ALJDEC

98A-020-SPC-resubmit · Structural Pest Control Commission · 1999-05-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 3, 1999 APPEARANCES: The Structural Pest Control Commission (“Complainant”) was represented by Assistant Attorney General, Blair Driggs. Arizona Termite and Pest Control/William Hodder (“Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. At the outset of the scheduled hearing, Department made a motion to amend the Complaint caption in this matter to reflect the proper license no. for Respondent’s business license. The motion was granted and accordingly the caption was amended to reflect C 4288 BCEF as the proper license number for Arizona Termite and Pest Control.

2. At all times material hereto Respondent was the holder of qualifying party certificate No. 134A, applicator certificate no. 810037 VII BCD, and business license no. C 4288 BCEF.

3. An inspector for Department appeared at the instant hearing and testified that in November and December 1997 Department conducted an audit at Respondent’s place of business. Evidence of record demonstrated that the audit was triggered by the fact that Department did not receive any Termite Action Report Forms (“TARF”) from Respondent for several years.

4. Uncontroverted evidence of record established that the aforementioned audit revealed that during the period of 1995, 1996, and 1997 Respondent failed to file 157 required TARF reports. In addition, since Respondent failed to file the required reports it also failed to pay the required fees for said reports.

5. In January 1998 Department notified Respondent of the above described deficiency in its requirement to file TARF and to pay the required filing fee. Respondent was given an opportunity to correct said deficiency, pay the past due filing fees, and the appropriate late payment penalties. Respondent was given a specified period of time to comply with the requirements set forth in the January 1998 letter from Department. Notwithstanding the terms and conditions set forth in the January 1998 letter from Department, Respondent failed to respond to Department’s communication and thus, Department filed the instant action against Respondent’s license and certificates.

6. An original hearing date was scheduled on this complaint and apparently due to the fact that the parties believed the matter would be resolved via settlement agreement, the requested hearing was withdrawn by Department. Due to the fact that the matter ultimately was not resolved, Department resubmitted this action.

7. Respondent’s failure to file the required TARF reports and pay the required fees (including penalty fees) constitutes violations of the applicable charged sections of the States Structural Pest Control laws.

8. Uncontroverted evidence of record established that Respondent owes Department a total of $2,384.00 (including late fees) for the aforementioned unpaid fees for 1995, 1996, and 1997.

9. Notwithstanding the applicable provisions of the State’s Structural Pest Control law which required Respondent to file a proper written response to the complaint notice mailed to him in January 1998, Respondent failed to file a proper response thereto. Nevertheless, by way of mitigation in this regard it should be noted that Respondent did participate, albeit unsuccessfully, after the original formal complaint and notice of hearing form was filed, in attempting to resolve the complaint.

10. By its failure to appear for the instant hearing, Respondent failed to present any matters in defense or mitigation.

CONCLUSIONS OF LAW

1. Respondent violated the provisions of A.R.S. § 32-2321B (2); namely A.A.C. R4-29-417 (A), R4-29-418 (C), and R4-29-107 (A).

2. A.R.S. § 32-2321 grants Complainant the authority, after a hearing is held, to impose disciplinary sanctions against a licensee including, but not limited to, suspension, probation and a civil penalty of not more than $1,000.00 for each violation determined.

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the Order entered in this matter that the Arizona Structural Pest Control Commission impose the following disciplinary sanctions against Respondent:

a. William Hodder as holder of Respondent’s business license and qualifying party certificate shall pay Complainant the total sum of $2,384.00 for the unpaid TARF fees for 1995, 1996, and 1997. b. William Hodder as holder of Respondent’s qualifying party and applicator certificate shall pay Complainant a total civil penalty of $700.00. c. An administrative warning shall be issued by Complainant against Respondent’s business license and the two certificates named herein, advising that Respondent must take whatever steps necessary to adhere to all of the requirements of the State’s Structural Pest Control laws.

Done this day, May 7, 1999

______________________________________ Mark A. Silver Administrative Law Judge

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

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

By ___________________________

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