ALJDEC

99A-121-SPC · Structural Pest Control Commission · 2000-08-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 2, 2000. APPEARANCES: Structural Pest Control Commission of Arizona: by Assistant Attorney General Blair Driggs; with Compliance Service Supervisor Anthony Harback. Don’s Termite Service: representation by Scott Richardson, Esq. Dennis Crawford: on his own behalf, with representation by Scott Richardson, Esq. Melissa Babirak: did not appear.

ADMINISTRATIVE LAW JUDGE: Anthony Halas _____________________________________________________________________ Hearing in this matter was convened on August 2, 2000, to determine whether grounds exist for the Structural Pest Control Commission to take disciplinary action against Respondents pursuant to A.R.S. §§ 32-2301 et seq., and 41-1061, et seq. Based upon the testimony and evidence of 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 (the Commission) issued COMPLAINT AND NOTICE OF HEARING (COMPLAINT) in Agency No. 99-121 (Docket No. 99A-121-SPC) to Respondents Don's Termite Service, Inc., Business License No. C 5538 BC; Dennis Crawford (Crawford), holder of Qualifying Party Credential No. 1917 BC and Applicator Certificate No. 960365 VII BC; and Melissa Babirak (Babirak), holder of Applicator Certificate No. 960364 VII BC. 2. Based on factual allegations relative to the manner in which applicator Babirak had conducted a chemical pretreatment on October 28, 1999, at 1425 South Alma School Road in Mesa, Arizona, the COMPLAINT alleged, in Count 1, violation of A.R.S. § 32-2321.B.1; in Count 2, violation of B.2 (and A.A.C. R4-29-402); and in Count 3, violation of A.R.S. § 32-2321.B.2 (and A.A.C. R4-29-301.B), all as grounds for discipline against Don's Termite Service, Inc., Crawford, and Babirak. 3. The COMPLAINT further alleged both a pretreatment violation pursuant to A.R.S. § 32-2321.C.5 in order to proceed against Don's Termite Service, Inc. as the business licensee, and a prior violation pursuant to A.R.S. §§ 32-2301 and 32-2321.C.1. 4. The COMPLAINT also asserted notice of joint responsibility, pursuant to A.A.C. R4-29-104. 5. Respondents Don's Termite Service, Inc. and Dennis Crawford, through counsel, filed a timely answer to the COMPLAINT; Respondent Babirak did not file an answer. 6. At hearing, the Commission appeared through counsel and presented the testimony of Anthony Harback (Harback), Compliance Service Supervisor for the Commission, and offered Exhibits 1 through 4, which were marked and admitted without objection. At that time, Count 1 of the COMPLAINT was withdrawn. 7. Harback testified to generally describe his duties and responsibilities for the Commission, and to specifically explain his review of the Commission’s records and his own participation in the circumstances of this complaint. 8. Harback stated the complaint was the result of covert monitoring on October 28, 1999, by two of the Commission’s inspectors (not including himself) of certain activities of Babirak as she performed a pretreatment application at 1425 South Alma School Road in Mesa, Arizona. 9. Based on his review of the photographs produced by the inspectors relative to the covert monitoring (Exhibit 2), and their notes, and a copy of the pretreatment site tag maintained in the Commission’s file (Exhibit 1), Harback concluded that Babirak’s pretreatment application, after her measurement of the site, consisted of a maximum of 120 gallons. 10. Harback further concluded that by completing the pretreatment tag (Exhibit 1) with “D.C.” as the applicator; and “960365” as the applicator’s certification number, Babirak had essentially falsified the tag. 11. Harback premised these conclusions on his understanding that Babirak’s application of termiticide was limited to the chemical solution contained in only two fillings (with the chemical, and water from a spigot on site) into her 60 gallon truck-mounted tank; and that she had not used her own name and applicator’s certificate number in completing the tag. 12. Based on measurements made by the Commission’s inspectors, and the termiticide’s labeling (Exhibit 3), Harback opined that the site required 548 gallons of the appropriate chemical solution to be applied, such that if only 120 gallons had been applied, there existed a shortage of 428 gallons. 13. Harback stated that according to the pretreatment tag, Babirak had indicated she started the pretreatment at 8:50 p.m., with a completion time of 10:12 p.m., or 1 hour and 22 minutes later. 14. Based on the inspectors’ notes, Harback stated they had arrived on site at 9:17 p.m., or 27 minutes after Babirak indicated she had started, and that a few minutes after their arrival they observed her measure the site, and then apply two tankfuls of solution from the 60 gallon tank (refilling it from the water spigot). Per Harback, the inspectors then observed Babirak leave the site at 10:33 p.m. (or 21 minutes after her indicated completion time). 15. Although Harback conceded that the inspectors had not observed Babirak’s actions from 9:50 p.m. (if her start time was accurately recorded) until their arrival at 10:17 p.m., he considered it possible but unlikely that in those 27 minutes Babirak would have been able to fill the tank and properly apply the chemical solution the 7 times minimally necessary to make up the difference between the 120 gallons the inspectors observed her apply (taking over an hour to do so) and their calculation that 548 gallons were required. 16. As evidence of a prior violation, the Commission referenced a CONSENT AGREEMENT AND ORDER in No. 98-117, dated June 10, 1999 (Exhibit 4), in which the Commission ordered that Don's Termite Service, Inc. as the business license holder and Dennis Crawford, as holder of a Qualifying Party Credential and applicator certificate, be issued jointly and severally a civil penalty for violation of R4-29-402. 17. Dennis Crawford, testifying on his own behalf as Qualifying Party, and on behalf of Don's Termite Service, Inc., the business licensee, described his experience in pest control and his duties and responsibilities for the company. 18. Crawford explained that his duties included training of applicators, specifically including Babirak, and making himself available to them during business hours. He noted that he simply could not be present at every jobsite to observe each applicator at work, and opined that Babirak had been competent and properly trained as an applicator, without any problems in her job performance until shortly before this incident. 19. Crawford stated that Babirak’s usual company truck, with an 1800 gallon tank, had been inoperable at the time of the pretreatment application at issue, such that she was forced to use another company truck, which as the Commission’s inspectors had observed, contained only the 60 gallon tank. 20. Crawford described the specific pretreatment application which Babirak had been assigned at the building site at issue, and his specific instructions to her that she must measure the site. He stated that based on his estimate, without benefit of a measurement, he advised her that it would be necessary to fill the truck’s tank at least ten times to accomplish the application, for which she was to be paid by the hour. 21. Crawford did not dispute the Commission’s calculation that 548 gallons was the required amount of termiticide, given his own estimate, and conceded he did not know how much Babirak had actually applied, either before or after the inspectors arrived, although in her telephone call to him later on the evening in question she had told him she had done the application correctly. 22. Crawford confirmed that the initials and applicator’s certificate number on the pretreatment tag were his, but denied writing that information or performing any part of the application; he recognized the handwriting as that of Babirak. He noted that later in the evening of October 28, 1999, Babirak had left her company pager and keys in the office mail slot, thereby terminating her employment. 23. By her failure to appear at hearing, Respondent Babirak failed to present any matters in defense or mitigation.

