Editor's Note: The following is an open letter to various district attorneys regarding the alleged negligence of Dollar General stores and its repeated and willful violations related to blocked exits. The letter was written by Edward Stern who served the U.S. Department of Labor for more than 40 years as a senior economist and policy/program analyst.
David J. Arnold, Jr, District Attorney of Lebanon County, PA
Ryan Styer, Prosecuting Attorney for Tuscarawas County, OH
Marc Bennett, District Attorney of Sedgwick County, KA
Tim Lohmar, Prosecuting Attorney for St. Charles County, MO
This is to alert you to apparent criminal conduct in some Dollar General Stores in counties under your jurisdictions. There is a tragic link between that conduct and Frances Perkins, the first woman in the United States Cabinet (Secretary of Labor). That link begins at a notorious workplace fire that killed 147 people and it leads to current criminal recklessness that sets the stage for a recurrence of that earlier tragedy. The citizens of your counties need you to save them from deaths by fire. A little history on this will help to make the situation clear.
Frances Perkins was a graduate student in New York City on March 25, 1911, the day of the Triangle Shirtwaist Factory Fire. Ms. Perkins heard the firetrucks and went to see the flames on the 10th and 11th floor. To her horror, she saw people jump out the windows to avoid death by fire when there was no other escape. Everyone who jumped died.
People died that day, because the owners of the factory had blocked the fire exits. Ms. Perkins had a role in the commission investigating the fire. The commission found that some of those who died would have been saved IF the fire exits had not been obstructed.
People knew of the need to have unobstructed fire exits long before the establishment of Federal OSHA in 1971. That requirement was promoted by the National Fire Protection Association and adopted by local fire codes. OSHA reinforced that requirement in its Fire Safety Standards, and OSHA repeatedly fined Dollar General Stores for blocking fire exits.
Yet, many of the managers of Dollar General Stores don’t seem to care. That is where you District and Prosecuting Attorneys come into the picture. Ordinary mistakes on fire safety should be left to the county Fire Marshals and to state and Federal OSHA. But when that doesn’t work, District Attorneys need to enforce the laws against reckless endangerment against those who are criminally indifferent to the safety of their customers and their workers.
You could wait for a fire to occur and then prosecute the local store manager for negligent homicide (manslaughter in some states). But waiting for the fires will leave some workers and shoppers stuck at blocked fire exits and burned to death. This is not the best outcome for the dead and their families. You can do better than this, and this letter puts you on notice.
To aid your decision-making, I suggest that you to listen to Frances Perkins, herself, in a recording of her lecture in 1964 at Cornell University’s School of Industrial and Labor Relations (http://trianglefire.ilr.cornell.edu/primary/lectures/francesperkinslecture.html).
To help you further, I provide below a brief overview of what OSHA has done to push Dollar General to act responsibly for their workers’ and customers’ safety, in each of your jurisdictions. For the public’s education, I include web links to the applicable state law.
On October 31, 2016, speaking of the Dollar General store in Jonestown, OSHA reported that the Agency “cited a willful violation after inspectors found the discount retailer barricaded an emergency exit door in the back room with a metal bar.” The term “willful” is important to Pennsylvania case.
OSHA's Harrisburg Area Office covered Jonestown. Dave Olah, the Area Director, said, "Dollar General continues its pattern of failing to maintain safe exit routes at its stores. Despite receiving more than 100 safety and health violations at stores nationwide since 2010, which carried more than $1 million in proposed fines, the company has still failed to take corrective actions." (See: http://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/18/00.027..HTM §2705.Recklessly endangering another person.)
On September 20, 2016, OSHA reported that Dollar General Corporation, one of the nation's largest discount retailers, “continues to ignore federal workplace safety inspectors” who found repeated instances in which “the company endangers workers and customers alike by blocking exit routes with stacked merchandise.” OSHA found this in an inspection of the company's store in Bolivar in central Ohio. In this case, OSHA issued three “repeated” citations to Dollar General. These “repeated” citations should have weight in the Ohio case.
Some other details of the Bolivar inspection might strengthen criminal charges against the company. In addition to the recurring issue with blocked exits, inspectors found fire extinguisher locations not marked and rapid access to them blocked. Add that to your case. (See http://codes.ohio.gov/orc/2909.06 “Criminal damaging or endangering”.)
On August 2, 2016 OSHA reported that “Federal safety inspectors have again found blocked exits and other hazards at stores operated by national discount retailer, Dollar General - this time in Wichita and Clay Center.”
Judy Freeman, OSHA's area director in Wichita, said, "In an emergency, blocked exits can be the difference between life and death. Piling up merchandise and blocking exit routes puts workers - and customers - at risk." Freeman noted that "Dollar General has been cited repeatedly for these hazards at its stores nationwide. The company must immediately address these hazards before tragedy strikes."
Director Freeman’s words bring to mind the Kansas Criminal Code, Chapter 21, Article 54 Crimes against Persons, 21-5429. Endangerment. It says: “Endangerment. (a) Endangerment is recklessly exposing another person to a danger of great bodily harm or death.” The OSHA investigative file has already made this case. See http://www.kslegislature.org/li_2012/b2011_12/statute/021_000_0000_chapter/021_054_0000_article/
On February 1, 2016, OSHA reported that “safety inspectors found a 5-foot high, 15-foot long pile of trash between employees at a Missouri Dollar General store and an emergency exit.” I couldn’t imagine making that up for a story—no one would believe it. And it was just one of nine safety violations at the O'Fallon store.
Bill McDonald, OSHA's area director in St. Louis, said, "Blocked exits can be the difference between life and death in an emergency… Dollar General needs to immediately address hazards found in O'Fallon and at its stores nationwide."
Notice that OSHA spoke of this as a hazard to employees, which is consistent with OSHA’s responsibility. But blocking the fire exit created a hazard to customers as well as employees.
I did not see “reckless endangerment” specified in the Missouri statutes. However, “reckless endangerment” is part of English common law which is explicitly incorporated (with few exceptions) into Missouri law at http://www.moga.mo.gov/mostatutes/stathtml/00100000101.HTML.
Conclusion and Personal Note
I see fire code violations and OSHA fire safety standards from time to time. I usually alert managers of the companies to those violations, so they can fix the problems. Then I check back. The managers of the cited Dollar General Stores have already received official citations for their stores and should know of citations at their sister stores. They don’t care.
When I served for three months on my county grand jury, my fellow grand-jurors were conscientious and fair-minded. I expect the same from your citizens. The evidence already public should lead them to indict store officials in your jurisdictions. Still, you ought to request the inspection reports from OSHA. Your citizens have been very lucky so far. Please do not rely on luck to protect them.