Darcon Construction, Inc.
Settlement reduces penalties to $30,000
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This order from 2001 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
OSHA cited Darcon Construction after inspecting its stucco worksite in New Rochelle, New York. The citations alleged willful, repeated, and serious construction-safety violations with $108,100 in proposed penalties. Under the settlement, two Citation 2 items were reclassified as serious and the total penalty was reduced to $30,000, payable in monthly installments. Darcon withdrew its contest to the citations as modified, stated that all cited conditions had been abated, and agreed to continue complying with the Act. The judge approved and incorporated the settlement.
Decision snapshot
- Cited standard(s): The settlement identifies citation items but does not identify their standards.
- Outcome: Settlement approved; two items reclassified as serious and total penalties reduced from $108,100 to $30,000.
- Key point: The settlement resolved every citation item through reclassification, reduced penalties, abatement commitments, and withdrawal of the employer's contest.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET No. 00-0495
DARCON CONSTRUCTION, INC.,
Respondent.
Appearances: Susan Demitrio, Esq.
Office of the Solicitor of Labor
U. S. Department of Labor
New York, NY
For Complainant
Lisa A. Firko, Esq.
Lum, Danzis, Drasco, Positan & Kleinberg, LLC
Roseland, NJ
For Respondent
Before: MICHAEL H. SCHOENFELD, Judge
DECISION AND ORDER
Background and P rocedural History
This case arises under the Occupational Safety andHealth Act of 1970, 29 U.S.C. §§ 651-678
(1970) (“the Act”). From August 11, 1999 through August 27, 1999, a Compliance Officer (“CO”)
from the U.S. Occupational Safety and Health Administration (“OSHA”) visited Respondent’s work
site in New Rochelle, New York and conducted an inspection and investigation of Respondent. As
a result of the inspection, OSHA issued a citation to Respondent on February 10, 2000, alleging
willful, repeated and serious of violations of construction safety standards appearing in Title 29 of
the Code of Federal Regulations (“CFR”). Respondent timely contested all citations. A hearing was
-2-
held in New York, New York on May 28-29, 2001. No affected employees sought party status.
Jurisdiction
Complainant alleges and Respondent does not deny that it is an employer engaged in stucco
construction work. Respondent does not deny that it uses tools, equipment and supplies which have
moved in interstate commerce and conducts a business affecting interstate commerce.
Based on the above finding, I conclude that Respondent is an employer within the meaning of
section 3(5) of the Act. Accordingly, the Occupational Safety and Health Review Commission (“the
Commission”) has jurisdiction over the parties and the subject matter
Discussion
After the hearing, the parties announced that a settlement had been reached. See, Rule 100(a),
29 CFR § 2200/100(a).
The terms of the settlement have been reduced to writing and it has been submitted. The
terms of the settlement meet the requirements of Commission Rule 100(b), 29 C.F.R. § 2200.100(b).
Accordingly, the settlement is approved under 5 U.S.C. § 554(c)(1) and Commission Rule 100. The
terms of the stipulated settlement are incorporated, in their entirety, by reference in this order.
SO ORDERED.
/s/
Michael H. Schoenfeld
Judge, OSHRC
Dated: 7-23-01
Washington, D.C.
SOL:SLD
61373
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION
ELAINE L. CHAO, Secretary of Labor,
United States Department of Labor,
Complainant,
OSHRC Docket No. 00-0495
v.
DARCON CONSTRUCTION INC.,
Respondent.
STIPULATED SETTLEMENT
HOWARD M. RADZELY
Acting Solicitor of Labor
PATRICIA M. RODENHAUSEN
Regional Solicitor
SUZANNE DEMITRIO
Attorney
U.S. Department of Labor
Attorneys for
ELAINE L. CHAO,
Secretary of Labor,
Complainant
POST OFFICE ADDRESS
Patricia M. Rodenhausen
Regional Solicitor
U.S. Department of Labor
201 Varick Street, Room 983
New York, New York 10014
Tel.: (212) 337-2584
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION
ELAINE L. CHAO, Secretary of Labor,
United States Department of Labor,
Complainant, OSHRC Docket No. 00-0495
v.
DARCON CONSTRUCTION INC.,
Respondent.
STIPULATED SETTLEMENT
Based upon the following recital, the complainant and the Respondent herein agree to the
following as a conclusion of this matter:
1) The Secretary hereby amends her Complaint, Citation 2, Item 1 and Citation 2, Item
2 to reclassify these violations as serious violations of the Occupational Safety and Health Act.
2) The Secretary herebyamends the proposed penalty and the Complaint to reflect a total
proposed penalty of $30,000, apportioned as follows:
ORIGINAL AMENDED
PROPOSED PROPOSED
CITATION NO. ITEM PENALTY PENALTY
1 1 $2,100 $2,100
1 2 $3,000 $3,000
1 3 $3,000 $3,000
2 1 $56,000 $6,300
2 2 $32,000 $3,600
3 1 $6,000 $6,000
3 2a-2c $6,000 $6,000
4 1a-1c $0 $0
Total: $108,100 $30,000
3) Based upon the above, the respondent herein withdraws its notice of contest and
answer as to the citations, complaint, and proposed penalty as modified.
4) Respondent affirmatively states that:
a) All conditions alleged in the citations as amended have been abated.
b) It will continue to comply with the Occupational Safety and Health Act.
5) Respondent certifies that on July 9, 2001, this stipulation will be posted where
affected employees may see it.
6) Respondent will pay the amended proposed penalty totaling $30,000 by forwarding
checks made payable to Occupational Safety and Health-Labor to the OSHA Tarrytown Area Office
located at 660 White Plains Road, 4th Floor, Tarrytown, New York, 10591-5107, on the following
dates:
July 20, 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,500
August 20, 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,500
September 20, 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,500
October 20, 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,500
November 20, 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,500
December 20, 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,500
January 20, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,500
February 20, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,500
March 20, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,500
April 20, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,500
May 20, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,500
June 20, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,500
If any such payment is not made within ten (10) days of the date on which it is due, the entire unpaid
balance of the $30,000 penalty shall be payable immediately.
7) Each party hereby agrees to bear its own fees and other expenses incurred by such
party in connection with any stage of this proceeding.
8) This proposed settlement is not to be taken as an admission for the purpose of any
proceeding other than one arising under the Occupational Safety and Health Act.
DATED: 7/6/01
New York, New York
DARCON CONSTRUCTION CO. HOWARD M. RADZELY
Respondent Acting Solicitor of Labor
PATRICIA M. RODENHAUSEN
/s/ Regional Solicitor
BY: LISA A. FIRKO, ESQ.
Lum, Danzis, Drasco, Positan, &
Kleinberg, LLC BY: /s/
103 Eisenhower Parkway SUZANNE DEMITRIO
Roseland, NJ 07068-1049 Attorney
U.S. Department of Labor
Attorneys for
ELAINE L. CHAO
Secretary of Labor
Complainant
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