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HOOLIE
01-10-2007, 02:15 PM
This probably belongs more in the Pesticides forum but more people come here and this could pertain to anyone, so...

Happened to catch the People's Court this morning, there was a case of a guy suing a landscaper for making his dog sick thru the weed killer he applied. The facts of the case were....the guy's dog had wandered into his neighbor's yard (his sister's actually) and thru contact with the chemicals had gotten very sick. The landscaper was not licensed and he had not posted any warning signs after the application. He had sprayed the weeds as a favor to a good customer. Supposed he told her he wasn't licensed but said he would do it one time for her and went and bought some name-brand spray (they didn't say what is was)

The plaintiff was armed with the EPA regs for New York, which said warning signs must accompany any "commercial application"

However...the judge examined the laws and "commercial application" meant pesticides applied to commericial properties, rather than chemicals applied for profit. Residentials were exempt. She then noted the county laws required the homeowner, not the applicator, must post warning signs along property lines, unless the treated area exceeded 100 sqft. He had only spot-sprayed a small area so he was OK.

So the lawnboy won...interesting that his being unlicensed was not relevant to the case.

TurfProSTL
01-10-2007, 03:54 PM
This probably belongs more in the Pesticides forum but more people come here and this could pertain to anyone, so...

Happened to catch the People's Court this morning, there was a case of a guy suing a landscaper for making his dog sick thru the weed killer he applied. The facts of the case were....the guy's dog had wandered into his neighbor's yard (his sister's actually) and thru contact with the chemicals had gotten very sick. The landscaper was not licensed and he had not posted any warning signs after the application. He had sprayed the weeds as a favor to a good customer. Supposed he told her he wasn't licensed but said he would do it one time for her and went and bought some name-brand spray (they didn't say what is was)

The plaintiff was armed with the EPA regs for New York, which said warning signs must accompany any "commercial application"

However...the judge examined the laws and "commercial application" meant pesticides applied to commericial properties, rather than chemicals applied for profit. Residentials were exempt. She then noted the county laws required the homeowner, not the applicator, must post warning signs along property lines, unless the treated area exceeded 100 sqft. He had only spot-sprayed a small area so he was OK.

So the lawnboy won...interesting that his being unlicensed was not relevant to the case.Saw this myself. I thought the landscaper was going to incur the wrath of that fox-of-a-judge.....

But it went like you said - the landscaper got a big break. Neighbor should have complained to his state Pesticide Bureau, and he might have won this case.

Oh, and the herbicide was SpeedZone.

Duekster
01-10-2007, 04:01 PM
This probably belongs more in the Pesticides forum but more people come here and this could pertain to anyone, so...

Happened to catch the People's Court this morning, there was a case of a guy suing a landscaper for making his dog sick thru the weed killer he applied. The facts of the case were....the guy's dog had wandered into his neighbor's yard (his sister's actually) and thru contact with the chemicals had gotten very sick. The landscaper was not licensed and he had not posted any warning signs after the application. He had sprayed the weeds as a favor to a good customer. Supposed he told her he wasn't licensed but said he would do it one time for her and went and bought some name-brand spray (they didn't say what is was)

The plaintiff was armed with the EPA regs for New York, which said warning signs must accompany any "commercial application"

However...the judge examined the laws and "commercial application" meant pesticides applied to commericial properties, rather than chemicals applied for profit. Residentials were exempt. She then noted the county laws required the homeowner, not the applicator, must post warning signs along property lines, unless the treated area exceeded 100 sqft. He had only spot-sprayed a small area so he was OK.

So the lawnboy won...interesting that his being unlicensed was not relevant to the case.


Judge was wrong on the FIFRA Laws.

HOOLIE
01-10-2007, 04:11 PM
I hadn't seen that show in...forever...the judge reminds me of the mom from Married With Children...

