I Department of Agriculture Administrative Services Kate Brown, Governor Capitol St Ste PESTICIDES PROGRAM 53191111013 97301-2532 TEL: 503-986-4635 CERTIFIED MAIL June ?12, 2016 Felipe Cruz 10200 NE 83rd St. Vancouver, WA 98662 Re: NOTICE OF IMPOSITION OF CIVIL PENALTY and ORDER, ODA PESTICIDES CASE NO. 160051 This is a Notice of Imposition of Civil Penalty and Preposed/Final Order that is based on a pesticide investigation conducted by the Pesticides Program of the Oregon Department of Agriculture. This NOTICE addresses violations of Oregon Revised Statutes (ORS) Chapter 634. The action is taken pursuant to statutory and regulatory provisions including but not limited to ORS Chapter 183, ORS 634.900 et seq., Oregon Administrative Rules (OAR) Chapter 137, Division 3, and OAR 603-057-0500 et seq. Also enclosed is information on contested case rights and procedures. This information is provided for your consideration should you select to contest the NOTICE and request an administrative hearing of this matter. Read all of the NOTICE carefully. If you request a hearing in this matter, your request for hearing must be made in writing to the Oregon Department of Agriculture so that it is received by the Department within ten business days of the date that you receive the NOTICE. If you do not request a hearing this NOTICE will become the Final Order, and the Final Order shall constitute a judgment. Important Note: The Department has also issued separate proposed enforcement actions to your employer Jeffrey F. Ricks operating as Green Envy Landscaping and your coworker Roberto Vera. Those proposed actions are specific to Jeffrey F. Ricks operating as Green Envy Landscaping and Mr. Vera. Your request for a hearing would be separate from and have no bearing on their responses to their enforcement actions, although hearing processes could ultimately be combined if multiple parties request hearings. Maw DALE L. MITCHELL PESTICIDES COMPLIANCE PROGRAM MANAGER OREGON DEPARTMENT OF AGRICULTURE Encl: Notice of Contested Case Rights and Procedures STATE OF OREGON DEPARTMENT OF AGRICULTURE Before The Director of The Department of Agriculture NOTICE OF IMPOSITION OF CIVIL PENALTY and ORDER, for Violation of the State Pesticide Control Act, ODA Pesticides Case No. 160051 In the Matter of: Felipe Cruz a Commercial Pesticide Applicator The Director of the Oregon Department of Agriculture (ODA or the Department) hereby assesses a civil penalty in the amount of $1,258.00 against Felipe Cruz (Mr. Cruz) as authorized by statutory and regulatory provisions including, but not limited to, ORS 634.900 to ORS 634.915 and OAR 603-057-0500 to 603-057- 0532. The findings and conclusions on which this determination is based, and the criteria used to calculate the penalty, are set out below. I. APPLICABLE LAW 1. The applicable law includes the following: ORS Chapters 183 (administrative law), 561 (agriculture), and 634 (pesticides); Oregon Administrative Rules (OAR) Chapter 137, Division 3; and OAR Chapter 603, Division 57. 2. Oregon's pesticide control law is known as the State Pesticide Control Act and is codified in Oregon Revised Statutes (ORS) Chapter 634. 3. ORS 634.006(8) states that "Pesticide? includes: ?Defoliant? which means any substance or mixture of substances intended for causing the leaves or foliage to drop from a plant with or without causing abscission; "Desiccant" which means any substance or mixture of substances intended for artificially accelerating the drying of plant tissue; (0) ?Fungicide? which means any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any fungus; "Herbicide" which means any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any weed; ?Insecticide? which means any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any insects which may be present in any environment whatsoever; "Nematocide" which means any substance or mixture of substances intended for preventing, destroying, repelling or mitigating nematodes; (9) ?Plant regulator" which means any substance or mixture of substances intended, through physiological action, to accelerate or retard the rate of growth or rate of maturation or to othenrvise alter the behavior of ornamental or crop plants or the produce thereof, but does not include substances to the extent that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants or soil amendments; or Any substance, or mixture of substances intended to be used for defoliating plants or for preventing, destroying, repelling or mitigating all insects, plant fungi, weeds, rodents, predatory animals or any other form of plant or animal life which is, or which the department declares to be a pest, which may infest or be detrimental to vegetation, humans, animals, or be present in any environment thereof.? Felipe Cruz Notice of Imposition of Civil Penalty Page 2 of 8 4. ORS 634.006(13) states ?Pesticide operator? means a person who owns or operates a business engaged in the application of pesticides upon the land or property of another." 