The Administrator seeks an order assessing Dr. Schmidt a $15,000 civil penalty and requiring Dr. Schmidt to cease and desist from violating the Animal Welfare Act and the Regulations and Standards.18 As the proponent of an order, the Administrator has the burden of proof in this proceeding 19 and the standard of proof by which the burden of persuasion is met in an administrative proceeding conducted under the Animal Welfare Act is preponderance of the evidence.20
(.continued) Regulations and Standards (9 C.F.R. 3.6(a)(2)(xii)) (Compl. III(A)(4)). Complainants Proposed Findings of Fact, Conclusions of Law, Order, and Brief in Support Thereof at 8-9.

5 U.S.C. 556(d).

Herman & MacLean v. Huddleston, 459 U.S. 375, 387-92 (1983); Steadman v. SEC, 450 U.S. 91, 92-104 (1981); In re The Intl Siberian Tiger Found. (Decision as to The International Siberian Tiger Foundation, Diana Cziraky, The Siberian Tiger Foundation, and Tiger Lady), 61 Agric. Dec. 53, 79 n.3 (2002); In re Reginald Dwight Parr (Order Denying Respondents Pet. for Recons.), 59 Agric. Dec. 629, 643-44 n.8 (2000), affd per curiam, 273 F.3d 1095 (5th Cir. 2001) (Table); In re James E. Stephens, 58 Agric. Dec. 149, 151 (1999); In re Judie Hansen, 57 Agric. Dec. 1072, 1107-08 (1998), appeal dismissed, 221 F.3d 1342 (Table), 2000 WL 1010575 (8th Cir. 2000) (per curiam), printed in 59 Agric. Dec. 533 (2000); In re David M. Zimmerman, 57 Agric. Dec. 1038, 1052 (1998); In re Richard Lawson, 57 Agric. Dec. 980, 1015 (1998), appeal dismissed, No. 99-1476 (4th Cir. June 18, 1999); In re Marilyn Shepherd, 57 Agric. Dec. 242, 272 (1998); In re John D. Davenport, 57 Agric. Dec. 189, 223 n.4 (1998), appeal dismissed, No. 98-60463 (5th Cir. Sept. 25, 1998); In re Peter A. Lang, 57 Agric. Dec. 59, 72 n.3 (1998), affd, 189 F.3d 473 (9th Cir. 1999) (Table) (not to be cited as precedent under 9th Circuit Rule 36-3), printed in 58 Agric. Dec. 742 (1999); In re Samuel Zimmerman, 56 Agric. Dec. 1419, 1455-56 n.7 (1997), affd, 173 F.3d 422 (Table) (3d Cir. 1998), printed in 57 Agric. Dec. 869 (1998); In re David M. Zimmerman, 56 Agric. (continued.)
19 The Administrators Evidence of Dr. Schmidts Violations Sandra Meek testified she inspected Dr. Schmidts facility on April 22, 2001, October 14, 2001, November 4, 2001, March 17, 2002, October 13, 2002, March 23, 2003, November 2, 2003, March 21, 2004, June 6, 2004, and September 12, 2004, and, on each occasion, found violations of the Regulations and Standards.21 Ms. Meeks testimony included a description of each of the violations which she found and her assessment of the seriousness of each of those violations.22 Ms. Meek documented each inspection of Dr. Schmidts facility at the time of the inspection with an inspection report,
(.continued) Dec. 433, 461 (1997), affd, 156 F.3d 1227 (3d Cir. 1998) (Table), printed in 57 Agric. Dec. 46 (1998); In re Volpe Vito, Inc., 56 Agric. Dec. 166, 169 n.4 (1997), affd, 172 F.3d 51, 1999 WL 16562 (6th Cir. 1999) (not to be cited as precedent under 6th Circuit Rule 206), printed in 58 Agric. Dec. 85 (1999); In re Big Bear Farm, Inc., 55 Agric. Dec. 107, 109 n.3 (1996); In re Otto Berosini, 54 Agric. Dec. 886, 912 (1995); In re Micheal McCall, 52 Agric. Dec. 986, 1010 (1993); In re Ronnie Faircloth, 52 Agric. Dec. 171, 175 (1993), appeal dismissed, 16 F.3d 409, 1994 WL 32793 (4th Cir. 1994), printed in 53 Agric. Dec. 78 (1994); In re Craig Lesser, 52 Agric. Dec. 155, 166 (1993), affd, 34 F.3d 1301 (7th Cir. 1994); In re Pet Paradise, Inc., 51 Agric. Dec. 1047, 1066-67 (1992), affd, 61 F.3d 907, 1995 WL 309637 (7th Cir. 1995) (not to be cited per 7th Circuit Rule 53(b)(2)); In re Terry Lee Harrison, 51 Agric. Dec. 234, 238 (1992); In re Gus White, III, 49 Agric. Dec. 123, 153 (1990); In re E. Lee Cox, 49 Agric. Dec. 115, 121 (1990), affd, 925 F.2d 1102 (8th Cir.), reprinted in 50 Agric. Dec. 14 (1991), cert. denied, 502 U.S. 860 (1991); In re Zoological Consortium of Maryland, Inc., 47 Agric. Dec. 1276, 1283-84 (1988); In re David Sabo, 47 Agric. Dec. 549, 553 (1988); In re Gentle Jungle, Inc., 45 Agric. Dec. 135, 146-47 (1986); In re JoEtta L. Anesi, 44 Agric. Dec. 1840, 1848 n.2 (1985), appeal dismissed, 786 F.2d 1168 (8th Cir.) (Table), cert. denied, 476 U.S. 1108 (1986).

Tr. 12-75. Tr. 12-75.

20 which contains a detailed description of each of Dr. Schmidts violations and a reference to the section of the Regulations and Standards which Ms. Meek found Dr. Schmidt violated.23 The ALJ admitted each of these 10 inspection reports into evidence. Jan R. Feldman, another experienced United States Department of Agriculture inspector, assisted Ms. Meek during five of the 10 inspections at issue in this proceeding: namely, the November 4, 2001, March 17, 2002, March 23, 2003, November 2, 2003, and June 6, 2004, inspections of Dr. Schmidts facility.24 Ms. Feldman testified that, based on her observations at Dr. Schmidts facility, she agreed with all of the violations cited by Ms. Meek on the November 4, 2001, March 17, 2002, March 23, 2003, November 2, 2003, and June 6, 2004, inspection reports.25 Moreover, Ms. Meek took photographs of some of Dr. Schmidts violations during two of the 10 inspections at issue: namely, the March 21, 2004, and June 6, 2004, inspections of Dr. Schmidts facility.26 The photographs confirm violations cited by Ms. Meek on the March 21, 2004, and the June 6, 2004, inspection reports. The Administrator also introduced evidence that, during the November 2, 2003, and the June 6, 2004, inspections of Dr. Schmidts facility,
CX 7-CX 16. Tr. 77-79. Tr. 79. CX 37-CX 48.
21 Dr. Schmidt interfered with Ms. Meek while she was carrying out her duties at Dr. Schmidts facility.27 The Administrator introduced relevant, reliable, credible, and probative evidence of 34 of the 36 alleged violations of the Regulations and Standards that are at issue. I do not find the evidence introduced by the Administrator supports a finding that Dr. Schmidt violated section 3.1(d) of the Regulations and Standards (9 C.F.R. 3.1(d)) on March 21, 2004, and June 6, 2004. The Administrator alleged that, on March 21, 2004, and June 6, 2004, Dr. Schmidt failed to provide sufficient lighting to conduct an inspection of the animals and facilities in violation of section 3.1(d) of the Regulations and Standards (9 C.F.R. 3.1(d)).28 Section 3.1(d) of the Regulations and Standards (9 C.F.R. 3.1(d)) does not require dealers to provide sufficient lighting to conduct inspections of animals and facilities. Instead, section 3.1(d) of the Regulations and Standards (9 C.F.R. 3.1(d)) provides that housing facilities for dogs and cats must have reliable electric power adequate for heating, cooling, ventilation, and lighting and for carrying out other husbandry requirements in accordance with sections 3.1 through 3.19 of the Regulations and Standards (9 C.F.R. 3.1-.19). The Administrator did not introduce any evidence regarding the reliability or adequacy of Dr. Schmidts electric power; therefore, I dismiss paragraphs IX(A)(1) and X(A)(4) of the Complaint. I limit my discussion of

