_________________________________ : Secretary of Labor, : : Complainant, : : v. : OSHRC Docket No. 00-0034 : Hollywood Pool & Spa, : EZ : Respondent. : _________________________________: Appearances: Tiffany Morris, Esquire Mark B. Polson, Esquire Office of the Solicitor Polson & Robbins U.S. Department of Labor Birmingham, Alabama Birmingham, Alabama For Respondent For Complainant Before: Administrative Law Judge Stephen J. Simko, Jr. *_DECISION AND ORDER_* Hollywood Pool & Spa is engaged in the business of pool maintenance. On October 29, 1999, respondent was engaged in construction work on its own building in Vestavia Hills, Alabama. The Occupational Safety and Health Administration (OSHA) conducted an inspection of respondent's jobsite in Vestavia Hills on October 29, 1999. As a result of this inspection, respondent was issued two citations. Respondent filed a timely notice contesting the citations and proposed penalties. Prior to hearing, respondent withdrew its contest of Citation No. 2, items 1 and 2. Citation No. 1, item 1, alleges a serious violation of 29 C.F.R. § 1926.451(b)(1) as follows: Each platform on working levels of scaffolds was not fully planked or decked between the front uprights and the guardrail supports. At the Hollywood Spa, Vestavia Hills, AL., scaffolding was not fully planked, exposing employees to a fall hazard of 15 feet. Citation No. 1, item 2, alleges a serious violation of 29 C.F.R. § 451(c)(2) as follows: Supported scaffold poles, legs, post, frames, and uprights shall bear on base plates and mud sills or other adequate firm foundation: At the Hollywood Spa, Vestavia Hills, AL., scaffolding did not have base plates nor were they supported by mud sills or other firm foundations. Citation No. 1, item 3, alleges a serious violation of 29 C.F.R. § 1926.451(e)(1) as follows: When scaffold platforms are more than two feet (0.6 m) above a point of access, portable ladders, hookon ladder, attachable ladders, stair towers (scaffold stairways/towers), stair-type ladders (such) as ladders stands), ramps, walkaways, integral prefabricated scaffold access, structure, personnel hoist or similar surface will be used. At the Hollywood Spa, Vestavia Hills, AL., an access ladder was not provided for employees to exit scaffolding, exposing them to a fall hazard of 15 feet. Citation No. 1, item 4, alleges a serious violation of 29 C.F.R. § 1926.451(f)(3) as follows: Scaffolds and scaffold components shall be inspected for visible defects by a competent person before each work shift, and after any occurrence which could affect a scaffold's structural integrity. At the Hollywood Spa, Vestavia Hills, AL., scaffolding was not inspected for visible defects by a competent person before the start of the workday, exposing employees to a fall hazard of 15 feet. Citation No. 1, item 5, alleges a serious violation of 29 C.F.R. § 1926.451(g)(1) as follows: Each employee on a scaffold more than 10 feet (3.1m) above a lower level was protected from falling to that lower level: At the Hollywood Spa, Vestavia Hills, AL., employee(s) were working on a scaffold that was not adequately guarded. This employee was not provided fall protection from a height of 15 feet above ground level. A hearing was held pursuant to the EZ trial procedures in Birmingham, Alabama, on April 6, 2000. At the conclusion of the hearing, a bench decision was issued grouping the violations for penalty purposes into one violation and renumbering the violation as Citation No. 1, items 1a through 1d. The bench decision affirmed the violations in items 1a through 1d, and a penalty of $1,500 was assessed for those items. Excerpts of relevant transcript pages and paragraphs, including findings of fact and conclusions of law, are attached hereto in accordance with 29 C.F.R. § 2200.209(f). _FINDINGS OF FACT AND CONCLUSIONS OF LAW_ The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a). _ORDER_ Based upon the foregoing decision, it is ORDERED: 1. Citation No. 1, items 1 through 5, are grouped and renumbered as Citation No. 1, items 1a through 1d. 2. Citation No. 1, items 1a through 1d, are affirmed as a serious violation and a penalty of $1,500 is assessed. 3. Citation No. 2, items 1 and 2, are affirmed. No penalties were proposed and none are assessed. /s/______________________________ STEPHEN J. SIMKO, JR. Judge Date: May 17, 2000 ------------------------------------------------------------------------ FOSHEE & TURNER COURT REPORTERS _________________________________________________________________________ 4 1 PROCEEDINGS 2 3 THE COURT: This is a case 4 of Secretary of Labor versus Hollywood 5 Pool and Spa. It's OSHRC Docket No. 6 00-0034. This is a case being held in 7 Birmingham, Alabama. I'm Judge Simko. 8 It's a case which is being tried under 9 the easy trial procedures. I ask that 10 counsel enter your appearances at this 11 time. 12 MS. MORRIS: Appearing for 13 the plaintiff, Tiffany D. Morris. I 14 represent the U.S. Department of Labor. 