Bartell Drug Co./bartell Drug Co. 56, App v. Wa State Dept. Of L&i, Resp

• Court: Court of Appeals of Washington
• Decided: June 8, 2020
• Docket: 80268-2
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

BARTELL DRUG CO./BARTELL DRUG No. 80268-2-1 CO. 56, DIVISION ONE Appellant, UNPUBLISHED OPINION v.

WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES,

Respondent.

Hazelrigg, J. — Bartell Drug Co. seeks reversal of an order by the Board

of Industrial Insurance Appeals (BIIA) upholding a citation for a serious violation of

the Washington Industrial Safety and Health Act (WISHA).1 Bartell argues that the

Department of Labor and Industries failed to show that its exit routes did not meet

WISHA's requirements, thereby creating a hazard to its employees. Because

substantial evidence supports the findings that the exit route did not meet the

minimum width required by WISHA and Bartell's employees had access to the

violative condition, we affirm.

FACTS

In late 2016, the Department of Labor and Industries received a report of

potentially unsafe working conditions at the Admiral Way location of Bartell Drug

1Ch. 49.17 RCW. No. 80268-2-1/2

Co. in West Seattle. On December 7, 2016, Department safety inspectors Jason

Smith and William Keely went to the store to conduct an inspection. The store

manager consented to an inspection of the storage room in the back of the store.

Smith and Keely walked through and took photographs of the storeroom.

The storeroom was approximately 15 to 20 feet wide and 75 to 100 feet long with

a men's bathroom and employee break room at opposite ends. About halfway

between the bathroom and the break room, there was a rolling bay door, similar to

a garage door, for freight deliveries. At one end of the storeroom, next to the break

room, was an emergency exit door.

The path through the storage room to the emergency exit door was lined

with cardboard boxes stacked on one side and plastic merchandise totes on the

other. Smith had forgotten his tape measure on the day of the inspection, so he

estimated the width of the walkway between the boxes and the totes using his

approximately 12-inch-long writing folder as a reference. Although the pathway

varied in width, Smith estimated that the narrowest section was about 15 to 16

inches wide. Smith and Keely had to turn sideways to walk through that section of

the corridor.

The store typically had up to ten employees working at one time.

Employees passed through the storeroom to access the break room, the

management office, the bathrooms, and merchandise. In addition to the

emergency exit door in the storeroom, the location also had a main entrance at the

front of the store and an emergency exit door near the pharmacy accessible from

the sales floor. No. 80268-2-1/3

Smith interviewed assistant manager Robyn Gardiner two days after the

inspection and took notes during their conversation. Gardiner had not been

working on the day of the inspection. The day before the inspection, a box on top

of a metal cage in the storeroom had fallen forward when she opened the door to

the cage and hit her on her head, causing a mild concussion. Smith noted that

Gardiner told him that the back storeroom had been in the same condition since

before Halloween. He also included a quote from Gardiner in his notes saying that

she did not want to let customers enter the storeroom to use the bathroom because

she was afraid something would fall on them. Gardiner later testified that she did

not remember making these statements.

Based on this inspection, Smith believed that Bartell had committed a

serious violation of the Washington Administrative Code (WAC) because the exit

route through the storeroom was not at least 28 inches wide at all points. The

Department issued a citation for a serious violation of WAC 296-800-31010 for

failure to ensure sufficiently wide exit routes and a general violation of WAC 296-

24-60705(10) for failure to ensure minimum vertical clearance below sprinklers in

the store room. A penalty of $3,600 was assessed against Bartell for the serious

violation.

Bartell appealed, requesting that the serious violation be amended to a

general violation. The Department affirmed the violations and issued a Corrective

Notice of Redetermination (CNR). Bartell appealed the CNR to the BIIA. After a

hearing, the Industrial Appeals Judge issued a Proposed Decision and Order

affirming the CNR. Bartell filed a petition for review. The BIIA denied the petition,

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and the Proposed Decision and Order became the Decision and Order of the

Board. Bartell sought judicial review of the Decision and Order in superior court,

which also affirmed. Bartell then appealed to this court.

ANALYSIS

I. Standard of Review

On a WISHA appeal, we review the BIIA's decision directly, based on the

record before the agency. Legacy Roofing, Inc. v. Dep't of Labor & Indus.. 129 Wn.

App. 356, 363, 119 P.3d 366 (2005). The findings of fact in the administrative

decision are conclusive if supported by substantial evidence in light of the record

as a whole. RCW 49.17.150(1); J.E. Dunn Nw.. Inc. v. Dep't of Labor & Indus.. 139

Wn. App. 35, 43, 156 P.3d 250 (2007). Evidence is substantial if it is sufficient to

persuade a fair-minded person of the truth of the premise. J.E. Dunn Nw. 139 Wn.

App. at 43. We do not reweigh evidence on appeal but view the evidence in the

light most favorable to the party that prevailed before the BIIA. Potelco, Inc. v. Dep't

of Labor & Indus.. 194 Wn. App. 428, 434, 377 P.3d 251 (2016). If there is

substantial evidence to support the findings of fact, we then determine whether

those findings support the conclusions of law. Frank Coluccio Constr. Co., Inc. v.

