Brickfield Builders, Inc.

Plain-English summary

Brickfield Builders, Inc. was the masonry contractor for a school addition in Galena Park, Texas. OSHA alleged that the foundation of the south-side scaffold was unstable because it shared part of a haphazard anchorage supporting a west-side scaffold. The administrative law judge credited the compliance officer's testimony and affirmed the item as serious with a $900 penalty. The Commission found that the photographs conclusively showed the anchorage board stopped at the west scaffold and did not extend to the south scaffold. It vacated the scaffold-foundation item, while the judge's rulings on the other contested items remained final.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.451(d)(4).
• Outcome: Vacated. The scaffold-foundation item and its $900 penalty were vacated.
• Key point: The Commission may reject a judge's credibility finding when objective photographic evidence conclusively contradicts the credited testimony.

Full text (OSHRC public release)

                                  UNITED   STATES OF AMERICA
        OCCUPATIONAL       SAFETY          AND HEALTH REVIEW COMMISSION
                                 One Lafayette Centre
                           1120 20th Street, N.W. - 9th Floor
                              Washington, DC 200364419




                                                     .
                                                     .

SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. .. OSHRC DOCKET NO. 93-2801
..

BRICKFIELD BUILDERS, INC., ..
.
Respondent. ..

                                           DECISION

BEFORE: WEISBERG, Chairman; FOULKE and MONTOYA, Commissioners.

BY THE COMMISSION:
The issue on review is whether the judge erred in affirming citation no. 1, item 2,
which alleged that a construction scaffold had an inadequate foundation in violation of 29
C.F.R. 5 1926.451(d)(4).’ We find that the photographic evidence conclusively supports
Brickfield’s position, and thus we vacate the item.
Brickfield was the masonry contractor for construction of a school addition in Galena
Park, Texas. Its employees worked from tubular welded frame scaffolds erected around the
building. The scaffold in question is the south side scaffold. The judge found that the
foundation for that scaffold was unstable based on testimony by OSHA compliance officer
(“CO”) Colleen Roulston. She testified that the end frame on the west side scaffold was
supported by boards that were stacked haphazardly, and that one plank of the same
anchorage supported the south side scaffold, rendering it unstable also.

‘That standard, which covers tubular welded frame scaffolds, provides that “[slcaffold legs
shall be set on adjustable bases or plain bases placed on mud sills or other foundations
adequate to support the maximum rated load.”

                                                                           1995 OSHRC No. 10

2

      The employer’s vice president, Jimmy Ezzell, testified that he was at the site the

morning after the inspection and that the anchorage of the two scaffolds was not connected.
He also asserted that the photographs in evidence show the same thing. The judge found
that he could draw no conclusion on that issue from the photographs. He resolved the
contrasting testimony with a credibility finding in favor of the CO’s testimony.
Our detailed review of the photographic evidence convinces us, however, that the two
scaffolds were not connected. I%. C-2 shows the south scaffold, with the west scaffold to the
far left. That photo shows that the two scaffolds were not connected at any point above the
ground.
Ex. C-3 shows the haphazard anchorage under the upright at the outside comer of
the west scaffold. Ex. C-4 shows that a part of that anchorage, a 4 x 4-inch piece of lumber
that ran east-west, also anchored the upright on the inside front comer of the west scaffold.
However, the Secretary does not allege a violation as to that scaffold (no Brickfield
employees were working from it at the time of the inspection). The alleged violation is
based on the CO’s testimony that the 4 x 4-inch board continued beyond the west scaffold
and served as part of the foundation for the south scaffold.2
However, Ex. C-4 shows that that board went no further than the inside front comer
of the west scaffold. It did not extend to the south scaffold, which began to the right of the
red tapes that are visible in Exs. C-4 and C-2. Thus, we reject the judge’s reliance on
credibility findings, because the photographic evidence conclusively supports Brickfield’s
position. E.g., Beta Constr, Co., 16 BNA OSHC 1435, 1442-43, 1993 CCH OSHD ll 30,239,
pp. 41,649-50 (No. 91-102,1993) (Commission will disregard judge’s credibility findings, even
those based on witnesses’ demeanor, if inconsistent with record), petition for reviewf?led, No.

