Director’s Decision on Appeal of a County Agricultural Commissioner’s Decision (Paul Lofthouse, Docket Number 200)

The Director’s decision on Paul Lofthouse’s appeal of the $2,500 civil penalty levied by the County Agricultural Commissioner of the County of Los Angeles (Los Angeles CAC) is enclosed. The Director affirmed the Los Angeles CAC’s action and penalty, and his decision became final on July 31, 2014.

The Los Angeles CAC found that Paul Lofthouse violated California Food and Agricultural Code (FAC) section 11791(b), which prohibits operating in a faulty, careless, or negligent manner. Paul Lofthouse appealed the Los Angeles CAC’s decision to the Director. The Director determined that the Los Angeles CAC had satisfied the requirements of due process, and that the Los Angeles CAC’s decision was supported by substantial evidence.

This decision addresses the following concepts:

• It is faulty, careless, or negligent for a Pest Control Adviser to write a pest control recommendation for a site without first inspecting the site. Failure to inspect the site is a violation of FAC 11791(b) even if the label of the pesticide being recommended warns users about possible damages that could result from an application. Further, failure to inspect the site is a violation of FAC 11791(b) even if the written recommendation includes all of the information required by FAC 12003 and California Code of Regulations, title 3, section 6556.
• Issues of witness credibility are the province of the Hearing Officer. If a commissioner’s decision is appealed, the Director is required to affirm the decision if there was substantial evidence in the hearing record to support the decision, even though other decisions might also have been reached.

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,