Opinion
F076389
01-21-2020
NOLTE SHEET METAL, INC., Plaintiff and Appellant, v. OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD, Defendant and Respondent; Department of Industrial Relations, Division of Occupational Safety and Health, Real Party in Interest and Respondent.
INTRODUCTION
Nolte Sheet Metal, Inc. (the Company), owned in part by Ernie Nolte, fabricates air conditioning ducts. In 2014, Cal/OSHA inspected the Company’s shop and issued citations for various violations of California Code of Regulations, title 8. The Company filed an appeal with the Occupational Safety and Health Appeals Board (Appeals Board). In a January 29, 2016 decision, the administrative law judge (ALJ) appointed by the Appeals Board concluded the evidence supported the violations underlying the challenged citations. The ALJ also found the violations underlying four of these citations were properly classified as "serious." The Company filed a petition for reconsideration, which was granted. In an October 7, 2016 decision after reconsideration, the Appeals Board upheld the ALJ’s determinations. The Company then filed a petition for a writ of administrative mandamus. In a September 8, 2017 order, the Fresno County Superior Court denied writ relief.
"Cal/OSHA" is a common abbreviation for the California Department of Industrial Relations’ Division of Occupational Safety and Health. (See, e.g., Solus Industrial Innovations, LLC v. Superior Court (2018) 4 Cal.5th 316, 324, fn. 1, 228 Cal.Rptr.3d 406, 410 P.3d 32 ; Rymel v. Save Mart Supermarkets, Inc. (2018) 30 Cal.App.5th 853, 857, 241 Cal.Rptr.3d 832 ; Energy Ins. Mutual Limited v. Ace American Ins. Co. (2017) 14 Cal.App.5th 281, 288, 221 Cal.Rptr.3d 711 ; Davis v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358, 361, 162 Cal.Rptr.3d 805 ; Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658, 669, 115 Cal.Rptr.3d 590.)
Subsequent regulatory citations refer to California Code of Regulations, title 8. Hereafter, we use the shorthand "8 CCR" followed by the section number and subdivision (e.g., 8 CCR 4070(a) ).
On appeal from the superior court’s order, the Company advances several arguments. First, the court should have exercised its independent judgment when it reviewed the Appeals Board’s decision. Second, the Company did not freely and voluntarily consent to Cal/OSHA’s inspection. Third, Cal/OSHA lost the original inspection file, which deprived the Company of due process of law. Finally, the violations underlying four of the citations were misclassified as "serious."
We conclude the superior court properly applied the substantial evidence standard of review. Based on an examination of the administrative record, we further conclude substantial evidence supported the Appeals Board’s findings, i.e., the Company freely and voluntarily consented to the inspection; Cal/OSHA’s failure to preserve the original inspection file did not deprive the Company of due process; and the violations underlying the four contested citations were properly classified. The order is affirmed. DISCUSSION
I. Appellate standard of review
"[The substantial evidence] test ‘requires a review of the entire record to determine whether findings ... are supported by substantial evidence.’ [Citation.] If the ... decision is supported by substantial evidence, we may not overturn it merely because a contrary finding would have been equally or more reasonable. [Citation.] ‘In general, substantial evidence has been defined in two ways: first, as evidence of " ‘ "ponderable legal significance ... reasonable in nature, credible, and of solid value" ’ " [citation]; and second, as " ‘relevant evidence that a reasonable mind might accept as adequate to support a conclusion’ " [citation].’ [Citation.] ‘Unless the finding, viewed in the light of the entire record, is so lacking in evidentiary support as to render it unreasonable, it may not be set aside.’ [Citation.]" ( Ogundare v. Department of Industrial Relations (2013) 214 Cal.App.4th 822, 829-830, 154 Cal.Rptr.3d 369 ( Ogundare ); see Teichert Construction v. California Occupational Safety & Health Appeals Bd. (2006) 140 Cal.App.4th 883, 888, 44 Cal.Rptr.3d 833 ["We view the evidence in a light most favorable to the ... decision, drawing all reasonable inferences and resolving all conflicts in the evidence in favor of the decision."].)
