violation it's duplicative because there is nothing fundamentally unfair about holding northeastern liable for second and alternatively the commission abused its discretion by departing from its pr ness but the secretary has no power by regulation to eliminate the commissions authority the secretary issue a regulation barring the commission you know the secretary does not have that a in the st instance the secretary proposes the penalties but the commission have some final authority to assess penalties i'm not asking about what happens in the pushing before the commission and asking wh death you know the statute specifies the factors that the commission has to consider in assessing penalties such as the probably the most important one is the severity of the violation but the assessment is the commission's florida it's not something the secretary can do the secretary can only propose penalties which the commission can either accept or reject or modify it what  ok the two violations worse were were not the same or not even similar because they arose from separate and distinct hazardous activities the crane violation concerned willfully failing to confirm the powerlines had been energized and visibly grounded or to take the alternative steps required by the side of provision before using a crane to help poised and set planks within eight feet of overhead powerlines the electrical proximity violation on the other hand involved willfully permitting employees to install fall protection system within three to three feet of an energized overhead power line and to erect a masonry wall within four inches of the energized lines to violated standards are separate and distinct standards that regulate fundamentally different workplace conduct ground operations and proximity to energize power lines employee proximity to electrical power circuits the two violations occurred on law they lacked discretion to play that gets down to the separation of powers between the secretary and the commission under the statute the secretary is given the authority the exclusive authority secretary's citations when they're proven only if they're duplicative and to show that something is duplicative is a matter of showing that some fundamental right of the employer has been viol that's a separate question ok the two violations occurred on different days in different areas of the works and expose different groups of employees to the side hazard's my nd reason was that alternatively the community commission abused it violation whether they were the same or very similar whether the two standard van standards violated are closely related sub provisions with the same standard when a bit to violations occurred on the same date in the same location and the facts supporting both violations are the same and whether the same employees were exposed to the hazards involved in the two violations indeed in every previous case in which the commission is found to have the violations decided standards were closely related and regulated the same or very similar workplace conditions and conduct furthermore in at least four prior cases the commission has moment violations that have the same abatement were nevertheless not duplicative because the violated conditions were separate and distinct the commission's jurisprudence in this area is quote confusing and conflicting right yes that's true you're on our air if that's the case then how can you conclude the commission's decision to apply some raise the affirmative defense of this it's a standard that's been addressed by the by the commission for years there's precedent all the commission did here was apply their precedent there's a same abatement test they' been applying that for years if you look at the attachment to the dissents to the dissent she the the dissent has an attachment of of all the duplicative news cases some some they found duplication because without considering the distinct at this of the conduct there might be an appearance here that the defendant was being given a free pass for exposing a different group of employees different  different way to say and i i'm not sure that that seems to have much appeal yeah i and i think i think the commission did address the sort of the appearance of it here what happened was they were given a willful violation even with the duplication it was essential to the maximum penalty they're a small they were deemed to be a small employer and originally they got a little bit of a break because being a small employer not separate and distinct it was that it was the same it was the standard was proximity to the overhead power line it was the same power line they were not separate and distinct day after day after day no matter how many violations they guy they could keep giving workers the orders to work and it would be free well they couldn't because the work place was closed down and yes but before it was closed down relying them that they were going to change they did and they exposed a different group of workers in a different way to the same hazard and yet you're saying what that the law properly used that is free because the same abatement corrected why does but i understand you say that's why should that standard in the simple answer your honor is that's the commission's precedent adversary says that they have ever that's separate and distinct two separate sets of scaffolding not like the same exact power cord one was a guardrail versus the rebar separate those are separate issues this was the same abatement corrected both and that is actually the only abatement that would have been permissible and if you look at the exhibit in there they light the long island power cease and desist it said no work until the overhead power line is is removed and relocated and that was the only abatement available and the commission just applied their precedent if the commission wants to change their precedent that would be for the commission but it's not for the court to do just like this court noted in the us we go case with the single employer sort of doctrine that the secretary said well the not applying a single employer test correctly well this court said that's not for this court to correct that for the commission to correct and that would be the same here the commission precedent is is and is has been around for years and you know employers rely on it if the if this if the same abatement corrects the violation then there duplicative if the commission wants to change that as advocated by the dissent they can certainly do it that's why we raised it as an affirmative defense it was the same powerline proximity to the power line was the violation my clients did not get off easy they have a willful violation for the maximum penalty and i know we're we're talking that maybe the penalty is divorced from the actual violation but it does have a wall fulness attached to it which is the most egregious type  violation and we're not contesting the violation per se were contesting the fact that they're duplicative and bennett and that doctrine is the fundamental fairness to the employer that th y don't have to violations for the same conduct that could be abated by want to action and that's that's what we relied on throughout this proceeding  the way these workers were exposed to the hazards seems to be quite different conduct or am i missing i think it's the same conduct it's actually working with in impermissible proximity to the overhead power line i think it would be a different issue your honor if let's say while one of the employees was working they weren't wearing a hard hat that would be that would not be duplicative standard but it occurred while they were working in proximity to the overhead power line these were soley they were cited for working in close proximity to the overhead power line whether it was through the crane or through the just actual working they were exposed through the same type of condition and the commission president is if the same abatement corrects the violative conduct it's duplicative i commission wants to change that they certainly can do it but that's not for this court to do thank you ron thank you  now my opponent also said that the violations were separate and distinct that is just not the case here the broadest level there was hazard of electrocution but the activities were completely into different involving different  workers and different equipment of the requirements for the crane standing for instance are very different from the i was from the electrical proximity standard which concerns only employees and furthermore the actual circumstances were very different as well the crane violation occurred when workers were worth an eight feet of a crane the crane was within eight feet of the electrical power line and the electronic electrical proximity violations decision will turn