Cal/OSHA Referral to DA Leads to Conviction of Roofing Contractor and Foreman

SAN FRANCISCO, May 23, 2011 /PRNewswire-USNewswire/ -- Following the referral of a fatality investigation by the Department of Industrial Relations' Division of Occupational Safety and Health (DIR/Cal-OSHA), the San Francisco District Attorney prosecuted Sam Hyung Goo Shim, the owner of California C&R, Inc., a San Francisco roofing company in connection with the January 2008 death of his employee, Antonio Martinez, age 39. Both Shim and his foreman, Jwa Young Kim, were sentenced today to one year in county jail.

"Employers in California have a responsibility to provide the necessary protections for their workers in order to prevent a tragedy such as this," said DIR Acting Director Christine Baker. "We will continue to exercise our full jurisdiction to protect workers and make referrals to the District Attorney for prosecution where appropriate."

On January 16, 2008, Antonio Martinez was one of several employees working on a roofing project at a four-story apartment building located at 646 Corbett Avenue in the Twin Peaks area of San Francisco.  Martinez was working along the roof's edge when he fell 38 feet to the sidewalk below.

According to evidence presented to the Grand Jury, there were no safety measures in place at the worksite – in violation of Cal/OSHA regulations.

"Holding employers accountable is necessary, especially in a situation where such a tragedy is preventable," said Cal/OSHA Chief Ellen Widess. "This is a case where an employer and supervisor ignored basic safety and health requirements which resulted in the death of a worker. Cal/OSHA will hold employers like this accountable, as is evidenced by this criminal conviction."

The Cal/OSHA investigation found that even though the foreman was present to oversee the work activity, no workers on the roof were wearing a harness or any other type of fall protection.  There were no railings, scaffolds or other barriers to prevent a fall to the sidewalk.  There were also no written safety policies or safety training, as required by Cal/OSHA regulations.  

The Cal/OSHA investigation resulted in the issuance of three citations totaling $70,485 on July 15, 2008, including serious and willful citations.

Cal/OSHA's San Francisco office referred the case to the San Francisco District Attorney's office and the defendants were indicted in a grand jury on April 13, 2010. Shim was also convicted of workers compensation insurance fraud and tax evasion for failing to report Martinez's wages in payroll filings submitted to Shim's insurance carrier and the state Employment Development Department.  Shim's corporation, California C&R, Inc. (CTN 2451742), was convicted in Martinez's death as well. "Working collaboratively with other agencies, like the District Attorney, EDD, and others,  we feel we can be even more effective in deterring all kinds of serious labor violations by employers," noted Cal/OSHA Chief Ellen Widess.  

"The prosecution and conviction of these two defendants whose blatant disregard for their worker's safety resulted in his untimely and preventable death sends a loud and clear message to anyone doing business in our City," said District Attorney George Gascon.  "You will not get a free pass when your conduct jeopardizes the health and well-being of individuals seeking to earn an honest living."

Shim pleaded guilty to four felonies: violation of Penal Code section 192 (b) (involuntary manslaughter); violation of Labor Code section 6425 (willful violation of Cal/OSHA order causing death); violation of Insurance Code section 11880 (workers compensation premium fraud); and violation of Unemployment Insurance Code section 2117.5 (tax evasion).  California C&R, Inc., pled guilty to one felony count of violation of Labor Code section 6425.  Kim pled guilty to one misdemeanor count of violation of Labor Code section 6425.

The convictions were the result of a negotiated plea agreement between the defendants and the San Francisco District Attorney's Office. All three defendants were ordered to pay restitution to the victims.

Employers who want to learn more about Cal/OSHA and how to reduce workplace injuries can get information at the DIR Web site at www.dir.ca.gov/dosh. For assistance from the Cal/OSHA Consultation Program, employers can call (800) 963-9424.

Employees with work-related questions or complaints can call the California Workers' Information Hotline at (866) 924-9757.

Internet: www.dir.ca.gov

CONTACT:
Dean Fryer
Erika Monterroza
(415) 703-5050

SOURCE California Department of Industrial Relations, Cal/OSHA