ALJDEC

94A-277-SPC-RESUBMT · Structural Pest Control Commission · 1998-05-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 15, 1998. APPEARANCES: The Structural Pest Control Commission was represented by Assistant Attorney General Blair Driggs. Respondents did not appear.

ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________

This matter was consolidated for purposes of hearing with 95A-137-SPC- RESUBMT and 96A-167-SPC-RESUBMT. Each of the cases has a separate recommended decision. The commencement of the hearing was delayed for approximately thirty minutes to allow for the late appearance by the Respondents. The hearing then commenced without the appearance by the Respondents. Evidence and testimony were presented and, based upon the entire record, the following Findings of Facts, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. The State Structural Pest Control Commission (“Commission”) is the duly constituted authority for the regulation and control of the business of structural pest control in the State of Arizona. 2. On or about October 27, 1994, John V. Neiderman (“Neiderman”), on behalf of Falcon Pest Control (“Falcon”) and its qualifying party, Kenneth Howard (“Howard”), performed and completed pre-construction termite treatments (“pretreatment”) in two separate applications at 13412 North 14th Place, Phoenix, Arizona. 3. Neiderman completed those pretreatments using the termiticide Torpedo at a .5% emulsion. 4. In the course of the pretreatment, Neiderman placed tags on the site which detailed the work that he had completed. The tags state that he applied 447 gallons of termiticide to 2,870 square feet and 399 linear feet. 5. Commission measurements and calculations reflect that the site actually consisted of 2,742 square feet and 1,826 linear feet which would have required 1,002 gallons of Torpedo at a .5% emulsion. It is determined that the measurements and calculations taken by the Commission’s inspector are accurate and that the measurements and calculations taken by Falcon by its applicator are inaccurate. 6. The applications performed by Neiderman, under the direction of Falcon and Howard, at 13412 North 14th Place, Phoenix, Arizona were not completed pursuant to Arizona State Statute or Arizona Administrative Code. 7. Falcon, Howard and Neiderman failed to apply at least 500 gallons of Torpedo at a .5% emulsion. 8. The evidence of record establishes that Falcon has had three prior violations in which disciplinary action was taken within a five- year period prior to the date for which the current disciplinary action is sought. Those cases were Complaint No. 89-292,Complaint No. 92-216 and Complaint No. 93-04 which were heard before the Structural Pest Control Commission of the State of Arizona

CONCLUSIONS OF LAW

1. The evidence of record is adequate to establish that Falcon, Howard and Neiderman have violated the provisions of A.R.S. § 32-2321 (B)(2), A.A.C. R4-29-407 (B)(6) and A.A.C. R4-29-402. 2. Falcon, Howard and Neiderman were each responsible for failure to use the proper amount of termiticide in the pretreatment. A.A.C. R4-29-104. 3. Pursuant to the provisions of A.R.S. § 32-2321(C) (1), the Commission has the authority to take action against the business license of Falcon due to its history of prior violations resulting in disciplinary action taken against it by the Commission.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the State Structural Pest Control Commission impose a civil penalty in the amount of $500.00 against Falcon Pest Control, the business licensee, in this matter. It is further recommended that the State Structural Pest Control Commission assess a civil penalty in the amount of $500.00 against Kenneth C. Howard, the business licensee’s qualifying party, in this matter. It is further recommended that the State Structural Pest Control Commission assess a civil penalty in the amount of $500.00 against John V. Neiderman, the business licensee’s applicator, in this matter. Done this day, May 29, 1998.

______________________________________ BRIAN BRENDAN TULLY Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1998, to:

Mr. J.H. "Bud" Paulson, Executive Director Structural Pest Control Commission 9545 East Doubletree Ranch Road ATTN: Jack Confer Scottdale, AZ 85258

By ___________________________ -----------------------

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826