ALJDEC

97A-025-SPC · Structural Pest Control Commission · 1998-02-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 11, 1998 APPEARANCES: Blair Driggs, Assistant Attorney General, on behalf of the State No one appeared on behalf of the Qualifying Party or the Business Licensee ADMINISTRATIVE LAW JUDGE: Allen W. Reed _____________________________________________________________________

FINDINGS OF FACT On February 21, 1997, the Structural Pest Control Commission (Commission) received a complaint against Business Licensee, Thomas Exterminating, Inc. (Thomas), which asserted that Thomas and John Gilbert (Gilbert), Qualifying Party, were not honoring a termite treatment warranty on an initial pretreatment done at the home of Clarence and Ilene Koch (Koch) in April, 1994. On February 24, 1997, Jack Confer (Confer), a program-project specialist with the Commission, sent a copy of the Koch complaint and a cover letter from the Commission which required a written response within 20 days. The letter was sent to the address of record for the Business Licensee but was addressed to a Mr. Dennis Crawford (Crawford) who was in the process of attempting to purchase Thomas. This attempted purchase was never completed. There was no response to the Commission’s letter or the Koch complaint. Confer checked the Commission computer data base and could not locate a Termite Action Registration Report (Form) for the initial treatment of the Koch residence. The fee for filing such a Form was $7.00 in 1994. Neither the Thomas license or the Gilbert Qualifying Credential were renewed in December, 1997. CONCLUSIONS OF LAW The Notice of Hearing in this case was sent to the Respondent on January 9, 1998. The date of the hearing is in 1997. It is concluded that even though the date is incorrect, the Respondent was not misled and the failure of the Respondent to appear is not excused by the erroneous notice. The allegations against Thomas and Gilbert concern A.R.S. §32- 2321(B)(2), violation of chapter 22 or any rules adopted pursuant to the chapter. Counts 1 and 2 involve A.A.C. R4-29-418(A) and A.R.S. §32-2304(D), (each completed form for a any termite action or pretreatment project shall be accompanied by a fee), Count 3, A.A.C. R4-29-417(A), (a termite action registration report shall be submitted to the Commission for each termite action), and Count 4, A.A.C. R4-29-107(A), (failure to respond to the Commission within 20 days after notification of a complaint). As to Count 1, the fact that the required fee did not accompany the Form which was never filed, does not create an independent violation. The duty to pay a fee hinges on the filing of the Form. They are to be submitted together. A filing fee is to be submitted with a completed Form. In this case, no completed Form or fee were submitted. A.R.S. §32-2304(D) allows a penalty of up to $100.00 for not submitting a Form and fee within 30 days. A.A.C. 4- 29-211(A) provides the penalty for a late filing fee with a Form is double the prescribed registration fee. The facts sustain a violation of A.R.S. §32-2304(D) (failure to submit the Form and fee) and A.A.C. R4-29-417(A), (failure to submit a Form) and therefore a violation of A.R.S. §32- 2321(B)(2) as alleged in Counts 2 and 3 although there is but a single violation. The Commission notified Crawford (as a presumed purchaser of Thomas), of the Koch complaint, on February 24, 1997. No response was received by the Commission. The rule specifies the qualifying party, pest control advisor or designated agent of a licensed company or other person against whom a complaint is logged, shall respond within 20 days. The instant Complaint is issued against Thomas and Gilbert. The Koch notification was sent to Crawford. There is no showing that Crawford was anything other than an “other person” with respect to the rule. Except for the evidence that Crawford was attempting to purchase Thomas, the capacity of Crawford to act on behalf of, or otherwise be legally responsible to or for Thomas, is unknown. There is insufficient evidence to show the notification was properly sent to Crawford so as to have any legal impact on Thomas. In addition, the rule does not specifically provide that the licensed business is chargeable under the terms of the rule. Based on the fact that Gilbert was not notified of the Koch complaint and the uncertainty of the legal nature of Crawford’s relationship to Thomas with respect to the notice and jurisdictional issues in this case as well as the Koch complaint, there is an insufficient basis for finding a violation of Count 4. RECOMMENDED ORDER In view of the foregoing, it is recommended that upon the effective date of the Order entered in this matter that an administrative warning be issued to Thomas Exterminating, Inc., holder of Business License No. 5412 BCE (the Class C portion of the license); It is further recommended that a civil penalty in the amount of One Hundred ($100.00) Dollars pursuant to A.R.S. §32-2321(A)(5) be assessed against John A. Gilbert, Holder of Qualifying Party Credential No. 767 BCE (the Class C portion of the Credential), which civil penalty shall be payable on the effective date of the Order entered in this matter. Done this day, February 17, 1998.

_______________________________ ALLEN W. REED Administrative Law Judge

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

Mr. J.H. "Bud" Paulson, Executive Director Structural Pest Control Commission ATTN: Jack Confer 9535 East Doubletree Ranch Road Scottsdale, AZ 85258

By _______________________________

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