CX X(A)(1), X(A)(2). CX 15 at 1-2. Tr. 249-52, 259. Tr. 155. Tr. 167-69.
38 The Administrator alleged on June 6, 2004, primary surfaces coming in contact with animals were not free of jagged edges or sharp points in violation of section 3.1(c)(1) of the Regulations and Standards (9 C.F.R. 3.1(c)(1)).89 The June 6, 2004, inspection report states Dr. Schmidt had two ground enclosures that had several wire ties which had sharp ends protruding into the enclosures, each of which contained a dog.90 The Administrator introduced a picture purportedly depicting a metal wire with sharp ends protruding into one of the enclosures.91 Ms. Meek testified, while a little hard to see[,] the picture depicts one of the wires with a sharp end protruding into an enclosure down at the bottom.92 Dr. Schmidt testified the picture depicts a pig ring up to the top and off to the left, first row going down. 93 Given Ms. Meeks description of the location of the wire in question and Dr. Schmidts description of the location of the pig ring, I find Dr. Schmidt did not address the wire which formed part of the basis for the allegation that Dr. Schmidts violated section 3.1(c)(1) of the Regulations and Standards (9 C.F.R. 3.1(c)(1)) on June 6, 2004. Therefore, I conclude Dr. Schmidts testimony is not sufficient to rebut the Administrators specific, detailed evidence of Dr. Schmidts
CX X(A)(3). CX 15 at 4. CX 48. Tr. 43. Tr. 258.
39 violation of section 3.1(c)(1) of the Regulations and Standards (9 C.F.R. 3.1(c)(1)) on June 6, 2004. The Administrator alleged that on June 6, 2004, Dr. Schmidt failed to maintain housing facilities so as to keep them free of trash and failed to provide an effective program for the control of insects and rodents in violation of section 3.11(c) and (d) of the Regulations and Standards (9 C.F.R. 3.11(c)-(d)).94 The June 6, 2004, inspection report states Dr. Schmidts animal holding area contained a dirty tarp next to 22 enclosures containing 17 adult dogs and 24 puppies; had spiders and spider webs on the walls, enclosures containing dogs, and the enclosure support framing; had flying insect nests on the north wall and on the enclosure support on the east wall; had an enclosure, which contained one animal, with dark dried matter on the front metal fencing panel; and had a vine growing in the framing of two adjoining enclosures housing two dogs. The inspection report states the number of spiders, the accumulation of spider webs, and the flying insect nests indicate a lack of an effective program for the control of insects and rodents.95 The Administrator introduced four pictures to support the allegations that Dr. Schmidt violated section 3.11(c) and (d) of the Regulations and Standards (9 C.F.R. 3.11(c)-(d)).96 Dr. Schmidt admitted at least some of the spider webs and an insect nest

Compl. X(A)(5), X(A)(6). CX 15 at 4. CX 44-CX 47.
40 were in his facility, but Dr. Schmidt testified that the spider webs and the insect nest posed no danger to the dogs. Dr. Schmidts testimony regarding the risk that his violations of section 3.11(c) and (d) of the Regulations and Standards (9 C.F.R. 3.11(c)-(d)) posed to dogs, does not rebut the Administrators evidence that Dr. Schmidt violated section 3.11(c) and (d) of the Regulations and Standards (9 C.F.R. 3.11(c)-(d)) on June 6, 2004. Therefore, I conclude Dr. Schmidts testimony is not sufficient to rebut the Administrators specific, detailed evidence of Dr. Schmidts violations of section 3.11(c) and (d) of the Regulations and Standards (9 C.F.R. 3.11(c)-(d)) on June 6, 2004. In conclusion, I find the Administrator proved by a preponderance of the evidence that Dr. Schmidt committed 30 of the 39 violations alleged in the Complaint. Findings of Fact 1. Dr. Schmidt is an individual doing business as Top of the Ozark Auction.
Dr. Schmidts address is 6740 Highway F, Hartsville, Missouri 65667.97 2. At all times material to this proceeding, Dr. Schmidt operated as a dealer,
as that term is defined in the Animal Welfare Act and the Regulations and Standards.98 3. At all times material to this proceeding, Dr. Schmidt held Animal Welfare
Act license number 43-B-0305.99
CX 1-CX 5. CX 1-CX 6; Tr. 290. CX 1-CX 6.
41 4. Dr. Schmidt conducts approximately six or seven auctions each year,
exclusive of full dispersal sales. Dr. Schmidt auctioned 890 dogs in 2000; 1,219 dogs in 2001; 1,342 dogs in 2002; 1,214 dogs in 2003; and 1,325 dogs in 2004. Dr. Schmidt earned commissions and fees of $15,500 in 2000; $22,520 in 2001; $20,130 in 2002; $24,423 in 2003; and $44,149 in 2004.100 5. The United States Department of Agriculture conducted approximately
15 to 20 inspections of Dr. Schmidts facility during the period from 1997 through November 2005. Sandra K. Meek, an experienced United States Department of Agriculture inspector, inspected Dr. Schmidts facility on April 22, 2001, October 14, 2001, November 4, 2001, March 17, 2002, October 13, 2002, March 23, 2003, November 2, 2003, March 21, 2004, June 6, 2004, and September 12, 2004. Jan R. Feldman, an experienced United States Department of Agriculture inspector, assisted Ms. Meek during the November 4, 2001, March 17, 2002, March 23, 2003, November 2, 2003, and June 6, 2004, inspections of Dr. Schmidts facility.101 6. On April 22, 2001, Dr. Schmidt failed to remove excreta from primary

had sufficient space to allow each dog to stand and sit in a comfortable position. Specifically, Dr. Schmidt had one enclosure, containing two adult dogs, that did not provide enough space for the dogs to hold their heads upright.114 (9 C.F.R. 2.100(a); 3.6(a)(2)(xi).) 19. On March 17, 2002, Dr. Schmidt failed to provide housing facilities that
were clean and good repair to facilitate husbandry practices. Specifically, the walls of Dr. Schmidts auction building directly adjacent to the animal enclosures had an accumulation of dirt, spider webs, and a few mud dauber nests; and six of Dr. Schmidts ground enclosures, containing nine adult dogs, had a metal fence post, a metal ladder, a
CX 10 at 1; Tr. 28-29. CX 10 at 1; Tr. 29-30. CX 10 at 1; Tr. 30.
46 fan, wooden planks, and large metal pans on top of the enclosures.115 (9 C.F.R. 2.100(a); 3.11(c).) 20. On October 13, 2002, Dr. Schmidt failed to provide primary enclosures for
dogs that were structurally sound and maintained in good repair so that they protect the dogs from injury and have no sharp points or edges that could injure the dogs. Specifically, Dr. Schmidt had four primary enclosures, containing a total of nine dogs, that had wires protruding into the enclosures.116 (9 C.F.R. 2.100(a); 3.6(a)(2)(i).) 21. On October 13, 2002, Dr. Schmidt failed to provide primary enclosures for
dogs that contained the dogs securely. Specifically, Dr. Schmidt had a ground enclosure, containing one dog, with a metal fence panel across the top with a 6-inch by 8-inch opening that allowed the dog to put its head through the opening. Dr. Schmidt also had a ground enclosure, containing one dog, that had a front panel that the dog had opened approximately 4 inches and a top panel with a 4-inch by 8-inch opening through which the dog could extend its head.117 (9 C.F.R. 2.100(a); 3.6(a)(2)(iii).) 22. On March 23, 2003, Dr. Schmidt failed to spot-clean and sanitize hard
surfaces with which dogs came in contact. Specifically, Dr. Schmidt had eight ground
CX 10 at 2; Tr. 31. CX 11 at 1; Tr. 33. CX 11 at 1; Tr. 34.
47 enclosures, containing a total of 13 adult dogs, topped with sheet metal on which was an accumulation of dirt and rodent droppings.118 (9 C.F.R. 2.100(a); 3.1(c)(3).) 23. On March 23, 2003, Dr. Schmidt failed to provide an effective program for

