4.3 Prohibited Acts, Inspections & Penalties
Key Takeaways
- ORS 634.372 lists 23 prohibited acts, including applying inconsistent with labelling, faulty or negligent application, and failing to keep or falsifying records.
- ODA conducts twelve types of inspection and investigation, including applicator record inspections and dealer record inspections that need no complaint to trigger them.
- Civil penalties under ORS 634.900 are capped at $2,000 for a first violation and $4,000 for a subsequent violation.
- The $10,000 civil penalty ceiling applies only to violations resulting from gross negligence or wilful misconduct.
- A person served with a civil penalty notice has 10 days from service to apply in writing for a contested case hearing, or the right is waived.
Prohibited Acts, Inspections & Penalties
Why this is on the exam: "Prohibited acts and civil penalties" is a named leaf of Domain 4, and the Addendum prints the whole of ORS 634.372 with the most frequently violated paragraphs flagged. Penalty items are usually numeric: know $2,000 / $4,000 / $10,000 and what triggers each.
1. ORS 634.372 — Prohibited Acts
The Oregon Pesticide Control Law lists 23 prohibited acts. The ones that generate most enforcement:
| ORS 634.372 | A person may not… |
|---|---|
| (1) | Make false or misleading claims through any media about the effect of pesticides or application methods |
| (2) | As an applicator or operator, intentionally or wilfully apply a worthless pesticide or any pesticide inconsistent with its labelling — or, as a consultant or dealer, recommend or distribute such pesticides |
| (3) | Operate a faulty or unsafe spray apparatus, aircraft or other application equipment |
| (4) | Perform pesticide application activities in a faulty, careless or negligent manner |
| (5) | Refuse or neglect to prepare and maintain required records |
| (6) | Make false, misleading or fraudulent records, reports or application forms |
| (7) | Operate application equipment without a licensed applicator or certified private applicator performing or supervising the application |
| (8) | Work as an applicator without a licence, or apply pesticides not authorised by the licence |
| (9) | Engage in, or advertise, the business of applying pesticides on another's property without an operator's licence; or employ unlicensed people to apply pesticides |
| (10) | Work as a trainee without a trainee certificate |
| (11)–(12) | Act as a dealer or consultant without the licence |
| (13) | Apply an RUP or highly toxic pesticide to agricultural, horticultural or forest crops on your own or leased land without a private applicator certificate |
| (15)–(17) | Deliver, distribute or sell a pesticide that is misbranded, adulterated, or not registered as required by ORS 634.016 |
| (19) | Distribute or sell a pesticide except in the manufacturer's original unbroken package |
| (20) | Apply pesticides within a protected or restricted area without a permit from that area's committee, or contrary to the permit |
| (21) | Use the isopropyl ester of 2,4-D, or any other ester of equal or higher volatility as determined by the department, without a permit |
| (22) | Sell, use or remove a pesticide subject to a stop sale, use or removal order until it is released |
[!IMPORTANT] (2) and (4) are different violations. Paragraph (2) is a labelling violation and requires intent — applying inconsistent with labelling. Paragraph (4) is a workmanship violation with no intent element — a careless application that damages a neighbour's crop is actionable even where every label direction was technically followed. Investigators frequently charge both.
2. The Twelve ODA Inspection and Investigation Types
ODA conducts twelve categories of pesticide inspection and investigation; being able to name the type tells you what evidence is being collected.
| Code | Inspection / investigation |
|---|---|
| AUO / AUF | Agricultural use observation / agricultural use follow-up |
| NUO / NUF | Nonagricultural use observation / nonagricultural use follow-up |
| EUP | Experimental use permit observation |
| PEI | Producer establishment inspection |
| MPI | Marketplace inspection |
| IMP / EXP | Import inspection / export inspection |
| ARI | Applicator record inspection |
| DRI | Dealer record inspection |
| ROL | Report of loss investigation |
| PARC | Pesticide Analytical and Response Center investigation |
An ARI or DRI is a records-only audit — it does not need a complaint, a drift event or an injury. This is why "we'll write the log later" is a losing strategy.
3. Enforcement Actions
When ODA confirms a violation of ORS 634 it may take any of:
- Notice of Violation (NOV) — a non-monetary enforcement action;
- Civil penalties — monetary;
- Licence denial, suspension or revocation;
- Re-examination (ORS 634.148).
Where the documentation does not clearly support a violation but a genuine concern exists, ODA issues a Letter of Advisement (LOA) — an advisory letter warning that a practice could escalate into a state or federal violation. An LOA is not an enforcement action. ODA may also refer matters to Oregon OSHA, the Attorney General's Office, or a federal agency such as EPA or FDA.
4. Civil Penalties — ORS 634.900
┌──────────────────────────────────────────────────────────────────────────┐
│ OREGON CIVIL PENALTY CEILINGS (ORS 634.900) │
│ │
│ FIRST violation ..................... not more than $2,000 │
│ SUBSEQUENT violation ................ not more than $4,000 │
│ Violation resulting from GROSS NEGLIGENCE or WILFUL MISCONDUCT, │
│ first or subsequent ............... may not exceed $10,000 │
│ │
│ Applies to violations relating to pesticide APPLICATION, SALE or │
│ LABELING. Separate penalty authority exists for restricted-use │
│ pesticide violations and the rules adopted for them. │
└──────────────────────────────────────────────────────────────────────────┘
[!WARNING] $10,000 is not the ordinary maximum. The $10,000 ceiling applies only where the violation results from gross negligence or wilful misconduct. An ordinary first violation is capped at $2,000. Getting this backwards is the single most common Oregon penalty error.
How the amount is set. ODA does not pick a number freely: ORS 634.915 requires a rule-based schedule, and the formulas live in OAR 603-057-0500 to -0532. Two rule-defined variables drive the calculation — the magnitude of the violation (categorised as major, moderate or minor by its potential to affect the public interests reflected in ORS 634) and the gravity of the effect — with separate formulas for violations not resulting from gross negligence or wilful misconduct (‑0531) and those that do (‑0532). ORS 634.910 lets the Director remit or reduce a penalty on terms consistent with public health and safety.
5. Due Process: Ten Days
Civil penalties are imposed under the Administrative Procedures Act (ORS 183.745). Under ORS 634.905(2), the person served has 10 days from the date of service of the notice to make written application for a hearing before the Director of Agriculture; OAR 603-057-0510 requires the request to reach the Department within ten business days of the date the Department mailed the notice. Missing that window waives the right to a contested case hearing. Order entry and appeal rights are covered by OAR 603-057-0520.
6. Criminal Liability — ORS 634.992
Violation of any provision of ORS Chapter 634, or of any ODA rule related to restricted-use pesticides, is a Class A misdemeanour. Under Oregon's general sentencing statutes, a Class A misdemeanour carries a maximum of 364 days in jail and a $6,250 fine. Criminal exposure is in addition to, not instead of, civil penalties and licence action.
What is the maximum civil penalty the Director of Agriculture may impose for a FIRST violation of ORS Chapter 634 relating to pesticide application, sale or labelling, where gross negligence and wilful misconduct are not involved?
An applicator is served with a notice of civil penalty by ODA. How long do they have to request a contested case hearing?
ODA reviews a complaint and concludes the documentation does not clearly support a violation of ORS 634, but a genuine pesticide use concern exists. What action is ODA most likely to take?