WASHINGTON CEDAR SUPPLY CO INC v. STATE DEPARTMENT OF LABOR INDUSTRIES (2003)

PART PUBLISHED OPINION

The Department of Labor and Industries (L & I) cited Washington Cedar and Supply (Washington Cedar) for failing to ensure that its employees were wearing fall restraints when they delivered materials onto the roof of a construction site.   The Board of Industrial Insurance Appeals (Board) upheld the citation and the superior court affirmed the Board's ruling.   Holding that (1) a partial panel of the Board had the power to review the citation;  (2) the Board appropriately declined to apply the unpreventable employee misconduct defense;  and (3) the L & I inspector correctly categorized the offense as a “repeat serious violation;” and finding no error in the Board's decision, we also affirm.

FACTS

Washington Cedar sells and delivers roofing materials to construction sites in Washington.   On October 18, 1999, two  Washington Cedar employees were delivering materials onto a roof at a construction site.   The employee standing on the roof was not wearing fall restraints or fall arrest gear.

An L & I inspector arrived at the site and documented the employees' activities.   L & I subsequently issued a citation to Washington Cedar for failing to ensure that its employees were wearing fall restraints when working at heights over 10 feet.

The inspector labeled the violation a “repeat violation” based on L & I records showing two prior fall protection violations by Washington Cedar within three years of the instance at issue.   The inspector labeled the violation “serious” because she believed serious physical harm could result if a fall occurred at that height. RCW 49.17.180(6).

Washington Cedar appealed the citation to the Board.   An Industrial Appeals Judge (IAJ) initially vacated the citation but on review by the Board, two of the three Board members considered the case and reinstated the citation.   A superior court judge affirmed the Board's decision.

DISCUSSION

I. Partial Panel Review Under RCW 49.17.140

 On review of the IAJ decision, two of the three Board members signed a Decision and Order upholding Washington Cedar's citation.   Washington Cedar argues that RCW 49.17.140 does not permit partial panel review.   This is a matter of statutory construction, which we review de novo.  Children's Hosp. & Med. Ctr. v. Dep't of Health, 95 Wash.App. 858, 864, 975 P.2d 567 (1999).

The Board hears two types of appeals:  (1) industrial insurance appeals governed by RCW 51.52, and (2) Washington Industrial Safety and Health Act (WISHA) appeals governed by RCW 49.17.   In this WISHA appeal, we look to RCW 49.17.140 to determine the required procedure for Board review.   Under this statute, the  Board may “make disposition of the issues in accordance with procedures relative to contested cases appealed to the state board of industrial insurance appeals.”  RCW 49.17.140(3).

This provision incorporates the controlling procedures for Board review under RCW 51.52.106.  RCW 51.52.106 allows Board review “by a panel of at least two of the members of the board․ The decision and order of any such panel shall be the decision and order of the board.”  RCW 51.52.106;  also see WAC 263-12-155.  RCW 49.17.140 therefore permits partial panel review based on the incorporation of review procedures enumerated in RCW 51.52.106.

II. Unpreventable Employee Misconduct Defense

 Washington Cedar asserts that the violative conduct of their employees was unpreventable and unforeseeable, and therefore they should not be held accountable.   Under RCW 49.17.120(5), there is an affirmative defense of “unpreventable employee misconduct” that allows an employer to avoid liability upon the following showing:

(i) A thorough safety program, including work rules, training, and equipment designed to prevent the violation;

(ii) Adequate communication of these rules to employees;

(iii) Steps to discover and correct violations of its safety rules;  and

(iv) Effective enforcement of its safety program as written in practice and not just in theory.

We review whether Washington Cedar has met its burden as a question of fact under a substantial evidence standard.  Miller v. City of Tacoma, 138 Wash.2d 318, 323, 979 P.2d 429 (1999).  “ ‘Substantial evidence’ is evidence in sufficient quantum to persuade a fair-minded person of the truth of the declared premise.”  Fred Hutchinson Cancer Research Ctr. v. Holman, 107 Wash.2d 693, 712, 732 P.2d 974 (1987).