in contact with animals were free of jagged edges or sharp points. Specifically, Dr. Schmidt had two ground enclosures, each containing an animal, that had wire ties with sharp points protruding into the enclosures.126 (9 C.F.R. 2.100(a); 3.1(c)(1)(ii).) 31. On June 6, 2004, Dr. Schmidt failed to maintain housing facilities so as to
keep them free of trash. Specifically, Dr. Schmidts facility contained a dirty tarp, spiders, spider webs, dirt on the interior building wall surfaces and raised enclosure support framing, dark dried matter on the front metal fencing panel of a ground enclosure, and a vine growing in the framing of two adjoining enclosures.127 (9 C.F.R. 2.100(a); 3.11(c).)
CX 14 at 2, CX 37-CX 38; Tr. 38-39. CX 14 at 3, CX 41; Tr. 38-39. CX 15 at 4, CX 48; Tr. 41-42. CX 15 at 4.
50 32. On June 6, 2004, Dr. Schmidt failed to provide an effective program for the
control of insects and rodents. Specifically, an accumulation of spiders, spider webs, and flying insect nests indicated a lack of an effective program for the control of insects.128 (9 C.F.R. 2.100(a); 3.11(d).) 33. On September 12, 2004, Dr. Schmidt failed to ensure that primary surfaces
coming in contact with animals were free of jagged edges or sharp points. Specifically, Dr. Schmidt had one ground enclosure, containing three animals, that contained triangular-shaped material with rough edges and one ground enclosure, containing one animal, that had sharp wires protruding into the enclosure.129 (9 C.F.R. 2.100(a); 3.1(c)(1)(ii).) 34. On September 12, 2004, Dr. Schmidt failed to maintain housing facilities so
as to keep them free of trash. Specifically, Dr. Schmidts facility contained an accumulation of metal and hay that was not associated with the husbandry of the animals, dirt, dead insects, insect nests, and spider webs.130 (9 C.F.R. 2.100(a); 3.11(c).) 35. On September 12, 2004, Dr. Schmidt housed dogs in enclosures without
CX 15 at 4, CX 45-CX 47; Tr. 41-43. CX 16 at 2; Tr. 43-44. CX 16 at 1; Tr. 43-44.
51 one animal in an enclosure with no material to absorb and cover excreta.131 (9 C.F.R. 2.100(a); 3.14(a)(9).) Conclusions of Law 1. By reason of the Findings of Fact, Dr. Schmidt has willfully violated the

Regulations and Standards (9 C.F.R. 2.100(a)) by failing to provide primary enclosures that had sufficient space to allow each dog to stand and sit in a comfortable position, as required by section 3.6(a)(2)(xi) of the Regulations and Standards (9 C.F.R. 3.6(a)(2)(xi)). 10. On March 23, 2003, Dr. Schmidt willfully violated section 2.100(a) of the
Regulations and Standards (9 C.F.R. 2.100(a)) by failing to spot-clean and sanitize hard surfaces with which dogs came in contact, as required by section 3.1(c)(3) of the Regulations and Standards (9 C.F.R. 3.1(c)(3)). 11. On March 23, 2003, March 21, 2004, and June 6, 2004, Dr. Schmidt
willfully violated section 2.100(a) of the Regulations and Standards (9 C.F.R. 2.100(a)) by failing to provide an effective program for the control of insects and rodents, as required by section 3.11(d) of the Regulations and Standards (9 C.F.R. 3.11(d)). 12. On November 2, 2003, March 21, 2004, June 6, 2004, and September 12,
2004, Dr. Schmidt willfully violated section 2.100(a) of the Regulations and Standards (9 C.F.R. 2.100(a)) by failing to maintain housing facilities so as to keep them free of trash, as required by section 3.11(c) of the Regulations and Standards (9 C.F.R. 3.11(c)).
54 13. On November 2, 2003, and September 12, 2004, Dr. Schmidt willfully
violated section 2.100(a) of the Regulations and Standards (9 C.F.R. 2.100(a)) by housing dogs in enclosures without suitable absorbent material to absorb and cover excreta, as required by section 3.14(a)(9) of the Regulations and Standards (9 C.F.R. 3.14(a)(9)). 14. On November 2, 2003, and March 21, 2004, Dr. Schmidt willfully violated
section 2.100(a) of the Regulations and Standards (9 C.F.R. 2.100(a)) by failing to provide enclosures large enough to ensure each animal had sufficient space to stand and sit erect, as required by section 3.14(e)(1) of the Regulations and Standards (9 C.F.R. 3.14(e)(1)). 15. On October 14, 2001, Dr. Schmidt willfully violated section 2.100(a) of the
Regulations and Standards (9 C.F.R. 2.100(a)) by housing dogs in enclosures which had bare wire strand floors, as prohibited by section 3.6(a)(2)(xii) of the Regulations and Standards (9 C.F.R. 3.6(a)(2)(xii)). Sanctions The Animal Welfare Act requires, when considering the amount of a civil penalty, the Secretary of Agriculture to give due consideration to four factors: (1) the size of the business of the person involved in the violations; (2) the gravity of the violations; (3) the violators good faith; and (4) the violators history of previous violations.132

In re Alliance Airlines, 64 Agric. Dec. 1595, 1608 (2005); In re Mary Jean Williams (Decision as to Deborah Ann Milette), 64 Agric. Dec. 364, 390 (2005); In re Geo. A. Heimos Produce Co., 62 Agric. Dec. 763, 787 (2003), appeal dismissed, No. 03-4008 (8th Cir. Aug. 31, 2004); In re Excel Corp., 62 Agric. Dec. 196, 234 (2003), enforced as modified, 397 F.3d 1285 (10th Cir. 2005); In re Steven Bourk (Decision as to Steven Bourk and Carmella Bourk), 61 Agric. Dec. 25, 49 (2002); In re H.C. MacClaren, Inc., 60 Agric. Dec. 733, 762-63 (2001), affd, 342 F.3d 584 (6th Cir. 2003); In re Karl Mitchell, 60 Agric. Dec. 91, 130 (2001), affd, 42 F. Appx 991 (9th Cir. 2002); In re American Raisin Packers, Inc., 60 Agric. Dec. 165, 190 n.8 (2001), affd, 221 F. Supp.2d 1209 (E.D. Cal. 2002), affd, 66 F. Appx 706 (9th Cir. 2003); In re Fred Hodgins (continued.)
57 The Administrator seeks assessment of a $15,000 civil penalty against Dr. Schmidt and a cease and desist order.138 However, the Administrator bases his recommendation on the Administrators contention that Dr. Schmidt committed 36 violations of the Regulations and Standards and the Administrators belief that the Animal Welfare Act authorizes a maximum civil penalty of $3,750 for each of Dr. Schmidts violations of the Regulations and Standards.139 I find the Administrator proved by a preponderance of the evidence that Dr. Schmidt committed 30 violations of the Regulations and Standards and Dr. Schmidt could be assessed a maximum civil penalty of $2,750 for each of his
(.continued) (Decision and Order on Remand), 60 Agric. Dec. 73, 88 (2001), affd, 33 F. Appx 784 (6th Cir. 2002); In re Reginald Dwight Parr, 59 Agric. Dec. 601, 626 (2000), affd per curiam, 273 F.3d 1095 (5th Cir. 2001) (Table); In re Greenville Packing Co., 59 Agric. Dec. 194, 226-27 (2000), affd in part and transferred in part, No. 00-CV-1054 (N.D.N.Y. Sept. 4, 2001), appeal withdrawn, No. 01-6214 (2d Cir. Apr. 30, 2002); In re James E. Stephens, 58 Agric. Dec. 149, 182 (1999); In re Western Sierra Packers, Inc., 57 Agric. Dec. 1578, 1604 (1998); In re Colonial Produce Enterprises, Inc., 57 Agric. Dec. 1498, 1514 (1998); In re Judie Hansen, 57 Agric. Dec. 1072, 1141 (1998), appeal dismissed, 221 F.3d 1342 (Table), 2000 WL 1010575 (8th Cir. 2000) (per curiam); In re Richard Lawson, 57 Agric. Dec. 980, 1031-32 (1998), appeal dismissed, No. 99-1476 (4th Cir. June 18, 1999); In re Scamcorp, Inc., 57 Agric. Dec. 527, 574 (1998); In re Marilyn Shepherd, 57 Agric. Dec. 242, 283 (1998); In re Allreds Produce, 56 Agric. Dec. 1884, 1918-19 (1997), affd, 178 F.3d 743 (5th Cir.), cert. denied, 528 U.S. 1021 (1999); In re Kanowitz Fruit & Produce, Co. (Order Denying Pet. for Recons.), 56 Agric. Dec. 942, 953 (1997); In re William E. Hatcher, 41 Agric. Dec. 662, 669 (1982); In re Sol Salins, Inc., 37 Agric. Dec. 1699, 1735 (1978); In re Braxton McLinden Worsley, 33 Agric. Dec. 1547, 1568 (1974). Complainants Proposed Findings of Fact, Conclusions of Law, Order, and Brief in Support Thereof at 23.

