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Unpublished Opinion No. 2008-UP-070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]heres 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 Acts 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 Boards denial of discretionary review as well as the Review
Board members order upholding the citation and corresponding penalty. This
appeal follows.
STANDARD OF REVIEW
This courts review
of an administrative agencys 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. Dept of Health & Envtl. Control, 350 S.C. 159, 164-65,
565 S.E.2d 119, 122 (Ct. App. 2002). In determining whether the agencys
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. Dept 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 agencys decision is
unsupported by the evidence. See Waters v. S.C. Land Res. Conservation Commn, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996).
A court can reverse
an agencys 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 agencys
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, Wests Employment Law Series, St. Paul,
Minn. 1998, §315. See also Valdak Corp. v. Occupational Safety and
Health Review Commn, 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 Commn, 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 Examrs
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 Commn, 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 courts 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 ones 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 ones
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. Ones
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 courts order is
AFFIRMED.
HUFF
and PIEPER, JJ., and GOOLSBY, A.J., concur.