" ‘[A]n appellate court reviewing the superior court’s administrative mandamus decision always applies a substantial evidence standard. [Citations.]’ [Citation.] However, ‘the reviewing court’s focus changes, depending on which standard of review governed [below].’ [Citation.] ‘[D]epending on whether the trial court exercised independent judgment[ ] or applied the substantial evidence test, the appellate court will review the record to determine whether either the trial court’s judgment or the agency’s findings, respectively, are supported by substantial evidence. [Citation.] If ... the trial court ... exercised independent judgment, it is the trial court’s judgment that is the subject of appellate court review. [Citations.] On the other hand, if the superior court ... applied substantial evidence review ..., then the appellate court’s function is identical to that of the trial court. It reviews the administrative record to determine whether the agency’s findings were supported by substantial evidence, resolving all conflicts in the evidence and drawing all inferences in support of them. [Citations.]’ [Citation.]" ( Ogundare, supra , 214 Cal.App.4th at pp. 828-829, 154 Cal.Rptr.3d 369.)
"In independent review, ... although the trial court begins its review with a presumption that the administrative findings are correct, it does not defer to the fact finder below and accept its findings whenever substantial evidence supports them. Instead, it must weigh all the evidence for itself and make its own decision about which party’s position is supported by a preponderance. [Citation.] The question is not whether any rational fact finder could make the finding below, but whether the reviewing court believed the finding actually was correct." (Alberda v. Board of Retirement of Fresno County Employees’ Retirement Assn. (2013) 214 Cal.App.4th 426, 435, 153 Cal.Rptr.3d 823.)
II. Analysis
a. The superior court properly applied the substantial evidence standard of review.
In its September 8, 2017 order denying the Company’s writ petition, the superior court evaluated whether the Appeals Board’s decision was supported by substantial evidence. The Company contends the court should have exercised its independent judgment on the evidence. We disagree.
"When a trial court reviews an administrative determination by writ of administrative mandate, the appropriate standard of review depends on both the type of the agency rendering the decision and the nature of the right involved. Decisions issued by ‘agencies of constitutional origin which have been granted limited judicial power by the Constitution itself’ [citation] are ‘entitled to all the deference and respect due a judicial decision.’ " ( Rodriguez v. City of Santa Cruz (2014) 227 Cal.App.4th 1443, 1451, 174 Cal.Rptr.3d 826, quoting Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 35, 36, 112 Cal.Rptr. 805, 520 P.2d 29.) "The deferential substantial evidence standard of review applies regardless of the nature of the right at issue." ( Rodriguez v. City of Santa Cruz, supra , at p. 1451, 174 Cal.Rptr.3d 826, citing Strumsky v. San Diego County Employees Retirement Assn., supra , at p. 36, 112 Cal.Rptr. 805, 520 P.2d 29.) Prior to 1979, "it was held that unless authorized by the California Constitution, administrative agencies could not exercise judicial power and that the separation of powers doctrine required courts to independently determine the weight of the evidence when reviewing adjudicative decisions of agencies lacking judicial power." ( Frink v. Prod (1982) 31 Cal.3d 166, 172-173, 181 Cal.Rptr. 893, 643 P.2d 476 ( Frink ).) However, in Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 346, 156 Cal.Rptr. 1, 595 P.2d 579 ( Tex-Cal ), which involved the Agricultural Labor Relations Act, our Supreme Court held "the Legislature may accord finality to the findings of a statewide agency that are supported by substantial evidence on the record considered as a whole and are made under safeguards equivalent to those provided by the [Agricultural Labor Relations Act] for unfair labor practice proceedings, whether or not the California Constitution provides for that agency’s exercising ‘judicial power.’ " ( Tex-Cal, supra , at p. 346, 156 Cal.Rptr. 1, 595 P.2d 579 ; accord, Frink, supra , at p. 173, 181 Cal.Rptr. 893, 643 P.2d 476.) These safeguards include "the separation of prosecutorial from adjudicatory functions [citations], notice, written pleadings, evidentiary hearings [citations], and a requirement that orders be accompanied by findings based on the preponderance of the reported evidence [citations]." ( Tex-Cal, supra , at p. 345, 156 Cal.Rptr. 1, 595 P.2d 579.)
Labor Code section 1140 et seq.
