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RF-2023-MB431-0019-ADOSH · Arizona Division of Occupational Safety and Health · 2024-09-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

Complainant

v.

51ST AVENUE CARWASH LP DBA RACEWAY CAR WASH

Respondent

No. RF-2023-MB431-0019-ADOSH

FINDINGS & ORDER APPROVING SETTLEMENT AGREEMENT

On September 12, 2023, the Division of Occupational Safety and Health of the Industrial Commission of Arizona (“Complainant” or “Division”) conducted an inspection of Respondent 51st Avenue Carwash LP DBA Raceway Car Wash’s (“Respondent”) worksite located at 1025 N. 51st Avenue, Phoenix, Arizona 85043, Inspection No. RF-2023-MB431-0019 resulting in the issuance of a Citation and Notification of Penalty to Respondent on January 12, 2024.

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 litigating through a formal hearing.

FINDINGS AND CONCLUSIONS

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

On August 30, 2024, 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, said Settlement Agreement is by this reference adopted herein and made a part hereof.

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 Citation No. 1, Item No. 1 shall be reclassified from “Serious” to “Non Serious,” and the corresponding penalty in the amount of $2,679.00 will remain the same.

IT IS FURTHER ORDERED that Citation No. 1, Item No. 2 shall be reclassified from “Serious” to “Non Serious,” and the corresponding penalty in the amount of $2,679.00 will remain the same.

IT IS FURTHER ORDERED that Citation No. 1, Item No. 3 shall be deleted in its entirety.

IT IS FURTHER ORDERED that Citation No. 1, Item No. 4a shall be deleted in its entirety.

IT IS FURTHER ORDERED that Citation No. 1, Item No. 4b shall be deleted in its entirety.

IT IS FURTHER ORDERED that Citation No. 1, Item No. 4c shall remain as written.

IT IS FURTHER ORDERED that Citation No. 2, Item No. 1 shall be deleted in its entirety.

I T IS FURTHER ORDERED that Citation No. 2, Item No. 2 shall remain as written.

IT IS FURTHER ORDERED that Citation No. 2, Item No. 3 shall remain as written.

IT IS FURTHER ORDERED that Respondent shall implement the following policies within thirty (30) days of this signed Findings & Order Approving Settlement Agreement:

(a) Lock Out/Tag Out Program for the wash tunnels; and

(b) Heat Illness Prevention Plan.

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

IT IS FURTHER ORDERED that Respondent shall pay the sum of $5,358.00 to Complainant and said payment must be received by Complainant with fourteen (14) days from the date of mailing of this Findings & Order Approving Settlement Agreement.

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 23-423 A and B. If no such request is made within the time provided, this Decision becomes final.

By: Tammy L. Eigenheer

The Honorable Tammy L. Eigenheer

Administrative Law Judge

DATED IN PHOENIX, ARIZONA, THIS 3rd DAY OF SEPTEMBER, 2024.

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 September 3, 2024:

Brian A. Hudson, Director

Industrial Commission of Arizona

Division of Occupational Safety and Health

800 W. Washington Street, Suite 203

Phoenix, AZ 85007

[email redacted]

Robert Irani, Esq.

Legal Division

Industrial Commission of Arizona

[email redacted]

Charles P. Keller, Esq.

Snell & Wilmer L.L.P.

[email redacted]

By: OAH Staff