32-2321. Disciplinary action; grounds; procedure; judicial review

A. After an opportunity for a formal hearing or pursuant to a consent order, the acting director may take any of the following disciplinary actions, in combination or alternatively:

1. Revoke a license.

2. Suspend a license.

3. Refuse to renew a license.

4. Impose probation requirements that require a business licensee, licensed applicator or qualifying party to comply with one or more specific provisions of this chapter or rules adopted pursuant to this chapter and that require reporting by or monitoring of the business licensee, licensed applicator or qualifying party.

5. Impose a civil penalty in an amount of not more than one thousand dollars for each violation except for grounds prescribed in subsection B, paragraphs 8 and 9 of this section.

6. Require a qualifying party to report to the acting director the qualifying party's role in the management of a business license.

7. Issue an administrative warning.

B. The following acts are grounds for disciplinary action:

1. Violating this chapter, rules adopted pursuant to this chapter or a written order of the acting director.

2. Making false or fraudulent records or reports.

3. Misrepresenting a material fact in obtaining a license.

4. Applying pesticides in a manner that is inconsistent with the label requirements of the pesticide or that may cause undue harm to the public.

5. Misuse of a pesticide if the misuse is due to training received or not received or lack of appropriate supervision. Proper training includes training to read and understand the label and labeling and to understand the proper use of application equipment. Proper supervision includes oversight of applicators to ensure general compliance with the label, labeling and all applicable laws.

6. Authorizing, directing or abetting the publication, advertisement, distribution or circulation of any false statement or material misrepresentation concerning a business of pest management.

7. Conviction of a felony or misdemeanor arising from or in connection with a license issued pursuant to this chapter after issuance of the license.

8. Conviction of a felony.

9. Having had a license, or the equivalent, to apply pesticides or engage in the business of pest management suspended or revoked in another jurisdiction for cause.

10. Making a fraudulent statement or an intentional material misrepresentation in connection with a wood treatment proposal or a wood-destroying insect inspection report.

11. Three or more de minimis violations of this chapter or rules adopted under this chapter.

12. Failure to provide the acting director with a current certificate of insurance or proof of financial responsibility.

13. Failure to establish a complete vertical barrier at the exterior of foundation walls in stem wall construction or exterior of grade beams in monolithic construction within twelve months of the original treatment made before or during construction.

14. Immediately supervising more than one unlicensed applicator at a time.

15. Failure to make and maintain true and accurate records of treatments performed, including those performed under warranty or guarantee, for at least three years from date of treatment except any record of a termite treatment, a wood-destroying insect inspection report or a fungi inspection report, which shall be made and maintained for at least five years from the date of treatment or inspection.

16. Failure to make treatment records available within three business days on request of the property owner, the property owner's authorized agent or a representative of the office.

C. Except as provided in section 32-2329, the acting director may proceed against a business licensee pursuant to subsection A, paragraphs 1 through 5 of this section only if, after an opportunity for a hearing, it has been shown that any of the following applies:

1. The business licensee has committed a prior violation of the same type, including any violation by any employee of the business licensee.

2. The business licensee failed to follow a written order of the acting director directing it to correct a deficiency or problem within the time specified.

3. The business licensee has knowingly assumed operations for a business licensee whose license has been revoked and during the first three years after revocation allows the former licensee to play an active role in company policy, decisions, sales or supervision of employees.

4. The business licensee is convicted of a felony.

5. The business licensee is determined by the acting director to have committed a violation in connection with a treatment before or during construction.

6. The business licensee changes its name or majority ownership of the business and fails to:

(a) Report to the acting director within thirty calendar days the status of all warranties issued by the licensee.

(b) Notify within thirty calendar days all persons who hold warranties issued by the licensee regarding the change.

7. The business licensee fails to provide written notice immediately following a pest management treatment in or around residential structures of four or fewer units to the person requesting the treatment or to the person's designated agent. The notice shall include the specific pesticide by trade name used in the treatment.

8. The business licensee performing pest management treatments on an ongoing basis to locations other than residential structures of four or fewer units fails to provide written notice to the person who requested the treatments or the person's designated agent. Notice shall be given before the first application of the pesticide and when new or additional pesticides are used or immediately after each treatment.

