STRUCTURALPEST CONTROL BOARDAugust16, 2001 BOARD MEETINGMINUTES BOARD MEMBERS PRESENT: Dr. Jay Stone, Chairman, Lubbock; Tomas Cantu, McAllen; Madeline Gamble,Dallas; Elias Briseno, Texas Department of Health, Austin; Phil Tham, TexasDepartment of Agriculture, Austin; Les Hoyt, Amarillo; Dr. Roger Gold, TexasA&M University, College Station; John Morrison, San Antonio. BOARD STAFF PRESENT: DaleBurnett, Executive Director; Frank M. Crull, General Counsel; Rita Martinez,Deputy Administrator; Murray Walton, Program Administrator; Isaac Galvan,Accountant, Joe Fletcher, State Investigator, Mike Buchanan, State Investigator,Lita Kiplin, State Investigator, Mike Kelly, Executive Assistant; Van Brock,State Investigator; Susan Runaldue, Legal Secretary Structural Pest Control Board Chairman, Dr. Jay Stoneconvenes the Board meeting at 9:30 a.m. Board Chairman calls for motion to elect recordingsecretary. Dr. Roger Gold moves to elect Rita Martinez as recording secretary. Les Hoyt seconds motion. Motioncarried. Agenda Item I. Approval of Board Minutes of May 24,2001. Les Hoyt moves toapprove minutes as presented. MadelineGamble seconds the motion. Motioncarried. Agenda Item II. PublicComments. Beth Brooks. Inoticed on the agenda this morning there is a proposed fee increase for the pestcontrol operators. The pest controloperators had a fee increase two years ago therefore it is somewhatdisappointing to hear another one is proposed. Last week, I had the opportunity to visit with Dale Burnett and we talkedabout the fee increase and the need for it. While no one likes a fee increase, we understand that theseincreases were mandated by the Legislature, and I just wanted to recap ourunderstanding of this. Weunderstand that the Legislature made the following decisions. All state employees will get a cost of living increase. Several state agencies whose leases are ready to expire are going to bemoving, and the Legislature has asked them to move outside the City of Austin inhopes of saving some money. TheBoard is one of those agencies. Many smaller agencies have now been mandated tohave an audit and the last reason would be the need for online licensing. There is a cost incurred in that. Noneof these items were budgeted, and therefore the Legislature has said you have tofind the money. That means a feeincrease to the pest control operators. I talked about this to many members, and it seems we do nothave a choice. One question hascome up repeatedly that I do need to bring forth, and that is the cost of the$55,000 move, once that move is made, you will not have that cost anymore, andtherefore, what is the possibility of the fees going down after the move? I want to discuss one other item if I may, and it is not onthe agenda. The issue is mold.Those of us that live in Austin have been hearing about mold in homes andbuildings for some time. I recentlyhad the discussion with the California Pest Control Association, and they arevery concerned about the mold issue in California. In fact our Board is going to be talking about it briefly next month. I bring this forward because it is a consumer concern and a pest controloperator concern, and I didnt know if in the future you will be discussingmold and the fact that the pest control operators are not licensed or trained tolook for mold. Some of theconsumers in California are thinking, if you are coming to inspect my homewhether it be for termites, or something, you should also be looking for mold. And they have actually come out with some legal verbiage thepeople are going to add to their contracts saying they are not licensed toinspect for mold, and so I wanted to bring this forward as it is a developingissue, and this is something that you may want to look at and add to your agendain the future. Chairman Stone states that the Board has a formalresignation from Jo-Christy Brown. She mentions in her letter that she hascompleted the six years, and has been anticipating her replacement at any timeand it has not come. She mentionsthe recent increase in demands of her own business and that her firm justreceived a contract that will double or triple the size of her firmsbusiness. She extends her thanksand warmest regards to everyone. We do not have any mention from the Governors office onwhen she will be replaced. Everytime they have been contacted, a mention has been made, and we have been toldthat it is just right around the corner. Thathas been since January or February that they have been telling us that it isjust right around the corner. I do not know when we can expect a new publicmember to be appointed. Chairman Stone mentions for those members