Structural Pest Control Disciplinary Review Committee’s Decision on an Appeal of a County Agricultural Commissioner Decision (Mission City Fumigation, Docket Number S-023)

The Disciplinary Review Committee’s (DRC) decision on Mission City Fumigation’s appeal of the $400 civil penalty levied by the Alameda County Agricultural Commissioner (CAC) is enclosed.

The Alameda CAC levied the penalty against Mission City Fumigation (MCF) for violation of Title 16, California Code of Regulations (16 CCR), section 1970.4. As the primary contractor for the fumigation, MCF failed to provide a properly signed form of the Occupant’s Fumigation Notice and Pesticide Disclosure Notice (Occupant Notice) to the licensed fumigator before the fumigant was applied. Even though the licensed fumigator acknowledged the requirement to have the Occupant Notice on-site, the licensed fumigator applied the fumigant without the required notice. The Hearing Officer found that a waiver by the CAC to not require the Occupant Notice to be on-site, does not comply with the requirement. The CAC determined the violation was in the “Minor” violation class and levied a $400 fine. The DRC upheld the Alameda CAC’s decision and penalty.

This decision addresses the following conditions/concepts:

• The Alameda CAC would, upon request, waive the requirement under 16 CCR, section 1970.4 to have the Occupant Notice on-site when the fumigant is applied, by permitting the licensed fumigator for the fumigation to fax a copy of the notice to the CAC’s office. The existence of a waiver does not absolve the licensed fumigator of the requirement to have the Occupant Notice on-site when the fumigant is applied.
• The CAC has the obligation to enforce the pesticide laws and regulations, as written, and does not have the legal authority to waive any provision of the law or regulation.

Please provide this information to your staff as a reference in preparing cases. If you have any questions, please contact David Haskell, Research Program Specialist II, or the Enforcement Branch Liaison assigned to your county.

Sincerely,