United House of Prayer

Plain-English summary

OSHA cited the United House of Prayer for exit and sprinkler conditions after a fire in a tenant's New York City store caused the deaths of seven store employees. The administrative law judge granted summary judgment to the Church because it had no employees at the renovation site, did not create or control the cited conditions, and lacked personnel qualified to oversee the construction work. The Secretary obtained Commission review but did not file a brief by the extended deadline or respond to the Church's motion to vacate review. The Commission concluded that the Secretary no longer had an interest in review and vacated its direction for review. The judge's order vacating all three citation items therefore became final.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.36(b)(8), 1910.36(c)(2), and 1910.37(m)
• Outcome: Direction for review vacated; summary judgment vacating all citation items became a final order.
• Key point: The Commission may end review when the petitioning party misses its briefing deadline and does not oppose a motion to vacate review.

Full text (OSHRC public release)

                                                    :

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC Docket No. 96-0927
:
UNITED HOUSE OF PRAYER, :
:
Respondent. :
:

                                         ORDER

   The Secretary filed a petition for discretionary review in the above-referenced case and

Chairman Weisberg directed the decision of the administrative law judge for review. A

briefing order was issued and the Secretary’s motion for extension of time was granted giving

the Secretary until July 21, 1998, to file her brief.

   The Secretary did not file her brief within the extension granted nor did she request a

further extension. The Respondent subsequently moved to vacate the direction for review.

The Secretary also did not respond to the Respondent’s motion.

   We conclude that the Secretary no longer has an interest in review of the

administrative law judge’s decision in this matter. Accordingly, we grant the Respondent’s

motion and vacate the direction for review. The decision of the administrative law judge is a

final order.
Date: November 16, 1998 /Signed/
Stuart E. Weisberg, Chairman

                      /Signed/
                      Thomasina V. Rogers, Commissioner

96-0927

NOTICE IS GIVEN TO THE FOLLOWING:

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

Richard Voigt, Attorney
Cummings & Lockwood
CityPlace 1 - 185 Asylum Street
Hartford, CT 06103-3495
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, :
:
Complainant, :
v. : OSHRC DOCKET NO. 96-0927
:
UNITED HOUSE OF PRAYER, :
:
Respondent. :

                                         ORDER

   Respondent United House of Prayer (“the Church”) has filed a motion for summary

judgment with respect to a serious citation issued by the Occupational Safety and Health
Administration (“OSHA”) on June 6, 1996, following a December 8, 1995, fire in a building
owned by the Church in which seven individuals lost their lives. Respondent predicates its
motion on the parties’ stipulated facts, filed on August 1, 1997, and January 23, 1998, and
contends that those facts establish it was not an employer which could be held responsible
under the Occupational Safety and Health Act (“the Act”) for the alleged violations in this
case. The Secretary has filed her response to the motion.
Summary of the Parties’ Stipulations
The Church is a non-profit religious organization with an administrative office in
Washington D.C. and congregations in various locations in the United States. The subject
building, located in New York City, was undergoing extensive renovation and was
consequently not occupied at all by the Church at any time during 1995; however, a clothing
store (“Freddy’s” or “the Store”) was leasing a first-floor and basement space in the
building and was operating as a business at the time of the fire. The renovation project
involved the sanctuary and related spaces to be used for Church functions, and also involved
the renovation of the entire building’s sprinkler system. A certified architect drew up the
project plans, the Church contracted with a construction company named “LMA” to act as
general contractor, and LMA subcontracted with various companies to perform the
construction work, including Belize Construction, the construction management
subcontractor, and Sunset Plumbing, the sprinkler system subcontractor. (Stip. Nos. 2-11; 14-
16; 43).
The Church’s contract with LMA stated that LMA was “solely responsible” for
coordinating and carrying out the work pursuant to the contract, that it was responsible for
acts and omissions relating to the work performed under the contract, and that it was
responsible for complying with applicable laws and regulations pertaining to safety and for
“initiating, maintaining, and supervising all safety precautions and programs” in connection
with the performance of the contract; LMA was also required to maintain existing systems
until replacement systems were installed and operational and to maintain water service for
drinking and fire protection during the project.1 The Church’s lease with Freddy’s provided
for the Store to comply with all laws and regulations relating to the building, to comply with
fire protection and other policies, and to ensure that any alterations or additions necessary for
its sprinkler system were done in compliance with relevant regulations. The lease also
provided that the Church granted Freddy’s the “right to emergency ingress and egress
through a basement fire exit of the Premises.” Before 1995, Freddy’s basement had had a
wall with a door going to the Church’s basement, but in early 1995 this wall was covered
with a cinder block wall pursuant to the project specifications. The original project plans did
not provide for an exit from Freddy’s basement into the exit corridor of the Church, but in
June 1995 a decision was made to do so; Freddy’s lease was therefore modified in July 1995,
and plans were drafted in November 1995, to have an exit from the Store’s basement into the
Church’s exit corridor. However, some preliminary construction work was required before
this could be accomplished, and on December 8, 1995, the new exit had not yet been
completed.2 Consequently, the only exits from Freddy’s basement were two separate
staircases going up to the first floor, from which the front door, the sole exit to the outside of
the Store, could be reached.3 (Stip. Nos. 17-41)

