¶29
Chambers, J.,(dissenting) — Because the majority fails to recognize that the Washington Industrial Safety and Health Act of 1973 (WISHA), chapter 49.17 RCW, contains general, specific, and ultimately extremely diverse regulations, I dissent. In my view, the majority confuses the burden of proof and fails to provide fundamental due process before the imposition of higher penalties is upheld on review for alleged “repeat” WISHA violations. Based upon the language of RCW 49.17.060,1 would establish an evidentiary standard similar to that established in Commissioner of Labor & Industry v. Bethlehem Steel Corp., 344 Md. 17, 684 A.2d 845 (1996), which the Department of Labor and Industries (Department) would have to meet before a repeat violation penalty is sustained. I would require the Department to demonstrate that the employer has been previously penalized for violating a substantially similar requirement of the regulation.
¶30 It should be axiomatic in a free and democratic society governed by laws that no punishment may be imposed by government for misconduct without fair warning and notice of the precise conduct that is prohibited. The federal Occupational Safety and Health Act of 1970 *104(OSHA), 29 U.S.C. §§ 651-678, which is the source of WISHA, is premised upon notice and fair warning of its regulations to employers. See generally 29 U.S.C. § 655. Under the United States Constitution, a law or regulation that does not provide fair warning of what it requires or prohibits is void as unconstitutionally vague. United States v. L. Cohen Grocery Co., 255 U.S. 81, 89-91, 41 S. Ct. 298, 65 L. Ed. 516 (1921). It is well accepted that occupational safety and health acts “must provide a reasonably clear standard of culpability to circumscribe the discretion of the enforcing authority and its agents.” Diamond Roofing Co. v. Occupational Safety & Health Review Comm’n, 528 F.2d 645, 649 (5th Cir. 1976); Bethlehem Steel Corp. v. Occupational Safety & Health Review Comm’n, 573 F.2d 157, 161 (3d Cir. 1978).
¶31 The Department may and should impose substantially higher penalties when an employer “willfully or repeatedly violates the requirements ... of any safety or health standard promulgated [by the Department].” RCW 49.17-.180(1). The Department has interpreted this to mean it has to prove only that a “repeat” violation involves “the same type of hazard” as the current violation.7 Former WAC 296-27--16001(9) (1996), repealed by Wash. St. Reg. 00-11-098 (Aug. 1, 2000). The Department has defined “hazard” to mean a “condition, potential or inherent, which is likely to cause injury, death, or occupational disease.” WAC 296-155-012.
¶32 The real question for this court is what standard should be applied to determine whether the Department has sustained its burden of showing that the violation is the “same type of hazard” or “substantially similar hazard.” Former WAC 296-27-16001(9); WAC 296-800-35040. That a clear standard is needed is illustrated by this case. The *105Department issued a “repeat” violation to Cobra. An industrial appeals judge determined that there was insufficient evidence of a repeat offense because the Department failed to present any evidence of the conditions or conduct giving rise to the prior violation. Subsequently, the Board of Industrial Insurance Appeals (Board) reversed, the superior court reversed the Board, and the Court of Appeals reversed the superior court. Reviewing the very same evidence, the industrial appeals judge and the superior court concluded that there was insufficient evidence of a repeat violation, while the Board and Court of Appeals concluded that there was sufficient evidence of a repeat violation.
¶33 But despite the need for a standard to determine whether a current violation involves a substantially similar hazard, the majority provides no answer. Instead, the majority reasons that if there is a violation of the same regulation, then there must be a repeat violation. Majority at 96-98. Regrettably, that is not a useful standard since there are general and specific regulations which oftentimes deal with multiple conditions and hazards. Unfortunately, the majority compounds its error by observing that “Cobra did not present evidence to show that the violations involved different types of hazards.” Majority at 98. It is the Department, not the employer, who has the burden of proof in any action involving an alleged violation under WISHA. Wash. Cedar & Supply Co. v. Dep’t of Labor & Indus., 119 Wn. App. 906, 914, 83 P.3d 1012 (2004).
