OSHA questions its own fines after deadly scaffold collapse - FOX5 Vegas - KVVU

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OSHA questions its own fines after deadly scaffold collapse

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A scaffold is left mangled after a collapse at Tivoli Village on August 22, 2016. (FOX5) A scaffold is left mangled after a collapse at Tivoli Village on August 22, 2016. (FOX5)
LAS VEGAS (FOX5) -

After a FOX5 investigation that has lasted more than six months, OSHA is re-examining their decision to fine a company just $7,000 for two serious violations that led to an employee’s death.

Ricardo Bautista, a husband and father of three, died in a scaffold collapse at Tivoli Village on Aug. 22, 2016. The company he worked for, Performance Builders Incorporated, is being held responsible for the death.

“I just can’t understand it, that this happened,” his widow, Jacquelyne Moreno, said. “(My son) tells me he just wants to go to heaven with his dad.”

OSHA offers discounts

According to OSHA, there were more than 50 spots on Performance Builders’ scaffold that were missing coupling pins to lock connections into place.

FOX5 found out Performance Builders has a history of problems with their scaffolds and committed the exact same violations less than a month later on a work site at The District.

OSHA has investigated Performance Builders 15 times since 2013. Four of those cases opened after the case at Tivoli Village.

Still, OSHA offered Performance Builders a 30 percent discount. The fines, which were originally $10,000, were reduced 20 percent, due to the company’s size, and 10 percent due to the company’s “good history.”

"It looks to be like it possibly is a mistake, but I'd have to do further research."

“To be honest with you, in this particular case, we’re still trying to figure out exactly how the 10 percent was applied,” OSHA Chief Administrative Officer Jess Lankford said. “It looks to be like it possibly is a mistake, but I’d have to do further research.”

Many of FOX5’s sources said the small $7,000 fine proves OSHA is sending a message: that it is cheaper to pay a penalty than have a safe work site.

“Yeah, I’ve seen that claim a couple times. It’s an interesting perspective, but I don’t think I have a comment on that,” Lankford said. “I could definitely see both sides of it.”

Although Lankford declined to say whether he personally thought the fines were appropriate in severity, Lankford defended his office’s decision to fine Performance Builders the initial $10,000 under the current guidelines.

“The fact there’s a fatality, there’s no penalty for fatalities,” he said, adding that a change would be up to state legislators.

Currently, the federal OSHA system has more severe fines than Nevada’s OSHA system, according to Lankford. He said Nevada’s rules may follow suit by 2019, although state lawmakers have the option to go their own path.

“Right now we’re reviewing how we do reductions and how we interact with businesses that have repeat violations because we need to make sure the deterrent effect works,” Lankford said. “I think it is lenient to a certain degree because of the way it’s been structured over the years.”

The whole argument is irrelevant for the victim’s wife. If Performance Builders pays, the money goes to the government, not to the family.

“We don’t want to see fines,” Moreno said. “I’d like to see (the owner) in jail.”

She isn’t the only one.

Criminal investigation

Performance Builders’ owner Randy Sorensen has denied all requests for an interview. Multiple people, including Bautista’s brother-in-law, came forward to say Sorensen fired them for questioning his company’s safety.

Union protestors hold signs outside of Performance Builders’ office and work sites. Their goal is to make sure general contractors know what they are getting themselves into when they hire the company.

One of the signs reads, “PERFORMANCE BUILDERS, MAKING A KILLING OFF YOU?”

Another reads, “WARNING, DANGER ZONE, OSHA SAFETY VIOLATOR”

When FOX5 dropped by Performance Builders’ office on Arcata Way in North Las Vegas, Sorensen jumped out of a meeting to kick us off the property.

“He has his challenges,” Lankford said. “He’s very opinionated and he’s very firm in how he deals with his business.”

"(Sorensen) could have identified the cut brace that was on ground level and in plain view."

Under the current law, Sorensen could have faced criminal charges if OSHA classified the violations against his company as “willful” instead of “serious.”

Lankford said OSHA hands out “willful” violations if a business or business owner shows “clear disregard for the standards” or a “willful indifference to the standard” that results in a death.

