ALJDEC

97A-212-SPC-resubmit · Structural Pest Control Commission · 1999-05-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

REHEARING: May 13, 1999 at 9:00 a.m. APPEARANCES: The Arizona Structural Pest Control Commission appeared through its attorney, Blair Driggs, Esq., Assistant Attorney General; John N. Weiler appeared on his own behalf and on behalf of Weiler’s Pest Control. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

The parties presented evidence and testimony on the issue of whether Respondents Weiler’s Pest Control, holder of Business License No. C4336 B, and John N. Weiler, holder of Qualifying Party Credential No. 1114 B and Applicator Certificate No. 950436 VII BC, were adequately notified of the Structural Pest Commission’s charges against them; if so, whether grounds exist to impose disciplinary sanctions against them; and, if any sanctions should be imposed, what sanctions are appropriate. Based upon the entire record, the undersigned makes the following Findings of Fact, Conclusions of Law and Recommended Order. FINDINGS OF FACT The Violation at Issue On or about July 17, 1997, after Shawnee Theorine had complained about an ant and tick infestation at her Glendale residence, Clark Schwartz applied Diazinon, Cynoff, and Kicker in the residence’s yard and interior. Respondent Weiler’s Pest Control had hired Mr. Schwartz on June 5, 1997. Mr. Schwartz had some prior experience in the pest control industry, having worked at Good Shepherd. Before going out into the field by himself for Weiler’s Pest Control, Mr. Schwartz had taken certification training at the Pest Management Institute, ridden along with Respondent John Weiler’s brother Andy, and received on-the-job supervision from Mr. Weiler or his brother. Mr. Schwartz did not in 1997 and does not presently hold an applicator certificate but, instead, applied pesticides as a registered employee under Weiler’s Pest Controls’ business license. Weiler’s Pest Control did submit to the Commission an Employee Registration for Mr. Schwartz, however, until August 1, 1997, some two weeks after the July 17, 1997 incident.[1] Mr. Schwartz used only his initials, “C.S.,” to identify himself as the applicator on the treatment record he left with Ms. Theorine. Evidence was produced at the hearing that, prior to July 23, 1997, Mr. Schwartz customarily signed only his initials to treatment records. Within several days of the application, Ms. Theorine, her family, and/or her dog became ill and sought medical or veterinary treatment. On or about July 21, 1997, Ms. Theorine made telephone calls to the Arizona Structural Pest Control Commission (“Commission”) and to Mr. Weiler to complain. Mr. Weiler immediately talked to Mr. Schwartz about the application. Mr. Schwartz admitted “fan-spraying” the carpet, which was contrary to Weiler’s Pest Control’s internal practices and policies, allegedly at Ms. Theorine’s request. Mr. Schwartz denied otherwise having applied pesticides inappropriately. On July 21, 1997, within two hours after Ms. Theorine’s telephone call, Mr. Weiler went to her residence. He arranged and paid for the carpets to be cleaned and for three nights’ commercial lodging for Ms. Theorine and her family while the residence aired out. Mr. Weiler also facilitated Ms. Theorine’s claim for personal injuries against his professional insurance policy, which has paid approximately $5,000 to settle the insurance claim. On or about July 22, 1997, the Commission’s inspector Vince Craig went to meet Ms. Theorine at the residence to investigate her complaint. Ms. Theorine gave Inspector Craig the treatment record for the July 17, 1997 treatment, which as noted above Clark Schwartz had initialed “C.S.” Ms. Theorine also gave Inspector Craig a record for a treatment that Weiler’s Pest Control had performed on April 22, 1997. The April 22, 1997 treatment record was signed “Claude Singer.” Evidence was produced at the hearing that Mr. Singer customarily signed his full name to treatment records. Ms. Theorine identified Weiler’s Pest Control as the business licensee and Claude Singer as the applicator/employee who had performed the July 17, 1997 application, apparently based on the two treatment records. Ms. Theorine also pointed out to Inspector Craig the areas that the applicator had sprayed during the July 17, 1997 treatment, including her grandson’s bedroom, the kitchen, and the back yard, gave him the veterinary bills and hospital bills incurred after the treatment, and informed him that Weiler’s Pest Control had arranged for the carpet to be cleaned. Inspector Craig took photographs of and wrapped in plastic bags and chain- of-custody tape items that Ms. Theorine believed had been sprayed, consisting of the following: (1) a Barney doll from her grandson’s bedroom; (2) a toy truck from the back yard; (3) a toy fire hydrant from the back yard; and (4) a pot from the top of the kitchen cabinet. Inspector Craig took the four items to the Arizona Department of Agriculture Laboratory for testing for the presence of Cynoff, Diazinon, and Kicker, the pesticides identified on the July 17, 1997 treatment record. Inspector Craig confirmed that Weiler’s Pest Control had in fact applied to register Claude Singer as an employee on April 26, 1995, well before the July 17, 1997 pesticide application at the Theorine residence. Inspector Craig also discovered that Mr. Singer held his own applicator certificate. As part of the investigation into this incident, Inspector Craig requested a meeting with Mr. Weiler. On or about July 23, 1997, Mr. Weiler met with Inspector Craig and his supervisor, David