9. If the treatments are performed in the interior of residential units, the licensee fails to leave a notice in the interior of each treated unit immediately after each treatment. The notice shall include the pesticide by trade name and any other information as required by the pesticide label or local ordinance.

10. A statement of precaution does not accompany each notification of treatment required in paragraphs 7, 8 and 9 of this subsection. Each statement of precaution shall be printed conspicuously, in not less than eight point type, and shall include the words:

Warning--pesticides can be harmful. Keep children and pets away from pesticide applications until dry, dissipated or aerated. For more information contact [business license name and business license number] at [telephone number].

11. The business licensee fails within thirty calendar days after completion of a termite treatment that is done before or during construction, an initial termite corrective treatment project or a wood-destroying insect inspection report to file with the office, in a form approved by the acting director, all data required by the acting director. The data shall include:

(a) The name of the individual who performed the work.

(b) The address or location of the work or project.

(c) The type and the date of the work.

(d) The name of the business licensee.

(e) The name of the qualifying party.

(f) The applicator's license number.

(g) Any other information required by rule.

12. The business licensee, within twelve months after completion of a termite treatment that is done before or during construction, fails either to file a supplemental termite action report in a form provided by the acting director that indicates the completion of the final grade treatment or to report in writing why the treatment has not been completed and when it will be completed.

D. Nothing in subsection C, paragraph 3 of this section shall be deemed to prohibit a business licensee from directly purchasing accounts from a licensee whose license has been revoked if the purchase is made within such time after the revocation as the acting director by rule may establish.

E. Before taking any action pursuant to this section, the acting director shall notify in writing interested persons and the licensee before the date of the hearing pursuant to title 41, chapter 6, article 10 either personally or by certified mail at the last address known to the office. The written notice shall contain the nature of the charge or charges against the licensee and the time and place of the hearing on the charges.

F. A license may be suspended without a hearing as prescribed in section 32-2329 or if its holder fails within thirty calendar days to:

1. Pay renewal fees.

2. Pay civil penalties.

3. Demonstrate the completion of required continuing education.

G. The holder of a license suspended under subsection F of this section must apply to the acting director for reinstatement.

H. Licenses suspended under subsection F of this section are automatically revoked without a hearing after one year of suspension. Licenses revoked under this section are not subject to section 32-2304, subsection A, paragraph 11.

I. All complaints shall be in writing.

J. If the acting director appoints an employee of the office to conduct an informal settlement conference with the complaining party pursuant to section 32-2304, the purpose of the informal settlement conference is to reach agreement as to the disposition of all or a portion of the complaint, including any agreement providing for repairing or rectifying the conditions specified in the complaint. The settlement conference shall be conducted informally and the rules of evidence do not apply. The settlement conference shall not be recorded. Participants in the settlement conference may ask questions of the complainant and may review any materials or reports compiled by the office with respect to the complaint.

K. If the office prepares a consent order pursuant to section 32-2304, after either an informal settlement conference conducted pursuant to subsection J of this section or a formal hearing by the office conducted pursuant to title 41, chapter 6, article 10, the consent order shall only set forth the general nature of the inquiry or complaint, the specific action to be taken by the licensee or business licensee, the penalty, if any, and the time for compliance, if any, for any corrective action to be taken.

L. Except as provided in section 41-1092.08, subsection H, final decisions of the acting director are subject to judicial review pursuant to title 12, chapter 7, article 6.

M. The acting director shall consider only an inquiry received or complaint filed within five years after the date of the alleged act or omission.

N. The acting director may issue an advisory notice stating de minimis violations of statutes or rules that carry no penalty, unless the person subject to this chapter wilfully and repeatedly violates the statute or rule. For wilful and repeated violations, the acting director may take disciplinary action against the person for a violation.

O. If the office finds a violation or the office enters into a consent agreement, the office:

1. Shall not delete the record of the complaint for at least five years following the filing of the complaint.

2. Shall include information from the inquiry in the record of complaint. If no violation is found, the information from the inquiry shall be deleted.

P. Only this chapter applies to, regulates and determines all requirements regarding licensure, licensure fees, testing and education related to pest management in this state. Only this chapter applies to, regulates and determines all requirements regarding the business of pest management, including the application or notification of use or disposal of pesticides for pest management in this state.

Q. For purposes of filing or submitting all documents or fees required under this chapter, service is considered complete if postmarked on the proper date and delivered by first class mail or a higher class.

