<DOC>
[DOCID: f:kt2001297.wais]
SIMP-A-LEX
KENT 2001-297
January 4, 2002
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041
January 4, 2002
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 2001-297
Petitioner : A. C. No. 15-16470-03503 YIF
v. :
: Burke Branch Tipple
SIMP-A-LEX, :
Respondent :
DEFAULT DECISION
Before: Judge Hodgdon
This case is before me on a Petition for Assessment of
Civil Penalty pursuant to section 105(d) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 815(d). On
November 30, 2001, I issued an Order to Show Cause to the
Respondent ordering it to show cause within 21 days of that
order why a default decision should not be issued in this
case. For the reasons set forth below, I find that the
Respondent is in default and order the payment of the civil
penalty proposed by the Secretary.
On October 1, 2001, I issued a Prehearing order to the
parties directing a response not later than November 2,
2001. The order was sent to the parties by Certified Mail-
Return Receipt Requested. The Respondent's return receipt
card shows that the order was signed for by "Betsy Bentley"
on October 4, 2001.
The Secretary, by counsel, filed a Motion for Default
Judgment on November 7, 2001. In the motion, counsel stated
that he had contacted Jerry Bentley, the former manager of
Simp-A-Lex, and the person who responded to the Petition for
Assessment of Civil Penalty. Mr. Bentley reiterated to
counsel what he had stated in the Answer to the petition,
that the company was no longer in business and the principal
owner of the company was deceased. Mr. Bentley indicated
that neither he nor anyone else was in a position to pursue
litigation on behalf of the company. Counsel advised him
that if that were the case, he should inform the judge that
the company wanted to withdraw the contest of the citations
in this case. Mr. Bentley stated that he would do so.
When he had not received anything from the company,
counsel for the Secretary filed the motion for default. The
judge has not received either a request to withdraw from the
proceeding, a response to the Secretary's motion or any
other communication from the Respondent.
Commission Rule 66(a), 29 C.F.R. � 2700.66(a), requires
that "[w]hen a party fails to comply with an order of a Judge
. . . an order to show cause shall be directed to the party
before the entry of any order of default or dismissal."
Rule 66(c), 29 C.F.R. � 2700.66(c), provides that "[w]hen
the Judge finds a party in default in a civil penalty
proceeding, the Judge shall also enter an order assessing
appropriate penalties and directing that such penalties be
paid."
The show cause order was sent to the Respondent by
Certified-Mail, Return Receipt Requested and by regular
mail. The green return receipt card shows that it was
received on December 3, 2001, and was signed for by "Amanda
Blackburn." The order stated in bold faced print that:
"Failure to respond within the time provided will result
in the issuance of a Default Decision affirming the
citations and assessing a penalty of $50,113.00."
To date no response has been received.
ORDER
Accordingly, it is ORDERED that the Respondent,
Simp-A-Lex, is found to be in DEFAULT in this matter,
that Citation Nos. 7368306, 7368307 and 7368308, alleging
violations of sections 48.25, 48.31 and 77.1605(b) of
the Secretary's Regulations, 30 C.F.R. �� 48.25, 48.31 and
77.1605(b), respectively, are AFFIRMED and that the
company is ORDERED TO PAY a civil penalty of
$50,113.00 within 30 days of the date of this decision.
T. Todd Hodgdon
Administrative Law Judge
Distribution: (Certified Mail)
J. Phillip Giannikas, Esq., Office of the Solicitor,
U.S. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215
Jerry Bentley, P.O. Box 688, Allen, KY 41601