Robert K. Bell Enterprises

Plain-English summary

Bell operated an amusement park where OSHA cited unguarded pulleys and belts on the Scrambler ride. An administrative law judge invalidated the inspection warrant, suppressed the inspection evidence, and vacated the citation for lack of proof that Bell affected interstate commerce. The Commission reversed the suppression ruling. Chairman Buckley concluded that suppression would not deter magistrate error where OSHA misconduct was not alleged, while Commissioner Cleary found that the inspector’s observations supplied probable cause for a park-wide machinery inspection. Because the prior judge made no merits findings and it was unclear whether Bell had fully defended the guarding allegations, the Commission remanded the case to a new judge for expedited proceedings. The release does not state the citation classification or penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.219(d)(1); 29 C.F.R. § 1910.219(e)(3)(i)
• Outcome: Suppression ruling reversed and pulley-and-belt guarding case remanded for expedited merits proceedings.
• Key point: Evidence obtained under the warrant remained usable, but the citation required a fair merits determination and factual findings on remand.

Full text (OSHRC public release)

Docket No. 78-4332

SECRETARY OF LABOR,

Complainant,

v.

ROBERT K. BELL ENTERPRISES,

Respondent.

OSHRC Docket No. 78-4332

DECISION

Before:  BUCKLEY, Chairman, and CLEARY, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. � 661(i), section 12(j) of the Occupational Safety and Health Act of
1970, 29 U.S.C. �� 651-678 ("the Act").  The Commission is an
adjudicatory agency, independent of the Department of Labor and the Occupational Safety
and Health Administration ("OSHA").  It was established to resolve disputes
arising out of enforcement actions brought by the Secretary of Labor under the Act and has
no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. � 659(c).

The primary issues on review are whether former Administrative Law Judge
Richard J. Murphy erred in holding that an inspection warrant used to inspect an amusement
park operated by Robert K. Bell Enterprises ("Bell") was invalid and that
evidence obtained under the warrant, including evidence of Bell's effect on interstate
commerce, should be suppressed.  We conclude that the evidence obtained under this
warrant should not have been suppressed and remand for further proceedings.

Bell operates an amusement park in Tulsa, Oklahoma.  After receiving an anonymous
complaint concerning four allegedly hazardous conditions at the park a compliance officer
from OSHA attempted to conduct an inspection.  The park operator refused to allow an
inspection and demanded a warrant.  OSHA then sought and obtained a warrant from a
magistrate for the United States District Court for the Northern District of Oklahoma.
[[1]]  The warrant authorized an inspection of the entire park.  A compliance
officer returned to the park, served the warrant, and inspected the park.  Following
the inspection, Bell was issued a citation alleging that, contrary to 29 C.F.R. ��
1910.219(d)(1) and (e)(3)(i), it had not guarded pulleys and belts on its
"Scrambler" ride.[[2]]  Bell contested the citation before the Commission
and the case subsequently was assigned to Judge Murphy.[[3]]  Bell then requested a
pre-hearing determination of the warrant's validity.  It argued that the warrant was
not supported by probable cause and was overbroad.

Judge Murphy ruled that the warrant was invalid it is entirety.  He
noted that the affidavit filed with the magistrate in support of OSHA's warrant
application set forth two grounds for the issuance of a warrant:  the anonymous
complaint concerning allegedly hazardous conditions at the park; and the compliance
officer's observation of unguarded machinery while in route to Bell's office.  In
Judge Murphy's view, the anonymous complaint to OSHA was "too vague to provide a
basis for issuing a warrant."  The judge also found it unnecessary to decide
whether the compliance officer's observation of unguarded machinery established probable
cause because, even if it did, the scope of inspection authorized by the warrant exceeded
the scope of the probable cause supplied by the observation.

Following the judge's ruling on the warrant, a hearing was convened on
whether the evidence obtained during the inspection was observed in "plain view"
or a "public place" and thus admissible without a warrant.  At the hearing,
the compliance officer, over Bell's objection, also testified to his observation at the
Scrambler that led to the issuance of the citation.  Bell cross-examined the
compliance officer on that point but called no witnesses and presented no direct evidence
on the merits of the alleged violation.

At the close of the hearing, the compliance officer was called as a hostile
witness by Bell.  In response to a question concerning whether Bell's business
affected commerce, the compliance officer stated that it was after the warrant was served
that he was told by a Bell official that Bell had purchased rides from manufacturers
outside the State of Oklahoma.  Bell moved to exclude the commerce coverage
declarations as the fruit of the invalid warrant.

