VSH Restaurant Corporation, d/b/a Vestal Steakhouse & Seafood Grill

Plain-English summary

Local fire and building officials inspected Vestal Steakhouse & Seafood Grill and gave the restaurant ten days to correct numerous electrical and fire-code conditions. The restaurant began repairs and had completed most listed items when OSHA inspected five days before the local deadline, using the local referral to focus on many of the same conditions. Administrative Law Judge Barbara L. Hassenfeld-Rutberg held that OSHA could inspect in response to a local referral but that the timing and manner were unreasonable because the employer was already making a good-faith effort within a legally stated abatement period. She suppressed all evidence obtained from the OSHA inspection. With no remaining proof, she recorded the Secretary's withdrawal of one item and vacated all other electrical and hazard-communication items and proposed penalties.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.157(g)(1), 1910.303(b)(2), 1910.303(g)(2)(i), 1910.303(f)(4), 1910.305(a)(1)(i), 1910.305(a)(2)(i), 1910.305(a)(2)(iii)(f), 1910.305(a)(2)(iii)(g), 1910.305(b)(1), 1910.1200(e)(1), 1910.1200(g)(1), and 1910.1200(h). One additional electrical standard is illegible in the extracted release.
• Outcome: Vacated. One item was withdrawn, and the remaining citation items and proposed penalties were vacated after the inspection evidence was suppressed.
• Key point: The judge treated OSHA's duplicative intervention during an active local abatement period as an unreasonable inspection and excluded the resulting evidence.

Full text (OSHRC public release)

                           UNITED STATES OF AMERICA
OCCUPATIONAL          SAFETY AND HEALTH REVIEW COMMISSION
                            One Lafayette Centfe
                      1120 20th Street, N.W. - 9th Floor
                         Washington, DC 2003643419

SECRETARY OF LABOR
Complainant,
V. OSHRC DOCKET
NO. 93-1357
VESTAL STEAKHOUSE & SEAFOOD GRILL
Respondent.

                   NOTICE OF DOCKETING
            OF ADMINISTRATIVE LAW JUDGE’S DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on April 19, 1995. The decision of the Judge
will become a final order of the Commission on May 19, 1995 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secretary on or before
May 9, 198 5 in order to permit sufficient time for its review. See
Commission Rule 91, 29 C.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning: mrties shall also mail a CODV to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COM&EIS&ION

Date: April 19, 1995
DOCKET NO. 93-1357
NOTICE IS GIVEN TO THE FOLLOWING:

Patricia Rodenhausen, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U.S. DOL
201 Varick, Room 707
New York, NY 10014

Guido Iacovelli, Owner
Thomas Panzella, Director
Vestal Steakhouse & Seafood Grill
3401 Vestal Parkway East
Vestal, NY 13850

Barbara Hassenfeld-Rutberg
Administrative Law Jud e
Occupational Safety an t Health
Review Commission
McCormack Post Office and
Courthouse, Room 420
Boston, MA 02109 4501

00106990716:02
UNITED STATESOF AMERICA
OCCUPATIONAL SAFEPI’ AND HEALTH REVIEW COMMISSION
JOHN W. McCORMACK POST OFFICE AND COURTHOUSE
ROOM 420
BOSTON, hdASSACHUSETTS 02109-4501

PHONE: FAX:
COM (617) 223-9746 COM (617) 22m
FE (617) 223-9746 FE (617) 2234X4

SECRETARY OF LABOR, ..

                          Complainant                  ..     OSHRC
                                                      ..      DOCKET NO. 934357

                                                      .
                  V.                                  .

                                                      .

VSH RESTAURANT CORP. d/b/a .
VESTAL STEAKHOUSE & SEAFOOD GRILL, I

                          Respondent.                 ..

