dissenting.
The proceeding that culminates in this appeal was commenced by the Virginia Board for Asbestos and Lead, see Code §§ 54.1-500 through 54.1-501, as a disciplinary action against Abateco Services, Inc., pursuant to Code § 54.1-516(A)(3), Code § 54.1-517, and 18 VAC 15-20-450. The Board alleged that Abateco failed to meet applicable federal or state standards when it “refus[ed] to permit an inspection [of its records at an asbestos project] in the absence of a warrant.” The Board relied upon citations issued by the Department of Labor and Industry and our decision in Abateco Servs., Inc. v. Bell, 23 Va.App. 504, 477 S.E.2d 795 (1996).
At the administrative hearing, Dr. R. Leonard Vance, who is “a university professor at the Medical College of Virginia *485...[,] a licensed attorney and licensed engineer,” testified that he had previously been the “Director of Health Standards for U.S. Occupational and Safety Health Administration at [the] U.S. Labor Department ... [and] spent six years as an Assistant Attorney General as legal counsel to the state OSHA program.” He “supervised the preparation of the current federal asbestos OSHA standards ... [; he is] a member of the Board for Asbestos and Lead in Virginia and participated in the development of Virginia’s asbestos regulations ... [; and he] wrote the only book ever written on the Virginia State OSHA program.” Dr. Vance testified that, while acting as legal counsel for Abateco in 1994, he advised Abateco “that in [his] opinion, ... the company was entitled to demand a warrant” when the Department attempted to conduct an inspection of Abateco’s records. His advice was based upon the following: (i) “a Virginia Supreme Court case,” see Mosher Steel-Virginia v. Teig, 229 Va. 95, 327 S.E.2d 87 (1985); (ii) Virginia statutes relating to administrative warrants for inspections, see Code §§ 40.1-49.8 and 40.1-49.9; (iii) “the traditional practice in Virginia ... universally to obtain a warrant any time that a contractor declines to give consent”; and (iv) case law from a United States Court of Appeals requiring OSHA to obtain search warrants for records, see, e.g., National Engineering & Contracting Co. v. Occupational Safety and Health Review Comm’n, 45 F.3d 476 (D.C.Cir.1995); Tri-State Steel Const., Inc. v. Occupational Safety & Health Review Comm’n, 26 F.3d 173 (D.C.Cir.1994). Dr. Vance testified that he has given similar advice to members of the enforcement staffs at state and federal OSHA commissions and to other asbestos contractors.
Following the hearing, the administrative hearing officer found as a fact that the Department was “attempting] to conduct an unannounced inspection at Abateco’s work site under the authority of ... Code [§] 40.1-51.21” when Abateco’s legal counsel “advised Abateco that it had a right to request the inspector to obtain a search warrant prior to the commencement of the inspection.” In addition to finding that Abateco relied upon its legal counsel’s advice, the hearing *486officer further found as a fact that in a later meeting held to discuss the impasse, “the representative from the Department ... stated [to Abateco’s agents] that he believed ... Abateco had the right to demand a search warrant prior to- any inspection ... [, that the representative] indicated ... he would attempt to obtain a search warrant ... [, and that] no such warrant was ever issued.” Indeed, the hearing officer found as a fact that on a previous occasion when the Department “had attempted a similar inspection of Abateco’s work site on a different job ..., Abateco refused to allow the inspection without a search warrant ... and Abateco was not cited for that action.” Based on the evidence at the hearing, the hearing officer also found as a fact that “Abateco reasonably and in good faith believed that it had a right to refuse the state inspection absent a search warrant.”
