Kiva Hotel & Convention Center (ALJ decision, March 3, 2005)

Plain-English summary

Kiva Hotel & Convention Center contested citations in two consolidated cases and initially participated through an attorney. A planned settlement was never filed, the business closed, and the attorney could no longer locate the owner. The company did not answer requests for admissions, so the alleged jurisdictional facts and violation elements were deemed admitted. It also did not respond to the Secretary's summary-judgment motion. The judge found that the respondent had abandoned its defenses, vacated both notices of contest, and affirmed the citations. Penalties totaling $13,500 were assessed.

Decision snapshot

• Cited standard(s): No specific OSHA standard is identified in the decision.
• Outcome: Eleven citation items across two dockets were affirmed, with $13,500 in total penalties.
• Key point: Unanswered requests for admissions and failure to participate can establish the alleged violations and end a contested case against the employer.

Full text (OSHRC public release)

Kiva Hotel & Convention Center, Docket Nos. 03-2333 & 03-2334

SECRETARY OF LABOR,  

Complainant,  

v.  

KIVA HOTEL & CONVENTION CENTER,

and its successors,  

Respondent.  

OSHRC

Docket Nos.

03-2333

03-2334

DECISION AND ORDER

This proceeding arises under the Occupational Safety and Health Act of 1970 (19 U.S.C. Section 651-678; hereinafter called the "Act.") Pursuant to an inspection of Respondent's worksite on July 31, 2003, two citations were issued to Respondent (Docket Nos. 03-2333 and 03-2334) on November 26, 2003. These matters are consolidated for purposes of decision. A timely notice of contest was filed by Respondent as to both cases and, upon the filing of Complaints by the Secretary, answers to the Complaints were timely filed by an attorney representing Respondent. The answer to both actions generally denies the allegations contained in the Complaints and further states that Respondent filed for Chapter 11 (bankruptcy) proceedings, is "not in good financial shape" and claims "pauper status." The attorney states that she is appearing on behalf of Respondent pro bono.

By order dated March 25, 2004, these matters were set for trial to commence on June 9, 2004. However, based upon representation by Complainant, the hearing was cancelled by order dated May 24,

2004 on the ground that the matter had been settled. The parties were directed to submit the settlement documents no later than June 23, 2004. That period was extended until July 9, 2004. No settlement agreement was filed by the parties.

On September 28, 2004, a telephone conference was held between the undersigned and the parties at which time it was revealed that Respondent is no longer in business and the principal owner cannot be located by Respondent's attorney. The attorney stated that she believed Respondent's owner had returned to India. She further stated that Respondent's owner was a friend and she filed answers on his behalf as a favor. Although Respondent's attorney has not filed a motion to withdraw from this matter, she stated that she would no longer represent Respondent because she was unable to contact her client.

By order dated September 30, 2004, Complainant was directed to file an appropriate motion to conclude this matter. On October 20, 2004, Complainant filed a motion for summary judgment in both cases. The motion for judgment in Complainant's favor is based upon Respondent's failure to file responses to requests for admissions served upon Respondent's representative. Those requests ask Respondent to admit each element of each alleged violation as well as the jurisdictional basis for the action. No responses to the request for admissions were filed by Respondent. Thus, pursuant to Rule 36, Fed. R. Civ. P. and Commission Rule 54, the requests are deemed admitted by Respondent.

As of this date, no response to Complainant's motion for summary judgment has been received by the undersigned. Thus, it is clear that Respondent and its representative have abandoned any and all defenses to the citations. In view of Respondent's refusal to participate in the litigation of these matters, the notice of contest dated December 17, 2003 as to both citations is vacated and the citations and proposed penalties are AFFIRMED.

ORDER

(a) As to Docket No. 03-2333:

1. Serious citation No. 1, items 1 through 5 is affirmed.

2. The proposed penalty in the total amount of $6,000 is assessed for the violations.

(a) As to Docket No. 03-2334:

1. Serious citation 1, items 1 through 5 is AFFIRMED.

2. Other citation 2, item 1 is AFFIRMED.

3. The proposed penalty in the total amount of $7,500 is assessed for the violations.

_/s/____

Robert A. Yetman

Judge, OSHRC

Dated: January 24, 2005