15 100 Centerview Drive, Birmingham, 16 Alabama, 35216. 17 MR. POLSON: Your Honor, I'm 18 Mark Polson, appearing for the defendant, 19 for Hollywood Pool and Spa. My address 20 is 2131 Magnolia Avenue South,, Suite 101, 21 Birmingham, 35205. 22 THE COURT: There was a 23 prehearing conference set on this matter _________________________________________________________________________ A LegalLink Company * 2001 Park Place Tower, Suite 220* Birmingham, AL 35203 * www.foshee-turner.com 1-800-888-DEPO FOSHEE & TURNER COURT REPORTERS _________________________________________________________________________ 5 1 back on March 27. At that time there was 2 a stipulation as to the jurisdiction and 3 coverage and the fact that Hollywood Pool 4 and Spa engaged in business affecting 5 commerce within the act. The company's 6 notice of contest was timely filed and 7 that Hollywood Pool engaged in pool 8 maintenance. And that on October 29, 9 1999, however, Hollywood Pool was working 10 on completion of it's building in 11 Vestavia Hills, Alabama. Also, the 12 company has withdrawn it's contest of 13 items one and two of the other than 14 serious citation. 15 So, what I have before me is 16 citation number one; is that correct? 17 MS. MORRIS: That's correct. 18 THE COURT: Okay. Were there 19 any affirmative defenses which were 20 identified? 21 MR. POLSON: No, Your Honor. 22 THE COURT: So, what we have 23 are the issues that were stated in the _________________________________________________________________________ A LegalLink Company * 2001 Park Place Tower, Suite 220* Birmingham, AL 35203 * www.foshee-turner.com 1-800-888-DEPO FOSHEE & TURNER COURT REPORTERS _________________________________________________________________________ 6 1 prehearing report? 2 MR. POLSON: Yes, sir. 3 THE COURT: And whether 4 there were violations, one through five, 5 Is that citation one? Whether respondent 6 knew or should have known of the alleged 7 violations and whether the violations 8 were serious. And if the violation is 9 found of any of these items, whether the 10 penalty is reasonable? Okay. 11 I'm going to go over how an 12 easy trial works, but it's pretty much 13 like a regular hearing, but the only 14 difference is that the federal rules of 15 evidence do not apply. I always have 16 that on the record. So, again I think 17 we can move right through to the heart of 18 the issue. I don't like to have lawyers 19 testifying for their clients when you ask 20 them their questions. However, I will 21 allow you some slack on the preliminary 22 issues. I'll ask everybody just to relax 23 and put forth their case. _________________________________________________________________________ A LegalLink Company * 2001 Park Place Tower, Suite 220 * Birmingham, AL 35203 * www.foshee-turner.com 1-800-888-DEPO FOSHEE & TURNER COURT REPORTERS _________________________________________________________________________ 222 1 decision. 2 (Brief recess was had.) 3 THE COURT: Back on the 4 record. I have heard all the evidence 5 today and I've heard the legal argument 6 and I'm ready to render a decision in 7 this case. 8 I'm not going to restate the 9 facts and stipulations which were stated 10 at the beginning of this hearing. The 11 burden upon Secretary in all of these 12 cases, involves four major elements and 13 that's when the standard requires the, 14 and I believe the standard. All the 15 standards apply and this was construction 16 work that was going on. The scaffolding 17 and use of the scaffolding in those 18 standards. So, there -- in terms of the 19 standards were violated. 20 It appears that the terms of 21 the standards here were not met. The 22 employees are exposed and that's the 23 third element. There was an individual _________________________________________________________________________ A LegalLink Company * 2001 Park Place Tower, Suite 220* Birmingham, AL 35203 * www.foshee-turner.com 1-800-888-DEPO FOSHEE & TURNER COURT REPORTERS _________________________________________________________________________ 223 1 on the scaffolding and there were two 2 employees working close to the 3 scaffolding. So, it doesn't -- it means 4 having access to a condition here. These 5 employees also had access to the 6 scaffolding without instructions not to 7 go on the scaffolding. 