The hearing officer noted that when Abateco refused to allow the inspection without a warrant “an apparent conflict [existed] between ... sections of the Code of Virginia,” see Code §§ 40.1-51.21, 40.1-49.8, and 40.1-49.9, that had not been resolved by the courts. He further found as a fact that during the trial of the matter that led to our Abateco decision, “the Commonwealth agreed that this was an issue of first impression in Virginia.” Significantly, the hearing officer also found as a fact that in the Abateco trial, “Abateco’s reliance on the advice of counsel as a defense as to the willful elements of the citations was not raised or litigated.” The hearing officer, thus, concluded that “[i]n requiring a warrant prior to inspections, Abateco was relying on a good faith belief that it had a statutory and constitutional right to do so” and that “[t]he validity of the assertion of this right under the particular set of facts could only be determined by a court of law.” Noting “that Abateco acted in good faith and not for the purpose of evading or impeding the regulatory efforts of the Department,” the hearing officer “recommend[ed] the decision that Abateco did not violate a federal or state standard that existed ... when it refused to allow the document inspection.”
Without exception, the Board “adopt[ed] the facts in the hearing officer’s report.” The Board ruled, however, that *487despite those facts Abateco violated 18 VAC 15-20-450 and Code § 54.1-516(A)(3) and levied monetary penalties.
On appeal to the circuit court, Abateco argued that because the issue was one of first impression in Virginia in 1994 and the facts, adopted by the Board, proved Abateco acted in good faith upon the advice of legal counsel, the decision of the Board was not supported by the evidence. Significantly, the Board argued, in pertinent part, as follows:
The only issue the Board was authorized by law to consider is was the violation willful, and the Court of Appeals [in Abateco] said yes, it was.
Now, is the Board absolutely required to accept the decision of the Court of Appeals? In this situation, no, it was not. But what the Board has in a situation of this kind is reasonable discretion, and the Board in its reasonable discretion decided that it would accept the findings of the Court of Appeals and the Circuit Court, that the violations were willful, which means the Board never had to get into the issue of the good faith by contacting their attorney, they didn’t have to get into the question of whether this was an instance of first impression, they only had to look to see the willfulness.
Now, let’s take a look for just a moment at the first impression issue. What Abateco is saying is it is still an open question in a situation of this kind absent a contract provision, because the Court of Appeals is very clear, where there was a contract provision which waived the contractor’s rights to require a warrant, the issue of requiring a warrant is still open. We don’t know what the answer to that is going to be, and we will not find out in this case. It is not an issue that is before this court. Is it a standard? What the law says is there must be a willful violation of a standard of the Department of Labor and Industry.
These are the standards that were in effect when this took place in 1994. You can look all through this, Your Honor. You will not see anything in there which relates directly to this issue.
*488 The question of whether or not you have to have a warrant to conduct a search of this kind is a legal argument. It is not a standard of the Department of Labor and Industry.
The standards go to the technical issues of what the contractor is required to do to provide for the safety and health of his workers and the community in general. Those are the standards.
Were they violated? The Circuit Court and the Court of Appeals said yes. There were four of these standards that were violated.
Were they technical violations that would not directly impact upon the health or safety of any person. Yes, they were.
(Emphasis added).
The trial judge reversed the Board’s decision and ruled as follows upon his review of the record:
that ABATECO did not violate an existing federal or state standard when it refused to allow the subject document inspection;
that the BOARD was in error in deciding that state or federal standards existed at the time of the violation;
that ABATECO relied upon the advice of counsel and acted in good faith;____
I believe the trial judge correctly ruled that the Board did not act in accordance with the law and that the Board lacked sufficient evidential support for its decision. See Johnston-Willis v. Kenley, 6 Va.App. 231, 242, 369 S.E.2d 1, 7 (1988). The hearing officer found and the Board adopted as a fact that “Abateco acted in good faith, and not for the purpose of evading or impeding the regulatory efforts of the Department.” That issue was not litigated or decided in our Abateco decision.
I believe that, properly viewed, Abateco only decided the issue of the contractual obligation of the parties and the *489consequences of Abateco’s breach of that contract. In that case, we ruled as follows:
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 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.
23 Va.App. at 508, 477 S.E.2d at 797.
This limited reading of our holding is clearly supported by the following disclaimer that we made in Abateco :
Having determined that Abateco has a diminished expectation of privacy in these records, the question remains 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.