Broadstreet, at the Commission’s offices. Mr. Weiler provided all information requested. At the July 23, 1997 meeting, Inspector Craig told Mr. Weiler that his employees should be signing their full names, not just initials, to treatment records. On or about July 24, 1997, Mr. Schwartz started signing treatment records with his full name. Inspector Craig apparently also asked that a meeting be arranged with the applicator who had performed the treatment at the Theorine residence on July 17, 1997. Within a day or so, Inspector Craig met with Mr. Schwartz and Mr. Weiler at the latter’s home, which was also Weiler’s Pest Control’s business office. Because Inspector Craig assumed Mr. Schwartz was Mr. Singer, he did not ask for any identification. Mr. Schwartz denied having misapplied any pesticides. On or about October 23, 1997, Doug Marsh of the Department of Agriculture sent to Inspector Craig via facsimile the results of the tests on the four items that had been removed from the Theorine residence. They three toys and cooking pot all showed evidence of contamination by Diazinon and Cypermethrin, one of the active ingredients in Cynoff.[2] According to the labels for the two pesticides, both may be applied indoors, but not in food preparation areas or on clothing, toys, or other household items that may come into direct contact with humans or pets. Facts Relating to Issue of Notice Shortly after receipt of the facsimile from the Department of Agriculture reporting the results of its tests, Inspector Craig made a report of his investigation. Based on this report, on October 27, 1997, the Commission issued a complaint against Weiler’s Pest Control, as business licensee, Mr. Weiler, both as qualifying party and applicator, and Mr. Singer, as applicator, charging violations of various statutes and regulations. The Complaint notified Mr. Weiler for the first time that the Commission believed that Mr. Singer, not Mr. Schwartz, was the applicator who had actually applied the treatment at the Theorine residence on July 17, 1997. After Mr. Weiler received the Complaint, he contacted various personnel at the Commission to inform them of the error with respect to the identity of the actual applicator on the particular job where the violations allegedly had occurred. Mr. Weiler believed that the mistake would be corrected before a hearing would be held on the complaint allegations. Mr. Weiler failed to appear at the hearing and, on or about July 7, 1998, Administrative Law Judge Kay A. Abramsohn recommended that the Commission find that the charged violations had been established and that all four licensees were jointly responsible. As a penalty for the violations, Judge Abramsohn recommended that Weiler’s Pest Control have its business license suspended for one week and be assessed a civil penalty of $500.00; that Mr. Weiler be assessed a civil penalty of $500.00; and that Mr. Singer be issued an administrative warning and be required to obtain 3 more hours of continuing education than is required by statute. At its August meeting, the Commission accepted Judge Abramsohn’s findings of fact but amended her penalty recommendations. Instead, the Commission revoked Weiler’s Pest Constrol’s business license and Mr. Weiler’s qualifying party certificate and applicator certificate and imposed a civil penalty of $1,000 on Mr. Singer and required him to take an additional 6 hours of continuing education. On November 10, 1998, Mr. Weiler requested review and rehearing of the Complaint allegations under A.A.C. R4-29-502(C)(1), (5), (6), and (7) because, respectively, no opportunity for fair hearing was provided because, even after Mr. Weiler informed Commission personnel of the factual errors in the Complaint, such errors were not corrected; the penalties imposed were excessive and unwarranted; evidence should not have been admitted against Claude Singer because he was not the applicator who had applied the treatment at issue; and the Commission’s decision was not justified by the evidence and was contrary to law. On January 15, 1999, by a 3-1 vote, the Commission granted Mr. Weiler’s request for a rehearing. Mr. Weiler at the rehearing conceded that he did not and had never disputed that Mr. Schwartz had not followed the label in applying Cynoff and Diazinon at the Theorine residence on July 17, 1997. He also conceded that, if an applicator causes a customer to become ill, serious sanctions should be imposed upon the applicator’s employer. Mr. Weiler argued that, although he would still be jointly responsible for a registered employee’s misfeasance, he could only raise proper training and supervision as factors in mitigation if the employee who committed the misconduct were correctly identified in the Complaint. On or about May 11, 1999, shortly before the scheduled rehearing in this matter, Mr. Broadstreet on behalf of the Commission received a letter from Mr. Singer, as follows: In regards to our conversation over the phone on 04/15/99 regarding the case involving me and Weiler’s Pest Control. I’ve felt my involvement in this case was cleared up. I’ve call[ed] two/three times your office in an attempt to get clearification [sic] of my involvement in the case involving Weiler’s Pest Control. The conversation we had was the first successful conversation with an inspector. It was through Mr. John Weiler that I was told not to worry about this case. He told me that there was a mix-up with me and another ex-employee of his company. Nevertheless, I would like to state it was the policy of Weiler’s Pest Control not to spray blindly in areas. I for one followed this policy. . . .

