Docket No. 441

McCRORY SUMWALT CONSTRUCTION COMPANY

OSHRC Docket No. 441

Occupational Safety and Health Review Commission

December 4, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order directing review of a decision rendered by Judge James D. Burroughs. The Judge vacated a citation for serious violation of the standard prescribed by 29 C.F.R. 1926.400(c) n1 and therefore did not find Respondent in violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter "the Act"). We have reviewed the record and for the reasons given hereinafter affirm the citation. The Judge's decision is adopted only to the extent that it is consistent with this decision.

The relevant facts are essentially undisputed. Respondent, a contractor, was engaged in constructing the Grant City Plaza shopping center in Greer, South Carolina. The major portion of construction had been completed. A major tenant, Winn-Dixie Co., had an opening date and required electric power in order to adjust its freezers and refrigerators.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The standard is cited as currently numbered. It provides, in relevant part, as follows: Protection of employees. (1) No employer shall permit an employee to work in such proximity to any part of an electric power circuit that he may contact the same in the course of his work unless the employee is protected against electric shock by de-energizing the circuit and grounding it or by guarding it by effective insulation or other means. . . .

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The power was obtained from an on-site electrical installation comprising a bank of three transformers. The bank was located in back of the Winn-Dixie establishment. The bank was not enclosed by a protective housing, and the City of Greer required Respondent to erect a temporary protective enclosure prior to energization.

Respondent designed and constructed a temporary enclosure. An incinerator located on one side of the bank and supported on a three foot high pad was used as a sidewall of the barrier. The pad extended beyond the incinerator in the direction of the transformer bank thereby forming a ledge between the incinerator and the bank. A bumper guard was located in front of the incinerator, it was about two feet high, and it extended as far as the pad.

The rear wall of the Winn-Dixie establishment was utilized as a second wall of the temporary enclosure.

The remaining two walls, i.e., front and side, were constructed with posts, joists, plywood and wire fencing. Upright posts of six feet 10 inches height were located on the corners and 4 X 4's were affixed horizontally to the top of the posts as sills. Five 4 X 4's were affixed on top of the sills as joists, and a 3/4 inch plywood sheet was attached to the joists as an enclosure cover. Five foot wire mesh (2 X 4 inches) was attached to the uprights and it extended vertically from the ground. The mesh was covered by plywood sheeting which extended four feet upwards from the ground. A horizontally extending gap of one feet 10 inches height existed between the top of the mesh and the bottom of the sill and was left for transformer ventilation purposes. The transformer bank was about 42 inches behind the mesh, and one transformer was located 18 inches away from the edge of the incinerator pad, i.e., the ledge.

Respondent posted the enclosure with a keep-out sign, informed its employees that the bank was energized (7,200 volts), and instructed them not to go within the enclosure under any circumstances.

On December 22, 1971, Respondent's employees were installing rain hoods over ventilation louvers located on the rear wall of the Winn-Dixie establishment. Some louvers were located above the transformer bank, and it was determined that the enclosure cover should be given additional structural support so that it would be capable of supporting a scaffold and men.

To this end, Respondent's employee Sharpe, was ordered to measure the vertical distance between the ledge formed by the incinerator pad and the top of the enclosure. The measurement was to be made inside the enclosure in order that a strut or stiff knee might be constructed and placed there. Sharpe was not given any instructions regarding the method of making the measurement, although Respondent's superintendent thought and intended that it be taken by standing on the bumper guard and reaching 24-30 inches inside the enclosure. The superintendent warned Sharpe to be careful. Sharpe was electrocuted and his body was found inside the enclosure. It was found adjacent to the transformer located nearest the ledge. Sharpe had a ruler in his hand.

On these facts, the trial Judge vacated, and its appears that his decision turns on the fact that Sharpe had not been given an express order to go inside the enclosure. Had he been so ordered, said the Judge, the enclosure would not have constituted protection and Respondent would have violated the standard. Absent such instruction, the Judge concluded the enclosure constituted compliance because Sharpe could have made the measurement by extending his arm 24 inches into the enclosure and because Respondent warned its employees against entering the enclosure. We disagree.