I hope at least the weeds died...:laugh:

Runner
01-10-2007, 04:29 PM
Yep...The judge (and thus the judgement) was wrong in this case. What threw me, was her definition of "commercial lawn application". They interpreted this as "non-residential", when in fact, commercial means just that...for hire - whether it is residential or commercial. She had no idea about the ol' customer bought the stuff, either. The "landscaper" was saying how this stuff can be bought over the shelf - "anyone can go to the store and buy it." The fact of the matter is, ANYone can but ANY of the pesticides that commercial applicators use - with the exception of RUP's, of course. Now, as far as the flags,...she was probably right on about the "homeowner not having to post it", but the fact was,..it was not the homeowner doing the ap..

jrc lawncare
01-10-2007, 05:26 PM
This probably belongs more in the Pesticides forum but more people come here and this could pertain to anyone, so...

Happened to catch the People's Court this morning, there was a case of a guy suing a landscaper for making his dog sick thru the weed killer he applied. The facts of the case were....the guy's dog had wandered into his neighbor's yard (his sister's actually) and thru contact with the chemicals had gotten very sick. The landscaper was not licensed and he had not posted any warning signs after the application. He had sprayed the weeds as a favor to a good customer. Supposed he told her he wasn't licensed but said he would do it one time for her and went and bought some name-brand spray (they didn't say what is was)

The plaintiff was armed with the EPA regs for New York, which said warning signs must accompany any "commercial application"

However...the judge examined the laws and "commercial application" meant pesticides applied to commericial properties, rather than chemicals applied for profit. Residentials were exempt. She then noted the county laws required the homeowner, not the applicator, must post warning signs along property lines, unless the treated area exceeded 100 sqft. He had only spot-sprayed a small area so he was OK.

So the lawnboy won...interesting that his being unlicensed was not relevant to the case.Judge is dead wrong. Commercial application are made on residential & commercial props. If I had sprayed prop in this case, and flagged property correctly, I have no control over the fact that a dog wanders into a treated area.

Tharrell
01-10-2007, 05:40 PM
I think she was wrong too. Those shows are entertainment to me, I really can't take them seriously.

No Lawncares
01-10-2007, 06:49 PM
Shes a judge and you are lawn guys trying to say she is wrong, Im going with the judge.

Duekster
01-10-2007, 06:55 PM
Shes a judge and you are lawn guys trying to say she is wrong, Im going with the judge.

Go for it, but the FIFRA Laws are very clear as are the Local Texas Department of AG Laws.


(2) Private applicator
The term “private applicator” means a certified applicator who uses or supervises the use of any pesticide which is classified for restricted use for purposes of producing any agricultural commodity on property owned or rented by the applicator or the applicator’s employer or (if applied without compensation other than trading of personal services between producers of agricultural commodities) on the property of another person.

(3) Commercial applicator
The term “commercial applicator” means an applicator (whether or not the applicator is a private applicator with respect to some uses) who uses or supervises the use of any pesticide which is classified for restricted use for any purpose or on any property other than as provided by paragraph (2).

http://www.law.cornell.edu/uscode/7/usc_sec_07_00000136----000-.html


The only catch was he said he was not paid to do it. So unless you guys want to do it for free you need a license.

HOOLIE
01-10-2007, 07:13 PM
Well regardless it was cool to see the lawnboy win...the plaintiff should keep his dogs on his own property in the first place.

Whatever law the judge was reading, she had it right in front of her. Perhaps she interpreted it incorrectly??

dcgreenspro
01-10-2007, 07:25 PM
i was going to start a thread about the same thing. my pregnent wife watches every day.....Judge was dead wrong on her interpretation of "commercial properties". Can't beleive that nothing happen to the landscaper.

Duekster
01-10-2007, 07:27 PM
If he did not charge her he is not regulated.

Runner
01-10-2007, 07:39 PM
That is not necessarily true. I don't know that much about New York, but if it my estimation, I would bet that they have rather strict laws and policies. Here in Michigan, you can't even do it that way, anymore. They don't play these games of "doing it as a favor", or "doing it in trade for something else", as well as the old "the customer bought the stuff - I'm just helping them out". These are all simple minded little "loopholes" that people think they can use - and try. Our state DOA don't mess with that stuff anymore. They are more inclined to just site someone, as to stand there and listen to cheap attempts to be b.s.'d by somebody.

