United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

100 Alabama St. S.W 

Building 1924 Room 2R90 

Atlanta, GA 30303-3104 

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 16-1163

PAYTON ROOFING, INC.,

Respondent. 

DECISION AND ORDER

COUNSEL: Patricia J. Craft, Attorney, U.S. Department of Labor, Office of the Solicitor, 

Atlanta, GA, for Complainant. 

Timothy D. Payton, Pro se, Coral Springs, FL, for Respondent. 

JUDGE: John B. Gatto, United States Administrative Law Judge. 

I. INTRODUCTION

Payton Roofing, Inc. was cited by the United States Department of Labor’s Occupational 

Safety and Health Administration (OSHA)1 on July 1, 2016, for an alleged serious2 violation of 

the Occupational Safety and Health Act of 1970 (Act)

3 and the standards promulgated 

thereunder.4

 Specifically, OSHA asserted Payton Roofing’s employees were engaged in roofing 

repair work on January 19, 2016, without complying with OSHA’s fall protection standard 

applicable to safety monitoring systems.

5

 The citation proposed a penalty of $2,400.00, which 

Payton Roofing timely contested. 

 1 OSHA’s Area Directors have the authority to issue citations and proposed penalties to enforce the Act. See 29 

C.F.R. §§ 1903.14(a) and 1903.15(a).

2 See infra, the “Classification” section for the definition and analysis of a “serious” violation.

3 See 29 U.S.C. §§ 651–678. 4 See 29 U.S.C. § 654(a)(2) (each employer shall comply with occupational safety and health standards 

promulgated under the Act).

5 See 29 C.F.R. § 1926.502(h)(1)(iii).
The Court finds the Commission has jurisdiction of this action under section 10(c) of the 

Act, 29 U.S.C. § 659(c) and that Payton Roofing is an employer within the meaning of section 

(5) of the Act, 29 U.S.C. § 652(5). Although Timothy Payton served as the registered agent of 

Payton Roofing, was one of its corporate officers, and filed Payton Roofing’s notice of contest

contesting the “fine,” he failed to appear at the pretrial conference and failed to appear at trial, 

both after having been properly noticed at his mailing address of record and at his email address 

of record. At trial, the Secretary of Labor moved for a default judgment, which the Court denied, 

since the Secretary has the burden of proof. 

Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, after carefully 

considering all the evidence and the arguments of counsel, the Court issues this Decision and 

Order as its findings of fact and conclusions of law.6

 If any finding is in truth a conclusion of 

law, or if any stated conclusion is in truth a finding of fact, it shall be deemed so. For the reasons 

indicated infra, the citation is AFFIRMED and Payton Roofing is assessed a civil penalty of 

$2,800.00. 

II. BACKGROUND

On January 19, 2016, on his way to work, Eduardo Vivas-Vendrell (Vivas), an OSHA 

Compliance Safety and Health Officer, passed a commercial roofing project in Pembroke Pines, 

Florida, and observed employees working on top of a roof about 9 feet off the ground. Vivas

noticed the employees appeared to be working without any fall protection. After Vivas opened 

an inspection of the worksite, Vivas initially noticed the workers on the front side of the roof, 

and upon walking around the building, also noticed employees working on the backside of the 

roof, which he was unable to see while he was standing in front of the building. Vivas 

personally observed that none of the employees had any fall protection. 

Timothy Payton, an officer of the company,7 was on the ground on the front side of the

building when Vivas arrived on the worksite. Timothy Payton admitted to Vivas that the 

employees on the roof were Payton Roofing employees. When asked by Vivas why none of the 

 6 This case was designated for Simplified Proceedings where the complaint and answer requirements were 

suspended, the Federal Rules of Evidence are inapplicable, and within 45 days of the hearing a written decision must 

be issued. See 29 C.F.R. §§ 2200.200-211. 7 It is not clear whether Timothy Payton is the company’s President or its Secretary. On February 8, 2010, 

Timothy Payton filed an amendment with the Florida Secretary of State’s Division of Corporations removing 

himself as President and installing himself as Secretary. However, since then Timothy Payton has continued to file 

the company’s annual reports listing himself as President. See the online corporate records of the Florida Secretary 

of State’s Division of Corporations at http://dos.myflorida.com/sunbiz/search/. 
workers had any fall protection, Timothy Payton stated, “I’m the monitor.” Sometime in June, 

Vivas called Timothy Payton to obtain information about Payton Roofing’s safety program. 

Payton could not talk and told Vivas to call him later, which Vivas did. Vivas “called and called 

and he never returned the call back again.” Thus, Payton Roofing did not provide any 

information to Vivas regarding any company safety program it had in effect. 