For help in deciding cases where there is an absence of state law on point, the Board looks to the Occupational  Safety and Health Administration (OSHA) and consistent federal decisions.  Adkins v. Aluminum Co. of America, 110 Wash.2d 128, 147, 750 P.2d 1257 (1988);  29 U.S.C. sec. 651 et seq.   In 1990, the Board decided Jeld-Wen, and placed the burden of proving the elements of the affirmative defense on the employer.   In re Jeld-Wen of Everett, Bd. of Indus. Ins. Appeals No. 88 W144 (October 22, 1990);  Brock v. L.E. Myers Co., High Voltage Div., 818 F.2d 1270, 1276 (6th Cir.1987).

While there is a significant split among the federal circuit courts as to which party should bear the burden of proof,¹ the Board specifically followed the 6th Circuit decision in Brock, which emphasized that the employer must show that the safety program is effective “in practice as well as in theory.”  818 F.2d at 1277.   Washington subsequently adopted a statute laying out the elements of the unpreventable employee misconduct defense that mirrors the language in Brock.  RCW 49.17.120(5)(iv).

 The Board determined here that Washington Cedar had not met RCW 49.17.120(5)(iv)'s requirement of effective enforcement.   It based this decision on evidence showing Washington Cedar's prior fall protection violations and its failure to enforce elements of the safety program.   Thus, substantial evidence supports the Board's decision.

Washington Cedar asserts that the Board wrongly interpreted RCW 49.17.120(5) as allowing the unpreventable employee misconduct defense only where the violation is characterized as an “isolated occurrence.”   But the Board's interpretation of RCW 49.17.120(5) was not this narrow.

 We review an agency's statutory interpretation under an error of law standard, which allows us to substitute our interpretation of the statute for the Board's.  St. Francis  Extended Health Care v. Dep't of Soc. & Health Serv., 115 Wash.2d 690, 695, 801 P.2d 212 (1990).   But we give substantial weight to an agency's interpretation of statutes and regulations within its area of expertise.  St. Francis Extended Health Care, 115 Wash.2d at 695, 801 P.2d 212.

The “isolated occurrence” language stems from agency and judicial interpretation of the “effective enforcement” prong of the unpreventable employee misconduct defense.  RCW 49.17.120(5)(iv).   The Board and federal courts have concluded that in order for the enforcement of a safety program to be “effective,” the misconduct could not have been foreseeable.  Jeld-Wen, No. 88 W144;  Brock, 818 F.2d at 1277 (stating that the violation must have been “idiosyncratic and unforeseeable”);  Austin Bldg. Co. v. Occupational Safety & Health Review Comm'n, 647 F.2d 1063, 1068 (10th Cir.1981);  Mineral Indus. & Heavy Constr. Group v. Occupational Safety & Health Review Comm'n, 639 F.2d 1289, 1293 (5th Cir.1981).

As a result, the Board has determined that prior citations for similar conduct may preclude the defense because those prior violations provide notice to the employer of the problem, thereby making repeat occurrences foreseeable.   But it appears that the existence of prior violations does not absolutely bar use of the unpreventable employee misconduct defense;  it merely is evidence that the employee conduct was foreseeable and preventable.

L & I classified Washington Cedar's two prior final violations as “fall protection” violations.   This classification indicates that these violations were similar;  therefore, the current citation was not an isolated occurrence.   Although this fact may not constitute conclusive evidence that the employee misconduct was foreseeable and preventable, it does provide sufficient evidence to support the Board's conclusion.   Further, it was supported by additional evidence that Washington Cedar was not effectively enforcing other elements of its safety program.   Thus, Washington Cedar has not shown that the Board erred when it rejected the unpreventable employee misconduct defense.

 III. Establishing A Repeat, Serious WISHA Violation

 Washington Cedar asserts that L & I has not made a prima facie case showing of a WISHA violation nor shown that the violation was “serious” or a “repeat” within the meaning of the regulations.

