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Tips for Avoiding or Minimizing OSHA Liability as an Employer-Contractor

A construction worker was killed last month while operating an excavator on the site of the future Encore Boston Harbor (formerly known as the Wynn Boston Harbor) resort and casino in Everett, MA. The worker was an employee of a subcontractor working on the project under the general contractor, Suffolk Construction. Investigations by local and Massachusetts State Police and the federal Occupational Safety and Health Administration (OSHA) are under way to determine the cause of this fatality.

The U.S. Court of Appeals for the District of Columbia in 2011 decided Summit Contractors, affirming the potential for general contractors to be held liable under OSHA standards for hazardous exposures to the employees of a subcontractor. Under OSHA’s multi-employer citation policy (MECP), more than one employer, including both a contractor and a subcontractor, may be held liable for a workplace hazard if:

  1. The employer is creating, exposing, correcting, or controlling in relation to a hazard, and
  2. The employer’s actions were insufficient to meet its obligations with respect to OSHA requirements.

What does this mean in practice? An employer is:

  • Creating if it caused the hazardous conditions that violated an OSHA standard.
  • Exposing if its employees are exposed to the hazard.
  • Correcting if it is on the same worksite as the exposing employer and is given the responsibility of installing or maintaining health/safety equipment or devices.
  • Controlling if it has supervisory authority over the worksite, including the power to correct safety and health violations either through control established by contract or in practice.

Steps an employer-contractor can take to protect your company include:

  • Conduct regular inspections of the work site.
  • Hire sub-contractors with excellent safety histories.
  • Require all sub-contractors to observe safety rules and OSHA standards.
  • Inform all sub-contractors of conditions that could violate OSHA and require correction of these conditions.

If you have further questions about employer or contractor liability under OSHA, please do not hesitate to contact our office.

This post is for informational purposes only and is not offered, nor should it be construed, as legal advice. Statutes, regulations and case law may revise and amend applicable law. This overview should not be solely relied upon, without also consulting the then current state of the law as applicable to the particular facts and circumstances of each case.

Massachusetts Alcohol Task Force Reports To Treasurer

One year ago, Massachusetts Treasurer Deborah Goldberg convened an Alcohol Task Force to review the state’s alcoholic beverages industry. The idea was to generate “forward looking” recommendations of ways to modernize the state’s alcoholic beverage regulations.  All matters relating to alcoholic beverages are broadly under the jurisdiction of the Massachusetts Alcoholic Beverages Control Commission (“ABCC”), an agency within the state Treasurer’s department.

In late 2017, the Task Force released a lengthy report containing numerous findings and recommendations.  https://www.mass.gov/news/alcohol-task-force-report

As an example, regarding grocery stores, the Task Force recommended:

  • That local licensing authorities (LLAs) have the authority to decide the number of liquor licenses to be issued to grocery stores and supermarkets in their community.  This would be a marked change from the current law, which puts a “quota” on the number of off-premises or “package store” licenses available in particular municipalities, based on their population; and
  • That the ABCC be able to require grocery stores and supermarkets to designate a separate and/or particular area to sell alcohol within the licensed building, preferably with a separate door entrance and separate from the general areas to purchase non‐alcohol products.

Another Task Force recommendation proposed adopting a rule that out‐of‐state drivers licenses be an acceptable form of identification that a customer is of legal age to purchase alcohol in Massachusetts.  Another calls for more flexibility regarding licensee manager eligibility, despite prior criminal records.

The Task Force’s report only contains recommendations – it does not by itself change anything.  Its recommendations are subject to legislative and administrative review and modification before any may be enacted. Even if its recommendations are substantially changed, or ignored, the report is worthwhile as a snapshot of an alcoholic beverages industry in transition, as well as a road map for routes into a future that may, or may not, be taken.

Bob Hurwitz and Gene Richard named New England Super Lawyers

Hurwitz, Richard & Sencabaugh LLP is pleased to announce that Bob Hurwitz and Gene Richard have been named Massachusetts and New England Super Lawyers for the thirteenth consecutive year.  Bob Hurwitz was named in the field of construction law and Gene Richard in the field of administrative law for his work in liquor licensing.  The Super Lawyers list appears in Boston Magazine as well as the publication New England Super Lawyers and recognizes the top five percent of attorneys in New England.