2At the hearing the judge saw copies of Exs. C-3 and C-4 on which the CO identified the
anchorage in question by drawing a triangle in red ink. Those copies did not become part
of the official record, but the Secretary forwarded his copies to us upon request, and they
contain such markings. Those copies are a part of the record now as “Recovered Exhibits
C-3 and C-4.” They further clarify what is apparent from the rest of the record--that the
CO’s basis for the alleged violation was her belief that the 4 x 4-inch board extended to the
south scaffold.
 3

934817 (D. C. Cir. Dec. 3, 1993); Asplundh Tree Expert Co., 7 BNA OSHC 2074, 2078-79,
1980 CCH OSHD lI 24,147, pp. 29,34647 (No. 16162, 1979).
Accordingly, we vacate citation no. 1, item 2. The judge’s rulings on the other
contested citation items are final orders of the Commission.

                                                     Bmnk E. w
                                                    Stuart E. Weisberg
                                                    Chairman



                                                     &Jc,A
                                                    Edwin G. Foulke, Jr.
                                                    Commissioner




                                                    Velma Montoya
                                                    Commissioner

Dated: February 24, 1995
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

PHONE
coM(202)606-6100
m@02)606-5100

                                           .
                                           .

SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. .. Docket No. 93-2801
.
BRICKFIELD BUILDERS, INC., ;
..
Respondent. ..
.

                               NOTICE OF COMMISSION DECISION

The attached decision by the Occupational Safety and Health Review Commission was issued on
Februarv 24.1995. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES
TO OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970,29 U.S.C. 8 660.

                                                        FOR THE COMMISSION

Februay 24. 1995
Date
Docket No. 93-2801

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

James E. White, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
Suite 501
525 S. Griffin Street
Dallas, TX 75202

Jimmy Ezzell, Vice-President
Brickfield Builders, Inc.
9945 Easthaven
Houston, TX 7707503201

Stanley M. Schwartz
Administrative Law Judge
Occupational Safety and Health
Review Commission
Federal Building, Room 7Bll
1100 Commerce Street
Dallas, TX 75242.0791
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

PHONE
COM (202) 606-5100
Frs (202) 6oG5lfn

           SECRETARY       OF LABOR
                             Complainant,
                     v.                                                    OSHRC DOCKET
                                                                           NO. 93-2801
           BRICKFIELD      BUILDERS, INC.
                              Respondent.


                                 NOTICE OF DOCKETING
                          OF ADMINISmTIVE   LAW JUDGES                    DECISION
                The Administrative Law Judge’s Re ort in the above referenced case was
           docketed with the Commission on May 5 6, 1994. The decision of the Judge
           will become a final order of the Commission on June 24, 1994 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 petition should be received by the Executive Secretary on or before
           June 15, 1994 in order to ermit sufficrent time for its review. See
           Commission Rule 91, 29 8 .F.R. 2200.91.
              All further pleadings or communications       regarding this case shall be
           addressed to:
                                  Executive Secretary
                                  Occupational Safety and Health
                                   Revrew Commission
                                  1120 20th St. N.W., Suite 980
                                  Washington, D.C. 20036-3419
           Petitioning parties shall also mail a copy to:
                                  Daniel J. Mick, Esq.
                                  Counsel for Regional Trial Liti ation
                                  Office of the Solicitor, U.S. DOgL
                                  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 COMMISSION


          Date: May 26, 1994
                                                    &f-~-+&L&L
                                                    Ray H. Darling, Jr.
                                                    Executive Secretary

DOCKET NO. 93-2801
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOf
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

James E. White, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U S DOL
525 Griffin Square Blhg.,‘&ite 501
Griffin & Youn Streets
Dallas, TX 752 %2