A. Prima Facie Case For A WISHA Violation

 Washington Cedar first argues that L & I has not made a prima facie case for a “repeat serious violation” of WAC 296-155-24510.   In construing WISHA regulations, we may consider the federal counterpart, OSHA, and its judicial interpretation.  Adkins, 110 Wash.2d at 147, 750 P.2d 1257.   To demonstrate a prima facie serious violation of a safety standard under OSHA,

the Secretary must prove 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, and (5) ‘there is a substantial probability that death or serious physical harm could result’ from the violative condition.

D.A. Collins Constr. Co., Inc. v. Sec'y of Labor, 117 F.3d 691, 694 (2nd Cir.1997) (citations omitted) (quoting 29 U.S.C. sec. 666(k)).  To establish a violation of OSHA, the Secretary of Labor has the burden to prove each element by a preponderance of the evidence.  Carlisle Equip. Co. v. U.S. Sec'y of Labor & Occupational Safety, 24 F.3d 790, 792 (6th Cir.1994).   Washington Cedar asserts that L & I has not proved the first, fourth, or fifth elements by a preponderance of the evidence.

We apply the substantial evidence standard when reviewing the Board's factual determinations.  Miller, 138 Wash.2d at 323, 979 P.2d 429.   Because we give deference to an agency's factual findings in its area of expertise, we will uphold the Board's findings unless they are clearly erroneous.  Ass'n of Rural Residents v. Kitsap County, 141 Wash.2d 185, 195-96, 4 P.3d 115 (2000).

  1. Does the cited standard apply?

Washington Cedar first argues that the standard in WAC 296-155-24510 does not apply here because the fall height did not exceed 10 feet and, even if it did, the low-pitch roof exception applies.

In its Decision and Order, the Board found that Washington Cedar's employee was loading material onto the roof “at a height in excess of 10 feet.”   Clerk's Papers (CP) at 303.   The site inspector's testimony supported this finding, as she measured the fall height at approximately 16 feet.   Although Washington Cedar submitted contrary evidence showing that the employees believed the height to be approximately nine feet, the inspector's testimony provides substantial evidence to support the Board's determination.

Washington Cedar also contends that the Board erred in not applying the “low-pitched roof” exception.  WAC 296-155-24515;  WAC 296-155-24503.   A low-pitched roof is defined as one that has “a slope equal to or less than 4 in 12” rise over run.  WAC 296-155-24503.  WAC 296-155-24515(2)(b) provides an alternative to the requirement that employees working at a height of over 10 feet wear fall restraints when employees are “engaged in roofing on low-pitched roofs less than 50 feet wide;” if this is the case, employees may “elect to use a safety monitor system without warning lines.”  WAC 296-155-24515(2)(b).

The L & I inspector testified that she believed the roof at issue was a “5 or 6-pitched roof” and would not qualify for the low-pitched roof exception.   Board Report of Proceedings (BRP) at 52.   She had not measured the pitch of the roof, and neither party submitted conclusive evidence.

The Board concluded that the roof was not low pitched within the meaning of WAC 296-155-24515(2)(b), based on the inspector's testimony and the lack of evidence provided by Washington Cedar.   Moreover, WAC 296-155-24515(2)(b) provides an exception only if there is some other safety monitoring system in place, and Washington Cedar did not  show that such a system was in place here.  WAC 296-155-24515(2)(b).  Thus, the Board's rejection of the low-pitch roof exception was not clearly erroneous.

 2. Should Washington Cedar have known about the violation?

Washington Cedar's employees claimed that they did not have fall restraints with them because they left their gear in another truck at the Washington Cedar yard.   Washington Cedar argues that under these circumstances, the evidence was insufficient to show that it had direct knowledge of the violation or in any way sanctioned the violative conduct.

L & I responds that repeat citations for the same safety violation should put an employer on notice that it is not effectively enforcing its safety program.   Thus, absent changes in the safety program or increased enforcement measures, the employer should anticipate continued violations.   L & I also argues that Washington Cedar had the responsibility to ensure that its employees had appropriate safety gear when they left the yard and, if they did not, it should have known that the employees would be violating the safety rules when making their delivery.