Dep't of Labor & Indus.. 181 Wn. App. 25, 35, 329 P.3d 91 (2014).

We review questions of law de novo, interpreting agency regulations as if

they were statutes. Wash. Cedar & Supply Co., Inc. v. Dep't of Labor & Indus.. 137

Wn. App. 592, 598, 154 P.3d 287 (2007). Accordingly, we interpret a regulation to

ascertain and give effect to its underlying policy and intent. Dep't of Licensing v.

Cannon, 147 Wn.2d 41, 56, 50 P.3d 627 (2002). We look first to the plain meaning

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of the provision to determine that intent. Id. The plain meaning is gleaned from the

words of the regulation in the context of the entire statutory scheme. Wash. Cedar,

137 Wn. App. at 599. "Rules and regulations are to be given a rational, sensible

interpretation." Cannon, 147 Wn.2d at 57. A regulation is ambiguous if it can

reasonably be interpreted in more than one way, but "it is not ambiguous simply

because different interpretations are conceivable." Id. at 56.

We interpret a WISHA regulation in light of the WISHA statutes and

regulations as a whole, giving meaning to every word in the regulation and

attempting to avoid conflicts between different provisions. Wash. Cedar, 137 Wn.

App. at 599-600. "We construe WISHA statutes and regulations liberally to

achieve their purpose of providing safe working conditions for workers in

Washington." Frank Coluccio Constr., 181 Wn. App. at 36; see also RCW

49.17.010. Although we retain the ultimate responsibility for interpreting a

regulation, we give substantial weight to an agency's interpretation of the

regulations within its area of expertise. Wash. Cedar, 137 Wn. App. at 598.

Consequently, we will uphold the agency's interpretation "if it reflects a plausible

construction of the statutory language and is not contrary to the legislature's intent

and purpose." jd.

The Department bears the burden to prove a WISHA violation. Frank

Coluccio Constr., 181 Wn. App. at 36. To establish a serious violation of a WISHA

safety regulation, the Department must show that

"(1) the cited standard applies; (2) the requirements of the standard were not met; (3) employees were exposed to, or had access to, the violative condition; (4) the employer knew or, through the exercise of reasonable diligence, could have known of the violative condition;

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and (5) there is a substantial probability that death or serious physical harm could result from the violative condition."

Jd at 36-37 (quoting Wash. Cedar & Supply Co., Inc. v. Dep't of Labor & Indus.,

119 Wn. App. 906, 914, 83 P.3d 1012 (2003)). Bartell argues that the Department

failed to prove that the requirements of the standard were not met and that the

employees were exposed to a hazard.

II. Requirements of WAC 296-800-31010

Bartell contends that the Department did not meet its burden to prove that

the requirements of WAC 296-800-31010 were violated. The regulation at issue

requires that employers maintain exit routes in accordance with certain minimum

standards:

(1) You must make sure each exit route is large enough to accommodate the maximum-permitted occupant load for each floor served by the route. (2) You must make sure the capacity of an exit route does not decrease at any point. (3) You must make sure the exit route has a minimum ceiling height of 7 feet 6 inches and that no projection from the ceiling is less than 6 feet 8 inches from the floor. Objects that stick out into the exit route, such as fans hanging from the ceilings or cabinets on walls, must not reduce the minimum height of the exit route to less than 6 feet 8 inches from the floor. (4) You must make sure exit routes are at least 28 inches wide at all points between any handrails. (a) If necessary, routes must be wider than 28 inches to accommodate the expected occupant load. (b) Make sure objects that stick out into the exit route, such as cabinets on walls, do not reduce the minimum width of the exit route.

WAC 296-800-31010.

The Decision and Order included a finding of fact that, at the time of the

inspection, paths to the exits were narrower than 28 inches wide at some points.

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Smith's testimony regarding his method of estimating the width of the exit path and

photographs showing the writing folder in comparison to the walkway provide

substantial evidence for this finding.

We next examine whether this finding supports the conclusions of law that

Bartell violated WAC 296-800-31010 and that the CNR was properly issued.

Bartell argues that this regulation does not require that all exit routes be 28 inches

wide, and therefore the Department did not prove a violation because it did not

show that Bartell had any exit routes under 28 inches wide "between any

handrails." The Department responds that it and the BIIA reasonably interpreted

the WAC to require all exit routes to be at least 28 inches wide at all points, not

only between handrails.

The Department's interpretation is a plausible and reasonable reading of

the regulation and accords with WISHA's purpose and intent of protecting workers.

Although the regulation does not explicitly state the minimum width of an exit path,

the 28-inch requirement logically follows from the specified conditions. If an exit

route must be at least 28 inches wide at certain points and may not narrow at any

point, then the entire route must be at least 28 inches wide at all points.

