ALJDEC

00A-121-SPC · Structural Pest Control Commission · 2001-08-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 24, 2001 APPEARANCES: Blair Driggs, Assistant Attorney General, appeared on behalf of the State No one appeared on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ In view of the Conclusions of Law, the following findings are presented for informational purposes and are not considered final or conclusive. FINDINGS OF FACT 1. In April, 2000 Inspector David Colvin (Colvin), of the Structural Pest Control Commission (SPC), received information about possible chemical treatment of a pond at a mobile home park (Brentwood West), in Mesa, Arizona. 2. On May 24, 2000, Colvin went to Brentwood West and spoke with the managers, Gene and Karen Hennen. Subsequently the Hennens gave Colvin invoices for chemical treatment services provided by the Respondent, Lake Maintenance Service (LMS), in November, 1999 and May, 2000. 3. Colvin checked SPC records and determined that LMS had been licensed by SPC but that the license had lapsed. 4. On May 25, 2000, Colvin spoke with Ralph Moody (Moody), who had been the Qualifying Party for LMS. Moody acknowledged chemically treating the pond at Brentwood West with a copper sulfate, which according to Colvin is registered as a pesticide with the Environmental Protection Agency (EPA) and the Arizona Department of Agriculture. Conclusions of Law The allegations in the Complaint and Notice of Hearing are that the Respondent violated A.R.S. Section 32-2325 (1) engaging in the business of structural pest control without holding a business license (2) engaging in the business of structural pest control in any category without a qualifying party qualified in that category (4) applying pesticides in any category unless the person is certified or qualified under the applicable law or the person is under the supervision of a certified and qualified person. The Notice of Hearing set forth the time and date of hearing. It did not specify an address for the place of hearing but merely stated that the hearing would be held July 24, 2001 at 9:00 a.m. at the Office of Administrative Hearings (OAH) in Phoenix Arizona. The Notice listed the addresses of persons to whom copies of the notice were submitted. The address for the OAH is listed as 1700 West Washington #602, Phoenix, Arizona. The address for the OAH for over two years has been 1400 West Washington, Phoenix, Arizona. The Respondent failed to appear at the hearing. Counsel for SPC argued that the notice to the Respondent was adequate. The Administrative Law Judge (ALJ) reserved ruling on the adequacy of notice, and evidence was therefore received on the record. A.R.S. Section 41-1061(B)(1) provides that the Notice of Hearing shall provide “A statement of the time, place and nature of the hearing.” 1. It is concluded that the Notice of Hearing does not adequately set forth the place of the hearing. Simply informing a Respondent that the hearing would be conducted at the OAH in Phoenix, is insufficient. Notice generally is sufficient when it specifically identifies the location of the hearing so that a Respondent does not have to guess or inquire where that location might be. Such identification normally includes the specific address. Compounding the omission of an address, is the fact that the only address listed for the OAH (as an addressee for receipt of a copy of the Notice), was incorrect. 2. Absent proper notice, the matter cannot be properly heard nor can additional conclusions be made.

Recommended Order In view of the foregoing it is recommended that the Complaint be Dismissed without prejudice.

Done this day, August 3, 2001

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

Structural Pest Control Commission Jerry Davis ATTN: David Broadstreet 9535 East Doubletree Ranch Road Scottsdale, AZ 85258-5514

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826