32-2321. Disciplinary action; grounds; procedure; judicial review

A. After an opportunity for a formal hearing or pursuant to a consent order, the acting director may take any of the following disciplinary actions, in combination or alternatively:

1. Revoke a license.

2. Suspend a license.

3. Refuse to renew a license.

4. Impose probation requirements that require a business licensee, licensed applicator or qualifying party to comply with one or more specific provisions of this chapter or rules adopted pursuant to this chapter and that require reporting by or monitoring of the business licensee, licensed applicator or qualifying party.

5. Impose a civil penalty in an amount of not more than one thousand dollars for each violation except for grounds prescribed in subsection B, paragraphs 8 and 9 of this section.

6. Require a qualifying party to report to the acting director the qualifying party's role in the management of a business license.

7. Issue an administrative warning.

B. The following acts are grounds for disciplinary action:

1. Violating this chapter, rules adopted pursuant to this chapter or a written order of the acting director.

2. Making false or fraudulent records or reports.

3. Misrepresenting a material fact in obtaining a license.

4. Applying pesticides in a manner that is inconsistent with the label requirements of the pesticide or that may cause undue harm to the public.

5. Misuse of a pesticide if the misuse is due to training received or not received or lack of appropriate supervision. Proper training includes training to read and understand the label and labeling and to understand the proper use of application equipment. Proper supervision includes oversight of applicators to ensure general compliance with the label, labeling and all applicable laws.

6. Authorizing, directing or abetting the publication, advertisement, distribution or circulation of any false statement or material misrepresentation concerning a business of pest management.

7. Conviction of a felony or misdemeanor arising from or in connection with a license issued pursuant to this chapter after issuance of the license.

8. Conviction of a felony.

9. Having had a license, or the equivalent, to apply pesticides or engage in the business of pest management suspended or revoked in another jurisdiction for cause.

10. Making a fraudulent statement or an intentional material misrepresentation in connection with a wood treatment proposal or a wood-destroying insect inspection report.

11. Three or more de minimis violations of this chapter or rules adopted under this chapter.

12. Failure to provide the acting director with a current certificate of insurance or proof of financial responsibility.

13. Failure to establish a complete vertical barrier at the exterior of foundation walls in stem wall construction or exterior of grade beams in monolithic construction within twelve months of the original treatment made before or during construction.

14. Immediately supervising more than one unlicensed applicator at a time.

15. Failure to make and maintain true and accurate records of treatments performed, including those performed under warranty or guarantee, for at least three years from date of treatment except any record of a termite treatment, a wood-destroying insect inspection report or a fungi inspection report, which shall be made and maintained for at least five years from the date of treatment or inspection.

16. Failure to make treatment records available within three business days on request of the property owner, the property owner's authorized agent or a representative of the office.

C. Except as provided in section 32-2329, the acting director may proceed against a business licensee pursuant to subsection A, paragraphs 1 through 5 of this section only if, after an opportunity for a hearing, it has been shown that any of the following applies:

1. The business licensee has committed a prior violation of the same type, including any violation by any employee of the business licensee.

2. The business licensee failed to follow a written order of the acting director directing it to correct a deficiency or problem within the time specified.

3. The business licensee has knowingly assumed operations for a business licensee whose license has been revoked and during the first three years after revocation allows the former licensee to play an active role in company policy, decisions, sales or supervision of employees.

4. The business licensee is convicted of a felony.

5. The business licensee is determined by the acting director to have committed a violation in connection with a treatment before or during construction.

6. The business licensee changes its name or majority ownership of the business and fails to:

(a) Report to the acting director within thirty calendar days the status of all warranties issued by the licensee.

(b) Notify within thirty calendar days all persons who hold warranties issued by the licensee regarding the change.

7. The business licensee fails to provide written notice immediately following a pest management treatment in or around residential structures of four or fewer units to the person requesting the treatment or to the person's designated agent. The notice shall include the specific pesticide by trade name used in the treatment.

8. The business licensee performing pest management treatments on an ongoing basis to locations other than residential structures of four or fewer units fails to provide written notice to the person who requested the treatments or the person's designated agent. Notice shall be given before the first application of the pesticide and when new or additional pesticides are used or immediately after each treatment.

