Associated Builders & Contractors Florida East Coast Chapter v. Miami-Dade County

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 26, 2010
No. 08-13549 JOHN LEY
Non-Argument Calendar ACTING CLERK
________________________

D. C. Docket No. 08-21274-CV-UU

ASSOCIATED BUILDERS AND CONTRACTORS
FLORIDA EAST COAST CHAPTER,
as an Organization and Representative
of its Members,
SOUTH FLORIDA ASSOCIATED GENERAL
CONTRACTORS OF AMERICA, INC.,
as an Organization and Representative
of its Members,
FLORIDA CRANE OWNERS COUNCIL INC.,
as an Organization and Representative
of its Members,
CONSTRUCTION ASSOCIATION OF SOUTH
FLORIDA,
as an Organization and Representative
of its Members,

Plaintiffs-Appellees,

versus

MIAMI-DADE COUNTY, FL,
a political subdivision of
the State of Florida,

Defendant-Appellant.
 ________________________

No. 09-10678
Non-Argument Calendar
________________________

D. C. Docket No. 08-21274-CV-UU

ASSOCIATED BUILDERS AND CONTRACTORS FLORIDA
EAST COAST CHAPTER,
as an Organization and Representative
of its Members,
SOUTH FLORIDA ASSOCIATED GENERAL CONTRACTORS OF
AMERICA,
as an Organization and Representative
of its Members,
FLORIDA CRANE OWNERS COUNCIL INC.,
as an Organization and Representative
of its Members,
CONSTRUCTION ASSOCIATION OF SOUTH FLORIDA,
as an Organization and Representative
of its Members,

Plaintiffs-Appellees,

versus

MIAMI-DADE COUNTY,

Defendant-Appellant.

________________________

Appeals from the United States District Court
for the Southern District of Florida
_________________________

(January 26, 2010)

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Before EDMONDSON, BIRCH and KRAVITCH, Circuit Judges.

PER CURIAM:

Miami-Dade County (“County”) appeals (1) the district court’s grant of a

preliminary injunction prohibiting the enforcement of part of Miami-Dade County

Ordinance Number 08-34 (“Ordinance”) and (2) the district court’s subsequent

grant of summary judgment and a permanent injunction against the enforcement of

the same section of the Ordinance. In both instances, the district court held that the

Occupational Safety and Health Act (“OSH Act”), 29 U.S.C. §§ 651-78, preempted

a section of the Ordinance mandating wind load standards for tower cranes and

hoists.1 Considering these appeals together, we affirm the district court’s order of

summary judgment and grant of a permanent injunction and dismiss the appeal of

the preliminary injunction as moot.

I. Background

On March 18, 2008, Miami-Dade County passed and adopted the Ordinance,

which set binding regulations for the construction, installation, operation, and use

of tower cranes, personnel, and material hoists.

Soon thereafter, several building and contracting groups (“plaintiff-

appellees”) sought declaratory and injunctive relief to prohibit enforcement of the

1
In both cases, the County limits its appeal to whether the Ordinance’s wind load
standard is preempted by the OSH Act.

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Ordinance. In part, plaintiff-appellees argued that the Ordinance violated the OSH

Act because it was a non-approved state regulation of occupational safety and

health issues governed by federal standards. The OSH Act’s regulations seek to

ensure occupational safety by requiring compliance with either the manufacturer’s

specifications for erection, maintenance, and operation of cranes and hoists2 or, if

those are unavailable, compliance with the determinations of a qualified engineer

competent in the field. 29 C.F.R. § 1926.550(a)(1). If a state desires to override

these federal occupational safety standards, the state must submit a plan for federal

approval. 29 U.S.C. § 667.

After a hearing, the district court temporarily enjoined the enforcement of

certain provisions of the Ordinance, concluding that they were preempted by the

OSH Act. In relevant part, the district court held the Ordinance’s hurricane wind

load standard of 140 miles per hour for tower cranes was a non-approved

occupational safety regulation preempted by the OSH Act’s regulations. The

County timely appealed this preliminary injunction.

Before we could address that appeal, plaintiff-appellees filed a motion for

summary judgment asking the court to permanently enjoin the enforcement of the

2
The vast majority of manufacturer’s specifications in the United States reflect a national
consensus and require the crane to comply with the European Standard for wind loads of 93
miles per hour.

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Ordinance that the district court held was preempted in the preliminary injunction.

The district court granted the motion for summary judgment motion and

permanently enjoined the County from implementing the wind load standards. The

County appealed. We review these appeals together.

II. Discussion

Once an order of permanent injunction is entered, any preliminary injunction

merges with it, and appeal may be had only from the order of permanent

injunction. Sec. & Exch. Comm’n v. 1st Fin. Group of Tex., 645 F.2d 429, 433 (5th

Cir. 1981).3 In this case, the district court’s order of summary judgment granted a

permanent injunction, thus merging the preliminary injunction into the permanent

injunction and mooting the appeal of the preliminary injunction. Thus, the only

issues properly before us are the district court’s grant of summary judgment and

the permanent injunction. We review the district court’s grant of summary

judgment de novo. Gilmour v. Am. Nat’l Red Cross, 385 F.3d 1318, 1321 (11th

Cir. 2004).

In Gade v. National Solid Wastes Management Ass’n, the Supreme Court

reasoned that Congress intended to establish “uniform, federal occupational and

health standards” in the OSH Act to avoid “duplicative, and possibly

3
Fifth Circuit decisions rendered prior to October 1, 1981 are binding precedent on this
court. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

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counterproductive, regulation.” 505 U.S. 88, 102 (1992). The Court concluded

that “the OSH Act precludes any state regulation of an occupational safety or

health issue with respect to which a federal standard has been established, unless a

state plan has been submitted.” Id. (emphasis added). Because it is undisputed

that the Ordinance had not been submitted as a state plan, we must determine (1)

whether the Ordinance’s wind load standard is an “occupational safety or health

issue” and, if so, (2) whether it is preempted because the OSH Act’s regulations

establish a superseding “federal standard.”

The County first argues that the Ordinance’s wind load standards are not

preempted because these standards do not regulate an “occupational safety or

health issue.” As the County explains it, because “falling cranes kill people,

workers and non workers alike,” the standards are directed toward public safety

during hurricanes and not occupational safety. In other words, the County’s

position is that the Ordinance has a singular purpose: to protect public safety and

not workers.

This argument is not persuasive. Construction job sites are closed to the

public and it is undisputed that the Ordinance’s wind load standards regulate how

workers use and erect tower cranes during the course of their employment, thus

directly affecting occupational safety. Furthermore, the County failed to identify a

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single incident in which a crane accident injured a member of the general public

during a hurricane. To the extent that the Ordinance does provide a benefit to the

general public, the regulation is a dual purpose law. A state law is still an

occupational standard even if it serves the dual purposes of protecting both public

and occupational safety: “That such a law may also have a nonoccupational impact

does not render it any less of an occupational standard for the purposes of pre-

emption analysis.” Gade, 505 U.S. at 107. We therefore conclude that the wind

load standards in the Ordinance are “occupational safety or health” regulations.

The County next argues that the OSH Act does not set a “federal standard”

for wind load in its regulations and therefore cannot preempt the Ordinance. The

Code of Federal Regulations defines a “standard” as “the adoption or use of one or

more practices, means, methods, operations, or processes, reasonably necessary to

provide safe or healthful employment and places of employment.” 19 C.F.R. §

1911.2(c). Under this definition, a plain reading of 29 C.F.R. § 1926.550 reveals

that the OSH Act’s regulations create a federal “standard”: Employers operating

cranes or hoists on a job site must comply with either the manufacturer’s

specifications (the vast majority reflect a national consensus and are identical) or

the limitations set forth by a competent expert in the field. As the former Deputy

Assistant Secretary of Labor testified at the preliminary injunction hearing, the

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OSH Act “exists at this moment and binds the employer to operate all his cranes on

a construction site in accordance with the specifications of the manufacturer.” It is

immaterial that the OSH Act’s regulations do not set a uniform wind load standard;

every job site with a crane or hoist has a federally mandated safety standard. Thus,

we conclude that the OSH Act’s regulations set a federal standard for wind load

standards.

Finally, the County argues that the OSH Act unconstitutionally delegates

legislative power to set federal occupational safety standards to manufacturers by

failing to provide an “intelligible principle” to govern the use of this delegated

legislative power. See J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394

(1928).

This argument is also unavailing. The OSH Act provides an intelligible

principle, directing the Secretary of Labor to adopt standards that are in accordance

with the “national consensus standard.” 29 U.S.C. § 655(a). In this case, the

majority of crane manufacturers have reached a consensus by adopting the

European Standard, requiring cranes to accommodate a wind load of 93 miles per

hour. By adopting these consensus specifications, the OSH Act’s wind load

regulations, therefore, conform with an intelligible principle and are

constitutionally valid. Faced with the same constitutional challenge, the Sixth

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Circuit reached the same conclusion: “[T]he requirement that employers comply

with manufacturer’s load limits is not an unlawful delegation because the

manufacturer’s limits reflect the ‘national consensus standard’ that Congress

authorized the Secretary to adopt.” Towne Constr. Co. v. Occupational Safety &

Health Review Comm’n, 847 F.2d 1187, 1189 (6th Cir. 1988). The Sixth Circuit

further reasoned that “the physical impossibility of requiring OSHA independently

to set safety standards for every industry job classification and industrial substance

in the country adequately explains and justifies Congress’s decision to allow the

Secretary to adopt the fruits of private efforts as governmental standards.” Id. at

1190. The Third Circuit used similar reasoning in concluding that the

Occupational Safety and Health Administration could rely on information from

chemical manufacturers in setting standards. Associated Builders & Contractors,

Inc. v. Brock, 862 F. 2d 63, 68-69 (3d Cir. 1988). We therefore refuse to invalidate

the OSH Act’s wind load standards.

III. Conclusion

Because the Ordinance contains non-approved occupational safety or health

regulations conflicting with a federal standard, the Ordinance is preempted.

Therefore, the district court’s grant of summary judgment and the issuance of a

permanent injunction are

AFFIRMED.

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