Jimmy W. EzzeU
Howard Chip Hosek
Brickfiel 6 B u.2ders, Inc.
9945 Easthaven
Houston, TX 77075

Stanley M. Schwartz
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
Federal Building, Room 7Bll
1100 Commerce Street
Dallas, TX 75242 0791

00123554016:06
 UNITED STATESOF AMERICA
OCCUPATIONAL SAiETY AND HEALTH REVIEWCOMMISSION
ROOM 7811, FEDERAL BUILDING
1100 COMMERCE STREET
DALLAS, TEXAS 75242-0791

PHONE: FAX:
COM (214)767-5277 COM (214)7674350
FTS(214)767-527; FTS(214)767-0350

                                                   ..

SECRETARY OF MOR, .
l

                Complainant,
                                                   ..
      v.                                            ..     OSHRC DOCKET NO. 93-2801-S
                                                   .
                                                   .

BRICKFIELD BUILDERS, INC., ..

                Respondent.

APPEARANCES:

      James E. Gulp, Esquire                Jimmy W. Enell
      Dallas, Texas                         Howard Hosek
      For the Complainant.                  Houston, Texas
                                            For the Respondent,pto se.

Before: Administrative Law Judge Stanley M. Schwartz

                                  DECISION AND ORDER

      This is a proceeding brought before the Occupational          Safety and Health Review

Commission (“the Commission”) pursuant to section 10 of the Occupational Safety and
Health Act of 1970, 29 U.S.C. 6 651 et seq. (“the Act”).
On July 27, 1993, the Occupational Safety and Health Administration (“OSHA”)
inspected a construction site in Galena Park, Texas, where various contractors were engaged
in a school addition project; Respondent, the masonry contractor, had erected three-tiered
scaffolding along the south and west walls of the addition in order to brick the exterior. As
a result of the inspection, the company was issued a serious, repeat and “other” citation.
The company contested the citations, and a hearing was held on February 1, 1994, in
Houston, Texas.
 2

                   Serious Citation 1 - Item 1 - 29 C.F.R. 1926.25(a)

      Colleen Roulston is the OSHA compliance officer (“CO”) who inspected the site.

She testified she observed a pile of debris consisting of broken bricks and boards in front
of and underneath the scaffolding along the south wall of the addition, as shown in C-l,
when she arrived at the site that morning, and that the pile was still there when she
inspected Brickfield’s work area that afternoon. She saw an employee walk through the pile
at that time to get to the scaffolding, and Leroy Mitsche, the company’s jobsite foreman, told
her the individual was a Brickfield employee; C-2, a more distant view, shows workers on
the scaffolding along the south wall. Roulston noted it is the nature of the business to have
debris but that this pile was large and presented a serious hazard; employees would have
had to go through it to access the scaffolding and the bricks shown in C-l and could have
tripped and fallen, it could have compounded injuries if a worker had fallen from the
scaffold, and there was a board with a nail protruding from it, depicted at the far right of
C-l, which could have injured anyone stepping or falling on it. (Tr. 12-19; 22-26; 41; 44;
47-51).
The subject standard provides as follows:
During the course of construction, alteration, or repairs, form and scrap
lumber with protruding nails, and all other debris, shall be kept cleared from
work areas, passageways, and stairs, in and around buildings or other
structures.
Respondent concedes the debris was a hazard, and does not seriously contend
employees were not exposed to it; although Jimmy Ezzell, Brickfield’s vice president,
testified employees could have gone around the debris he admitted workers were not trained
in this regard and presented nothing to refute the CO’s testimony. (Tr. 23; 26; 29-31; 39;
50-51; 144-45). Ezzell further testified it would have been more hazardous for employees
to clean up the debris with workers overhead and that it was impractical to stop work to
clean up in the middle of the day. (Tr. 24-29; 189-90). However, the CO testified that
employees on the scaffold could have worked in a different area while the debris was
removed, and Ezzell admitted this could have been done. (Tr. 42; 143-44). Based on the
record, Respondent was in serious violation of the standard.
 3

    Turning to the assessment of an aDDropriate Denaltv. I note ResPondent had about
                                           A&       I         I        4‘               A

eighty employees at the time of the inspection but less than thirty-five at the time of the
hearing. (Tr. 7). I note also the CO considered the gravity of the condition low, and that
the company had only seven employees at the site. (Tr. 19-20; 23-24). After considering
these factors, and the company’s history and good faith, a penalty of $300.00 is assessed for
this item.

