COMMISIONER OF LABOR v. Cole, No. 2025

CourtCourt of Special Appeals of Maryland
Writing for the CourtROBERT L. KARWACKI, , Retired, specially assigned.
Citation138 Md. App. 526,772 A.2d 1252
Decision Date30 May 2001
Docket NumberNo. 2025
PartiesMARYLAND COMMISSIONER OF LABOR AND INDUSTRY v. COLE ROOFING COMPANY, INC.

772 A.2d 1252
138 Md.
App. 526

MARYLAND COMMISSIONER OF LABOR AND INDUSTRY
v.
COLE ROOFING COMPANY, INC

No. 2025, Sept. Term, 1999.

Court of Special Appeals of Maryland.

May 30, 2001.


772 A.2d 1254
Gaston J. Sigur, III, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Jonathan R. Krasnoff, Sherrie Black and Jean Baker, Asst. Attys. Gen. on the brief), Baltimore, for appellant

Randi Klein Hyatt (Frank L. Kollman, Sara A. Waranch and Kollman & Sheehan, P.A. on the brief), Baltimore, for appellee.

Argued before HOLLANDER, JAMES R. EYLER and ROBERT L. KARWACKI (Retired, specially assigned), JJ.

772 A.2d 1253
ROBERT L. KARWACKI, Judge, Retired, specially assigned

In this case we are required to review an application of Maryland's Occupational Safety and Health Act of 1973, Maryland Code (1999), Title 5 of the Labor and Employment Article ("the Act"), by the Maryland Occupational and Safety Health Unit, Division of Labor, Licensing and Regulation ("MOSH"). The several issues presented arose under the following circumstances.

On July 29, 1997, a MOSH inspector conducted an inspection at a construction site where the appellee and cross-appellant, Cole Roofing Company, Inc. ("Cole"), was installing a flat roof at Chesapeake High School in Anne Arundel County. The inspector observed at least five Cole employees, one of whom was the foreman, Joseph Baldwin, working on the roof near where roofing supplies had been placed. The MOSH inspector determined that none of the persons were protected by fall protection as mandated by regulations adopted by the Commissioner of Labor, Licensing and Regulation ("the Commissioner"), the appellant and cross-appellee. Based upon these observations, MOSH issued two citations:

"Citation 1, Item 1: Type of violation: Repeat Serious

29 CFR 1926.501(b)(10): Each employee engaged in roofing activities on lowslope roofs, with unprotected sides and edges 6 feet (1.8 m) or more above lower levels was not protected from falling by guardrail systems, safety net systems, personal fall arrest systems, or a combination of warning line system and guardrail system, warning line system and safety net system, or warning line system and fall arrest system, or warning line system and safety monitoring system:

(a) Date of Violation: 7/29/97

Location: Front Side of High School

Condition: Employees were working on a flat roof that ranged in height from

772 A.2d 1255
11' to 12' without protection from falling

Citation 2, Item 1: Type of violation: Serious

29 C.F.R. 1926.152(a)(1): Containers and portable tanks used for the storage and handling of flammable and combustible liquids were not approved:

(a) Date of Violation: 7/29/97

Location: Front of High School

Condition: Gasoline was stored in a 5 gallon metal container that did not have a flash arrester or self closing lid."

MOSH assessed Cole a $3000 penalty for Citation 1 and a $262 penalty for Citation

2.

Cole contested both citations, and a hearing was held before a hearing examiner whom MOSH designated pursuant to § 5-214(a),(e) of the Md. Lab. & Empl. Code (1999).1 Following that hearing, the hearing examiner recommended that both citations against Cole be sustained.

Cole requested the Commissioner to review the recommendation of the hearing examiner, and the Commissioner designated his deputy to hold that hearing. After the hearing was held, the Deputy Commissioner adopted the proposal of the hearing examiner.

Cole sought judicial review of the final decision of the Commissioner by the Circuit Court for Anne Arundel County. It argued with regard to Citation 1, alleging a violation of 29 C.F.R. 1926.501(b)(10), that the Deputy Commissioner erred in placing the burden of proving unforeseeable employee misconduct upon Cole, as the employer, rather than requiring MOSH to bear the burden of proving that preventable employee misconduct was the cause of the violation. Cole also asserted that the Deputy Commissioner erred in characterizing Citation 1 as a repeat violation and in concluding that Citation 2, alleging the use of an unapproved container for storage and handling of flammable liquids, had been proven by MOSH.

After a hearing, the circuit court reversed the Deputy Commissioner on the burden of proof issue as to Citation 1, and remanded the case to the Commissioner for further hearing on that Citation. The court, however, affirmed the Deputy Commissioner's ruling that the nature of the violation alleged in Citation 1, if established at the remand hearing, would be a repeat violation. The court also agreed with the Deputy Commissioner that MOSH had proven the container violation alleged in Citation 2. This appeal by the Commissioner and cross-appeal by Cole ensued.

