Ore 011 Department of Agriculture 635 Capitol St NE Kate Brown, Governor Salem, OR 97301-2532 PESTICIDES PROGRAM TEL: 503-986-4635 CERTIFIED MAIL May 312, 2016 Gumercindo Gonzalez Jr. dba Gonzalez Farms PO. Box 401 Forest Grove, Oregon 97116 Re: NOTICE OF IMPOSITION OF CIVIL PENALTY and ORDER, ODA PESTICIDES CASE NO. 160052 This is a Notice of Imposition of Civil Penalty and Proposed/Final Order that is based on a pesticide investigation conducted by the Pesticides Program of the Oregon Department of Agriculture. This NOTICE addresses violation 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. ?zz/257.52% 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. 160052 In the Matter of: Gumercindo Gonzalez Jr. dba Gonzalez Farms an agricultural grower The Director of the Oregon Department of Agriculture (ODA or the Department) hereby assesses a civil penalty in the amount of $814.00, against Gumercindo Gonzalez Jr. dba Gonzalez Farms (Gonzalez Farms) 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: Oregon Revised Statutes (ORS) Chapters 60 (corporations), 183 (administrative law), 561 (agriculture), 634 (pesticides), and 648 (assumed business names); Oregon Administrative Rules (OAR) Chapter 137, division 3 (contested case procedures); and OAR Chapter 603, division 57 (pesticide control). Federal Insecticide, Fungicide, and Rodenticide Act, 7 United States Code (USC) 136 et seq; and 40 Code of Federal Regulations (CFR) Parts 152 through 180. 2. Oregon?s pesticide control law is known as the State Pesticide Control Act and is codified in ORS Chapter 634. 3. ORS 634.006(8) states: ?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; ?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; ?lnsecticide? 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 shall not include substances to the extent that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants or soil amendments; or Gumercindo Gonzalez Jr. dba Gonzalez Farms Civil Penalty Page 2 of 9 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 may declare to be a pest, which may infest or be detrimental to vegetation, humans, animals, or be present in any environment thereof." 4. ORS 634.006(22) states ?Restricted-use pesticide? means any pesticide or device that the department has found and determined to be so injurious or detrimental to humans, pollinating insects, bees, animals, crops, wildlife, land or environment, other than the pests it is intended to prevent, destroy, control or mitigate, that additional restrictions are required.? 5. ORS 634.372(4) states person may not: Perform pesticide application activities in a faulty, careless or negligent manner.? 6. ORS 634.006(5) states that ?Private applicator? means a person who uses or supervises the use of any pesticide, classified by the department as a restricted-use or highly toxic pesticide, for the purpose of producing agricultural commodities or forest crops on land owned or leased by the person.? 7. ORS Chapter 634 authorizes the Oregon Department of Agriculture to issue pesticide licenses, including licenses for private applicators. ORS 634.057 and 634.142. 8. 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.? 9. 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. 10. Oregon Administrative Rules (OAR) Chapter 603 Division 057 is entitled Pesticide Control and implements provisions of the State Pesticide Control Act, ORS Chapter 634. 11. OAR 603-057-0500 et 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.? II. FINDINGS OF FACT ODA Pesticides Case No. 160052 1. This Notice of Violation results from a pesticide use investigation conducted by ODA in response to a July 28, 2015 email from Kate Allen (Ms. Allen), manager of ODA Market Access and Certification Program, notifying Pesticides that she received pesticide residue test results from a strawberry grower showing a detection of a pesticide that is not registered for use on strawberries. The person in contact with ODA regarding this matter was Gumercindo Gonzalez Jr. (Mr. Gonzalez). 2. Mr. Gonzalez is an agricultural grower operating under the assumed business name of Gonzalez Farms, with a principal place of business listed as 6800 SW Winters Road, Cornelius, Gumercindo Gonzalez Jr. dba Gonzalez Farms Civil Penalty Page 3 of 9 Washington County, Oregon. Mr. Gonzalez?s business, Gonzalez Farms, has a berry growing operation at 4244 SW Golf Course Road, Cornelius, Washington County, Oregon. This location may be referred to herein as the berry farm. 3. On June 22, 2015 samples of strawberries collected from the berry farm and subsequently analyzed by Pacific Agricultural Laboratory, Portland, Oregon (PAL). Ms. Allen emailed Pesticides the analytical results she had received, which showed cypermethrin detected at 0.47 parts per million (ppm) in the strawberries sampled. 