(1) Adequate first aid facilities approved by a health authority shall be maintained and made available in every labor camp for the emergency treatment of injured persons.

(2) Such facilities shall be in charge of a person trained to administrator first aid and shall be readily accessible for use at all times.

• no first aid supplies in camp (S). [TR 47].

• no one identified as designated to provide first aid (S). [TR 47].

Other violations.

• exposed electrical wiring by front door of camp, creating fire hazard-violation of building code (A). [TR 47-48].

• window air conditioning unit is improperly supported (S). [TR 48-49].

• smoke detector inoperable (S). [TR 50].

Contentions

   DOL seeks civil money penalties for ten aggravated violations at $500.00 each and for 15 serious violations at $250.00 each. Counsel sought a penalty in the total amount of $8,500.00.

   Mr. Rodriquez argued that the penalty of $8,500.00 is appropriate because the violations found on the property were substantive, aggravated and serious. The Government asserts that factors to reduce the amount of the penalty were given due consideration, and that the amounts assessed were "fair and reasonable."

   In essence, the Respondent did not controvert that conditions existed on the property which would constitute the violations of the Act alleged by the Government.

   Mr. Williams did state that for drinking he provided a cooler of ice water from his store. The Respondent also explained the history of some of the violations. [TR 102].

   The Respondent acknowledged that he owned the camp. However, he argued that he paid a crew leader to deal with the workers and manage the camp. [TR 104]. Mr. Williams stated that it was the responsibility of the crew leader to keep the camp clean and orderly.

1. Violations of the Act

Section 203(a) of the Act, 29 U.S.C. § 1823(a), provides that

...each person who owns or controls a facility or real property which is used as housing for migrant agricultural workers shall be responsible for ensuring that the facility or real property complies with substantive Federal and State safety and health standards applicable to that housing.

   This provision is also set forth in 29 C.F.R. § 500.130(a).

   The Respondent does not contest that he owns the Harrison Place Camp or that this facility was used to house migrant agricultural workers.

Because migrant agricultural workers were provided housing on the property; Section 203(a) of MSPA is applicable in this case. As previously determined, conditions on the property were in violation of the Act and the relevant regulations.

2. Liability of Respondent for Violations of the Act.

Section 203(a) of the Act and 29 C.F.R. § 500.130(a) require a person who "owns or controls" property used as housing for migrant agricultural workers to comply with the safety and health standards.

   However, the Act clearly states that "the owner shall be responsible."

   In this case, Mr. Williams has acknowledged that the property failed the water test, had a septic tank problem, and was occupied without a permit.

   The Respondent testified that the connection to a public water system had been shut off as a former crew leader had not paid the bill as required by Mr. Williams. In addition, the Respondent detailed his problems with obtaining clean well water and in providing an adequate septic tank drainage field.

   Liability for violations of the Act does not depend on the knowledge of the person who owns or controls the premises. Therefore, the Respondent is liable.

   The Amount of the Civil Money Penalty.

DOL charged Respondent with "aggravated" violations for each of which DOL assessed a civil money penalty of $500, and "serious" violations for each of which DOL assessed a civil money penalty of $250.00. The penalties total $8,500.

   Section 503(a) of the Act, 29 U.S.C. § 1853(a), states:

(1) Subject to Paragraph (2), any person who commits a violation of this chapter or any regulation under this chapter, may be assessed a civil money penalty of not more than ,000 for each violation.

(2) In determining the amount of any penalty to be assessed under Paragraph (1), the Secretary shall take into account (A). The previous record of the person in terms of compliance with this chapter and with comparable requirements of the Farm Labor Contractor Registration Act of 1963, and the regulations promulgated under this chapter and such Act, and (B) the gravity of the violation.

   The factors to be considered when determining the amount of the penalty to be assessed are listed in 29 C.F.R. § 500.143(b) which states:

(b) In determining the amount of penalty to be assessed for any violation of the Act or these regulations the Secretary shall consider the type of violation committed and other relevant factors, including but not limited to the following:

(1) Previous history of violation or violations of this Act and the Farm Labor Contractor Registration Act;

(2) The number of workers affected by the violation or violations.

(3) The gravity of the violation or violations;

(4) Efforts made in good faith to comply with the Act;

(5) Explanation of person charged with the violation or violations;

(6) Commitment to future compliance, taking into account the public health, interest or safety, and whether the person has previously violated the Act;

(7) The extent to which the violator achieved a financial gain due to the violation, or the potential financial loss or potential injury to the workers.

   South Carolina OSHA had fined the Respondent $750.00 for violations consistent with 29 CFR § 1910.142(c)(1). [TR 69]. The state had taken the picture which Respondent photocopied and submitted as RX 1.

