Structural Pest Control Disciplinary Review Committee’s Decision on an Appeal of a County Agricultural Commissioner’s Decision (Mission City Fumigation, Docket Number S-021)

The Disciplinary Review Committee’s (DRC) decision on Mission City Fumigation’s (MCF) appeal of the $700 penalty levied by the Santa Barbara County Agricultural Commissioner (CAC) is enclosed.

The CAC found MCF in violation of Food and Agriculture Code (FAC) section 12973 for applying a pesticide in conflict with the label which requires the removal of all persons, domestic animals, pets and desirable growing plants from a structure before fumigation. In October 2009, MCF performed a fumigation on an apartment building. A cat was found in one of the apartments after completion of the fumigation that later died after being taken to a veterinarian’s office. The CAC levied a $700 penalty against MCF for a violation of section 12973.

MCF appealed the CAC’s decision to the DRC. The DRC members were divided on what level of action was required by the fumigant label regarding the removal of pets. Since a consensus could not be reached among the members, the Committee decided that it was not appropriate to charge MCF in violation of section 12793. The CAC’s decision is overturned and no penalty is due.

This decision addresses the following concepts/issues:

• Circumstantial evidence can be sufficient to establish a credible fact pattern.
• The responsibility for complying with pesticide laws cannot be transferred from a licensee to others, such as an apartment or property manager.
• “Due diligence” is not an element of FAC section 12973, the violation charged in this case.
• This decision, specifically in relation to what the label required, is limited to this case.

Please make this information available to your staff as a reference in preparing cases. If you have any questions, please contact David Haskell, Research Program Specialist II, at 916-445-4207, or the Enforcement Branch Liaison assigned to your county.

Sincerely,