5. ORS 634.006(9) states ?Pesticide applicator' or ?applicator? means a person who: Is spraying or applying pesticides for others; Is authorized to work for and is employed by a pesticide operator; and Is in direct charge of or supervises the spraying or other application of pesticides or operates, uses, drives or physically directs propulsion of equipment, apparatus or machinery during the spraying or other application of pesticides, either on the ground or, if certified under ORS 634.128, by aircraft." 6. ORS Chapter 634 authorizes the Oregon Department of Agriculture to issue pesticide licenses, including licenses for operators and applicators. ORS 634.057, 634.116, and 634.122. 7. ORS 634.372(9) states that person may As a pesticide operator, engage in the business of, or represent or advertise as being in the business of, applying pesticides upon the land or property of another, without first obtaining and maintaining a pesticide operator?s license. The operator also may not engage in a class of pesticide application business that is not specifically authorized by license issued by the State Department of Agriculture. The operator also may not employ or use any person to apply or spray pesticides who is not a licensed pesticide applicator or pesticide trainee." 8. ORS 634.372(8) states that person may As a pesticide applicator, work or engage in the application of any classes of pesticides without first obtaining and maintaining a pesticide applicator?s license, or apply pesticides that are not specifically authorized by such license.? 9. ORS 634.372(2) states that person may As a pesticide applicator or operator, intentionally or willfully apply or use a worthless pesticide or any pesticide inconsistent with its labeling, or as a pesticide consultant or dealer, recommend or distribute such pesticides." 10. The Department is responsible for enforcing the Oregon State Pesticide Control Act and may make any rule necessary for enforcement of program requirements. ORS 561.020; ORS 561.190; ORS Chapter 634. 11. Oregon Administrative Rules (OAR) Chapter 603 Division 057 is entitled Pesticide Control and implements provisions of the State Pesticide Control Act, ORS Chapter 634. 12. ORS 634.900 et seq. authorizes ODA to impose civil penalties for violations of provisions of ORS Chapter 634. ORS 634.375 states: ?The State Department of Agriculture may suspend, revoke or refuse to renew a license, certificate or other authorization issued to a person under this chapter if the person fails to pay a civil penalty under ORS 634.900 on or before 90 days after the date that the order imposing the civil penalty becomes final by operation of law or on appeal.? 13. OAR 603?057-0500 ef seq. provides formulae for calculating the civil penalties authorized by ORS 634.900. OAR 603-057-0502(7) states ?Civil penalties shall be due and payable ten (10) business days after the order becomes final by operation of law or on appeal. A person may pay a civil penalty before an order becomes final. Payment of a civil penalty before an order becomes final is an admission by the person of all of the allegations in the Notice of imposition of Civil Penalty." 14. ORS 634.900 and OAR 603-057-0510 authorize the Department to issue Notices of Violation for violations of ORS Chapter 634. Felipe Cruz Notice of Imposition of Civil Penalty Page 3 of 8 ll. FINDINGS OF FACT ODA Pesticides Case No. 160051 1. This Notice and Order is the result of a pesticide use investigation conducted by ODA in response to a complaint about improper pesticide use around an apartment complex in Washington County, Oregon, in July of 2015. The persons in contact with the Department regarding this matter included Susan Lane (Ms. Lane) and Jeffrey F. Ricks (Mr. Ricks). 2. Jeffrey F. Ricks owns and operates an Oregon business located at 2708 Hayden Island Dr., Portland, Multnomah County, Oregon. This business, operating under the name of Green Envy Landscaping (Green Envy), provides landscape services including pest control for hire to the properties of others in the Portland Metro area of Oregon. 3. The Department at times relevant to this matter had issued no pesticide licensing to Mr. Ricks. Jeffrey F. Ricks, in association with Ricks Company, doing business as Green Envy Landscaping, holds pesticide licensing issued by the Washington Department of Agriculture (WSDA). This license (number 60387) includes the categories of Ornamental Insect and Disease and Ornamental Weed. 4. Green Envy uses various agents or employees to make pesticide applications onto the properties of others. These persons include or have included Roberto Vera (Mr. Vera) and Felipe Cruz (Mr. Cruz). 5. On July 9, 2015, Mr. Vera and Mr. Cruz intentionally performed pesticide applications to Willow Brook Apartments, 14095 SW Walker Rd., Beaverton, Washington County, Oregon. The following product was applied: SpeedZone, EPA Reg. No. 2217-833, PBI?Gordon Corporation, Kansas City, Missouri (active ingredients carfentrazone, ester, mecoprop, and dicamba) For this application, Mr. Vera and Mr. Cruz used backpack sprayers. This application may be referred to herein as the July 9 application. The treatment site may be referred to as the Willow Brook Apartments. 