ALJDEC

98A-197-SPC · Structural Pest Control Commission · 1999-04-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 6,1999 APPEARANCES: Blair Driggs, Assistant Attorney General, appeared on behalf of the State No one appeared on behalf of the Business Licensee, Qualifying Party or Applicator. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact On June 6, 1995, the Business Licensee, Priority One Termite and Pest Control (Priority), submitted a written proposal for a partial (exterior) termite treatment of a home in Scottsdale, Arizona. The home was being sold by Barry Logan (Logan) to Howard Meci (Meci). The proposal was signed, presumably by the Qualifying Party, Michael Moore (Moore), although the signature is illegible, and by Meci. As part of the proposal, Priority gave a guarantee of one year that future damage by termites up to $250,000.00 would be repaired at the expense of Priority. The guarantee was renewable yearly at a cost of $75.00 a year. The Proposal did not specify if alternative treatments were available or that there was no viable alternative to the offered treatment . There is no certification number on the proposal where it is signed on behalf of Priority. The Invoice from Priority for the treatment states: “Termite Treatment For Resale” The check for the payment of the treatment was issued by First Service Title Agency and made out to Priority. Conclusions of Law The three allegations of the Complaint and Notice of Hearing concern: Count 1concerns A.R.S. §32-2323(D) which provides in pertinent part that no business licensee may issue a guarantee for subterranean termites relating to a spot treatment of a structure for sale or involved in a refinancing, unless the licensee has first treated the entire structure. The Respondent was absent form the hearing and the evidence as presented by the State establishes the violation. The written explanation by Moore (exhibit 3), sent to the Structural Pest Control Commission (Commission), does not constitute a satisfactory defense to the evidence that the treatment was in conjunction with the sale of the property as shown by the plain language of the invoice coupled with the check from the title company. The evidence is also clear that a guarantee was made and that the entire structure was not treated. Count 2 concerns A.A.C. R4-29-416(C)(6), which requires a structural treatment proposal to have a written statement of alternative treatments or a statement that no alternative would be more or equally effective. The evidence shows that there is no statement of any kind on the proposal as to the effectiveness of an alternative treatment. Under the joint responsibility provisions of A.A.C. R4-29-104, the violation is established against all three entities (Business Licensee, Qualifying Party and Applicator). Count 3 concerns A.A.C. R4-29-416(C)(9), which requires the signature and certification number of the person who made the inspection of the structure to be treated or the person who prepared the proposal. The evidence shows that there is a signature presumed to be Moore’s, but no certification number. The violation is proven against the three referenced entities. . . . . . . Recommended Order In view of the foregoing it is recommended that within thirty days of the effective date of the Order entered in this matter, an administrative warning be issued to Priority One Termite and Pest Control, Business License No. I 2480 BC, Michael Moore, holder of Qualifying Party Credential No.1281 BC and Applicator Certificate No. 880800 VII BC. Done this day, April 8, 1999.

______________________________________ ALLEN REED Administrative Law Judge

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

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

By _______________________________

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