III. ANALYSIS

The fundamental objective of the Act is to prevent occupational deaths and serious 

injuries. Whirlpool Corp. v. Marshall, 445 U.S. 1, 11 (1980). To achieve this purpose, the Act 

imposes two duties on an employer: a “general duty” to provide to “each of his employees 

employment and a place of employment which are free from recognized hazards that are causing 

or are likely to cause death or serious physical harm to his employees,” 29 U.S.C. § 654(a)(1); 

and a specific duty to comply with all applicable occupational safety and health standards 

promulgated under the Act. Id. § 654(a)(2). Pursuant to that authority the standard at issue in 

this case was promulgated.8

In the Eleventh Circuit, the jurisdiction in which this case arose,9 “the Secretary will 

make out a prima facie case for the violation of an OSHA standard by showing (1) that the 

regulation applied; (2) that it was violated; (3) that an employee was exposed to the hazard that 

was created; and importantly, (4) that the employer “knowingly disregarded” the Act's 

requirements. ComTran Grp., Inc. v. U.S. Dep't of Labor, 722 F.3d 1304, 1307 (11th Cir. 2013). 

“If the Secretary establishes a prima facie case with respect to all four elements, the employer 

may then come forward and assert the affirmative defense of unpreventable or unforeseeable 

employee misconduct.” ComTran, 722 F.3d at 1308. 

 8 The Secretary of Labor delegated his authority under the Act to the Assistant Secretary of Labor for 

Occupational Safety and Health, who heads OSHA, and assigned responsibility for enforcement of the Act to 

OSHA. See 65 Fed.Reg. 50017 (2000). The Assistant Secretary has promulgated occupational safety and health 

standards, see e.g., 29 C.F.R. Parts 1910 and 1926. 9 The worksite was in Pembroke Pines, Florida, and the Florida Secretary of State’s online records indicate Payton 

Roofing’s principal address is in Coral Springs, Florida. Therefore, both parties may appeal the final order in this 

case to the Eleventh Circuit Court of Appeals, and in addition, Payton Roofing may also appeal to the District of 

Columbia Circuit. See 29 U.S.C. §660(a) & (b). The Commission has held that “[w]here it is highly probable that a 

case will be appealed to a particular circuit, the Commission generally has applied the precedent of that circuit in 

deciding the case— even though it may differ from the Commission's precedent.” Kerns Bros. Tree Serv., 18 BNA 

OSHC 2064, 2067 (No. 96-1719, 2000). Here, the Court applies the precedent of the Eleventh Circuit in deciding 

the case where it is highly probable that any appeal in this case will be taken. 
Alleged Violation 

The citation alleges Payton Roofing committed a serious violation of the Secretary’s fall 

protection standard related to fall protection systems criteria and practices, when the “safety 

monitor was not on the same walking/working surface and within visual sighting distance of the 

employee being monitored.” The Secretary’s fall protection standard specifically mandates that

the employer “shall designate a competent person to monitor the safety of other employees and 

the employer shall ensure that the safety monitor . . . shall be on the same walking/working 

surface and within visual sighting distance of the employee being monitored[.]” 29 C.F.R. § 

1926.502(h)(1)(iii). 

Applicability of Standard

The Secretary’s fall protection standard applies to “each employee engaged in roofing 

work on low-slope roofs, with unprotected sides and edges 6 feet (1.8 m) or more above a lower 

level.”10 29 C.F.R. § 1926.501(b)(10). “Roofing work” is defined as “the hoisting, storage, 

application, and removal of roofing materials and equipment, including related insulation, sheet 

metal, and vapor barrier work, but not including the construction of the roof deck.” 29 C.F.R. § 

1926.500(b). A “low-slope roof” means “a roof having a slope less than or equal to 4 in 12 

(vertical to horizontal).” Id. Here, Payton Roofing’s employees were engaged in roofing work 

since they were involved in the application and removal of roofing materials. Payton Roofing’s 

employees were working on a roof with unprotected sides and edges approximately 9 feet above 

the lower level. Vivas measured the roof and determined it was a “low slope” roof since it 

measured 3 in 12. Therefore, the Secretary’s fall protection standard was applicable to the cited 

condition. 

Standard Violation 

Timothy Payton admitted to Vivas that he was the company’s safety monitor on site. As 

indicated supra, under the Secretary’s cited standard, Payton Roofing was required to “ensure 

that the safety monitor . . . shall be on the same walking/working surface and within visual 

sighting distance of the employee being monitored[.]” 29 C.F.R. § 1926.502(h)(1)(iii). Here, 

when Vivas arrived on the worksite and observed Payton Roofing’s employees working on the 

roof without fall protection, Timothy Payton was on the ground and therefore was not on the 

 10 “Lower levels means those areas or surfaces to which an employee can fall. Such areas or surfaces include, but 

are not limited to, ground levels, floors, platforms, ramps, runways, excavations, pits, tanks, material, water, 

equipment, structures, or portions thereof.” 29 C.F.R. § 1926.500(b).
same walking/working surface of the employees he was monitoring. Further, since Vivas

observed employees working on both the front side and backside of the roof and when he arrived 

Timothy Payton was on the ground in the front of the building, Timothy Payton was not within 

visual sighting distance of the employees he was monitoring that were working on the backside 

of the roof. Thus, the Secretary has established that Payton Roofing violated the cited standard. 

Exposure to Hazard 

“The Secretary always bears the burden of proving employee exposure to the violative 

conditions.” Fabricated Metal Products, Inc., 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997) 

(citations and footnotes omitted). The Commission’s longstanding “reasonably predictable” test 

for hazard exposure requires the Secretary to “show that it is reasonably predictable either by 

operational necessity or otherwise (including inadvertence), that employees have been, are, or 

will be in the zone of danger.” Delek Ref., Ltd., 25 BNA OSHC 1365, 1376 (No. 08-1386, 2015) 

(citing Fabricated Metal Prods., Inc., 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997)). See 

also Rockwell Intl. Corp., 9 BNA OSHC 1092 (No. 12470, 1980); Gilles & Cotting, 3 BNA 

OSHC 2002 (No. 504, 1976). 

 The zone of danger is the “area surrounding the violative condition that presents the 

danger to employees.” Boh Bros. Constr. Co., LLC, 24 BNA OSHC 1067, 1085 (No. 09-1072, 

2013) (citing RGM Constr. Co., 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995)). As the 

Commission noted in Gilles & Cotting, 3 BNA OSHC at 2003, the scope of the zone of danger is 

relative to the wording of the standard and the nature of the hazard at issue. Here, the zone of 

danger presented was the unprotected sides and edges of the roof. “Our inquiry then is whether 

the employees' proximity” to the unprotected sides and edges of the roof “makes it reasonably 

predictable that they will enter these zones of danger by slipping or falling.” Fabricated Metal, 

18 BNA OSHC at 1076. 

The photographs taken by Vivas, and corroborated by his testimony, clearly establish the 

proximity of some of Payton Roofing’s employees to the unprotected sides and edges of the roof, 

which “makes it reasonably predictable that they will enter these zones of danger by slipping or 

falling.” Thus, the Court concludes the Secretary has shown “that it is reasonably predictable 

either by operational necessity or otherwise (including inadvertence), that employees have been, 

are, or will be in the zone of danger” without proper fall protection. Delek Ref., Ltd., 25 BNA 

OSHC at 1376. Therefore, the Secretary has established employee exposure to the cited 

conditions. 
Knowledge of Violation 

“The knowledge element of the prima facie case can be shown in one of two ways.” 

Eller-Ito Stevedoring Co., LLC v. Sec'y of Labor, 567 F. App'x 801, 803 (11th Cir. 2014) (citing 

ComTran at 1307). “First, where the Secretary shows that a supervisor had either actual or 

constructive knowledge of the violation, such knowledge is generally imputed to the employer.” 

Id. (citing ComTran at 1307–08). “In the alternative, the Secretary can show knowledge based 

upon the employer's failure to implement an adequate safety program, with the rationale being 

that—in the absence of such a program—the misconduct was reasonably foreseeable.” Id. at 

803-04 (citing ComTran at 1308).

However, in the Eleventh Circuit, a “supervisor's ‘rogue conduct’ cannot be imputed to 

the employer in that situation. Rather, ‘employer knowledge must be established, not vicariously 

through the violator's knowledge, but by either the employer's actual knowledge, or by its 

constructive knowledge based on the fact that the employer could, under the circumstances of the 

case, foresee the unsafe conduct of the supervisor [that is, with evidence of lax safety 

standards].’” ComTran at 1316 (citation omitted). Here, Timothy Payton was not just a 

supervisor; he was a corporate officer of Payton Roofing. Therefore, not only did Timothy

Payton have actual knowledge of his violative conduct but so did Payton Roofing, since a 

corporation “cannot act other than through its officers, employees, and agents.” United Techs. 

Corp. v. Mazer, 556 F.3d 1260, 1271 (11th Cir. 2009); Palazzo v. Gulf Oil Corp., 764 F.2d 1381, 

1385 (11th Cir.1985). Therefore, the Secretary has established Payton Roofing’s actual 

knowledge. 

Classification

A “serious violation shall be deemed to exist in a place of employment if there is a 

substantial probability that death or serious physical harm could result from a condition which 

exists, or from one or more practices, means, methods, operations, or processes which have been 

adopted or are in use, in such place of employment unless the employer did not, and could not 

with the exercise of reasonable diligence, know of the presence of the violation.” 29 U.S.C. § 

666(k). Thus, “[w]hether the employer intended to violate an OSHA standard is irrelevant. The 

only question relevant to the employer's state of mind is whether he knew or with the exercise of 

reasonable diligence could have known of the violation.” Georgia Elec. Co. v. Marshall, 595 
F.2d 309, 318–19 (5th Cir. 1979).11 Here, the employees were exposed to a fall of 

approximately 9 feet to the ground. Such falls “could result in death or serious physical harm.” 

Therefore, the Court concludes the violation was a serious violation. 

IV. PENALTY DETERMINATION

The Secretary proposed a penalty of $2,400.00 for the violation. Under the Act, an 

employer who commits a “serious” violation may be assessed a civil penalty of up to $7,000 for 

each such violation.12 29 U.S.C. § 666(b). The Commission is empowered to “assess all civil 

penalties” provided in this section, “giving due consideration to the appropriateness of the 

penalty with respect to the size of the business of the employer being charged, the gravity of the 

violation, the good faith of the employer, and the history of previous violations.” 29 U.S.C. § 

666(j). “These factors are not necessarily accorded equal weight; generally speaking, the gravity 

of a violation is the primary element in the penalty assessment.” J.A. Jones Constr., 15 BNA 

OSHC 2201, 2216 (No. 87-2059, 1993) (citing Trinity Indus., Inc., 15 BNA OSHC 1481, 1483 

(No. 88-2691, 1992)). 

The gravity of the violation includes the number of exposed employees, the duration of 

exposure, the precautions taken to prevent injury, and the degree of probability that an injury 

would occur. Merchant's Masonry, Inc., 17 BNA OSHA 1005, 1006-07 (No. 92-424, 1994). 

With respect to the gravity of this violation, the Court finds the severity of the violation was 

high since a 9-foot fall from the roof would likely result in death or serious physical harm and 

the probability was greater since there were 9 or 10 employees working on the roof. 

With respect to the size of the business, Payton Roofing was small, with only 9 or 10 

employees. OSHA gave Payton Roofing a 60% penalty adjustment for its size, which the Court 

finds appropriate. As to history, since there is no evidence Payton Roofing has been previously 

inspected, the Court concludes Payton Roofing should receive neither a reduction, nor an 

 

11 The Eleventh Circuit was created when the Fifth Circuit split on October 1, 1981. Immediately after the split, 

the Eleventh Circuit stated in Bonner v. City of Prichard, Alabama, 661 F. 2d 1206 (11th Cir. 1981), that any 

opinion issued by the Fifth Circuit before the close of business on September 30, 1981 is binding precedent on the 

Eleventh Circuit. 12 In 2015, Congress passed the Federal Civil Penalties Inflation Adjustment Act Improvements Act, directs 

agencies to adjust their penalties for inflation each year and requires agencies to publish “catch up” rules to make up 

for lost time since the last adjustments. As a result of OSHA’s “catch up” rules, OSHA’s maximum penalties, 

which had not been raised since 1990, increased by 78%. Thus, an employer who commits a serious violation after 

November 2, 2015, may be assessed a civil penalty of up to $12,471 for each such penalty assessed after August 1, 

2016. 
increase based on their OSHA inspection history. Payton is also not entitled to a reduction for 

good faith since there is no evidence in the record establishing Payton Roofing’s effort to 

implement an effective workplace safety and health management system. Therefore, giving due 

consideration to the size of the business, the gravity of the violation, good faith, and history, the 

Court finds the appropriate civil penalty is $2,800.00.13 Accordingly, 

V. ORDER

IT IS HEREBY ORDERED THAT the citation is AFFIRMED and Payton Roofing is 

assessed and directed to pay to the Secretary a civil penalty of $2,800.00. 

SO ORDERED.

 /s/ John B. Gatto 

 John B. Gatto 

 Administrative Law Judge 

Dated: December 2, 2016 

Atlanta, GA

 13 It appears OSHA provided its 60% penalty reduction for size to a gravity-based penalty determination of 

$6,000, which is a severity level of “medium” rather than “high.” However, as indicated supra, the Court found the 

severity was high.