Proceeding in this Court
C. Reutzel, Ryan M. Merriman, and Jarom R. Jones, Attorneys
D. Reyes, David M. Wilkins, and Brent A. Burnett, Attorneys
Ryan M. Harris authored this Opinion, in which Judges David
N. Mortensen and Jill M. Pohlman concurred.
This case requires us to examine the term "certified
mail, " as used in Utah Code section 34A-6-303(1).
Specifically, we are asked to determine whether that term is
broad enough to include any delivery-whether by public or
private courier service-that provides proof of mailing and
receipt, or whether that term is intended to include only
items sent as certified mail through the United States Postal
Service. For the reasons that follow, we conclude that the
narrower interpretation is the correct one.
In this case, the implications of that conclusion are as
follows: the Occupational Safety and Health Division of the
Utah Labor Commission (the State) did not give John Kuhni
& Sons, Inc. (Kuhni) proper statutory notice of the
State's citation and proposed assessment for Kuhni's
alleged violation of various safety regulations, and
therefore Kuhni's efforts to contest the State's
citation are not untimely. Accordingly, we set aside the
Labor Commission's order declaring untimely Kuhni's
efforts to contest the citation.
On February 22, 2016, the State issued a Citation and
Notification of Penalty (the Citation) against Kuhni, setting
forth its belief that Kuhni had violated various safety
regulations. On February 23, 2016, the State sent a copy of
the Citation to Kuhni by FedEx, with return receipt
requested. There is no dispute that FedEx successfully
delivered the Citation to Kuhni; indeed, one of Kuhni's
employees signed a receipt acknowledging delivery of the
Citation on February 25, 2016, at 11:54 a.m.
Under a bolded heading in all capital letters entitled
"The Right to Contest This Citation, " the Citation
contained language informing Kuhni that the Citation could be
contested "within 30 calendar days of receipt of this
Citation." The Citation also contained an underlined
reiteration informing Kuhni that the Citation would become a
final order of the Utah Labor Commission if not contested
within thirty calendar days of its receipt.
The State purported to deliver the Citation pursuant to
section 303 of the Utah Occupational Safety and Health Act,
which states as follows:
(1)(a) If the [State] issues a citation . . . it shall within
a reasonable time after inspection or investigation, notify
the employer by certified mail . . . that the employer has 30
days to notify the Division of Adjudication that the employer
intends to contest the citation . . . .
(b) If, within 30 days from the receipt of the notice . . .,
the employer fails to notify the Division of Adjudication
that the employer intends to contest the citation . . ., the
citation . . . is final ...