6. During the July 9 application, the Willow Brook Apartments were not owned or controlled by Green Envy, Mr. Ricks, Mr. Vera, or Mr. Cruz. 7. The Department has no record that Mr. Vera or Mr. Cruz have ever been issued a pesticide applicator license in Oregon. 8. On July 28, 2015, having received a complaint from a resident of Willow Brooks Apartments, the Department contacted Mr. Ricks. During this and subsequent conversations, Mr. Ricks described the pesticide application activities conducted at Willow Brook Apartments. Mr. Ricks also provided the Department with application records for Willow Brook Apartments for 2015. 9. SpeedZone is labeled for sod farms, ornamental lawns, and turfgrass weed control at a rate of 1.1 to 1.8 fluid ounces per gallon of water for treatment of approximately 1,000 square feet of turfgrass. 10. The record provided by Mr. Ricks for the July 9 application states that for the turfgrass application, 2 oz. of SpeedZone was added per gallon of spray mixture. 11. This investigation was the second investigation conducted by ODA involving Green Envy, Mr. Cruz, Mr. Vera, and Willow Brook Apartments. During the prior investigation, conducted in 2014, the Felipe Cruz Notice of Imposition of Civil Penalty Page 4 of 8 Department had discussed with Mr. Ricks licensing requirements in Oregon, as well as the appropriate use rate for SpeedZone. ULTIMATE FINDINGS OF FACT 1. On July 9, 2015, Roberto Vera and Felipe Cruz, as agents or employees of Jeffrey F. Ricks operating as Green Envy Landscaping, intentionally applied a pesticide, SpeedZone, to the property of another, an apartment complex in Beaverton, Washington County, Oregon. At this time, Mr. Ricks, as Green Envy or otherwise, was not licensed as a Commercial Pesticide Operator in Oregon. Additionally, Mr. Vera and Mr. Cruz were not licensed as Commercial Pesticide Applicators in Oregon. 2. Green Envy, Mr. Vera, and Mr. Cruz intentionally applied SpeedZone on July 9, 2015. 3. SpeedZone is labeled for sod farms, ornamental lawns, and turfgrass weed control at a rate of 1.1 to 1.8 fluid ounces per gallon of water for treatment of approximately 1,000 square feet of turfgrass. 4. Green Envy, Mr. Vera, and Mr. Cruz violated the SpeedZone label by applying 2 oz. per gallon of aqueous mixture, which exceeded the label rate. 5. The Department had diScussed licensing requirements and the over-application of SpeedZone with Green Envy in 2014 during a previous investigation. These ultimate findings of fact are based on the findings of fact. IV. CONCLUSION OF LAW The Oregon Department of Agriculture determines that Felipe Cruz violated Oregon Revised Statutes (ORS) Chapter 634 as follows: VIOLATION NO. 1 Felipe Cruz violated ORS which states A person may not: As a pesticide applicator, work or engage in the application of any classes of pesticides without first obtaining and maintaining a pesticide applicator?s license, or apply pesticides that are not specifically authorized by such license. Specifically, on July 9, 2015, Mr. Cruz applied a pesticide to the landscaped grounds of Willow Brook Apartments located at 14095 SW Walker Rd., Beaverton, Oregon. This property was not owned or controlled by Green Envy, Mr. Ricks, Mr. Vera, or Mr. Cruz. According to the records of ODA, Mr. Cruz was not licensed as a pesticide applicator or trainee. Applying this pesticide onto the property of others without first obtaining a commercial pesticide applicator license through the ODA is in violation of ORS This violation is designated as Violation No. 1. VIOLATION NO. 2 Felipe Cruz violated ORS which states A person may not: As a pesticide applicator or operator, intentionally or willfully apply or use a worthless pesticide or any pesticide inconsistent with its labeling, or as a pesticide consultant or dealer, recommend or distribute such pesticides. Specifically, on July 9, 2015, Mr. Cruz intentionally applied a pesticide to Willow Brook Apartments located at 14095 SW Walker Rd., Beaverton, Washington County, Oregon. This property was not owned or controlled by Green Envy or its applicators. For this application, Green Envy applied SpeedZone, EPA Reg. No. 2217-833. Felipe Cruz Notice of Imposition of Civil Penalty Page 5 of 8 SpeedZone is labeled for sod farms, ornamental lawns, and turfgrass weed control at a rate of 1.1 to 1.8 fluid ounces (02.) per gallon of water for treatment of approximately 1,000 square feet of turfgrass. According to the records provided by Green Envy, Mr. Cruz applied SpeedZone at 2 oz. per gallon of spray mixture. Intentionally applying this pesticide at a rate higher than allowed by the label is intentionally or willfully applying a pesticide inconsistent with its labeling and constitutes one violation of ORS This violation is designated as Violation No. 2. These conclusions are based on the findings of fact and ultimate findings of fact. V. PENALTY and DEPARTMENT ACTIONS The penalty for Violation Nos. 1 through 2 is $1,258.00. The penalty is