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17F-1523782-ADOSH · Arizona Division of Occupational Safety and Health · 2021-11-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

DIVISION OF OCCUPATIONAL SAFETY AND HEALTH OF THE INDUSTRIAL COMMISSION OF ARIZONA,

Complainant,

v.

KAPP-CON INCORPORATED,

Respondent.

No.: 17F-1523782-ADOSH

FINDINGS & ORDER APPROVING SETTLEMENT AGREEMENT

On April 7, 2021, the Division of Occupational Safety and Health of the Industrial Commission of Arizona (“Complainant” or “Division”) conducted an inspection of a Kapp-con Incorporated, (“Respondent”) worksite located at 130 W. Congress St., Tucson, AZ 85701, designated as Inspection No. E7721-1523782, which resulted in the issuance of a Citation and Notification of Penalty to Respondent on July 9, 2021.

WHEREAS, Respondent timely filed a Notice of Contest with respect to the above-mentioned citation, and the Division and Respondent now desire to settle this matter without the necessity of a formal hearing, both parties agree that it is in their respective best interests to settle this matter without going through the procedures, time and expense associated with litigation and a formal hearing.

FINDINGS AND CONCLUSIONS

NOW, THEREFORE, the parties agree to settle this matter as follows:

On October 29, 2021 the parties filed a Settlement Agreement resolving all issues and disputes involved in this matter. The Settlement Agreement appears to be consistent with the provisions and objectives of the Arizona Occupational Safety and Health Act. Accordingly, pursuant to A.A.C. R20-5-827 of the Occupational Safety and Health Rules of Procedure Before the Industrial Commission of Arizona, the Settlement Agreement is incorporated by this reference, adopted, and made a part of this order.

The Settlement Agreement is in furtherance of the purpose of the Arizona Occupational Safety and Health Act of 1972 and represents a full and final determination of this matter.

ORDER

IT IS HEREBY ORDERED that:

For Citation 1 Item 1, the violation is reclassified from Serious to Non-serious and the assessed penalty is reduced from $1,000.00 to 0.00.

IT IS FURTHER ORDERED that:

In exchange for the reclassification and reduction in assessed penalty, the Respondent agrees to one consultation visit at a site of the respondent's choosing, scheduled within 90 days after issuance of this order approving the Settlement Agreement.

IT IS FURTHER ORDERED that the legal effect of A.A.C. R20-5-817 is waived.

NOTICE

Any party dissatisfied with this Decision may request review to the Review Board by filing a written request with the Administrative Law Judge Division of the Industrial Commission within fifteen (15) days after service of this Decision as provided by Arizona Revised Statutes, §§ 23-421(C) and 23-422(A) and (B). If no such request is made within the time provided, this Decision becomes final.

By: /s/ Tammy L. Eigenheer

The Honorable Tammy L. Eigenheer

Administrative Law Judge

DATED IN PHOENIX, ARIZONA, THIS 1st day of November 2021.

BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS

CERTIFICATE OF SERVICE

The attached FINDINGS & ORDER APPROVING SETTLEMENT AGREEMENT was placed in, and is now a part of, the Office of Administrative Hearings file and was served on the parties named below via mail/email/facsimile on 1st day of November 2021:

Jessie Atencio, Director

Industrial Commission of Arizona

Division of Occupational Safety and Health

800 W. Washington Street

Phoenix, AZ 86007

ADOSH Director

Scott Cooley

Legal Division

Industrial Commission of Arizona

800 W. Washington Street, Suite 303

Phoenix, AZ 85007

[email redacted]

Attorney for ADOSH

Nathan Kappler, President

Kapp-con Incorporated

4847 North Daisy Down Place

Tucson, AZ 85705

[email redacted]

Respondent

By: c. serrano