Administrators Appeal Pet. at 2-5.
Complainants Proposed Findings of Fact, Conclusions of Law, Order, and Brief in Support Thereof at 8-9.
See note 19. See note 20.
60 evidence. Therefore, I agree with the Administrator that the ALJ erroneously dismissed the Complaint. Second, the Administrator contends the ALJ erroneously found Dr. Schmidt was the subject of selective enforcement.145 The conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation;146 however, sometimes enforcement of a valid law can be a means of violating constitutional rights by invidious discrimination and courts have, under the doctrine of selective enforcement, dismissed cases or taken other action if a defendant (Dr. Schmidt in this proceeding) proves that the prosecutor (the Administrator in this proceeding) singled out a defendant because of membership in a protected group or exercise of a constitutionally protected right.147 Dr. Schmidt bears the burden of proving that he is the target of selective enforcement. One claiming selective enforcement must demonstrate that the enforcement policy had a discriminatory effect and that it was motivated by a discriminatory purpose.148 In order to prove a selective enforcement claim, Dr. Schmidt must show one
Administrators Appeal Pet. at 5-8. Oyler v. Boles, 368 U.S. 448, 456 (1962); Snowden v. Hughes, 321 U.S. 1, 8
(1944). Futernick v. Sumpter Township, 78 F.3d 1051, 1056 (6th Cir.), cert. denied sub nom. Futernick v. Caterino, 519 U.S. 928 (1996).

148 147

United States v. Armstrong, 517 U.S. 456, 465 (1996); United States v. (continued.)
61 of two sets of circumstances. Dr. Schmidt must show: (1) membership in a protected group; (2) prosecution; (3) that others in a similar situation, not members of the protected group, would not be prosecuted; and (4) that the prosecution was initiated with discriminatory intent.149 Dr. Schmidt has not shown that he is a member of a protected group, that no disciplinary proceeding would be instituted against others in a similar situation that are not members of the protected group, or that the instant proceeding was initiated with discriminatory intent. In the alternative, Dr. Schmidt must show: (1) he exercised a protected right; (2) the Administrators stake in the exercise of that protected right; (3) the unreasonableness of the Administrators conduct; and (4) that this disciplinary proceeding was initiated with intent to punish Dr. Schmidt for exercise of the protected right.150 Dr. Schmidt has not shown any of these circumstances. Third, the Administrator contends the ALJ erroneously found Sandra Meek did not conduct the inspections of Dr. Schmidts facility in accordance with Animal and Plant Health Inspection Service procedures and guidelines.151

(.continued) Goodwin, 457 U.S. 368, 380 n.11 (1982). See Futernick v. Sumpter Township, 78 F.3d 1051, 1056 n.7 (6th Cir.), cert. denied sub nom. Futernick v. Caterino, 519 U.S. 928 (1996).

150 149

Id. Administrators Appeal Pet. at 8-12.
62 The ALJ found Sandra Meek conducted inspections of Dr. Schmidts facility more frequently than warranted under the Animal and Plant Health Inspection Services risk-based inspection system.152 Neither the Animal Welfare Act nor the Regulations and Standards limits the frequency with which the Secretary of Agriculture may conduct inspections. Section 16(a) of the Animal Welfare Act (7 U.S.C. 2146(a)) provides that the Secretary of Agriculture shall make such inspections as the Secretary deems necessary to determine whether any dealer subject to section 12 of the Animal Welfare Act (7 U.S.C. 2142) has violated or is violating the Animal Welfare Act or the Regulations and Standards. Section 16(a) of the Animal Welfare Act (7 U.S.C. 2146(a)) also provides, in order to make such inspections, the Secretary of Agriculture shall have, at all reasonable times, access to the place of business, the facilities, and the animals of the dealer being inspected. Similarly, section 2.126(a) of the Regulations and Standards (9 C.F.R. 2.126(a)) provides that each dealer shall, during business hours, allow Animal and Plant Health Inspection Service officials to enter the dealers place of business to inspect and photograph facilities, property, and animals and to document, by taking photographs and other means, the conditions and areas of noncompliance. The ALJ based his conclusion that Sandra Meek inspected Dr. Schmidts facility too frequently on the following statement in the Federal Register: APHIS uses a

Initial Decision at 4-9.

63 risk-based assessment to determine minimum inspection frequency. 153 I reject the ALJs conclusion that the Animal and Plant Health Inspection Services risk-based inspection system to determine minimum inspection frequency in any way limits the maximum frequency with which the Secretary of Agriculture may inspect a dealers place of business, facilities, and animals or in any way limits the Secretary of Agricultures authority to inspect a dealers place of business, facilities, and animals at all reasonable times. The ALJ also found Sandra Meek conducted her inspections of Dr. Schmidts facility without being accompanied by Dr. Schmidt or Dr. Schmidts designated representative, as required by the Animal and Plant Health Inspection Services risk-based inspection system. The record establishes Ms. Meek conducted the September 12, 2004, inspection accompanied by Dr. Schmidts designated representative, Ronnie Williams.154 Ms. Meek conducted the remaining nine inspections unaccompanied by Dr. Schmidt or Dr. Schmidts designated representative. Section 2.126(b) of the Regulations and Standards (9 C.F.R. 2.126(b)) was amended, effective August 13, 2004, to require dealers to make a responsible adult available to accompany Animal and Plant Health Inspection Service officials during the

69 Fed. Reg. 42,094 (July 14, 2004). CX 16 at 2.
64 inspection process.155 During the only inspection that occurred after the effective date of this amendment, the September 12, 2004, inspection, Dr. Schmidt made Ronnie Williams available to accompany Ms. Meek during the inspection process.156 The ALJ also found Sandra Meek failed to conduct post-inspection exit briefings with Dr. Schmidt or Dr. Schmidts designated representative in violation of the Animal Care Resource Guide, Dealer Inspection Guide.157 The Animal Care Resource Guide, Dealer Inspection Guide sets forth procedures for post-inspection exit briefings with the Animal Welfare Act licensee or the facility representative. Dr. Schmidt testified he learned of the results of the 10 inspections that are the subject of the instant proceeding when he received the inspection reports for the inspections in the mail between 5 and 8 days after the United States Department of Agriculture conducted the inspections.158 Moreover, I find nothing in the record establishing that Ms. Meek conducted post-inspection exit briefings with Dr. Schmidt or Dr. Schmidts designated representative. However, I do not find that Ms. Meek was required by the Animal Care Resource Guide, Dealer Inspection Guide to conduct post-inspection exit briefings with Dr. Schmidt or Dr. Schmidts designated representative. The Animal Care Resource
69 Fed. Reg. 42,089, 42,102 (July 14, 2004). CX 16 at 2. Initial Decision at 6-7. Tr. 227, 300.
65 Guide, Dealer Inspection Guide states that it is a useful tool to improve the quality and uniformity of inspections, documentation, and enforcement of the Animal Care Program and [i]t does not add to, delete from, or change current regulatory requirements or standards nor does it establish policy. 159 Moreover, I find Ms. Meeks failure to conduct post-inspection exit briefings with Dr. Schmidt or Dr. Schmidts designated representative has no bearing on whether Dr. Schmidt violated the Regulations and Standards, as alleged in the Complaint. Fourth, the Administrator contends the ALJ erroneously concluded Sandra Meeks findings in the ten inspection reports are exaggerated, biased and unsupported by sufficient credible objective evidence of such non-compliance as would warrant punitive action or imposition of a pecuniary penalty against [Dr. Schmidt] (Initial Decision at 13).160 In the absence of clear evidence to the contrary, public officers are presumed to have properly discharged their official duties.161 Animal and Plant Health Inspection