The only question in this case is whether the temporary enclosure was an "effective" insulator as to Sharpe. We hold that it was not. The mere fact that the work could possibly have been performed safely by extending an arm into the enclosure is of no moment in the circumstances.

According to the evidence, the transformers were 42 inches behind the front of the enclosure, and Respondent would have had Sharpe reach 24-30 inches into the enclosure. That is, Respondent would have Sharpe bring his hand to within 12-18 inches of a transformer while holding a ruler capable of measuring the distance between the ledge and top of the enclosure. Obviously, it was possible for Sharpe to come into electrical contact with an energized circuit. He could easily have made contact with the ruler. For that matter he could have made contact with his hand since Respondent would have put him in a tripping or falling position by requiring him to stand on the incinerator bumper guard and reach into the enclosure. Clearly, the enclosure offered little, if any, protection to Sharpe.

Under the circumstances, the enclosure was not "effective insulation or other means," and Respondent by ordering Sharpe to perform the measurement permitted him to work in "such proximity" to a live circuit that he might contact it. The standard and section 5(a)(2) were violated.

We turn now to the matter of an appropriate penalty. Respondent has no history of previous violations. While having only seven employees on the jobsite, Respondent can and does perform over 1,000,000 manhours of work in a calendar year and is therefore of relative medium size. In addition, the record evidences Respondent's good faith. It employs a full-time safety professional, its supervisors received safety training, and it attempts to eliminate hazards.

On the other hand, the gravity of violation was high. There can be no doubt that death was the foreseeable result of contact with the circuit, and contact was highly probable. However, only one employee was exposed. On balance, we consider a penalty of $300 to be appropriate.

Accordingly, the citation for serious violation of 29 C.F.R. 1926.400(c)(1) and of section 5(a)(2) of the Act is affirmed; a penalty of $300 is assessed, and it is so ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: This is another case where the Commission has applied subjective, after-the-fact judgment to determine what should have been done to avoid a fatality. In so doing, the facts of the case have been ignored.

The requirement the Commission has found to have been violated does not prohibit an employee from working close to an electric power circuit. It permits such work if the employee is protected from electric shock by either of two ways:

(a) de-energizing the circuit and grounding it, or

(b) guarding it by effective insulation or other means.

Respondent did not ignore this requirement. He complied with it by choosing alternative b. This was the method which the local authorities prescribed. The judge specifically found that:

Under the direction of the City of Greer, the respondent's superintendent designed a temporary barrier or cover to go around the transformers.

Nor was the judgment of the City authorities ever questioned by the complainant in this case. The judge found that: The petitioner does not indicate why it did not consider the temporary barrier to be an effective means of protecting an employee from the energized transformers. No explanation was offered by petitioner as to how the accident happened. All that petitioner has proved is that respondent provided "other means" to guard its employees from accidental contact with the transformers and that an accident occurred. This is insufficient to carry the burden imposed upon the petitioner. The fact that an accident occurred is not in itself proof of a violation of the standard alleged.

The Commission is in error when it concludes that "The mere fact that the work could possibly have been performed safely by extending an arm into the enclosure is of no moment in the circumstances." This conclusion overlooks the very purpose of this or any other job safety standard: to permit work to be done under conditions which are safe. The facts show that this barrier served this purpose.

No safety standard will prevent accidents, however, where safety barriers which have been erected are violated. Perimeter protection around the upper floors of a high rise building under construction will not prevent an employee from crawling between the guard rails and falling to his death. The employer cannot be faulted if an employee who has been cautioned against such folly nevertheless proceeds to do so.

That is just what is present in this case. The employer fully complied with the law by erecting the barrier and warning employees to stay away from the electrical power source. The judge who heard the evidence and found the facts decided this case correctly.

[The Judge's decision referred to herein follows]

BURROUGHS, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter referred to as the Act), to review a Citation for Serious Violation issued by the Secretary of Labor (hereinafter referred to as the Secretary) pursuant to Section 9(a) of the Act, and a proposed assessment of penalty in the amount of $500 upon such alleged violation pursuant to Section 10(a) of the Act.

The Citation for Serious Violation was issued on January 3, 1972, and alleged a violation of 29 C.F.R. 1518.400(c). The Notification of Proposed Penalty was issued on the same date and proposed a penalty of $500. On January 17, 1972, which was within 15 days of receipt of the Secretary's notice of proposed penalty and citation, the respondent notified the Secretary that it wished to contest the alleged violation and proposed penalty. The Citation for Serious Violation described the alleged violation of 29 C.F.R. 1518.400(c) as follows:

Permitting an employee to work in the proximity of an electric power circuit (transformer station) without deenergizing the circuit or providing other effective means against electric shock.

The Secretary advised the Occupational Safety and Health Review Commission of the notice of contest by respondent. The Commission assigned the case to this Judge for purposes of conducting a hearing pursuant to Section 10(c) of the Act. The hearing was held in Columbia, South Carolina, on March 30, 1972. No additional parties desired to intervene in the proceeding.

ISSUES

The primary issue for determination pertains to whether there was a violation of 29 C.F.R. 1518.400(c). If a violation occurred, a question arises as to whether the violation was of a serious nature under the criteria of Section 17(k) of the Act. In the event a violation occurred, a further determination must be made as to the appropriate penalty to be imposed under the Act.

FINDINGS OF FACT

The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifically determined in resolving the issues presented in this case.

Respondent is a South Carolina corporation organized in 1960 to engage in the general contracting business. Its principal place of business is located at 2632 Millwood Avenue, Columbia, South Carolina (Complaint and Answer; Tr. 102).

During 1971 and early 1972, respondent was engaged in the construction of a shopping center known as Grant City Plaza in Greer, S.C. The major tenants of the center were W.T. Grant Co., the Winn-Dixie Co., and Eckerd's Drug Store. The work for the major tenants was virtually all completed during the year 1971 (Tr. 101).

In December 1971, work was progressing on schedule. Winn-Dixie had an opening date and was anxious to have the electricity turned on by the City of Greer so that its freezing and refrigerating equipment could be adjusted. Three transformers had been placed at the rear of the building but had not been energized. The permanent metal housing which had been specifically designed to surround and protect the transformers had been misplaced or lost in transit (Exs. 1, 14; Tr. 21, 49-50, 118). The Commissioner of Public Works, City of Greer, South Carolina, advised respondent that prior to the transformers being energized, a barricade would have to be constructed around them (Tr. 118-119).

The three transformers were located in the rear of the building adjacent to an incinerator (Exs. 4, 6; Tr. 114). The incinerator was on a concrete pad, approximately 4 feet high, which extended several inches beyond the edge of the incinerator and formed a small ledge that ran beside the transformers to the building. The base of the concrete pad on which the incinerator was sitting was protected by a metal bumper guard or rail extending slightly beyond the base of the incinerator and in front of the transformers a short distance. It was approximately three feet off the ground and was put there to protect the base of the incinerator (Ex. 6; Tr. 58-59).

Under the direction of the City of Greer, the respondent's superintendent designed a temporary barrier or cover to go around the transformers (Ex. A; Tr. 48, 51, 119-120). The barrier was constructed by respondent's employees (Tr. 32, 48). It was constructed so that the rear of the building and side of the incinerator acted as part of the enclosure (Exs. 1, 2, 4). The barrier consisted of upright posts 13'6" apart and 4" X 4" posts acting as a sill on those posts. There were five 4" X 4" joists spaced on the sill. These joists were covered with 3/4" plywood which acted as a top. The upright posts had a 5-foot height of 2 X 4 wire fence attached. On the outside of the wire fence there was a piece of plywood at the base and extending upward 4 feet so that approximately one foot of the wire was reflected above the plywood. The height of the barrier from the ground to the sill which rested on the upright 4" X 4" posts was 6'10". The space between the 5' fence and the sill was open so that the transformers could be ventilated (Exs. 2, 5; Tr. 15, 60).

The barrier was constructed so that its top was directly against the incinerator. The fence and plywood on the front side of the barrier also extended over to the side of the incinerator. The ledge of the incinerator pad was inside of the barrier and the bumper guard was outside the barrier (Exs. 5, 6). The barrier was 7'6" in depth and the center of the transformers was approximately 5' from the edge of the barrier (Ex. 1). The barrier was completed and the transformers were energized on December 9, 1971 (Ex. A; Tr. 120-121). Each transformer carried 7,200 volts (Tr. 32).

A "keep-out" sign was placed on the barrier (Tr. 47). All employees knew the electricity had been turned on and the superintendent advised them of the hazards. All of the employees were further informed by the superintendent that they were not to go inside the barrier under any circumstances (Tr. 51).

On December 22, 1971, the respondent had seven employees working at the job site (Tr. 26-27). They were installing rain hoods over some ventilation louvers in the rear of the Winn-Dixie store (Tr. 28-29). The louvers were located in the center of the building approximately 15 to 20 feet off the ground (Tr. 29). The rain hoods consisted of formed pieces of sheet metal used to prevent rain blowing in through the louvers (Tr. 30).

The respondent's employees were using a scaffold to install the rain hoods until they got to the transformers (Tr. 30). The transformers presented an obstacle in installing the rain hoods directly above them. The scaffold could not be moved into the proper working area because of the barrier erected for the transformers (Tr. 31). It was decided to construct a scaffold on top of the barrier over the transformers (Tr. 31, 33). The decision was made to use an "A" frame welded to the channel in the bottom of the louver and to come down with a brace on it to support the platform. Extra support was to be added inside the barrier to give additional support to the top of the barrier (Tr. 33).

The top of the barrier was originally constructed to support itself in order to prevent anything from falling into the transformers. It was not intended to be strong enough to be used as a working area. As a result, it was determined that a stiff knee or strut support was to be added (Tr. 34). The stiff knee was to be made from 4" X 4" lumber and was to be placed inside the barrier on the ledge of the incinerator to afford additional support to the top or roof of the barrier (Tr. 35, 57).

The superintendent discussed with Marion Sharpe as to where the stiff knee was to be placed, but he did not tell Sharpe how he was to measure for it (Tr. 37, 45). The measurement which was necessary was of the distance between the ledge and the top of the barrier (Tr. 57). The stiff knee was to be placed on the ledge inside the barrier approximately 24 inches from the outside. This location was decided upon because that was the approximate distance that a person could reach inside without encountering any difficulty (Tr. 40-41). The measurement could have been made by Sharpe standing on the bumper guard of the incinerator which was on the outside of the barrier (Tr. 37, 46, 64).

The superintendent considered having the electricity turned off, but decided against that course of action because of the difficulty it would have caused Winn-Dixie with its compressors (Tr. 52). In addition, he did not consider that the measurement and placement of a stiff knee on the ledge approximately 24 inches inside the barrier presented any danger to the employee doing the work (Tr. 53).

After the superintendent had discussed the matter with Marion Sharpe, he cautioned him to be careful and then started toward his truck (Tr. 41). As he proceeded to the truck, he was called by Lelon Sharpe, Marion Sharpe's brother, who indicated that he wanted to get a saw out of the truck (Tr. 41-42). Within a few seconds, they heard an explosion. The superintendent turned around and saw all of respondent's employees except Marion Sharpe (Tr. 42). They went to the fence around the transformers and discovered Marion Sharpe lying to the left side of the rear of the transformer nearest the ledge of the incinerator pad (Ex. 1; Tr. 44). He had his ruler in his hand (Tr. 44). No one saw what had happened (Tr. 43).

On December 28, 1971, compliance officer Donald G. Fitzwater conducted an investigation of the accident (Tr. 84). Subsequent to the accident and prior to the compliance officer's investigation, respondent added another sheet of plywood at the top of the barrier to completely enclose the transformers (Ex. 3; Tr. 85). At a later date, the permanent metal cover was added (Tr. 22).

Respondent has had a safety program since its organization in 1960. The safety program has been expanded since the passage of the Occupational Safety and Health Act (Tr. 102). In July 1971, respondent created the position of safety engineer which is a full-time position. He works directly with the safety officer and superintendents (Tr. 103, 124). All of respondent's project managers, superintendents and foremen have attended courses on safety which were given by the Association of General Contractors (Tr. 124). In 1970, respondent received an award for the best safety record of building contractors in North and South Carolina who worked over 500,000 man-hours during the year (Tr. 104).

LAW AND OPINION

Section 5(a)(2) of the Act provides that each employer shall comply with occupational safety and health standards promulgated under the Act. The standard allegedly violated in this case, 29 C.F.R. 1518.400(c), provides, in pertinent part, as follows:

(c) Protection of employees: (1) No employer shall permit an employee to work in such proximity to any part of an electric power circuit that he may contact the same in the course of his work unless the employee is protected against electric shock by deenergizing the circuit and grounding it or by guarding it by effective insulation or other means. . . .

Petitioner contends that respondent permitted an employee to work in close proximity of the transformers without deenergizing the circuit or providing other effective means against electric shock.

The standard is clear that where an employee works in close proximity to an electric power circuit which is not deenergized, the employer is not per se in violation of 29 C.F.R. 1518.400(c). Where such conditions do exist, however, the employer must guard "it [electric power circuit] by effective insulation or other means." Since there is no dispute concerning the fact that the transformers were not deenergized and that Marion Sharpe was permitted to work in close proximity to them, the crux of the question for determination is whether the temporary barrier served as an effective means of guarding the transformers so that an employee would not accidentally contact them. This question must be resolved by analyzing the facts as they existed immediately prior to and at the time of the accident.

The temporary barrier was 13'6" in length and 6'10" in height from the ground to the sill on which five 4" X 4" joists, which supported the 3/4" plywood top or roof rested. It was 7'6" in depth. The sill and the upright posts which supported the sill consisted of 4" X 4" lumber. Two sides of the barrier were completely enclosed by the rear of the building and the incinerator which was immediately adjacent to the transformers. A five-foot high fence was attached to the 4 X 4 posts on the front and the remaining side. A four-foot height of plywood was then placed over the wire fence so that the top foot of fence extended above the plywood. This left a 2'10" opening for ventilation purposes at the top, but only 1'10" at the top by which a person could enter the barrier. The use of the 4" X 4" lumber as the frame and the addition of the fence and plywood insured that the barrier was of substantial strength so that a person accidentally walking or falling into the sides of the barrier was in no danger of being exposed to any contact with the energized transformers inside it.

The record does not indicate the dimensions of the transformers or how far the front of the transformers were located inside the barrier. A diagram introduced into evidence (Ex. 1) reflects that the center of the transformers was five feet from the front of the barrier. Since the distance from the center of the transformers to the rear of the building was 2'6", it would appear clear that the front of the transformers was at least 2'6" from the front of the barrier. This means that a person would have had to penetrate the barrier from the front at least 2'6" prior to having any contact with the transformers. This conclusion is demonstratively supported by comparing photographs of the temporary barrier (Exs. 4, 6, 7, 8, 9) with those of the permanent metal cover installed subsequent to the accident (Exs. 11, 13, 14). The temporary barrier was constructed on a straight line with the front of the incinerator, whereas the permanent cover is recessed some two to three feet from the front of the incinerator.

The transformers were energized on December 9, 1971. A "keep-out" sign was placed on the barrier and all employees were informed by the superintendent that they were not to go inside the barrier under any circumstances (Tr. 47, 51). The employees also knew that the transformers were energized after December 9, 1971, and were aware of the hazards presented by their presence (Tr. 51).

On December 22, 1971, the superintendent, after discussion with respondent's employees at the site, directed Marion Sharpe to measure and insert a stiff knee or strut support on the ledge of the incinerator pad between the ledge and the top of the barrier. Extra support was to be added so that the top of the barrier would support a scaffold which was essential in installing rain hoods directly above the transformers. Sharpe was directed by the superintendent to place the stiff knee on the ledge inside the barrier approximately 24 inches from the outside. This location was decided upon since the superintendent believed that was the approximate distance that a person could reach inside without encountering any difficulty. He did not believe that the placement of the stiff knee approximately 24" inside the barrier presented any danger to the employee doing the work. Since a person would have to penetrate the barrier approximately 30" from the front prior to contacting the transformers, it would seem that his assumption was reasonable.

Shortly after giving instructions to Marion Sharpe, there was an explosion and Marion Sharpe was found lying inside the barrier to the left side of the rear of the transformer nearest the ledge of the incinerator pad. He had his ruler in his hand. There were no witnesses to the accident and no definite answer as to how the accident happened.

The petitioner does not indicate why it did not consider the temporary barrier to be an effective means of protecting an employee from the energized transformers. No explanation was offered by petitioner as to how the accident happened. All petitioner has proved is that respondent provided "other means" to guard its employees from accidental contact with the transformers and that an accident occurred. This is insufficient to carry the burden imposed upon the petitioner. The fact that an accident occurred is not in itself proof of a violation of the standard alleged.

Based on the facts of record, the temporary barrier should have been an effective means of protecting Marion Sharpe against any contact with the transformers. He had not been directed to go inside the barrier. He should have been able to easily reach 24 inches inside the barrier to make the measurement without the transformers presenting any hazard to him. When the transformers were energized, he was informed, along with the other employees, that no one was to go inside the barrier under any circumstances. Certainly, it was not necessary to go inside the barrier to place a stiff knee on the ledge 24 inches inside the barrier.

Since no one saw the accident, there is only conjecture as to why Marion Sharpe was inside the barrier. The superintendent indicated that Sharpe probably stood on the bumper guard of the incinerator, which was approximately three feet high, and fell inside as he attempted to make the measurement. This appears highly unlikely. In the first place, the bumper guard offered a solid base on which to stand and the fence extended above it some two feet. The plywood extended above it approximately one foot. The 4" X 4" post and the top of the barrier offered good means by which he could have easily supported himself on the bumper guard. Secondly, the opening through which he would have had to fall was only 1'10" and some two feet above the base on which he would have been standing. It would have been difficult for him to have fallen through an opening 1'10" which was approximately two feet above the bumper guard.

The most reasonable assumption is that, for some unexplained reason, Sharpe deemed it necessary to crawl inside the barrier. He was found lying to the left side of the rear of the transformer nearest to the ledge of the incinerator pad. Since the center of the transformer was five feet from the front of the barrier, he was found lying in excess of five feet from the front of the barrier. If he had fallen through the 1'10" opening at the front, it appears highly unlikely that he would have landed some five feet inside behind the transformer.

Since there is no evidence to show that Sharpe was directed to crawl inside the barrier to take the measurement or that a measurement 24 inches inside the barrier necessitated him entering the barrier, there has been no violation of 29 C.F.R. 1518.400(c). The barrier was an effective means of preventing Sharpe from coming into contact with the transformers as long as he remained on the outside of the barrier.

The situation would be quite different if Sharpe had been instructed to enter the barrier or the measurement necessitated him entering it. Under those circumstances, the barrier would have been no protection to him. It is recognized that the superintendent did not inform Sharpe as to how the measurement should be made and that he was not specifically instructed not to enter the barrier when they were discussing where the stiff knee was to be placed. He had, however, been previously instructed not to enter the barrier under any circumstances and was well aware of the hazards presented by coming into contact with the transformers. In addition, he was cautioned to be careful in making the measurement. Under the circumstances of this case, it would be illogical to conclude that the respondent should have assumed that Sharpe would enter the barrier.

The evidence appears clear that respondent met its obligations under 29 C.F.R. 1518.400(c) by providing "other means" to protect its employees from the hazards presented by the transformers.

CONCLUSIONS OF LAW

1. 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 temporary barrier around the transformers was sufficient "other means" to insure that respondent's employees would not contact the transformers in the course of their employment.

4. The respondent was not in violation of 29 C.F.R. 1518.400(c).

Upon the basis of the findings of fact and conclusions of law, and upon the entire record, it is

ORDERED:

That the respondent was not in violation of 29 C.F.R. 1518.400(c) as alleged in the Citation for Serious Violation issued to it on January 3, 1972, and is accordingly not liable for the penalty of $500.00 proposed for the alleged violation.