that have toleave to catch early flights, please try to keep in mind that this does pose aquorum problem in any decisions that have to be made if too many have to leaveto catch early flights. Chairman Stone introduces new Structural Pest Control BoardExecutive Director, Dale Burnett. Mr.Burnett recaps background. Mr.Burnett extends his appreciation for being chosen to act in this position. The first six or seven weeks have been a pleasure. It is pretty much what I thought it would be like and I have enjoyedit. My background to many of you is old news by now, asmany of you sat on the committee that went through the process, but, for thoseof you that are unaware, 24 years in state government, 21 of those years wereeither in the field or supervising field and enforcement staff. Fourteen years Ispent with the Texas Department of Agriculture, 10 in the field and 4 asDirector of Pesticide Enforcement. Istill have many friends and former employees there. I spent 10 years at TNRCC, 7 years in criminal enforcement and threeyears as Director of Waste Permits. Onceagain I thank you. Agenda Item IV. Elect a Vice Chair. Chairman Stone states that I put this on the agenda becausein recent years we have had a vice chair. There is nothing in our statute thatrequires that we have one. Butover the past few years, in general, we have elected a person as vice chair thatwas, as tradition holds, in the opposite sector from the Chairman. When JoChristy was the chairman, she had a vice chair from the industry. I guess we work it the same way if we want to elect a vice chair, keepingwith tradition, he/she would be in the public sector. I called the two remaining public members and asked them ifthey would be interested or willing to serve as vice chair. When I calledMadeline, all I got was loud screaming on the other end. I took that as a probable negative. Les was more amenable to doing this. If you wish to elect a vice chair, we will need a motion, second and apass. Madeline Gamble moves to nominate Les Hoyt as vice chair. Tomas Cantu seconds the motion. Motioncarried. Agenda Item V. Proposed Amendments to Section 591.4Board Office. Mr. Chairman states we are mandated by the Legislature tomove out of the City of Austin. Wehave no choice. We are one of thesmall agencies that the Legislators saw fit to make us move. The only thing we need to do now to address this is to remove the wordAustin from 591.4. Mr. Chairman calls for motion to remove Austin from Section591.4. Dr. Gold so moves. Madeline Gamble seconds the motion. Motion carried. Agenda Item VI. Discussform created by staff to document approval of college course(s) for trainingcredit, Section 593.21 Technician Training Requirements. I might give you some history on this. Three or four years ago, I was approached by Dr. Folson of Texas Tech,and he asked to find a way to giving credit to students in Entomology classesthat they were attending. The way our regulations are written, we really cannot give anemployee credit for training unless it occurs after he is hired. So his request was, if it is an official Entomology class from arecognized educational institution, isnt there some way these students canget credit for that. I personally think it is a great idea. We should bring in people who have a lot more training than we have now. You as a Board approved us doing that. What we need though, is some way to record this, and what Dale broughtwas this form that is the first attempt to record the training that is receivedby the student. I would prefer that we not adopt this document, because if wedo, that means that every time that a word change is made, we have to go throughthe procedure of adoption. WhatDale is asking for here is some guidance on this. Is this the kind of information that would satisfy you asBoard members that the educational training has been documented. Dr. Gold questions assigning of credits to a particularcourse. Mr. Chairman responds that he was also approached by aProfessor in San Antonio to do the same thing. And from the two of them, I told them I felt if they were reallyinterested in doing the best thing for their students, they should be willing tosit down and analyze their own course modes, and see which of the two-hoursegments that are required by law their course would meet and sign off on that. If a Professor is interested in doing the best for his students, hecertainly will not have any objection. Hewill only have to do it once. Dr. Gold asks if there is a way to have the staff reformatthis, and say here are the possible areas, possible credits, and they can markthem off and it would be a lot easier. Discussion