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2008-UP-070 - Burriss Electrical v. Office of Occupational Safety and Health

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Burriss Electrical, Inc., Appellant,

v.

Office of Occupational Safety and Health, South Carolina Department of Labor, Licensing and Regulation, Respondent.


Appeal From Lexington County
 Clyde N. Davis, Jr., Circuit Court Judge


Unpublished Opinion No.  2008-UP-070
Submitted January 2, 2008 – Filed January 23, 2008


AFFIRMED


Charles F. Thompson, Jr., of Columbia, for Appellant.

Joseph N. Connell, of Lugoff, for Respondent.

PER CURIAM: Burriss Electrical, Inc. (Burriss) appeals from a South Carolina Occupational Safety and Health Review Board (the Review Board) decision finding Burriss in willful violation of the South Carolina Occupational Safety and Health Regulation 71, 1-1926.651(k)(1)(1991)[1].  After two employees were killed when a vertical wall of an earthen trench collapsed, the Office of Occupational Safety and Health in the South Carolina Department of Labor, Licensing and Regulation (the Department) cited Burriss for four serious violations and one willful violation of the South Carolina Occupational Safety and Health Regulation (the Act).  Burriss appeals the citation for the willful violation, arguing that (1) the Review Board misapplied the legal standard for willful conduct in reaching a finding of willfulness; and (2) under an appropriate application of the standard there exists no substantial evidence to support a finding Burriss committed a willful violation.  We affirm.[2] 

FACTS

Burriss is an electrical systems contractor.[3]  During 2002 and 2003, Burriss served as the electrical contractor for the building of the Blythewood High School in Blythewood, South Carolina.  At the Blythewood site, Burriss dug a trench approximately 121 feet long in order to install feeder conduit for power and data communications underneath the building.  Roughly eighty feet of the trench measured from six to eight feet deep, making that portion of the trench wall essentially vertical.   

On the morning of January 28, 2003, a portion of the trench wall collapsed on several Burriss employees working in the trench.  The cave-in partially buried two of the employees and caused their deaths.  The Department sent an inspector to conduct a fatality inspection of Burriss’ Blythewood site.  As a result of the inspection, Burriss was cited for four serious violations (Citation 3 parts 1, 2, 3, and 4) and one willful violation (Citation 4).[4]  The violations are as follows:

Citation 3 (Serious)

1. SCCR 71, 1-1926.21(b)(2) - Failure to instruct each employee in the recognition and avoidance of unsafe conditions. . . no trench hazard recognition [or] avoidance safety training provided to employees in trench in excess of 7 feet deep . . .

2. SCCR 71, 1-1926.100(a) - Failure to require employees working in areas where there is a possibility of head injury . . . to be protected by helmets [in that] . . . no protective helmets [were] worn by 4 employees in [a] trench in excess of 7 feet deep . . .

3. SCCR 71, 1-1926.651(c)(2) - Failed to locate a stairway, ladder, ramp or other safe means of egress in trench excavation that are 4 feet or more in depth . . .

4. SCCR 71, 1-1926.652(a)(1) - Failed to protect each employee in an excavation from cave-in by an adequate protection system [and] SCCR 71, 1-1926.652(b)(1)(i) - Failed to slope excavations at an angle not steeper than one and one-half horizontal to one vertical . . .

Citation 4 (Willful)

1. SCCR 71, 1-1926.651(k)(1) - Failure to make daily inspections of excavations . . . by a competent person for evidence of a situation that could result in possible cave-ins, . . .

          A competent person is defined by the Act as:

[O]ne who is capable of identifying existing and predictable hazards in the surroundings, or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them.  In order to be a competent person for the purpose of this standard one must have had special training in, and be knowledgeable about soils analysis . . . the use of protective systems, and the requirements of this standard. 

S.C. Code Regs. 71, 1-1926.650(b) (1991).

Burriss filed a notice of protest and a hearing was held before a single Review Board member.  At the hearing, Burriss did not contest the four serious violations under Citation 3.  The only issue before the Review Board member was the classification of a willful violation under Citation 4. 

At the hearing, Tommy Burriss testified he had been to the Blythewood site a week prior to the excavation of the trench.  He stated it was his understanding the trench was to be just over three feet deep.  He further testified when he finally saw the trench on the day of the cave-in he was “extremely shocked to see that ditch that deep.”  He said “[i]t was horrifying” and “dangerous.”  He stated that had he been at the site he “would have told people to get out of [the] ditch . . . [t]here’s just no way [he] would have exposed anybody to that.” 