4. Consulting Title 40 of the Code of Federal Regulations (CFR), there are no tolerances for cypermethrin on strawberries (40 CFR 180.418). 5. On July 30, 2015, after making arrangements with Mr. Gonzalez the previous day, ODA visited the berry farm. During this visit Mr. Gonzalez provided his pesticide application records and guided the investigator around the farm. 6. Mr. Gonzalez indicated the field where Albion and Honeoye strawberries had been harvested in 2015 (Albion/Honeoye field). This was the only field on the farm from which they had harvested and sold strawberries this year and they were the strawberries, which had been analyzed by PAL. Most of the Albion/Honeoye field no longer had strawberry plants, as Gonzalez Farms was finishing up with completely tearing out the plantings for replacement with another crop. Mr. Gonzalez explained that these plants were two or three years old, which was about what was expected for a useful life with this variety. 7. To the north and south of the Albion/Honeoye field were blackberries which Mr. Gonzalez said he had treated with a Mustang Max(x) insecticide (containing zeta?cypermethrin) just before using the same sprayer to apply different products to the Albion/Honeoye field. The blackberries were sprayed with Mustang Max(x) on June 16, 2015, this application may be referred to as the blackberry application. Mr. Gonzalez indicated that he thought he had neglected to clean out the sprayer between the applications. He said this is usually not an issue because the products are usually labeled for the subsequent treatment site. 8. Another strawberry field was across a farm road to the west; Mr. Gonzalez explained that this field had Hood and Albion varieties in it (Hood/Albion field). The Hood/Albion field was included in the records that Mr. Gonzalez had provided to ODA. 9. On July 30, 2015, ODA collected a sample of the strawberry fruit from the Albion/Honeoye field (AUF160052-1) to be analyzed for cypermethrin residue. 10. On August 17, 2015, ODA returned to Gonzalez Farms to sample from the Hood/Albion field. The following samples were collected: Sample Description AUF160052-2 strawberry fruit, Albion variety, north AUF160052-3 strawberry fruit, Albion variety AUF160052-4 strawberry foliage, Hood variety These samples were secured and delivered to ODA Laboratory Services, Portland, Oregon (the ODA lab), which subsequently analyzed them for cypermethrin. Mr. Gonzalez was asked to postpone any harvest until the ODA lab provided its analytical results for the fruit samples and he agreed. 11. On August 20, 2015 the ODA lab issued the following analytical results, which capture both Gumercindo Gonzalez Jr. dba Gonzalez Farms Civil Penalty Page 4 of 9 alpha- and zeta-cypermethrin. Sample Description Detected cypermethrin AUF180052-1 fruit, Albion, harvested field 0.095 AUF160052-2 fruit, Albion north (unharvested) <0.010 AUF160052-3 fruit, Albion (unharvested) <0.010 AUF180052-4 foliage, Hood 0.018 Analysis results are given in parts per million (ppm). For all analyses the Method Reporting Level (MRL) is 0.010 ppm. 12. Mr. Gonzalez was contacted to discuss the analytical results. The following table compares dates of sampling and detection levels: Sample Description Sample date Detected cypermethrin fruit, Albion/Honeoye 6-22-2015 0.47 AUF160052-1 fruit, Albion/Honeoye 7-30-2015 0.095 AUF160052-2 fruit, Albion north 8-17-2015 <0.010 AUF160052-3 fruit, Albion 8-17-2015 <0.010 AUF160052-4 foliage, Hood 8-17-2015 0.018 Mr. Gonzalez stated that he thought the cypermethrin detection on the Hood/Albion field may have been due to the same tank carryover incident that had caused the deposition onto the Albion/Honeoye field of strawberries that had first presented cypermethrin. He and ODA noted the timing of the two sample collections, and considered that between sampling events there may have been significant degradation. The berry farm was the only likely source of cypermethrin near the strawberries. 13. Restricted use pesticide (RUP) products may only be purchased and used by a licensed pesticide applicator. A license review indicated Mr. Gonzalez was licensed by ODA as a Private Pesticide Applicator, AG-L0013259PAL at the time of the incident. This license was issued in February of 1986. Mr. Gonzalez explained that he performs or supervises all agricultural pesticide applications on the farm. 15. A label review of the product used on the blackberries, "Mustang Max" (how the product was stated in the pesticide record) could refer to either of two FMC Corporation insecticide products: Mustang Max, EPA Reg. No. 279-3249, or Mustang Maxx, EPA Reg. 279-3426. Differences are in the spelling, a slight difference in active ingredient concentration, and in the synonym used for the active ingredient, which is commonly called zeta-cypermethrin. Both of these products are RUPs. Both products are labeled for use on the berries crop group, which does not include strawberries. No cypermethrin product is labeled for use on strawberries in the United States. ULTIMATE FINDINGS OF FACT 1. On June 16, 2015 blackberries located north, and south of the Albion/Honeoye and the Hood/Albion strawberry fields were sprayed with Mustang Max(x) by a licensed private pesticide applicator, Gumercindo Gonzalez Jr. dba Gonzalez Farms located at 4244 SW Golf Course Road, Cornelius, Oregon. 2. Mr. Gonzales said he had treated the blackberries with a Mustang Max(x) insecticide (containing zeta-cypermethrin) just before using the same sprayer to apply different products to the Albion/Honeoye field and the Hood/Albion field. Mr. Gonzalez indicated he thought he had neglected to clean out the sprayer between the applications and that this failure led to an inadvertent deposition of cypermethrin onto the two strawberry fields. The berry farm was the only likely source of cypermethrin Gumercindo Gonzalez Jr. dba Gonzalez Farms Civil Penalty Page 5 of 9 near the two strawberry application sites. 3. Review of the labels Mustang Max, EPA Reg. No. 279-3249, and Mustang Maxx, EPA Reg. 279-3426, show they are RUPs and the products are labeled for use on blackberries. They are not labeled for strawberries. 4. Analytical results show the presence of cypermethrin on samples collected from Gonzalez Farms. In consulting Title 40 of the Code of Federal Regulations (CFR), it was confirmed that there are no established tolerances for cypermethrin on strawberries (40 CFR 180.418). These ultimate findings of fact are based on the findings of fact. IV. CONCLUSION OF LAW It is the determination of the Oregon Department of Agriculture that Gumercindo Gonzalez Jr. dba Gonzalez Farms violated Oregon Revised Statutes (ORS) Chapter 634 as follows: VIOLATION NOS. 1 through 2 Gumercindo Gonzalez Jr. dba Gonzalez Farms violated ORS which states that A person may not: Perform pesticide application activities in a faulty, careless or negligent manner. On June 16, 2015 Mr. Gonzalez, doing business as Gonzalez Farms, used a ground sprayer to apply a pesticide product to blackberries on the berry farm at 4244 SW Golf Course Road, Cornelius, Washington County, Oregon. The pesticide product was Mustang Max, EPA Reg. No. 279-3249, or Mustang Maxx, EPA Reg. No. 279-3426, both of which are RUPs with the active ingredient cypermethrin. Mr, Gonzalez neglected to clean out the sprayer following this application and before the next application of a different pesticide to two strawberry fields on the berry farm, Albion/Honeoye and Hood/Albion. Failure to properly clean the equipment between applications led to a deposition of cypermethrin on both of the strawberry fields. Review of the labels for Mustang Max, EPA Reg. No. 279-3249, and Mustang Maxx, EPA Reg. No. 279-3426, shows the products are labeled for use on blackberries. There is no use listed for strawberries, and strawberries have no established tolerance for cypermethrin (40 CFR 180.418). No other likely source of cypermethrin was found in the area, the only likely source of the detected cypermethrin was the blackberry application. Applying a pesticide without taking sufficient measures to clean equipment, where the pesticide is then deposited onto two fields of a crop not listed on the pesticide product label as a permitted treatment site, is pesticide activity conducted in a faulty, careless or negligent manner, constituting two violations of ORS This conclusion is based on the findings of fact and ultimate findings of fact. V. PENALTY The penalty for Violation Nos. 1-2 is $814.00. The penalty is determined using the criteria in OAR 603- 057-0525 to 603-057-0530. NB NB) $370.00 $407.00 $407.00 2 violations $814.00 Gumercindo Gonzalez Jr. dba Gonzalez Farms Civil Penalty Page 6 of 9 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 2; 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 b. The GRAVITY is HIGH LEVEL because the pesticide applied was designated as a restricted use pesticide, OAR and because usage resulted in a pesticide or metabolite on a cr0p for which there is no tolerance; OAR 603?057- 3. P, the past occurrence of unrelated violation is 0 because of no prior violation or insufficient evidence on which to base a finding. OAR 4. H, the history of taking steps to correct a violation is 0 (zero) because there is insufficient information on which to base a finding; OAR 5. R, preventability of the violation is 3 because Gonzalez Farms? actions were determined to be violative were reasonably avoidable. Mr. Gonzalez was an experienced grower and user of agricultural pesticides, and had been licensed by ODA as a private applicator since 1986. He knew or should have known to properly rinse out his sprayer before spraying the strawberries. 6. C, cooperativeness is (negative OAR Gonzalez Farms and its representatives were cooperative and readily provided information to the Department regarding the pesticide application made on June 16, 2015 became licensed in January 2012. Any final order regarding this Notice of Imposition of Civil Penalty will become a part of Gonzalez Farms? history for a period of three years. Any future Violations of ORS Chapter 634 or OAR Chapter 603, division 057 within the next three years will subject Gonzalez Farm to additional enforcement actions including, but not limited to, civil penalties, product seizure, or license revocation. 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: Ann Ketter 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 Gonzalez Jr. dba Gonzalez Farms Civil Penalty Page 7 of 9 from the Office of Administrative Hearings will preside at any hearing. The Director of the Department has authority to issue the final order. 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 or individual, it must be represented in the contested case process by an attorney unless othenivise authorized by law. 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. Individuals may but are not required 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 137-003- 0672(2). 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 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. DATED this 30 day of My . 2016 .011 th coax-t ll DIRTEICTOR kg 29?? OREGON DEPT. OF GRICULTURE Gumercindo Gonzalez Jr. dba Gonzalez Farms Civil Penalty Page 8 of 9 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. TO ACTIVE DUTY 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 Gumercindo Gonzalez Jr. dba Gonzalez Farms Civil Penalty Page 9 of 9 Gumercindo Gonzalez Jr. dba Gonzalez Farms Oregon Department of Agriculture, Pesticides Case No. 160052 Notice of Contested Case Rights and Procedures Pursuant to ORS you are entitled to be informed of the following: 1 . 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 . and those issues related thereto that are properly before the presiding of?cer 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 Of?ce 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 rati?ed 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 ?nancial 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 final decision in the case. The ?nal determination will be made by the Director of the ODA. Discovery. Ifthe 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 affirmation 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. Notice of Contested Case Rights and Procedures Page 1 10. 11. 12. 13. 14. 15. 16. 17. 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 "of?cial 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 "of?cial 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. 0. 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 ?ndings 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 ?led. You will be noti?ed 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 ?nding of "historical" fact only if the proposed finding is not supported by a preponderance of the evidence in the record. Appeal. If you wish to appeal the ?nal 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 Notice of Contested Case Rights and Procedures Page 2