I’m currently not working in the Pest Control Management field nor do I plan to return to it. I hope this letter will bring an end to my involvement in this case.

Prior Violations and Factors in Mitigation Mr. Weiler started working in the pest control industry in 1979 and obtained his qualifying party credential and the business license for Weiler’s Pest Control in 1987. Case No. 92-043: On January 20, 1994, the Commission issued its final Decision and Order. That matter involved allegations that Weiler’s Pest Control’s employee Ron Lindenmuth allowed Vapon and Diazinon to saturate the fur of a dog next door to the target site and that Mr. Lindenmuth lacked certification to apply those pesticides. The Commission concluded that the evidence supported findings that Mr. Weiler had violated A.R.S. § 32-2325[3] “in allowing Mr. Lindenmuth to apply pesticides on behalf of Weiler’s Pest Control, without ascertaining the certification status of Lindenmuth and without satisfying himself of Lindenmuth’s certification.” The Commission also concluded that the evidence did not support findings that Mr. Weiler and Weiler’s Pest Control had violated either (1) A.R.S. § 32-2315(A) by failing to register Mr. Lindenmuth within 30 days of his initial employment or (2) A.A.C. R4-29-45 by a miscommunication that resulted in the Commission’s failure to examine Weiler’s Pest Control’s records. As a result of the established violation, the Commission issued an administrative warning against Weiler’s Pest Control’s license and imposed a $500 civil penalty on Mr. Weiler’s qualifying party credential.[4] Case Nos. 93-016 and 93-184: On June 23, 1994, Mr. Weiler entered into a consent agreement with the Commission as the final disposition. In that agreement, Mr. Weiler admitted that, (1) on August 22, 1990, he and Weiler’s Pest Control had been named as defendants in a civil suit filed in Arizona, but did not notify the Commission, (2) on December 22, 1992, Weiler’s Pest Control employee Richard Johnston had performed a general pest control application using Diazinon 4E and DDVP 2E without wearing the safety equipment required by the label and without being a certified applicator or Weiler’s registered employee; and, (3) on or about August 24, 1993, when Weiler’s Pest Control employee William Gay performed a general pest control application using Diazinon 4E, he was neither registered nor certified and allowed the chemical to drift into a vehicle parked nearby. Mr. Weiler also agreed that these factual circumstances established grounds for disciplinary action under A.R.S. § 32-2321(B)(2) because they constituted (1) a de minimis violation of A.A.C. R4-29-03(D)[5] and (2) a violation of A.A.C. R4-29-301.[6] As a result of the consent order, both Mr. Weiler and Weiler’s Pest Control received an administrative warning, Weiler’s Pest Control was placed on administrative probation for a period of one year, Mr. Weiler and all of Weiler’s Pest Control’s employees were required to take 3 hours of continuing education above what was required by statute; and Mr. Weiler was required to register and certify all employees before allowing them to apply pesticides. In 1995, Mr. Weiler became a co-founder and executive director of the Pest Management Institute. He developed the initial certification curriculum, which the Commission has approved and which has been given to or 50 students. The training provided at the Pest Management Institute concerns labels, applicable statutes and regulations, environmental issues, common pests, and safety. Mr. Weiler credibly testified that he teaches his students that the worst thing a member of the pest control industry could ever do is to endanger his own or anyone else’s health. In his courses, Mr. Weiler also provides recommendations regarding how applicators should resist pressures from employers or customers to perform acts that could endanger human health and the moral dilemmas that applicators may face when they work in the industry. In October, 1997, Mr. Weiler sold Weiler’s Pest Control and went to work in the pest control industry for another licensee. He does not plan to go back into business for himself. Although Mr. Schwartz initially went to work for the same licensee, he was terminated from employment after Mr. Weiler informed the licensee about the July 17, 1997 incident and, according to Mr. Weiler, is no longer employed in the pest control industry. CONCLUSIONS OF LAW The Commission is the duly authorized authority for the regulation of the pest control industry in Arizona under A.R.S. § 32-2301 et seq. The Commission bears the burden of proof in this administrative proceeding to establish respondents’ statutory violations by a preponderance of the evidence. See A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary at page 1064 (6th ed. 1990). The evidence in the record establishes and the Commission’s attorney conceded that Mr. Schwartz, not Mr. Singer, performed the July 17, 1997 application at the Theorine residence. The evidence also establishes that Mr. Schwartz performed the application while in the course and scope of his employment with Mr. Weiler and Weiler’s Pest Control. Mr. Schwartz does not appear to possess a certificate or license but, if he did, no sanctions could be imposed against him as result of this rehearing because he was not named in the Complaint and received no notice of the Commission’s charges against him. See Arizona Property Casualty Ins. Guaranty Fund v. Helme, 153 Ariz. 123, 126, 735 P.2d 445, 448 (App. 1986), vacated in part on other grounds, 153 Ariz. 129, 735 P.2d 451 (1987). “In contrast, under the law of respondeat superior as it regards pleading practice, a complaint that generally alleges the employer’s negligence need not specifically identify each employee involved to hold the employer liable for such employees’ negligent acts.” Id. (citing, inter alia, 57 C.J.S., Master and Servant, § 614 (1948 & Supp. 1985)). The Complaint provided Mr. Weiler and Weiler’s Pest Control with sufficient notice of the factual basis of the charges against them to allow them to respond to the Complaint and to prepare a defense. The evidence also establishes that Mr. Weiler knew the true identity of the employee who performed the application at issue and attempted to communicate this information to the Commission. There is no evidence that Mr. Craig or other Commission personnel unreasonably or for any improper purpose charged Mr. Singer for Mr. Schwartz’ misconduct. Likewise, Mr. Weiler’s mistake about the legal effect of an error in the Complaint appeared to be innocent and no adverse inference should be drawn from his mistake or from his failure to answer the complaint or appear at the first hearing. Although neither Mr. Singer, Mr. Weiler, nor Weiler’s Pest Control responded to the Complaint and, therefore, violated A.R.S. § 32- 2321(B)(2) and A.A.C. R4-29-107(A),[7] Mr. Weiler’s confusion about a technical legal issue and advice to Mr. Singer are reasonable and render inappropriate the imposition of any sanctions for his de minimis violation.

