ALJDEC

97A-217-SPC · Structural Pest Control Commission · 1998-07-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 2, 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 1. In September, 1997, Investigator Anthony Harvack (Harvack), of the Structural Pest Commission (Commission), was contacted by Harlan Petersen (Petersen), of Sun City Arizona, regarding pest control work done by a person identified as Juan Hernandez (Hernandez). 2. On September 19,1997, Harvack went to the Petersen residence at 17014 North 96th Street in Sun City and spoke with Petersen. 3. According to Petersen, on or about September 3, 1997, Hernandez had removed a tree from the Petersen property and had told Petersen that there were termites in the base of the tree. Hernandez suggested a termite treatment for the Petersen home . 4. On or about September 5, 1997, Hernandez treated the exterior of the Petersen home by trenching around the outside of the home and applying chemicals (later soil analysis indicates Diazinon and Chlorpyrifos) to the trenched area and then filling the trenches in with concrete. 5. Hernandez then applied unspecified substances for the purpose of pest control to the interior of the Petersen home. 6. Harvack inspected the area of the removed tree and noted sow bugs, pill bugs, Turkestan roach nymphs but no termites. 7. Harvack took soil samples from an area that had been treated by Hernandez and analysis showed the presence of the above referenced Diazinon (.020) and Chlorpyrifos (.057). 8. Harvack obtained the license number of a vehicle Hernandez was driving, from Petersen. Harvack obtained further information including an address for Hernandez through the Motor Vehicle Division. 9. Harvack checked Commission records and found no record of a license or certificate for Hernandez. 10. Hernandez was paid a total of $1,400.00 for the removal of the tree and the represented termite and pesticide treatment at the Petersen home. The cost was split with the cost of the treatments being approximately $765.00. Conclusions Of Law A.R.S. §32-2321(B)(2) provides that any violation of the chapter (Chapter 22, Title 32), rules adopted pursuant to the chapter or written order of the Commission is grounds for disciplinary action. A.R.S. §32-2325(1) provides that a person shall not engage in the business of structural pest control or pest control advisor without holding a business license issued pursuant to the chapter. A.R.S. §32-2301(4) in pertinent part defines “business of pest control advisor” as engaging in, offering to engage in, advertising, soliciting or performing identifications of infestations or infections or inspecting for the purpose of identifying household pests or wood destroying pests, making written or oral reports or recommendations with respect to infestations or infections. A.R.S. §32-2301(5) in pertinent part defines “business of structural pest control” as offering to engage in, advertising for, soliciting or performing identification of infestations or infections or inspecting for the purpose of identifying infestations or infections of households for household pests, wood destroying organisms, pests near or around structures, making oral or written inspection reports, making contracts or bids for the application of pesticides to eliminate, exterminate control or prevent infestations or infections. 1. The evidence though based in part on hearsay is supported by physical evidence (copies of checks to Hernandez), and other evidence such as soil sample results, concrete filled trenching etc.), so as to constitute proof of the charged violation by a preponderance of the substantial evidence. The evidence shows Hernandez was not licensed, misinformed Petersen of the nature of the infestation, treated the home with a questionable mix of chemicals of suspect efficacy and otherwise engaged methods which are not recognized by the industry. 2. The penalty provision of A.R.S.§32-2328(B)(2) provides for a minimum civil penalty of $500.00 for a first violation. No maximum is stated. The State urges that the facts surrounding this violation should be considered in aggravation and a higher penalty imposed. A.R.S. §32-2321(A)(5) allows for a civil penalty in the amount of $1,000.00 for violation of (B)(2). Recommended Order

In view of the foregoing it is recommended that a civil penalty in the amount of One Thousand ($1,000.00) Dollars be assessed against Juan Hernandez and said penalty is due and owing by the effective date of the Order entered in this matter.

Done this day,

______________________________________ Allen Reed 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 Scottsdale, AZ 85258

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

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