We agree that the evidence of similar past violations was sufficient to support a finding that Washington Cedar was on notice that its employees were not complying with its safety requirements.   Because of the discretion we give to the agency as fact finder, we will not disturb the Board's conclusion that the employer should have been aware of the violation.

 3. Do the facts show that serious harm may have resulted?

Washington Cedar next argues that L & I has not shown “a substantial probability that death or serious physical harm could result” from the violative condition.  RCW 49.17.180(6).   But the L & I inspector testified that serious physical harm, including broken or sprained limbs and  temporary hospitalization, could result from a fall from a roof over 10 feet in height.

B. Characterization Of The Violation As “Serious”

Washington Cedar contends that the Board's categorization of the violation as “serious” was an error of law.   We review the Board's interpretation of RCW 49.17.180(6) de novo.  Stuckey v. Dep't of Labor & Indus., 129 Wash.2d 289, 295, 916 P.2d 399 (1996).

Under RCW 49.17.180(6), a serious violation exists

if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use in such work place, unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

Washington Cedar argues that the regulation requires assessment of the likelihood of an injury resulting from the violation.   L & I responds that the appropriate inquiry is how serious the injury could be if some harm resulted from the violation.

In a recent case, this court interpreted the language of RCW 49.17.180(6) and determined that “the statute's ‘substantial probability’ language refers to the likelihood that, should harm result from the violation, that harm could be death or serious physical harm.”  Lee Cook Trucking & Logging v. Dep't of Labor & Indus., 109 Wash.App. 471, 482, 36 P.3d 558 (2001).   This construction of the statute is consistent both with the federal interpretation of OSHA and with L & I's reading of RCW 49.17.180(6).  29 U.S.C. sec. 666(j);  Lee Cook, 109 Wash.App. at 478, 36 P.3d 558.

L & I introduced evidence that a fall could result in “[b]roken bones, severe strains, sprains, [and/or] short-term hospitalization.”   BRP at 83.   This supports the conclusion that a fall from over 10 feet could result in serious physical harm and, therefore, the violation was “serious” under RCW 49.17.180(6).

 This result also resolves Washington Cedar's claim that the violation was de minimus.   A de minimus violation is one that has “no direct or immediate relationship to safety or health.”  RCW 49.17.120(2).   Because a fall here could have resulted in serious physical harm, Washington Cedar's argument that the violation was de minimus fails.

C. Characterization Of The Violation As “Repeat”

Washington Cedar further maintains that it was error to characterize the violation as “repeat” because there is insufficient evidence that prior violations were similar to the current incident.

WAC 296-27-16001(9) ² defines “repeat violation” as one that “has previously been cited to the same employer when it identifies the same type of hazard.”   L & I has the authority to issue a citation for a repeat violation if it has issued any final safety violations of the same type within three years of the current citation.  WAC 296-27-16007(5).³

L & I gave Washington Cedar two final citations within the three years preceding the October 1999 violation.   L & I and the Board characterized these as “fall protection violations.”   CP at 303.   L & I also described the violation at issue here as a fall protection violation.

Given the evidence that Washington Cedar committed prior, similar violations and considering the deference we accord the Board's findings, we cannot say that the Board's finding of a repeat violation was clearly erroneous.

A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

IV. Evidentiary Challenges

Washington Cedar next raises a number of challenges to the Board's inclusion and exclusion of certain evidence.   The Board rules on the admissibility of evidence in the same manner as the superior court.  WAC 263-12-115(4).   Under those standards, we give the Board substantial discretion to admit or refuse evidence.  Seay v. Chrysler Corp., 93 Wash.2d 319, 324, 609 P.2d 1382 (1980).

This court reviews the Board's evidentiary rulings for manifest abuse of discretion.  Sintra, Inc. v. City of Seattle, 131 Wash.2d 640, 662-63, 935 P.2d 555 (1997).   This occurs when an agency applies the wrong legal standard or when it takes a view no reasonable person would take.  Cox v. Spangler, 141 Wash.2d 431, 439, 5 P.3d 1265, 22 P.3d 791 (2000).