9. If the treatments are performed in the interior of residential units, the licensee fails to leave a notice in the interior of each treated unit immediately after each treatment. The notice shall include the pesticide by trade name and any other information as required by the pesticide label or local ordinance.

10. A statement of precaution does not accompany each notification of treatment required in paragraphs 7, 8 and 9 of this subsection. Each statement of precaution shall be printed conspicuously, in not less than eight point type, and shall include the words:

Warning--pesticides can be harmful. Keep children and pets away from pesticide applications until dry, dissipated or aerated. For more information contact [business license name and business license number] at [telephone number].

11. The business licensee fails within thirty calendar days after completion of a termite treatment that is done before or during construction, an initial termite corrective treatment project or a wood-destroying insect inspection report to file with the office, in a form approved by the acting director, all data required by the acting director. The data shall include:

(a) The name of the individual who performed the work.

(b) The address or location of the work or project.

(c) The type and the date of the work.

(d) The name of the business licensee.

(e) The name of the qualifying party.

(f) The applicator's license number.

(g) Any other information required by rule.

12. The business licensee, within twelve months after completion of a termite treatment that is done before or during construction, fails either to file a supplemental termite action report in a form provided by the acting director that indicates the completion of the final grade treatment or to report in writing why the treatment has not been completed and when it will be completed.

D. Nothing in subsection C, paragraph 3 of this section shall be deemed to prohibit a business licensee from directly purchasing accounts from a licensee whose license has been revoked if the purchase is made within such time after the revocation as the acting director by rule may establish.

E. Before taking any action pursuant to this section, the acting director shall notify in writing interested persons and the licensee before the date of the hearing pursuant to title 41, chapter 6, article 10 either personally or by certified mail at the last address known to the office. The written notice shall contain the nature of the charge or charges against the licensee and the time and place of the hearing on the charges.

F. A license may be suspended without a hearing as prescribed in section 32-2329 or if its holder fails within thirty calendar days to:

1. Pay renewal fees.

2. Pay civil penalties.

3. Demonstrate the completion of required continuing education.

G. The holder of a license suspended under subsection F of this section must apply to the acting director for reinstatement.

H. Licenses suspended under subsection F of this section are automatically revoked without a hearing after one year of suspension. Licenses revoked under this section are not subject to section 32-2304, subsection A, paragraph 11.

I. All complaints shall be in writing.

J. If the acting director appoints an employee of the office to conduct an informal settlement conference with the complaining party pursuant to section 32-2304, the purpose of the informal settlement conference is to reach agreement as to the disposition of all or a portion of the complaint, including any agreement providing for repairing or rectifying the conditions specified in the complaint. The settlement conference shall be conducted informally and the rules of evidence do not apply. The settlement conference shall not be recorded. Participants in the settlement conference may ask questions of the complainant and may review any materials or reports compiled by the office with respect to the complaint.

K. If the office prepares a consent order pursuant to section 32-2304, after either an informal settlement conference conducted pursuant to subsection J of this section or a formal hearing by the office conducted pursuant to title 41, chapter 6, article 10, the consent order shall only set forth the general nature of the inquiry or complaint, the specific action to be taken by the licensee or business licensee, the penalty, if any, and the time for compliance, if any, for any corrective action to be taken.

L. Except as provided in section 41-1092.08, subsection H, final decisions of the acting director are subject to judicial review pursuant to title 12, chapter 7, article 6.

M. The acting director shall consider only an inquiry received or complaint filed within five years after the date of the alleged act or omission.

N. The acting director may issue an advisory notice stating de minimis violations of statutes or rules that carry no penalty, unless the person subject to this chapter wilfully and repeatedly violates the statute or rule. For wilful and repeated violations, the acting director may take disciplinary action against the person for a violation.

O. If the office finds a violation or the office enters into a consent agreement, the office:

1. Shall not delete the record of the complaint for at least five years following the filing of the complaint.

2. Shall include information from the inquiry in the record of complaint. If no violation is found, the information from the inquiry shall be deleted.

P. Only this chapter applies to, regulates and determines all requirements regarding licensure, licensure fees, testing and education related to pest management in this state. Only this chapter applies to, regulates and determines all requirements regarding the business of pest management, including the application or notification of use or disposal of pesticides for pest management in this state.

Q. For purposes of filing or submitting all documents or fees required under this chapter, service is considered complete if postmarked on the proper date and delivered by first class mail or a higher class.