on courses meeting requirements. Mr. Chairman requests staff to rework form to somethingthat conforms to the inclusion of (h)(1) of Section 593.21. Dr. Gold adds that requesting the instructor to provide a course outlinethat is stapled to the form. Agenda Item VII. Discussion on Section 595.3 EmployeeSupervision, define normally accepted commuting area Mr. Chairman states we have put the staff in a bit of abind. We require face-to-facecontact between the responsible certified applicator and the apprentices ortechnicians. What we are runninginto are cases where a certified applicator in Lubbock has a technician orapprentice working in Houston and somebody has to define whether or not it isphysically possible for that certified applicator to be in face to face contactwith the apprentice or technician. Lubbockand Houston are pretty simple. You cant do it unless you can document a wholelot of flight time. But what if thecompany operation is in Waco and he has a technician working in Austin. Staff is asking for a bit of leadership in how to define what is anacceptable commuting area, because they dont know when the law is violatedand when it is not. We have severaloptions here and I can go through some of those if you like. I would ask for your comments. Mr. Tham questions the enforceability of this regardless ofthe language used. Have we hadanything done associated with the enforcement of this. Mr. Crull responds yes and cites a case from last year that hadtechnicians and apprentices in the western part of the state and the certifiedapplicators in eastern part of the state and they were not having face-to-facecontact. Dr. Gold interjects that those that are going to cheat aregoing to cheat regardless of what you do. Isntit a matter of putting the onus back on the certified applicator, say you haveto be able to document, and let them come up with their own ways. Mr. Chairman responds that is one of the options. I tried to think of ways we might respond to this. One of them is to remain silent and another is to increase the requiredrecord keeping on the part of the certified applicator. You tell us when you did the face to face contact. Following that is if we require this in all cases, that means that eachof us that have all the technicians in one city would have to do the same recordkeeping on every technician on face to face contact, which is not a veryappealing thing. The other is toset mileage figures, which is kind of the way the staff has done it in the past. If the certified applicator is within 60 miles of the apprentice ortechnician, it is an acceptable driving distance. It is reasonable that a certified applicator could be there. They are running into problems with that. If you have an assigned apprentice or technician a certainnumber of miles from the home office, then you have to document when you hadface-to-face contact. Is thatacceptable? Discussion Mr. Chairman summarizes the consensus of the Board is thatwe should remain silent and the staff should enforce the idea that we expectbusinesses to show some documentation of face to face contact betweentechnicians and apprentices and the certified applicators. Dr. Gold adds thatthis seems like a newsletter item. Thisissue has been raised, and that you have to document that the certifiedapplicators have face to face contact with apprentices and technicians, and cansupport that should a Board representative request documentation. Agenda Item VIII. Presentation and discussion on Section593.7 Fees, increase Accountant, Isaac Galvan makes presentation. Mr. Galvan shows in spreadsheet format how the changing of proposed feescan change excess revenue and the percentage of excess revenue. Mr. Galvan explains to Board that if the Agency fails tomeet revenue mandated by the Legislature, then the Agency would loose part ofits funding. Mr. Burnettexplains further that cuts would have to be made in some category. Mr. Chairman states that the earlier we can put this feeincrease in place, the lower we can keep the fee increase. So in order to accomplish this, we have to meet and have another vote onthis. If you are willing to meetagain by September 10, 2001, we can meet the October 1, 2001 guideline. The Texas Tech workshop is September 17 and 18, 2001. If we can get a quorum to address this issue a second time, we could putthis in place by October 8, 2001. Thosefour mentioned are Dr. Jay Stone, Dr. Roger Gold, Les Hoyt and Elias Briseno.Mr. Chairman asks if anyone on the Board objects to the meeting September 17,2001 to push the fees through to keep the increase down and no objections wereraised. Les Hoyt moves to propose fee