The federal Occupational Safety and Health Standard analogous to this

WISHA regulation further supports the Department's interpretation. State worker

safety plans and standards must be "'at least as effective in providing safe and

healthful employment and places of employment as the standards promulgated

under [the OSH Act] which relate to the same issues.'" SuperValu, Inc. v. Dep't of

Labor & Indus., 158 Wn.2d 422, 425, 144 P.3d 1160 (2006) (quoting 29 U.S.C. §

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667(c)(2)) (alteration in original). Under the corresponding federal regulation, "[a]n

exit route must meet minimum height and width requirements." 29 C.F.R. §

1910.36(g). The regulation specifies that "[a]n exit access must be at least 28

inches (71.1 cm) wide at all points," "[t]he width of an exit route must be sufficient

to accommodate the maximum permitted occupant load of each floor served by

the exit route," and "[ojbjects that project into the exit route must not reduce the

width of the exit route to less than the minimum requirements for exit routes." ]d.

The Department's interpretation of the regulation is supported by the plain

language of the provision and meets the minimum requirement set out in the

federal regulations. Therefore, the BIIA's finding that the exit route was not at least

28 inches at all points supports its conclusion that Bartell did not meet the standard

set out in WAC 296-800-31010.

Bartell also contends that the Department failed to make a prima facie case

because it presented insufficient evidence that the exit route was not large enough

to accommodate the maximum permitted occupancy load. It argues that the

Department could not establish this fact because it failed to determine the

maximum permitted occupancy load for the floor served by the exit route. The

Department responds that proof of a floor's maximum-permitted occupancy load is

unnecessary to show a violation when an exit route is too narrow to accommodate

even a single occupant.

Again, the Department has the better argument. The regulation states that

the exit route must be large enough to accommodate the maximum permitted

occupancy load, which may require the route to be wider than 28 inches. WAC

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296-800-31010. If the exit route does not meet the minimum allowable width, it

necessarily cannot accommodate any non-zero occupancy load. The Department

was not required to establish the maximum permitted occupancy load when the

route did not meet the minimum requirement.

III. Exposure to Hazard

Finally, Bartell contends that the Department did not establish that Bartell's

employees were exposed to an exit route hazard. The BIIA found that the fact that

the exit paths were narrower than 28 inches created "a substantial probability that

serious physical harm, such as fractures, a concussion, or death, could result

because employees could have trouble exiting and avoiding falling boxes in case

of an emergency."

The photographs taken during the inspection showed boxes stacked nearly

to the ceiling along the length of the path to the emergency exit in the storeroom.

Smith testified that he and Keely could not pass between the stacks at certain

points along the exit path without turning sideways. Smith testified that the

narrower path could prevent employees from evacuating quickly in the event of an

emergency. In the case of a fire, he testified that a blockage in the exit route could

result in burns or death. Substantial evidence showed that the narrowness of the

exit route could slow or prevent employees from evacuating in the event of an

emergency, which could lead to serious harm or death.

The Department is not required to prove actual employee exposure to the

hazard. Shimmick Constr. Co., Inc. v. Dep't of Labor & Indus., Wn. App. 2d ,

460 P.3d 192, 200 (2020). Rather, the Department must establish that the worker No. 80268-2-1/10

had access to the violative condition. Mid Mountain Contractors, Inc. v. Dep't of

Labor& Indus., 136 Wn. App. 1,5,146 P.3d 1212(2006). Employees have access

when there is a "'reasonable predictability that, in the course of [the workers']

duties, employees will be, are, or have been in the zone of danger.'" Id. (alteration

in original) (emphasis omitted) (quoting Adkins v. Aluminum Co. of Am., 110 Wn.2d

128, 147, 750 P.2d 1257 (1988)).

A standard prohibiting certain conditions presumes that a hazard is present

when the standard is not met. Frank Coluccio Constr., 181 Wn. App. at 41. "Thus,

'[a]rguing that a hazard does not exist despite a violation is an impermissible

challenge to the wisdom of the standard.'" Id. at 41-42 (alteration in original)

(internal quotation marks omitted) (quoting In re Wilder Constr. Co., No. 06 W1078,

2007 WL 3054874, at *4 (Wash. Bd. of Indus. Ins. Appeals June 15, 2007)).

Because WAC 296-800-31010 sets out a specific safety standard

prohibiting exit routes less than 28 inches wide and the Department showed that

the requirements of this standard were not met, we presume that a hazard was

present. The workers at the store regularly entered the storeroom to access the

bathroom, the break room, the management office, and merchandise stored in the

area. Therefore, there is a reasonable probability that employees could be in the

zone of danger in the course of their duties.

In support of its argument, Bartell primarily argues that the testimony

showed that the probability of any harm from the narrow exit route was low

because of the availability of other exits and the store manager's lack of concern

that the route would suffice in the event of an emergency. However, as stated

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above, substantial evidence supported the BIIA's conclusion that the narrowness

of the exit route could result in harm or death in an emergency. We cannot accept

Bartell's invitation to re-weigh the evidence and redetermine the credibility of

witnesses on appeal. See Potelco, 194 Wn. App. at 434.

Substantial evidence supports the finding that the exit route was less than

28 inches, and that finding supports the conclusion of law that the exit route did

not meet the requirements of WAC 296-800-31010. Bartell did not meet specific

safety requirements of WISHA, and its employees had access to the violative

condition. The BIIA did not err in determining that Bartell committed a serious

WISHA violation.

Affirmed.

WE CONCUR:

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