ALJDEC

01A-197(2)-SPC · Structural Pest Control Commission · 2002-03-18

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 15, 2002.

APPEARANCES: >The Business License Holder, Finocchio Pest Control, appeared through its owner and operator, Steven Finocchio, who was also the holder of an Applicator Certificate. >The State of Arizona Structural Pest Control Commission was represented by Assistant Attorney General, Blair Driggs. ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

Evidence and testimony were presented, and based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

Finocchio Pest Control (the “Business”) was shown to have been the holder of a business license issued in November 1997 by the State of Arizona Structural Pest Control Commission (the “Commission”). The records maintained by the Commission reflect that the qualifying party named on the business license had placed his credential

on an inactive status and had disassociated himself from the Business on January 9, 2001. Such event was shown to have rendered the Business unable to lawfully continue engaging in pest control activities unless or until a new qualifying party, or at least a temporary qualifying party, was obtained. Moreover, the business license was not renewed within an applicable thirty day grace period after December 31, 2000, thereby resulting in the expiration of such license.

2. Steven M. Finocchio had been the holder of an Applicator Certificate, but such certificate was not renewed by May 31, 1999, and therefore had expired on and after that date.

3. At the outset of the scheduled hearing, counsel for the Commission stated that one of the charges against the Business relating to the alleged operating of a branch office without employing a certified applicator or a qualifying party under whose supervision pesticide applications are made out of that office, in possible violation of A.R.S. §32-2325(3), would not be pursued at the instant administrative hearing and was being withdrawn.

4. It was not effectively disputed but rather was expressly admitted that Steven M. Finocchio was observed applying pesticide materials at a residential jobsite on or about May 8, 2001. The vehicle being utilized was shown to have contained markings identifying the Business. As of that date, neither the Business nor the individual applicator possessed a valid, current license to perform the pesticide application, and therefore such work performance must be held to have constituted a form of unlicensed and impermissible activity.

Mr. Steven M. Finocchio, both individually as a former Applicator Certificate holder, and as owner operator of the Business previously holding the business license,

candidly admitted that he knew that his Applicator Certificate had expired and was shown to have had at least constructive or imputed knowledge that the former qualifying party for the Business had ceased his affiliation. He expressed apparently sincere regrets about his wrongful unlicensed activities and gave assurances to abide by the law in the future if given another chance.

6. Although some degree of suspicion must necessarily linger that other ongoing pest control activities by Mr. Finocchio may have been taking place since the expiration of the respective licenses, the evidence and testimony at the hearing did not indicate that this observed impermissible pesticide application was other than a first offense for Mr. Finocchio or his business entity,

CONCLUSIONS OF LAW

1. The Business and the individual Applicator were charged with the commission of unlawful acts as set forth in A.R.S. §32-2325 which provides, in pertinent part as follows: “A person shall not: 1. Engage in the business of structural pest control without holding a business license issued pursuant to this chapter. 2. Engage in the business of structural pest control without a qualifying party qualified in that category. ……. 4. Apply pesticides in any category other than the control of wood- destroying pests or organisms unless the person is a certified applicator certified in or qualifying party qualified in that category pursuant to this chapter or the person applies the pesticides under the direct supervision of a certified applicator certified in or qualifying party qualified in that category pursuant to this chapter. …….”

2. The provisions of A.R.S. §32-2328 state, in part:

“A. A priority of the commission is to identify persons who are engaged in the business of structural pest control without a license from the commission.

B. The commission may do either or both of the following in relation to unlicensed pest control business operations: 1. Issue a cease and desist order requiring an unlicensed structural pest control business, on receipt of the order, to immediately cease operations. 2. Impose on an unlicensed pest control business a civil penalty of at least five hundred dollars for the first offense and at least seven hundred fifty dollars for the second or subsequent offense.”

The undisputed evidence of record adequately established that the Business and Steven M. Finocchio, although previously holding a business license and an Applicator’s Certificate, respectively, both of which licenses having been allowed to expire, did not possess any current, valid licenses at a time when they were observed to be performing a pesticide application. Consequently, it may properly be concluded that both the business entity and the individual applicator were engaging in structural pest control activity without any licenses, in violation of the provisions of A.R.S. §322325 (1), (2) and (4), as charged hereunder, thereby subjecting both to the imposition of appropriate disciplinary penalties as provided by law.

4. The record in this matter further supports the issuance of a formal cease and desist order against both the Business and against Steven M. Finocchio, as well as the imposition of a civil penalty, jointly and separately against such entity and individual, in the total, aggregate amount of $700.00. ……. ……. …….

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Commission issue a Cease and Desist order against both Finocchio Pest Control and against Steven M. Finocchio, individually, mandating that both shall immediately cease pest control business operations and that neither shall engage in the structural pest control business without first obtaining, respectively, a proper business license and an Applicator Certificate.

It is further recommended that the Commission impose a total civil penalty in the amount of $700.00 against both the Business and Steven M Finocchio, such total penalty amount to be jointly payable in full by either the Business, by Steven M. Finocchio or shared by both.

Dated: March 22, 2002. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Jerome Davis Structural Pest Control Commission 9535 East Doubletree Ranch Road Scottsdale, AZ 85258-5514

ATTN: David Broadstreet -----------------------

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