Many Malibu residents own a second home somewhere in the state that they rent out for extra income; many rent out their own homes over the summer here in town. Those homeowners may want to look closely at a recent lawsuit filed by Cal-OSHA (State of California Department of Industrial Relations, Division of Occupational Safety & Health), which may be trying to set a precedent in the state courts that makes owners of rental homes responsible for complying with OSHA regulations whenever they hire tree trimmers or any other contracting work that requires a state license.
Attorneys for Cal-OSHA began by fining longtime Malibu resident Vince Tuomey when a tree trimmer working at his Simi Valley rental home was seriously injured. The Simi Valley property is the only rental property Tuomey owns.
As he tells the story, on May 21, 2016, Tuomey hired a small crew to do brush clearance at his rental home ahead of fire season. While there, the crew’s supervisor called Tuomey at home in Malibu to tell him there were three large dead eucalyptus trees that ought to be cut down for safety reasons and offered to contact an experienced tree trimmer he knew.
“I approved the project, and the individual came to the rental property that same day,” Tuomey wrote in an email to The Malibu Times. “Later that day, I received a call from a neighbor that there had been an accident—the tree worker had been injured and the fire department had air-lifted him to the hospital.”
After the worker had climbed halfway up the tree and roped it off, he cut the top 20 feet of the tree off, which hit the ground, bounced back, and hit him in the head, causing serious injury, Tuomey described. He said he then immediately went to the hospital and had the crew leader continue to keep him informed of the man’s condition. After six months, the tree trimmer returned to the job, Tuomey said. But, as it turned out, the tree trimmer was not licensed by the Contractor’s State License Board
Shortly after the accident, Tuomey got a call from an investigator with Cal-OSHA asking why he hadn’t reported the accident to them.
“Although I knew who OSHA was because I owned a small business for 40 years, I told the rep it didn’t occur to me to call OSHA because this wasn’t a business-related incident,” Tuomey wrote.
OSHA’s investigation resulted in Tuomey being cited for a long list of violations. “The alleged violations include: failure to report a serious injury, failure to establish a heat illness prevention plan, failure to establish an illness and injury prevention plan, failure to conduct tree work under the direction of a qualified tree worker, failure to establish rescue procedures, failure to provide CPR training, failure to conduct a job briefing with a qualified tree worker, and failure to train employees in the hazards associated with their job assignment,” according to OSHA documents; fines totaled $23,580.
He hired attorney Fred Walter, an OSHA law specialist currently with Conn, Maciel & Carey LLP, who filed an appeal on the grounds that safety regulations were not violated, the classifications of the violations were incorrect and the proposed penalties were unreasonable.
Tuomey won that round in court, with the judge ruling OSHA did not have jurisdiction to issue citations to him.
Then, round two—OSHA appealed the decision. Their brief argued that because the property was not Tuomey’s residence, and because it was providing income, it was essentially a business enterprise needing to comply with OSHA.
“They want to make sure that people in Vince’s position can be fined as if they were actually running a tree trimming company,” Walter elaborated in a phone interview. According to Walter, if OSHA wins the case, it would set a precedent for the entire state and affect all rental home owners.
Walter’s brief pointed out that “owning a home does not require a business license” and that “a single rental unit does not rise to the status of a commercial enterprise.”
Legal fees continue to climb. “To date, I have paid the attorney more than the [$23,580] fine,” Tuomey wrote.
And the saga continues—although OSHA lost its appeal, they recently filed the case in superior court. Walter said the case could be in litigation for “a long time,” with the possibility of going all the way to the California Supreme Court.
Frank Polizzi, public information officer for Cal-OSHA, told The Malibu Times that “owners of rental properties should definitely be aware” that tree trimmers need to be licensed. As for Tuomey’s legal case, he said the definition of whether a job is considered to be “household domestic service” (not covered by OSHA) or an employer-employee relationship has been a “longstanding legal issue where the lines get blurry.” He indicated OSHA would not mind having another case to serve as a precedent on this issue.
“In this case, they do believe the rental house was a place of employment—a work site,” Polizzi said.