Legal and Admin - Saraniecki Flashcards
Define abate
to put an end to, demolish, do away with, nullify, to void
Define arraignment
the appearance of the defendant before the court to answer the allegations made against him and to enter his plea
Define discovery from a legal perspective
process of obtaining facts or documents from a party to an action which are in his exclusive knowledge or possession
Define “In rem”
the power a court may exercise over property
jurisdiction in rem assumes the property or status is the primary object of the action rather than personal liabilities not necessarily associated with the property
Define malfeasance
doing something a person should not do
official misconduct
Define misfeasance
doing wrongfully and injuriously an act which might otherwise be done in a lawful manner
Define nonfeasance
omitting to do something which should be done
What is a temporary restraining order?
the first of several steps in which the government requests the imposition of immediate restraint of the defendants
temporary, usually 10 days and then defendent either consents to a Decree of Permanent Injunction or hearing may be held on the Preliminary Injunction
What is constitutional law?
Constitutionally based - US and state
What is Statutory law?
legislatively based
fed and state law and local ordinances - food, sewage, wells
What is regulatory law?
administratively based
created by agencies to implement policies set by legislation
What is common law?
judicially based
based on prior court decisions
How do agencies carry out statutory mandates? (4)
administering programs
overseeing enforcement - inspections
making rules - develop regs that meet law requirements
adjudicating noncompliance - internal hearing, then agency official acting in capacity of judge
What is the home rule for authority for public health law?
states authorize local government entities to exercise governmental authority on the local level either by direct delegation or local authority option
What does due process mean?
5th amendment
includes that no person shall be denied equal protection of the law
How does licensure affect constitutional guarantees?
Gives some up
allows government intrusion in the form of investigation and monitoring
loosens warrant requirements when conducting an inspection
licensees have relinquished much of the protection from 5th amendment
What is the purpose of an inspection?
a visitation or survey to determine if conditions hazardous to health exist
not conducted with the particular aim of uncovering evidence for purposes of criminal prosecution
How do the courts view threatening to take legal action in order to enter a facility?
it is seen as coercive in nature, and any consent following from there will not be considered voluntarily given
What are entry protocols for inspections?
normall business hours
use main door
ask for person in charge
present credentials
describe your purpose
ask for permission
document
What happens when an inspection permission is withdrawn
any note made, observations recorded, samples or photos collected remain validly collected as evidence
What is a re-inspection?
No such thing under constitution, but there is in FDA food code
it is a search, not inspection
limited to only areas there to ensure compliance
What authority have the courts given in case of IDLH (EHH) situations?
threatening a public calamity or presenting an imminent and controlling urgency, before which of necessity all private rights must give way
What is an embargo?
tagged with a warning
all persons not to remove, sell, or otherwise dispose of the product until permission is granted by the agency or a court
What is a seizure?
public health authority takes actual possession of the goods
What is the destruction or return of property?
followed by a civil court proceeding to determine whether the goods should be destroyed or returned to the owner
When an order has been ignored, the next step is to
hold an administrative hearing
What is the doing of an authorized act in an unauthorized manner?
Provide an example
misfeasance
ex: closing down an establishment without first giving required statutory notice
What is the scalar process?
the term given to organization wherein lines of authority and responsibility run upward and downward through several levels with a broad functional base at the bottom and a single executive head at the top
What must be achieved in order to convict for failure to obey a violation order?
must be shown that statutory authority for issuance of the order exists
defendant had notice of such
defendant failed to heed the notice
In legal terminology, the power of condemnation is also known as what?
eminent domain