Crafting A License To Brew

The Salem News has reported that Notch Brewery and Tap Room in Salem is on tap to begin operating soon: http://www.salemnews.com/news/a-new-permit-is-brewing-in-peabody/article_9ee16daa-bfcf-55d3-816c-66e14eba0464.html.

The article mentions that Peabody is working on allowing craft breweries to specifically apply for a special permit — the characterization of craft breweries can be unclear under many zoning and permitting by-laws.

For a very handy list of breweries, searchable by state and other categories, see this link maintained by the Brewers Association: https://www.brewersassociation.org/directories/breweries/. Consider adding the link to your “travel” folder!

Please contact us if you have any liquor licensing needs.

New Name: Hurwitz, Richard & Sencabaugh LLP

Effective July 1, 2016, our law firm’s name changed to Hurwitz, Richard & Sencabaugh LLP.

Hurwitz, Richard & Sencabaugh LLP (established in 1989 as Wayne, Richard & Hurwitz) will continue our practice focused primarily on the areas of construction law, liquor licensing/permitting and commercial collection of accounts receivable. We also handle civil litigation in all state and federal courts, arbitration and mediation, as well as counselling clients on a variety of other issues.

Please visit our website at www.hrsllp.com for more information.

ABCC Clarifies “Store Limit” Procedure

On January 1, 2016, the number of off-premises (or “package store”) liquor licenses any person or combination of persons will be authorized to legally hold in Massachusetts, directly or indirectly, will increase from five (5) to seven (7). While the increase will go into effect as of New Year’s Day, there was some confusion as to the mechanics to be used to go about getting a 6th or 7th license.

Normally, any prospective liquor licensee files an application with the local licensing authorities. Notice of the application is then published and abutters are notified of the application, a public hearing is held at the local level, and then the application is forwarded to the state Alcoholic Beverages Control Commission (“ABCC”) for their consideration and approval as well. Generally, at best, there is a two to three month lag between the initial filing of an application and actually receiving issuance of a license. Accordingly, in order to receive a license as soon after January 1 as possible, some prospective multiple licensees had filed applications with local licensing authorities in 2015, hoping to gain approvals in advance of January 1 and be ready to open as soon after January 1, 2016 as possible.

However, the ABCC recently issued an Advisory clarifying the procedures to be followed. In the Advisory, the ABCC basically said, “Not so fast!” The ABCC says that any person seeking a 6th or 7th liquor license cannot file an application before January 1, 2016. Since January 4 is the first business day in 2016, don’t look for companies that already hold 5 licenses to be open for business in additional locations until later in January or, more likely, February of the new year.

Bob Hurwitz Named Super Lawyer

Wayne, Richard & Hurwitz LLP is pleased to announce that Bob Hurwitz has been named a Massachusetts and New England Super Lawyer for the twelfth consecutive year in the field of construction law.  The Super Lawyers list appears in Boston Magazine as well as the publication New England Super Lawyers, and recognizes the top five percent of attorneys in New England.

Powdered Alcohol In Massachusetts

The federal Alcohol and Tobacco Tax and Trade Bureau (“TTB”) recently approved the sale of four powdered alcohol products.  This follows the approval and later rescission of approval by TTB of seven powdered alcohol products in 2014.

Although this time it appears the TTB approval will stand, the Massachusetts Alcoholic Beverages Control Commission (“ABCC”) quickly issued an advisory ruling essentially stating “NOT IN MY COMMONWEALTH!”  Two days after the TTB approval, the ABCC Advisory stated that Massachusetts laws prohibit the importation, sale, and manufacturing of powdered alcohol in Massachusetts.

The ABCC reasoned that:

1.  M.G.L. Chapter 138 regulates both alcoholic beverages and alcohol;

2. Powdered alcohol is not a “liquid”, and thus not an “alcoholic beverage”; and

3.  Existing liquor licenses for wholesalers, manufacturers and retailers only authorize the sale of alcoholic beverages – and thus, not alcohol in powdered, non-liquid form.

