Cherubini fined!

[Neil Jones]

I am not posting this to be nasty. Some people on the list will know I
have known about this for a long time. It is further evidence against
Paul Cherubini's credibility. Another one of his odd theories, that
pesticides are harmless, has been shown to be dangerous.


http://www.cdpr.ca.gov/docs/enfcmpli/penfltrs/penf2002/2002atch/attach36.pdf

I TOLD YOU SO!

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Page 1 
BEFORE THE DIRECTOR OF THE DEPARTMENT OF PESTICIDE REGULATION STATE OF
CALIFORNIA In the Matter of the Decision of Administrative Docket No.
111 the Agricultural Commissioner of the County of Butte
DECISION(County File No. 011-ACP-BUT-01/02)
PAUL CHERUBINI 
4857 Summit View Drive El Dorado,
 California 95623
Appellant / Procedural Background

Under Food and Agricultural Code (FAC) section 12999.5 and section
6130 of Title 3, California Code of Regulations (3 CCR), county
agricultural commissioners may levy a civil penalty up to $1,000 for
certain violations of California's pesticide laws and regulations.

 After giving notice of the proposed action and providing a hearing,
the Butte County Agricultural Commissioner found that the appellant,
Paul Cherubini, violated one section of the FAC and two sections of 3
CCR, including 3 CCR section 6618(a)(1). The commissioner imposed a
total penalty of $1,302, including a penalty of $1,000 for the section
6618(a)(1) violation. Mr. Cherubini appealed from the commissioner's
civil penalty decision to the Director of the Department of Pesticide
Regulation in regard to the section 6618(a)(1) violation.

The Director has jurisdiction in the appeal under FAC section 12999.5.
Standard of Review The Director decides matters of law using his
independent judgment. Matters of law include the meaning and
requirements of laws and regulations. For other matters, the Director
decides them on the record before the Hearing Officer. In reviewing
the record, the Director looks to see if there was substantial
evidence, contradicted or uncontradicted, before the Hearing Officer
to support the Hearing Officer's findings and the commissioner's
decision. The Director notes that witnesses sometimes present
contradictory testimony and information; however, issues of witness
credibility are in the province of the Hearing Officer.
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Page 2 
Paul Cherubini Docket No. 111 Page Two

 The substantial evidence test requires only enough relevant
information and inferences from that information to support a
conclusion, even though other conclusions might also have been
reached. In making the substantial evidence determination, the
Director draws all reasonable inferences from the information in the
record to support the findings, and reviews the record in the light
most favorable to the commissioner's decision. If the Director finds
substantial evidence in the record to support the findings and
decision, the Director affirms the decision. 3 CCR section 6618(a)(1)
Section 6618(a)(1) provides that each person performing pest control
shall give notice to the operator of the property to be treated before
any pesticide is applied.

 The notice shall be in a manner the person can understand and include
the date of the scheduled application, the identity of the pesticide
to be applied by brand or common chemical name and precautions to be
observed as printed on the pesticide product labeling or included in
applicable laws or regulations. 3 CCR section 6600 defines "operator
of the property" as a person who owns the property and/or is legally
entitled to possess or use the property through terms of a lease,
rental contract, trust, or other management arrangement.

 There is information in the record that John M. Growdon is the
co-owner and president of Northern Star Mills (NSM), and that Mr.
Growdon runs the day-to-day operations at NSM. Mr. Cherubini stated at
the hearing that he notified one employee from NSM of the initial
intended date of the application, which was Tuesday, July 10, 2001.
Mr. Cherubini stated that he was told by "an employee" of NSM, who was
unnamed in the record, that Mr. Growdon was on vacation. Mr. Cherubini
alleges that the same unnamed NSM employee failed to inform Mr.
Growdon, because Mr. Growdon was on vacation. There is information in
the record that Mr. Growdon was on vacation the first part of the week
of July 9, 2001, but that Mr. Growdon was not out all week. Mr.
Cherubini stipulated at the hearing that he made an application of
Conquer Residual Insecticide (Conquer) and mineral spirits, using a
Micro-Gen mister.

The mister was activated by a digital automatic timer. The application
to control grain weevils was at NSM, a local feed store in Chico,
California. The application automatically started in the evening of
July 15, 2001. Mr. Cherubini admitted during the hearing that he
unilaterally and mistakenly set the automatic timer for Sunday
evening, July 15, 2001, instead for the intended Saturday evening
application on July 14, 2001. Mr. Cherubini also admitted that he did
not inform the operator of the property that he had changed the date
of the fogging application from the originally-planned date of
Tuesday, July 10, 2001.
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Page 3 
Paul Cherubini Docket No. 111 Page Three 

A reasonable inference from the information in the record is that Mr.
Cherubini's Conquer application was made without proper notification
to the operator of NSM in violation of section 6618(a)(1). Civil
Penalty The appellant complains that "[A] $1,000.00 fine (the maximum
amount for this kind of violation) is excessively harsh given my
attempts to notify Mr. Growdon or his employee and follow their
instructions about never allowing the fogger to spray on weekdays on a
repeating basis." Under 3 CCR § 6130 county agricultural commissioners
may levy a penalty of $401 to $1,000 for a serious violation. Serious
violations include those that created an actual health or
environmental hazard.

 Six police officers from the Chico Police Department responded to a
reported burglary at NSM at approximately 10:00 p.m. on July 15, 2001.
Prior to entering the NSM building, the police dispatcher contacted
Mr. Growdon. Since Mr. Growdon had not been notified by Mr. Cherubini
that the timer had been set to activate on Sunday, July 15, 2001, Mr.
Growdon did not alert the police to the potential exposure to the
pesticide fog application. The officers entered the building at the
same time the Conquer fogging application was underway. The officers
reported to their superiors that they were all beginning to cough and
some of them were vomiting.


 They left the treated building after approximately ten minutes. After
leaving the building and getting into the fresh air, five of the six
officers were still coughing and some were vomiting. At least one of
the officers could not stand up due to the effects of the exposure.
The Chico Fire Department responded and treated the situation as a
hazardous materials incident. The six pesticide-exposed officers
removed their safety equipment and their uniforms, and were hosed down
by the fire department to decontaminate them for transport to a
hospital.

The six officers were treated for pesticide exposure at the hospital.
One officer was kept overnight for observation. There is information
in the record that the police officers' symptoms were consistent with
the indications on the Conquer label and the material safety data
sheet. There is information in the record that 39 work days were lost
due to the officers' pesticide exposure. Seven other persons,
including five other police officers, one community service officer,
and one fire captain, were treated at the site for secondary exposure.
The appellant's violation of section 6618(a)(1) created an actual
health hazard to the six police officers, and resulted in injury to
the six officers. The fine of $1,000 for the violation is not an
excessive penalty.
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Page 4 

The record shows the commissioner's decision is supported by
substantial evidence, and there is no cause to reverse or modify the
decision.
Disposition

The commissioner's decision is affirmed. The commissioner shall notify
the appellant how and when to pay the total $1,302 penalty. Judicial
ReviewUnder FAC section 12999.5, the appellant may seek court review
of the Director's decision within 30 days of the date of the decision.
The appellant must bring the action under Code of Civil Procedure
section 1094.5.

STATE OF CALIFORNIA DEPARTMENT OF PESTICIDE REGULATION By: Original
Signed by Dated: August 6, 2002 Paul E. Helliker Director

--
Neil Jones- Neil at nwjones.demon.co.uk http://www.butterflyguy.com/
"At some point I had to stand up and be counted. Who speaks for the
butterflies?" Andrew Lees - The quotation on his memorial at Crymlyn
Bog National Nature Reserve

 
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