When asked whether, at the time of the cave-in, he was aware of the Act’s trenching regulations requiring a competent person to perform daily inspections, Tommy Burriss stated he was not aware of the regulations, nor did he have a copy of the OSHA standards, general standards, or construction standards.  Yet, Tommy Burriss was questioned about an August 2000 citation issued at a Burriss’ worksite at Stivers’ Jeep.  Burriss had both erected scaffolding and dug a trench at the Stivers’ Jeep worksite.  With respect to the scaffolding, the Department cited Burriss for failure to install a guardrail along the sides and end of the scaffolding platforms, classified the violation as “serious,” and proposed a $300 fine.  With respect to the trench, the Department cited Burriss for failure to perform daily inspections by a competent person pursuant to Regulation 71, 1-1926.651(k)(1) of the South Carolina Code.  The Department classified the violation as “other than serious” and did not impose a fine therefor.  Burriss protested the citation for the scaffolding violation and eventually entered a settlement agreement wherein Burriss agreed to pay a $120 fine and “provide refresher training for its employees in fall protection.”  But, because no penalty was proposed for the citation for the trench violation, Burriss did not protest the trench violation. 

Tommy Burriss admitted he read the Stivers’ Jeep citation for lack of a competent person.  Yet, at the time of the Blythewood site accident, Tommy Burriss testified he maintained the belief his site superintendant, David Marshall was “a competent person upon my definition.”  He admitted at the hearing, in hindsight, “now I know what a competent person definition is by OSHA and my competent person definition are two different things.”

The Review Board member upheld the “willful” classification in Citation 4.  Burriss filed a petition for review by the entire Review Board.  The petition was denied.  Burriss then appealed the matter to the circuit court.  The circuit court affirmed the Review Board’s denial of discretionary review as well as the Review Board member’s order upholding the citation and corresponding penalty.  This appeal follows. 

STANDARD OF REVIEW

This court’s review of an administrative agency’s findings of fact is limited.  The court “shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact” when those facts are supported by substantial evidence.  S.C. Code Ann. §1-23-380(A)(6) (2005)[5]; Dorman v. Dep’t of Health & Envtl. Control, 350 S.C. 159, 164-65, 565 S.E.2d 119, 122 (Ct. App. 2002).  In determining whether the agency’s decision was supported by substantial evidence, this court need only find, looking at the entire record on appeal, evidence from which reasonable minds could reach the same conclusion that the administrative agency reached.  DuRant v. S.C. Dep’t of Health & Envtl. Control, 361 S.C. 416, 420, 604 S.E.2d 704, 706-07 (Ct. App. 2004).  The mere possibility of drawing two inconsistent conclusions from the evidence does not prevent a finding from being supported by substantial evidence.  Id. at 420, 604 S.E.2d at 707.  Further, the burden is on the appellant to prove convincingly that the agency’s decision is unsupported by the evidence.  See Waters v. S.C. Land Res. Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996).

A court can reverse an agency’s findings, inferences, conclusions, or decisions if they are “clearly erroneous in view of the reliable, probative and substantial evidence on the whole record,” or “arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”  S.C. Code Ann. §1-23-380(A)(6) (2005).  Further, a court may reverse where an agency’s decision is affected by an error of law.  Id.

LAW/ANALYSIS

Burriss asserts the circuit court misapplied the legal standard for a willful violation and argues, under an appropriate application of the standard, there is no substantial evidence to sustain a citation for a willful violation of the Act.  We disagree.

The Act itself does not define “willful” nor has this court had an opportunity to interpret its meaning.  In its decision, the Review Board member defined a willful violation as “committed voluntarily with intentional disregard or demonstrated plain indifference to the Act,” citing Occupational Safety and Health Law, Mark A. Rothstein, West’s Employment Law Series, St. Paul, Minn. 1998, §315.  See also Valdak Corp. v. Occupational Safety and Health Review Comm’n, 73 F.3d 1466, 1468 (8th Cir. 1996) (finding to support a classification of “willful” there must be substantial evidence the employer, intentionally disregarded or was plainly indifferent to the requirements of the Act); Intercounty Constr. Co. v. Occupational Safety and Health Comm’n, 522 F.2d 777, 780 (4th Cir. 1975), cert. denied, 423 U.S. 1072 (1976).  When faced with a problem of statutory construction, we accord great deference to the interpretation given the statute by the agency charged with its administration.  See Dunton v. S.C. Bd. of Exam’rs in Optometry, 291 S.C. 221, 223, 353 S.E.2d 132, 133 (1987) (“The construction of a statute by the agency charged with its administration will be accorded the most respectful consideration and will not be overruled absent compelling reasons.”). 

In the context of occupational safety and health laws, willfulness requires more than the constructive knowledge or mere knowledge that would suffice for a non-willful violation, but does not require a showing of malicious intent.  Intercounty Constr. Co., 522 F.2d at 780, cert. denied, 423 U.S. 1072 (1976).  “An act may be ‘willful’ if the offender shows ‘indifference’ to the rules; he need not be consciously aware that the conduct is forbidden at the time he performs it, but his state of mind must be such that, if he were informed of the rule, he would not care.”  AJP Constr., Inc. v. Sec. of Labor,  357 F.3d 70, 74 (D.C. Cir. 2004)(citation omitted). 

