ALJDEC

97A-121-SPC-RESUBMIT · Structural Pest Control Commission · 1998-06-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 17, 1998 APPEARANCES: Blair Driggs, Assistant Attorney General, on behalf of the State No one appeared on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________

FINDINGS OF FACT In May, 1997, Inspector Vince Craig (Craig) of the Arizona Structural Pest Control Commission (Commission) received a telephone call from Mrs. Carl Taibl (Taibl), asserting that she had paid George A. Howerton, Jr. of Howerton Pest Control (Howerton) for warranty pest control services for the year and had not received any requested services. Craig attempted to locate the name of the company which had been given by Taibl but could not locate it on the Commission computer. Subsequently, Craig received written complaints about Howerton from Taibl and two other persons. Howerton had received payment of $200.00 from Mr. and Mrs. Carl Taibl, and $200.00 from Mr. and Mrs. Patrick Marrs in January, 1997, and $200.00 from William and Dr. Claire Jacobs in April , 1997. The payment was for a pest control service warranty for a year. Howerton did not provide services requested by the above complainants. Craig checked the Commission license files and learned that the Howerton Pest Control Business License and the Qualifying Party Credential of George A. Howerton, Jr., had expired on December 31, 1996. As of the hearing they have not been renewed. Howerton telephoned the Commission and stated he would send a response to the complaints. No response was ever received by the Commission. CONCLUSIONS OF LAW A.R.S. §32-2321(B)(2) provides that violation of Title 32, Chapter 22, is grounds for disciplinary action. A.R.S. §32-2325(1) provides in pertinent part that a person shall not engage in the business of structural pest control or pest control adviser without holding a business license issued pursuant to chapter 22. A.R.S.§32-2328 (B)(2) provides for a $500.00 penalty for a first offense of engaging in an unlicensed pest control business, and $750.00 for a second or subsequent offense. A.R.S. §32-2325(2) provides that a person shall not engage in the business of structural pest control in any classification without a qualifying party qualified in that classification. A.R.S.§32-2301(5)(c) provides in pertinent part that the business of structural pest control means soliciting the making of contracts for the application of pesticides or the use of devices for the purpose of exterminating or controlling infestations or infections. Count one of the Complaint alleges violation of A.R.S. §32-2321(B)(2) based on any violation of Chapter 22, specifically A.R.S. §32-2325(1), engaging in the business of structural pest control without holding a license. Howerton engaged in the business of structural pest control by entering into one year warranty contracts and the acceptance of payment for application of pesticides or the use of devices for the purpose of exterminating or controlling infestation or infections. This was done at a time when the license had expired and therefore falls within the statutory prohibition. A single violation is established. There can be no independent violation of A.R.S. §32-2321(B)(2) since the statute requires an underlying violation of chapter 22, rules or written orders of the Commission. Count two of the Complaint must be dismissed since A.R.S. §32-2328(B)(2) does not reference a statutory violation but merely the action which may be taken or sanction which may be imposed for certain violations. Count three alleges that Howerton was not qualified in the same classification as the business of structural pest control in which he was engaged. This issue was not specifically addressed during the hearing. However, it is surmised that when the structural pest control business license and Howerton’s qualifying party credential were active, they were in the same classification. The statute, A.R.S. §32-2325(2), requires the classification of the qualifying party under A.R.S. §32-2314(B) to be the same as the classification of the licensed business engaging in the business of structural pest control. The purpose of the statute is to ensure qualifying parties are qualified (competent, knowledgeable, etc.), in the same classification as the business. The statute is not for the purpose of addressing unlicensed activity. Of legal and logical necessity, A.R.S. §32-2325(2) is violated when a person has no qualifying credential or the credential has expired since the person is no longer a qualifying party qualified in that classification. In this case, both the business and qualifying party were no longer qualified in any classification since the license and credential had expired. Count three does not apply to the facts of this case and is also recommended for dismissal. RECOMMENDED ORDER In view of the foregoing, it is recommended upon the effective date of the Order entered in this matter that the Expired Qualifying Party Credential No. 1162 B of George Howerton, Jr. be revoked; It is further recommended that if George Howerton, Jr. pays a civil penalty of Five Hundred ($500.00) Dollars prior to the effective date of the Order entered in this matter, then the aforementioned revocation shall not take place; It is further recommended that an administrative warning be issued to Howerton Pest Control, Expired Business License No. I 2408 B. Done this day, June 19, 1998.

_______________________________ ALLEN REED Administrative Law Judge

Original transmitted by mail this ____ day of June, 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 _______________________________ -----------------------

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