BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

 

In the Matter of the Appeal of:

HONG PHAT FARM

1759 W. Knapp Drive

Vista, CA 92083

                              Employer

 

 

Docket No.

98-R3D2-1449

 

DECISION AFTER

RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code, ordered reconsideration on its own motion of the decision of the administrative law judge in the above-entitled proceeding.

JURISDICTION

From March 13, through April 15, 1998, Wendy Wiltse [hereinafter “Wiltse”], an investigator of the Division of Occupational Safety and Health (the Division)1, conducted an inspection of Hong Phat Farm, (Employer) at Sunny Creek Road, Carlsbad, California (the site). On April 17, 1998, the Division issued to Employer a citation alleging a general violation of section2 3457(c)(2)(D) [location of toilet facility], with a proposed civil penalty of $125.

Employer filed a timely appeal contesting the existence of the alleged violation.

On January 13, 1998, this matter came on regularly for hearing before Bref French, administrative law judge of the Board (ALJ), in San Diego, California. Thai Trinh, Manager, represented Employer. Associate Industrial Hygienist Wendy Wiltse, represented the Division.

On February 2, 1999, the ALJ issued a decision that denied Employer's appeal but assessed no civil penalty.

On February 17, 1999, the Board ordered reconsideration of the decision and limited reconsideration to the following issue:

Is the Decision issued by the administrative law judge of the Board (ALJ) consistent with the court’s ruling on January 22, 1999, in Mauricio Dominguez, et al. v. California Occupational Safety and Health Appeals Board, Case No.98CS01926, interpreting the minimum civil penalty set forth in Labor Code section 6712(?)

Neither party filed an answer to the Board’s order.

EVIDENCE

In making this decision, the Board relies upon its independent review of the entire evidentiary record in this case, including the tape recordings of the hearing. The Board has taken no new evidence.

On April 17, 1998, Employer was cited by the Division for a violation of section 3457(c)(2)(D) which provides that toilet and handwashing facilities for use during agricultural hand-labor operations “shall be located within a one-quarter (1/4) mile walk or within five (5) minutes, whichever is shorter.”

Wiltse testified that when she made her inspection employees were performing agricultural work. Wiltse further testified that Employer had a toilet and handwashing facility located between 1/2 to 8/10 of a mile from the workers as measured on the odometer of her vehicle. Consequently, she cited Employer for a violation of section 3457(c)(2)(D).

Based on the testimony of Inspector Wiltse and the admission by Employer’s Manager Thai Trinh that the toilet and handwashing facility was located more than 1/4 mile away, the ALJ found that a violation of section 3457(c)(2)(D) was established. Nonetheless, the ALJ assessed no civil penalty since the facility had been available within the 1/4-mile walk or 5 minute distance during some of the scheduled working hours. The ALJ found it undisputed that Employer’s employees were engaged in agricultural operations.

ISSUE

Is the ALJ’s decision consistent with the court’s ruling in Dominguez?


FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The ALJ’s Decision is Not Consistent with the Court’s Ruling in Dominguez.

In the case of Emerald Produce Co., Inc., OSHAB 96-2679, Decision After Reconsideration (May 4, 1999) the Board addressed Mauricio Dominguez, et al. v. Calif. Occupational Safety and Health Appeals Board, Case No.98-CS-01926. In Emerald Produce, we rejected the notion that there can be a reduction of the minimum penalty established in Labor Code section 6712(d)(1) for a violation of the field sanitation standards contained in section 3457. In Emerald Produce, we discarded any distinction between a failure to provide a facility subject to the $750 minimum penalty, and a failure to maintain a facility which would be subject to the normal penalty provisions under the Director’s regulations. (§§ 333-336). A failure to maintain a required facility, even momentarily, is a failure to provide the facility subject to the minimum penalty.

Labor Code section 6712(d)(1) provides “…any employer who fails to provide the facilities required by the field sanitation standard shall be assessed a civil penalty…except that in no case shall the penalty be less than seven hundred fifty dollars ($750) for each violation.” [Emphasis added]. We specifically found that the statutory terms of Labor Code section 6712(d)(1) were not ambiguous.


Since the ALJ found a violation of section 3457(c)(2)(D), the assessment of a mandatory minimum penalty $750 was required by Labor Code section 6712. Our implementation of Dominguez supra, in Emerald Produce, supra, did not create an exception to the minimum $750 penalty. We find that the ALJ's order, which did not assess any civil penalty, is inconsistent with our implementation of Dominguez.


The ALJ had no discretion to assess less than the statutory minimum penalty. The same rules of construction apply in the interpretation of regulations as apply in the interpretation of statutes. The first rule is that when statutory language is clear and unambiguous there is no need for construction and it should not be indulged in. (Lusardi Construction Co. v. California Occupational Safety and Health Appeals Board (1991) 1 Cal. App. 4th 639, 642).

The Board finds that the evidence supports the conclusion that Employer failed to provide a toilet and handwashing facility as required by section 3457 (c)(2)(D). Thus, the minimum $750 penalty mandated by Labor Code section 6712(d)(1) applies.

DECISION AFTER RECONSIDERATION

The decision of the ALJ dated February 2, 1999 is reversed as to the assessment of no civil penalty. A civil penalty of $750 is assessed against Employer. In all other respects, the decision is affirmed.

Marcy V. Saunders, Member
Gerald P. O’Hara, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: April 30, 2001

1 Wiltse was a member of a cooperative task force consisting of representatives of the Division of Labor Standards Enforcement, the Division of Occupational Safety and Health and the U.S. Department of Labor.
2 Unless otherwise specified, all section references are to Title 8, California Code of Regulations.