Animal Care Resource Guide, Dealer Inspection Guide at 1.2.1. Administrators Appeal Petition at 13-15.
See United States v. Mezzanatto, 513 U.S. 196, 210 (1995) (stating the potential for abuse of prosecutorial bargaining power is an insufficient basis for foreclosing plea negotiation; the great majority of prosecutors are faithful to their duties and absent clear evidence to the contrary, courts presume public officers properly discharge their duties); INS v. Miranda, 459 U.S. 14, 18 (1982) (per curiam) (stating, although the length of time to process the application is long, absent evidence to the contrary, the court cannot find that the delay was unwarranted); United States v. Chemical Foundation, Inc., 272 U.S. 1, (continued.)
(.continued) 14-15 (1926) (stating a presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume they have properly discharged their official duties); Sunday Lake Iron Co. v. Wakefield TP, 247 U.S. 350, 353 (1918) (stating the good faith of taxing officers and the validity of their actions are presumed; when assailed, the burden of proof is on the complaining party); Chaney v. United States, 406 F.2d 809, 813 (5th Cir.) (stating the presumption that the local selective service board considered the appellants request for reopening in accordance with 32 C.F.R. 1625.2 is a strong presumption that is only overcome by clear and convincing evidence), cert. denied, 396 U.S. 867 (1969); Lawson Milk Co. v. Freeman, 358 F.2d 647, 649 (6th Cir. 1966) (stating, without a showing that the action of the Secretary of Agriculture was arbitrary, his action is presumed to be valid); Donaldson v. United States, 264 F.2d 804, 807 (6th Cir. 1959) (stating the presumption of regularity supports official acts of public officers and in the absence of clear evidence to the contrary, courts presume they have properly discharged their duties); Panno v. United States, 203 F.2d 504, 509 (9th Cir. 1953) (stating a presumption of regularity attaches to official acts of the Secretary of Agriculture in the exercise of his congressionally delegated duties); Reines v. Woods, 192 F.2d 83, 85 (Emer. Ct. App. 1951) (stating the presumption of regularity, which attaches to official acts, can be overcome only by clear evidence to the contrary); NLRB v. Bibb Mfg. Co., 188 F.2d 825, 827 (5th Cir. 1951) (holding duly appointed police officers are presumed to discharge their duties lawfully and that presumption may only be overcome by clear and convincing evidence); Woods v. Tate, 171 F.2d 511, 513 (5th Cir. 1948) (concluding an order of the Acting Rent Director, Office of Price Administration, is presumably valid and genuine in the absence of proof or testimony to the contrary); Pasadena Research Laboratories, Inc. v. United States, 169 F.2d 375, 381-82 (9th Cir.) (stating the presumption of regularity applies to methods used by government chemists and analysts and to the care and absence of tampering on the part of postal employees), cert. denied, 335 U.S. 853 (1948); Laughlin v. Cummings, 105 F.2d 71, 73 (D.C. Cir. 1939) (stating there is a strong presumption that public officers exercise their duties in accordance with law); In re Frank Craig, __ Agric. Dec. ___, slip op. at 22-25 (Feb. 21, 2007) (stating the complainant is presumed to have instituted the proceeding to carry out the purposes of the Federal Meat Inspection Act and the Poultry Products Inspection Act and not to cover up slander, sexual harassment, bribery, and witness intimidation); In re PMD Produce Brokerage Corp. (Order Denying Pet. for Recons. and Pet. for New Hearing on Remand), 61 Agric. Dec. 389, 399 (2002) (stating an administrative law judge is presumed to have considered the record prior to the issuance of his or her decision); In re Lamers Dairy, Inc., 60 Agric. Dec. 406, 435 (2001) (continued.)

Initial Decision at 11. 5 U.S.C. 556 and 557. 5 U.S.C. 556(c). 7 C.F.R. 1.144(c).
76 administrative law judge to order an agency employee to take action unrelated to the proceeding before the administrative law judge. Moreover, the authority of administrative law judges employed by the United States Department of Agriculture is limited to that authority delegated by the Secretary of Agriculture, and a review of that delegation of authority reveals that the Secretary of Agriculture has not delegated United States Department of Agriculture administrative law judges any authority to direct the Administrator to take corrective action in future inspections conducted under the Animal Welfare Act.188 Finally, a review of the Animal Welfare Act and the Regulations and Standards reveals that neither the Animal Welfare Act nor the Regulations and Standards confers authority on administrative law judges to direct the Administrator to take corrective action with respect to inspections conducted under the Animal Welfare Act. Based on my review of the Administrative Procedure Act, the Rules of Practice, the Secretary of Agricultures delegations of authority to administrative law judges, the Animal Welfare Act, and the Regulations and Standards, I find the ALJ exceeded his authority by ordering the Administrator to take corrective action with respect to future inspections conducted under the Animal Welfare Act. Therefore, I do not adopt the ALJs order directing the Administrator to take corrective action with respect to future inspections conducted under the Animal Welfare Act.

7 C.F.R. 2.27(a)(1).

77 For the foregoing reasons, the following Order should be issued. ORDER 1. Dr. Schmidt, his agents and employees, successors and assigns, directly or
indirectly through any corporate or other device, shall cease and desist from violating the Regulations and Standards, and in particular shall cease and desist from: (a) of animals; (b) good repair; (c) Failing to ensure that primary surfaces coming in contact with Failing to provide housing facilities that are structurally sound and in Failing to remove excreta from primary enclosures to prevent soiling

United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor Washington, DC 20036-3457
SECRETARY OF LABOR, Complainant, v. RMS CONSTRUCTION, INC., Respondent. Appearances:

OSHRC DOCKET NO. 03-0479

Jeffrey S. Rogoff, Esquire U.S. Department of Labor New York, New York For the Complainant. Before: Chief Judge Irving Sommer
Rashid Bashir, President RMS Construction, Inc. Cliffwood Beach, New Jersey For the Respondent, pro se.
DECISION AND ORDER This proceeding is before the Occupational Safety and Health Review Commission (the Commission) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (the Act). The Occupational Safety and Health Administration (OSHA) conducted an inspection of Respondents construction workplace in North Bergen, New Jersey, on November 5, 2002. As a result of the inspection, on February 5, 2003, OSHA issued to Respondent a five-item serious citation and a one-item other citation alleging violations of various of OSHAs construction standards. Respondent contested all of the citation items and the penalties proposed for those items. A hearing in this matter was held on January 6 and 7, 2004, in New York, New York. Both parties have filed post-hearing submissions. The OSHA Inspection The work at the subject site was a road widening and bridge replacement project under the responsibility of the New Jersey Department of Transportation (DOT). The general contractor at the site was Anselmi & DeCicco (A&D), and Respondent, RMS Construction, Inc. (RMS), was
one of the subcontractors at the site; the job of RMS was to construct a block wall in the trench at the work site. On November 5, 2002, OSHA Compliance Officer (CO) David Katsock went to the site to follow up on a previous inspection that had involved a gas leak explosion. At the site, at about 9 a.m., the CO saw five to seven employees doing form work and tying rebar in a trench that was 100 feet long and 11 feet deep at its deepest end; one side wall was vertical, and the other had a slight slope with an angle of less than one-half to one.1 There was a trench box in the deep end of the trench; however, none of the workers was in the box, and one worker was standing between the vertical side of the trench and one of the trench box walls. The CO took some photos of the trench and the employees, who began exiting the trench, and the CO noted that there were no ladders or other means for them to use to exit the trench; he also noted that the rebar in the trench was not capped. CO Katsock then called his supervisor, who instructed him to conduct an inspection. (Tr. 11-16, 20-21, 24-27, 33-36, 44, 55, 93, 165-66, 169, 240-41; Exhs. C-3-5). CO Katsock held an opening conference with Joao Pinto and Gaspar Domingues, who said they were foremen with RMS; the CO also held an opening conference with Paul Natalizio, A&Ds field engineer and competent person at the site, and Jason Karamanol of Applegate Associates, A&Ds safety consultant at the site. Pinto and Domingues told the CO that they and the others had been in the trench since 7 a.m. that day.2 They also told the CO that while they all normally worked for Sharpe Concrete (Sharpe), another contractor, they had been working for RMS for about two weeks; they explained that Sharpe had had no work for them and that Sharpe and RMS had agreed that the employees would work for RMS at the subject site. The CO learned that A&D had dug the trench and that Natalizio had last inspected the trench five days before the COs arrival.3 The CO