                    Serious Citation 1 - Item 2 - 29 C.F.R. 1926.45l(d)(4\

       Colleen Roulston testified the footage or anchorage supporting the scaffolding at the

building’s southwest comer was unstable and inadequate to support the load; the outside leg
of the end frame on the west side scaffolding was supported by boards that were stacked
haphazardly, and while no one was working on the west side that day the board below the
top board on which the west side end frame sat ran north and south and also supported the
south side end frame. C-3 and C-4 depict the condition, which Roulston described as a
serious hazard because of the possibility the anchorage could slip or shift, causing the
scaffolding on both walls, and consequently employees, to fall. She noted that C-5, an
excerpt from &&way scaffolding erection instructions, showed the proper way to support a
scaffold in this situation. She also noted there were not only employees but also bricks and
mortar tubs on the scaffold, which contributed to the hazard. (Tr. 59-77; 81-83; 97).
The subject standard provides as follows:
Scaffold legs shall be set on adjustable bases or plain bases placed on mud
sills or other foundations adequate to support the maximum rated load.
Respondent contends there was no violation based on Jimmy Ezzell’s testimony that
the photos show the scaffolding was not connected. (Tr. 79-83; 147-50). I find, however,
that no such conclusion can be drawn from C-4-5; while they clearly show the subject
anchorage they do not show the connecting area described by the CO. The CO, the only
witness who was at the site that day, was emphatic that the west and south end frames were
supported by the same anchorage. Ezell, on the other hand, testified that he was at the site
the next morning and that the end frames were not connected. (Tr. 151; 156-57). I
observed the demeanor of both witnesses and found the CO’s testimony both convincing and
 4

exhibiting a clearer and more forthright recollection
> of the actual factual situation; moreover,
Respondent could have presented the testimony of Leroy Mitsche, the jobsite foreman, but
did not do so. For these reasons I credit the CO’s testimony over that of Respondent’s vice
president, and the company’s contention is therefore rejected.
Respondent next contends the anchorage was adequate to support the‘load; in this
regard, Ezzell testified that in his opinion, the anchorage shown in C-3-4 was more stable
than that depicted in C-5. (Tr. 67-73; 151-55; 190). Respondent’s contention is rejected, as
a comparison of C-5 with C-3-4, together with the CO’s testimony, convinces the undersigned
the cited anchorage was unstable and in violation of the standard; this item is therefore
affirmed as a serious violation. As to an appropriate penalty, the CO considered the
condition of medium gravity. (Tr. 63). Based on this factor, and those set out supra, a
penalty of $900.00 is assessed.

                Serious Citation 1 - Item 3 - 29 C.F.R. 1926.451(d)(7)

   Colleen Roulston    testified she and Leroy Mitsche looked at the entire 98 feet of

scaffolding along the south wall, and that it was not tied to the structure at any point. She
noted the standard requires scaffolding to be tied off every 30 feet to prevent movement,
which can cause scaffolding to collapse. She further noted her conclusion that there was no
reason the scaffolding could not be tied off, although Mitsche told her he knew of no way
to do it, and OSHA’s position that tie-backs must be used on scaffolding until it is taken
down; in this regard, Roulston pointed out that bricks could have been left out at the points
where tie-backs were required on the subject addition and then put in place with a lift after
the scaffolding was taken down. (Tr. 84-90).
The subject standard provides as follows:
To prevent movement, the scaffold shall be secured to the building or
structure at intervals not to exceed 30 feet horizontally and 26 feet vertically.
Respondent does not dispute the hazard of unsecured scaffolding, but contends the
scaffolding at the site was secured; in this regard, Jimmy Ezzell testified that when he went
to the site the next morning the scaffolding was tied off with wire every 24 feet at the second
and third levels and that it had to have been tied off the day before as the wall had already
 5

