3.4 Utah Unlawful Acts, the R68-7-21 Penalty Matrix & Enforcement Outcomes
Key Takeaways
- R68-7-20 lists 33 specific unlawful acts, from applying without a license to allowing drift off the target area whether or not damage occurred.
- The R68-7-21 penalty matrix sets administrative penalties from $50 to $500 per violation, with the median assessed unless aggravating or mitigating factors apply.
- Utah Code 4-2-304 allows a civil penalty not to exceed $5,000 per violation and makes a violation a class B misdemeanor; a subsequent criminal violation within two years is a class A misdemeanor.
- UDAF may issue a written stop sale, use, or removal order under Utah Code 4-14-108; the product may not move until the department issues a written release.
- A revoked or suspended license must be returned within 14 days, and failure can draw an administrative fine of up to $100 for each 14 days it is not returned.
3.4 Utah Unlawful Acts, the R68-7-21 Penalty Matrix & Enforcement Outcomes
Utah's enforcement scheme has three layers, and exam questions frequently test which layer applies to a given fact pattern: the rule's list of unlawful acts (R68-7-20), the administrative penalty matrix (R68-7-21), and the statutory civil and criminal penalties in Utah Code Title 4, Chapter 2, Part 3 and the license actions in Title 4, Chapter 14.
1. The 33 Unlawful Acts (R68-7-20)
R68-7-20 opens by stating that a person committing any of the listed acts violates Title 4, Chapter 14, Utah Pesticide Control Act or the rules under it, and is subject to the penalties in Sections 4-2-301 through 4-2-305, up to and including citations, fines, and suspension, revocation, or denial of any applicator, business, or dealer license.
The 33 items cluster into recognizable groups:
| Cluster | Representative unlawful acts |
|---|---|
| Licensing | Applying for hire without a commercial license (10); purchasing, using, or supervising use of a restricted-use pesticide without being certified (11); an employer allowing an employee to apply before completing certification (19); failing to have the license on the applicator's person during an application (20); failing to register the business (22) |
| Application conduct | Applying known ineffective or improper pesticides (5); operating in a faulty, careless, or negligent manner (6); using a pesticide inconsistently with its labeling (14); applying a termiticide at less than the label rate (18); allowing an application to run off or drift from the target area, whether or not damage or injury occurred (21); applying on property without the owner's or responsible party's consent (17) |
| Records and reporting | Failing to keep or maintain required records or make required reports (8); proffering false or fraudulent records, invoices, or reports (9); failing to notify the department within 30 days of changes (8 and 32); failing to respond fully and timely to department requests about training and equipment (29) |
| Labels and products | Handling or applying a pesticide without a complete, legible, current label at hand or affixed (23); distributing a restricted-use pesticide to an unlicensed person (16); failing to comply with 40 CFR 156 and 165 container and containment rules (24) |
| Federal overlays | Conviction under FIFRA section 14(b) (1); a final order imposing a FIFRA section 14(a) civil penalty (2); violating the EPA Worker Protection Standard (33) |
| Conduct and integrity | False, fictitious, or fraudulent claims about pesticides or certification (4); fraud or misrepresentation in a license application or renewal (12); impersonating a government official (15); cheating on a department test (31) |
| Specialty standards | Failing to perform fumigations to the standards in the rule (25); failing to display the business name and license number (26); failing to give a customer the required restricted-use pesticide notification (27); a qualifying party failing to train applicators on statute, rule, labels, labeling directions, and equipment (28); improper transport, storage, handling, use, or disposal (30) |
[!WARNING] Item 21 is the one applicators most often underestimate. Allowing a pesticide application to run off or drift from the target application area is an unlawful act whether or not damage or injury occurred. Utah does not require a complaining neighbor or a damaged crop for the violation to exist.
2. The Administrative Penalty Matrix (R68-7-21)
For administrative cases, UDAF uses a published penalty matrix:
- The penalty amount shall be from $50 to $500 per violation.
- Penalties are calculated on the level of the violation and the adverse effect or potential adverse effect at the time of the incident.
- The median penalty is assessed unless a proportionate adjustment is warranted or aggravating or mitigating factors are present.
- The department may issue a warning in lieu of penalty where the matrix allows, at its sole discretion.
- The department reviews past violation trends and updates the matrix annually; a copy is available from the department on request.
Aggravating and Mitigating Factors
R68-7-21(2) lists four:
- The number of separate alleged violations for a given inspection or incident date.
- The magnitude of the harm or potential harm — quantity or degree — to humans, non-target species, property, or the environment.
- The similarity of the current alleged violation to violations previously committed by the applicator or business.
- The extent to which the alleged violation is part of a pattern of the same or substantially similar conduct.
3. Statutory Civil and Criminal Penalties
The rule's matrix is the department's administrative tool. The statute sets the ceiling:
| Authority | Exposure |
|---|---|
| Utah Code 4-2-303 | It is unlawful to willfully violate, disobey, or disregard Title 4, a rule made under it, or any notice or order issued under it |
| Utah Code 4-2-304(1)(a) | A penalty not to exceed $5,000 per violation in a civil proceeding, and a class B misdemeanor in a criminal proceeding |
| Utah Code 4-2-304(1)(b) | A subsequent criminal violation within two years is a class A misdemeanor |
| Utah Code 4-2-304(2) | The violator is liable for the department's expenses in abating the violation |
4. License Actions and Stop-Sale Orders (Utah Code 4-14-108)
UDAF may deny an application for an applicator license, or revoke or suspend a license for cause. When a license is revoked or suspended, it must be returned to the department within 14 days of the day the licensee received notice; a licensee who fails to return it may be assessed an administrative fine of up to $100 for each 14 days it is not returned.
The department may also issue a written stop sale, use, or removal order to the owner or distributor of a pesticide it finds or has reason to believe is being offered or exposed for sale in violation of the chapter. Once the order issues, no pesticide subject to it may be moved, offered, or exposed for sale except on the department's subsequent written release, and the department may require the owner to pay the costs of withdrawing the product from the market before releasing it. UDAF may also seek seizure, condemnation, a temporary restraining order, or a permanent injunction in court, and may revoke or suspend a product registration where a registrant used fraudulent or deceptive practices.
5. Responsibility for Employees
Utah pushes responsibility up the chain. Under R68-7-16(2)(a), a pesticide business, its qualifying party, or its applicator may be held responsible for the acts or omissions of an employee, and it is the business's responsibility to properly train, equip, and prepare employees and keep the records proving it. Failing to respond to or fully disclose information requested by the department within two business days is itself evidence of a failure to train or equip, and the burden of proof that the duties were fulfilled rests on the business owner, qualifying party, or designated supervisor by a preponderance of the evidence.
Under Utah Administrative Code R68-7-21, what is the administrative penalty range per violation, and what amount is assessed by default?
A herbicide application drifts onto an adjacent pasture. Soil and tissue sampling shows no measurable injury to the forage and the neighbor does not complain. What is the status under Utah rule?
Utah Code 4-2-304 sets the statutory exposure for a Title 4 violation. Which statement is accurate?
UDAF revokes a commercial applicator's license and the applicator receives notice on June 1. What does Utah Code 4-14-108 require?