John B. Coffman, d/b/a Southeast Industrial Painting

Plain-English summary

John B. Coffman ran Southeast Industrial Painting, a small tank painting and renovation business in Florida. OSHA inspected a jobsite in Orange Park, Florida in August 1997 and issued five citations spread across two dockets. Coffman first contested the citations, but the cases were held while a related criminal proceeding finished. Before the March 2000 hearing he narrowed his contest to the proposed penalties only, so the violations themselves were no longer in dispute. He argued that he could not afford the penalties. Judge Simko assessed the penalties fresh, grouped interrelated violations to avoid excessive amounts, and gave heavy weight to Coffman's small size and limited finances. The judge assessed $5,600 in Docket 97-1426 and $5,800 in Docket 97-1427, for $11,400 total.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 666(a) (the $5,000 minimum penalty for each willful violation); no specific safety standard is named in this penalty-only decision.
• Outcome: Violations left standing (uncontested); penalties assessed de novo and grouped to hold the totals to $5,600 (Docket 97-1426) and $5,800 (Docket 97-1427), $11,400 combined.
• Key point: When only the penalties are contested, the Commission assesses them de novo and may group interrelated violations to avoid destructive penalties for a small employer with limited finances.

Full text (OSHRC public release)

Secretary of Labor, :
Complainant, :
:
v. : OSHRC Docket Nos.
:
John B. Coffman, d/b/a : 97-1426 and 97-1427
Southeast Industrial Painting, :
Respondent. :

Appearances:

      Rafael Batine, Equire                                Daniel A. Smith, Esquire
          Office of the Solicitor                             Jacksonville, Florida
          U. S. Department of Labor                                For Respondent
          Atlanta, Georgia
              For Complainant

Before: Administrative Law Judge Stephen J. Simko, Jr.

                                      DECISION AND ORDER

      John B. Coffman, d/b/a Southeast Industrial Painting, was a sole proprietorship engaged

in tank painting and renovation in 1997. The Occupational Safety and Health Administration
(OSHA) conducted an inspection of respondent’s jobsite in Orange Park, Florida, on August
15, 1997. As a result of this inspection, respondent was issued five citations. Respondent filed
a timely notice contesting the citations and proposed penalties. These cases were stayed
pending the completion of a related criminal proceeding. Judgment was entered in the criminal
case on January 25, 2000. A hearing was held in this matter in Jacksonville, Florida, on March
9, 2000. Prior to the hearing, respondent amended his notice of contest to contest only the
proposed penalties. The notice of contest does not place in issue the facts of the violations or
the reasonableness of the abatement dates. Respondent asserts that he does not have the
financial ability to pay the proposed penalties. The two cases were consolidated for purposes of
hearing pursuant to the Secretary’s unopposed motion.
The Secretary presented evidence at the hearing relating to factors considered in
proposing penalties for the violations in both cases. Respondent presented evidence relating to
his claim of financial inability to pay the proposed penalties.
At the conclusion of the hearing, a decision was issued from the bench stating the
issues, setting forth my findings of facts and conclusions of law, and assessing total penalties of
$11,400 for both cases. In Docket No. 97-1426, penalties in a total amount of $5,600 are
deemed appropriate and in Docket No. 97-1427, penalties in a total amount of $5,800 are
deemed appropriate.
Excerpts of relevant transcript pages and paragraphs, including findings of fact and
conclusions of law, are attached hereto and incorporated into this decision.
It is well established that the Commission has the exclusive authority to assess penalties
for contested violations. When contested, the Secretary’s proposed penalties become advisory
and the Commission makes a de novo assessment of penalties. See e.g. Reich v. Arcardian
Corp., 110 F.3d 1192 (5th Cir. 1997); California Stevedore & Ballast Co.v. OSHRC, 517 F.2d
986, 988 (9th Cir. 1975); Hern Iron Works, Inc., 16 BNA OSHC 1621, 1993-95 CCH OSHD ¶
30,363, p. 41,881 (No. 88-1962, 1994).
Penalty assessment factors of gravity of the violations, size of the employer, good faith
and history of violations or compliance with the Act must be considered. These factors,
however, need not be accorded equal weight by the Commission in determining the appropriate
penalty. While gravity is generally the primary element considered, the Commission has wide
discretion in penalty assessment. Orion Construction, Inc., 18 BNA OSHC 1867, 1999 CCH
OSHD ¶ 31,896, p. 47,220 (No. 98-2014, 1999). Each case must be decided on factors unique
to that case.
In this case, the overriding factor is respondent’s size. This includes consideration of
his financial condition. From its earliest decisions until present, the Commission has
assessed
penalties that effectuate the remedial purpose of the Act, to assure a safe and healthful
workplace, and that avoid the imposition of destructive penalties. See Colonial Craft
Reproductions, 1 BNA OSHC 1063, 1971-73 CCH OSHD ¶ 15,277, p. 20,368 (No. 881, 1972).
As detailed more fully in the bench decision, Mr. Coffman is no longer engaged in tank
painting. He had no more than five employees in 1997. He has none now. He drives a truck
hauling cattle. He has limited assets. He is supporting four children of his own, and his wife
has three other children. 29 U.S.C. § 666(a) requires a minimum penalty of $5,000 for each
willful violation. In light of this statutory requirement, all interrelated violations were grouped
to avoid excessive penalties, given respondent’s obligations and limited financial resources.

                             FINDINGS OF FACT AND
                            AND CONCLUSIONS OF LAW

   The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Federal Rule of Civil Procedure 52(a).

                                         ORDER

   Based upon the foregoing decision, it is ORDERED that the following penalties are

assessed for both cases:

                                   Docket No. 97-1426

   Citation                               Item                            Assessed
    No.                                    No.                            Penalty

       1                                  1                               $ 100
       1                                  2-7 (Grouped)                     500
       2                                  1a-d                            5,000
       3                                  1, 2                              -0-

                                                      Total               $5,600
                   Docket No. 97-1427

  Citation               Item                    Assessed
    No.                   No.                    Penalty

     1                   1-10 (Grouped)          $ 800
     2                   1, 2 (Grouped)           5,000

                                   Total         $5,800




                                STEPHEN J. SIMKO, JR.
                                Judge

Date: March 27, 2000