ALJDEC decisions subject to certification as final

09A-080219-03-KOT-AGR · Department of Agriculture · 2009-04-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 30, 2009 at 9:00 a.m. APPEARANCES: Appellant Jeffrey Kottenbrook appeared on his own behalf; the Arizona Department of Agriculture appeared through Casey W. Cullings, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. Respondent Jeffrey Kottenbrook is certified by the Arizona Department of Agriculture (“the ADA”) as a commercial applicator of restricted use pesticides. Mr. Kottenbrook is employed by Morris Ag Air & Sons, a custom applicator based in Yuma. 2. On February 18, 2008 from approximately 9:15 to 9:50 p.m., Mr. Kottenbrook made an aerial application of the pesticides Aliette WDG and Tanos to two adjacent lettuce fields owned by Pasquinelli Produce Company (“Pasquinelli”) near Yuma, in the vicinity of Avenue D and County 12th St. 3. Pasquinelli did not inform its employees that Mr. Kottenbrook would make an aerial application of pesticides on the night of February 18, 2008. Pasquinelli also did not inform Mr. Kottenbrook that its employees would be irrigating the field when Mr. Kottenbrook made the aerial application. 4. Two of Pasquinelli’s irrigators were present in or near the field when Mr. Kottenbrook made an aerial application of pesticides the night of February 18, 2008: (1) Martin Rodriguez was on Avenue D, on the west side of the fields near his car; and (2) Lamberto Valenzuela was next to the field ditch that ran east-west and divided the two fields. His truck was parked on the dirt road on the east side of the fields. 5. Mr. Valenzuela attempted to run to his truck when Mr. Kottenbrook made the aerial application of pesticide to the fields on February 18, 2008, but was sprayed en route. 6. Mr. Rodriguez and Mr. Valenzuela later complained to the ADA. The ADA Investigator Olga Lomeli interviewed the irrigators, Mr. Kottenbrook, and various Pasquinelli personnel, including Pasquinelli’s entomologist Jeff Havins. 7. Ms. Lomeli also had the ADA Laboratory analyze the clothes that Mr. Valenzuela had been wearing on the night of February 18, 2008, which confirmed the presence of Aliette WDG and Tanos. 8. Based on Ms. Lomeli’s investigation, ADA charged Pasquinelli and Mr. Kottenbrook with allowing the pesticides to come into contact with a person, contrary to label directions and contrary to applicable administrative regulations. 9. ADA assessed a $230 penalty against Mr. Kottenbrook. The penalty was based on the following factors: (1) Mr. Kottenbrook knew or reasonably should have known by reasonable diligence that he was spraying irrigators; (2) Actual human exposure to pesticides had occurred, but did not require medical treatment; and (3) A single non-serious incident formed the basis of both charged violations. The ADA did not charge Mr. Kottenbrook with having willfully or intentionally committing the violations. 10. Pasquinelli admitted responsibility for these two violations and paid the assessed penalty. In a letter dated March 5, 2008, Mr. Havins attempted to exonerate Mr. Kottenbrook, in relevant part as follows: Concerning Morris Ag Air and the pilot Jeff Cottonbrook [sic], it does appear that Jeff made the appropriate measure to avoid any drift on the irrigator. Jeff noticed the irrigator in the center field ditch between the WN DALEY N and WN DALEY S, and started flying the south edge of the WN DALEY S, and then worked north. By the time Jeff was 2/3 through the south block, the irrigator was in his vehicle and driving around the filed to the west. I received this information by having a meeting with Davey Brooks, Jeff Cottonbrook [sic], Miles Morris, and the two irrigators (Mr. Valvuela [sic] and Mr. Rodriguiz [sic]).