increases of $175 forbusiness license, $80 for certified applicator license and $60 for technicianlicense to be effective October 8, 2001. Mr.Cantu seconds the motion. Motioncarried. Mr. Chairman calls for motion to schedule meeting forSeptember 17, 2001 at 1:00 p.m. Dr.Gold so moves. Madeline Gambleseconds the motion. Motion carried. Agenda Item IX. Discussion onExecutive Directors Salary by Board When the Board authorized me to offer the ExecutiveDirectors position to Mr. Burnett the maximum salary at that time was$59,300. The Legislature has nowappropriated an additional 5% increase for a two-year period with our approval. That will increase the salary to $63,000. Mr. Burnett has taken a substantial cut in salary to take this position. He enjoys enforcement and the regulatory end of things andchose to make this. Dr. Gold movesto increase the salary of the Executive Director. Mr. Morrison seconds the motion. Motioncarried. Dr. Gold requests that staff draft a letter that memberscould sign to move to Group II in the salary schedule. Mr. Burnett responds the letter would be drafted for the next meeting. Agenda Item X. U.S. SenateBill 1-Update Mr. Crull makes slide presentation on Comparison of SchoolEnvironmental Protection Act of 2001 US SB 1(U.S. Senate Amendment 805 to HR 1and the Structural Pest Control Act). Currentstate of the Bill, Congress is in recess. Currentlythe House Agricultural Committee has been having hearings and has solicitedcomments from various state agencies. The Bill has been approved by the Senateand is in the House, supposed to go to Conference Committee in September. There is about a fifty-fifty chance that the Bill will makeit to the Presidents desk for signature. Agenda Item XV. Discuss and Approve Board meetingdates for 2002. The proposed dates are February 12, 2002, May 16, 2002,August 13, 2002 and November 13, 2002. Mr.Chairman calls for motion to adopt. Mr.Hoyt so moves. Phil Tham secondsthe motion. Motion carried. Dr. Gold moves to change the November meeting to November 12, 2002. accommodation in UtrechtJohn Morrison seconds the motion. Motioncarried. Agenda Item XI. PenaltyMatrix Section 597.1(19) Grounds for Revocation, Suspension, Penalties,Reprimanding, Refusal to Examine, Refusal to Issue or Renew Licenses a. ERROR MSGModify fine for operating out of category (597.1(10)) Increasing finefrom $1000 and up to the maximum of $3000 for first offense, $4000 and/orlicense/category revocation on second offense, and $5000 and/or licenserevocation, and/or possible referral to Attorney General on third and subsequentoffenses. Effective September 1,2001. John Morrison moves to adopt. Madeline Gamble seconds the motion. Motion carried. b. Modify fine for human exposure (597.1(8)) increasing fine from $1000 upto the maximum of $3000 for first offense, $4000 and/or license/categoryrevocation on second offense, and/or $5000 and/or license revocation and/orpossible referral to Attorney General on third and subsequent offenses. Effective September 1, 2001. Dr. Gold moves to adopt. John Morrison seconds the motion. Motioncarried. Dr. Gold expresses concern about the human exposure issuebecause it is not a cut and dry situation. We will hear more about this in the future. c. If person involved is being supervised and on second or third offenseviolation occurs of operating out of category, human exposure, or personalprotective equipment (PPE) proposed supervisory fine to the business licenseholder up to the maximum of $1000 on the first offense and $2000 on the secondand subsequent offenses. EffectiveSeptember 1, 2001. Dr. Gold movesto adopt. Tomas Cantu seconds themotion. Motion carried. Agenda Item XII. Discussion on Formosan Termites. Dr. Roger Gold makes presentation. The Formosan termite is spreading rapidly across the State. They are a little bit different in terms of biology. The swarmers swarm in the summer months as compared to the subterraneantermite which swarms in the spring. Thewings of the swarmer and the shape of the heads on the soldier are adistinguishable factor of the Formosan termite. The soldier is fairly aggressive. One of the ways they can be identifiedis the soldiers will hang on to your skin, and that is a diagnosticcharacteristic. The Formosantermites have been known in the State of Texas since 1940s or 1950s. The infestations were restricted to some of the coastal areas around theOrange, Beaumont, Galveston area. Wenow have 15 counties that have Formosan termites registered. The most recent is in San Antonio, Bexar County. They have the potential of doing extensive economic damage within Texas. Louisiana has a major problem in