The evidence in the record establishes that Mr. Schwartz violated A.R.S. § 32-2321(B)(2) by applying the Diazinon and Cynoff at the Theorine residence on July 27, 1997 in a manner inconsistent with these products’ labels and in violation of A.A.C. R4-29-301(A).[8] Under A.A.C. R4-29-104,[9] Mr. Weiler, as holder of Qualifying Party Credential No. 1114 B and Applicator Certificate No. 950436 VII BC, and Weiler’s Pest Control, as holder of Business License C 4336 B, are jointly responsible for the violation. The record also establishes that Mr. Schwartz, by applying the Diazinon and Cynoff at the Theorine residence on July 27, 1997 in an area where food was stored and prepared, violated A.R.S. § 32-2321(B)(2) and A.A.C. R4-29- 304(A).[10] Under A.A.C. R4-29-104, Mr. Weiler, as holder of Qualifying Party Credential No. 1114 B and Applicator Certificate No. 950436 VII BC, and Weiler’s Pest Control, as holder of Business License C 4336 B, are jointly responsible for the violation. Mr. Weiler is a poor manager and has demonstrated persistent deficiencies in registering, training, and supervising employees, which has resulted in serious violations. None of the violations involved Mr. Weiler personally, however, and he quickly and appropriately responded to Ms. Theorine’s complaint, which response Mr. Craig confirmed in part. Excluding Mr. Weiler from the industry is therefore not necessary to protect the public. Because Mr. Weiler has made significant contributions to professionalism in the industry as an educator, exclusion will only deprive both the industry and the public of his future contributions. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Commission impose the following discipline in this matter: That WEILER’S PEST CONTROL, Business License No. C 4336 B, be revoked. That JOHN N. WEILER, Holder of Qualifying Party Credential No. 1114 B and Applicator Certificate No. 950436 VII BC, be assessed a civil penalty of $1,000.00 for each substantial violation of the Commission’s regulations, for a total penalty of $2,000.00 (two thousand dollars) and be required to obtain 6 hours of continuing education, over and above that which is already required by statute, in the areas of supervision and management. Proof of completion of these continuing education hours must be submitted to the Commission within 180 days of the Commission’s order. That, Mr. Weiler’s Qualifying Party Credential No. 1114 B, which presently has inactive status under A.R.S. § 32-2314(F), be placed on probation for one year, with the condition that Mr. Weiler not be allowed to supervise any other business licensee’s employees. That all charges against CLAUDE V. SINGER, Holder of Applicator Certificate No. 970423 VII B, be dismissed. Done this day, May 28, 1999.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of May, 1999, to:

