Penalty Criteria — Repeat Violation
(1)An employer’s second or subsequent violation involving a substantially similar violation, cited within the previous three years, will be cited as a repeat violation as described below.
(2)When citing an identical standard for a violation of a previously cited statute, regulation, rule, standard, or order it will be presumed to be a repeat violation. That presumption can be disproven only if the circumstances clearly demonstrate that the violation is not substantially similar to a previously cited violation.
(3)When citing a different standard, in some circumstances, substantially similar conditions can be demonstrated. In such cases, if the violations found are substantially similar a repeat violation would be appropriate even though the standards are different.
(4)Where a previously cited violation is under appeal and not yet final:
(a)The second violation will be cited as a repeat violation; and
(b)Such citation will state that the earlier violation is under appeal and the repeat classification of the current violation will be rescinded if the earlier violation does not become final.
(5)At fixed places of employment, “high serious” and “death” rated violations will be issued as repeat violations at all of an employer’s places of employment in the state. Repeat violations for all other violation types will be limited to the cited place of employment.
(6)At nonfixed places of employment, repeat violations will be based on earlier violations occurring anywhere within the state. Where the Administrator, or designee, determines in his or her discretion that the span of control and nature of activity for a portion of the state is more readily comparable to fixed location activity, repeat violations will be handled in a manner consistent with fixed places of employment.
Rule 437-001-0160 — Penalty Criteria — Repeat Violation,