been built. (Tr. 157-65; 190-91). However, the CO was emphatic that she inspected the
entire wall and that the scaffolding was not tied off at any point, and based on my credibility
determinations in the preceding discussion her testimony is credited over that of Ezzell. This
item is accordingly affirmed as a serious violation. Turning to an appropriate penalty for
this item, the CO considered the condition to be of low gravity. (Tr. 86). On the basis of
this factor and the others set out above, a penalty of $300.00 is assessed.

                    ReDeat Citation 2 - 29 C.F.R. 1926.45l(a)(13)

    Cohen    Roulston testified there was no access ladder to the south wall scaffolding,

and that Leroy Mitsche confirmed this was the case when she asked him; there was an
access ladder to the west wall scaffolding, but since the west and south scaffolding had no
connecting planking workers getting up on the south scaffolding would have had to climb up
its frame or cross bracing. Roulston noted the citation was issued as a repeat because the
company had been cited in 1990 pursuant to the same standard; C-6 shows the previous
citation, and C-7-8 show its disposition. (Tr. 92-103).
The subject standard provides as follows:
An access ladder or equivalent safe access shall be provided.
Respondent does not dispute an access ladder was required, but contends that there
was one. Specifically, Jimmy Ezzell testified he ordered several access ladders for the job
and that when he got to the site the next morning there was an access ladder at the east end
of the south wall scaffolding; he noted the access ladder for the west wall scaffolding was
shown in C-4, that the access ladder he saw on the south wall was to the right of the scene
depicted in C-2, and that he was unaware of any company jobs not having access ladders
since the 1990 citation. (Tr. 166-69; 19192).
Although Ezzell’s testimony has been considered, that of the CO is credited over his
in light of my credibility findings, supr~; this citation item is therefore affirmed as a repeat
violation. In regard to an appropriate penalty, the CO considered this violation of low
gravity. (Tr. 96). Based on this factor and the others set out above, as well as the fact that
this is a repeat citation, a penalty of $600.00 is assessed.
 6

                    Repeat Citation 2 - Item 2 - 1926.451(d)(3)

   Colleen Roulston    testified    there were at least three sections    of the south side

scaffolding that were not fully braced, shown by the circled areas on C-9-11; she noted the
standard requires cross bracing on the front and back of all sections of tubular welded frame
scaffolding to make it square and secure, that inadequate bracing can cause a scaffold to
shift and even collapse, and that bracing is especially important on end frames. Roulston
agreed bracing must be taken off to move objects like the mortar tub in C-11 on and off
scaffolds, but disagreed such was the case at the time of her inspection; she observed the
worker in C-10 going from section to section to put on the missing bracing after her arrival
to the area and no items were being put on or taken off the scaffold then. Roulston said
this item was issued as a repeat citation due to a 1990 violation of the same standard, as
established by C-6-8. (Tr. 104-25).
The subject standard provides, in pertinent part, as follows:
Scaffolds shall be properly braced by cross bracing or diagonal braces, or both,
for securing vertical members together laterally, and the cross braces shall be
of such length as will automatically square and aline vertical members so that
the erected scaffold is always plumb, square, and rigid.
Respondent contends, based on the testimony of Jimmy Ezzell, that the missing
bracing was due to items being put on and taken off the scaffold. (Tr. 169-75; 192-93).
However, he admitted he had no personal knowledge of what occurred as he was not there
that day, and that any bracing removed should have been replaced. (Tr. 170-71; 174). The
CO testified, as noted above, that she saw the worker in C-10 going from section to section
to put on bracing after her arrival, when no items were being put on or taken off the
scaffold. As Ezzell was not there his opinion about what happened can only be viewed as
speculation, and Respondent did not present the testimony of Leroy Mitsche, the jobsite
foreman. This item is therefore affirmed as a repeat violation, and a penalty of $600.00 is
assessed; this penalty is based on the factors set out in the preceding discussion, and the fact
the CO considered the violation of low gravity. (Tr. 111).
 7

