Generally, the procedure is such that a civil money penalty is assessed after an investigation is conducted. One of the on-sight investigators recommends the penalties, and it is the function of the assistant district director to review such recommendations for a final determination. TR 81. Gilbert Molina prepared the document detailing the violations and appropriate civil money penalties found on January 28, 1993. TR 21-22; PE 1. Sandra Goodman similarly prepared a document with respect to the March 24, 1994 investigation. TR 36; PE 7. In both instances, Taverner affirmed the investigator's conclusions, and ultimately issued civil money penalties against the Respondent. TR 82-83.

   The statute, 29 U.S.C. § 1823(a), for which Respondent is being held liable, states in relevant part, "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." 29 C.F.R. Section 500.133 illustratively defines substantive safety and health standards as those that "provide fire prevention, an adequate and sanitary supply of water, plumbing maintenance, structurally sound construction of buildings, effective maintenance of those buildings, provision of adequate heat as weather

conditions require, and reasonable protection for inhabitants from insects and rodents." The formal federal standards are promulgated by the Occupational Safety and Health Administration at 29 C.F.R. § 1910.142. See 29 C.F.R. § 500.132. As described in Plaintiff's Exhibit 1 and 7, such OSHA statute was the standard by which the violations were assessed. PE 1, p. 2-4; PE 7, p. 23-25.

   An analysis of whether a civil money penalty is appropriately assessed must consider the implementing regulating factors at 29 C.F.R. § 500.143. Such statute provides a standard by which to measure the egregiousness of a violation of the Act. The factors as delineated are:

(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 injury to the workers. 29 C.F.R. § 500.143(b).

   Respondent has had a lengthy relationship with the U.S. Department of Labor, Wage and Hour Division. It began in January of 1992, wherein an investigation by Alfred Varela, an investigator from the San Diego district office, was conducted of the Mecca Property but no penalties were pursued. TR 19-20, 86-87, 102-03. Most significantly, as a result of that investigation, Respondent was put on notice that possible MSPA violations existed on his property. Correspondence written by the Respondent is a confirmation of such fact. PE 23. However, with every notice which Plaintiff sent, including correspondence up through the final notice of penalty assessment on December 20, 1994, Respondent failed to remedy the situation documented by the witnesses living on the premises, the investigators observing the premises, and the video tapes and photographs. Throughout the course of this relationship, rather than redress any of the claims made by the investigators, Respondent merely denied the allegations in wholesale fashion. This is an inadequate defense given the weight of the evidence presented by Plaintiff.

   Although the total number of migrant workers affected by Respondent's MSPA's violations is unknown, I am sufficiently persuaded by the evidence gathered during the

two investigations that at least ten migrant workers were affected. 29 U.S.C. § 1802(8)(A) defines migrant agricultural worker as "an individual who is employed in agricultural employment of a seasonal or other temporary nature, and who is required to be absent overnight from his permanent place of residence." The witness statements taken in Spanish and translated into English are credible and trustworthy; I find no reason to disbelieve the witness' testimony regarding their work status and the description of their own habitable premises. PE 3-6, 9-14. Such statements did document that the individuals were employed in agricultural work of a seasonal or a temporary nature that required them to be absent overnight from their permanent place of residence. PE 3-6, 9-14.

   The gravity of Respondent's violations are thoroughly documented at Plaintiff's Exhibit 1 and 7. Both exhibits specifically describe the violations pursuant to OSHA 29 C.F.R. § 1910.42. Among the documented violations are problems of sanitation, inadequate structural conditions for habitable purposes and for the amount of people being accommodated, environmentally unsafe conditions with respect to water supply and drainage, and deficient appliances and electrical equipment for each room. PE 1, p. 2-4; PE 7, p. 23-25. As these violations are assessed with respect to its gravity and threat to an individual's safety and health, it is evident to me that the extensive violations delineated at Plaintiff's Exhibit 1 and 7 provide a clear basis for a civil money penalty assessment.