¶34 Cobra was cited on both occasions under a general regulation requiring adequate fall protection from a location of 10 feet or more in height. WAC 296-155-24510. Most, if not all, of the on-site work performed by any roofing company is from a height of 10 feet or more. Further, as stated above, the relevant regulation is general in nature. There are more specific standards relating to fall hazards. See WAC 296-155-24510, -24515. Typically, more specific standards supersede general standards. See Donovan v. Royal Logging Co., 645 F.2d 822, 829 (9th Cir. 1981) *106(“[OSHA’s] general duty clause applies [only] when there are no specific [safety] standards.”). The Department has recognized that there are different risks and hazards associated with work on steep pitched roofs than on low pitched roofs. There are different standards regulating steep pitched roofs, WAC 296-155-24510, and low pitched roofs, WAC 296-155-24515. Cobra contends that WAC 296-155--24515 should have applied to the 2000 violation because their employees in that instance were working on a flat roof surrounded with a parapet, making the WAC concerning steep pitched roofs inapplicable.
f 35 Regardless of the persuasive force of Cobra’s contention, at the very least, the employer is entitled to a standard that assures that enhanced penalties for repeat violations will be for violations of substantially similar requirements of regulations addressing the same hazards, not merely the same code provision that may very well address several different conditions and hazards. In other words, the employer’s prior, specific conduct underlying a given hazard resulting in a citation should be substantially similar to the conduct underlying a subsequent violation involving the same hazard if a repeat violation penalty is to be imposed by the Department.
¶36 In sum, I would adopt the approach outlined in Bethlehem Steel Corp., 344 Md. at 29-36, as it sets out a fair and reasonable standard and test. In that case, Bethlehem was assessed a civil penalty for a repeat violation of the Maryland Occupational Safety and Health Act (MOSHA) because of faulty electrical equipment. Id. at 29-37. A toaster oven had been supplied to the lunchroom by workers and one sweaty worker sadly was electrocuted while “restfing]” on the toaster oven. Id. The relevant regulation provided:
“(a) Willful or repeated violations. — Any employer who willfully or repeatedly violates any provision of this subtitle or any rule, regulation, standard, or order promulgated pursuant to this subtitle may be assessed a civil penalty not to exceed $10,000.00 for each violation.”
*107Id. at 21 (quoting former Md. Ann. Code art. 89, § 40 (1990)).8 Bethlehem attempted to make a distinction between the regulations applicable to “industrial” electrical equipment and “non-industrial” electrical equipment, specifically, the toaster oven that the employees brought in for their own use. Id. at 24-25. Bethlehem attempted to distinguish the toaster oven from the wiring on a crane and floor mounted motors for which it had previously received citations. Id. at 32.
¶37 Citing federal authority, the Maryland court concluded that in order to sustain a repeated violation penalty, there must be a “ ‘substantial similarity of violative elements between the current and prior violations.’ ” Id. at 33 (quoting D&S Grading Co. v. Sec’y of Labor, 899 F.2d 1145, 1147 (11th Cir. 1990)). The court recognized that occupational safety and health standards range from those that designate specific means of preventing a hazard or hazards to those that either do not specify the means of preventing a hazard or that apply to a variety of circumstances. “The universe of OSHA and MOSHA rules and regulations is large and diverse. As the Potlatch Commission noted, safety standards may be quite specific, such as those that require the installation of handrails ... or quite general, such as those that require workplace cleanliness and sanitation.” Id. at 35. The Bethlehem court used the word “elements,” and RCW 49.17.180(1) uses a similar word in meaning, “requirements.” Given the specific language of the Washington statute, RCW 49.17.180, I would articulate the standard as follows: In order to penalize an employer for a repeat violation, the Department must demonstrate that *108the employer has been penalized for violating a substantially similar requirement of the regulation in the past.
138 I agree with the majority’s analysis of attorney fees.
J.M. Johnson, J., concurs with Chambers, J.
In 2000, the Department adopted a slightly different articulation of what constitutes a repeat violation for a “substantially similar hazard” under WAC 296-800-35040. However, the difference between “the same type of hazard” and “substantially similar hazard” does nothing to assist my analysis. Former WAC 296-27-16001(9) (1996), repealed by Wash. St. Reg. 00-11-098 (Aug. 1, 2000); WAC 296-800-35040.
The majority attempts to distinguish Bethlehem Steel Corp. from the facts of this case by arguing that, unlike our relevant statute and code, neither the statute nor the Maryland code define the term “repeat.” However, any distinction made between the Maryland statute and code from our own RCW and WAC is illusory. RCW 49.17.180(1) provides that “any employer who willfully or repeatedly violates the requirements of RCW 49.17.060 [or] of any safety or health standard promulgated under the authority of this chapter. .. may be assessed a civil penalty.” As can be seen, RCW 49.17.180(1) neither defines the term “repeat” nor how one is to determine if a requirement of any rule or regulation has been violated.