                                                                                              .-

APPearanceS:

        Micheli, Esq.
     LAGS                                                     Guido Iacovelli, Own-
          OfTice of the Solicitor                             Thkimas Paz&la, Directs
          U.S. Department of Labor                                    vestals-&seafoodGlill
                   For Complainant                                    Ve-4~
                                                                              FdCesponbt

Before: Administrative Law Judge Barbara L. Hassetield-Rutberg

                                        DECISION AND ORDEl&
     This proceedhg arises under $10(c) of the Occupational Safety and Ekalth Act of 1970,29

U.S.C. 0 65 1, ef seq., (“the Act”), to review citations issued by the Secretary pursuant to 6 9(a) of
the Act and a proposed assessment of pen&y thereon issued pursuant to 0 10(c) of the Act.
On April 2,1993, VSH Restaurant Corporation, d/b/a, Vestal Steakhowe & Seafood &ill
(TkstaP’) was issued a se&us citation alleging ten violations of various ekctrical standards, as well
as three hazardous communication violations.’ The citation stems from an Occupational Safii and
Health Adninhndon ~‘OSHA”‘)impection of Vestal’s reSfaurast located in Vestal, New York (Tr.

     *h the absence of 8 format motion fk0.mthe Secretary,the name of the respondent has been amended

to canspond with the name indicated in VestaI’spretrial exchange (Tr. 168-69,270-71). Also, the fkst item
of the citation has been withdrawn by the Secretary(Tr. 36-37).
18; Exhibit R-IO). According to Michael Casler, the OSHA compliance officer assigned to inspect
the fMity, the inspection was conducted on Februzuy 9, 1993, in response to a referral that OSH,A
received at the end of January from Wfi= V&order, a fire code inspector for the Town of Vestal
(“the Town”) (Tr. 17.19,29, 97; Exhibit R-10).* The record indicates that VanGorder and the
Town’s building inspector, James Majka, had inspected the restaurant on December 29,1992, and
identified numerous violations of the New York State Uniform Fire Prevention and Building Code,
including several electrical i&actions (Tr. 170971,272,274,278; Exhibit C-15).
The attachment to VanGorder’s December 29, 1992 letter to Thomas Panzella, Vestal’s
Director of Operations and the restaurant’s supervisor, informing him of the Town’s inspection
results, indicates that due to the large number of electrical violations discovered, the New York i
Board of Fire Underwriters (“the Board”) was required to conduct an electrical survey of Vestal’s.
facility (Tr. 169,278; Exhibit C-15). The survey was performed on January 26,1993, and a report
detailing the Board’s findings was sent to Vestal on February 1, 1993 (Tr. 186~87,189,192; Exhibit
R-12). Vestal received the Board’s report on February 4, 1993 listing thirty-five items, and
&&at+ began working to abate the violative conditions listed (Tr. 170-71, 191-93,238.39,271;
Eh,iiits C-14 & R-12). By February 9,1993, the date of the OSHA inspection, the Respondent had
already corrected about twenty-seven of those listed violations. Prior to the OSHA inspection,
Panzella had also received a letter dated February 4, 1993 f?om Daniel L. German, the Town
Attorney info&g him that Vestal had ten days from the date of that letter to substantially correct
the identified code violations or else the Town would close the restaurant until abatement was
complete (Tr. 172-74,271,72; Exhibits C-14 & R-11).

       Because the OSHA inspection was conducted only five days after the date of the Town

Attorney’s letter, Panz&, who has represented Vestal throughout these proceedings, contends that
the entire citation should be “dropped” (Vestal’s Post-Hearing Brief at 1; Vestal’s Answer at l-3).
He maintains that it was unfhk for OSHA to inspect Vestal’s facility equipped with a list supplied by
VanGorder, of the electrical violations that both the Town and the Board had already discovered,
then to cite Vestal for those yet unabated conditions for which Town Attorney had set a deadline for

       2 It was noted at the hearing that the inspection date indicated on the citation shouId be comcted to

reflect that the OSHA hspection took place February 9,19!33, not 1992 (Tr. 1748).