CO Kutsock measured the trench dimensions with a steel tape measure during the course of his inspection; the CO testified that about 70 percent of the trench was 5 feet or more in depth and that the employees he saw were working in the area that was 9 feet deep. (Tr. 15; 21; 33). The employees had completed the work they were able to do inside the trench box the day before and had been working outside of the box since 7 a.m. that morning. (Tr. 43-44). A&D had worked in the trench prior to the arrival of RMS, and although Natalizio inspected the trench before A&D employees got in it he did not do so when RMS employees were in it; further, A&D had put the trench box in the trench for its own employees to use and had left it there as it was a rental and the rental time had not expired. (Tr. 173-74; 200-01). 2
further learned, from Pinto and Domingues, that none of the RMS employees had been trained in the hazards at the site, that RMS did not have a competent person at the site, and that RMS had not done any inspections of the job site or the trench. The CO was at the site for about four hours, and besides taking measurements of the trench and more photos, he also took a sample of the soil from the trench; the CO concluded from his inspection of the soil at the site that it was Type C, and the later testing of the sample at OSHAs lab in Salt Lake City verified the soil was Type C. (Tr. 16-22, 27, 36-41, 44-48, 51-52, 62-65, 77, 100-01, 156, 167, 172, 193, 237-41; Exhs. C-1, C-6-12, C-16, R-1). CO Katsock returned to the site two more times. He learned that A&D had abated the physical conditions within two days of his inspection; among other things, A&D had put two more trench boxes in the trench and had replaced Natalizio with a new competent person. He also learned, at some point before the citations were issued, that Applegate had trained the RMS employees. The CO held a closing conference with Rashid Bashir, RMSs president, and Sonny Chohan, RMSs project manager, on December 17, 2002, at the OSHA area office.4 The CO explained his inspection findings and the items for which RMS might be cited; he also explained the rights an employer has under the Act, including the right to contest any citation and the right to an informal settlement conference. The CO held a further closing conference with Bashir on the phone on January 30, 2003, at which time he provided the same information he had given on December 17. After the inspection, OSHA issued citations to A&D and RMS that, with one exception, alleged violations of the same standards.5 Each company had an informal settlement conference; however, while A&D settled its citations, RMS did not. (Tr. 16-19, 70-72, 114-18, 124-30, 141, 170, 250-52, 256-57, 318; Exhs. C-13, C-16, R-1). Respondents Complaints about the Pretrial Process RMS has several complaints about the pretrial process in this case. First, it urges that the denial of its request for E-Z Trial was unfair and prejudiced it because it is a small, minority contractor unable to afford an attorney. However, as the Secretary stated in her opposition, the

At some point after the inspection and before the closing conference, the CO had phoned Bashir to confirm that the individuals in the trench were employees of RMS and that Pinto and Domingues were foremen for RMS. (Tr. 18, 21, 33). Only RMS was cited for an alleged violation of 29 C.F.R. 1926.21(b)(2) for failing to train its employees in the hazards at the site. See Exhs. C-16, R-1. 3
proposed penalty in this matter was over $10,000.00, and cases assigned for E-Z trial are generally those with proposed penalties of not more than $10,000.00. See Commission Rule 202(a)(2). Further, although a case may be designated for E-Z Trial if the proposed penalty is more than $10,000.00 but less than $20,000.00, at the discretion of the Chief Judge, the Secretary also stated in her opposition that she desired to conduct full discovery, which clearly made this case inappropriate for E-Z Trial. See Commission Rule 202(b). Respondents request for E-Z Trial was properly denied.6 RMS also urges that it filed pre-hearing motions that were not acted upon and that the granting of the Secretarys motions for postponement of the hearing prejudiced it. I have reviewed the prehearing motions in this matter and am satisfied that I issued appropriate orders with respect to the prehearing submissions of both parties. I am further satisfied that the postponing of the hearing in this case did not prejudice RMS. Respondents claims are accordingly rejected. Finally, RMS urges that it was prejudiced by the Commissions failure to issue subpoenas to the individuals it desired to call as witnesses at the hearing and that it was further prejudiced by the denial of its request to submit a notarized statement of a particular individual it had wanted as a witness.7 However, as I advised Respondents representative at the hearing, it was his responsibility to ensure the appearance of witnesses and he had ample opportunity to seek advice on how to proceed in this regard. (Tr. 380-83). Moreover, the Commissions Rules make it clear it is the responsibility of the party desiring subpoenas to specifically apply for them from the Commission Judge; it is also clear that it is the responsibility of that party to serve the subpoenas. See Commission Rule 57. RMS did not file a request for subpoenas with my office and, according to its representative, made only one
I have noted the contention of RMS that the Secretarys opposition was purposefully misleading because, after E-Z Trial was denied, she amended the amount of the total proposed penalties to $8,725.00 in her complaint. I disagree with RMS that the Secretarys action in this regard was deceptive. Moreover, the request for E-Z Trial was properly denied in any case in view of the Secretarys desire to conduct discovery. RMS also complained about not being able to question a particular witness, Natalizio, who the Secretary had subpoenaed, after the Secretary decided to release the witness from the subpoena because his testimony would be duplicative. (Tr. 236-37, 380-81). 4

attempt to call my office for information about how to obtain subpoenas.8 RMS cannot now claim prejudice after its own failure to take the actions necessary to ensure that the witnesses it desired would appear at the hearing. Respondents claims of prejudice are rejected.9 Serious Citation 1 - Item 3 - 29 C.F.R. 1926.652(a)(1) This item alleges a violation of 29 C.F.R. 1926.652(a)(1), which provides as follows: Each employee in an excavation shall be protected from cave-ins by an adequate protective system designed in accordance with paragraph (b) [sloping and benching] or (c) [support systems, shield systems, and other protective systems]. except when: (i) Excavations are made entirely in stable rock; or (ii) Excavations are less than 5 feet (1.52 m) in depth and examination of the ground by a competent person provides no indication of a potential cave-in. To demonstrate a violation of a specific OSHA standard, the Secretary has the burden of proving by a preponderance of the evidence that (1) the cited standard applies, (2) there was a failure to comply with the standard, (3) employees had access to the violative condition, and (4) the employer either knew of the condition or could have known of it with the exercise of reasonable diligence. Astra Pharmaceutical Prod., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981). As set out above, CO Katsock testified that on November 5, 2002, he saw five to seven employees working in the trench at the site; the trench was 100 feet long and 11 feet deep at the deepest end, over 70 percent of the trench was 5 feet or more in depth, and the employees he saw were in the 9-foot-deep area of the trench. One side wall of the trench was vertical and the other had a slight slope with an angle of less than one-half to one, and while there was a trench box in the deeper end of the trench, no one was in the box; in addition, one employee was standing between the vertical wall of the trench and one of the trench box walls. The CO took photos of the trench and the
Respondents representative indicated at the hearing that he had made an attempt to talk to one of my law clerks about how witnesses are called. However, the law clerk was out that day, according to the representative, and there was no claim of any other such attempt. (Tr. 381). RMS states in its post-hearing filing that it received the Guide to Review Commission Procedures. The guide advises on page 1 that it is not a substitute for the Commissions Rules and that a copy of those rules may be had by calling or writing the Commission; the guide also advises on page 8 that proceeding under either E-Z Trial or conventional proceedings without a lawyer could put the employer at a disadvantage. RMS apparently did not request a copy of the Commission Rules or seek legal advice in this matter. 5

employees, who began to leave the trench, and he then spoke with Joao Pinto and Gaspar Domingues, who told him that they were foremen for RMS and that the other employees in the trench also worked for RMS. (Tr. 15-18, 21, 24-26, 33-36, 42-43, 93, 136-41; Exhs. C-3-5). CO Katsock further testified that there was no protection in the trench, other than the trench box, and that Pinto and Domingues told him the box had not been used since the day before; they also told him they began work in the trench at 7 a.m. that day. The CO stated that the trench was not in solid rock; in fact, he determined the soil to be Type C, and the soil sample he took from the site and later sent to OSHAs lab confirmed the soil was Type C. The CO also determined that the employees were exposed to the hazard of the trench walls collapsing, based on the lack of sloping or shoring, and that the heavy traffic in the area contributed to the hazard. (Tr. 27, 32-33, 43-49, 104-07; Exh. C-1). RMS questions the COs inspection, suggesting that his trench measurements and conclusions about the soil were wrong. I have reviewed the COs testimony and find nothing amiss in how he measured the trench and how he found the soil to be Type C. I also find nothing amiss in how he took his soil sample and sent it to OSHAs lab, and C-1 clearly shows the soil was Type C. (Tr. 21, 45-48, 104-07, 136-41). Further, I observed the COs demeanor on the stand and found him a sincere and credible witness. Finally, RMS offered nothing to rebut the Secretarys evidence about the trench dimensions and the soil, and an inspection report of RMS itself states that the soil at the site was Type C. See Exh. H to the Secretarys Second Request for Admissions, contained in Exh. C-2. RMS also questions the COs conclusion that the employees in the trench were those of RMS, and Sonny Chohan, RMSs project manager, testified at the hearing that Domingues was a foreman but that Pinto was not.10 (Tr. 303-04). However, the CO testified that Domingues and Pinto both told him that they were foremen and that both also told him that the employees in the trench worked for RMS; he further testified that during the first closing conference and in an earlier phone conversation, Rashid Bashir, RMSs president, verified what Domingues and Pinto said. (Tr. 18, 21, 89-91, 107, 156-57). The COs testimony that the employees in the trench worked for RMS is supported by the
Bashir and Chohan both referred to the foreman at the site as Carlos Domingues; however, Gaspar Domingues is the person shown to be the RMS foreman on RMSs list of telephone numbers for all individuals working at the site, and no one by the name of Carlos Domingues is shown on that document. See Exh. E to the Secretarys Second Request for Admissions, contained in Exh. C-2. 6