Duekster
01-10-2007, 07:56 PM
That is not necessarily true. I don't know that much about New York, but if it my estimation, I would bet that they have rather strict laws and policies. Here in Michigan, you can't even do it that way, anymore. They don't play these games of "doing it as a favor", or "doing it in trade for something else", as well as the old "the customer bought the stuff - I'm just helping them out". These are all simple minded little "loopholes" that people think they can use - and try. Our state DOA don't mess with that stuff anymore. They are more inclined to just site someone, as to stand there and listen to cheap attempts to be b.s.'d by somebody.

As well it should be. I have my license.

Envy Lawn Service
01-10-2007, 07:56 PM
Well....

I just want to be honest here... as I do not have an opinion one way or the other on the case.

However, this is a PERFECT example of what I have meant in the past when I have been pizzing and moaning about pesticide licensing/regulations.

What I mean is that everything is setup with so many loopholes and workarounds that it does not of the things they tell us it is supposed to do.

1) Protect the environment
2) Protect living beings
3) Regulate applicators for the benefits from above
4) Prevent non-licensed (uneducated persons) from applying

So, I don't care a bit to tell anyone that I Do have an opinion about pesticide licensing.

[color=red]It's nothing but a red tape money racket that does nothing for licensed applicators but cause unworthy hassle.[/b] Not only are the regulations not inforced, or non-licensed applicators not pursued... but no one but nobody but licensed applicators have to deal with anything pertaining to it.

If that case had went to trial here in North Carolina, the results would have been the same. The same loopholes and workarounds exist here too.

hoyboy
01-10-2007, 08:06 PM
You guys are mingling two different issues. One issue is whether a person can be fined by the state for his application methods. The other issue is whether that person is liable to a third party for his actions.

I can violate every pesticide law my particular state has, but my neighbor will still have the burden of proof that my negligent actions caused him harm. The state can fine me, but the neighbor still has to show causal harm and damages. The judge can also look at contributory negligence issues. I didn't see the peoples court case, but even if the landscaper was required to post flags, the judge could find that the neighbor was also negligent for letting his dog run across property lines. There may be other mitigating issues as well.

jrc lawncare
01-10-2007, 08:25 PM
Shes a judge and you are lawn guys trying to say she is wrong, Im going with the judge. You lose........:dancing:Read below & learn...... Section 325.40 Commercial Lawn Applications.
This section shall be effective on January 1, 2004. The requirements of this section pertain to any commercial lawn application of a pesticide except for the application of a pesticide to a right-of-way (unless required pursuant to paragraph 325.1 (s)(4).

(a) Written Contracts. Prior to a commercial lawn application, except a commercial lawn application on property owned, leased or rented by the employer of the pesticide applicator, the pesticide applicator or business providing these services must enter into a written contract with the owner of the property to which the commercial lawn application is to be made or the owner's agent. A written contract must:

(1) specify the approximate date or dates of application or applications; if requested by the property owner or owner's agent, the specific date or dates of the application(s) must be provided by the pesticide applicator or business and that date must be stated in the contract. The following statement must be prominently displayed in the contract: "The property owner or owner's agent may request the specific date or dates of the application(s) to be provided and, if so requested, the pesticide applicator or business must inform of the specific dates and include that date or dates in the contract.

(2) state the total number of commercial lawn applications to be provided; and

(3) state the total cost of the commercial lawn application service to be provided; and

(4) include a written copy, in at least 12-point type of:

(i) a list of pesticides to be applied including brand names and generic names of active ingredients; and

(ii) any warnings that appear on the label(s) of pesticide(s) to be applied that are pertinent to the protection of humans, animals or the environment; and,

(iii) the name, address, telephone number and pesticide business registration number of the pesticide business providing the commercial lawn application service and the pesticide applicator certification identification card number of the person employed by the pesticide business who will provide or supervise the commercial lawn application service; and