A. Hearsay Challenge

Washington Cedar claims that the L & I inspector's penalty report contained third party statements and was therefore inadmissible hearsay.   Hearsay is an out of court statement offered to prove the truth of the matter asserted.   ER 801(c).  In this case, L & I did not offer the report to prove the truth of third party comments in the document.   The IAJ allowed the report for demonstrative purposes only.   Thus, the statement was not hearsay and the IAJ did not err in admitting the report.

B. Opinion Testimony Challenge

Washington Cedar next challenges the admission of the L & I inspector's opinion as to the physical harm that could result from a fall from over 10 feet.  ER 701 states that lay opinion testimony “is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.”

The inspector gave a severity assessment to the harm that could result from a 10-foot fall;  this indicates a likelihood of significant injury.   The inspector based her testimony on her own observations of the violation.

The IAJ overruled Washington Cedar's objection to this testimony, stating that this evidence went to the weight of the inspector's assessment of the penalty.   Because the inspector based her testimony on her own observations and because it was helpful to the IAJ in determining the inspector's ability to assess the penalty, it was not an abuse of discretion to admit it.

C. Relevancy Challenges

Washington Cedar makes three challenges based on the relevancy of evidence.   Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  ER 401.

Washington Cedar first challenges the relevancy of questioning Bob Hein, manager of Washington Cedar's Tumwater facility, as to his awareness of “citations from [L & I] for work out of other Washington Cedar yards” as well as the existence of a Washington Cedar safety committee.   BRP at 130.4

 The IAJ determined that the challenged evidence was relevant because it provided information as to enforcement of the employer's safety program.   The program's enforcement is specifically relevant to whether an unpreventable employee misconduct defense applies.   It was not an abuse of discretion to admit this evidence.

Washington Cedar next challenges the L & I inspector's testimony about its safety record at other Washington Cedar yards.   The Board ruled that this testimony was relevant to Washington Cedar's unpreventable employee misconduct defense and that it could look to Washington Cedar's compliance with the safety program at all Washington Cedar work yards to determine whether Washington Cedar was effectively enforcing the program.   In its final Decision and Order, the Board states that the “Tumwater yard is not a separate legal entity.   It is a component part of the employer's operation.”   CP at 301.

Washington Cedar cites the Board's decision in Clark County, arguing that the Board should have focused only on the area controlled by the manager directly responsible for the employee's behavior.   In re Clark County Public Works, Bd. of Indus. Ins. Appeals No. 96 W322 (March 11, 1998).   But Clark County is not on point as it does not discuss the unpreventable employee misconduct defense or the scope of the Board's review in determining employer enforcement of a safety program.  Clark County, No. 96 W322.

Washington Cedar makes a final relevancy challenge to the IAJ's exclusion of Exhibit 12, which contained incentive reports for Washington Cedar's Kent and Port Orchard yards.   The IAJ admitted 10 other incentive reports as Exhibit 11.

The trier of fact has the discretion to exclude relevant evidence that would waste the court's time or be cumulative.  ER 403.   Here, it appears that the IAJ employed ER 403 to limit the admission of “three inches worth” of quarterly incentive reports that Washington Cedar attempted to introduce for demonstrative purposes.   BRP at 118. Because the evidence was cumulative, the IAJ did not abuse its discretion in excluding Exhibit 12.

V. Constitutional Challenges

Washington Cedar claims that both WAC 296-155-24510 and RCW 49.17.180 are unconstitutionally vague and, in addition, that RCW 49.17.180 violates double jeopardy protections.   L & I asks us to deem these assignments of error waived because Washington Cedar did not raise them below.

 Generally, we have the discretion to refuse to review claims of error not raised below.  RAP 2.5(a).   But a party may raise a manifest error affecting a constitutional right in either a criminal or civil case for the first time on review.  RAP 2.5(a);  State v. WWJ Corp., 138 Wash.2d 595, 603, 980 P.2d 1257 (1999).   Under RAP 2.5, an error is “manifest” if it has “practical and identifiable consequences” or caused “actual prejudice” to the defendant.   WWJ Corp., 138 Wash.2d at 602-03, 980 P.2d 1257.   Because Washington Cedar's citation invokes a monetary penalty, if there was a violation of constitutional due process or double jeopardy protections, the resultant error has caused Washington Cedar actual prejudice.

Although RAP 2.5 provides authority to review these new issues, RCW 49.17.150(1) contains a specific limitation on our review of issues that the appellant failed to raise before the Board:  “No objection that has not been urged before the board shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.”  RCW 49.17.150(1).   Where a court rule and a statute conflict, we make every effort to reconcile and give effect to both.   Nearing v. Golden State Foods Corp., 114 Wash.2d 817, 821, 792 P.2d 500 (1990).   Where this is impossible, the nature of the right at issue determines which will govern.  Leslie v. Verhey, 90 Wash.App. 796, 806, 954 P.2d 330 (1998).

In a recent decision, we discussed the application of RAP 2.5(a) and RCW 49.17.150(1) in the context of a preemption challenge.  Dep't of Labor & Indus. v. Nat'l Sec. Consultants, Inc., 112 Wash.App. 34, 47 P.3d 960 (2002).   L & I appealed the trial court's application of RCW 51.36.030, claiming that OSHA preempted the state statute, but L & I did not allege an error of constitutional magnitude.  Nat'l Sec. Consultants, 112 Wash.App. at 37, 47 P.3d 960.   We held that RCW 49.17.150(1) barred review because L & I had not shown extraordinary circumstances.  Nat'l Sec. Consultants, 112 Wash.App. at 37-38, 47 P.3d 960.

Washington Cedar argues that National Security Consultants is inapposite because it did not involve the deprivation of a constitutional right.   We agree.   Further, it is reasonable to reconcile the court rule and the statute by including manifest errors affecting constitutional rights within the statutory exception for “extraordinary circumstances.”   Thus, under the authority of both RAP 2.5(a) and RCW 49.17.150(1), we will review Washington Cedar's constitutional claims.

A. Vagueness Challenge To WAC 296-155-24510

Statutes and duly adopted regulations are presumed to be constitutional.   City of Seattle v. Eze, 111 Wash.2d 22, 26, 759 P.2d 366 (1988);  Longview Fibre Co. v. Dep't of Ecology, 89 Wash.App., 627, 632, 949 P.2d 851 (1998).   The party challenging a statute's constitutionality on vagueness grounds has the heavy burden of proving its vagueness beyond a reasonable doubt.  Eze, 111 Wash.2d at 26, 759 P.2d 366.

A statute is void for vagueness if persons “of common intelligence must necessarily guess at its meaning and differ as to its application.”  Haley v. Med. Disciplinary Bd., 117 Wash.2d 720, 739, 818 P.2d 1062 (1991) (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926)).   But the “vagueness test does not require a statute to meet impossible standards of specificity.”  Anderson v. City of Issaquah, 70 Wash.App. 64, 75, 851 P.2d 744 (1993).   It is sufficient if the statute provides adequate notice of prohibited conduct and prevents arbitrary, discretionary enforcement.  Haley, 117 Wash.2d at 739-40, 818 P.2d 1062.

WAC 296-155-24510 requires employers to “ensure” that fall restraint systems are “provided, installed, and implemented” when the employee will be exposed to a hazard of falling from more than 10 feet.   Washington Cedar claims that the word “ensure” is vague because it does not give employers notice of the level of conduct that may constitute a breach.

The terms “provided, installed, and implemented” provide guidance as to the proper construction of the term “ensure” within the regulation.  WAC 296-155-24510.   A person of common intelligence would conclude that an employer who provided, installed, and implemented a safety restraint system would have ensured that the system was in place.   Thus, Washington Cedar has not overcome the presumption that WAC 296-155-24510 is not unconstitutionally vague.