testimony of Jason Karamanol, A&Ds safety consultant, and Essam Saad, the acting superintendent for A&D at the time of the inspection. (Tr. 167-69, 172-74, 242, 262, 272). It is also supported by the fact that the CO recorded the names of the RMS employees at the site on his OSHA-1B forms and that those same names also appear in RMSs payroll records for that period of time. (Tr. 77-78; Exhs. C-16, R-1). See also Exh. F to the Secretarys Second Request for Admissions, contained in Exh. C-2. In light of the evidence of record, I conclude that the workers in the trench were RMS employees and that Domingues and Pinto were both foremen for RMS.11 Based on the foregoing, the Secretary has shown that the standard applied, that the terms of the standard were violated, and that employees were exposed to the violative condition. She has also shown the employer knowledge element, in that Domingues and Pinto had actual knowledge of the cited condition, and, because they were foremen, their knowledge is imputable to RMS. The Secretary has therefore established a prima facie violation of the cited standard. Respondents primary contention in this matter is that A&D, the general contractor, was responsible for the conditions at the job site, that it (RMS) was unfairly cited, and that OSHA citing both A&D and RMS for the same conditions constitutes double jeopardy. In support of its position, RMS notes that it worked under the direction of A&D and that A&D abated the cited conditions. RMS also notes the statement the CO wrote in his OSHA 1-A form for A&D (see R-1, p. 0000033): This general contractor was in charge of the work site and created the work conditions which lead [sic] to the violative conditions. The company had over[all] control of the employees of the subcontractor whose employees were exposed to the conditions. The competent person for the trenching operations was an employee of this company. As the Secretary points out, Commission precedent is well settled that each employer is responsible for the safety of its own employees. Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185, 1189 (No. 12775, 1975). Thus, on a multi-employer work site, OSHA may appropriately cite

In concluding that Domingues and Pinto were both foremen, I have noted that Bashir and Chohan stated that Pinto was not a foreman. (Tr. 91, 303-04). I have also noted that Exhibit E, cited in the previous footnote, shows only Domingues as a foreman. Regardless, I credit the COs testimony that Domingues and Pinto told him they were foremen and that Bashir verified this information. Further, even assuming arguendo that CO Katsock was mistaken about Pinto, his testimony indicates that he questioned Domingues and Pinto together and that they answered him as a duo. (Tr. 156). Thus, in those instances where the CO attributes a comment only to Pinto, it is reasonable to infer that Domingues was there and gave the same response. 7
a subcontractor whose employees are exposed to a hazard, even if the subcontractor did not create or control the hazardous condition. Anning-Johnson Co., 4 BNA OSHC 1193, 1197-99 (Nos. 3694 & 4409, 1976). OSHA may also appropriately cite the general contractor for the same condition, if it is one that the general contractor could reasonably have been expected to prevent or abate by reason of its supervisory capacity at the site; this is especially true, of course, if the general contractor created or controlled the hazardous condition. Grossman Steel, 4 BNA OSHC at 1188; Anning-Johnson, 4 BNA OSHC at 1199. The subcontractor in this situation may defend against the alleged violation by showing that it did everything reasonable to protect its employees. Rockwell Intl Corp., 17 BNA OSHC1801, 1808 (Nos. 93-45, 93-228, 93-233 & 93-234) (citation omitted). Here, RMS did not show that it did anything to protect its employees from the cited hazard. Chohan indicated that he had asked Paul Natalizio, A&Ds competent person, to slope the vertical wall on October 25, 2002, and that while Natalizio was unable to do anything about that wall he did widen the trench. (Tr. 300-02). However, Saad testified that he recalled nothing about RMS asking A&D to further slope the trench; he also testified that RMS could have told A&D that the trench was not safe and that RMS did not do so. (Tr. 212, 225). Moreover, while RMS claims that it refused to work in the trench on October 25, 2002, because of the trenchs unsafe condition, Saad and Chohan both testified that RMS did not work in the trench that day because the grade in the bottom of the trench was wrong and had to be corrected. (Tr. 175-76, 212-13). Based on the evidence of record, RMS was in violation of the cited standard. This item is therefore affirmed as a serious violation. A penalty of $2,500.00 has been proposed for this item. In assessing penalties, the Commission must give due consideration to the employers size, history and good faith, and to the gravity of the violation. The CO testified that the gravity of the violation was high, due to potential for the trench to collapse, and that the gravity-based penalty of $5,000.00 was reduced by 40 percent due to the size of the employers business and by 10 percent due to RMSs lack of OSHA history.12 The CO further testified that no reduction for good faith was given, based on OSHAs policy to not give any credit for good faith for high gravity violations, and that the total proposed penalty for this item was $2,500.00. (Tr. 49-51). I find the proposed penalty appropriate, and a penalty of $2,500.00 is assessed.

The record shows that although RMS had a total of 10 to 12 employees at the time of the inspection, it had had a maximum of 40 employees in the previous year. (Tr. 18, 147, 309). 8
Serious Citation 1 - Item 4 - 29 C.F.R. 1926.651(k)(1) This item alleges a violation of 29 C.F.R. 1926.651(k)(1), which states that: Daily inspections of excavations, the adjacent areas, and protective systems shall be made by a competent person for evidence of a situation that could result in possible cave-ins, indications of failure of protective systems, hazardous atmospheres, or other hazardous conditions. CO Katsock testified that he learned during his inspection that Natalizio, A&Ds competent person, had last inspected the trench five days before the COs arrival; he also testified that Pinto and Domingues told him that they were not competent persons and that Natalizio was RMSs competent person.13 The CO said that during the closing conference he held with RMS on December 17, 2002, Bashir also told him that Natalizio was RMSs competent person. (Tr. 51-52, 150-51). However, Saad and Karamanol both testified that Natalizio was not the competent person for RMS at the site. (Tr. 173, 246). Karamanol further testified that after the inspection, Bashir called him and they discussed RMSs responsibilities at the site; according to Karamanol, Bashir told him that he did not have a competent person at the site because he believed that that was A&Ds responsibility. 14 (Tr. 246-48). Chohan testified that he and Bashir were the competent persons for RMS and that he or Bashir inspected the site daily; he indicated that RMS was not responsible for inspecting the soil or the trench, which was up to DOT and A&D, and it was his belief that Natalizio or another A&D engineer inspected the trench every day.15 (Tr. 280, 289-90, 302, 310-11, 326-27). However, the COs testimony plainly establishes that A&D had only inspected the trench before its own employees worked in it, and Saad testified that DOTs inspections related solely to the job specifications and not to safety. (Tr. 168-69). Moreover, to the extent that RMS is claiming that Chohan and/or Bashir were competent persons within the meaning of the standard, such a claim is inconsistent with the evidence of record; it is also inconsistent with Chohans lack of knowledge about trenching and excavation requirements, which was

