ALJDEC

99A-122-SPC · Structural Pest Control Commission · 2000-08-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 9, 2000 APPEARANCES: The Structural Pest Control Commission of Arizona (“Complainant”) was represented by Assistant Attorney General, Blair Driggs. Respondents, Don’s Termite Service, Inc. (“Don’s”) and Dennis Crawford (“Crawford”) were represented by their attorney, Scott Richardson. Respondent, Melissa Babirak (“Babirak”) failed to appear. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT 1. Don’s is the holder of business license number C 5538 BC issued by Complainant, which allows Don’s to engage in the business of structural pest control in the State of Arizona.

2. Crawford is the holder of qualifying party credential number 1917 BC and applicator certificate number 960365 VII BC, both issued by Complainant. Thus, Crawford may act as a qualifying party for a business licensee and also may act as an applicator of pest control materials in the State of Arizona.

3. Babirak is the holder of applicator certificate number 960364 VII BC, issued by Complainant, which allows her to perform the business of structural pest control as an applicator in the State of Arizona. Babirak was an employee of Don’s at the time of the incident at issue herein and Crawford was her supervisor.

4. At the outset of the scheduled hearing, Complainant averred that notice of the hearing was sent to Babirak via certified mailing to her last known address of record, as shown by the official Agency records of Complainant and same was returned unclaimed. Under the applicable statutes for service in administrative hearing matters, it is determined that service was properly accomplished by mailing the notice to the last known address of record. Thus, this proceeding went forward against Babirak, despite the fact that she did not appear for the hearing.

5. Complainant also averred at the outset of the hearing that it was withdrawing count no. 1 of the filed complaint from consideration at the instant hearing, in light of the fact that it was basically duplicative of the charges contained in the remaining counts set forth against Respondents.

6. On October 21, 1999 inspectors for Complainant were monitoring a termite pre-treatment application at a specified address in Scottsdale, Arizona. Babirak and a helper had arrived at the site in order to apply the termite pre-treatment. Evidence of record established that the following structural pest control law violations were observed by Complainant’s inspectors at the time of said October 21, 1999 termite pre- treatment:

a. Babirak applied a product called Chlorpyrifos to the site in question. The label for said product indicates that applicators, using said product, must wear long sleeve shirts, long pants, and gloves. Contrary to the label requirements and the applicable law, which requires applicators to follow all label instructions, Babirak was wearing short pants and a short sleeve shirt when she applied the chemical. In addition, she failed to wear any gloves during said pre-treatment application. Don’s and Crawford did not dispute these facts. b. Evidence of record demonstrated that considering the size of the site and the product utilized for the termite pre-treatment, that a total of at least 987 gallons were required to properly pre-treat the site. Notwithstanding the 987 gallon requirement, it was shown that Babirak applied no more than 120 gallons for the pre-treatment of the site. Don’s and Crawford stipulated to the fact that the initial termiticide application applied by Babirak was short of what was required. c. Notwithstanding the fact that Babirak had applied no more than 120 gallons of the chemical on the site, she left a tag on said site which indicated that she had applied 1,074 gallons of the chemical. Don’s and Crawford did not dispute the fact that Babirak had falsified the tag placed on the site.

7. Evidence of record demonstrated that Don’s and Crawford were contacted the very next morning and advised that the site in question had been shorted, referable to the proper amount of termiticide application. By way of mitigation, it should be noted that Don’s and Crawford were not shown to have any prior knowledge of the Structural Pest Control violations committed by Babirak on the site and immediately came out to the site that same morning. Upon his appearance at the site, Crawford applied additional termiticide before the concrete was placed. Subsequent to Crawford’s application of termiticide, it was shown that an adequate amount of the chemical had been applied to said site.

8. By way of further mitigation, in regard to Don’s and Crawford, it should be noted that Babirak had been employed with Don’s for approximately one year before the incident at issue herein and that Babirak had not caused any other problems prior to the event described herein.

9. By Babirak’s failure to appear for the hearing, she failed to present any matters in defense or mitigation regarding her side of this case.

10. Notice was taken of the licensing records of Complainant, referable to Don’s and Crawford. In this regard, Complainant submitted a copy of a June 10, 1999 Consent Agreement and Order between Complainant, Don’s and Crawford. Pursuant to said Order, both Don’s and Crawford received an administrative warning and a civil penalty totaling $350.00. The civil penalty indicates that it was assessed for a violation of R4-29- 402. Thus, both Don’s and Crawford are shown to have committed prior violations of the State’s Structural Pest Control laws.

CONCLUSIONS OF LAW

1. A.A.C. R4-29-104 provides, “each company, qualifying party, applicator and registered employee is responsible for the acts or omissions of, and for compliance with the law, this Chapter and other lawful order of the Commission by, persons under their supervision.” Thus, Don’s and Crawford have vicarious liability for the acts and/or omissions committed by Babirak.

2. Babirak, Don’s and Crawford violated the provisions of A.R.S. § 32-2321 (B) (2); namely A.A.C. R4-29-301(A), R4-29-301(B), and R4-29-402.

3. Don’s and Crawford previously violated the provisions of A.A.C. R4-29-402.

4. Based on the facts set forth in the foregoing Findings of Fact and Conclusions of Law, pursuant to A.R.S. § 32-2321 (C) (1) (5), Complainant may impose disciplinary sanctions against Don’s.

5. Pursuant to A.R.S. § 32-2321A, Complainant has the authority to impose disciplinary sanctions against the Respondents named herein including, but not limited to, revocation, probation, administrative warning, and civil penalties.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Arizona Structural Pest Control Commission impose the following disciplinary sanctions against Respondents:

a. The applicator certificate of Melissa Babirak, no. 960364 VII BC, shall be revoked for violations of A.R.S. § 32-2321 (B) (2); namely A.A.C. R4-29-301(A), R4-29-301(B), and R4-29-402. b. Don’s Termite Service, Inc., holder of business license no. C 5538 BC, and Dennis Crawford, holder of qualifying party credential no. 1917 BC and applicator certificate no. 960365, be issued an administrative warning for violations of A.R.S. § 32-2321 (B) (2); namely A.A.C. R4-29- 301(A), R4-29-301(B), and R4-29-402. c. Don’s Termite Service, Inc., holder of business license no. C 5538 BC, and Dennis Crawford, holder of qualifying party credential no. 1917 BC and applicator certificate no. 960365, shall each be placed on a period of disciplinary probation for thirty (30) days for violations of A.R.S. § 32- 2321 (B) (2); namely A.A.C. R4-29-301(A), R4-29-301(B), and R4-29-402 and each shall be required to file documentation with the Structural Pest Control Commission, on or before the expiration of said thirty (30) day probationary period, showing that a business plan or procedure is in place to insure adequate and proper supervision of all employees.

d. Don’s Termite Service, Inc., holder of business license no. C 5538 BC, and Dennis Crawford, holder of qualifying party credential no. 1917 BC and applicator certificate no. 960365, shall be jointly and severally required to pay to the Arizona Structural Pest Control Commission a civil penalty in the total amount of $500.00 for violations of A.R.S. § 32-2321 (B) (2); namely A.A.C. R4-29-301(A), R4-29-301(B), and R4-29-402.

Done this day, August 15, 2000

______________________________________ Mark A. Silver Administrative Law Judge

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

Structural Pest Control Commission Jerry Davis 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