ALJDEC

98A-118-SPC · Structural Pest Control Commission · 1999-04-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 12, 1999. APPEARANCES: The Structural Pest Control Commission was represented by Assistant Attorney General Blair Driggs. The Respondents, A to Z Citrus and Robert Tipton, did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ The commencement of the scheduled hearing was delayed 20 minutes to allow for the late arrival of the Respondents. 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. The Structural Pest Control Commission of the State of Arizona (“Commission”) is the duly constituted authority of the regulation and control of the business of structural pest control in the State of Arizona. 2. On June 23, 1998, the Commission’s Inspector R. Slupe conducted a routine inspection for chemicals at the office of the Linkside Golf Center in Mesa, Arizona. Inspector Slupe spoke to the Assistant Manager, Mr. David Eich, and to the Superintendent of the Golf Center, Mr. Rob Little. They advised the inspector that since they were neither certified or licensed in weed control, they had hired Robert Tipton from A to Z Citrus to control weeds at the golf course. 3. A later search of the Commission’s records by the inspector revealed that neither Robert Tipton nor A to Z Citrus is licensed by the Commission. 4. A to Z Citrus is licensed by the Arizona Department of Agriculture for the treatment of citrus trees. 5. On June 24, 1998, Inspector Slupe contacted Robert Tipton about his maintenance of weeds along the driveway and under orange trees at Linkside Golf Center. 6. Robert Tipton performed approximately $4,500.00 worth of weed control at the Linkside Golf Center. 7. Robert Tipton used Round-up 524-427 to control weeds at Linkside Golf Center. 8. Although Round-up 524-427 can be used by any consumer for personal use without obtaining a license from the Commission, the use of that product for commercial usage or by individuals or entities applying it for a fee requires licensure. 9. Robert Tipton was required to be licensed by the Commission for the work performed at Linkside Golf Center involving the application of Round-up 524-427 for weed control. 10. Although Robert Tipton was an employee of A to Z Citrus at the time he performed the above-described weed control at the golf course and used that company’s invoice form to submit requests for payment to the golf course, the evidence of record supports a finding that Tipton performed such work while moonlighting from his employer. 11. The instant complaint is the first complaint filed by the Commission against Robert Tipton.

CONCLUSIONS OF LAW

1. The evidence of record is insufficient to establish that A to Z Citrus has violated the provisions of A.R.S. § 32-2313(A). Therefore, the Commission’s request to dismiss the Complaint against A to Z Citrus is supported by the record. 2. The evidence of record is adequate to establish that Robert Tipton violated the provisions of A.R.S. § 32-2313 (A) by engaging in the business of structural pest control at Linkside Golf Center without holding a business or applicator license issued by the Commission. 3. The Commission has the statutory authority to issue a cease and desist order requiring an unlicensed structural pest control operator to cease operations and/or to impose a civil penalty of at least $500.00 on an unlicensed structural pest control operator or adviser for the first offense. A.R.S. § 32-2328 (B) (1) and (2). The record supports the use of both powers against Robert Tipton by the Commission.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Complaint against A to Z Citrus be dismissed. It is further recommended that the Commission issue a cease and desist order requiring Robert Tipton to immediately cease operations related to the business of structural pest control in the State of Arizona. It is further recommended that the Commission impose a civil penalty in the amount of $500.00 on Robert Tipton. … …

Done this day, April 13, 1999.

______________________________________ BRIAN BRENDAN TULLY 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