Employers are presumed to be familiar with standards that affect their business; therefore, ignorance or even misunderstanding of the standards does not excuse noncompliance.  Sec. of Labor v. Hallmark Excavating, Inc., 6 OSHC 1898 (1978).  Similarly, an omission or failure to act is willful, if it is done voluntarily and intentionally.  Havens Steel Co. v. Occupational Safety and Health Comm’n, 738 F.2d 397, 401 (10th Cir. 1984).  Furthermore, a prior warning from OSHA may be a factor in determining if willfulness exists.  Valdak, 73 F.3d at 1469.          

Burriss contends the circuit court’s decision contains various misapplications of the willful standard and a misinterpretation of the evidence and testimony presented to the Review Board member.  

The Review Board member found sufficient evidence to sustain a willful violation of the Act as follows:

The preponderance of evidence shows that [Burriss] demonstrated plain indifference to the Act in many ways . . . If not intentional disregard, [Burriss’] clear indifference to the Act is very apparent by the uncontested absence of knowledge of safety and health standards applicable or potentially applicable to a rapidly growing commercial electrical contracting business, lack of possession of copies of the OSHA standards for general industry or construction, lack of [Burriss]-provided training of employees and supervisors for all potential hazards of the job, reliance on general contractors to provide adequate safety training for one’s employees, lack of attention to the warning represented by a previous citation related to a specific trenching safety practice that would have helped eliminate other violations, and lack of attention to the practices of other nearby contractors at the same job site as to trenching safety. 

The circuit court likewise relied on similar evidence to uphold the finding of willfulness.  The court stated the fact “[Burriss] made no effort to acquaint anyone, including itself, with the occupational safety and health regulations . . . [and] did not even possess a copy of the occupational safety and health standards” evidenced Burriss’ plain indifference to general safety considerations.

We find there is evidence of a willful violation from the complete absence of knowledge by Burriss of the safety and health standards applicable to its business at the time of the cave-in.  Burris does not dispute he was previously cited for various violations of OSHA standards, one of which was similar to the citation at issue herein.  As indicated, the circuit court found Burris made no effort whatsoever to acquaint himself or anyone else with the applicable standards.

An intentional disregard or plain indifference to the required standards suffices to demonstrate a willful act.  One cannot be aware of the existence of regulatory standards, have the means to review and learn them, consciously fail to do so and then use lack of knowledge as an excuse.  To willfully turn one’s head to knowledge and to understanding the requirements of the law after being exposed to a similar citation in the past is tantamount to a conscious act, a conscious disregard, which would meet the definition of a willful act.  One’s act of avoiding knowledge or completely disregarding it might also be labeled as an intentional and voluntary act. Arguably, some form of indifference, in and of itself, without more, may not rise to the level of a willful act. However, we need not reach that question since the type of indifference herein indeed rises to the level of a willful act or conscious disregard of the existence of the standards and is much more than just a misunderstanding or a mere negligent or careless act.  The policy of the law does not provide a shield to one who is consciously aware of a regulatory scheme but intentionally disregards or chooses to disavail himself of, or avoid, such knowledge or requirements.  To do otherwise would defeat the intent and goals of the regulatory scheme.

Because we find this evidence alone sufficient to support a finding of willfulness, we need not determine whether the circuit court erred in its application of the willful standard or interpretation of the other evidence as suggested by Burriss.  Accordingly, the circuit court’s order is

AFFIRMED.

HUFF and PIEPER, JJ., and GOOLSBY, A.J., concur.


[1] The text of Section 71, 1-1926.651(k)(1) does not appear in the South Carolina Code of Regulations.  Instead, subarticle 7 indicates South Carolina law incorporates the federal Occupational Safety and Health Act (OSHA) Regulation 29 C.F.R. §1926, with a few exceptions.  S.C. Code Regs. ch.71, subart. 7 (1991).  This is the case with many other South Carolina Occupational Safety and Health Regulations.  See e.g. S.C. Code Regs. ch.71, subarts. 6 & 8 (1991). 

[2] We decide this case without oral argument pursuant to Rule 215, SCACR.

[3] Burris is a family-owned business with Tommy Burriss as project manager and his wife, Christine Burriss, as president.    

[4] In addition to citing an employer for a violation, the Department can classify the violation as: repeat, serious, or willful.  S.C. Code Ann. §41-15-320 (Supp. 2006).  Additional penalties are applied if any of these heightened classifications are used.  Id. 

[5] This court notes Act 387, effective July 1, 2006, has since modified S.C. Code Ann. §1-23-380 and certain appellate procedures.  However, we review Burriss’ claim pursuant to S.C. Code Ann. §1-23-380(A)(6) (2005) rather than S.C. Code Ann. §1-23-380(A)(5) (Supp. 2007) due to the fact the case arose under the prior appellate procedure.  Regardless, as applied to this case, the only difference between the two statutes is the numbering of the statutory provisions.