B. Vagueness Challenge To RCW 49.17.180(6)

Washington Cedar also argues that the phrase “serious violation” in RCW 49.17.180(6) is unconstitutionally vague.   Under the statute, a violation is serious where “there is a substantial probability that death or serious physical harm could result” from an existing condition or practice.  RCW 49.17.180(6).

When a challenged statute does not involve First Amendment rights, our analysis is limited to deciding whether the statute is void for vagueness as applied to the facts of the case.  State v. Groom, 133 Wash.2d 679, 691, 947 P.2d 240 (1997);  City of Seattle v. Abercrombie, 85 Wash.App. 393, 400, 945 P.2d 1132 (1997).   Here, a Washington Cedar employee was working at a height greater than 10 feet and not wearing any fall restraints, violating WAC 296-155-24510.

In Lee Cook, the court stated that the phrase “serious violation” in RCW 49.17.180(6) was ambiguous and needed judicial construction to determine its meaning.  Lee Cook Trucking & Logging v. Dep't of Labor & Indus., 109 Wash.App. 471, 476-77, 36 P.3d 558 (2001).   After looking to federal law, the Lee Cook court construed the statute as providing that a violation is serious if any harm resulting from it is likely to be death or serious physical injury.  109 Wash.App. at 482, 36 P.3d 558.

Although there is an ambiguity as to whether “substantial probability” refers to the likelihood of a serious injury resulting from the violation, or the likelihood of that injury being serious when an injury occurs, the existence of an ambiguity does not necessarily mean that a statute is unconstitutionally vague.  “[A] statute is not unconstitutionally vague merely because a person cannot predict with complete certainty the exact point at which his actions would be classified as prohibited conduct.”  Eze, 111 Wash.2d at 27, 759 P.2d 366.

The statute here provides that a violation will be deemed serious where there is a substantial probability that serious physical harm could result.   As applied to the facts of this case, Washington Cedar should have been aware that allowing an employee to work at over 10 feet above the ground without fall restraints could lead to serious physical injury.   Thus, Washington Cedar has not met the heavy burden of showing that RCW 49.17.180(6) is unconstitutionally vague as applied.

C. Double Jeopardy Challenge

Washington Cedar asserts a violation of its right not to be placed in double jeopardy, pointing to the increase in the monetary penalty based on repeat offenses.  RCW 49.17.180(1).   The double jeopardy clause applies only where the “clearest proof” shows that the penalty imposed is criminal.  S.A. Healy Co. v. Occupational Safety & Health Review Comm'n, 138 F.3d 686, 688 (7th Cir.1998) (citing United States v. Ward, 448 U.S. 242, 249, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)).   And the statutes under which Washington Cedar was cited provide for civil penalties only.  RCW 49.17.180(7).

Moreover, recidivist penalties for repeat offenders typically do not implicate double jeopardy protections.  Spencer v. Texas, 385 U.S. 554, 560, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967);  State v. Williams, 9 Wash.App. 622, 625-26, 513 P.2d 854 (1973).   Penalty increases do not punish the penalized party a second time;  rather, they provide a more severe punishment for a subsequent, repeat crime. Spencer, 385 U.S. at 560, 87 S.Ct. 648;  Williams, 9 Wash.App. at 626, 513 P.2d 854.

And finally, RCW 49.17.180 specifically authorizes cumulative punishment.   See Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) (court's analysis of double jeopardy clause claim is “limited to assuring that the court does not exceed its legislative authorization”).   Thus, Washington Cedar has not established a double jeopardy violation.

VI. Applicability Of WAC 296-155-24510 To Delivery Of Materials

WAC 296-155-24510 requires that employees working at heights over 10 feet wear fall restraints.   It applies

to any and all work places subject to the Washington Industrial Safety and Health Act (chapter 49.17 RCW), where construction, alteration, demolition, related inspection, and/or maintenance and repair work, including painting and decorating, is performed.   These standards are minimum safety requirements with which all industries must comply when engaged in the above listed types of work.

WAC 296-155-005(1).

Washington Cedar contends that because its employees were delivering construction materials to a construction site and not participating in any of the activities enumerated in WAC 296-155-005(1), the regulation does not apply to them.   L & I responds that the guiding language of WAC 296-155-005(1) is “any and all work places” and that the statute applies wherever employees are present at a work site where a listed activity is occurring.