Id. at 515, 477 S.E.2d at 800. As a matter of contract law, this conclusion necessarily follows from the holding and does no more than assert the unremarkable proposition that the Department had a remedy for Abateco’s breach of contract. See, e.g., Haythe v. May, 223 Va. 359, 361, 288 S.E.2d 487, 488 (1982) (holding that courts will grant specific performance of a *490contract if its enforcement will not be inequitable to a defendant and refusal will damage the other party); Snead v. Commonwealth, 212 Va. 803, 804, 188 S.E.2d 197, 198 (1972) (holding that where an entry onto property was lawful and peaceful, a refusal to leave upon an order does not constitute an offense). Indeed, we specifically observed that “because Abateco had contractually consented to access of its records without requiring a warrant, the trial court did not err in upholding the Department’s citations.” Abateco, 23 Va.App. at 518, 477 S.E.2d at 802 (emphasis added).
The matter at issue before the Board in this proceeding was whether Abateco “violat[ed] any provision of ... Title 54.1 of the Code of Virginia.” 18 VAC 15-20-460. Specifically, the Board’s inquiry was whether Abateco “fail[ed] to meet any applicable federal or state standard when performing an asbestos project or service.” I find no statutory basis for concluding that the Board, in this proceeding, was authorized to levy a civil penalty against Abateco solely for Abateco’s breach of a contract with the Department. Certainly, the Board pointed to no provision in the contract that permits such a remedy. Moreover, nothing in Code § 40.1-49.4(A)(4)(a), the provision the Department apparently relied upon in Abateco, see 23 Va.App. at 511, 477 S.E.2d at 798, permits the Board to levy upon a contractor a civil penalty for breach of contract.
By its regulations, see 16 VAC 25-175-1926, the Department has adopted by reference to 29 CFR 1926 various provisions of the federal OSHA regulations as provisions of the Virginia Occupational Safety and Health regulations. Those federal regulations require an employer such as Abateco to maintain and permit access by the regulatory agency to specific records. See, e.g., 29 CFR 1926.58©; 1926.58(k)(4)(ii); 1926.58(m); 1926.58(n)(5)(ii) and (ii); and 1926.58(e)(4). The right of access to those records is delimited, in pertinent part, as follows:
Each employer shall, upon request, and without derogation of any rights under the Constitution or the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., that *491the employer chooses to exercise, assure the prompt access of representatives of the Assistant Secretary of Labor for Occupational Safety and Health to employee exposure and medical records and to analyses using exposure or medical records.
29 CFR § 1910.1020(e)(3)(i) (emphasis added).
Although upon advice of counsel Abateco refused to allow the Department to inspect Abateco’s records without a warrant, the Department has never alleged or proved that Abateco did not, in fact, maintain the proper records. Indeed, the hearing officer found as a fact and the Board adopted the finding that “[t]he records sought by the Department ... were produced by Abateco ... [; consequently] no additional citations were brought against Abateco based upon the records that were produced.” The Department alleged a violation of Code § 40.1-51.21, which provides as follows:
At least once a year, during an actual project, the Department of Labor and Industry shall conduct an on-site unannounced inspection of each licensed asbestos contractor’s, licensed RFS contractor’s, and certified lead contractor’s procedures in regard to installing, removing and encapsulating asbestos and lead. The Commissioner or an authorized representative shall have the power and authority to enter at reasonable times upon any property for this purpose.
Relying upon his interpretation of Code § 40.1-49.8 and Code § 40.1-49.9, Abateco’s counsel, who had extensive experience as a regulator and as counsel to the regulators, advised Abateco that it could withhold its consent and require the Department to obtain a search warrant for access to the records. Indeed, Code § 40.1-49.8 specifically addresses the use of warrants in the inspection of workplaces:
In order to carry out the purposes of the occupational safety and health laws of the Commonwealth and any such rules, regulations, or standards adopted in pursuance of such laws, the Commissioner, upon representing appropriate credentials to the owner, operator, or agent in charge, is authorized, with the consent of the owner, operator, or agent in *492charge of such workplace as described in subdivision (1) of this section, or with an appropriate order or warrant:
(1) To enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and
(2) To inspect, investigate, and take samples during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.
