U.S. Department of Labor Office of Administrative Law Judges
50 Fremont Street
Suite 2100
San Francisco, CA 94105
DATE: JANUARY 23, 1998
CASE NO. 96-MSP-29
In the Matter of
FARIBORZ HORMOZI, Respondent.
DECISION AND ORDER
The Secretary of the United States Department of Labor (hereinafter
"Plaintiff"), in the above-captioned matter seeks to affirm civil penalties against the
Respondent under the Migrant and Seasonal Workers' Protection Act (hereinafter
"MSPA"), 29 U.S.C. § 1801 et seq., and the applicable regulations
thereunder. A formal hearing regarding the matter was conducted in Long Beach, California on
November 18, 1997.
On November 14, 1997, the Friday before trial, the undersigned received a
letter from Respondent's counsel seeking a 10-week continuance in the instant matter. Such
request was based on the supplementing information that Respondent suffered from a long-standing heart condition. Plaintiff responded on November 14, 1997 with an objection to the late
request for a continuance, arguing that the Government's case would be prejudiced if granted.
Thereafter, the undersigned issued an Order for Denying Motion for Continuance because of its
untimeliness, and advised that the matter was to proceed to hearing as scheduled on November
18, 1997.
On the morning of trial on November 18, 1997, Respondent did not appear
and his counsel renewed his motion for continuance. Respondent's counsel stated that
Respondent was unable to attend the hearing due to illness. Transcript (hereinafter
"TR") 6. After hearing oral argument from both counsel on the issue, the
undersigned reached a decision to hold the record open for thirty days following the date of the
hearing for the purposes of taking Respondent's deposition. Such accommodations were made to
afford Respondent with the opportunity to testify on his own behalf under oath without having to
endure the stress of participating in a hearing. TR 12.
At the hearing, Plaintiff's Exhibits 1 through 23 were admitted, Exhibits 19
and 20 were video tapes. Respondent did not call any witnesses nor did he offer any
documentary evidence or exhibits. Respondent also failed to exchange all relevant documents to
the proceeding with Plaintiff as required by the Pre-Trial Order. The parties were afforded the
opportunity to file proposed findings of fact and conclusions of law on or before January 5, 1998.
Plaintiff's submission was timely received. Respondent apparently elected not to testify under
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oath in a post-trial deposition, as no transcript was submitted; Respondent also failed to submit
proposed findings of fact and conclusions of law. Based upon the entire record of evidence, I
make the following findings of fact and conclusions of law, and order.
FINDINGS OF FACT AND CONCLUSIONS OF
LAW
This case involves Respondent's alleged violations of the MSPA, 29
U.S.C. § 1823(a), a regulation which provides that housing for migrant agricultural
workers must comply with certain Federal and State safety and health standards. The property at
issue is described as 90-801 Avenue 66, Mecca California (hereinafter "Mecca
Property"). Plaintiff's Exhibit (hereinafter "PE") 15, 16, 17, 18. At all times
relevant to this action, Respondent has been the record owner of such property. TR 43; PE 15,
16.
The November 18, 1997 hearing was the culmination of two formal
investigations conducted by the Wage and Hour Division of the Department of Labor. On these
two occasions, January 28, 1993 and March 24, 1994, the Wage and Hour Division found
migrant farm workers living in sub-standard conditions at the above mentioned property. PE 1,
7. After compiling a substantial amount of evidence in the form of documentary statements from
witnesses living on the premises, and video tapes and photographs of the living conditions, the
investigators assessed civil money penalties pursuant to Section 1853(a) of the Act, as a result of
the alleged violations of Section 1823(a) of the Act, and applicable regulations issued thereunder,
including 29 C.F.R. § 500 et seq. The amount assessed in connection with the
January 28, 1993 investigation was $7,000.00, PE 1, p. 2-4; the amount assessed in connection
with the March 24, 1994 investigation was $6,600.00. PE 7, p. 22. A check list with respect to
each actual violation is documented at Plaintiff's Exhibit 1 and 7.
The January 28, 1993 investigation of the Mecca Property was conducted
by Gilbert Molina and Brian Taverner, investigators from the Wage and Hour Division. TR 19,
80. During that investigation, statements were taken from various individuals found on the
property: Augustin Martinez, TR 23; PE 3, Guillermo Martinez, TR 24; PE 4, Luz Perez, TR 25;
PE 5, Saul Villagomez, TR 25; PE 6. The commonalities among the statements were: that the
individual was working as a migrant laborer; that the individual lived on the subject premises
which was being investigated; that the individual contributed some amount to the total rent per
month; the total rent among the occupants was $350.00 per month. Three of the four people
stated that the rent was being paid to a person named "Martin." PE 3, 4, 5. A video
tape of the January 28, 1993 investigation was entered into evidence. PE 20. This video tape
exhibit documented two beds in the kitchen, a leaking pipe in the kitchen, a dilapidated roof, a
broken light fixture, and an open electrical unit. PE 20.
