KIDDIE CIRCUS, INC.

OSHRC Docket No. 15978

Occupational Safety and Health Review Commission

April 18, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa Reg. Sol., USDOL

Charles Birnbaum, for the employer

Jack Merr, President, Kiddie Circus, Inc., for the employer

OPINION:

DECISION

This case is before the Commission purusant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); See also Keystone roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded [*2] the significance of an unreviewed Judge's decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Failure to abate notices covering conditions cited in an previously uncontested citation, such as the one issued in this case, must be treated the same as original citations n1 and, therefore, must be issued with reasonable promptness." 29 U.S.C. 658(a). Because of the excessive delay in issuing the notification of proposed additional penalties for failure to abate in the instant case, vacation of that notice is required as it was not issued with "reasonable promptness" as required by the Act. Cf Secretary v. Jack Conie & Sons Corp., OSAHRC Docket No. 6794, June 25, 1976.

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n1 Such notices cannot be affirmed if the condition for which respondent was originally cited was not in fact a violation of the Act. Secretary v. Savina Home Industries, Inc., OSAHRC Docket No. 12298, January 6, 1977; Secretary v Franklin Lumber Company, Inc., OSAHRC Docket No. 900, July 8, 1974. Similarly, there is no valid reason for not treating the initiation of both actions in the same manner.

[*3]

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Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges. Since my colleagues do not address any of the matters covered in Judge Alfieri's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

APPENDIX A

DECISION AND ORDER

Francis V. LaRuffa, Regional Solicitor, United States Department of Labor

Rudolph E. DeMeo, for complainant

Charles Birnbaum, for respondent

Alfieri, Judge.

STATEMENT OF THE CASE

This is a proceeding under section 10(c), of the Occupational Safety and Health Act (29 U.S.C. 651 et seq.) contesting a notification of failure to correct alleged violation and of proposed additional penalty issued by the complainant against the respondent under the authority vested in the complainant by section 9(a) of the Act (29 U.S.C. 658(a)). The violations are nonserious. [*4]

BACKGROUND

On July 24 and 25, 1975 the complainant conducted an inspection of the respondent's place of business, Kiddie Circus, Inc., 3015 West 15th Street, Brooklyn, New York., a place offering amusement park rides for small children. Based on that inspection the complainant, on August 11, 1975, issued a citation which alleged the respondent violated section 5(a)(2) of the Act because it failed to comply with certain occupational safety and health standards. The citation set forth seven separately numbered items and was accompanied by a notice that the penalties proposed were as follows:

Citation No.

Item No.

Proposed Penalty

1

1

$115.00

2

None

3

None

4

  50.00

5

  55.00

6

  70.00

7

  55.00

Respondent did not contest the citation issued August 11, 1975, nor the proposed penalties. They became a final order of the Commission. Section 10(a) of the Act (29 U.S.C. 659(a)).

On October 7, 1975 the complainant conducted a reinspection of respondent's place of business. Based on that inspection a notification of failure to correct the prior violations n1 and of proposed additional penalties, in the following amounts, was served on [*5] the respondent. n2

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n1 The prior citation was issued August 11, 1975 not October 11, 1975 as stated on the notification.

n2 The evidence, exhibit C-1, shows the notification of failure to correct alleged violation and of additional proposed penalty dated October 14, 1975 was not served on respondent until November 7, 1975. The non-jurisdictional affirmative defense of the complainant's failure to comply with the "reasonable promptness" requirements of section 9(a) of the Act (29 U.S.C. 658(a)) was not raised by the respondent.

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No. of

Prop.

Prop.

Prev.

Prop. Total

Days

Daily

Total

Allowed

Add'l Penalty

Citation

Failed to

Add'l

Daily Add'l

Abatement

for Failure

& Item No.

