Abateco Services, Inc. v. Theron J. Bell, etc.

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Coleman and Elder
Argued at Salem, Virginia

ABATECO SERVICES, INC.
OPINION BY
v. Record No. 0328-96-3 JUDGE SAM W. COLEMAN III
NOVEMBER 19, 1996
THERON J. BELL,
COMMISSIONER OF LABOR AND INDUSTRY

FROM THE CIRCUIT COURT OF THE CITY OF STAUNTON
Rudolph Bumgardner, III, Judge
R. Leonard Vance for appellant.

John R. Butcher, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.

Abateco Services, Inc. (Abateco), a licensed asbestos

removal contractor, appeals the trial court's order which upheld

four citations issued by the Department of Labor and Industry

(Department) and $9,665 in civil penalties assessed by the trial

court against Abateco for refusing to provide the Department

access to its records as required by Abateco's subcontract and by

various provisions of the Virginia Occupational Safety and Health

Standards. Abateco contends that the citations were not valid

because it had revoked its contractual consent for the Department

to access its records and, therefore, it had no legal obligation

to produce the records without a warrant or court order. After

revoking its consent, Abateco asserts that the Department, which

had the statutory and regulatory right to access the records,

would have been required to obtain a search warrant or subpoena
in order to lawfully access its records. Therefore, Abateco

argues, because the Department was required to obtain a warrant

or subpoena for the records, it could not cite Abateco for

exercising its constitutional right to require the Department to

obtain a warrant in order to gain access to Abateco's private

records. Abateco also contends that the civil penalty of $9,665

as assessed by the trial court was excessive.

Initially, we decide the extent of Abateco's protected

privacy interest in its records, irrespective of the Department's

contention that it contractually waived whatever privacy right it

had. We must address this question because the Department

contends that Abateco, as a highly regulated industry, has no

expectation of privacy and regardless of the contractual waiver,

no search warrant would have been required to lawfully access the

records.
We hold that Abateco had a diminished expectation of privacy

in the requested records, however, we further hold that it

contractually waived whatever Fourth Amendment rights it

possessed in the records. Because Abateco could not unilaterally

revoke its contractual waiver of Fourth Amendment rights without

breaching the terms of the contract, the Department had the right

to inspect the records without a search warrant, provided it

could reasonably do so without breaching the peace. Accordingly,

because the Department was not required to obtain a warrant in

order to obtain access to the records, the citations issued by

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the Department were founded. Furthermore, the penalty of $9,665

assessed by the trial court was reasonable and within the range

provided for in Code § 40.1-49.4(A)(4)(a). Therefore, we hold

that the trial court did not err in upholding the citations and

the penalty imposed by the trial court was not excessive.
I. FACTS

Abateco is an asbestos abatement contractor licensed in

Virginia pursuant to Code § 54.1-503. In November 1994, Abateco

was working as a subcontractor removing insulation containing

asbestos from the boiler and pipes at the Staunton Correctional

Center, a facility owned and operated by the Virginia Department

of Corrections.
The subcontract executed by Abateco incorporated several

documents, 1 among them being the General Conditions, which

provided:
Section 3(d). The provisions of all rules
and regulations governing safety as adopted
by the Safety Codes Commission . . . and as
issued by the Department of Labor and
Industry under Title 40.1 of the Code of
Virginia shall apply to all work under this
contract. Inspectors from the Department of
1
The subcontract stated:

The Contract Documents for this Subcontract
consist of this Agreement and any Exhibits
attached hereto, the Agreement between the
Owner and Contractor dated as of August 22,
1994, [and] the Conditions of the Contract
between the Owner and Contractor (General,
Supplementary and other Conditions) . . . .
These form the Subcontract, and are as fully
a part of the Subcontract as if attached to
this Agreement or repeated herein.

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 Labor and Industry shall be granted access to
the Work for inspection without first
obtaining a search warrant from the court.