   Robbins testified that the Respondent

Had several notifications here that the water did not meet the standards. And, he's been advised by the Department of Labor and

by the Health Department on several occasions that without the housing--without the water meeting the standards, a certificate of occupancy will not be issued by the Department of Labor. Yet, he decided to go ahead and occupy that housing. And then when we came and asked for him to show us these facilities, he willfully decided not to take us to this one facility in question, trying to deceive us by taking us to a camp that was not on the list, knowing that we were not familiar with the area and would follow him as directed. And not until after we had left the investigation essentially and found through interviews with other employees elsewhere that in fact this camp did exist and was situated near the other camps, but we had not been given access to it. So, I don't believe he was operating in good faith and was deliberately trying to evade the requirements of the law. And, we caught him. [TR 58-59].

   After the inspection on July 24, Robbins and his co-worker, Ronald Edmark, informed the Respondent of the violations in the camp. The Respondent was advised to vacate the camp or make the necessary changes. [TR 39].

   Edmark testified that he visited the property on July 26 and noted that the septic tank field was not draining. Edmark informed the Respondent who stated that he was working on it. On July 29, the problem had not been remedied, and Williams was informed that he would have to remove the workers from the camp.

   The inspectors told the Respondent that they did not have the authority to remove the workers. [TR 88]. Robbins reported that the respondent

told us that if we wanted them removed that we'd have to do it ourselves, that he would not remove the workers, that he needed the workers and that if they were removed, it would force them to lose money, go out of business. And, he refused to make any changes, refused to remove the workers. [TR 51].

   Thereafter, DOL filed a motion for a temporary restraining order enjoining the use of the camp for housing workers until the violations were cured. The United States District Court granted the motion on August 6, 1993. [PX 18].

   Mr. Williams testified that his problems began when the crew leader did not pay the water bill and the service was disconnected. He furnished water in coolers for the workers to drink. He tried unsuccessfully to repair the septic tank drainage. [TR 102-103].

   The Respondent testified that

I pay the crew leader. I don't have anything to do with the migrants. If I have anything that's not right, I go to the crew leader and the crew leader handles everything. I don't have the authority to fire them or whatever.

... The crew leader is their Employer. And, I say it is not my responsibility. I don't it's not my responsibility and I don't have the authority to go in, say for instance, if you were a migrant, go in your room and tell you to clean this up. [TR 104].

Now in this camp here, I tell the crew leader right off, you keep the camp up so when the Department of Labor comes in here and checks you, that you're in compliance. I'm not going to police this camp and all and point out things that you need to do. [TR 105].

   Mr. Williams testified that he finally had to pay the water bill and put the camp back on city water. [TR 106]. He reported that he was currently running a camp and had been in compliance with the regulations since the incident in 1993. [TR 108].

   The record reflects that in mid May 1993 the state agency informed the Respondent that the water system had not been approved. [PX 9]. In early June, he was notified by a federal official that the camp should be vacated. [PX 8]. The state agency sent letters to the Respondent in the first half of June. [PX 17, PX 10, and PX 11].

   The camp was inspected on July 24, 1993 and the investigators met with the Respondent on that date and on the 26th and 29th of that month. Williams did not correct the defects or vacate the premises as a result of the directives. Ultimately, a temporary restraining order was issued in a U.S. District Court.

   I find that the Respondent had ample warnings of violations through notices in May and June of 1993. However, the Harrison Place Camp continued to be occupied and Williams steered the investigators away from that camp.

   In addition, following notice of the violations on July 24, the Respondent did not take significant corrective action or vacate the premises. A temporary restraining order was necessitated some two weeks later.

   Under the Act the owner of the camp is responsible for the violations. The camp was occupied without a permit and the Respondent had knowledge of and did not cure the water problem prior to the inspection. Thereafter, the camp remained occupied without correction of the violations.

   In light of the entire record and the fact that the civil money penalties imposed are far less than the ,000 per violation which MSPA permits, I find that the civil money penalties assessed in this matter $500.00 for each "aggravated" violation and $250.00 for each "serious" violation are reasonable and appropriate.

   It is ordered that WILLIAM WILLIAMS pay a civil money penalty of $8,500.00 to the UNITED STATES DEPARTMENT OF LABOR.

       RICHARD K. MALAMPHY
       Administrative Law Judge

RKM/ccb
Newport News, Virginia

Any appeal of the decision must be made within twenty (20) days and sent to the Administrative Review Board, U. S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. The Administrative Review Board has the responsibility to advise and assist the Secretary in deciding appeals under the Migrant and Seasonal Agricultural Worker Protection Act. See 29 C.F.R. § 500.264.