STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1223

)

RONNIE JAMES McLEAN, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Crestview, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on November 1, 1983. The Division of Administrative Hearings received a transcript of proceedings on November 21, 1983. The parties were represented by counsel:

APPEARANCES

For Petitioner: Maureen L. McGill, Esquire

160 Governmental Center Pensacola, Florida 32501

For Respondent: Joseph S. Farley, Jr., Esquire

Mahan, Mahan & Farley

315 East Adams Street Jacksonville, Florida 32202

By administrative complaint dated March 4, 1983, petitioner alleged that it has jurisdiction over respondent "by virtue of the provisions of Chapter 482, Florida Statutes and Chapter 10D-55, Florida Administrative Code" and that respondent, in violation of those statutes and rules "[o]n March 24, 1982. .

.[while] representing Donald and Bales, told Mrs. Aggie Nelson, Rt. #1, Box 248, Chipley, Florida, that her house was badly infested with subterranean termites and beetles and sold her a control service and contract for $230 and marked the contract for 'prevention'. . .[even though it was subsequently] determined that the house had not been badly infested with either subterranean termites or beetles and that the house had not been treated according to the provisions of any currently registered termiticide chemical label"; that respondent "[o]n April 9, 1982. . .[while] representing Donald and Bales, told Mrs. Mardra Stewart. . .that her house was badly infested with subterranean termites and powder-post beetles and sold her a control service and contract for $225 and marked the contract for 'prevention'. . .[even though it was subsequently] determined that the house had not been badly infested with either subterranean termites or powder-post beetles and that the house had not been treated according to the provisions of any currently registered termiticide chemical label"; that respondent "[o]n September 15, 1902. . .[while] representing Donald and Bales, told Mrs. Anise Phillips. . .that her house was infested with powder-

post beetles and sold her a control service for $150 and marked the contract for 'prevention'. . .[even though it was subsequently] determined that the house had not been infested with powder-post beetles and that a control treatment was unnecessary," all in violation of Sections 482.161(1)(a), (e) and/or (f), and 482.191(1), Florida Statutes and Rules 10D-55.104(4) and 10D-55.106(1), Florida Administrative Code.

FINDINGS OF FACT

1. On August 25, 1982, petitioner received an application for pest control business license and identification cards, Petitioner's Exhibit 1, signed by Perry Commander, requesting licensure for Donald and Bales Exterminating Company, Inc., at 615 East Chestnut Avenue in Crestview, Florida. Ronnie James McLean was listed among those on whose behalf identification cards were sought. Petitioner granted this application on September 22, 1982, issuing License No.

343. Since approximately 1974, there have been applications for licenses at this location.

1. Based on an application not in evidence signed by Byron Bales sometime before August 17, 1983, petitioner issued an emergency certificate.

   
   

2. On August 17, 1983, petitioner received application form signed by Byron Bales, which petitioner returned to Mr. Bales for more information, and received a second time on August 29, 1983. Petitioner's Exhibit 2. The form gave Donald and Bales Exterminating Co., Inc., as the applicant's firm name and 615 East Chestnut Avenue in Crestview as the firm's address. Ronnie James McLean was listed among those on whose behalf identification cards were sought. Perry Commander's name was crossed out, as was his designation as "Certificate Holder." Nobody else was designated certificate holder, and nobody was listed as a certified operator. This application, which was made on a multipurpose form, has not been acted on. Boxes were printed next to various categories including "Initial (New) License," "Change-of-Business Ownership License" and "Renewal License." No box was checked, however.

   
   

3. On February 4, 1976, Aggie B. Nelson of Chipley, Florida contracted with Donald and Bales Exterminating Co., Inc., (Donald & Bales) for treatment of the foundation of her two-bedroom frame house for termites and agreed to pay $30 a year thereafter for annual inspections and preventive sprayings. Petitioner's Exhibit No. 3. The contract gave a Crestview address for Donald & Bales. On March 24, 1982, respondent arrived at the Nelson home in a truck emblazoned with the Donald & Bales logo and sprayed underneath Ms. Nelson's house. He emerged with five or six bugs in his hand that he told Ms. Nelson were beetles. He said the house needed to be sprayed for beetles and offered to do it while he was there fob $230. Ms. Nelson allowed as how that would sure put her in a bind, but agreed to have him spray. Mr. McLean and Ms. Nelson each signed a Donald & Bales form contract on which Mr. McLean checked the box beside the word "Prevention" but not the box beside the word "Infested." The contract showed a Crestview address for Donald & Bales. Petitioner's Exhibit No. 4. Ms. Nelson wrote a check for $230 to Ronnie J. McLean personally. Later she began to inquire and eventually arranged for William E. Page, an entomologist in petitioner's employ, to inspect her house. At the hearing, Mr. Page was qualified as an expert in pest control and testified without contradiction that there was no sign of there having been a beetle infestation at Ms. Nelson's home at any time.