Some wags were heard to wonder if the ABCC were called only the Massachusetts Alcohol Control Commission whether the Advisory would have come out the other way.  California, for example, took a much more welcoming approach to powders years ago in Regulation 2557.

The company that came up with “Palcohol” extols its convenience, portability and flexibility, noting that hikers for example would be able to enjoy an alcoholic beverage by a stream in the woods after a long day on the trail, without having had to carry the beverage part of their beverage all day long.

Opponents note the same convenience, portability and flexibility of Palcohol might prove irresistible to minors and other mischief-minded or just careless individuals.

Next up? How the state will regulate different forms of marijuana if legalized.

Possible New Tax On Alcohol Sales In Boston

The Boston Globe reported today that two Boston city councilors have filed a “home rule petition” seeking approval of a 1 to 2 percent sales tax on all retail sales of alcoholic beverages within Boston (whether in restaurants, bars, supermarkets or package stores).  The substantial revenues that would be collected – expected to reach millions of dollars annually – would be earmarked exclusively for support of substance abuse prevention and treatment programs.

The proposal was offered by City Council President Bill Linehan and City Councilor Frank Baker.  In order to go into effect, it would need to first be passed by both the Boston City Council and the State Legislature.  The Globe reported that Mayor Walsh released a statement sympathetic with the goals of treatment programs, but was non-committal regarding passage of the proposed tax.  Alcoholic beverages are already subject to an excise tax, and a state-wide sales tax at the retail level passed by the Legislature in 2009 was repealed by voters in a statewide referendum in 2010.

The Globe also reported that the proposal for a new tax on alcohol sales was quickly opposed by several industry groups.

Summary of ABCC Actions – January 2015

Summary of ABCC Actions

 

Eight recently published ABCC decisions decided cases dealing with gambling devices on licensed premises, sales of alcohol to a minor and intoxicated persons, and purchase of alcohol by a restaurant from a non-wholesaler.

The non-permitted gambling devices cases involved the Billerica Elks Lodge, American Legion Post in Kingston, and the Malden Elks and Moose Lodges.  In the former three cases, the ABCC suspended the clubs licenses for five days, two days to be served and three to be held in abeyance for two years provided no further violations occurred.  The ABCC also stipulated that each licensee not possess in or on the licensed premises any automatic amusement device or video poker machine.  The Billerica Elks Lodge received only a three day suspension, with all three days to be held in abeyance for 2 years pending any further violation.  However, the Lodge had also not filed required annual reports with the ABCC with the names and addresses of corporate officers and the compensation paid to employees, so the ABCC added a separate 3 day suspension for this, with those 3 days also to be held in abeyance for 2 years (the suspensions to run concurrently).  Also, the ABCC directed the Lodge to file annual reports for the years 2003 to 2014 within one week of receiving their decision, or face “indefinite suspension” of their license.

GPS Wine & Spirits in Brookline was found to have made a sale to a minor, and was given an eight day suspension, with one day to be served and seven to be held in abeyance for two years.  Interestingly, the business had an Advanced ID Detection Scan machine, but when the ABCC investigator passed the fraudulent ID used by the minor in question through the scanner, it was not approved.

The ABCC ordered a four day suspension (2 to be served and 2 to be held in abeyance for 2 years) for the Sinnis Pub in Dudley, after they were found to have provided several “shots” of alcohol to an intoxicated patron. An ABCC investigator on hand saw the patron, determined he was intoxicated, and then viewed sales of several shots to the patron thereafter within a relatively brief period.  When asked for identification by the investigator, the intoxicated patron responded with a succinct “verbal salute” (set out in quotes in the ABCC decision) which evidenced truculence if not intoxication!

The Singapore Restaurant in Fitchburg also was found to have made a sale to an intoxicated person, as was given a six day suspension, two to be served and four to be held in abeyance for two years

Finally, the Kathmandu Spice Restaurant in Arlington was found to have repeatedly purchased alcohol from a package store rather than a wholesaler, and was given a thirty day suspension and ordered to destroy the alcoholic beverages in question.  The restaurant was also given a warning for failure to post required notices of penalties.