BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  DKT NO SH91054

	PLAINTIFF			)  CITATION NO H178804691

D. DORITY AUTO SALES			)

	DEFENDANT			)  OPINION AND ORDER



	This contested under the Oregon Safe Employment Act came on
pursuant to notice for hearing in Pendleton Oregon on June 20
1991 before James P Leahy Referee Vance Croney certified by the
Department of Justice to so act represented plaintiff Donald
Dority of Don Dority auto Sales in Hermiston Oregon represented
defendant The court recorder Kerri Swensen



                          ISSUE



	Defendant is charged with multiple violations of the Oregon
Occupational Safety and Health code By letter received March 18
1991 by plaintiff defendant appealed numerous items on the
citation and requested this hearing (see pleadings



                  FINDINGS OF FACT AND CONCLUSION



	Donald Dority dba Dority's Used Cars Inc and/or Don Dority Auto
Sales operates among other things an automobile repair facility
in Hermiston Oregon



	On January 14 1991 plaintiff inspected the site On February 12
1991 it issued disputed Citation No H178804691 itemizing fire
violations only the first of which concerning an automobile
hoist support carried a fine It was in the amount of $700  
Correction was required by March 12 1991 (Ex 1)



	The citation was served on defendant Defendant's signed
returned receipt is dated February 14 1991 (Ex 2)



	Claimant's appeal of the citation was received by plaintiff on
March 18 1991 (Ex 3) There is no evidence Item 1-1 of the
citation was corrected by March 12 l991



	The next day on about March 19 1991 the plaintiff transferred
the case to Workers' Compensation Board Hearings Division



	The record is silent on whether or not the defendant complied
with OAR 438-85-431(3) by designating a representative other
than legal counsel] (Ex 5)



	On April 22 1991 Leslie J Herd the Appeals Coordinator
generated an affidavit to the effect that citation No H178804691
was issued to defendant on February 12 1991 and defendant
received the citation on February 14 1991 (Ex 6) This
information prompted Norman F Kelley Assistant Attorney
General's April] 24 1991 motion to dismiss because defendant's
March 18 1991 Request for Hearing was untimely and not filed
within 20 days after the February 14 1991 receipt of the 
citation



	ORS 654 078 was the law at times pertinent



	The motion was denied (Ex 8)

	The case went to hearing



	The plaintiff renewed its motion to dismiss for untimely filing

	The motion should be allowed



                         OPINION



	Pursuant to OAR 438-85-216(2) if a referee finds that an appeal
was not timely filed and that the Hearings Division lacks
jurisdiction to grant a hearing on the merits of the case the
referee shall issue an order dismissing the appeal



	The defendant did not respond to the motion to dismiss in a
meaningful way in writing prior to the hearing pursuant to OAR
438-85-735(3) or with testimony at the hearing



	Furthermore under ORS 654 078(1)(3) it appears that the
citation and the penalty is a final order of the Department not
subject to review by any agency or court therefore the Hearings
Division does not have jurisdiction in this matter and the
motion should be allowed



	The mitigating suggestions put forth by defendant to the effect
that the unsupported hoist was installed long before pertinent
laws were passed and that the modifications made pursuant to the
citation were very expensive and that the defendant cooperated
completely with plaintiff cannot confer jurisdiction on the
Hearings Division.



	Testimony and/or evidence of whether other shops in close
proximity were illegally equipped or in violation, and if in
violation were or were not cited, even if presented, would not
have conferred jurisdiction in the Hearings Division.



                      ORDER



	The plaintiff's April 24, 1991 motion to dismiss is allowed.
The matter is dismissed.



	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 JULY 12 1991 



				 By James P. Leahy, Referee