                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                    August 24, 2012 Session

   PUBLIX SUPER MARKETS, INC. v. TENNESSEE DEPARTMENT OF
   LABOR AND WORKFORCE DEVELOPMENT, LABOR STANDARDS
                          DIVISION

                  Appeal from the Chancery Court for Davidson County
                    No. 11211-I    Claudia Bonnyman, Chancellor


                No. M2012-00089-COA-R3-CV - Filed November 16, 2012


ANDY D. BENNETT , J., concurring

       I fully concur in parts A and B of the opinion’s analysis section; however, I have some
reservations regarding part C. I have chosen to write separately to highlight my concerns about the
implications of this opinion for administrative inspections generally.

        The McLaughlin case, upon which the court’s opinion relies, indicates that “an exception to
the warrant requirement has been recognized for searches of pervasively or closely regulated
industries.” McLaughlin, 849 F.2d at 993 (italics in original). The Department maintains that Publix
operates in a pervasively regulated industry, but, as the opinion observes, “the Department cites to
no authority or facts to support this contention.” Without evidence in the record outlining the
licensing, safety, or other regulatory provisions imposed on grocery stores, we are unable to
determine whether Publix is part of a pervasively or closely regulated industry. I am of the opinion
that this deficiency in the record, as well as the Department’s failure to cite relevant authority in
support of its position, has created precedent that could frustrate essential inspections in the future.

        In this case, Publix delayed the Department’s inspection of the records of the minors who
work there. While I am not saying Publix did so for improper reasons, such a delay in order to get
an inspection warrant could allow an employer who did not keep its records up-to-date time to fix
any deficiencies before the records could be ordered produced. This result is clearly contrary to the
intent of the Tennessee Child Labor Act, detrimental to its enforcement, and contrary to the
important interest of protecting minors from the abuse and consequences of overwork.