By contrast, "[t]he trial court is authorized to exercise its independent judgment on the evidence where the administrative agency is of legislative origin and its decision affects a fundamental vested right." ( Champion Motorcycles, Inc., v. New Motor Vehicle Bd. (1988) 200 Cal.App.3d 819, 823-824, 246 Cal.Rptr. 325 ; see Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 396, 188 Cal.Rptr. 891, 657 P.2d 383 ["The term ‘vested’ denotes a right that is either ‘already possessed’ [citation] or ‘legitimately acquired’ [citation]."]; Bixby v. Pierno (1971) 4 Cal.3d 130, 144, 93 Cal.Rptr. 234, 481 P.2d 242 ["In determining whether the right is fundamental[,] the courts do not alone weigh the economic aspect of it, but the effect of it in human terms and the importance of it to the individual in the life situation."]; Ogundare, supra , 214 Cal.App.4th at p. 827, 154 Cal.Rptr.3d 369 [" ‘If ... the administrative decision neither involves nor substantially affects a fundamental vested right, the trial court’s review is limited to determining whether the administrative findings are supported by substantial evidence.’ "].)
In view of Tex-Cal , we conclude the superior court properly applied the substantial evidence standard of review. First, the Legislature accorded finality to the Appeals Board’s findings that are supported by substantial evidence. Under Labor Code section 6629, in a writ proceeding, "[t]he review by the court shall not be extended further than to determine, based upon the entire record which shall be certified by the [A]ppeals [B]oard, whether: [¶] (a) The [A]ppeals [B]oard acted without or in excess of its powers. [¶] (b) The order or decision was procured by fraud. [¶] (c) The order or decision was unreasonable. [¶] (d) The order or decision was not supported by substantial evidence. [¶] (e) If findings of fact are made, such findings of fact support the order or decision under review. [¶] Nothing in this section shall permit the court to hold a trial de novo, to take evidence, or to exercise its independent judgment on the evidence." (Compare with id. , § 5952 [nearly identical language relating to petition for review of Workers’ Compensation Appeals Board’s order, decision, or award].) Labor Code section 6630 adds: "The findings and conclusions of the [A]ppeals [B]oard on questions of fact are conclusive and final and are not subject to review. Such questions of fact shall include ultimate facts and the findings and conclusions of the [A]ppeals [B]oard." (Compare with id. , § 5953 [identical language relating to petition for review of Workers’ Compensation Appeals Board’s order, decision, or award].) In Tex-Cal , the Supreme Court found determinative the following language in Labor Code section 1160.8 : "The findings of the [Agricultural Labor Relations B]oard with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall ... be conclusive." (See Tex-Cal, supra , 24 Cal.3d at pp. 340, 344-346, 156 Cal.Rptr. 1, 595 P.2d 579.) Likewise, or perhaps more so, Labor Code sections 6629 and 6630 —in tandem—mandate judicial deference to the administrative findings. (Cf. LeVesque v. Workmen’s Comp. App. Bd. (1970) 1 Cal.3d 627, 637, fn. 19, 83 Cal.Rptr. 208, 463 P.2d 432 [interpretation of Lab. Code, §§ 5952 & 5953 ].)
Second, the statutory and regulatory scheme "contains ample safeguards of fair procedure at the administrative level." ( Tex-Cal, supra , 24 Cal.3d at p. 346, 156 Cal.Rptr. 1, 595 P.2d 579.) Following an inspection, Cal/OSHA must issue a citation if it believes the employer violated an occupational safety and health standard, rule or order ( Lab. Code, § 6317 ) and notify the employer of the citation via certified mail ( Lab. Code, § 6319, subd. (a) ). The employer may appeal to the Appeals Board (id. , § 6600) and the Appeals Board "shall afford an opportunity for a hearing" (id. , § 6602), which is either recorded electronically or transcribed by a certified court reporter ( 8 CCR 376.7(a) ). Any party may elect to have a representative, "who is not required to be an attorney at law." ( 8 CCR 378(a).) An ALJ may be assigned to hold the hearing, try the issues, and make an order or decision ( Lab. Code, § 6604 ; 8 CCR 375.1 ), but a party may object to the appointment on certain grounds, including bias ( Lab. Code, § 6606 ; 8 CCR 375.2(b) ). Prehearing discovery provisions detail procedures for identification of witnesses ( 8 CCR 372 ), access to documents ( 8 CCR 372.1 ), subpoenas and subpoenas duces tecum ( 8 CCR 372.2 ), and depositions ( Lab. Code, § 6613 ; 8 CCR 372.3 ). Ex parte communications are generally prohibited. ( 8 CCR 352.) While "[t]he hearing need not be conducted according to technical rules relating to evidence and witnesses" ( 8 CCR 376.2 ), testimony "shall be taken only on oath, affirmation, or penalty of perjury" ( 8 CCR 376.1(a) ) and parties have the right "[t]o call and examine witnesses; to introduce exhibits; to question opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examinations; to impeach any witness regardless of which party first called the witness to testify; and to rebut any opposing evidence" ( 8 CCR 376.1(b) ). Based on administrative case precedent, Cal/OSHA has the burden to prove by a preponderance of the evidence that the employer violated an occupational safety and health standard, rule or order. (See, e.g., In the Matter of the Appeal of Land O’ Lakes Purina Feed, LLC , OSHAB 08-R2D4-1843, Decision After Reconsideration (Jan. 31, 2014) ; In the Matter of the Appeal of Western Can Company, Wescan, Inc. , OSHAB 83-R4D2-741, Decision After Reconsideration (Dec. 22, 1987) .) , Following the hearing, the Appeals Board or the ALJ "shall ... make and file findings upon all facts involved in the appeal and file an order or decision. Together with the findings or the decision, there shall be served upon all the parties to the proceedings a summary of the evidence received and relied upon and the reasons or grounds upon which the decision was made." ( Lab. Code, § 6608.)