* * * * * * *
Section 21. The Architect/Engineer, the
Owner, the Owner's inspectors and other
testing personnel, and inspectors from the
Department of Labor and Industry shall have
access to the Work at all times.

(Emphasis added).

Upon receiving notification pursuant to Code § 40.1-51.20

that Abateco was working at the Staunton Correctional Center, the

commissioner assigned an industrial hygienist to conduct an

unannounced inspection at the site under the authority of Code

§ 40.1-51.21. On November 10, 1994, the inspector visited the

site and attempted to conduct an inspection. Abateco's site

supervisor refused to allow an inspection without a search

warrant despite the fact that the subcontract expressly stated

that the Department, under the General Conditions of the

Contract, would be granted access to the work without a warrant.
On November 16, 1994, the inspector returned to the site to

attend a construction progress meeting with representatives of

Abateco, the Department of Corrections, and the architects.

During this meeting, Abateco's contract with the Commonwealth was

discussed. At that time, Abateco's president acknowledged that

the contract provided for warrantless access to the records, but

he stated that Abateco would not voluntarily allow the inspector

to conduct a search.

On November 22, 1994, a complaint from an employee working

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at the Staunton Correctional Center prompted the commissioner to

send the inspector back to the site under authority of Code

§ 40.1-51.2, which requires the commissioner to inspect employee

complaints of hazardous conditions. Abateco's site supervisor

again refused to allow the Department to conduct an inspection

without a search warrant. At that time, the inspector asked to

see certain records that Abateco was required to keep by the

Department's regulations pertaining to asbestos removal. The

requested records included those showing employee exposure to

asbestos, 2 records of employee asbestos training, 3 employee

medical records, 4 and written hazard communication program

documents. 5

Abateco's supervisor refused to make these records available

without a search warrant. The inspector then called Abateco's

president, who also refused to consent to an inspection of the

records and of the workplace. The inspector advised Abateco that

a refusal to provide the records would be considered a willful

violation of the regulations, but Abateco continued to refuse to

provide access to the records.
2
Required by Virginia Occupational Safety and Health
Standard § 1926.58(n)(5)(ii).
3
Required by Virginia Occupational Safety and Health
Standards § 1926.58(k)(4)(ii).
4
Required by Virginia Occupational Safety and Health
Standards §§ 1926.58(m) and (n).
5
Required by Virginia Occupational Safety and Health
Standards § 1926.59(e)(4).

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 As a result of Abateco's refusal, the commissioner issued

four citations for willful failure to produce the records. In

accordance with Code § 40.1-49.4(4)(A)(a), the commissioner

proposed a civil penalty of $20,000. After a bench trial on the

merits, the trial judge found Abateco guilty of four willful

violations and assessed a penalty of $9,665, which consisted of

$5,665 for the commissioner's costs and $1,000 for each citation.

Abateco appeals the trial court's decision and argues that,

despite its contractual consent to warrantless searches by the

Department of Labor and Industry, it had the right to withdraw

its consent and to demand a warrant under the Fourth Amendment

before allowing inspection of the requested records. Abateco

contends that because it had an expectation of privacy in its

records, those records were not subject to being searched except

upon a showing of justifiable cause and with a warrant, subpoena,

or injunction. Abateco also asserts that the contract did not

create an irrevocable waiver of Fourth Amendment rights and that

Abateco properly revoked the contractual waiver when the

inspector asked to see the records.
II. EXPECTATION OF PRIVACY IN RECORDS

The Department contends, as the trial court held, that

Abateco has no reasonable expectation of privacy in those records

that it is required to maintain because it is involved in the

removal and disposal of asbestos, an industry that is heavily

regulated by statute and by regulation. Abateco's claim that the

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citations were not valid because a warrant was required to

lawfully search the records is predicated upon the premise that

it has a reasonable expectation of privacy in those records as

far as the Department is concerned.

In 1967, the United States Supreme Court ruled that the

Fourth Amendment protects businesses from unreasonable

warrantless searches and seizures by administrative agencies.