In his decision, the judge excluded the Secretary's evidence of Bell's effect
on interstate commerce as the fruit of an invalid warrant. He therefore vacated the
citation for lack of evidence of commerce coverage.  The judge did not decide whether
the observations of the compliance officer were admissible without a warrant nor did he
enter alternative findings and conclusions on whether a violation at the Scrambler was
proven.  The Secretary's petition for review of the judge's decision was granted.

On review, the parties advance several arguments on the issues of whether the
warrant was supported by probable cause and whether the inspection that it authorized was
overbroad.  For different reasons, Chairman Buckley and Commissioner Cleary conclude
that the judge's decision must be reversed.

Based on his separate opinion in Beauty Craft Tile of the Southwest, Inc .,
84 OSAHRC /, 12 BNA OSHC 1082, 1984 CCH OSHD � 27,091 (No. 80-471, 1984), the
Chairman concludes that the judge erred in suppressing the evidence from this inspection.
Suppression of evidence is a judicially-created measure to protect Fourth Amendment rights
by deterring future misconduct by law enforcement officers; it can be expected to have
little, if any, deterrent effect on judges and magistrates issuing warrants.  12 BNA
OSHC at 1083, 1984 CCH OSHD at pp. 34,929-30 (lead opinion), citing United States v.
Leon , 104 S.Ct. 3405, 3412 (1984).  In view of this, and the Commission's lack of
authority to supervise the actions of judges or magistrates, evidence should not be
suppressed "where the only deterrent effect would bear on the judge or magistrate
issuing the warrant."  12 BNA OSHC at 1083, 1984 CCH OSHD at p. 34,930.  
Instead, the Commission must determine whether suppression "can reasonably be
expected to deter future misconduct in OSHA-related searches."  Id .

Bell's arguments in support of the judge's suppression order relate to the
magistrate's decision to issue the warrant.  Bell does not contend that the
suppression is required because of OSHA's conduct in obtaining the warrant or conducting
its inspection. Chairman Buckley therefore concludes that suppression is not appropriate
here.  Accordingly, the Chairman would set aside the judge's ruling that all evidence
obtained under the warrant, including evidence of Bell's effect on interstate commerce,
must be suppressed.

Commissioner Cleary concludes that suppression is not appropriate here
because the magistrate was presented with sufficient probable cause to issue a warrant.
  In Marshall v. Barlow's, Inc ., 436 U.S. 307, 320-21 (1978), the Supreme
Court stated that "[f]or purposes of an administrative search such as this, probable
cause justifying the issuance of a warrant may be based ..... on specific evidence of an
existing violation. . . ." In Commissioner Cleary's view, it is unnecessary to
determine whether the anonymous complaint described in the affidavit provided probable
cause because the compliance officer's first hand observation of "unguarded belts and
pulleys and sprockets and chain drives" constitutes "specific evidence of an
existing violation."

The judge did not decide whether the compliance officer's observation alone
provided sufficient probable cause for an inspection because, even if it did, the warrant
was "defective because it is overbroad."  Commissioner Cleary does not find
this warrant is overbroad.  To accommodate the fourth amendment, the scope of an
inspection authorized by a warrant must bear an "appropriate relationship" to
the violation alleged in the complaint that forms the basis of the warrant.  Donovan
v. Sarasota Concrete Co ., 693 F.2d 1061, 1068 (11th Cir. 1982), aff'g Sarasota
Concrete Co ., 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1981 CCH OSHD � 25,360 (No. 78-5264,
1981).  "[A] specific complaint may allege a violation which permeates the
workplace so that a full scope inspection is reasonably related to the complaint."
  Id . at 1069.  See , also Beauty Craft , 12 BNA OSHC
1084 n.1, 1984 CCH OSHD at p. 34,930 n.1 (Cleary, Commissioner, concurring).