"The citation form shall set forth: [¶] (a) The name of the employer, the employer’s address and the workplace inspected; [¶] (b) The nature of the violation, in specific terms with reference to the provision of the code, standard, regulation or order alleged to have been violated; [¶] (c) Time allowed for correction of alleged violation; [¶] (d) Rights of employees respecting the time fixed for correction of violations; [¶] (e) Posting requirements; [¶] (f) Time within which an employer may contest a citation; and [¶] (g) Such other information as [Cal/OSHA] deems appropriate for clear understanding of the form issued." (8 CCR 332.)
Cal/OSHA may issue a " ‘notice’ in lieu of citation" under certain circumstances. However, said notice "shall not be issued ... if the violations are serious," inter alia. (Lab. Code, § 6317.)
Whereas Cal/OSHA "shoulders primary responsibility for administering and enforcing the California Occupational Safety and Health Act of 1973 ..., Labor Code section 6300 et seq.," "through investigating workplaces and enforcing occupational safety and health standards" (Rick’s Electric, Inc. v. Occupational Safety & Health Appeals Bd. (2000) 80 Cal.App.4th 1023, 1026, 95 Cal.Rptr.2d 847 ), the Appeals Board "is an independent adjudicatory agency responsible, among other matters, for resolving appeals from citations" (id. at p. 1027, 95 Cal.Rptr.2d 847 ). (See 8 CCR 354(a) ["[Cal/OSHA] is a party to all proceedings before the Appeals Board, whether or not [Cal/OSHA] has appeared or participated in a proceeding."]; see also In the Matter of the Appeal of Stockton Tri Industries, Inc. , OSHAB 02-R5D1-4946, Decision After Reconsideration (Mar. 27, 2006) [ "The [Appeals] Board is mindful that there is a separation of powers .... The [Occupational Safety and Health] Standards Board is vested with quasi-legislative authority to promulgate health and safety standards and safety orders.... [Cal/OSHA] has executive enforcement authority of the [California Occupational Safety and Health] Act .... The Appeals Board has quasi-judicial power to determine appeals from citations, penalties, and orders issued by [Cal/OSHA]."].)
Decisions of the Appeals Board are binding on Cal/OSHA. (Lab. Code, § 148.6 ; In the Matter of the Appeal of Limberg Construction , OSHAB 78-R2D1-433, Grant of Petition for Reconsideration and Decision After Reconsideration (Feb. 21, 1980) .)
Likewise, Cal/OSHA "has the burden of proving, by a preponderance of evidence, free and voluntary consent as a justification for a warrantless inspection." (In the Matter of the Appeal of Rudolph and Sletten, Inc. , OSHAB 01-R1D5-478, Decision After Reconsideration (Mar. 30, 2004) .)
Furthermore, within 30 days of service of a decision, an aggrieved party may petition for reconsideration. ( Lab. Code, § 6614, subd. (a) ; 8 CCR 390.) The Appeals Board "may, with or without further proceedings and with or without notice affirm, rescind, alter, or amend the order or decision made and filed ... on the basis of the evidence previously submitted in the case, or may grant reconsideration and direct the taking of additional evidence." ( Lab. Code, § 6620.) "Notice of the time and place of any hearing on reconsideration shall be given to the petitioner and adverse parties and to such other persons as the [A]ppeals [B]oard orders." (Ibid. ) "Any decision of the [A]ppeals [B]oard granting or denying a petition for reconsideration or affirming, rescinding, altering, or amending the original findings, order, or decision following reconsideration shall be made by the [A]ppeals [B]oard and not by a hearing officer and shall be in writing, signed by a majority of the [A]ppeals [B]oard members assigned thereto, and shall state the evidence relied upon and specify in detail the reasons for the decision." (Id. , § 6623.)
