- Associated Press - Wednesday, February 3, 2016

SALEM, Ore. (AP) - Oregon farm regulators have proposed overruling an administrative judge’s findings that the emergency suspension of an aerial pesticide applicator’s license was unwarranted.

The looming decision marks the latest turn of events in the legal battle between the Oregon Department of Agriculture and Applebee Aviation, which faces steep fines for allegedly ignoring the agency’s order to stop spraying pesticides.

If the state Agriculture Department does overrule the administrative judge, the dispute may end up before the Oregon Court of Appeals.

In September 2015, ODA yanked the pesticide license of Applebee Aviation after finding the company improperly trained its workers, didn’t provide them with the appropriate protective gear and otherwise “performed pesticide application activities in a faulty, careless or negligent manner.”

Ordinarily, pesticide applicators can continue operating while challenging a license suspension through the administrative process. In this case, ODA found that an emergency suspension was warranted, which allowed the agency to yank the license before a hearing was held.

The emergency suspension is significant because ODA alleges that Applebee Aviation continued spray operations without a license, which led to the agency issuing $180,000 in civil penalties to the company and its owner, Mike Applebee.

In January, Senior Administrative Law Judge Monica Whitaker found that ODA did not prove that Applebee’s conduct posed a “serious danger to the public’s safety or health,” and the emergency suspension was unjustified.

The administrative judge said the agency’s findings were based solely on the testimony of one former Applebee employee, Darryl Ivy, whose photos and other testimony were not verified.

Ivy was admitted to a hospital after quitting his job in April 2015 and then went public with allegations of hazardous spraying practices against his former employer.

The ODA has now amended the judge’s proposed order, deleting paragraphs that questioned the authenticity of Ivy’s accusations and removing the recommendation that the emergency suspension be revoked.

Instead, the agency’s proposed order finds that license suspension was justified between Sept. 25 and Oct. 8 of last year.

Whether the emergency suspension was justified is important to Applebee Aviation, as it bears on the legality of spray operations during that period and the ensuing $180,000 in fines.

Bruce Pokarney, communications director for ODA, said he can’t comment on the substance of the dispute but said the agency will consider any objections by Applebee Aviation to the amended order before making it final.

ODA is seeking a five-year license suspension for the company, as well as the civil penalties, which will be weighed by an administrative judge on Feb. 17-18, he said.

Robert Ireland, attorney for Applebee, said the company will likely take the legal fight to the Oregon Court of Appeals if ODA insists the emergency license suspension was justified.

The suspension has forced Applebee Aviation to cease spraying operations, which has cost 30 people their jobs, Ireland said.

Applebee Aviation believes that Ivy’s testimony was not credible, which is why the ODA did not call him as a witness under oath, he said.

Ireland said the ODA had the legal right to overrule the administrative law judge’s findings, but the extent of the changes was an abuse of its authority.

“They’re covering their tracks on a poor investigation,” he said.

___

Information from: Capital Press, https://www.capitalpress.com/washington

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