(5) state the name of the property owner or owner's agent and the address of the premises to be treated; and

(6) be signed by both the pesticide applicator or business providing the commercial lawn application and the owner or owner's agent of the property to which the commercial lawn application is to be made; provided, however, the signature of the owner or owner's agent is not required if the pesticide applicator or business possesses a separate document that specifically evidences the owner or owner's agent signature as acceptance of the written contract, such as a copy of a prepayment check, in the exact amount specified in the written contract for the agreed-upon services;

(7) be amended, if changes are made to any of the elements of the contract required by this section, including, but not limited to the elements listed in Paragraphs 325.40(a)(1) through (6); a contract renewal; or a multi-year contract. The pesticide applicator or business must obtain written proof of acceptance of the owner or owner's agent of such contract amendments prior to applying pesticides.

(b) Contract transfer. Written contracts may be transferred from one pesticide business providing a commercial lawn application service to another such business if the successor business provides the contract holder, prior to any commercial lawn application by such business, with written notice of the contract transfer which includes the name, address, telephone number and pesticide business registration number of the successor pesticide business and the pesticide applicator certification identification card number of a person employed by such pesticide business who will provide or supervise the commercial lawn application service.

(c) Alternate date or dates. In the event that the commercial lawn application on the date or dates specified in the contract becomes infeasible, the pesticide applicator or business must provide the owner or owner's agent oral or written notice of any proposed alternate date or dates. The pesticide applicator or business must obtain acceptance from the owner or owner's agent of such alternate date or dates prior to initiating any commercial lawn application.

(d) Specific pesticide notification. If the contract does not state which pesticide(s) of a group of pesticides will be applied on a proposed date, or if the pesticide applicator or business has not advised the owner or owner's agent of this information, the pesticide applicator or business must, prior to application, provide to the owner or owner's agent a written notice which indicates the specific pesticide(s) to be used.

(e) Copies of contracts. The pesticide applicator or pesticide business making a commercial lawn application must retain a complete copy of each written contract for a minimum of three years following the expiration of the contract and must make such copies available for inspection upon request by the department.

(f) Visual notification. Visual notification markers must be posted by any pesticide applicator or business performing a commercial lawn application described in this section. Such markers must be at least four inches by five inches in size and letters on the markers must be at least three-eighths of an inch in height. Such markers must, by January 1, 2005, be yellow in color, have lettering which is black in color and be constructed of rigid material. All such markers must include on the front of the marker:

(1) the phrase "PESTICIDE APPLICATION," or "PESTICIDE TREATMENT," or "PESTICIDES APPLIED";

(2) the specific date and time of the actual commercial lawn application, unless the date and time are provided to the property owner or owner's agent immediately following application and prior to leaving the premises;

(3) the phrase "DO NOT ENTER"; and

(4) the phrase "DO NOT REMOVE SIGN FOR 24 HOURS"; and

(5) a prominent visual warning symbol, at least 1.5 inches in diameter, such as a person walking a dog with a slash through the symbol or a stern face with an outward facing raised open hand.

(g) Other information. The only text and image allowed on the front of the marker are those required by this regulation and the name and telephone number of the applicator business. Any other text and/or images must be placed on the back of the marker.

(h) Visual notification marker posting. Visual notification markers:

(1) must be placed such that the top of the marker is at least twelve inches above the ground; and

(2) must be placed by the pesticide applicator or business making the commercial lawn application prior to the application and remain posted for a period of not less than 24 hours following the application; and

(3) must be placed such that the front of the marker is clearly visible from outside the treated area; and

(4) must be placed not more than fifty (50) feet apart along the perimeter of the treated area in the event that markers used are between four inches by five inches in size and five inches by five inches in size; or not more than one-hundred (100) feet apart along the perimeter of the treated area in the event that markers used are at least five inches by six inches in size; and

(5) must also be placed at common points of entry adjacent to the treated areas including, but not limited to, driveways and walkways; and

(6) need not be placed at any portion of the perimeter of the treated premises or treated area which is rendered impassible by a fence, wall, hedge or similar device or natural topographic feature; provided, however, every treated premises or treated area must be marked by at least two visual notification markers, except only one visual notification marker is required when an individual tree or shrub is treated which can only be approached from one direction.