Correct

Penalty

Penalty

Credit

to Correct

1- 1

7

$295.00

$1,185.00

$115.00

$2,000.00

2

7

45.00

315.00

None

315.00

3

7

45.00

315.00

None

315.00

4

7

140.00

1,015.00

50.00

1,065.00

5

7

150.00

1,050.00

55.00

1,105.00

6

7

180.00

1,260.00

70.00

1,330.00

7

7

150.00

1,015.00

55.00

1,070.00

[*6]

On November 21, 1975 the respondent filed a notice contesting the proposed additional penalties. Thereafter a complaint and respondent's letter answer were filed.

ISSUE

The issue is whether the proposed additional penalties set forth in the notification dated October 14, 1975 for failure to abate the violations in items numbered 1 through 7 contained in the citation issued by the complainant on August 11, 1975, are reasonable and proper.

SUMMARY OF THE EVIDENCE

Complainant's compliance officer, George Sabin, testified that on October 7, 1975 he reinspected the respondent's workplace. He found that none of the violative conditions for which respondent had been previously cited had been abated.

Jack Merr, the president and sole stockholder of respondent, testified that he alone repairs the ride equipment. He disputed only the location of a broken wooden ladder, n3 contending it was laying on the floor during the reinspection and not against the pole near the circuit breaker box. On cross-examination he testified that he has one employee during the season which ends September 5, and that he, Merr, maintained the Ferris wheel ride between August and October. Further [*7] examination of Merr brought out that in August 1975 one of his employees, Bienviendo Morales, was killed in an accident involving the Ferris wheel ride.

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n3 Subject of item number 2(a) of the August 11, 1975 citation.

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Ralph Ruocco was a witness for the respondent. He is a retired New York City Building Department inspector whose duties included inspecting the ride equipment at Coney Island, New York, New York. He inspected respondent's ride equipment, in his official capacity, five years ago.

At respondent's request Ruocco, as an expert in the field, visited the workplace on November 11, 12 and 13, 1975. His inspection of the ride equipment, in his opinion, showed that all violations were abated except those concerning the "boat ride" and the "fire engine ride". He did not know when the work to correct the violations was started or completed. When asked the basis for his opinion that an employee cannot be injured on the rides at respondent's workplace Ruocco replied that when he was the City inspector he instructed [*8] them in their duties.

DISCUSSION

Under Section 10(c) (29 U.S.C. 659(c)) of the Act, it is provided that "Upon a showing by an employer of a good faith effort to comply with abatement requirements of a citation, and that abatement has not been completed because of factors beyond his reasonable control, the Secretary [sic], after an opportunity for a hearing as provided in this subsection, shall issue an order affirming or modifying the abatement requirements in such citation." Section 17(j) (29 U.S.C. 666(i)) of the Act places with this Commission authority to assess all civil penalties provided in Section 17 of the Act, giving due consideration to the appropriateness of the penalty with respect to the size of the employer charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

There is minimal, if any, dispute concerning the facts in this case. It is urged on respondent's behalf that inclement weather caused the delay in doing the necessary work to correct the violative conditions (Tr. 78). This defense dissolves when considered in the light of respondent's testimony that he operated the rides through the months of [*9] September and October 1975. Since the weather was fair enough to permit respondent to operate the equipment, which is in the open, it follows that it would not hinder his doing the work needed to abate the hazardous conditions. The defense is rejected. It lacks the quality of veracity. The immutable evidence of record compels the conclusion that respondent made no effort to correct the violative conditions. It mattered not to him whether the abatement was to be immediate or within a specified time. It is abundantly clear that he continued to operate the amusement park ignoring the violative conditions and exposing his employees to the many hazards.

Under the circumstances present in this case and under the Act it is proper to hold that the assessment of additional penalties is appropriate.

There remains for consideration the reasonableness of the amount of proposed additional penalties.

The respondent's good faith is mirrored by his patent indifference toward the safety of his employees. Of particular note is that the respondent was put on notice by the death of an employee because of the lack of a safety interlocking device on the doors of the Ferris wheel. Notwithstanding, [*10] it did nothing to correct this until more than a month later, after the initial inspection. Respondent's interest in safety was engendered by the notice of additional proposed penalties. The complainant properly gave respondent no credit for good faith.