The Commissioner presents two questions in his appeal. Cole raises two additional issues in its cross-appeal. We have rephrased them as follows:2

772 A.2d 1256
1. Who bears the burden of proof on the issue of whether the violation charged in Citation 1 was caused by foreseeable or unforeseeable conduct by Cole's employees?

2. Was the Commissioner's decision as to Citation 1 supported by substantial evidence?

3. Was the violation charged in Citation 1 a repeat violation under the Act?

4. Was there substantial evidence to support the Commissioner's decision as to Citation 2?

Maryland's Occupational and Safety Health Act.

The purpose of the Act is to "assure as far as possible every working man and woman in the State of Maryland safe and healthful working conditions and to preserve our human resources[.]" § 5-102(b). In that regard, an employer is under a general duty to furnish each of his employees employment and a place of employment which are safe and healthful as well as free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees, § 5-102(b), and is under a specific duty to comply with the rules, regulations, and orders promulgated under the Act. Id. In the instant case, Cole was charged with violation of two specific safety standards which were adopted by the Commissioner by reference to federal standards that had been promulgated by the Secretary of Labor as authorized by the federal Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. ("OSHA"). See § 513 of the Act and COMAR 09.12, 20A.

The Maryland Act is modeled after the federal OSHA, and consequently, Maryland courts rely for guidance in construing the Act on federal cases interpreting the federal OSHA. Comm. of Labor v. Bethlehem Steel, 344 Md. 17, 30, 684 A.2d 845 (1996) (Bethlehem II); Bethlehem Steel v. Comm. Of Labor, 339 Md. 323, 328, 662 A.2d 256 (1995) (Bethlehem 1); J.I. Hass Co. v. Dept. Of Licensing & Regulation, 275 Md. 321, 330, 340 A.2d 255 (1975). The Act does not impose strict liability upon an employer nor require an employer to act as an insurer. J.I. Hass Co., Inc. v. Dept. Of Licensing & Regulation, 275 Md. at 331-33, 340 A.2d 255. Instead, the Act is intended to eliminate only preventable hazards so that the effort made by the employer to prevent hazards is the focal point of any inquiry into a violation by an employer of the general duty clause or a specific standard adopted by the Commissioner, not the happening of the violation. J.I. Hass Co., Inc. v. Dept. Of Licensing & Regulation, Id.; Kettler Bros. v. Dept. Of Licensing & Regulation, 39 Md.App. 597, 605-06, 387 A.2d 1145.

The Act sets forth the scope of judicial review of the Commissioner's order. Section 5-215(c)(1) provides that the order must be upheld if it is not legally erroneous and reasonably is based upon substantial evidence. Bethlehem II, 344 Md. at 24, 684 A.2d 845.

Burden of Proof

Cole offered substantial evidence that it had established a detailed and effective safety program that...

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2 practice notes
  • Holbrook v. State, No. 88
    • United States
    • Court of Appeals of Maryland
    • June 5, 2001
    ...also may also be convicted of reckless endangerment. It is not logical to assume that the Legislature intended that reckless endangerment 772 A.2d 1252 would merge for purposes of sentencing with arson. Rather, the General Assembly intended arson and reckless endangerment to be separate off......
  • LABOR COMMISSIONER v. Cole Roofing Co., No. 70
    • United States
    • Court of Appeals of Maryland
    • April 9, 2002
    ...bears the burden of proof, and, as to the second, that the two violations must be of the same regulation. Commissioner of Labor v. Cole, 138 Md. App. 526, 772 A.2d 1252 (2001). We agree with the second conclusion, but not the BACKGROUND The Labor and Employment Article (LE) § 5-104(a) requi......
2 cases
  • Holbrook v. State, No. 88
    • United States
    • Court of Appeals of Maryland
    • June 5, 2001
    ...also may also be convicted of reckless endangerment. It is not logical to assume that the Legislature intended that reckless endangerment 772 A.2d 1252 would merge for purposes of sentencing with arson. Rather, the General Assembly intended arson and reckless endangerment to be separate off......
  • LABOR COMMISSIONER v. Cole Roofing Co., No. 70
    • United States
    • Court of Appeals of Maryland
    • April 9, 2002
    ...bears the burden of proof, and, as to the second, that the two violations must be of the same regulation. Commissioner of Labor v. Cole, 138 Md. App. 526, 772 A.2d 1252 (2001). We agree with the second conclusion, but not the BACKGROUND The Labor and Employment Article (LE) § 5-104(a) requi......

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