In the affidavit submitted to the magistrate with OSHA's warrant application,
the compliance officer stated that on his walk from the park entrance to the park office,
he passed several rides and observed some "unguarded belts and pulleys and sprockets
and chain drives."  Inasmuch as unguarded machinery was readily visible from the
path to the park office and it would be expected that an amusement park would contain
numerous rides and other equipment driven by "belts and pulleys and sprockets and
chain drives" one could reasonably conclude that these other rides and equipment
might also be unguarded.  Under the circumstances, Commissioner Cleary would conclude
that a magistrate could reasonably infer that a wide-ranging inspection of Bell's park was
reasonable and necessary.[[4]]

Since Chairman Buckley and Commissioner Cleary agree that the judge erred in
suppressing evidence obtained under the warrant, the previously excluded evidence is
admitted to the record and the Commission must decide whether it is necessary to remand
the case for further consideration.  Although the hearing convened by the judge
focused mainly on whether the evidence obtained in the inspection was admissible without a
warrant, the Secretary did elicit testimony from the compliance officer on the merits of
the alleged guarding violation at the Scrambler ride.  However, the judge did not
enter findings of fact and conclusions of law on the merits or determine whether a
violation was established.  It is also unclear whether Bell had an opportunity to
fully defend on the merits.  Chairman Buckley and Commissioner Cleary therefore
remand this case to the Commission's Chief Administrative Law Judge for assignment to a
new judge.[[5]]  On remand, this case shall be conducted as an "Expedited
Proceeding" under Commission Rule 101, 29 C.F.R. � 2200.101.[[6]]  The judge
assigned to this case shall conduct further proceedings on the merits, if necessary, and
enter appropriate findings of fact and conclusions of law.

Accordingly, the case is remanded to the Chief Administrative Law Judge.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED:  DEC 19 1984

The Administrative Law Judge decision in this matter is unavailable in this
format.  To obtain a copy of this document, please request one from our Public
Information Office by e-mail ( [email protected]
), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] An affidavit filed with the magistrate in support of OSHA's warrant
application stated:

On April 6, 1978, the Tulsa Area Office received a complaint regarding the
above-described employer.  This complaint alleged the following hazards:  (1)
employees setting under the rides; (2) bad wiring; (3) no emergency exits to ghost house
and flammable liquids in area; and (4) employees standing on, and jumping on and off the
Himalaya ride while it is operating.  I was assigned to make an inspection of the
premises on June 14, 1978, and that day, accompanied by Fred Ford, a summer engineering
student working for OSHA, we entered the premises at 2:00 p.m.  The ticket saleslady
directed us to the office, and on our way there we had to pass several rides and observed
some unguarded belts and pulleys and sprockets and chain drives.  When I handed my
card to the lady at the desk, she exclaimed "Oh no, now what?  Has someone filed
another complaint?"  She went to get Mr. R. K. Bell, Jr. who appeared about five
minutes later, soon followed by R. K. Bell, Sr.  Both indicated that they were
against the Act and felt it to be unconstitutional, particularly the complaint process
which they felt harassed employers.  They referenced the Barlows ' decision and
indicated that it had not gone far enough in preventing that harassment.  After
thanking them for their time, we left at 2:15 and reported the refusal of entry to the
Area Office.

[[2]] The cited standards respectively require guarding of pulleys, any parts of which are
seven feet or less from the floor, and of vertical and inclined belts.

[[3]] After Bell contested the citation and before this case was assigned to
Judge Murphy, Bell complained in the United States District Court for the Northern
District of Oklahoma that the warrant was invalid and requested that the warrant be
quashed and all evidence obtained in the inspection be suppressed.  Proceedings
before the Commission were stayed during 2 1/2 year period that Bell's suit was before the
district court.  This stay was lifted after the district court dismissed Bell's
complaint.  As grounds for this dismissal, the district court held that Bell must
exhaust its administrative remedies before the Commission.  Robert K. Bell Enterprises
v. Marshall , No. 78-C-545-E (N.D. Ok. May 20, 1981).  The district court's
decision was affirmed on appeal.  Robert K. Bell Enterprises v. Donovan ,
710 F.2d 673 (10th Cir. 1983).

[[4]] Compare Sarasota Concrete , 9 BNA at 1617, 1981 CCH OSHD at p.
31,536 (wall-to-wall warrant found overbroad where probable cause consisted of employee
complaint concerning allegedly unsafe cement trucks that were located in a "discrete
area of [the employer's] facility").

[[5]]  Judge Murphy is no longer with the Commission.

[[6]] Commission Rule 101 sets forth various procedures that facilitate the
completion of a case "in the minimum time consistent with fairness" and also
directs that the judge "shall do all things necessary" to achieve this
objective.