Elements Elements of the of the

Violation ViolationDepartment of Pesticide RegulationDepartment of Pesticide Regulation

Enforcement BranchEnforcement Branch1

Elements Analysis Elements Analysis

The elements of the violation analysis exercise is the basic analytical task that must be performed before taking an enforcement action.2

Goal of the ExerciseGoal of the ExerciseWas there a violation?

1. What are the elements of the requirement?

2. What specific evidence do you have

to show the person did not comply with each element of the requirement?3

What is the What is the Requirement?Requirement?Each law or regulation is a unique requirement Each requirement is made up of elements

You must identify the elements to be sure you understand the requirement

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Definitions of Definitions of “Element”“Element”1. An “element” is the simplest part

that makes up the requirement.

2. An “element” may be a condition

that must be present or an

action that must have occurred.

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Common Elements Common Elements Some “elements” are common to many laws

and regulations, but they may have specific

definitions different from dictionaries.

For example: 3 CCR, section 6000

Person - any individual, partnership,

association, corporation, business

entity or organized group of persons

whether incorporated or not

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Places to Find Definitions Places to Find Definitions FAC Division 6, Pest Control Operations

Sections 11401-11411

FAC Division 7, Agricultural Chemicals, etc. Various Sections

3 CCR Section 6000

BPC Sections 8501-8512

16 CCR Section 19027

Let’s Do an Elements Let’s Do an Elements ExerciseExercise

FAC, section 31603 defines “vicious dog.”

(b) Any dog which, when unprovoked,

in an aggressive manner,

inflicts severe injury on or kills

a human being.8

FAC, section FAC, section 31603- 31603- ElementsElements

Element 1: There was a dog.

Element 2: The dog was not provoked

in an aggressive manner.

Element 3: The dog inflicted severe

injury or killed

a human being.9

Let’s Identify ElementsLet’s Identify Elements 3 CCR, §6738(b)(1)(C)

Select a law, regulation

Break it into its “elements”

Protective Eyewear for Employees

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3 CCR, §3 CCR, §6738(b)(1)(C) 6738(b)(1)(C) TextText “The employer shall assure that . . . .

(1) Employees wear protective eyewear when required by pesticide product labeling (except as expressly

provided in this section), or when employees

are engaged in . . . .

(C) Application by hand or using hand held equipment, except when . . . .”11

3 CCR, §3 CCR, §6738(b)(1)(C)6738(b)(1)(C) Element 1: There is an employee and employer as “defined by

3 CCR, section 6000. “

Element 2: There is an employee that handles pesticides as “defined by 3 CCR,

section 6000. “

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3 CCR, §3 CCR, §6738(b)(1)(C)6738(b)(1)(C) Element 3: The employer shall assure that employees wear protective eyewear when it is required by the product labeling, or when the application is made by hand or made using hand held equipment.

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Elements of BPC, Elements of BPC, §8538(b)§8538(b)

Identify ElementsIdentify Elements BPC, §8538(b)

Text for Branch 2 & 3 Applications

- Written Notice to Occupant

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BPC, §BPC, §8538(b) Text8538(b) Text

“(b) In the case of Branch 2 and Branch 3 registered company applications, the notice prescribed by subdivision (a) shall be provided no later than prior to the application. In either case, the notice shall be given to the owner or the owner’s agent and tenant, if there is a tenant, in at least one of the following ways . . . .”

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BPC, §BPC, §8538(b)8538(b)

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Element 1:

There is a registered structural pest

control company.

Element 2:

The notice (in conformance with subdivision a)

must be provided

before the application. 16

BPC, §BPC, §8538(b)8538(b)

Element 3: The company must provide the property owner or the owner’s agent, and the tenant of the

premises, with the required notice.

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Troublesome WordsTroublesome Words

•And

•Or

•When

• Except

•Other

•Notwithstanding

•Substantial

•Hazard

• Immediately

• ?????18

ReferencesReferences

References to other sections Some laws and regulations may have references to other sections. These references need to be checked to be sure they don’t have additional exceptions or restrictions to the subject regulation.

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Element or Not?Element or Not?

Don’t confuse “elements” with words or phrases that are clearly “exceptions” or “clarifiers.”

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Identified Elements, Identified Elements, What’s Next?What’s Next?

The elements of the requirement have been identified.

What evidence do you have to demonstrate that the person did not comply each element of the requirement?21

Evidence DefinedEvidence Defined

Evidence is a fact of consequencewhich tends to furnish proof that an element was present or hadoccurred.

Each element of a law or regulation must be proven with evidence to establish that a violation occurred.

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Evidence NeededEvidence Needed

The elements of the law or regulation will determine what kind of evidence is needed to prove a violation.

Evidence must be credible and trustworthy.23

Examples of Evidence Examples of Evidence Witness statements Expert testimony Photos & diagrams Laboratory analyses Reports Hearsay

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What is Our Burden of What is Our Burden of Proof?Proof?

To provide evidence that the violation is:

More likely to have occurred

than not to have occurred

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Burden of ProofBurden of Proof“more likely to have occurred than not to have occurred”

Often characterized in legal writings as:

“Preponderance of the evidence”

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Evidence for Each Evidence for Each ElementElement“If I have evidence to show the worker failed to wear the required PPE, why do I need evidence to prove the other elements of the requirement before writing a violation?”

Violations can lead to enforcement actions

Violator can request hearing to appeal an enforcement action27

Do the Elements Do the Elements ExerciseExercise For every alleged violation on the inspection report!

BEFORE the case is written!

BEFORE the NOPA is written!

BEFORE the NOPA is signed by the Commissioner!

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Group ExercisesGroup Exercises

Small Teams: Choose a scribe

Choose a presenter

The team will identify and list elements

for the given law or regulation

List evidence to prove elements

Present team elements analysis to the class 29

Exercise ChecklistExercise Checklist

1. What is the requirement?

2. Did the person fail to satisfy the the elements of the requirement?

3. What specific evidence do you have

to show the person did not comply

with each element of the requirement?30

Test Your Elements!Test Your Elements!

Do your elements answer these questions?

1.What is the requirement? What has to be done?

2.Who or what needs to be protected?

3.Who is required to perform or complete the requirement?31

Citeable Sections Citeable Sections ReportReport

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HelpersHelpers

Check the Citeable Sections list: http://www.cdpr.gov/docs/enforce/admnacts/citsec.pdf

Enforcement Compendium Volume 4 -- Inspection Procedureshttp://www.cdpr.ca.gov/docs/enforce/compend/vol_4/inspect_procedures.htm

Enforcement Compendium Volume 8 -- Guidelines for Interpreting Pesticide Laws, Regulations, and Labeling

http://www.cdpr.ca.gov/docs/enforce/compend/vol_8/pestlaw.htm

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