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John Kuhni & Sons Inc. v. Labor Commission, Occupational Safety and Health Division

Court of Appeals of Utah

January 5, 2018

John Kuhni & Sons Inc., Petitioner,
v.
Labor Commission, Occupational Safety and Health Division, Respondent.

         Original Proceeding in this Court

          Jeremy C. Reutzel, Ryan M. Merriman, and Jarom R. Jones, Attorneys for Petitioner

          Sean D. Reyes, David M. Wilkins, and Brent A. Burnett, Attorneys for Respondent

          Judge Ryan M. Harris authored this Opinion, in which Judges David N. Mortensen and Jill M. Pohlman concurred.

          OPINION

          HARRIS, JUDGE

         ¶1 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.

         ¶2 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.

         BACKGROUND

         ¶3 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.

         ¶4 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.

         ¶5 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 ...

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