See v. City of Seattle, 387 U.S. 541 (1967).
As we explained in Camara [v. Municipal
Court, 387 U.S. 523 (1967)], a search of
private houses is presumptively unreasonable
if conducted without a warrant. The
businessman, like the occupant of a
residence, has a constitutional right to go
about his business free from unreasonable
official entries upon his private commercial
property. The businessman, too, has that
right placed in jeopardy if the decision to
enter and inspect for violation of regulatory
laws can be made and enforced by the
inspector in the field without official
authority evidenced by a warrant.

Id. at 543. However, the Supreme Court also cautioned that

business premises could be inspected in many more situations than

private homes and that a case-by-case determination of

reasonableness is necessary. Id. at 456.

Following the See decision, the Supreme Court recognized an

exception to the warrant requirement for administrative searches

of closely regulated businesses and industries. See Colonnade

Catering Corp. v. United States, 397 U.S. 72 (1970) (liquor

licensees); United States v. Biswell, 406 U.S. 311 (1972) (gun
dealers); Donovan v. Dewey, 452 U.S. 594 (1981) (underground and

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surface mine owners); New York v. Burger, 482 U.S. 691 (1986)

(junkyard owners). Warrantless searches in these situations are

reasonable because "[c]ertain industries have such a history of

government oversight that no reasonable expectation of privacy

could exist . . . . The clear import of our cases is that the

closely regulated industry of the type involved in Colonnade

[liquor industry] and Biswell [gun dealers] is the exception."

Marshall v. Barlow's, Inc., 436 U.S. 307, 312 (1978) (citation

omitted). "When a dealer chooses to engage in [a] pervasively

regulated business and to accept a federal license, he does so

with the knowledge that his business records . . . will be

subject to effective inspection." Biswell, 406 U.S. at 316.

Abateco claims that it had a reasonable expectation of

privacy in the records requested by the commissioner's inspector

and that a warrant was required based upon the rationale of

Marshall. In Marshall, the Supreme Court struck down a provision

of the Occupational Safety and Health Act which permitted

inspectors to enter and inspect businesses without a warrant.

The Court held that Barlow's electrical and plumbing installation

business did not fall under the "closely regulated business"

exception to the warrant requirement. Id. at 314-15. However,

the Court also stated that "[t]he reasonableness of a warrantless

search . . . will depend upon the specific enforcement needs and

privacy guarantees of each statute." Id. at 321. It is that

standard which controls our determination of whether the

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Department's regulatory requirements that asbestos contractors

provide access to certain records encroaches upon the

contractor's protected privacy interests.

Asbestos removal is a highly regulated industry in Virginia.

Code §§ 54.1-500 through -517 provide a rigid scheme of

licensure for asbestos removal contractors. In addition to being

governed by the general provisions of Title 40.1, which apply to

all businesses regulated by the Department of Labor and Industry,

asbestos removal contractors are bound by Chapters 3.2 and 3.3 of

Title 40.1 which provide for notification requirements and

adherence to the National Emissions Standards for Hazardous Air

Pollutants. Asbestos removal and asbestos disposal present

health and safety hazards to the public and in the workplace.

Pursuant to the authority granted to the commissioner under Code

§§ 40.1-6(3) and (7), regulations governing occupational exposure

to asbestos and record-keeping requirements have been

promulgated. Because asbestos removal is so highly regulated in

Virginia, asbestos removal contractors have a diminished

expectation of privacy in work areas and in the records they are

required to maintain relating to asbestos removal and disposal.
Abateco urges us to find that it had a reasonable

expectation of privacy in its records even though the

Department's regulations required Abateco to prepare and maintain

the records. Abateco relies on McLaughlin v. Kings Island, 849

F.2d 990 (6th Cir. 1988), and Brock v. Emerson Electric Co., 834

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F.2d 994 (11th Cir. 1987), to support its position. In both

