A Saco-based roofer is facing nearly $1.8 million in fines for failing to protect his workers from falls, after one died in December in a plunge from a roof on Munjoy Hill.
Shawn D. Purvis, 44, faces a total of $1,792,726 in fines from the federal Occupational Safety and Health Administration. The agency cites what it called 13 egregious violations of failing to protect his workers from fall hazards, one for each employee who worked at two job sites that were the focus of the investigation.
It is the largest workplace safety fine in New England in recent years, a spokesman for OSHA said. It dwarfs a 2015 penalty of $287,660 for a Maine construction company for similar failures to protect against worker falls, and a $1.4 million levy against a Massachusetts company in 2017 for failing to protect two workers who died in a trench when it filled with water.
“Effective fall protection can prevent tragedies like this when an employer ensures the proper use of legally required lifesaving protection,” said OSHA Area Director David McGuan in a statement. “An ongoing refusal to follow the law exposes other employees to potentially fatal or disabling injuries. Employers cannot evade their responsibility to ensure a safe and healthful work site.”
Alan Loignon
Alan Loignon, 30, a longtime Purvis roofing worker and Purvis’ half brother, fell to his death Dec. 13, 2018, from a third-story roof on Munjoy Hill in Portland as he attempted to climb down a ladder onto a scaffolding platform, OSHA said in its investigative report.
Under federal OSHA guidelines, any employer whose worker is exposed to a drop of more than 6 feet where there is no guardrail is required to make sure workers use fall protection, whether by personal safety harnesses, catch nets or other fall-arresting systems.
Among other violations, OSHA levied the maximum fine of $132,598 for each of the 13 workers present at the Munjoy Hill job site and another in Old Orchard Beach who were not protected by fall-arresting systems required by law.
Purvis has 15 business days to pay the fines, contest them or ask for an informal meeting with federal officials where he can argue for a modification or reduction of the penalty.
Purvis’ attorney, Thomas Hallett, said his client plans to challenge the OSHA fines by arguing that the federal workplace safety agency is stretching its own rules impermissibly and lacks the jurisdiction to sanction Purvis Home Improvement Inc., Purvis’s company, because Purvis treated his workers as subcontractors and, therefore, could not exercise control over them.
“Because Purvis Home Improvement cannot exercise control over how independent contractors do their jobs, it cannot mandate safety protocols,” Hallett said in an email. “Purvis Home Improvement can and did make sure that all necessary safety equipment was available at all times.”
Hallett also alleged that Loignon’s death was the result of his own decision not to wear a safety harness.
He also said Loignon ingested concentrated marijuana, called dabs, while he was on the roof before he fell, and that a toxicology test after Loignon’s death showed he had high levels of THC in his bloodstream.
“I also must point out that the truth of this case is that Mr. Loignon chose not to wear a safety harness, which was at the site, and then chose to go up on the roof and dab marijuana which caused him to fall,” Hallet wrote in an email. “Those decisions proved disastrous, but were certainly not my client’s fault.”
In previous interviews, Purvis has echoed his attorney’s arguments, saying he is not an employer and instead hires independent subcontractors, and while he encourages them to use safety gear he provides, he cannot force them to comply. Purvis said he has battled OSHA for a dozen years over this point, and has refused to pay the roughly $44,000 in previous fines the safety agency has tried to levy against him.
But that argument contradicts a roofing industry legal group’s recommendation that even if a business owner classifies a worker as a subcontractor, the owner is still responsible for enforcing OSHA regulations.
On job sites where there are many contractors or subcontractors, OSHA uses a legal rationale called the multi-employer worksite doctrine, and uses a process to determine which of the employers or contractors on a job site might be liable for a violation. For instance, if an employer directly created the hazard or has general control over the worksite, that employer can be cited by OSHA for a violation committed by a subcontractor.
This principle is laid out in a two-page guide published by the National Roofing Legal Resource Center, which advises in its first sentence that roofers who exclusively use subcontractors are still liable for OSHA violations.
“Many roofing contractors are surprised to learn they can be subject to an Occupational Safety and Health Administration citation in instances where they subcontract all their work for a particular project and, with the exception of a foreman or superintendent overseeing the subcontractor’s work, have no physical presence on-site,” according to the group’s guide. “Based on OSHA’s multi-employer worksite doctrine, in such cases a roofing contractor can be cited by OSHA for violations committed by its subcontractor.”
The fine is the latest challenge to the already embattled business owner. Purvis is also facing manslaughter charges in Loignon’s death, as well as a $2.5 million civil lawsuit filed by his family.
Purvis, in previous interviews, blamed Loignon for his own death, and said that he should have worn a harness.
“Every single day, I show up at the job site … and I tell them, please, be safe, everything you need is here,” Purvis has said. “I can’t sit there 24/7 and watch subcontractors. It’s either they’re going to wear (the safety gear) or they won’t. It’s like wearing a seat belt, it’s either you do it or you don’t.”
He added later: “I can supply everything to be OSHA approved, but I can’t sit there and watch these guys all day long. That’s their job. They’re self-employed.”
The penalty follows years of refusal by Purvis to comply with federal safety standards despite repeated citations and fines for fall protection violations, which he also refuses to pay, Purvis said in a previous interview.
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