Once again, we review a challenge to the agency's interpretation of an administrative regulation de novo, applying an error of law standard.   Children's Hosp. & Med. Ctr. v. Dep't of Health, 95 Wash.App. 858, 864, 975 P.2d 567 (1999).   We will uphold an agency's interpretation of an administrative regulation if “it reflects a plausible construction of the language of the statute and is not contrary to the legislative intent.”   Seatoma Convalescent Ctr. v. Dep't of Soc. & Health Serv., 82 Wash.App. 495, 518, 919 P.2d 602 (1996).

To determine the underlying purpose and intent of WAC 296-155-005(1), we must examine the regulation's subject matter as shown in the text as a whole.   Eastlake Cmty. Council v. Roanoke Assoc., Inc., 82 Wash.2d 475, 490, 513 P.2d 36 (1973);  Maplewood Estate, Inc. v. Dep't of Labor & Indus., 104 Wash.App. 299, 305-06, 17 P.3d 621 (2000).   The purpose of WAC 296-155 is set forth in the statute authorizing the WAC, WISHA, and chapter 49.17 RCW. The purpose of WISHA is to create and maintain safe and healthy working conditions for “every man and woman working in the state of Washington.”  RCW 49.17.010.

Based on the statute's overall intent and purpose to promote worker safety, the Board appropriately construed the regulation as requiring compliance with the WAC when any listed activity was occurring on the premises even if the cited party was not performing a listed activity.  WAC 296-155.   Thus, when Washington Cedar delivered roofing materials to a site where “construction” was being performed, the WAC required that Washington Cedar comply with the safety regulations in WAC 296-155-24510.

VII. Governing Law For Content Of Board's Decision

Washington Cedar asserts that RCW 34.05.461(3) requires that the Board identify any findings substantially based on credibility as such in their Decision and Order.   Again, we review this matter of statutory construction de novo on appeal.  Children's Hosp. & Med. Ctr., 95 Wash.App. at 864, 975 P.2d 567.

 RCW 34.05.461(3) does not apply “[t]o adjudicative proceedings of the board of industrial insurance appeals.”  RCW 34.05.030(2)(a);  Danzer v. Dep't of Labor & Indus., 104 Wash.App. 307, 319 n. 5, 16 P.3d 35 (2000).   Rather, RCW 51.52.106 controls the procedures for a Board's final Decision and Order and it does not require the Board to identify findings based on credibility.   Thus, Washington Cedar has not shown that the Board's findings were defective in this regard.

VIII. Attorney Fees

Because Washington Cedar has not prevailed on their appeal, we do not consider their request for attorney fees.

We affirm.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

FOOTNOTES

1.   Danco Constr. Co. v. Occupational Safety & Health Review Comm'n, 586 F.2d 1243 (8th Cir.1978);  cf.  Pennsylvania Power & Light Co. v. Occupational Safety & Health Review Comm'n, 737 F.2d 350 (3rd Cir.1984);  Capital Elec. Line Builders of Kansas, Inc. v. Marshall, 678 F.2d 128 (10th Cir.1982);  Ocean Elec. Corp. v. Sec'y of Labor, 594 F.2d 396 (4th Cir.1979);  Central of Georgia R.R. Co. v. Occupational Safety & Health Review Comm'n, 576 F.2d 620 (5th Cir.1978);  Brennan v. Occupational Safety & Health Review Comm'n, 511 F.2d 1139 (9th Cir.1975).

2.   WAC 296-27-16001 was in effect at the time of the violation and citation, but was repealed, effective August 1, 2000.   St. Reg. 00-11-098.

3.   WAC 296-27-16007 was in effect at the time of the violation and citation but was repealed, effective August 1, 2000.   St. Reg. 00-11-098.

4.   Washington Cedar also raises an issue of character evidence under ER 404(b) in its brief.   From the transcript, it does not appear that this objection was preserved.

SEINFELD, J.