker or rendering machine, called a melter, about five feet by twelve feet and with a capacity of 10,000 pounds. By steam pressure applied to the jacketed melter, but without the steam coming in contact with the contents, the mass of offal is melted or rendered. The resulting grease is pressed out in an expeller and becomes tallow which is sold to soap manufacturers. The cracklins and other protein residue are sold as stock food, principally for chicken feed. During the rendering process the melter is tightly closed and the steam which is forced around the jacket is carried to the roof of the building into a condenser where it is converted back into water and passes off through the city sewer. In preparing the intestines for the cooker the contents of the intestines of both hogs and cattle are forced out and all this fecal matter, blood from the slaughtering rooms and other waste matter are flushed into the city sewer and the intestines, cleaned of this matter, are washed before being placed in the melter.
According to appellant’s evidence this whole operation, the bringing in of the livestock, the slaughtering of the animals, the rendering of the offal and the disposal of the other wastes, is conducted in the most efficient and approved manner and in such a way that there should be and is no odor of any consequence from its plant, only such normal odors as would come from any well conducted slaughter and packing house; that the Company uses chemicals in the rendering process designed to kill all odors that might result from that operation and that the equipment used in its rendering process is of the approved type for that purpose. Appellant introduced in its behalf some half dozen witnesses consisting principally of salesmen and equipment service men who call on the Company, retail butchers who bought from it and employees who worked for it, all of whom testified that in their visits to the plant or while performing their work in and around the plant they detected no unusual odors emanating therefrom; that the place was kept clean and compared favorably with any other packing plant in the Greater Cincinnati area with which they were familiar. Dr. Ward, veterinarian in charge of Federal Meat Inspection in the Cincinnati district, testified that during the late war *Page 41 when appellant Company operated under Federal Meat Inspection laws, its operations were being carried on in a proper manner so as to meet all Federal requirements; that it no longer operates under Federal Inspection laws and he no longer inspects it; that he has visited it once unofficially within the past six months before he testified and that so far as he was able to determine the plant was operating in a clean and sanitary manner and compared favorably with plants that operate under Federal Inspection.
Over against this evidence produced by appellants is the testimony of some twenty-five witnesses produced by appellees, including the parish priest of that district, the individual plaintiffs, some officials of the city and others living in the neighborhood. Without detailing all this testimony all of it is in substantial agreement that almost constantly there emanates from the slaughter house unpleasant and obnoxious odors, squeals and other noises from animals being slaughtered and that manure, from trucks bringing stock to the plant, falls onto the sidewalks and in general they picture an unsanitary condition resulting from the plant as it was being operated. Some of the words and phrases used by the witnesses in describing the odors were “unpleasant obnoxious very bad sickening hard to describe a sewer could not smell worse not very pleasant cannot mistake an odor like that bad odor uncomfortable awful nauseating so strong you could hardly stand it makes you sick at the stomach terriffic very, very strong it turns my stomach most ungodly smell unbearable never smelled an odor like it terrible horrible so bad I could not sleep has made me nervous revolting vile it gags you it just stinks terrible don’t know what it smells like hard to explain like burnt meat or flesh foul nasty odor like manure smells worse than burnt hair disgusting,” etc., etc. Although different witnesses testified that the obnoxious odors could be detected at different times during the day and night they were in substantial agreement that they are worse at times than at others and better or worse dependent on wind direction and atmospheric conditions.
From a careful reading of all the testimony we think it is fairly established that from some condition in the slaughter house, whether it is from the rendering of the offal, the disposition of the waste matter by way *Page 42 of the sewers, or from some other unknown cause, there emanates from this plant foul and obnoxious odors which makes living near it unpleasant and unhealthy. In spite of appellant’s evidence that the latest approved methods are used in the rendering process and therefore no odors can emanate therefrom we have here preponderant evidence that such odors do emanate from the plant. As was said by this court in another nuisance case, Rogers v. Gibson, 267 Ky. 32, 101 S.W.2d 200, 202, in quoting the trenchant language of the Chancellor below: ” ‘The best test of cause is effect. * * * “Take the bumblebee. Apply to him the recognized aerodynamic tests. From the size, shape and weight of his body, in relation to total wing area, he cannot possibly fly. But the bumblebee does not know this, and he goes ahead and flies anyway.” Results, tho not infallible, are the best test.’ ”
It does not seem reasonable that this parade of witnesses would testify as to those conditions if they did not exist and if they were not affected by the odors and noises of which they complain. If the burden was upon appellees to show that conditions existed which constituted the nuisance complained of they sustained that burden with a preponderance of evidence. In the case of Sexton v. Youngkau, 202 Ky. 256, 259 S.W. 335,337, which was a slaughter house nuisance case, this court said: “It is the rule in this state that a slaughterhouse in a thickly populated community is prima facie a nuisance, Seifried v. Hays, etc., 81 Ky. 377, 50 Am. Rep. 167; and that being true, it was incumbent on appellee to show that his business was conducted in such manner as not to constitute a nuisance. * * * In view of the presumption that the slaughter house was a nuisance * * coupled with the positive evidence of those who were in a position to see and know the actual conditions from day to day, we are constrained to the view that the burden imposed upon appellee was not sustained.”
We think the Chancellor was justified in his findings of fact from the evidence that the conditions complained of did exist and which justified his issuance of the injunction if he had the authority to do so under the law, which point we will next consider.
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