   Respondent's general denial defense incorporates three of the regulating factors: that he has failed to make a good faith effort to comply with the Act; that he has failed to adequately explain the documented conditions of the Mecca Property; and that he fails to show a commitment to future compliance, as he continues to refuse acknowledgment of such conditions on his property.

   In Respondent's pre-trial statement, he contends "[he] denies the allegation that he has at anytime rented any such facility to agricultural workers." Respondent's Pre-Trial Statement, p. 2. The opening statement of Respondent's counsel reiterates such position, "that there were no migrant workers that lived at this property, that there was no reason for him to believe there were any, and that the government won't be able to establish that there were any migrant workers living at the property or that he should have known that there were any." TR 15. I find that such denials lack good faith as there is no evidence that Respondent conducted his own investigation of the premises. Respondent provides no evidence contrary to Plaintiff's assertions other than his general belief. Given the fact that Respondent was on notice of such violations since January 1992, Respondent's mere inactivity is enough to show that Respondent has failed to make a good faith effort to comply with the Act. Moreover, Respondent's general denials provide no basis for explaining the MSPA violations. Respondent has failed to adequately explain why conditions at the Mecca Property were permitted to exist as they did. Finally, the fact that Respondent continues to deny that such conditions existed on the property leads me to believe that there is a lack of commitment to the standards enacted for the protection of migrant farm workers.

   The last regulating factor is the extent to which Respondent achieved a financial gain due to the MSPA violations. There is evidence in the record that sufficiently persuades me that the migrant workers living on the Mecca Property did pay monthly rent to Respondent through an agent for the sub-standard housing. The January 28, 1993 investigation revealed that $350 in rent was being paid to "Martin." PE 3, 4, 5. Two witness statements taken from the March 28, 1994 investigation conclusively show: that the two agents of Respondent collected rent from occupants of the Mecca Property over a period of years for Respondent; that the agents believed that Respondent's heart condition prevented him from collecting the rent himself; that the rent was being transmitted to Respondent in the form of a money order. TR 44-45; PE 21, 22. These statements undeniably establish that Respondent did realize a financial gain due to the MSPA violations.

   Having now reviewed the regulating factors that which provide the bases for assessing a civil money penalty, I conclude that Plaintiff's actions were appropriate in light of the investigations conducted on January 28, 1993 and March 24, 1994. Moreover, I find that Respondent's general denial defense is insufficient to overcome the evidence presented by Plaintiff.

   Finally, given the correspondence in the record between Respondent and Plaintiff, together with Respondent's presentation throughout the hearing, it is clear to me that Respondent bases his defense, at least in part, on a scienter requirement; arguing that a civil money penalty is not appropriate because he did not know nor did he permit migrant agricultural workers to live on the Mecca Property. However, Section 1853(a), the section that authorizes civil money penalties, does not contain a scienter requirement. Conlan v. United States Department of Labor, 76 F.3d 271, 274 (9th Cir. 1996). Before strict liabilty attaches under Section 1853(a), a person must have violated a provision of the MSPA. The applicable provision which has been violated is Section 1823(a). The MSPA does not require that a property owner know that migrant agricultural workers are living on the property. The statute merely requires that the owner, or someone with the right to control the property, use the property "for" housing migrant agricultural workers. Id. At 274-76. In light of the plain meaning of the MSPA statutory language and Conlan, I find that Respondent's scienter is immaterial and that he was correctly penalized for the conditions that existed on his property.

   The Plaintiff's Proposed Findings of Fact and Conclusions of Law are incorporated herein by reference.

   It is hereby ordered that the Secretary's determination that the civil money penalties assessed against the Respondent as a result of the January 28, 1993 and March 24, 1994 investigations be affirmed. Respondent shall promptly remit the amount of penalties,

$13,600.00, by certified check or money order, made payable to the order of "Wage and Hour Division, U.S. Department of Labor." 29 C.F.R. § 500.144.

      HENRY B. LASKY
      Administrative Law Judge

Dated: January 23, 1998
San Francisco, California