their French Quarter. The area is being devastated by the Formosan termite. We have areas in Galveston, where the Strand is being destroyed. A colony of Formosan termites, largest recorded is 20 million. They are being spread by railroad ties being moved around thestate. These termites also have theability to attack live, and growing trees. This is a major issue in New Orleans at the present time. The termites hollow out the center of the tree. Whether it is an arboristor a pest control operator, a sector of the service industry needs to belicensed and supervised to do these treatments. Major issues are the treatment of living trees and who will regulate, thewood destroying insect report, inspection standards, new exam questions thatinclude the Formosan termite. Websitecreated by Texas A&M for termites is termite.tamu.edu. In the three months that it has been created, 67,000 visitshave been made to the site. Many ofthe searches have been in search of information on the Formosan termite. Discussion Mr. Burnett summarizes by saying that in considering thefactors, I thought we would require licensing in the termite category. We have some tasks to do to include some more specifics regarding theFormosan termite. Donnie Dippel ofthe Texas Department of Agriculture, at his level, for the moment agreed thatthe Formosan is very aggressive and should you be treating a tree in the lawn,it would only be in good conscious that you would also check the house. And once checking the house that is directly in our bailiwick. Mr. Chairman states that Dale has come to the Board for guidance indetermining the licensing category this should fall under. Is it a termite problem, or is it a lawn and ornamental problem? TheBoard consensus was that it is a termite problem. Agenda Item XIII. EnforcementReport Below is a summary of the administrative penalties andconsent agreements reviewed by the Board.
Administrative Refusal To Issue,Revocations and Suspensions FY 2001
Discussion on the actions in the resolution of complaints. No action taken, no violation and inconclusive. Discussion between Mr. Chairman and SPCB ExecutiveDirector, Dale Burnett on what to do with a company with branch offices thathave multiple violations but at different branches. A process being used that is called stacking will punish a company forseparate violations at separate branch offices for the cumulative offenses. We are not ignoring the problem. Mr.Burnett continues that if we can relate the problem back to a headquartersoffice where there are recurring violations, we would be better served to makethat a high penalty. Agenda Item XIV. Executive Directors Report Mr. Burnett recaps. A new Bat Bill passed in the 77th LegislativeSession amending Section 1, Subchapter B, Chapter 63 Parks and Wildlife Code byadding Section 63.101 to read as follows. Sec.63.101 Protection of Bats a. Except as provided by subsection (b) and (c) no personmay hunt a bat or sell, offer for sale, purchase, offer to purchase, or possessafter purchase a bat of any part of a bat dead or alive. A bat may be removed or hunted if the bat is inside or on a buildingoccupied by people. Thissection does not apply to an animal control officer, a peace office, or a healthofficial who captures a bat that the officer or official considers to be injuredor diseased. A person whotransports a bat for the purpose of laboratory testing if the bat has beenexposed or potentially exposed humans or domestic animals to rabies or a personwho is licensed to provide pest control services. This means that if the bat is not inside or is touching abuilding, a pest control operator should not do anything to the bat. That is the Legislatures intent. This law goes into effect September 1, 2001. Violators will be subject to SPCB laws as well as Texas Parks andWildlife. A person who violatesSection 63.101 of this code commits an offense that is a Class C Parks andWildlife Code misdemeanor. Mr. Burnett explains that the Agency has been mandated bythe Legislature to relocate our office and to move outside the City of Austinand to save money. A survey wasconducted to get some direction from staff. A vote indicated that the majority of staff wanted a move go South whichwould be the Buda, Kyle, San Marcos area. Mr. Burnett responds to questions. General Services is pushing for a ten-year lease. The next Board meeting is November 13, 2001. Mr. Chairman calls for motion to adjourn. Tomas Cantu moves to adjourn. LesHoyt seconds the motion. Motioncarried The Structural Pest Control Board meeting of August 16,2001 adjourns at 12 Noon. |
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