determined using the criteria in OAR 603-057-0525 to 603-057-0530. NB NB) 1 $370 370) $629.00 $629.00 2 violations $1,258.00 1. N, the number of related violations within a period of three years prior to and including the date of the current violative act, is 1; OAR 2. B, the base penalty is $370.00; OAR The base penalty was determined as follows: a. The MAGNITUDE is CATEGORY I (MAJOR) under OAR OAR b. The GRAVITY is HIGH LEVEL because the pesticide applied was used in an area of high population density; OAR 3. P, the past occurrence of unrelated violations is 0 (zero) because there are no prior unrelated violations. OAR 4. H, the history of taking steps to correct a violation is 2 because Green Envy and Mr. Cruz took no action to correct prior violations; OAR Green Envy was party to an investigation in 2014 during which they were made aware of licensing requirements in Oregon and that the rate of 2 oz. per gallon was an over?application of SpeedZone. Nearly one year later, Green Envy and Mr. Cruz were still making applications without being licensed, and at a higher rate than was allowed. 5. R, preventability of the violation and the presence of negligence or misconduct is 7 because the actions by Mr. Felipe determined to be violative were flagrant; OAR At the time of the pesticide application, Mr. Cruz was employed by Green Envy Landscaping. The Department had previously discussed licensing requirements in Oregon as well as the over-application of SpeedZone with Green Envy. 6. C, cooperativeness is ?2 (negative OAR Green Envy and its representatives were cooperative and readily provided information to the Department regarding the pesticide application made on July 9, 2015. This Final Order will become part of Mr. Cruz?s history for a period of three years. Any future violations of Felipe Cruz Notice of Imposition of Civil Penalty Page 6 of 8 ORS Chapter 634 or OAR Chapter 603, Division 057 within the next three years will subject Mr. Cruz to additional enforcement actions including, but not limited to, civil penalties, product seizure, or license revoca?on. VI. RIGHT TO A HEARING You are entitled to a contested case hearing as provided by statues and rules including, but not limited to: ORS Chapter 183, including 183.413 to 183.470, and ORS 183.745; OAR Chapter 137, Division 3, including OAR 137-003-0501 to 137-003-0700; ORS 634.905; and OAR Chapter 603, Division 57. The request for a hearing must be made in writing to the Department within ten business days of the date that you receive the OAR The request should be made to the attention of: Andrea Sonnen Pesticides Program, Oregon Department of Agriculture 635 Capitol Street NE Salem, Oregon 97301-2532 If you make a timely request for a hearing you will be notified of the date, time and place of such hearing. You will also be given information on the procedures, right of representation and other rights of parties relating to the conduct of the hearing before commencement of the hearing. An administrative law judge from the Office of Administrative Hearings will preside at any hearing. The Director of the Department has authority to issue the final order. Please note that if the recipient of the enforcement notice is a corporation, partnership, limited liability company, unincorporated association, trust, or other entity that is not a natural person, it must be represented in the contested case process by an attorney. Furthermore, the attorney representing such a corporation or other entity must ratify the request for hearing, in writing, within 28 days of the date that the request is received by the agency; OAR 137-003-0550. This provision does not, however, require any entity to be represented by an attorney at any informal conference. You may choose to be represented by counsel; the state will not provide legal counsel in administrative cases such as this, but private legal aid organizations may be able to assist a person with limited financial resources. VII. FINAL ORDER If you do not make a timely request for a hearing, you will waive your right to request a hearing and this order will become final and effective 10 (ten) business days after it is served on you; OAR If you request a hearing but later fail to appear at the hearing, withdraw the request for a hearing, or notify the agency or administrative law judge that you will not appear at the hearing and it is not rescheduled, you will waive your right to a hearing and this order will become final; OAR In these circumstances, the Department will mail you a notice stating when this order became final. The Department has designated the relevant portions of its files on the subject of this matter, including all materials that you have submitted relating to this matter, as the record in this case for the purpose of proving a prima facie case upon default. If this order becomes final, the Department will issue a judgment against you and a civil penalty in the amount set out in this Notice will become due and payable 70 (seventy) days after the order becomes final. ORS 183.745. Your check or money order should