Local builders grasp inspection rights

With sharp objects nearby and a long fall only one misstep away, safety plays a pivotal role in ensuring construction is done injury-free.

To ensure the state’s safety standards are met, the Department of Labor and Industries conducts about 7,000 annual surprise safety and health inspections of workplace job sites.

The inspections seems to have at least contributed to the low number of deaths in construction on Island County. Since L & I’s Web site uses a range of between zero and one deaths, there have been anywhere from zero and approximately four fatalities reported between 2001 and May 2004. By comparison, Snohomish County had between 14 and 27 reported deaths in the same time. Island County injury statistics were not available at deadline, though there were 144,464 claims filed in the state with L & I between July 1, 2002, and June 30, 2003.

L & I has the authority to perform the unannounced inspections after presenting his or her credentials because of federal and state mandates, said Elaine Fischer, L & I spokesperson. That state mandate is called the Washington Industrial Safety and Health Act.

Those inspections may have led to what South Whidbey builders Ed Gemkow of Gemkow Construction and Greg Gilles of Kamera and Gilles Carpentry said can be an acrimonious relationship between builders and L & I.

“If it wasn’t for L & I, (however) we wouldn’t have the level of protection in the field that we have,” Gilles said.

Gilles and Mike Strevel, who does concrete work and frames houses, said they haven’t seen an L & I inspector on Whidbey Island for at least two years.

In fact, the number of inspections have dropped over the last three years. Between October 2001 and September 2002, there were 115 inspections in Island County, Fischer said. For the same period between 2002-2003, 80 inspections were conducted. The number dropped even more between October 2003 and September 2004, when 48 L & I inspections took place.

But it’s the fear factor of an inspector coming at anytime, which compels a supervisor to keep a site always ready, Gilles said. He said without the inspections, some people would take shortcuts to save time and money. When that happens, people are more likely to be injured, which results in a lost labor to the job site.

According to the L & I Web site, penalties range from general to serious to willful violations. General violations are those that would not likely result in serious injury or death and rather than a penalty, requires the employer to fix the problem.

Serious violations are the violations that are likely to cause death and usually cost $1,200. Willful violations are when safety and health rules are knowingly violated and the employer did not seem concerned about correcting it. Those carry a fine of up to $70,000.

But a lawsuit from a few years ago raised the question of whether L & I even has the right to conduct those searches, says Tim Ford, an attorney for the Building Industry Association of Washington. The lawsuit also disputed whether the state gave L & I the statutory authority to inspect the site or get a search warrant from a judge if they are denied access to the site, he said.

A U.S. District Court ruled against the challenge this June, allowing L & I to continue surprise searches, Ford said. The case is now in the appeal process in the federal Ninth Circuit Court on a procedural issue, he said.

The court case did, however, compel L & I to change their policies, Ford said. Starting last June, L & I inspectors must now specifically seek permission from either the building supervisor or building owner before entering a building site. If entrance is denied, the inspector must try to get a search warrant.

If that happens, the inspector must talk to his or her supervisor to see if a permit is justified, Fischer said. To do so, the inspector must say a hazard or something else was observed and then try to obtain the warrant from a judge.

To fill in some South Whidbey builders about the ramifications of the ruling, Ford spoke at the Oct. 14 meeting of the South Whidbey chapter of the Skagit Island County Builders Association. SICBA works with BIAW, which serves what local builder Ed Gemkow calls a watchdog service. BIAW ensures the builders don’t get “run over” by the system, he said.

The court case first stemmed from a lawsuit from by the Washington Farm Bureau. Ford said the L & I were doing inspections without farmer’s permission, which the farm bureau believed violated state and federal constitutional protection from unnecessary searches.

The lawsuit then just kind of “flowed into” the building industry, said Wayne Crider, executive officer of SICBA.

Despite their participation, he said SICBA wants to continue having good relations with L & I. In fact, in the past he said if the inspector showed up and the supervisor and owner was not there, the inspector was just asked to come back and always did.

“It’s not an adversarial thing,” Crider said. He said the search warrants are often only requested because the supervisors or owners of the inspectors attitude or past experience. “The inspector might be pretty aggressive or have been in the past,” he said.

Rather than requiring a search warrant, though, it’s better to cooperate and follow standards that are in most cases reasonable, he said.

“First and foremost, we don’t want injuries,” Gilles said.

He said he’s probably in the minority among South Whidbey builders, though.

In fact, Stressel said while working on Freeland’s Shell Station a couple years ago, L & I inspectors came to the site about 50 times in the six months he worked there. He said the inspectors showed up in hard hats carrying three-inch books and write down violations.

Stressel said he did not receive any fines while working on that site, but while working on an earlier job at a custom home on Freeland’s Shore Avenue he said L & I inspectors gave him several fines. Since he was not the contractor, he said he should not have received the fines. But Stressel said the contractor told L & I that Stressel was in charge and L & I tried to fine him between $8,000 and $10,000 for violations.

Stressel said he took the case to a federal court, where the fines were thrown out.

Because of his experiences, Stressel said he agrees that WISHA’s requirements do make the workplace safer, but L & I inspectors should spend more time on site educating contractors about the violations than trying to collect money.

Gilles does have a supporter in Ed Gemkow, who said concern about the inspections, have led to frequent “toolbox safety meetings” keeping the site safer.

Gemkow added that by telling the inspector to obtain a search warrant, it appears that something is wrong with the site and the inspector will leave angry.

He said he’s never heard a South Whidbey builder or contractor ask an inspector to get a warrant.

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