11. Mr. Kottenbrook appealed the ADA’s assessed $230 penalty. In the appeal, he denied having seen any Pasquinelli workers. 12. The ADA referred the matter to the Office of Administrative Hearings, an independent state agency, and issued a Complaint & Notice of Hearing, which charged Mr. Kottenbrook with violations of A.A.C. R3-3-301(A) and R3-3-502(A)(5)(a), which the ADA had promulgated under the authority of A.R.S. § 3- 363. 13. A hearing was held on March 30, 2009. The ADA presented the testimony of Ms. Lomeli and Jack Peterson, Associate Director for the ADA’s Environmental Enforcement Division, and submitted seven exhibits. 14. Mr. Kottenbrook testified on his own behalf and submitted two exhibits. 15. The ADA submitted the label for Aliette WDG brand Fungicide, which instructed applicators, “[d]o not apply this product in a way that will contact workers or other persons, either directly or through drift. Only protected handlers may be in the area during application.” 16. Mr. Kottenbrook testified as follows regarding the February 18, 2008 incident: 1. Pasquinelli had already accepted full responsibility for the incident because it had not informed the irrigators of the aerial application and had not informed Mr. Kottenbrook of the irrigators’ scheduled presence. Mr. Kottenbrook argued that the ADA should therefore dismiss all charges against him. 2. Mr. Kottenbrook testified that the aerial application was ordered at the last minute. In the “rush of the season,” Pasquinelli failed to notify the employees of the scheduled aerial application. 3. Mr. Kottenbrook testified that nighttime applications are different than daytime applications; the applicator’s field of vision is very limited at night. 4. Mr. Kottenbrook admitted that he saw Mr. Rodriguez, but denied having seen Mr. Valenzuela. 5. Mr. Kottenbrook testified that Mr. Valenzuela did not signal Mr. Kottenbrook to show his presence in the field. Without a signal, a pilot cannot see someone walking in a field at night. 6. Mr. Kottenbrook testified that the weight of the load of the pesticides prevents a pilot from safely landing a plane before he completes an aerial application. Once he took off, Mr. Kottenbrook argued that he had no choice but to complete the application. 17. The ADA argued that, based on Mr. Havins’ letter and inconsistencies between Mr. Kottenbrook’s appeal and hearing testimony, that Mr. Kottenbrook had seen Mr. Valenzuela. The ADA argued that Mr. Kottenbrook nonetheless make a business decision to continue the aerial application because he did not want to lose Pasquinelli’s business. CONCLUSIONS OF LAW 1. This matter lies within the ADA’s statutory jurisdiction.[1] 2. The ADA bears the burden of proof and must establish Mr. Kottenbrook’s violations of applicable statutes and regulations by a preponderance of the evidence.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] 3. A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[4] 4. The legislature has authorized the ADA to adopt rules to regulate pesticides, including rules that do the following: 2. Prescribe measures to control, monitor, inspect and govern pesticide use. . . . .

7. Prohibit pesticide use which is inconsistent with the pesticide label as required under the federal insecticide, fungicide and rodenticide act (61 Stat. 163). . . . .

11. Establish a nonexclusive list of acts and omissions that constitute serious, nonserious and de minimis violations of this article.

12. Establish a system of administrative penalties and fines for violations of this article and any rules adopted under this article.

5. Pursuant to this authority, the ADA has promulgated A.A.C. R3-3-301, which provides that “[a] person shall not use, apply, or instruct another to apply a pesticide in a manner or for a use inconsistent with the pesticide labeling . . . .” 6. The ADA has also promulgated A.A.C. R3-3-502(A)(5)(a), which includes among the nonexclusive list of nonserious violations the application of a pesticide such that it comes into contact with an individual. 7. “’Knowingly’ imports only a knowledge that the facts exist which bring the act or omission within the provisions of the statute using such word. It does not require any knowledge of the unlawfulness of the act or omission.”[5] It has long been the law in Arizona and elsewhere that “’[n]otice of facts and circumstances which would put a man of ordinary prudence and intelligence on inquiry is . . . equivalent to knowledge of all the facts a reasonably diligent inquiry would disclose.’”[6] 8. The ADA has borne its burden to establish that, on February 18, 2008, Mr. Kottenbrook violated A.A.C. R3- 3-301 and R3-3-502(A)(5)(a) when he made an aerial application of Aliette WDG and Tanos to Pasquinelli’s fields, where the pesticides came into contact with Mr. Valenzuela. The ADA also has established that Mr. Kottenbrook actually knew or should have known of Mr. Valenzuela’s presence near the field ditch in the middle of the two fields when Mr. Kottenbrook performed the aerial application. 9. The ADA has also established that the assessment of a civil penalty in the amount of $230.00 is appropriate under A.R.S. § 3-3113(I). RECOMMENDED ORDER Based on the foregoing, it is recommended that the Director of the ADA affirm its finding of Mr. Kottenbrook’s violations, affirm its assessment civil penalties in the total amount of $230.00, and dismiss Mr. Kottenbrook’s appeal. Done this day, April 16, 2009.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of April, 2009, to:

Department of Agriculture Jack Peterson, Associate Director 1688 West Adams St. Phoenix, AZ 85007

By ___________________________ ----------------------- [1] A.R.S. § 3-3101 et seq. [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [4] Black’s Law Dictionary at page 1220 (8th ed. 1999).

[5] A.R.S. § 1-215. [6] Maricopa Utilities Co. v. Cline, 60 Ariz. 209, 214, 134 P.2d 156 (1943) (quoting Schneider v. Henley, 61 Cal. App. 758, 215 P. 1036, 1038).

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