Aside from the repetitive violations involving scaffolding, OSHA documents pointed out specific problems with Sorensen and his company during the Tivoli Village investigation.

In the days leading up to the scaffold collapse, investigators wrote Sorensen was on site but ignored a safety violation that led to Bautista’s death.

“(Sorensen) could have identified the cut brace that was on ground level and in plain view,” read the report.

The investigator also wrote, “The overwhelming majority of (safety checklists) are missing information or identify issues that were simply not followed up on.”

Lankford acknowledged reading those statements, but he declined to say whether a criminal investigation into Sorensen was ever on the table.

“I can’t answer that,” he said. “I would have to hold my opinion on that one for a later date.”

A culture of safety

Representatives for some of the general contractors who have hired Performance Builders for recent jobs said they have seen FOX5’s coverage of this story.

“I didn’t hire them … To be honest with you, I keep a close eye on them,” a superintendent for SR Construction said on one job site. “They have a safety inspection every day that gets turned into me … it ain’t going to happen on my job.”

Other superintendents, on other job sites, haven’t been so willing to answer questions.

After OSHA opened a case against Performance Builders in Jan. at the Hard Rock Hotel, a superintendent with Shawmut Design and Construction kicked FOX5 investigators off the property.

“They’ll be here about two more days and they’ll be done,” he said. “That’s it. No more questions. I’d like you to leave, okay?”

A banner outside reads, “SHAME ON THE HARD ROCK HOTEL.”

Frank Hawk, a representative with the Southwest Regional Council of Carpenters union, said some general contractors like SR Construction and Shawmut Design and Construction keep hiring Performance Builders because they offer such cheap prices.

Jessie Lewis, a former employee, said he would advise those general contractors to not make another deadly mistake by hiring Performance Builders.

“I would actually like to make sure they’re never up and running again,” Lewis said.

The former employee said it’s a tough statement to make because his brother still works for Performance Builders. Both of them knew Bautista and were there the day the scaffold collapsed. Either one of them could have been on the scaffold when it crumbled.

“If I could, I’d slash (my brother’s) tires. I wish he wouldn’t be able to go to work,” Lewis said. “I haven’t been out in the field since.”

Still, Lewis stayed on with the company for a few months and said he decided he would try to fix Performance Builders’ safety problems from the inside. Sorensen offered Lewis a promotion if he would stay, and he took it.

Lewis said, at the time, he wasn’t trained enough to know that the scaffold at Tivoli Village was set up properly. He didn’t learn until afterwards that it was missing the pins that would have locked the connections into place.

“About two months later, (Sorensen) ended up ordering about 500 - 600 pins. We didn’t have no pins actually,” Lewis said. “The only ones we did have were all rusted, all beat up.”

Lewis said he was eventually fired after reporting Performance Builders to OSHA.

“(OSHA says) you can call them anonymously, tell them if a site is done wrong,” Lewis said. “I’ve done it twice, and nobody has shown up."

Lankford had no way of looking up Lewis’ anonymous phone calls, but he said sometimes OSHA will send a letter to the company asking them to fix the problems instead of having an investigator check out the work site.

Either way, Lewis said he hopes his story helps people understand that safety isn’t a priority for Performance Builders.

“It seems like the only time they’re ever trying to worry about safety is to make sure people like you don’t catch them,” he said. “I wish I had some of Randy’s money to give (to the victim’s family).”

Performance Builders files an appeal

Sorensen and his attorney, John Wiles, are expected to appear at public hearings in Mar. and Apr. to contest the fines levied against the company.

One of the cases, stemming from violations at The District, is scheduled to go before the OSHA Review Board on Mar. 8.

The deadly case at Tivoli Village is scheduled to go before the OSHA Review Board on Apr. 13.

Lankford said, at this point, OSHA will not be offering Performance Builders a settlement. Once the board makes a decision, the case could be appealed by either side and be sent to district court.

Copyright 2017 KVVU (KVVU Broadcasting Corporation). All rights reserved.

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