J.L. Foti Const. Co., Inc. v. Donovan

• Citation: 786 F.2d 714
• Decision Date: 25 February 1986
• Docket Number: No. 85-3418,85-3418
• Parties: 12 O.S.H. Cas.(BNA) 1737, 1986-1987 O.S.H.D. ( 27,541 J.L. FOTI CONSTRUCTION CO., INC., Petitioner, v. Raymond J. DONOVAN, Secretary of Labor, Occupational Safety and Health Review Commission, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 714

786 F.2d 714

12 O.S.H. Cas.(BNA) 1737, 1986-1987 O.S.H.D. ( 27,541

J.L. FOTI CONSTRUCTION CO., INC., Petitioner, v. Raymond J. DONOVAN, Secretary of Labor, Occupational Safety and Health Review Commission, Respondents.

No. 85-3418.

United States Court of Appeals Sixth Circuit.

Feb. 25, 1986.

Louis H. Orkin, Weiner, Orkin, Abbate & Suit Co., L.P.A., Beachwood, Ohio, Dale A. Nowak, for appellant.

Elizabeth S. Woodruff, U.S. Dept. of Labor, Washington, D.C., Sandra Lord, argued, for appellees.

Before CONTIE and MILBURN, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

PER CURIAM.

This appeal is before the court pursuant to section 11(a) of the Occupational Safety and Health Act of 1970 (the "Act"), 29 U.S.C. Sec. 660(a), on petition of J.L. Foti Construction Company to review an order of the Occupational Safety and Health Review Commission (the "Commission") issued on April 15, 1985.

Following an Occupational Safety and Health Administration ("OSHA") inspection, petitioner was cited for two serious and two nonserious violations of 29 U.S.C. Sec. 654(a)(2). Petitioner contested all the alleged violations and additionally argued that OSHA's inspector did not have the necessary consent to conduct a warrantless inspection. After conducting an evidentiary hearing, the Administrative Law Judge ("ALJ") found that OSHA had obtained proper consent for the inspection, but vacated one of the alleged serious violations on substantive grounds. On review the Commission affirmed the ALJ's decision. For the reasons that follow, we affirm.

I.

In the fall of 1982, petitioner was performing masonry work at the multi-employer construction site of a hospital addition in Willoughby, Ohio. On October 21, 1982, OSHA Inspector Paul Vrabel visited the work site to conduct a general scheduled inspection. Upon arriving at the site, Vrabel identified himself to Charles Weiss, the job superintendent for the general contractor, Albert M. Higley Company. Weiss advised Vrabel that he was instructed to call Joseph Foti, President of Foti Construction, before inspection of petitioner's work areas could take place. Mr. Foti told Vrabel by telephone that OSHA must have a warrant before it could inspect petitioner's work areas. With Weiss' consent, Vrabel proceeded to inspect all the areas of the work site except those areas in which petitioner's employees were working. On October 26, 1982, the inspector returned without a warrant to inspect petitioner's work areas. Weiss again called Mr. Foti, who came to the work site. Once there, Mr. Foti advised Vrabel that he objected to an inspection without a warrant, and Vrabel asserted that a warrant was not required unless the general contractor demanded it. Mr. Foti agreed to let the inspection proceed under protest and accompanied Vrabel on the inspection.

As a result of the second inspection, OSHA issued two citations to petitioner charging two serious and two nonserious violations of the Act. The citations alleged that petitioner had committed serious violations of 29 C.F.R. Sec. 1926.500(d)(1) by failing to properly guard an open-sided floor or platform and 29 C.F.R. Sec. 1926.500(b)(1) by failing to guard a 21" X 43" floor opening with standard railings or covers. The citations also alleged nonserious violations of 29 C.F.R. Sec. 1926.451(a)(14) by failing to extend two scaffold planks at least six inches beyond their supports and 29 C.F.R. Sec. 1926.601(b)(4) by operating a highlift with an obstructed view to the rear in reverse without sounding a reverse signal alarm or posting an observer.

The ALJ found that the general contractor controlled and had a right of access to the entire work site, including petitioner's work areas, and that the general contractor's superintendent consented to an inspection of the entire project. The ALJ found no evidence of any agreement between the general contractor and petitioner which provided that the general contractor had a duty to refuse OSHA inspectors access to petitioner's work area without Mr. Foti's consent.