   1
    The Church had no employees who were qualified to review the project plans or the

construction work to determine if they complied with relevant codes and regulations. (Stip. No.
12).
2
The Church was not involved in establishing the timetable for the completion of
the construction work. (Stip. No. 34).
3
One of the staircases was at the left rear side of the basement; the other, which
Freddy’s had had put in after the cinder block wall was built, was in the center of the basement.
(Stip. Nos. 37-40).
 During the time relevant to this case, the Church’s property management company for
the building was Mullen & Woods, which was responsible for matters such as building
maintenance and code compliance. On October 13, 1994, the New York City Fire
Department issued a violation to the Church, in care of Mullen & Woods, for conditions
relating to Freddy’s sprinkler system; the violation was for failure to have records of
monthly inspections, failure to have a sign indicating the main drain valve, and failure to have
a certificate of fitness. At a construction project meeting held on March 15, 1995, which a
Church pastor attended, a violation of Freddy’s sprinkler system was reported; at a
subsequent meeting on March 29, 1995, which the same pastor also attended, an employee of
Mullen & Woods reported that all of the violations relating to Freddy’s sprinkler system had
been corrected. On May 12, 1995, the New York City Department of Buildings issued a
violation to Mullen & Woods alleging the construction project had not obtained approval for
the removal and conversion of the sprinkler system. However, at construction project
meetings held in August and September of 1995, a code expediter who was working with
LMA and the architect reported that plumbing drawings had been prepared and filed with the
City to address the permit violation; the Church pastor noted above was present at all of these
meetings. (Stip. Nos. 13; 44-52).
On various instances before the fire, Sunset Plumbing shut off the water serving the
building’s sprinkler system in order to work on the system. On December 8, 1995, Sunset
Plumbing shut off the water serving the system to work in an area of the Church adjacent to
Freddy’s basement, rendering the system in the entire building, including the Store,
inoperable. The Church did not authorize the shutting down of the system and had no notice
on this or on any of the prior occasions that such activity was occurring; in addition, shutting
off the water serving the system was contrary to the project specifications. On this particular
day, approximately eight employees of Freddy’s were working in the Store. An armed
individual started a fire in the Store with an accelerant and then blocked the front door and
prevented the occupants from escaping. As a result, the fire caused the death of seven
employees of Freddy’s. (Stip. Nos. 42; 53-65).
The Citation Items
Item 1 of the citation alleges a violation of 29 C.F.R. 1910.36(b)(8), as follows:
Where necessary by reason of size, occupancy or arrangement, building(s) or
areas(s) thereof were not provided with at least two means of egress remote
from each other
 and so arranged as to minimize any possibility that both may be blocked by any one
fire or other emergency conditions.
Item 2, which alleges a violation of 29 C.F.R. 1910.36(c)(2), states as follows:
All existing exits and any existing fire protection were not continuously
maintained during repairs or alteration of an existing building, nor were other
alternative measures taken to provide equivalent safety.
Item 3 of the citation alleges a violation of 29 C.F.R. 1910.37(m), as follows:
All automatic fire sprinkler systems were not continuously maintained in a
reliable operating condition at all times and such periodic tests and inspections
necessary to assure proper maintenance were not made.
Discussion
Summary judgment is appropriate where the pleadings, discovery and any affidavits
establish that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56. See also Simpson, Gumpertz
& Heger, Inc., 15 BNA OSHC 1851, 1869 (No. 89-1300, 1992) (“SGH”). The Church
contends that its motion for summary judgment should be granted because it had no
employees at the site and did not have the capacity to control the cited conditions. The
Secretary, on the other hand, contends that Respondent was an employer within the meaning
of the Occupational Safety and Health Act (“the Act”) due to its administrative and office
personnel in Washington D.C.; the Secretary further contends that the Church was a
controlling employer at the subject site in view of its leases and contracts with respect to the
building and the fact that it had a representative attend the construction project meetings.
There is no question that Respondent was an employer as to its personnel in its Washington