Kings Island and Brock, the courts found that OSHA could not

inspect without a warrant certain logs or records of employees'

injuries and illnesses which the statutes at issue required to be

maintained. The court in Kings Island stated, "[w]e conclude

that even though the records in question are required by law to

be kept, this does not remove any privacy expectation that the

employer may have in the information." Kings Island, 849 F.2d at

996.
The Department argues that the Fourth Circuit case of

McLaughlin v. A.B. Chance Co., 842 F.2d 724 (4th Cir. 1988),

addressed the identical issue and should control this case. The

controlling rationale in A.B. Chance recognized that the employer

had a diminished expectation of privacy in the employee's injury

and illness records that were required to be kept, but that the

right to inspect those records involved a minimal intrusion. Id.

at 727. Because of the statutory duty to keep the records, there

was no additional burden imposed on the employer to compile

information or to "dig out supporting information, this work has

already been done." Id. The court limited its holding by saying

"under our ruling, the compliance officer must be on the

employer's premises as a result of an employee's health or safety

complaint before he may require production of the [logs] without

a warrant." Id. at 728.

We find the Fourth Circuit's reasoning in A.B. Chance

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persuasive. Because Abateco is required by law to maintain the

records to which the inspector requested access, Abateco had a

diminished expectation of privacy in the records. Both the Code

and the regulations promulgated by the Department place asbestos

removal contractors on notice that they are required to maintain

these records and to provide the Department access to them.

Therefore, Abateco had a diminished right to privacy in the

records. Moreover, when the inspector requested access to the

records he was on the site investigating an employee complaint.
Code § 40.1-6(7) empowers the commissioner to "require that

accident, injury and occupational illness records and reports be

kept at any place of employment and that such records and reports

be made available to the commissioner or his duly authorized

representatives upon request." The regulations pertaining to

this type of record provide that they shall be made available to

the commissioner upon request. See Va. Occupational Safety and

Health Standards §§ 1926.58(n)(5)(ii), 1926.58(k)(4)(ii),

1926.59(e)(4).

We find that Abateco had a diminished expectation of privacy

in those records that the inspector requested, for two reasons:

first, Abateco is a licensee in a closely regulated business in

the Commonwealth, which reduces its expectation of privacy; and

second, Abateco was required by law to create and maintain the

records. Having determined that Abateco has a diminished

expectation of privacy in these records, the question remains

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whether, absent a waiver of Fourth Amendment rights, a warrant is

required. We do not have to decide that question because Abateco

contracted with the commissioner to provide access to the records

upon request without requiring a warrant and Abateco cannot

unilaterally withdraw that consent, which was a condition of its

bargain to perform the asbestos removal.

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 III. CONTRACTUAL WAIVER OF RIGHT TO PRIVACY

Code § 40.1-49.8 gives the commissioner authority to inspect

the workplace of employers "with the consent of the owner,

operator or agent in charge of such workplace . . . or with an

appropriate order or warrant . . . ." Moreover, Abateco's

contract expressly provides that the Department shall have access

to Abateco's records without obtaining a warrant. Abateco agrees

that it initially voluntarily consented to warrantless

inspections or searches. But, Abateco argues that its consent to

search was revocable at any time and was, in fact, revoked by the

site supervisor and the president's refusal to allow the

inspector to see the records. Abateco contends that because its

consent was withdrawn, the Department's attempted search of its

records violated Code § 40.1-49.8.
It is well-settled that a knowing and voluntary consent to

search obviates the need for a search warrant under the Fourth

Amendment. See Schneckloth v. Bustamonte, 412 U.S. 218, 222

(1973); Crosby v. Commonwealth, 6 Va. App. 193, 197, 367 S.E.2d
730, 733 (1988) (quoting Hairston v. Commonwealth, 216 Va. 387,

387, 219 S.E.2d 668, 669 (1975), cert. denied, 425 U.S. 937

(1976)). More specifically, the right to require a search

warrant may be waived by written contract. See Zap v. United

States, 328 U.S. 624 (1946) rev'd on other grounds, 330 U.S. 800

(1947).

