Bill Text: AZ HB2188 | 2021 | Fifty-fifth Legislature 1st Regular | Engrossed
Bill Title: Pest management; unlicensed business activities
Spectrum: Partisan Bill (Republican 1-0)
Status: (Engrossed - Dead) 2021-03-17 - Senate motion to reconsider third reading [HB2188 Detail]
Download: Arizona-2021-HB2188-Engrossed.html
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House Engrossed pest management; unlicensed business activities |
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State of Arizona House of Representatives Fifty-fifth Legislature First Regular Session 2021
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HOUSE BILL 2188 |
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AN ACT
Amending sections 3-3603 and 3-3624, Arizona Revised Statutes; relating to pest management.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 3-3603, Arizona Revised Statutes, is amended to read:
3-3603. Powers and duties of director
A. The director is responsible for administering this chapter and shall:
1. Adopt rules that are necessary or proper to administer and implement this chapter, including rules that may be more stringent than a corresponding federal law for:
(a) Administrative provisions.
(b) Licensure, certification and registration requirements and qualifications, including training and education requirements and financial security standards.
(c) Health and safety provisions.
(d) Duties and responsibilities.
(e) Recordkeeping and production of records requirements.
(f) Licensee inspection and treatment report requirements.
(g) Disciplinary action provisions.
(h) Equipment provisions.
(i) Advertising requirements.
(j) The use, storage Using, storing and application of applying pesticides and devices used in pest management.
2. Notify the business licensee, applicator and qualifying party in writing of any inquiry into possible violations by the business licensee, applicator or qualifying party by the close of business on the tenth business day after the day on which the director initiated the inquiry if the director anticipates an enforcement action. If in the course of the investigation the division identifies any alleged violations by a different business licensee, applicator or qualified party, the director shall notify the additional alleged violator by the close of business on the tenth business day after the day on which the director initiated the new inquiry.
3. Develop and either conduct or contract to conduct certified applicator and certified qualified applicator tests at locations throughout this state. If the director contracts for these tests, the contracts may provide for specific examination fees or a reasonable range of fees determined by the director to be paid directly to the contractor by the applicant. The director shall make all efforts to contract with private parties to electronically administer the tests.
4. Maintain a computer system for the to benefit and protection of protect the public that includes the following information on pretreatments, new-construction treatments, final grade treatments, initial corrective treatments and wood-destroying insect inspection reports:
(a) The name of the individual who performed the work.
(b) The address or location of the work or project.
(c) The name of the pest management company.
(d) The name of the qualifying party.
(e) The applicator license numbers.
(f) The nature and date of the work performed.
(g) Any other information that is required by rule.
5. Establish offices the director deems necessary to carry out the purposes of this chapter.
6. Subject to title 41, chapter 4, article 4, employ personnel the director deems necessary to carry out the purposes of this chapter and designate their duties.
7. Oversee the approval, content and method of delivery of continuing education courses.
8. Deny a license to any person who has had a license revoked for a period of five years from the time of revocation.
9. License applicators and qualified applicators and license businesses in accordance with this chapter and rules adopted pursuant to this chapter.
10. Register qualifying parties, branch supervisors and branch offices in accordance with this chapter and rules adopted pursuant to this chapter.
11. Require the payment of a penalty for any late license renewal.
12. Refuse to issue a business license in a name that is not registered with the secretary of state or filed with the Arizona corporation commission.
13. Adopt a wood-destroying insect inspection report form for use by business licensees.
14. Receive monies authorized under this chapter for deposit, pursuant to sections 35-146 and 35-147, in the appropriate funds.
B. The director may:
1. Compel attendance of witnesses, administer oaths or affirmations and take testimony concerning all matters coming within the director's jurisdiction.
2. Issue subpoenas for the taking of depositions, the production of documents and things and the entry on land for inspection and measuring, surveying, photographing, testing or sampling the property or any designated object or operation on the property relevant to an inquiry or complaint.
3. Contract and enter into interagency and intergovernmental agreements with any private party or public agency.
4. With at least twenty-four hours' notice, unless there may be an immediate risk to public health and safety, require a business licensee, qualifying party or applicator to produce specific records. On a showing of good cause by the business licensee, qualifying party or applicator, the director may excuse failure to timely comply.
5. Deny or revoke a license based on the information in the application.
6. Issue advisory notices for de minimis violations.
7. Investigate alleged violations of this chapter, rules adopted pursuant to this chapter, consent agreements, orders and any condition imposed in connection with a license.
8. Require the public to provide notices regarding alleged violations in writing.
9. Pursuant to section 41-1092.11, summarily suspend a license issued under this chapter to protect the health, safety and welfare of the public.
10. Issue a corrective work order requiring a business licensee or applicator to remedy deficiencies in treatment or to comply with this chapter or any rules adopted pursuant to this chapter before or after a formal hearing.
11. On receipt of a complaint or on initiation of a complaint by the division, investigate any alleged violation of unlicensed activity pursuant to this chapter. If the director determines that an unlicensed person is performing an act that is required to be performed by a person licensed pursuant to this chapter, the director shall take one or more of the following enforcement actions:
(a) Issue a cease and desist order requiring the person to immediately cease operations.
(b) Impose on the person a civil penalty of not more than one thousand dollars $1,000 for the first occurrence and not more than two thousand dollars $2,000 for the second occurrence.
(c) File an action to enjoin the person from engaging in the unlicensed activity.
(d) Request that the county attorney or attorney general file charges against the person.
12. Refuse to issue a business license in a name that is likely to be misleading or to imply any distorted representation about the business.