(i) Pesticide Product Labels. As provided in Environmental Conservation Law Section 33-0905, every certified applicator must, prior to application of a pesticide within or on the premises of a dwelling, supply the occupants therein with a written copy of the information, including any warnings, contained on the label(s) of the pesticide(s) to be applied.

(1) Every certified applicator must, prior to the application of a pesticide within or on the premises of a multiple dwelling, building, or structure other than a dwelling, supply the owner or the owner's agent, with a written copy of the information, including all warnings, contained on the label(s) of the pesticide(s) to be applied. The owner or owner's agent must make available upon request at reasonable times the written copy of the information contained on the label to the occupants or residents of such multiple dwelling, building, or structure.

(2) The certified applicator may exclude from the written copy of the information on the label(s) instructions that do not pertain to the commercial lawn application. If such information is excluded, the applicator or business must note on the label that it is an amended label and the applicator and business must provide the complete label, if requested by the owner or owner's agent.

jrc lawncare
01-10-2007, 08:27 PM
You guys are mingling two different issues. One issue is whether a person can be fined by the state for his application methods. The other issue is whether that person is liable to a third party for his actions.

I can violate every pesticide law my particular state has, but my neighbor will still have the burden of proof that my negligent actions caused him harm. The state can fine me, but the neighbor still has to show causal harm and damages. The judge can also look at contributory negligence issues. I didn't see the peoples court case, but even if the landscaper was required to post flags, the judge could find that the neighbor was also negligent for letting his dog run across property lines. There may be other mitigating issues as well.You are correct, the neighbour is negligent. Especially if their is a leash law.

Duekster
01-10-2007, 08:48 PM
Not only are the regulations not inforced, or non-licensed applicators not pursued... but no one but nobody but licensed applicators have to deal with anything pertaining to it.

Same could be said for Irrigation in Texas as well. Not sure how many states regulate irrigation but Texas does.

Only the honest people, Typically, get taxed and pay fees.

tjsquickcuts
01-10-2007, 11:34 PM
One thing all you guys have to remember is that every state has different laws and regulations......I mean you have to have a permit to go door to door in New Jersey....I know there are federal agriculture regulations on pesticides, but its generally left up to the state, and most times the county to govern and make sure all regulations are being followed....

As far as the way the Judge ruled, it was her interpretation.....There was no proof that the chemicals harmed.....

I had a customer tell me she got rid of her LCO because they put some stuff down that got her dogs sick....I over bid like crazy and didnt hear back from her.....she was a ticking lawsuit....didnt want to take the risk....lol....better safe then sorry......

Big Bad Bob
01-11-2007, 12:24 AM
Go for it, but the FIFRA Laws are very clear as are the Local Texas Department of AG Laws.




http://www.law.cornell.edu/uscode/7/usc_sec_07_00000136----000-.html


The only catch was he said he was not paid to do it. So unless you guys want to do it for free you need a license.

that's right. you can apply pesticide, without a license, to someone's property that is not owned by you as long as the homeowner purchases the pesticide and the applicator and transports it to their own property but you can not charge for it. you may not go to the hardware store, purchase it for the homeowner, and/or transport it, and/or use your own applicator to apply it. as far as posting warnings, that is a local thing that varies from county to county.


If he did not charge her he is not regulated.

ah, but he is regulated. he is not allowed to purchase it and transport a pesticide to a customers property.

lawnguyland
01-11-2007, 12:33 AM
I too believe the judge is wrong. The DEC would not be happy with the landscaper. I say this as a NY state certified applicator. I guess legally speaking it might depend on how the judge interprets the term commercial application.