8 And then the final act 9 occurred where the employer should have 10 known whether violations occurred. And I 11 find that the general contractor here, 12 the respondent, knew or should have known 13 the existence of the scaffolding on the 14 day in question. However, having said 15 that, I am going to go into a little 16 general information about the 17 contractor's responsibility and where I'm 18 coming down on the general contractor in 19 this case. 20 As a general contractor, the 21 respondent here has overall 22 responsibility for safety on a jobsite 23 here as a general contractor. The _________________________________________________________________________ A LegalLink Company * 2001 Park Place Tower, Suite 220* Birmingham, AL 35203 * www.foshee-turner.com 1-800-888-DEPO FOSHEE & TURNER COURT REPORTERS _________________________________________________________________________ 224 1 conditions were created and controlled by 2 this contractor. There were four subs 3 that worked on the job. They came and 4 went and the contractor had overall 5 knowledge of the conditions and progress 6 of this work. He had the ability to hire 7 and fire as I stated before. Even though 8 his employees might not have been on the 9 scaffolding, they did have access to 10 that. Mr. Mote was on the job on a daily 11 basis. He rented the scaffolding, and 12 the company rented the scaffolding, and 13 the company directed that scaffolding on 14 construction work around the jobsite. 15 The final point is that Mr. 16 Mote was always in charge on this jobsite 17 and this general contractor had overall 18 responsibility for safety on this job. 19 During testimony Mr. Mote admitted that 20 he rented the scaffolding, there were no 21 guardrails on the scaffolding and there's 22 no evidence that the scaffolding was the 23 -- while the scaffolding was moved, there _________________________________________________________________________ A LegalLink Company * 2001 Park Place Tower, Suite 220* Birmingham, AL 35203 * www.foshee-turner.com 1-800-888-DEPO FOSHEE & TURNER COURT REPORTERS _________________________________________________________________________ 225 1 was no great distinction between what the 2 conditions were on the date in question 3 or prior to that. 4 The ladder was some 5 connecting evidence there and I do find 6 that the ladder was not fully placed the 7 way it was intended on that scaffolding. 8 The question of the base plates, if fully 9 explained to me, I would have to conclude 10 that the language of the standard 11 indicated some confusion as to 12 foundation. Where it was firm or base 13 plates or mud plates, whatever they are, 14 but I have to under the law, give 15 reasonable interpretations when I have 16 to -- the Secretary of the known 17 standards. 18 Therefore, I have given 19 credence to the interpretations by the 20 Secretary. In this matter, having found 21 the conditions existed, I must look at 22 the various factors. Very small 23 employer. This small employer is very _________________________________________________________________________ A LegalLink Company * 2001 Park Place Tower, Suite 220* Birmingham, AL 35203 * www.foshee-turner.com 1-800-888-DEPO FOSHEE & TURNER COURT REPORTERS _________________________________________________________________________ 226 1 cooperative, did everything he was asked 2 to do to correct these conditions and 3 there was no evidence that he was 4 (inaudible.) 5 I see there was no formal 6 written safety program. There are no - 7 there were safety meetings. There was a 8 concern for the safety shown by this and 9 has been shown. I don't think anyone has 10 indicated otherwise. There is no history 11 of violations in the last three years or 12 even before. Under the act, their 13 violations all revolved around one thing 14 and that's the scaffold. We have one 15 scaffold and five violations on one 16 scaffold. 17 While this might be proper as 18 far as proposal of penalties and alleging 19 violations, in the appropriate case, and 20 I think this is an appropriate case. 21 I find it appropriate, given all the 22 factors of this case to meld all these 23 violations into one violation, and these _________________________________________________________________________ A LegalLink Company * 2001 Park Place Tower, Suite 220* Birmingham, AL 35203 * www.foshee-turner.com 1-800-888-DEPO FOSHEE & TURNER COURT REPORTERS _________________________________________________________________________ 227 1 would be subparts. So, instead of five 2 violations, we'll have one violation for 3 penalty purposes and the violations 4 remain. 5 They are affirmed as alleged, 6 but they are affirmed as one part of the 7 violation and that brings us to the 8 penalty.. I'm finding, based on 9 everything I've heard today, while the 10 penalty was calculated in accordance with 11 the guidelines set down by the 12 Government, I have to follow the 13 (inaudible) because the Government 14 proposed these penalties and I have to 15 assess them. 16 So, after the consideration, 17 I affirm one violation and assess a 18 penalty of fifteen hundred dollars. 19 Is there anything further? 20 MR. POLSON: Nothing further 21 of the respondent, Your Honor. 22 MS. MORRIS: Thank you, Your 23 Honor. _________________________________________________________________________ A LegalLink Company * 2001 Park Place Tower, Suite 220* Birmingham, AL 35203 * www.foshee-turner.com 1-800-888-DEPO ------------------------------------------------------------------------ OSHRC Home