In its reply brief, the Company highlights the following language in Tex-Cal, supra , 24 Cal.3d at page 346, 156 Cal.Rptr. 1, 595 P.2d 579 : "Our holding does not ... affect review of administrative findings where the Legislature has left the choice of standard to the courts (e.g., as in [Code of Civ. Proc.] § 1094.5 )." The Company then suggests Tex-Cal "has no bearing on the instant case" because it filed its writ petition pursuant to Code of Civil Procedure section 1094.5. "[Code of Civil Procedure] [s]ection 1094.5 was designed to leave to the courts the establishment of standards for deciding which cases require independent judgment review and which substantial evidence review." ( Frink, supra , 31 Cal.3d at p. 173, 181 Cal.Rptr. 893, 643 P.2d 476.) As noted, however, the language of Labor Code sections 6629 and 6630 calls for judicial deference to the Appeals Board’s findings. Nothing in those provisions indicate the Legislature has left the choice of standard to the courts. (Cf. Welf. & Inst. Code, § 10962 ["The applicant, recipient, respondent, or the affected county ... may file a petition with the superior court, under the provisions of Section 1094.5 of the Code of Civil Procedure, praying for a review of the entire proceedings in the matter, upon questions of law involved in the case."]; Frink, supra , at p. 173, 181 Cal.Rptr. 893, 643 P.2d 476 ["[Explicit] reference to [Code of Civil Procedure] section 1094.5 does not reflect a legislative direction to apply substantial evidence review, but in the absence of limitation reflects legislative intent to leave to the courts the determination of the appropriate standard of review."].)
See footnote *, ante .
DISPOSITION
The superior court’s September 8, 2017 order denying Nolte Sheet Metal, Inc.’s petition for a writ of administrative mandamus is affirmed. Costs are awarded to respondent Occupational Safety and Health Appeals Board and real party in interest Department of Industrial Relations, Division of Occupational Safety and Health.
I CONCUR:
SMITH, J.
Poochigian, Acting P.J., concurring.
Consent to Search
The rule that "warrantless searches are generally unreasonable ... applies to commercial premises as well as homes." ( Marshall v. Barlow’s, Inc. (1978) 436 U.S. 307, 311, 98 S.Ct. 1816, 56 L.Ed.2d 305.) Unless one of a few carefully defined exceptions applies, government inspectors must obtain a warrant before inspecting a business for safety hazards and regulatory compliance. (See generally ibid. )
There does not seem to be any dispute between the parties that consent was required here.
Consent is a well-recognized exception to the warrant requirement. In order to be valid, consent must not be the product of coercion. ( Bumper v. North Carolina (1968) 391 U.S. 543, 550, 88 S.Ct. 1788, 20 L.Ed.2d 797.) "[W]here the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority. [Citations.]" ( Florida v. Royer (1983) 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229.) In other words, the government must show the "manifestation of consent was the product of ... free will and not a mere submission to an express or implied assertion of authority. [Citation.]" ( People v. James (1977) 19 Cal.3d 99, 106, 137 Cal.Rptr. 447, 561 P.2d 1135.)
In determining whether consent was voluntary, courts consider a variety of factors, including whether officers have their guns drawn when consent is requested or given, whether the person was told they have a right to refuse consent to the search, and whether the person was told a search warrant could be obtained. ( People v. Ramirez (1997) 59 Cal.App.4th 1548, 1558, 70 Cal.Rptr.2d 341.)
Here, seven government officials from four government entities confronted the son of Nolte Sheet Metal’s owner. Two or three of the officials were armed and donned bulletproof vests. One of them told John he was there "to do a compliance inspection" and requested to "g[e]t started." John, one of only two employees onsite, responded, "Well, I guess." We are tasked with looking to what a "typical reasonable person" would have "understood by th[is] exchange." (See Florida v. Jimeno (1991) 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297.) I believe that, given the circumstances, a reasonable person could have understood the official’s statement to mean that the "compliance inspection" he was there "to do" was going to happen, and John was merely being asked to get started as a rhetorical courtesy. The presence of several government officials, including several who were armed, reinforced the implication that an immediate inspection was inevitable. Indeed, the circumstances were such that John actually believed he did not "really" have the option of declining consent. Moreover, there is no evidence the officers advised John of his right to decline consent. I do not think the "typical reasonable person" in John’s position would have understood that they were completely free to reject the government’s request to inspect the premises for violations of the law.