In Zap, the petitioner contracted with the Navy Department

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to conduct experimental work on airplane wings. Id. at 626. The

petitioner's contract with the Navy provided that "the accounts

and records of the contractor shall be open at all times to the

Government and its representatives . . . ." Id. at 627. The

Court stated:
And when petitioner, in order to obtain the
government's business, specifically agreed to
permit inspection of his accounts and
records, he voluntarily waived such claim to
privacy which he otherwise might have had as
respects business documents related to those
contracts.

Id. at 628. Where businesses or entities have contractually

consented to inspections or searches of documents and worksites,

courts have uniformly held such provisions to be valid waivers of

the requirement for a warrant or subpoena under the Fourth

Amendment. See United States v. Brown, 763 F.2d 984 (8th Cir.),

cert. denied, 474 U.S. 905 (1985) ("The government has a

substantial interest in establishing methods by which it can

effectively monitor compliance with the regulations . . . . We

see no constitutional infirmity in the government requiring a

provider to agree to maintain records . . . and to permit

periodic audits of those records as a condition for [contracting

with the government]. . . ."); United States v. Jennings, 724
F.2d 436 (5th Cir.), cert. denied, 467 U.S. 1227 (1984); First

Alabama Bank v. Donovan, 692 F.2d 714 (11th Cir. 1982); United

States v. Griffin, 555 F.2d 1232 (5th Cir. 1977); Lanchester v.
Pennsylvania State Horse Racing Comm'n, 325 A.2d 648 (Pa. 1974).

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 Although as a general proposition, consent to search granted

at the scene may be revoked, withdrawn, or partially limited by

the person who gives the consent, see Lawrence v. Commonwealth,

17 Va. App. 140, 435 S.E.2d 591 (1993); Grinton v. Commonwealth,

14 Va. App. 846, 419 S.E.2d 860 (1992); 79 C.J.S. Searches and

Seizures § 126 (1995), we hold that such is not the case when the

consent is given in a valid and binding bilateral contract.

Abateco contends, however, that contractual consent cannot

create an irrevocable waiver of Fourth Amendment rights. In

support of this argument, Abateco cites Tri-State Steel Constr.,
Inc. v. OSHRC, 26 F.3d 173 (D.C. Cir. 1994), and National Eng'g &

Contracting Co. v. OSHRC, 45 F.3d 476 (D.C. Cir. 1995). However,

neither case is sufficiently similar to the instant case to be

persuasive. In Tri-State Steel, although the general contractor

had contractually consented to searches, 26 F.3d at 176-77, the

subcontractor had not, which is different from the situation in

the instant case. Moreover, the subcontractors objected to

searches made by OSHA of the common areas, which led OSHA to

obtain warrants in order to search the areas that were under the

exclusive control of the subcontractors. Id. In National Eng'g,

the search was also conducted pursuant to a warrant. National

Eng'g, 45 F.3d at 478. The holdings in these cases are not

applicable to this case and do not support Abateco's argument

that it could revoke its contractual waiver.

A party "cannot accept the benefits of the contract and then

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assert he is entitled to be relieved of its obligations." Link

Assoc. v. Jefferson Standard Life Ins. Co., 223 Va. 479, 489, 291

S.E.2d 212, 218 (1982) (quoting United States v. Idlewild

Pharmacy, Inc., 308 F. Supp. 19, 23 (E.D. Va. 1969)); see also

Manassas Park Dev. Co. v. Offutt, 203 Va. 382, 385, 124 S.E.2d

29, 31 (1962) ("Where one enters into a contract to perform

certain acts, without any exceptions or qualifications, and

receives from the party with whom he contracts a valuable

consideration for his engagement, he must abide by the contract

. . . ."). Revoking only part of a written contract places a

party in breach of the contract unless the other party consents

to the revocation. See Spence v. Northern Va. Doctors Hosp.

Corp., 202 Va. 478, 483, 117 S.E.2d 657, 660 (1961). In this

case, Abateco attempted to unilaterally rescind the terms of its

contract with the Commonwealth by withdrawing its consent.

To accept Abateco's position would be to allow the company

to accept the benefit of its bargain with the Commonwealth

without having to abide by its obligation to the commissioner.

Therefore, we hold that the trial court did not err in ruling

that Abateco's attempt to withdraw its contractual consent was

ineffective. Thus, because Abateco had contractually consented

to access its records without requiring a warrant, the trial

court did not err in upholding the Department's citations.
IV. EXCESSIVE CIVIL PENALTY

Abateco argues that the civil penalty of $9,665 imposed by

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the trial court was excessive because Abateco had reason to

believe it was justified in requiring the Department to obtain a

warrant before allowing its records to be inspected; therefore,

its refusal was not willful. We disagree. The evidence before

the trial court was sufficient to support its finding that

Abateco willfully violated the terms of the contract and Code

§ 40.1-51.21.

In assessing penalties, Code § 40.1-49.4(A)(4)(a) requires

consideration of the size of the employer's business, the gravity

of the violation, the good faith of the employer, and the

employer's history of previous violations. The contract that

Abateco entered into provided that it agree to submit to searches

by the Department of Labor and Industry without the need for a

search warrant. Abateco acknowledged the contractual provision,

but refused to comply with its contractual obligation and stated

that it had no intention of complying. Although the inspector

acknowledged at trial that he told Abateco that he thought

Abateco had the right to require a search warrant before being

searched, he also testified that the commissioner's position was

that a warrant was unnecessary under the contract. On these

facts, we hold that the trial court did not err in finding that

Abateco's refusal to voluntarily provide the documents to the

commission as required by the contract was a willful violation of

the contract and Code § 40.1-51.21.
Code § 40.1-49.4(J) provides that an "employer who willfully

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or repeatedly violates any safety or health provision of this

title or any standard, rule or regulation promulgated pursuant

thereto may be assessed a civil penalty of not more than $70,000

for each such violation." In this case, the trial court assessed

a penalty of $5,665 for the commissioner's costs in enforcing the

contract and the statutes and $1,000 for each of the four willful

violations. The maximum allowable penalty for a willful

violation is $70,000. The assessment of the commissioner's costs

and $1,000 penalty for each of the four willful violations is not

excessive.
V. CODE § 40.1-51.21

Abateco contends that, because it had already been inspected

by the Department earlier in 1994, the attempted inspection of

the records and worksite at the Staunton Correctional Center in

November 1994 was in violation of Code § 40.1-51.21. This

section states:
At least once a year, during an actual
asbestos project, the Department of Labor and
Industry shall conduct an on-site unannounced
inspection of each licensed asbestos
contractor's and RFS contractor's procedures
in regard to installing, removing and
encapsulating asbestos. The Commissioner or
an authorized representative shall have the
power and authority to enter at reasonable
times upon any property for this purpose.

Abateco urges this Court to interpret the language of the statute

to mean that each licensed asbestos contractor should be

inspected only once per year. The argument is not persuasive.

When a statute is plain and unambiguous on its face, a court

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may look only to the words of the statute to determine its

meaning. Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87

(1985). "An ambiguity exists when the language is difficult to

comprehend, is of doubtful import, or lacks clearness and

definiteness." Id. The language of Code § 40.1-51.21 contains

no ambiguity. It states that inspections of licensed asbestos

contractors must take place "[a]t least once a year." The

statute contains no words of limitation indicating that only one

inspection per year is allowed. The plain meaning of the statute

is that the Department of Labor and Industry must inspect once

per year, but can inspect more than once per year.
Because the subcontract allowed the commissioner to make a

warrantless search of the workplace and records, and because that

consent was not effectively revoked, the trial court did not err

in assessing penalty fines against Abateco for the four willful

violation citations issued by the commissioner. The penalty

assessed was not excessive. Accordingly, we affirm the decision

of the trial court.
Affirmed.

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