Runner
01-11-2007, 01:03 AM
Ok, good. Now we have someone from NY who is licensed. I'm sure that he can testify that MY is rather stringent on their laws and guidelines, as well as requirements. I was thinking NY was one of the more regulated states, but then again, I don't know.
Also,..not to go off the subject here, but speaking of pesticides in NY, I'm hoping someone can clarify something for me (us). I was told by a friend of mine that HE was told at the GIE expo that Permagreens are now or will be banned in NY because of the spray volumes. Does anyone know ANYthing about this?

Envy Lawn Service
01-11-2007, 02:26 AM
Well, like it or not, it's a known fact that people have more compassion for dogs than they do humans. I don't even pretend to know anything about NY pesticide regulations... or NY law. But I highly doubt either were not enforced at trial... and if they were not by chance, that just makes things worse.

The fact of the matter is that we in this industry make a 'big stink' over such things because we are proud of our profession and have worked hard to do things the right way. However, since this is the case, most of us don't realize we are making more of it than it is.

In otherwords, only those of us who are directly and closely related to the topic are the only ones that could give a rat's azz about it all. (Govt & licensed applicators). Everyone else could really care less.

Personally, I say if it's a duck... call it a duck. What I said previously hold true in a lot of areas. I've started seeing it for what it is and accepting the reality of it... even if it's not what I want to see or accept.

Take Big Bad Bob's post up there for instance... and I'm not picking on him... it's just a good example. I'm certain every single word he typed is true for his area.

But still yet, what is every word of that worth really? The truth is, absolutely nothing. It's like swiss cheese and any unlicensed Joe Blow can work right around the whole thing with no real effort at all. And truth be known, the licensed applicator in his area is still more likely to get cited with some trivial code violation than Joe Blow is. Probably hundreds of times more likely.

Reason being is that the licensed applicator is registered with those who we pay to manage and enforce these regulations. He's doing what he should, but he's also basically saying.... "Here Uncle Sam... take my money for the right to have this license... track my continuing eligibility for this license so you'll know to revoke it if I fail to meet your continuing demands... and oh by the way, here is every bit of personal and business information about me for you to keep on record... so you know right where to find me anytime... so that you may send someone to pay me a surprise visit or to observe my activities at your discretion.

On the other hand, they don't know the first thing about Blow Joe over there, or any activities he is taking part in. Nor do they have the manpower out in the field to watch for him, partly because they are busy watching those who are trying to play by the rules. So it's open season for him to do absolutely anything he likes, any way he likes, and he will likely never even be suspected unless he screws up bad by doing something such as killing an animal or something else than lands him in court due to a citizen plaintiff.... and even then, chances are extremely low that he can be held accountable, because most likely he has had the foresight to work the loopholes and cover his @ss along the way.


Heck, LET'S JUST BE HONEST HERE.... we wouldn't even be here now discussing how a non-licensed guy 'got off' in court had he not been accused for being responsible for the death of a neighbor's pet.... and they ONLY way he would have even been in danger of a slap on the wrist would have been if it had been his customer's pet that died from exposure and the customer took him to court and gave him up for illegal activities.

Almost the very same thing applies to the totally illegitimate non-taxpaying Blow Joe. His chances of getting audited by the IRS are pretty much just as slim in comparison.... whereas you and I could easily be selected for audit this year... because again, they know who we are, where we are, and know the business activity we are engaging in.

So that pretty much sums up my position on the whole subject.....

ed2hess
01-11-2007, 08:00 PM
[QUOTE=Envy Lawn Service;1669809]
In otherwords, only those of us who are directly and closely related to the topic are the only ones that could give a rat's azz about it all. (Govt & licensed applicators). Everyone else could really care less.
And truth be known, the licensed applicator in his area is still more likely to get cited with some trivial code violation than Joe Blow is. Probably hundreds of times more likely.
So so true ....I just can't understand how a smart guy like you can't get your Echo trimmers to run

willider
01-11-2007, 08:43 PM
Maybe he did post the signs and the dog couldn't read them...:laugh:

jrc lawncare
01-11-2007, 09:08 PM
Maybe he did post the signs and the dog couldn't read them...:laugh:Roflmao!!! :laugh: