[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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