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all abatements to take place by February 14, 1993, which is five days after the date on which the
OSHA inqection occurred. Indeed, when Cask inspected the site, the Respondent had abated most
of the violations cited by the Town and was working well within the time frame set out by Gorman
(Tr. 19, 170, 192.93,203.04,207,223; Exhiiit R-10). The electrical conditions cited by OSHA
under items two through ten of the citation were all included in the Board’s report to Vestal and were
conditions already known to PanAla and were the subject of items in the process of being abated by
Respondent (Tr. 164,182, 201-02, 208, 223, 229-31, 233; Exhibits C-14, R-10, & R-12).
Furthemmre, despite being aware that Vestal had already been notified of these conditions and was

working to abate them, Panzella points out that OSHA f’&iledto give Vestal credit for good fkith

when calculating the penalties proposed for the cited electrical items (Tr. 3%36,45, 5 I, 57,64-65,
69,77,82,171; Exhibits C-14 & R-1O).3 Taken as a whole, these objections constitute a challenge
to the reasonableness and validity of OSHA’s inspection.4
It is well established that OSHA has the discretion, pursuant to its authority under 0 S(a) of
the Act, to schedule an inspection of a facility upon referral fkom a local agency or board. A4imtz&
Oren, Inc., 16 BNA OSHC 1006,1010,1993 CCH OSHD 729,986 (No. 89=1366,1993);Mms

SYelEreecticq Ik, 13 BNA OSHC 1073,1077-79,1986-87 CCH OSHD 7 27,815 (NO. 77.3804,
1987). However, I question whether it is reasonable to do so at a time when the employer has
already been notified of the hazards identified in the referral and is making a good faith effort to
correct the conditions b&ore a specific date set by local authorities. Indeed, it was perfkctly
legitimate for Vestal to rely upon the time fkame for abatement of Februaxy 14,1993 as indicated by
the Tom Attorney in his letter to the Respondent dated February 4, 1993. Respondent had
reasonably relied on a legal statement fkom German on behalf of the Town; thus, Vestal targeted its
abatement effort accordingly.

     3The com@ianceofficerindicatedthat no reduction in penalty was g$vmfor good faith because of the

number of violations cited and Cc ...the fact that there were missing safety and health programs” (Tr. 36).
Although Vestal did have a general safety manual and a folder of material safety data sheets availableat the
fesfau~i~f,the complianceoflicer-ed that these documentswere incompleteand did not adequatelyaddress
h-d cOmmunicafion (Tr. 155-58,164,262-63,265-66,269; Exhibits R-8 & C-14).