13. Register a certified applicator who is a representative of a business licensee as a temporary qualifying party if the qualifying party becomes disassociated with the business licensee.
14. Provide and conduct classes to train individuals in preparation for certified applicator and certified qualified applicator tests. The director may assess a fee for each class. The director may contract with a commercial enterprise or an accredited institution to conduct the class.
15. Provide and conduct continuing education classes quarterly. The director may assess a fee for each credit hour. The director may contract with a commercial enterprise or an accredited institution to conduct the class under the supervision of division staff.
16. Enter into consent agreements and issue consent orders.
17. Designate by rule devices that are exempt from the licensure, certification and registration requirements of this chapter.
18. Charge a person for providing copies of rules, forms or policies proposed for adoption and for educational materials.
19. Require a business licensee or qualifying party to register with the division or to otherwise identify all of the licensed or unlicensed applicators of the business or supervised by the qualifying party.
20. Require a business licensee to produce records for the purpose of verifying that an individual is an applicator of the business licensee.
21. Charge a handling fee in addition to the transaction amount for any transaction that could have been completed electronically and was not.
22. Deny or refuse to renew a license of a person who owes unpaid fees or civil penalties to the division.
23. Educate the public regarding the licensure, certification and registration requirements of this chapter.
C. The director or any duly authorized agents may enter any private or public property, including a service vehicle, on which pesticides are located or are reasonably believed to be located to be used for purposes related to pest management or any office of a business engaged in pest management. The owner, managing agent or occupant of the property or office shall permit entry for the purpose of inspecting and investigating conditions relating to the use, storage, application and disposal of pesticides, including worker safety materials and records pertaining to pest management. If a person refuses to admit the director or the authorized agent in accordance with this subsection, the director may obtain a warrant from a court of competent jurisdiction. If a licensed or certified person refuses to admit the director or an authorized agent in accordance with this subsection during regular business hours, the director may impose disciplinary action on the person.
D. The director or any duly authorized agents may monitor compliance by a person with this chapter and rules adopted pursuant to this chapter while the person is providing pest management services.
E. The director may maintain a list of persons who have violated section 3-3624, subsection A, paragraph 1. The list shall include any known related business names used by those persons. The list shall be posted on the department's website. The director shall remove a person and any known related business names that the person used from the list within ten business days after the person becomes licensed pursuant to this chapter and submits a written request to the director to remove the person's name from the list. The director shall provide a copy of the list to any member of the public that requests a copy.
Sec. 2. Section 3-3624, Arizona Revised Statutes, is amended to read:
3-3624. Unlawful acts; violations; classification
A. A person shall may not:
1. Engage in the business of pest management, commence work on a contract or sign, issue or deliver any document expressing an opinion or statement relating to pest management without a business license issued pursuant to this chapter, unless the person is otherwise exempt pursuant to this chapter.
2. Engage in the business of pest management in any category without a qualifying party who is registered in that category.
3. Operate a branch office without a registered branch supervisor under whose direct supervision pesticide applications are made out of that office.
4. Apply pesticides in any category other than wood-destroying organism management or fumigation unless the person is an applicator certified in that category or applies the pesticides under the direct supervision of an applicator certified in that category.
5. Apply pesticides in the category of wood-destroying organism management, aquatic pest management or fumigation unless the person is an applicator certified in that category or the person applies the pesticides under the immediate supervision of an applicator certified in that category.
6. Make recommendations regarding pest management unless the person is a certified applicator.
7. Deny the director or any agent of the director the right to be present on a jobsite in connection with a contemporaneous pest management treatment, including for the purpose of taking pesticide samples and soil samples.
B. The following nonexclusive acts are grounds for disciplinary action:
1. Violating this chapter, rules adopted pursuant to this chapter or a written order of the 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 and labeling of the pesticide or that may cause harm to the public, the environment or nontarget animals.
5. Misusing a pesticide if the misuse is due to the failure of the person to properly train or supervise. 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 and 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. Engaging in the business of pest management or providing pest management services under a suspended license.
8. Being convicted of a felony, a misdemeanor arising from or in connection with a license issued pursuant to this chapter after issuance of the license or a misdemeanor involving moral turpitude.
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. Having three or more de minimis violations of this chapter or rules adopted under this chapter.
12. Failing to provide the director with a current certificate of insurance or proof of financial responsibility.
13. Failing to provide a proper final grade treatment within twelve months after the original pretreatment or new-construction treatment.
14. Providing immediate supervision of more uncertified applicators at a time than is authorized by rule.
15. Failing to make and maintain true and accurate records of treatments performed or wood-destroying insect inspection reports, including those performed under warranty or guarantee, for at least three years after the date of treatment or inspection.
16. Failing to make treatment records available on request of the property owner or the property owner's authorized agent within three business days.
17. Failing to permit allow the director or any duly authorized agent to promptly inspect records pertaining to pest management located at an office of a business licensee when an employee or the owner of the business licensee is present at the business office and has access to the records.
18. Failing to timely produce specific records requested pursuant to section 3-3603, subsection B, paragraph 4.
19. Violating the terms of a consent agreement or written order of the director.
C. A person who commits any of the following acts is guilty of a class 2 misdemeanor:
1. Engages in the business of pest management or commences work on a contract without a business license issued pursuant to this chapter, unless the person is otherwise exempt from the licensing requirements prescribed by this chapter.
2. Advertises or displays any card, sign or other device that may indicate to the public that the person is licensed pursuant to this chapter if the person is not licensed pursuant to this chapter.
C. D. Notwithstanding subsection C of this section, a person who violates subsection A, paragraph 1 of this section with reckless disregard for the health and safety of other persons or property is guilty of a class 6 felony.
