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PR-2022-E7721-0047-ADOSH · Arizona Division of Occupational Safety and Health · 2023-11-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

Complainant,

CMR Construction, LLC

Respondent.

No. PR-2022-E7721-0047

FINDINGS & ORDER APPROVING SETTLEMENT AGREEMENT

On December 9, 2022, the Division of Occupational Safety and Health of the Industrial Commission of Arizona (“Complainant” or “Division”) issued a Citation and Notification of Penalty against CMR Construction, Inc. (“CMR” or “Respondent”).

Citation 1, Item 1 was issued for an alleged Repeat-Serious violation of 29 C.F.R. § 1926.501(b)(1). Citation 1, Item 1 had an assessed penalty of $4,000.00.

Citation 1, Item 2b was issued for an alleged Serious violation of 29 C.F.R. § 1926.501(b)(4)(ii). Citation 1, Item 2b had an assessed penalty of $0.00.

Citation 2, Item 2a was issued for an alleged Serious violation of 29 C.F.R. § 1926.501(b)(4)(i). Citation 2, Item 2a had an assessed penalty of $2,000.00.

Citation 3, Item 1 was issued for an alleged Non Serious violation of 29 C.F.R. § 1926.1052(c)(1)(i). Citation 3, Item 1 had an assessed penalty of $0.00.

Citation 3, Item 2 was issued for an alleged Non Serious violation of 29 C.F.R. § 1926.1052(b)(4). Citation 3, Item 2 had an assessed penalty of $0.00.

WHEREAS, the Respondent filed a timely notice of contest with respect to the above-mentioned Citation and Notification of Penalty, and the Division and the Respondent (the “parties”) now desire to settle this matter without the necessity and uncertainty of a formal hearing. The parties agree that it is in their respective best interests to settle this matter without going through the procedures, time and expense associated with litigating the matter.

The undersigned, having fully considered the file, records and all other relevant matters, now enters Findings and Conclusions as follows:

FINDINGS AND CONCLUSIONS

The parties have filed a Settlement Agreement resolving all issues and disputes involved in this matter. The Settlement Agreement fully appears to be consistent with the provisions and objectives of the Arizona Occupational Safety and Health Act, A.A.C. R20-5-827. Accordingly, the Settlement Agreement is by this reference adopted herein and made a part hereof.

The terms of the Settlement Agreement provide Citation 1, Item 1, shall be reclassified from Repeat Serious to Serious. The penalty for Citation 1, Item 1, shall be reduced from $4,000.00 to $3,000.00.

The terms of the Settlement Agreement provide Citation 1, Item 2b, shall be reclassified from Serious to Non-Serious with no penalty.

The terms of the Settlement Agreement provide Citation 2, Item 2a, shall be reclassified from Serious to Non-Serious. The penalty for Citation 2, Item 2a, shall be reduced from $2,000 to $1,000.

The terms of the Settlement Agreement provide Citation 3, Item 1, shall be deleted in its entirety.

The terms of the Settlement Agreement provide Citation 3, Item 2, shall remain as issued.

The terms of the Settlement Agreement provide that in exchange for the reclassification and/or deletion of citations, Respondent agrees to the following:

Within fourteen (14) days after the date the OAH approves the Findings and Order Confirming Settlement Agreement (“Order”), Respondent agrees to deliver a bank check or money order in the amount of $4,000.00 made out to “Industrial Commission of Arizona” and mail or deliver the check to Scott Cooley, Legal Division, Industrial Commission of Arizona, 800 West Washington Street, Suite 303, Phoenix, Arizona 85007.

Within 90 days after the date the OAH approves the Order, Respondent agrees to provide employees with safety training on fall protection and ladder safety.

Within 90 days after the date the OAH approves the Order, Respondent agrees to engage a third-party safety consultant to conduct safety inspections and training.

Within 120 days after the date the OAH approves the Order, Respondent agrees to submit to the Division documentation of the fall protection and ladder training and other measures the Company has taken since December 2022 to enhance safety.

The Agreement shall not be deemed as an admission of any matter, and Respondent does not admit that it violated the standards cited.

ORDER

IT IS HEREBY ORDERED that, Item 1 Citation 1, Item 1, shall be reclassified from Repeat Serious to Serious. The penalty for Citation 1, Item 1, shall be reduced from $4,000.00 to $3,000.00.

Citation 1, Item 2b, shall be reclassified from Serious to Non-Serious with no penalty.

Citation 2, Item 2a, shall be reclassified from Serious to Non-Serious. The penalty for Citation 2, Item 2a, shall be reduced from $2,000.00 to $1,000.00.

Citation 3, Item 1, shall be deleted in its entirety.

Citation 3, Item 2, shall remain as issued.

IT IS FURTHER ORDERED each party is to bear its own attorney's fees and costs.

NOTICE

Any party dissatisfied with this Decision may request review by the Occupational Safety and Health Review Board by filing a written request with the Administrative Law Judge Division of the Industrial Commission within fifteen (15) days after the mailing of the Decision as provided by Arizona Revised Statutes §§ 23-421(C) and 23-423(A) and (B). If no such request is made within the time provided, the Decision becomes final.

By: /s/ Hon. Jenna Clark

Administrative Law Judge

DATED AND MAILED IN PHOENIX, ARIZONA, THIS 8th DAY OF NOVEMBER, 2023.

BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS

CERTIFICATE OF SERVICE

The attached Findings and 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 November 08, 2023:

Mark Norton, Director

Arizona Division of Occupational Safety and Health

800 W. Washington St.

Phoenix, AZ, 85007

[email redacted]

Julie Pace, Esq.

David Selden, Esq.

CMR Construction, LLC, Respondent

PSGM Law, Counsel for Respondent

7901 N. 16th St., Ste. 200

Phoenix, AZ 85020

[email redacted]

Scott J. Cooley, Esq.

Legal Division, Attorney for the Industrial Commission of Arizona

Industrial Commission of Arizona

800 W. Washington St., Ste. 303

Phoenix, AZ 85007

[email redacted]

By: OAH Staff