Hollywood Pool & Spa

Plain-English summary

Hollywood Pool & Spa maintained swimming pools and was constructing its own building in Vestavia Hills, Alabama. OSHA cited five serious scaffold conditions involving incomplete planking, inadequate support, improper access, lack of a competent-person inspection, and missing fall protection. The judge found that employees had access to the scaffold and that the company controlled the jobsite, rented and directed the scaffold, and knew or should have known of its condition. He affirmed the scaffold items but grouped them as one violation for penalty purposes because they all concerned a single scaffold. After considering the company's small size, cooperation, safety efforts, and lack of violation history, he assessed a $1,500 penalty. Two other-than-serious items whose contest the company withdrew were also affirmed without penalties.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.451(b)(1); 29 C.F.R. § 1926.451(c)(2); 29 C.F.R. § 1926.451(e)(1); 29 C.F.R. § 1926.451(f)(3); 29 C.F.R. § 1926.451(g)(1)
• Outcome: Modified. Five serious scaffold items were affirmed and grouped as one violation with a $1,500 penalty; two withdrawn other-than-serious items were affirmed with no penalty.
• Key point: A contractor that controls a jobsite and directs scaffold use can be responsible for scaffold hazards accessible to its employees, even if its employees were not observed on the scaffold.

Full text (OSHRC public release)

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

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       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

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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




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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

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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
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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.

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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

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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
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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
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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
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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
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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.

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