D.C. office. However, the issue in this case is whether Respondent was an employer in regard
to the subject site such that it can be held responsible for the alleged violations. I find it was
not.
In the above-noted decision in SGH, the Commission used its long-established
“substantial supervision” test to find that an engineering firm hired by the owner to perform
certain structural engineering services in connection with a construction project was not liable
under the OSHA construction standards because it neither created nor controlled the
hazardous conditions at issue in that case. Id. at 1869. In Reich v. SGH, 3 F.3d 1 (lst Cir.
1993), the court affirmed the decision on different grounds, holding that the engineering firm
was not liable for the alleged violations because it had no employees at the site on any regular
basis, and no employees there on the day of the accident, and that under the circumstances the
site was not a “place of employment” that SGH had a duty to protect under the Act; in so
finding, the court specifically noted that it had found no cases supporting the Secretary’s
position and that in every case the Secretary referred to the cited employer had had employees
at the actual construction site. Id. at 5. Moreover, Commission precedent is well settled that
employers in multi-employer work site cases are entitled to defend on the basis that they did
not create or control the cited hazard. Anning-Johnson Co., 4 BNA OSHC 1193 (Nos. 3694
& 4409, 1976); Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185 (No. 12775, 1976).
This defense includes showing that the employer did not possess the expertise, personnel or
means to correct the hazardous condition. Union Boiler Co., 11 BNA OSHC 1241, 1246 (No.
79-232, 1983).
Applying these principles to the parties’ stipulations, I find that the Church did not
create or control the cited conditions and that it was not responsible for the alleged violations.
First, the Church was not occupying the building and had no employees at the site. Second,
the Church hired a management company to take care of the building, an architect to design
the renovation project, and a general contractor to carry out the project; further, the Church
had no personnel who were qualified to review the architectural drawings or oversee the
construction work, and while it had a representative at the renovation project meetings it had
no active role in the actual construction work. Third, after the construction work resulted in
the cinder block wall covering up the previous exit, the Church modified its lease with
Freddy’s and plans were drawn up for a new exit from the Store’s basement into the
Church’s exit corridor; moreover, although the new exit was not completed by the time of the
fire, the Church did not establish or control the timetable for the construction work required in
this regard. Fourth, the Church did not authorize or know about the water to the sprinkler
system being turned off, an activity that was contrary to the project specifications.
In finding that the Church was not responsible for the alleged violations, I have noted
that the Secretary has neither addressed any of the cases mentioned above nor referred to any
previous cases in which citations were issued to an employer with no employees at the work
site. I have also noted that all of the employers in the above cases were cited pursuant to the
construction standards, while Respondent in this case was cited pursuant to the general
industry standards; regardless, I agree with Respondent that these same principles apply in
this matter. Moreover, in my view, that the Secretary cited the Church pursuant to the general
industry standards undermines her contention that Respondent was a controlling employer at
the site during the construction project. In fact, there is nothing in the parties’ stipulations to
dissuade me from concluding, as the First Circuit did in its decision in SGH, that under the
circumstances the work site was not a “place of employment” that the cited employer had a
duty to protect under the Act. Reich v. SGH, 3 F.3d 1, 5 (1st Cir. 1993). This does not
preclude the possibility, of course, that there could be some other theory of liability, i.e., that
the Church might somehow have breached its duty as landlord to its tenant with respect to the
basement exit and the water serving the sprinkler system. However, I express no opinion in
this regard, and, as noted supra, the only issue before me is whether Respondent was an
employer under the Act in regard to the subject site and the cited conditions. I conclude that it
was not.
For the foregoing reasons, Respondent’s motion for summary judgement is
GRANTED and the citation items in this case are VACATED.

                                                 Irving Sommer
                                                 Chief Judge

Date: