Seven Seventeen HBE Colorado Corporation d/b/a/ Antler's Adam's Mark

Plain-English summary

Seven Seventeen HBE Colorado Corporation operated the Antler's Adam's Mark hotel in Colorado Springs. The company corrected the cited conditions and paid the full $9,000 penalty without filing a timely contest, then later asked for a refund. It argued that it had not operated the hotel at the time of inspection and that its controller had been told the penalty could not be contested. The judge found that the company was the responsible operator, that the record did not support the alleged misinformation, and that the late filing resulted from simple negligence rather than excusable neglect. The notice of contest was dismissed, leaving the citations and $9,000 penalty affirmed.

Decision snapshot

• Cited standard(s): None identified in the decision.
• Outcome: Procedural. The late notice of contest was dismissed, and the citations and $9,000 penalty remained affirmed.
• Key point: Paying a citation and later regretting that choice does not justify reopening a final order when the employer received clear contest instructions.

Full text (OSHRC public release)

                               United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                        1244 North Speer Boulevard, Room 250
                             Denver, Colorado 80204-3582



Phone: (303) 844-3409                                                                                    Fax: (303) 844-3759


 SECRETARY OF LABOR,


                          Complainant,


                                v.                             OSHRC DOCKET NO. 99-1087


 SEVEN SEVENTEEN HBE COLORADO
 CORPORATION
 d/b/a ANTLER’S ADAM’S MARK,


                          Respondent.



APPEARANCES:

         For the Complainant:
                  Susan J. Willer, Esq., Office of the Solicitor, U.S. Department of Labor, Kansas City, Missouri

         For the Respondent:

                   Robert Parmer, General Manager, Antler’s Adam’s Mark, Colorado Springs, Colorado

Before:
Administrative Law Judge: Sidney J. Goldstein

                                               DECISION AND ORDER

         After a compliance officer for the Occupational Safety and Health Administration inspected
Respondent’s workplace, that Agency issued two citations to the employer, listing a number of safety
violations with a recommended penalty of $9,000.00. The citations were issued on January 29, 1999,
and contained information to the effect that the employer had 15 days from the receipt of the citations
to file a notice of contest if it disagreed with them. There was also an insert (OSHA Form 3000)
reminding employers of their rights and responsibilities following an OSHA inspection.
         The Respondent did not request an informal conference with OSHA officials, but it did correct
and abate the alleged violations and submitted a check for $9,000.00 in full payment of the penalty.
The Administration thereupon closed the file in this matter.


       On April 19, 1999, the Respondent made an inquiry concerning the citation and penalty. The
Administration treated this letter as a notice of contest, but it denied a request for the refund of the
penalty because the notice of contest was filed well after the fifteen-day period. After a complaint and
answer were filed with this Commission, a hearing was held in connection with the Respondent’s
request that its $9,000.00 payment be refunded.
       There is no serious dispute with the facts in this case. The Respondent failed to file a notice of
contest within 15 days of the receipt of the citations and did not participate in an informal settlement
process. Nevertheless, the Respondent requests that the Commission order the Secretary of Labor to
return its $9,000.00 payment, or a portion thereof. The basis of the request includes (1) that the
Respondent did not own or operate the premises at the time of the inspection; and (2) that the company
controller was denied a right to file a notice of contest.
       In its brief the Respondent alleges that the controller of the hotel was told by OSHA that the
penalty was non-negotiable; and that the company did not have a right to contest. There is nothing in
the record to support these assertions. The Respondent was duly notified at the time of the issuance of
the citation that it had the right to file a notice of contest. Also, there is nothing in the OSHA Case File
Diary Sheet to indicate that there was any oral or written communication to dissuade the Respondent
from filing any objection to the citations. Indeed, the Respondent reviewed the citations and abated the
safety infractions. I conclude that the Respondent was duly informed of its right to file a notice of
contest.
       Although the Respondent alleges that it did not acquire the property until January 11, 1999, this
assertion is contrary to the evidence in this case. In an employer OSHA Employer Questionnaire, HBE
Corporation is listed as the name of the company as of December 29, 1998. In a Safety Policy
Statement dated January 1, 1999, General Manager Bacher wrote that it was the policy of Antler’s
Adam’s Mark Hotel to maintain a safe workplace. Also, in a letter from Mr. Bacher to OSHA dated
April 19, 1999, he wrote that Adam’s Mark Hotel and Resorts had assumed ownership of the property
only one week prior (December 22, 1998) to the inspection. Finally, on June 8, 1999, Robert Parmer,
Respondent’s general manager, confirmed that the company completed the purchase and acquisition of
Antler’s just one week prior to the inspection. I therefore conclude that the Respondent was the
responsible operator of the property at the time of the inspection.


       The record discloses that Respondent did not file its notice of contest until well after the 15-day
contest period ended. An otherwise untimely notice of contest may be accepted where the Secretary’s
deception or failure to follow proper procedures caused the delay in filing. An employer is also
entitled to relief if it demonstrates that the Commission’s final order was entered as a result of
"mistake, inadvertence, surprise, or excusable neglect" or " any other reason justifying relief,"
including mitigating circumstances such as absence, illness or a disability that would prevent a party
from protecting its interests. See Fed.R.Civ.P.60(b); Branciforte Builders, Inc. 9 BNA OSHC 2113
(No. 80-1920, 1981). There is no evidence and no contention that the Secretary failed to follow proper
procedures in this matter. Rather, Respondent is requesting, in essence, that the late filing be excused
under the circumstances.
       The Commission has held that the OSHA citation plainly states the requirement to file a notice
of contest within the prescribed period and that ignorance of procedural rules, even on the part of a
layman, does not constitute "excusable neglect" for purposes of Rule 60(b), Roy Kay, Inc., 13 BNA
OSHC 2021, 2022 (No. 88-1748, 1989). The Commission has also held that a business must have
orderly procedures for handling important documents and has denied Rule 60(b) relief where the
employer has asserted that the late filing was due to events such as changes in management, misplacing
the citation, or the absence of the person responsible for OSHA matters. See Louisiana-Pacific Corp.,
13 BNA OSHC 2020, 2021 (No. 86-1266, 1989). Rule 60(b) cannot be invoked "to give relief to a
party who has chosen a course of action which in retrospect appears unfortunate or where error or
miscalculation is traceable really to a lack of care." Roy Kay, Inc. 13 BNA OSHC 2021, 2022 (No.
88-1748, 1989).
       Based upon the record and Commission precedent, I conclude that the untimely filing of the
notice of contest in this case was due to simple negligence and not to excusable neglect or "any other
reason justifying relief" pursuant to Rule 60(b). Accordingly, the Secretary’s Motion to Dismiss the
notice of contest is GRANTED. The citations and notification of penalty are therefore AFFIRMED.




                                                                      Sidney J. Goldstein
                                                                      Judge, OSHRC
Dated: March 13, 2000