be made payable to the Oregon Department of Agriculture and sent to: Oregon Department of Agriculture Felipe Cruz Notice of Imposition of Civil Penalty Page 7 of 8 635 Capitol Street NE Salem, Oregon 97301-2532 When any final order regarding this Notice becomes final you will have the right to appeal the order to the Oregon Court of Appeals pursuant to ORS 183.482. To appeal you must file a petition for judicial review with the Court of Appeals within 60 days from the date this order becomes final. If you do not file a petition forjudicial review within this time period you will lose your right to appeal. J, 305? dayof Susi ,2016 DIRECTOR OREGON DEPT. ICULTURE NOTE: Copies of the Department's investigation report will be provided upon request. The request must be made in writing. There may be a monetary charge for some reports. The written request should be made to: Oregon Department of Agriculture, Pesticides Program, ATTN: Andrea Sonnen, 635 Capitol Street NE, Salem, Oregon 97301-2532. NOTICE TO ACTIVE DUTY SERVICEMEMBERS: Active duty servicemembers have a right to stay these proceedings under the federal Servicemembers Civil Relief Act. For more information contact the Oregon State Bar at 800-452-8260, the Oregon Military Department at 800?452-7500, or the nearest United States Armed Forces Legal Assistance Office through Felipe Cruz Notice of Imposition of Civil Penalty Page 8 of 8 Felipe Cruz Oregon Department of Agriculture, Pesticides Case No. 160051 Notice of Contested Case Rights and Procedures Pursuant to ORS you are entitled to be informed of the following: 1. Notice of Contested Case Rights and Procedures Time and place of hearing. The time and place of hearing is or will be set forth in the Notice of Hearing issued by the Administrative Law Judge (ALJ) after the prehearing conference. Issues to be considered at hearing. The issues to be considered at hearing are those set forth in the notice issued by the Oregon Department of Agriculture (ODA), entitled Notice of Imposition of Civil Penalty and Proposed/Final Order (NICP), and dated Tum; @?otL, and those issues related thereto that are properly before the presiding officer to this proceeding. Law that applies. The matter set for hearing is a contested case. The hearing will be conducted as provided in Chapter 183 and 634 of the Oregon Revised Statutes the administrative rules of the ODA, OAR 603-057-0500 through 603- 057-0515, and the Attorney General's Office of Administrative Hearing Rules, OAR 137-003-0501 to 137-003-0700. Other laws involved include: ORS Chapters 561, 570, and 616; additional rules of the ODA, OAR 603-057; Title 7, Chapter 6, Subchapter ll of the United States Code; and Title 40, Parts 152, 156, and 180 of the Code of Federal Regulations. Right to attorney. You may be represented by an attorney at the hearing. Most persons are represented by counsel for hearings involving ORS 634. You are not required to be represented by counsel, unless you are a corporation, LLC, partnership, etc., in which case you are required to be represented by an attorney at the hearing, and more immediately, your request for a hearing must be ratified by an attorney within 28 days of the agency?s receipt of the request, OAR 137- 003-0550. if you are not represented at the hearing and during the hearing you determine that representation by an attorney is necessary, you may request a recess to allow you an opportunity to secure the services of an attorney. The hearing ALJ will decide whether to grant such a request. The ODA will be represented by an attorney. Legal aid organizations may be able to assist a party with limited financial resources. Administrative Law Judge. The person presiding at the hearing is known as the administrative lawjudge (ALJ). The ALJ will rule on all matters that arise at the hearing, subject to agency consideration of matters transmitted for agency decision under OAR 137-003-0635 or matters subject to agency review under OAR 137-003-0640 or OAR 137-003-0570. The ALJ will be assigned by the Chief ALJ from the Of?ce of Administrative Hearings (OAH). The OAH consists of employees of, and independent contractors with, the Chief ALJ. The ALJ does not have the authority to make the ?nal decision in the case. The ?nal determination will be made by the Director of the ODA. Discovery. If the agency or the ALJ authorizes discovery, the agency or the ALJ shall control the methods, timing and extent of discovery. Discovery is permitted in this proceeding. Discovery is permitted as provided in OAR 137-003-0570, OAR 137-003-0572, and OAR 137-003-0573. Witnesses. A witness must testify under oath or af?rmation to tell the truth. The ODA or the ALJ will issue subpoenas for witnesses on your behalf upon a showing that their testimony is relevant to the case and is reasonably needed by you to establish your position. If you are represented by an attorney, your attorney may issue subpoenas for attendance of witnesses at hearing. Payment of witness fees and mileage to the person subpoenaed is your responsibility. Order of evidence. A hearing is similar to a court proceeding but is less formal. Its general purpose is to determine the facts and whether the proposed action is appropriate. The order of presentation of evidence is normally as follows: a. Testimony of witnesses and other evidence of the ODA in support of its proposed action. b. Testimony of your witnesses and your other evidence. c. Rebuttal evidence by the ODA and by you. Burden of presenting evidence. The burden of presenting evidence to support an allegation or position rests upon the proponent of the allegation or position. If you have the burden of proof on an issue, or if you intend to present evidence on an issue in which the agency has the burden of proof, you should approach the hearing prepared to present the testimony of witnesses, including yourself, and other evidence that will support your position. All witnesses are subject to cross- examination and also to questioning by ALJ. Page 1 10. 11. 12. 13. 14. 15. 16. 17. Notice of Contested Case Rights and Procedures Admissible evidence. Relevant evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs is admissible and will be received. Hearsay evidence is not automatically excluded. Rather, the fact that it is hearsay generally affects how much reliance the ALJ and the Director of the ODA will place on it in reaching a decision. There are four kinds of evidence: a. Knowledge of the agency or ALJ. The agency or ALJ may take ?official notice" of facts based on the agency?s or knowledge in a specialized ?eld. This includes notice of general, technical or scientific facts. The agency or ALJ may also take "judicial notice" of a fact that is not subject to reasonable dispute in that it is generally known or is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. You will be informed if the agency or ALJ takes "official notice" or "judicial notice" of any fact and you will be given an opportunity to contest any facts so noticed. b. Testimony of witnesses. Testimony of witnesses, including you, who have knowledge of the facts may be received in evidence. c. Writings. Written documents including letters, maps, diagrams and other written material may be received in evidence. d. Experiments, demonstrations and similar means used to prove a fact. The results of experiments and demonstrations may be received in evidence. Objections to evidence. Objections to the admissibility of evidence must be made at the time the evidence is offered. Objections are generally made on one of the following grounds: a. The evidence is unreliable; b. The evidence is irrelevant or immaterial and has no tendency to prove or disprove any issue involved in the case; c. The evidence is unduly repetitious and duplicates evidence already received. Continuances. There are normally no continuances granted at the end of the hearing for you to present additional testimony or other evidence. However, if you can show that the record should remain open for additional evidence, the ALJ may grant you additional time to submit such evidence. Record. A record will be made of the entire proceeding to preserve the testimony and other evidence for appeal. This may be done by use of a tape or digital recorder or court reporter. The record is generally not transcribed, unless there is an appeal to the Court of Appeals. However, you may obtain a copy of the tape recording upon payment of the costs of making a copy of the tape. if a court reporter is used, you may obtain a transcript or a copy of the court reporter's transcript upon payment of a transcription fee or other fee that the parties may agree upon. Proposed Order and Exceptions. The ALJ will issue a proposed order in the form of findings of fact, conclusions of law and recommended agency action. You will be provided with a copy and you will be given an opportunity to make written objections, called "exceptions," to the ALJ's recommendations. You will be notified when exceptions to the proposed order must be filed. You will be notified when you may appear and make oral argument to the agency. Final Order. The agency will render the final order in this case. The agency may modify the proposed order issued by the ALJ. If the agency modifies the proposed order in any substantial manner, the agency in its order will identify the modi?cations and will provide an explanation as to why the agency made the modifications. The agency may modify a proposed finding of "historical" fact only if the proposed ?nding is not supported by a preponderance of the evidence in the record. Appeal. If you wish to appeal the final order, you must file a petition forjudicial review with the Oregon Court of Appeals within 60 days after the ?nal order is served upon you. See Oregon Revised Statutes 183.482. Notice to Active Duty Servicemembers. Active duty servicemembers have a right to stay these proceedings under the federal Servicemembers Civil Relief Act. For more information contact the Oregon State Bar at 800-452-8260, the Oregon Military Department at 800-452-7500, or the nearest United States Armed Forces Legal Assistance Of?ce through Page 2