Director’s Decision on Appeal of a County Agricultural Commissioner’s Decision (Davey Tree Surgery Company, Docket Number 202B)

The Director’s decision on Davey Tree Surgery Company’s appeal of the civil penalty levied by the County Agricultural Commissioner of the County of San Diego (San Diego CAC) is enclosed. The Director’s decision to reverse the San Diego CAC’s action and penalty became final on December 1, 2015.

The San Diego CAC found Davey Tree Surgery Company in violation of multiple regulations including Title 3 of the California Code of Regulations (3CCR) sections:

• 6739(a)(1) -failing to assure that employees use approved respiratory equipment when handling a pesticide where respirators are required;
• 6739(a)(2) -failing to have a written respiratory protection program;
• 6739(c) -failing to select and provide an appropriate respirator;
• 6739(d) -failing to conduct a medical evaluation prior to an employee using a respirator and;
• 6739(e) -failing to assure that an employee is fit tested before wearing a respirator.

Davey Tree Surgery Company appealed the San Diego CAC’s civil penalty decision only for violating 3CCR sections 6739(c), (d), and (e) on the basis that they were “duplicative” penalties for not providing employees respirators (3CCR § 6739[a][1]) and not having a written respiratory protection program (3CCR § 6739[a][2]).

The Director determined, based on the specific facts of this case, that it was unreasonable for Davey Tree Surgery Company to be fined for not having a respiratory protection program and fined again for not having the elements that make up the respiratory protection program.

Please make this information available to your staff as a reference in preparing and processing cases. If you have any questions, please contact the Enforcement Branch Liaison assigned to your county.

Sincerely,