On March 24, 1994, an investigation of the Mecca Property revealed
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similar health and safety violations as the prior investigation, and that six individuals occupying
the property were migrant workers. TR 46-49, 60-61, 66, 72-74. Sandra Goodman, David
Dorame, Marga Morales and Brian Taverner participated in this investigation. TR 33, 63-64, 72,
79. Goodman summarized what she saw during that investigation, "[w]e found a structure
with migrants living in there, and we found some violations in the form of some health risks as
far as sewage water on the ground that was seeping. Some of the surrounding area of the stove
and the kitchen seemed to pose a threat as far as fire hazard because of the grease and just the
general condition of the area." TR 34-35. Goodman participated extensively in this
investigation: taking the photographs of the property found at Plaintiff's Exhibit 8, p. 1-48, TR
35; completing a form which describes the various violations, TR 36; drawing an interior
diagram of the bedding and the rooms as found during the investigation, PE 18, TR 43-44; and
taking statements from various witnesses and translating statements taken in Spanish, PE 9-14,
21; TR 46-49. Goodman conducted a telephonic interview wherein she spoke to two brothers,
Salvador Lopez and Horacio Lopez, who stated that they had been collecting rent for the past
three years for Respondent. PE 21, 22; TR 43-45.
David Dorame, another person participating in the March 24, 1994
investigation, testified that he was employed by the State of California in the Department of
Industrial Relations, Labor Commissioner's Office, in the Targeted Industries Partnership
Program ("TIPP unit"). TR 63. In his testimony, Dorame confirmed the conditions
that were photographed in Plaintiff's Exhibit 8, and also stated that he took statements from three
different individuals. TR 64-66; PE 10, 13, 14. Dorame also appears in the video tape exhibit
found at Plaintiff's Exhibit 19. He is seen taking one of a series of statements from an inhabitant
of the premises. He explained that all of the statements contain testimony that the witnesses have
only worked in agricultural fields harvesting various commodities, and have never worked for
any markets, stores, or packing houses. PE 19.
Marga Morales, another TIPP employee, also testified to investigating the
Mecca Property on March 24, 1994. TR 72. She confirmed the photographs that were taken in
Plaintiff's Exhibit 8, and testified to taking two of the witness statements. TR 73-74; PE 11, 12.
Morales also stated in an affirmative fashion, "when we put the statements together,
they seemed to concur as to a period of time and where they were working and where they had
come from and how they traveled together and that they were agricultural workers and they had
been working in the agricultural industry for six to seven years up and down the state." TR
75.
The last witness to testify at the hearing was Brian Taverner, the assistant
district director in the Santa Ana office, San Diego district office, in the U.S. Department of
Labor, Wage and Hour Division. TR 77. Taverner participated in both investigations, and
personally observed the conditions of the subject premises. TR 79, 86. Taverner confirmed the
six photographs of the subject premises taken by Gilbert Molina found at Plaintiff's Exhibit 2 and
the twenty-three photographs taken by Sandra Goodman found at Plaintiff's Exhibit 8. Taverner
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also testified to taking two of the photographs on March 24, 1994. PE 8, p. 49, 50; TR 79-80.
He responded affirmatively when asked whether the pictures accurately reflected conditions that
he remembered during the investigations. TR 79. Taverner also testified that he was the person
who made the video tapes on both occasions. TR 80.
One of the most significant points of Taverner's testimony was his
explanation of Plaintiff's Exhibits 1 and 7, documents which detail the violations of the OSHA
standards for each investigation. TR 83. He testified that after such detailed findings are made,
penalties are assessed according to the degree of the violation: aggravated, serious or marginal.
TR 83. Taverner explained the differences among such categories,
An aggravated violation would mean a violation that could pose an
immediate threat to the occupants, an immediate violation of the safety and
housing standards. . . . A serious violation would be something that could
seriously effect [sic] the health and safety of the residents. . . . A marginal
violation would be a violation of the safety and health regulations which would
not have an immediate or serious effect on the employees. It may be something
that would be an actual violation but not cause a problem to the residents at that
time. TR 83-84.
1 Taverner explained that the amounts
attributed to each type of violation can change over a period of time. Thus, in January of 1993 the amount assessed
for a serious penalty may have been $350. TR 85.