THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No:  SH91052

	Plaintiff			)  Citation No C401608490

		vs.			)


	Defendant			)  OPINION AND ORDER

	A hearing was held and the record closed on June 14 1991 in
Portland Oregon before the undersigned Referee The plaintiff
Oregon OSHA appeared through its attorney Norman Kelley The
defendant John Arnold appeared personally The court recorder was
Helen Marshio Exhibits 1 through 7 were all received into


	The only issue is whether Citation No C401608490 is appropriate

                     FINDINGS OF FACT

	John D Arnold defendant operates a construction company under
the assumed business name of John Arnold Co at 20425 S Polehn
Drive Oregon City Oregon The defendant was undertaking a trench
excavating project with 7 employees along the edge of S E Sandy
Blvd near its intersection with 181st Ave in Portland Oregon on
July 18 1990 On that date the plaintiff's inspector responded to
a complaint about traffic congestion at that location and found
2 of defendant's flaggers flagging traffic at the construction
area on Sandy Blvd The vehicular traffic was heavy and there
were no advance warning signs visible to west bound vehicular
traffic in front of or to the east of the defendant's flagger

	There was a warning sign laying face down on the ground
approximately 500 feet east of the flagger controlling the west
bound vehicular traffic on Sandy Blvd There were 2 other warning
signs also laying face down on the ground on the north side of
Sandy Blvd at a distance of approximately 1 000 and 1 500 feet
from the flagger for the west bound vehicular traffic The
flagger was standing in the middle of the road in front of motor
vehicles which created a moderate probability of an accident and
the possible result being that of a death

	On August 8 1990 the Oregon Occupational Safety and Health
Division of the Department of Insurance and Finance issued its
citation number C401608490 which alleged that John D Arnold
violated OAR 437-03-420(1) in that adequate traffic controls
were not in effect on the Sandy Blvd job site (a) the flagger
stopping traffic was not protected by advance warning signs on
the east side of the project; the violation was classed as
serious and a penalty of $750 was assessed The defendant John
Arnold has appealed this citation

	John D Arnold violated the safety standards of the State of
Oregon on July 18 1990 and a $750 penalty is appropriate


	Plaintiff Oregon OSHA contends that the citation dated August 8
1990 bearing Citation Number C4016 08490 should be approved The
plaintiff has the burden of proving a denied violation pursuant
to OAR 438-85-820   The applicable Oregon Safety Standards and
Rules clearly require the defendant to have 3 warning signs
along the side of the highway in front of his flaggers to warn
oncoming traffic of a construction zone and flaggers here the
evidence is uncontradicted that on the morning of July 18 1990
vehicular traffic west bound on S E Sandy Blvd near its
intersection with 181st Ave had no warning signs whatsoever
prior to reaching the defendant's flagger at the construction
site The evidence is also, uncontradicted that the defendant's
flagger was standing in the middle of the roadway in front of
vehicles which constituted a moderate probability of an accident
with death a possible result The appropriate rules indicate that
the plaintiff applied the proper table and amounts to the
penalty assessed Therefore I conclude that the citation should
be approved in its entirety


	IT IS HEREBY ORDERED that Citation Number C4015608490 is
approved in its entirety

	NOTICE  TO  ALL PARTIES: You are entitled to, judicial review
of this Order Proceedings for review are to be instituted by
filing a petition in the Court of Appeals Supreme Court Building
Salem Oregon 97310 within 60 days following the date this Order
is entered and served as shown hereon The procedure for such
judicial review is prescribed by ORS 183 480 and ORS 183 482

	Entered at Portland Oregon on June 26, 1991