CONCLUSIONS OF LAW 1. In this administrative proceeding, the Structural Pest Control Commission bears the burden of proof and must establish statutory violations by a preponderance of the evidence. 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). 2. On the evidence presented, and given reasonable inferences relative to that evidence, the undersigned finds and concludes that in her pretreatment of the site at 1425 South Alma School Road, in Mesa, Arizona on October 28, 1999, applicator Melissa Babirak failed to apply termiticide in the specific quantities as recommended on the product label, in violation of A.R.S. § 32-2321.B.2 and A.A.C. R4-29-402. 3. The undersigned further finds and concludes that by entering initials and a certificate number other than her own on the pretreatment tag, Babirak falsified the information she entered on the record maintained in connection with the application of pesticide to the site, in violation of A.R.S. § 32-2321.B.2 and A.A.C. R4-29-301.B. 4. The foregoing violations of the State’s Structural Pest Control laws are found and concluded to have been caused solely by the activities of applicator Babirak, while in the course of her employment with Don's Termite Service, Inc., and under the supervision of Dennis Crawford. 5. Although it is further concluded that Babirak’ activities were taken without the active participation, consent, or knowledge of that employer or supervisor, it is nevertheless determined that by virtue of Don's Termite Service, Inc. hiring Babirak, and Crawford acting in the capacity of qualifying party with the attendant supervisory responsibilities, they set in force Babirak’s activities in which she purported to act under the color and authority of Don's Termite Service, Inc. 6. Pursuant to A.A.C. R4-29-104, each company and qualifying party is responsible for the acts or omissions of, and compliance with the law, by persons under their supervision. 7. In mitigation of such responsibility, it is determined that Babirak was properly trained and supervised, both generally and with specific reference to the instructions she was provided for the pretreatment application in question.

8. In further mitigation, it is concluded that Babirak performed competently over time as an applicator, until an incident in her work for the company which occurred very shortly before the activity at issue, such that the two incidents, close in time, appear to have been out of character for her, or unpredictable, and therefore not reasonably subject to the anticipation of Crawford as her supervisor. 9. In aggravation, it is noted and concluded that the business licensee has been shown to have committed a prior violation of A.A.C. R4-29- 402, albeit by another employee-applicator, such that said prior violation may be used for the purpose of determining sanctions in this proceeding.

RECOMMENDED ORDER

On the basis of the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Order entered in this matter, the Structural Pest Control Commission of Arizona impose the following disciplinary sanctions against Respondents: 1. The business license of Don's Termite Service, Inc., No. C5538 BC, and the qualifying party credential of Dennis Crawford, No. 1917 BC, shall each be placed on a period of disciplinary probation for one-hundred- eighty (180) days and each shall be required to file documentation with the Structural Pest Control Commission on or before the expiration of said probationary period showing the following: A. That during this period of probation adequate training has been provided to all of its employees referable to proper pesticide application, and completion of documentation required by the laws pertaining to structural pest control. B. A business plan or procedure is in place to insure adequate and proper supervision of all employees. 2. Don's Termite Service, Inc., holder of Business License No. C5538 BC, and Dennis Crawford, holder of Qualifying Party Credential No. 1917 BC and Applicator Certificate No. 960365 VII BC, shall be issued jointly and severally a civil penalty in the amount of two-hundred fifty dollars ($250.00) for violation of A.A.C. R4-29-402, to be paid to the Structural Pest Control Commission within thirty (30) days of the Order entered herein. 3. The Applicator Certificate of Melissa Babirak, No. 960364 VII BC, shall be revoked. Done this day, August 18, 2000.

______________________________________ Anthony Halas Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Structural Pest Control Commission Michael Siler ATTN: David Broadstreet 9535 East Doubletree Ranch Road Scottsdale, AZ 85258-5514

By ___________________________

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