                 “Other” Citation 3 - Item 1 - 29 C.F.R. 1926.150(a)(l)

    Colleen Roulston testified that all of the fire extinguishers at the site had been put

in the school cafeteria, apparently by the general contractor, and that. there were no water
hoses available; extinguishers are to be kept every 100 feet on construction jobs, and
employees would have had to travel several hundred feet to get to one. Roulston said there
were combustibles such as wood at the site, but that the condition was cited as “other”
because a fire was not likely; she also said that Leroy Mitsche was unable to produce an
extinguisher. (Tr. 128-30; 133).
The subject standard provides as follows:
The employer shall be responsible for the development of a fire protection
program to be followed throughout all phases of the construction and
demolition work, and he shall provide for the firefighting equipment as
specified in this subpart. As fire hazards occur, there shall be no delay in
providing the necessary equipment.’
Respondent contends that it was the general contractor’s responsibility to provide fire
extinguishers for the building. (Tr. 130-33; 178-79; 193). However, Commission precedent
is well settled that each employer is responsible for the safety of its own employees,
notwithstanding another’s contractual obligation to provide the necessary protection. See,
e.g.,Arming-JohnsonCo., 4 BNA OSHC 1193,1975-76 CCH OSHD f 20,690 (Nos. 3694 &
4409, 1976). The CO’s testimony shows Brickfield employees were exposed to the risk of
fire, although the risk was low, and Respondent did not rebut her testimony. The CO’s
testimony also shows that all employers present at the site, including the general contractor,
were cited for this condition. (Tr. 132-35).
Respondent further contends, based on the testimony of Jimmy Ezzell, that it had fire
extinguishers on the Lull forklift and Bobcat swinger it had at the site. (Tr. 132-33; 176-77).
However, Ezzell admitted the equipment would not always have been within 100 feet of the
addition. (Tr. 176-77). Moreover, Ezzell’s testimony is undercut by that of the CO that

‘29 C.F.R. 1926.150(c)(l)(i) provides, in pertinent part, that “[tlravel distance fkom any point of the protected
area to the nearest fire extinguisher shall not exceed 100 feet.”
 8

Leroy Mitsche, the jobsite foreman, was unable to produce an extinguisher. This item is
affirmed as a nonserious violation. No penalty is assessed.

                                   Conclusions of Law

   1. Respondent,    Brickfield Builders, Inc., is engaged in a business affecting commerce

and has employees within the meaning of section 3(5) of the Act. The Commission has
jurisdiction of the parties and of the subject matter of the proceeding.
2. On July 27, 1993, Respondent was in serious violation of 29 C.F.R. 89 1926.25(a),
1926.451(d)(4) and 1926.451(d)(7).
3 On July 27, 1993, Respondent was in repeat violation of 29 C.F.R.
68 1926.45 l(a)(l3) and 1926.45 l(d)(3).
4 On July 27, 1993, Respondent was in “other” violation of 29 C.F.R.
0 1926.150(a)(l).

                                           Order

   On the basis of the foregoing         Findings of Fact and Conclusions           of Law, it is

ORDERED that:
1. Items 1, 2 and 3 of serious citation number 1 are AFFIRMED, and penalties of
$300.00, $900.00 and $300.00, respectively, are assessed.
2. Items 1 and 2 of repeat citation number 2 are AFFIRMED, and a penalty of
$600.00 is assessed for each item.
3. Item 1 of “other” citation number 3 is AFFIRMED, and no penalty is assessed.