An advisement of the right to refuse consent is not always required to obtain valid consent (People v. Boyer (2006) 38 Cal.4th 412, 447, fn. 20, 42 Cal.Rptr.3d 677, 133 P.3d 581 ), but its absence is a factor in determining whether consent was freely given. (People v. Ramirez, supra , 59 Cal.App.4th at p. 1558, 70 Cal.Rptr.2d 341.)
However, the finder-of-fact concluded otherwise, and we are tasked only with reviewing that finding for substantial evidence.
Shows of Force During Routine Administrative Inspections
Law enforcement officers commonly carry firearms for their safety. Well-trained law enforcement officials routinely perform duties that place them at great risk as they guard us from criminal activity. A safe, grateful society depends upon their service and valor in protecting the public. But asking for consent while armed can have a coercive effect – especially in the context of a routine safety inspection of a business.
The threat of coercion is why courts look to whether officers have their guns drawn when consent is requested. ( People v. Ramirez, supra , 59 Cal.App.4th at p. 1558, 70 Cal.Rptr.2d 341.) This is not because the law is indifferent to officer safety or disapproves the use of firearms by law enforcement. Rather, the law recognizes that displays of police power can be very intimidating even – maybe especially – to law-abiding members of the public.
Here, there were apparently more government officials than employees on the premises, and several of the officials were armed. It is unclear what specific role, if any, was played by the armed officials other than being present during the inspection. Even assuming the presence of firearms and bulletproof vests was somehow justified, their coercive effect cannot be ignored. Of course, the display of force by law enforcement is just one of several factors bearing on consent. And not every display of force will negate consent. But here there were few mitigating factors, if any. There is no indication the Nolte Sheet Metal employees were told they have a right to refuse consent to the search, or that a search warrant could be obtained. ( People v. Ramirez, supra , 59 Cal.App.4th at p. 1558, 70 Cal.Rptr.2d 341.) If there is justification for administrative officials to carry firearms for routine workplace inspections, they should mitigate their coercive effect by informing the owners of their constitutional right to freely grant or refuse consent to search private property.
The record apparently does not reflect a justification or rationale for the show of force, nor whether such was a standard practice for the government’s conducting safety inspections at business premises.
Administrative safety inspections and similar entries onto private property are supposed to be "quite different from an entry by police officers with guns drawn." ( People v. Ovieda (2019) 7 Cal.5th 1034, 1052, 250 Cal.Rptr.3d 754, 446 P.3d 262.) However, this case, and others like it, demonstrate how some administrative inspections have come close to overstepping what was once a distant boundary limiting acceptable displays of force. Unless there is some elusive rationale to the contrary, the deployment of armed officials for routine workplace inspections should not become commonplace. It would seem prudent for administrative agencies, and perhaps the Legislature, to review such practices – in the interest of public safety and our free society.
Administrative Due Process
Additionally, I have concerns with whether the present administrative scheme affords due process. "Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions. " (8 Cal. Code Regs., tit. 8, § 376.2, italics added.) Accordingly, the Appeals Board may consider otherwise inadmissible hearsay evidence, so long as the evidence is not deemed "sufficient in itself" to support a finding. (Ibid. ) Thus, small business owners have to defend against the threat of substantial punitive fines with far fewer evidentiary protections than it would have in a civil suit.
Perhaps the abrogation of these important evidentiary safeguards would comport with due process if subsequent judicial review was de novo. Instead, the opposite is true. "The findings and conclusions of the appeals board on questions of fact are conclusive and are not subject to review. Such questions of fact shall include ultimate facts and the findings and conclusions of the appeals board." ( Lab. Code, § 6630.) At no point in this lengthy and consequential legal process does any Article VI court act as the finder-of-fact.
Conclusion
Notwithstanding these observations, given the Supreme Court’s holding in cases like Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 156 Cal.Rptr. 1, 595 P.2d 579, I am compelled to concur in the judgment, rather than dissent. (See id. at p. 346, 156 Cal.Rptr. 1, 595 P.2d 579 ; see generally Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.)
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, only the Introduction, parts I. and II.a. of the Discussion, the Disposition, and the Concurring Opinion are certified for publication.