In determining the gravity of a violation consideration should be given to (a) the degree of probability of an injury occurring as a result of the violation (b) the severity of an injury resulting from the violation and (c) the extent to which the standard has been violated. See Occupational Safety and Health Administration, Compliance Operations Manual, pg. X1-1; Secretary v. National Realty Construction Co., Inc., 1 OSAHRC 731 (1972). Considered within these guidelines the complainaint properly estimated the gravity of the violations.

The respondent is indeed a small business. An allowance was made by the complainant for this factor.

The respondent was given no credit for history because he had a prior inspection and had time to abate the violations. Normally, history of previous violations will be based on the employer's past experience under the Act. However, no reduction is applicable where the previously cited [*11] violations were not abated. n4 In explaining the adjustment for history the compliance officer reasoned that part of the "history" was the failure to abate. It has been held by the Commission that alternatively, the failure to abate could be measured principally under the "history of previous violations" factor, with the history being affected by the failure. In National Realty & Constr. Co., Inc., 1 OSAHRC 731 (1972), rev'd on other grounds, sub nom. National Realty & Constr. Co., Inc., v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973), the Commission held that the statutory factors of section 17(j) are not" . . . necessarily to be accorded equal weight in a given case, nor that a particular factor must be given the same weight under different factual situations."

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n4 Occupational Safety and Health Administration Compliance Manual, pg. X11-34 P "C" and "C"-3.

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In assessing penalties the achievement of a just result in each case is the standard by which the Commission's deliberations must be guided. Secretary [*12] v. Nacirema Operating Co., Inc., 1 OSAHRC 33, 39 (1972). Considering all the relevant factors in this case noting particularly the size and nature of the respondent's business and that the respondent has, although tardily, commenced to abate the violative conditions, the amounts of the proposed penalties are not appropriate and should be reduced.

Having heard the testimony and observed the demeanor of the witnesses, and having considered the same, together with the citations, notification of proposed penalty, notice of contest, pleadings, representations, stipulations and admissions of the parties, it is concluded that the preponderance of evidence, on the entire record, supports the following:

FINDINGS OF FACT

1. The respondent, Kiddie Circus, Inc., a corporation doing business in the State of New York is an employer maintaining an office and place of business at 3015 West 15th Street, Brooklyn, New York 11224.

2. The respondent purchases its equipment from sources outside the State of New York.

3. The respondent is a small business that employs one or two people.

4. Complainant's compliance officer conducted a reinspection of respondent's place of business on [*13] October 7, 1975, to determine if the hazardous conditions or violations for which respondent had been previously cited had been corrected.

5. The reinspection disclosed that the respondent had failed to correct or take any action to correct the hazardous conditions or violations for which it had been previously cited.

6. Some corrective action has been taken by the respondent, after the reinspection held on October 7, 1975, to abate the violative conditions.

CONCLUSIONS OF LAW

1. The respondent is, and at all times material hereto was, engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.

2. The respondent is, and at all times material hereto, was subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder and the Commission has jurisdiction of the parties and of the subject matter herein.

3. The citation and proposed penalties issued against the respondent on August 11, 1975, not having been contested, are deemed final orders of the Occupational Safety and Health Review Commission and not subject to review by any court or agency, in accordance [*14] with section 10(a) of the Act.

4. Considered within the provisions of section 17(j) of the Act (29 U.S.C. 666(i)) the amounts of the total additional penalties proposed by the complainant for failure to abate any of the violative conditions within the times specified in the citation issued on August 11, 1975, are not reasonable under the circumstances herein.

The following total additional penalties are assessed for failure to abate.

Citation number 1

Item 1

$500.00

Item 2

45.00

Item 3

45.00

Item 4

200.00

Item 5

200.00

Item 6

200.00

Item 7

200.00

SO ORDERED.

EDWARD V. ALFIERI JUDGE, OSHRC

Dated: May 28, 1976

New York, New York