Discount Tire v. Ica Labor Dpt

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

DISCOUNT TIRE CO INC, Petitioner Employer,

v.

THE INDUSTRIAL COMMISSION OF ARIZONA LABOR
DEPARTMENT, Respondent.

No. 1 CA-IC 21-0026
FILED 3-1-2022

Special Action - Industrial Commission Labor Department
Nos. CL-1819-0441
CL-1920-0502
The Honorable Jonathan Hauer, Administrative Law Judge

ORDER AFFIRMED

COUNSEL

Littler Mendelson PC, Phoenix
By Steven G. Biddle, Yijee Jeong
Counsel for Petitioner Employer

Industrial Commission of Arizona, Phoenix
By Stacey Rogan
Counsel for Respondent

Industrial Commission of Arizona, Arizona Labor Department, Phoenix
By Afshan Peimani
Counsel for Respondent
 DISCOUNT TIRE v. ICA LABOR DPT
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Randall M. Howe and Judge James B. Morse Jr. joined.

C A M P B E L L, Judge:

¶1 This case presents an issue of statutory construction: are the
in-ground hydraulic lifts used to raise a car, so that tires can be removed
and replaced, “power-driven hoists” within the meaning of A.R.S.
§ 23-231(A)(7)? If so, this provision would prohibit employees under 18
years of age from working around those machines. Based on the clear
statutory definition, we answer yes and affirm the decision of the Industrial
Commission of Arizona (ICA) ordering Discount Tire to cease employing
persons under the age of 18 to work around its hydraulic lifts.

BACKGROUND

¶2 Petitioner Discount Tire Co., Inc. (Discount Tire) employed
two 17-year-olds who worked in the bays where in-ground hydraulic lifts
were used to raise cars off the ground to service and replace their tires. In
the course of their employment, both 17-year-old employees were injured
in separate incidents. Both employees filed claims for worker’s
compensation benefits.

¶3 After a brief investigation of the minors’ workspaces, the ICA
Labor Department (Department) issued Cease and Desist Orders
prohibiting minors from working in and around the hydraulic lifts and
assessed a civil penalty of $100.00. The Department determined Discount
Tire violated § 23-231(A)(7), which prohibits employing or allowing
persons under 18 years of age “to work in, about or in connection with . . .
[o]ccupations involving the operation or assistance in the operation of a
power-driven hoist with a capacity exceeding one ton.” A “power-driven
hoist” is defined as “an apparatus for raising or lowering a load by the
application of a pulling or pushing force including a crane, derrick or
forklift.” A.R.S. § 23-230(13).

¶4 Discount Tire requested a hearing. In place of an evidentiary
hearing, the parties stipulated to the following pertinent facts: (1) the two
injured employees began working at Discount Tire when each was 17 years

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Decision of the Court

old; (2) both employees used “in-ground low rise lifts” to change and repair
tires; (3) “Discount Tire stores do not have any hoists, power-driven or
otherwise, that hang down from the ceiling or from any overhead
apparatus;” (4) the Department’s investigator reported that “she observed
‘a power driven hoist, housed flat in the garage floor,’ referring to a
photograph showing a[n in-ground hydraulic lift]” used to lift vehicles but
“that neither of the employees’ injuries were ‘related to prohibited
equipment.’”

¶5 Discount Tire argued the hydraulic in-ground lifts used do
not fall within the statutory definition of a “power-driven hoist” because
they do not lift from above like a crane or traditional hoist. However,
because the definition includes mechanisms that lift by pushing, not just
ones that do so by pulling, the administrative law judge concluded that
Discount Tire’s in-ground hydraulic lifts fall within the statutory definition
and affirmed the Cease and Desist Order along with the civil penalty.

DISCUSSION

¶6 On appeal, Discount Tire repeats its argument, urging that its
in-ground lifts are not hoists because they do not “lift by using any
overhead force, such as through a crane, derrick, or forklift.” We, too, reject
that argument.

¶7 In its opening brief, Discount Tire correctly recites the
applicable rules of statutory construction:

[Courts] interpret statutes to give effect to the legislature’s
intent, looking first to the statutory language itself. When the
language is clear and unambiguous, and thus subject to only
one reasonable meaning, [courts] apply the language without
using other means of statutory construction. If, however, the
language is ambiguous, [courts] consider the statute’s
context; its . . . subject matter, and historical background; its
effects and consequences; and its spirit and purpose.

Baker v. Univ. Physicians Healthcare, 231 Ariz. 379, 383, ¶ 8 (2013) (citations
and internal quotation marks omitted). We review questions of statutory
interpretation, such as this, de novo. Special Fund Div. v. Indus. Comm’n of
Ariz., 232 Ariz. 110, 112, ¶ 10 (App. 2013).

¶8 Section 23-230(13) defines a power-driven hoist as “an
apparatus for raising or lowering a load by the application of a pulling or
pushing force” and specifies that this type of apparatus “includ[es] a crane,

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Decision of the Court

derrick or forklift.” The plain meaning of pushing is the application of a
force in a direction away from the source of the force. Since a machine that
applies a pushing force to raise a load necessarily lifts the load from below,
a lift that uses hydraulic pressure to raise a vehicle from its tires or
undercarriage clearly falls within the statutory definition of a power-driven
hoist.

¶9 Discount Tire does not attempt to argue that the statutory
definition is ambiguous. Instead, it assumes ambiguity and engages in
secondary statutory interpretation by referencing other sources, including
the dictionary and the definition used by other departments such as the U.S.
Department of Labor, to overcome what it perceives as ambiguity in the
definition of “power-driven hoists.” Because we find Arizona’s definition
of “power-driven hoist” to be clear, at least concerning the in-ground lifts
at issue, we have no need to consult sources other than the language of the
statute.

¶10 Discount Tire also implies that the inclusion of cranes,
derricks, and forklifts means the statutory definition only include machines
that lift from above. We disagree. First, the word “includes” is “most often
a term of enlargement, rather than limitation, and a court may find that it
encompasses items that were not specifically enumerated.” Tracy v. Superior
Ct. of Maricopa Cnty., 168 Ariz. 23, 35 (1991). Second, the definition of
“power-driven hoists” includes machines that push, and, as explained
above, a machine can only raise or lower a load using a pushing force from
below. So, Discount Tire’s sole argument that the definition applies only to
devices that lift from above and does not include devices that push from
below is built on an erroneous foundation.

CONCLUSION

¶11 For the foregoing reasons, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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