Structural Pest Control Board – Disciplinary Review Committee Decision on Appeal of a County Agricultural Commissioner’s Decision, (Juan Gutierrez, Mega Fume, Inc., Docket Number S-036)

The Disciplinary Review Committee’s (DRC) decision on Mr. Juan Gutierrez’s (Mega Fume) appeal of the $250 civil penalty levied by the Los Angeles County Agricultural Commissioner (CAC) is enclosed. The DRC affirmed the CAC’s action and penalty, and the DRC’s decision became final on February 13, 2019.

The CAC found Mr. Gutierrez (Mega Fume), in violation of Food and Agricultural Code (FAC), section 12973 “use in conflict with the label” because a section of the fumigation tarp (the bottom edge that contacts the ground) was not weighed down due to an empty water snake. The label of the fumigant used, Zythor, instructs to “seal all edges of the tarp that touch the ground or ground level surface with, for example; soil, sand, or weighted snakes resting on the edge of the tarp.”

Although stipulating that the snake was indeed empty, Mega Fume appealed the CAC’s decision, contending that use of an empty water snake to seal a tarp to the ground is consistent with the Zythor label. Appellant also argued there was no violation as there was no proof that the tarp actually opened, releasing pesticide fumigant.

The DRC determined that substantial evidence supported the Commissioner’s decision.

This decision addresses the following concepts:

• Even though the Zythor label does not specify a specific weight for water snakes, the label’s requirement for filled water snakes makes clear that a water snake must be filled to serve its purpose as a weight.
• FAC section 12973 does not require proof that a pesticide actually escaped, only that the use of the pesticide not be in conflict with label instructions.

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

Sincerely,