The ALJ found that the unguarded opening in the wall required a guardrail and that its absence constituted a serious violation requiring a $250 penalty. Noting that the inspector acknowledged his measurement of the plank overlap could be off as much as two inches, the ALJ found the Secretary failed to carry his burden of proof with respect to the plank alleged to overlap five and one-half inches but affirmed the violation for the plank alleged to overlap three inches. The ALJ also found that the highlift had an obstructed view to the rear and was being operated in reverse without a reverse signal alarm in operation or a signalman. Finally, the ALJ vacated the alleged violation of 29 C.F.R. Sec. 1926.500(b)(1) on substantive grounds.

The two Commissioners were divided on whether to affirm the ALJ's ruling on the Fourth Amendment issue. Commissioner Cleary would have affirmed on the ground that the general contractor possessed sufficient access to and control over petitioner's work areas to allow the general contractor to consent to an OSHA inspection of those areas. Chairman Buckley, on the other hand, concluded that the general contractor did not have the authority to consent to the inspection because Mr. Foti was present and objecting to the inspection. The two Commissioners also disagreed on the resolution of the alleged violation of the backup alarm requirement. Commissioner Cleary would have affirmed the ALJ's finding of a nonserious violation, while Chairman Buckley would have vacated the alleged violation. In light of the impasse caused by the two Commissioners' difference of opinion, they agreed to affirm the ALJ's decision in order to allow the case to proceed to a final resolution, but to accord it the precedential value of an unreviewed decision.

On this appeal petitioner argues that OSHA's warrantless inspection of its work activities was conducted without valid consent because (1) Mr. Foti was present and objecting to the inspection, and (2) the general contractor contracted away the right to consent to an OSHA inspection of petitioner's work area. Petitioner also argues that the findings of safety violations by the ALJ are contrary to law and the weight of the evidence.

II.

The Act authorizes two types of inspections: inspection pursuant to a general administrative plan, 29 U.S.C. Sec. 657(a), and an inspection pursuant to a complaint, 29 U.S.C. Sec. 657(f). Although no search warrant or other process is explicitly required by the Act, a search warrant or its equivalent is "constitutionally necessary" to conduct a nonconsensual OSHA inspection. See Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978); Donovan v. A.A. Beiro Construction Co., Inc., 746 F.2d 894, 898 (D.C.Cir.1984); Donovan v. Federal Clearing Die Casting Co., 655 F.2d 793, 796 (7th Cir.1981). Since OSHA conducted a warrantless inspection of petitioner's work area, the issue before this court is whether OSHA had obtained valid consent to conduct an inspection.

It is well-established that a third party can consent to a search of jointly occupied property, as long as the third party has "common authority" over the premises. In United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974), the Court held that proof of voluntary consent is not limited to proof that consent was given by the victim, but may be established by showing that "permission to search was obtained by a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." The Court reasoned that a joint occupant assumes the risk of his co-occupant exposing their common private areas to a search. Once this risk is assumed, any reasonable expectation of privacy is lost. 415 U.S. at 171 n. 7, 94 S.Ct. at 993 n. 7.

Petitioner argues that Matlock is distinguishable because Mr. Foti was present and objected to the search, whereas in Matlock- the defendant was merely "absent [and] not consenting." This court squarely rejected that argument in United States v. Sumlin, 567 F.2d 684 (6th Cir.1977), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978). In Sumlin the defendant and his "female companion" shared an apartment. Following defendant's arrest, he was asked for permission to search the apartment, and he refused. The FBI then obtained the consent of defendant's "female companion" and searched the apartment. Defendant contended that the evidence seized in the search should be suppressed and that the rule of Matlock does not control where the interested party has refused to consent. We held that defendant's "female companion" had authority to consent to a search despite the defendant's explicit refusal to consent.

In Sumlin we reasoned that "[t]he rationale behind [the rule in Matlock ] is that a joint occupant assumes the risk of his co-occupant exposing their common private areas to such a search." 567 F.2d at 688. Under such circumstances, "[t]here is no reasonable expectation of privacy to be protected...." Id. The "additional fact" that the interested party has denied consent "does not increase a reasonable expectation of privacy." Id. See also Beiro, 746 F.2d at 898; United States v. Baldwin, 644 F.2d 381, 383 (5th Cir.1981); United States v. Bethea, 598 F.2d 331 (4th Cir.), cert. denied, 444 U.S. 860, 100 S.Ct. 124, 62 L.Ed.2d 81 (1979); United States v. Hendrix, 595 F.2d 883, 885 (D.C.Cir.1979). Thus, valid third-party consent requires only that the third party have "common authority" over the premises searched and that his consent be voluntary. Sumlin, 567 F.2d at 688. Both requirements are satisfied in the instant case. It is undisputed that Higley, the general contractor, had "common authority" over the work site and that Higley voluntarily consented to the inspection.

Petitioner argues that even if Higley had common authority over petition...