Orndorff & Spaid, Inc. v. Department of Licensing & Regulation

Thompson, J., delivered the opinion of the Court. Following an inspection of the job site of the appellant, Orndorff & Spaid, Inc., a roofing contractor, by the Division of Labor and Industry, pursuant to Md. Code, Art. 89, §§ 28-49A, a Citation and Notification of Proposed Penalty was issued charging appellant with a “serious” violation of the occupational safety and health regulations. This citation was contested before a hearing examiner and a $250.00 penalty was affirméd. The Commissioner of Labor and Industry affirmed the determination of the hearing examiner.

The Circuit Court for Prince George’s County affirmed the determination of the Commissioner. We reverse. The inspection of appellant’s work site, located at 7700 Riverdale Road, New Carrollton, Maryland, revealed eight employees working on a flat roof. At the north section of this roof, where there was a 20 foot drop to ground level, two employees were working approximately six to twelve inches from the edge of the roof.

The outside perimeter of the roof was not protected by railings of any type. The specific standard which the appellant was found to have violated, 29 C.F.R. 1926.500(d)(1) 1 states: “Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder....” ¹⁵⁷ It is the appellant’s contention that this section is inapplicable to roofs. The hearing examiner and trial judge rejected this contention on the basis that the purpose of the Occupational Safety and Health Act is to assure as far as possible every working man and woman in the State of Maryland safe and healthful working conditions. Md. Code, Art. 89, § 28C.

With this overall purpose in mind it was found to be inconceivable that the term “platform” would not include a flat roof. While the Act is aimed at promoting safe working conditions, it is a primary rule of statutory construction that courts may not attempt under the guise of construction, to supply omissions or remedy possible defects in the statute, or to insert exceptions not made by the Legislature. Slate v. Zitomer, 275 Md. 534 , 341 A. 2d 789 (1975). Obviously a similar rule applies in the construction of regulations which have the effect of law.

The terms “open-sided floor” and “roof” are not defined in the Act. In the general provision clause, § 1926.500(a) and the definitions of floor holes and floor openings, § 1926.502(a) & (b) the term “roof” is specifically inserted. 2 The inclusion of the term “roof” in the general provision clause and in these definitions combined