As set out in footnote 3, supra, while Natalizio had inspected the trench before A&D workers entered it he had not done so before the RMS workers got in it. (Tr. 173-74). Karamanol noted that among other things, he told Bashir about the OSHA trenching requirements and the multi-employer work site policy. (Tr. 247-49). Chohan further testified that Carlos Domingues was also a competent person for RMS at the site. (Tr. 326-26). 9
apparent from his responses to the questions the Secretarys counsel asked. (Tr. 327-29). Finally, RMS should have known what the standard required and that A&D was not inspecting the trench before RMS employees worked in it. Based on the record, RMS was in violation of the cited standard. This item is therefore affirmed as a serious violation. The Secretary has proposed a penalty of $2,500.00 for this item. The CO testified that the gravity of this violation was high, because the failure to have a competent person inspect the trench before employee entry could have resulted in a trench collapse and serious injury or death; he further testified that the same reductions were given in this item as in Item 3, supra. (Tr. 53-54). I find the proposed penalty appropriate, and a penalty of $2,500.00 is accordingly assessed. Serious Citation 1 - Item 5 - 29 C.F.R. 1926.701(b) This item alleges a violation of 29 C.F.R. 1926.701(b), which states that: All protruding reinforcing steel, onto and into which employees could fall, shall be guarded to eliminate the hazard of impalement. The CO testified that he saw numerous vertical reinforcing rods, or rebar, in the trench, that there were no protective caps on the rebar, and that the RMS employees were working within 3 feet of the rebar; he further testified that while the employees were not exposed to the hazard of impalement they could have sustained deep cuts or wounds if they had tripped and fallen against the rebar. The CO noted that the uncapped rebar was shown in several of his photos, that is, C-3-8 and C-10-11, and that when he asked about the condition, Pinto told him they had no caps. (Tr. 25-55-60). In addition to the foregoing, Saad testified that he had spoken to Chohan about the rebar being uncapped prior to the day of the inspection and that when Chohan asked him where he could get the caps, he (Saad) had referred Chohan to Natalizio for the name of a supplier of OSHA-approved caps. (Tr. 170-72, 220-22). Although Chohan denied that he had ever had a conversation with Saad about rebar caps, the testimony of Saad is credited over that of Chohan. (Tr. 287). The testimony and photos of the CO, together with the testimony of Saad, clearly demonstrate the alleged violation, and this item is affirmed as a serious violation. A penalty of $700.00 has been proposed for this item. The CO testified that the gravity of this item was moderate, resulting in a gravity-based penalty of $2,000.00; he also testified that adjustments of 40, 10 and 15 percent were made for size, history and good faith, respectively, resulting in a proposed penalty of $700.00. (Tr. 61-62). The proposed penalty is appropriate and is therefore assessed. 10

Serious Citation 1 - Items 1a and 1b - 29 C.F.R. 1926.20(b)(2) and 29 C.F.R. 1926.21(b)(2) Item 1a alleges a violation of 29 C.F.R. 1926.20(b)(2), which provides as follows: [F]requent and regular inspections of the job sites, materials, and equipment [shall] be made by competent persons designated by the employers. Item 1b alleges a violation of 29 C.F.R. 1926.21(b)(2), which provides as follows: The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury. As to Item 1a, the CO testified that when asked, Pinto told him that no inspections of the job site were done; the CO also testified that, based on what he learned during his inspection, Natalizio was the only person at the site competent to make such inspections.16 The CO said that the cited standard refers to general inspections of the work site and that such inspections would have discovered things like the uncapped rebar and the lack of ladders in the trench. (Tr. 62-64, 78). Serious Citation 1 - Item 2 - 29 C.F.R. 1926.651(c)(2) This item alleges a violation of 29 C.F.R. 1926.651(c)(2), which states that: A stairway, ladder, ramp or other safe means of egress shall be located in trench excavations that are 4 feet (1.22 m) or more in depth so as to require no more than 25 feet (7.62 m) of lateral travel for employees. The CO testified that there was no ladder, ramp or other safe means for the employees to use to exit the trench; he further testified that while the employees were able to climb out on the side of the trench that had a slight slope it was very difficult for them to do so and that one employee was on all fours as he climbed out. The CO said the hazard was that there was no safe and quick means of getting out if the trench had collapsed; he also said that he spoke to Pinto, Domingues and Bashir and that they all recognized the need for ladders in order to get out of trenches quickly. (Tr. 20, 27-28). Chohan testified that RMS and A&D both had ladders at the site, and he indicated that C-3 showed ramps and ties employees used for exiting the trench; he also testified that he had never seen employees exiting the trench on all fours and that they simply walked out upright. (Tr. 314-15, 333-34).

As noted in Item 4 above, Pinto and Domingues both told the CO that they were not competent persons and that Natalizio was the competent person for RMS; Bashir also told the CO, on December 17, 2002, that Natalizio was RMSs competent person. (Tr. 52, 63-64). 11
Upon reviewing C-3 and the other photos the CO took, I see no ladders, ramps or ties that the employees could have used to exit the trench. Moreover, while the two employees depicted in C-3 are in fact walking upright, I note the steepness of the wall and the fact that they have essentially reached the top of the trench, and I credit the testimony of the CO that he saw an employee exiting the trench on all fours. Finally, the COs testimony is supported by Saad and Karamanol; Saad and Karamanol both testified that they recalled no ladders in the trench that day and that they saw the employees walking or climbing up the sloped wall to get out of the trench. (Tr. 172, 244, 259-60). The Secretary has established the alleged violation, and this item is affirmed as a serious violation. The Secretary has proposed a penalty of $525.00 for this item. The CO testified that the gravity of this violation was low, resulting in a gravity-based penalty of $1,500.00, and that the same reductions were given for this item as those set out in Item 5, supra, resulting in a proposed penalty of $525.00. (Tr. 30-31). I find the proposed penalty appropriate, and it is therefore assessed. Other Citation 2 - Item 2 - 29 C.F.R. 1926.51(c)(2) This item alleges a violation of 29 C.F.R. 1926.51(c)(2), which requires that: Under temporary field conditions, provisions shall be made to assure not less than one toilet facility is available. The CO testified that he saw no portable toilet facilities at the site and that when he asked where such facilities were, Pinto said he had no idea. The CO also testified that there was no evidence that any arrangements had been made for RMS employees to use toilet facilities that were near the site. The CO noted that C-7, one of his photos, showed two Porta-Johns that A&D had had delivered to the site after the CO brought up the matter. (Tr. 68-69). Saad confirmed that there were no toilet facilities at the site before the inspection and that, to his knowledge, RMS had made no arrangements for employees to use toilet facilities elsewhere. (Tr. 176). Chohan testified, and the contract between RMS and A&D states, that it was the responsibility of A&D to provide toilet facilities at the site. (Tr. 292). See also Exh. C (p. 3, 7.7) to the Secretarys Second Request for Admissions, contained in Exh. C-2. However, as set out in the discussion relating to Item 3, supra, each employer is responsible for the health and safety of its own employees, and there is no evidence in the record that RMS either asked A&D to fulfill its obligation in regard to toilet facilities or made any arrangements for employees to use nearby toilet facilities. This item is affirmed as an other-than-serious violation. No penalty was proposed for this item, and none is assessed. 12

Conclusions of Law 1. Respondent RMS was in serious violation of 29 C.F.R. 1926.20(b)(2) and 29 C.F.R. 1926.21(b)(2), as alleged in Items 1a and 1b of Serious Citation 1. 2. Respondent RMS was in serious violation of 29 C.F.R. 1926.651(c)(2), as alleged in Item 2 of Serious Citation 1. 3. Respondent RMS was in serious violation of 29 C.F.R. 1926.652(a)(1), as alleged in Item 3 of Serious Citation 1. 4. Respondent RMS was in serious violation of 29 C.F.R. 1926.651(k)(1), as alleged in Item 4 of Serious Citation 1. 5. Respondent RMS was in serious violation of 29 C.F.R. 1926.701(b), as alleged in Item 5 of Serious Citation 1. 6. Respondent RMS was in other violation of 29 C.F.R. 1926.51(c)(2), as alleged in Item 1 of Other Citation 2. Order Based upon the foregoing Findings of Fact and Conclusions of Law, it is ordered that: 1. Item 1 of Serious Citation 1 is AFFIRMED, and a penalty of $2,500.00 is assessed. 2. Item 2 of Serious Citation 1 is AFFIRMED, and a penalty of $525.00 is assessed. 3. Item 3 of Serious Citation 1 is AFFIRMED, and a penalty of $2,500.00 is assessed. 4. Item 4 of Serious Citation 1 is AFFIRMED, and a penalty of $2,500.00 is assessed. 5. Item 5 of Serious Citation 1 is AFFIRMED, and a penalty of $700.00 is assessed. 6. Item 1 of Other Citation 2 is AFFIRMED, and no penalty is assessed.
/s/ Irving Sommer Chief Judge Dated: May 10, 2004 Washington, D.C.