Structural Pest Control Commission Mr. Michael Siler 9535 East Doubletree Ranch Road ATTN: Susan Miller Scottsdale, AZ 85258

By ___________________________

----------------------- [1] A.R.S. § 32-2315(A) requires that “[e]ach employee of a business licensee who applies pesticides or makes proposals or advertises or solicits or holds himself out as willing to engage himself in the business of structural pest control shall register with the commission before beginning work for the business licensee.” No violation of this statute was alleged in the Complaint in this matter.

[2] The scientists at the Department of Agriculture Laboratory did not know what “Kicker” was and so could not conduct any test for its presence. Mr. Weiler testified at the hearing that “Kicker” is a brand name for a certain pyrethrin.

[3] The statute is entitled “Unlawful Acts” and the relevant statutory subsections provide that “[a] person shall not . . . [a]pply pesticides in any classification unless he is an applicator certified in or qualifying party qualified in that classification pursuant to this chapter or under the direct supervision of an applicator certified in or qualifying party qualified in that classification pursuant to this chapter” and that “[a] person shall not . . . [a]pply pesticides or use devices, or both, as an employee of a business licensee to control pests without being registered pursuant to section 32-2315.” A.R.S. § 32-2325(5) and (6).

[4] The Commission also revoked Mr. Lindenmuth’s applicator certificate.

[5] This regulation provided in relevant part that “[e]very company and qualifying party shall, within ten days of their receipt of the same, notify the Board of any notice, subpoena, summons or complaint, whether civil or criminal, arising directly or indirectly out of the qualifying party or company’s conduct of his structural pest control operators that must be answered in any court of this State.”

[6] This regulation provides in relevant part:

No person shall misuse any pesticide [or] use, supervise, or direct the use, including application, storage and disposal of any pesticide in a manner inconsistent with its product label or labeling as registered by the United States Environmental Protection Agency and the Arizona Department of Agriculture unless otherwise prescribed by commission rule or written order. No person shall apply, cause to apply or cause the direct release of a pesticide spray, dust or granule in such a manner that the pesticide comes into contact with persons (other than those involved in the application and who are wearing proper protective equipment), animals, or property other than the site and target being treated, unless such release is caused by accident beyond the control of the operator. No personal shall use any pesticide in a manner prohibited by Arizona Revised Statutes Chapter 22, and rules adopted pursuant to this chapter, or a written order of the commission.

[7] This regulation requires “[t]he qualifying party, pest control advisor or designated agent of a licensed company or other person against whom a complaint is logged, by or with the commission [to] respond in writing and within twenty days of the date of notification by the commission.”

[8] This regulation is quoted supra at note 6.

[9] This regulation provides that “[e]ach company, qualifying party, advisor, applicator and registered employee is responsible for the acts and omissions of, and for compliance with the law, this chapter, and other lawful orders of the commission by persons under their supervision.”

[10] This regulation provides in relevant part:

Each company shall protect food, feed and drug commodities and equipment used in the preparation of food, feed and drugs against pesticide contamination. . . . For applications other than at a food handling establishment and prior to treatment, exposed food, feed, drugs, and equipment including utensils, household dishes, table service and the like shall be effectively protected against pesticide contamination. Additional safety precautions or directions as required on the pesticide label or labeling shall be accomplished prior to treatment.

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