As an adjunct to this statute, Code § 40.1-49.9 addresses the requirements of probable cause for the issuance of warrants and clearly applies to industries that have a “high hazard ranking.”
The record in this case is undisputed that Abateco acted in good faith upon its experienced counsel’s advice in asserting constitutional, statutory, and case decision grounds for requiring the Department to obtain a search warrant to inspect its records. When an entity, “while acting in good faith with the advice of counsel, failed to comply with the provisions of the Act,” the evidence clearly establishes that “there were no willful and knowing violations.” Nageotte v. Board of Supervisors of King George County, 223 Va. 259, 269, 288 S.E.2d 423, 428 (1982). Defining “willful,” the Supreme Court of Virginia has recently cited with approval United States v. Murdock, 290 U.S. 389, 394, 54 S.Ct. 223, 225, 78 L.Ed. 381 (1933). See Angstadt v. Atlantic Mutual Ins. Co., 254 Va. 286, 293, 492 S.E.2d 118, 122 (1997). The United States Supreme Court more recently explained the Murdock definition of “willful” as follows:
While a criminal defendant, like an employer, need not have knowledge of the law to act “knowingly” or intentionally, he must know that his acts violate the law or must “carelessly] disregard whether or not one has the right so to act” in *493order to act “willfully.” United States v. Murdock, 290 U.S. 389, 395[, 54 S.Ct. 223, 225, 78 L.Ed. 381] (1933).... We have interpreted the word “willfully” the same way in the civil context. See McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133[, 108 S.Ct. 1677, 1681, 100 L.Ed.2d 115] (1988) (holding that the “plain language” of the Fair Labor Standards Act’s “willful” liquidated damages standard requires that “the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute,” without regard to the outrageousness of the conduct at issue).
Kolstad v. American Dental Assn., 527 U.S. 526, 549, 119 S.Ct. 2118, 2131, 144 L.Ed.2d 494 (1999) (citation omitted).
Furthermore, even if Abateco’s breach of its contractual obligation to consent was willful and designed to require the Department to obtain a warrant for inspection, that conduct does not ipse dixit become a willful violation of Code § 40.1-51.21. “The definition of ‘willful’ ... is, in its simplest form, ‘an intentional disregard of, or plain indifference to, OSHA requirements.’ ” Reich v. Trinity Indus., Inc., 16 F.3d 1149, 1152 (11th Cir.1994). See also Brockway v. Easter, 20 Va. App. 268, 271, 456 S.E.2d 159, 161 (1995) (holding that “ ‘[w]illful’ ... involves the idea of premeditation and determination to do the act, though known to be forbidden”).
The hearing officer found as a fact that Abateco relied upon the advice of counsel and its prior course of conduct with the Department in asserting that it could require, consistent with the statutory framework, a warrant for inspection of its records. Moreover, the Board adopted all the hearing officer’s factual findings, including the fact that Abateco was acting in good faith when it relied upon its counsel’s advice. Thus, in my opinion, the trial judge did not err in ruling that the Board had no basis upon which to impose civil penalties under Code §§ 54.1-516 or 54.1-517.
In Abateco, we held only that the Department retained a contractual right of entry that negated any privacy claim that Abateco alleged. Even if we assume, however, that our *494decision in Abateco resolved the issue whether a violation of Code § 40.1-51.21 occurred when Abateco breached its contract and required the Department to obtain a warrant for the records, I believe the hearing officer correctly noted that the legal issue, which “appeared to revolve around an apparent conflict between [Code §§ 40.1-49.8, 40.1-49.9, and 40.1-51.21] of the Code of Virginia,” had not been decided in 1994 when Abateco demanded that the Department obtain the warrant. As the majority correctly notes “[w]hether a warrant is necessary is a legal, procedural issue, not a safety and health standard.”
For these reasons, I would affirm the trial judge’s order. I respectfully dissent.