    4That Vestal, as a pro se employs, didnot fm       ident@ this argumentas such does not preclude

~~~h~asanaffirmativedefense,particularfywheretheseissues~vebeen~~raisedby
Panzeila throughout the case.

                                                  3
    Section 8(a)(2) of the Act spe~ifidy requires that an inspection be reasonable, not only in

time ad limit,but in manner. Given the manner in which OSHA proceeded with its investigation of
Vestal - deliberately seeking out those conditions already cited by local authorities, yet observing that
Vestal was engaged in a continuing effort to the abate them within a time fkne set out by German -
I find that the inspection failed to comply with this requirement of the Act. See Hantilfon Fixture,

16 BNA OSHC 1073, 1079, 1993 CCH OSHD 730,034 (No. 88-1720,1993) C’To establish the
affirmative defense that an inspection is unreasonable under section S(a) of the Act, the employer
must introduce into the record suflicient evidence of unreasonable conduct.“), #zi, 28 F.3d 1213
(6th Cir. 1994). l&i OSHA’sinspectionbeen conducted@er the ten&y period (i.e. tier February
14, 1999, the time limit allowed by the Town Attorney, I would have been more than willing to
accept this citation as the product of a valid inspection. Likewise, had OSHA been contacted by the
Town earlier in the Town’s inspection process and conducted its inspection prior to German’s

February 4,1993 letter being issued, which righmy was relied upon by the Respondent as setting
the time fhme for abatement, I would have been more inclined to consider the merits of this citatio~~~
However, by responding to the referral when it did, OSHA needlessly injected itself into a local
enforcement effort which, at least at that point, was effectively accomplishing its goal. It seems
inherentfy &fair and unreasonable for OSHA to act under these conditions, and I find that Vestal has
met its burden of proving that the manner and cir cunstances under which the OSHA inspection was
conducted was not reasonable witi the meaning of the Act.
Where the Secretary has failed to comply with 0 S(a) of the Act, the proper remedy, not
unlike an illegal search and seizure in the criminal law setting, is to suppress the evidence obtained
fkom the inspkction. Hkmihon Fixhtwe,~~pru, 16 BNA at 1077, n.6, quoting mr. ufil. &pa, 5
BNA OSHC 1195,1196-97,1977-78 CCH OSHD 121,709 (No. 5324,1977). See also 2 Rucistein
et al., Criminal Constihrfional Law 8 11.02[1][~] at 11-H to 1 l-62 (1990). I find that all the
evidence &ained from the OSHA inspection was tainted; thus, even evidence co~ected with items

   5It is not clear fkm the record why Van-     chose to ne   OSHA of the ccmditions at the restaurant

befareVestalwas given the oppartunityto correct the items ide&ied in the Board’sreport by the deadline s&
by Goman of Februq 14,1993. The @dge refkd to allow VmGader to test@ at the hearing as the
Secretary did not include him on the pre-hearing exchange list, thus violating the judge’s order gomning
td1110nyofwitnesses. frr.7013).

                                                   4

that were not on the list provided to the OSHA inspector by the Town, will be suppressed. Ufith no
evidence to support the violations alleged, the citation must be vacated in its entirety.

                FINDIN GS OF FACT AND CQNCLUSIONS OF LAW
    All findings of fkt relevant and necessary to a determination of the contested issues have been

found specially and appear herein. See Rule 52(a) of the Federal Rules of Civil Procedure. Proposed
findings of fact or conclusions of law inconsistent with this decision are denied.

                                           ORDER
    Serious citation 1, item 1, alleging a violation of 29 C.F.R. 5 1910.157(g)( 1) was

WTHDWWN by the Complainant.
Serious citation 1, item 2, tie&g a violation of 29 C.F.R 5 1910.303(b)(2) is VACATED
together with any penalty proposed.
Serious citation 1, item 3, alleging a violation of 29 C.F.R 0 lb10.303@ is VACATED
together with any penalty proposed.
Serious citation 1, item 4, akging a violation of 29 C.F.R 8 1910.303(g)(2)(i) is VACATED
together with any penalty proposed-
Serious citation 1, item 5, alleging a violation of 29 C.F.R 0 1910.303(f)(4) is VAG4TEIl
together with any penalty proposed.
Serious citation 1, item 6, alleging a violation of 29 C.F.R 0 1910.305(a)(l)(i) is VACATED
together with any penalty proposed.
Serious’citation 1, item 7, alleging a violation of 29 C.F.R 6 1910.305(a)(2)(i) is VACATED
together with any penalty proposed.
Serious citation 1, item 8, alleging a violation of 29 C.F.R 8 1910.305(a)(2)@i)(f) is
VACATED together with any penalty proposed.
Serious citation 1, item 9, alleging a violation of 29 C.F.R 8 19IO.305(a)(2)(iii)(g) is
VACATED together with any penalty proposed.
Serious citation 1, item lO,dkghg a violationof 29 C.F.R 8 1910.305(b)(l) is VACATED
together with any penalty proposed.
Serious citation 1, item 11, akging a violation of 29 C.F.R 0 1910.1200(e)(1) is VACATED
together with any penalty proposed.
Serious citation 1, item 12, alleging a violation of 29 C.F.R 6 1910.1200(g)(l) is VACATED
together with any penalty proposed.
Serious citation 1, item 13, alleging a violation of 29 C.F.R. 8 1910.1200@) is VACATED
together with any penalty proposed.

                                                Judge, OSHRC

Date: April 14, 1995
Boston, Massachusetts

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