   
   

4. Mardra Stewart was at home in her three-bedroom log house down below Orange Hill from Chipley when Ronnie J. McLean stopped by on April 19, 1982.

   "He sent some of the men he had with him under the house, and they c[a]me out with a handful of the sills," wood that appeared to have been eaten into by termites. Respondent told Ms. Stewart she should have her house sprayed because insects "had eat it up under there." (T. 89) She agreed to the spraying and paid respondent $225 for spraying. Mr. McLean and Ms. Stewart each signed a Donald & Bales form contract on which Mr. McLean checked the box beside the word "Prevention" but not the box beside the word "Infested." The contract showed a Crestview address for Donald & Bales. Petitioner's Exhibit No. 8. The next day Ms. Stewart called the sheriff and eventually she telephoned petitioner's Jacksonville offices. Mr. Page inspected her house and found no evidence of an active or recent infestation of insects of any kind, although he did discover evidence of old powder-post beetle damage. In his opinion, the Stewart house probably needed treatment.

   
   

5. On September 15, 1982, Mrs. J. C. Phillips telephoned her daughter, Margaret Powell, and asked her to come to the Phillips house on Bayshore Drive in Niceville "to write the check for the exterminator." (T. 94) By the time Ms. Powell arrived, the spraying had been done. Ms. Powell asked respondent and his companion(s) to show her some beetles. When they were unable to do so, she declined to pay, even after respondent referred her to Byron Bales who was at work next door. Mr. McLean and Ms. Phillips each signed a Donald & Bales form contract on which Mr. McLean checked the box beside the word "Prevention," but not the box beside the word "Infested." Petitioner's Exhibit No. 9. The contract indicated prophylactic treatment of the foundation for powder-post beetles for $150, and called for annual inspections and resprayings for $45 per year. Petitioner's Exhibit No. 9.

   
   

6. On September 22, 1982, when Mr. Page inspected the Phillips house, he found no sign of any infestation, new or old, by beetles (or termites). When tenting is not resorted to, the treatment for beetles is applying Lindane with a power sprayer in such a concentration that the odor lasts about a month. This odor was not present when Mr. Page inspected, one week after respondent's visit.

   
   

7. Although Mr. Bales did not discharge Mr. McLean when he first learned that money had been diverted, "not on the first one. . ." (T. 167), he had fired Ronnie James McLean by the time of the hearing, because "he stole money from me." (T. 165) He accomplished this theft by selling contracts and cashing checks. (T. 167) Except for Petitioner's Exhibit 7, all the Donald & Bales form contracts state, "Please make check to representative." Having customers write checks in favor of the individual exterminator is "company policy."

   
   

8. The Hearing Officer has had the benefit of petitioner's proposed recommended order and memorandum of law in preparation of the foregoing Findings of Fact. Proposed findings have been adopted, in substance, for the most part. To the extent they have been rejected, they have been deemed unsupported by the weight of the evidence, immaterial, cumulative or subordinate.

   
   

   CONCLUSIONS OF LAW

   
   

9. Petitioner is authorized to "fine the licensee. . .[or] identification cardholder,. . .or may suspend, revoke, or stop the issuance or renewal of any.

   . .license, or identification card. . .upon. . .the following grounds":

   
   

   1. Violation of any rule of the department or any provision of this chapter.

      1. Knowingly making false or fraudulent claims; knowingly misrepresenting the effects

         of materials or methods; or knowingly failing to use materials or methods suitable for the pest control undertaken.

      2. Performing pest control in a negligent manner.

      
      

      Section 482.161(1), Florida Statutes (1982 supp.). The rules which petitioner alleges that respondent has violated provide:

      
      

      No licensee or its employees shall represent to any property owner or occupant of any structure that any specific pest is infesting said property, structure, or lawn or ornamental thereof, or that it requires a specific treatment for pest control when an infestation, or strongly supporting evidence of such infestation, does not exist.

      Exception: This prohibition shall not apply to bona fide preventive treatments which imply no infestation per se.

      
      

      Rule 10d-55.104(4), Florida Administrative Code.

      
      

      Only those pesticides having federal and/or state label registration clearance shall be used. It shall be unlawful to use any registered pesticide in a manner inconsistent with its labeling, except as provided by EPA or the Florida Department of Agriculture and Consumer Services.

      
      

      Rule 10D-55.106(1), Florida Administrative Code.

      
      

      For purposes of the pest control laws, an "identification cardholder" is defined as a person to whom a current card has been issued. . ." Section 482.021(9), Florida Statutes (1982 Supp.).

      
      

      Corporation Licensed at Crestview

      
      

10. Petitioner proved that it had issued a license to Donald and Bales Exterminating Company, Inc., on September 22, 1982, for a pest control business at 615 East Chestnut Avenue in Crestview, 1/ and that respondent McLean was an identification cardholder as of that date. Section 482.071, Florida Statutes (1982 Supp.), contemplates annual, ministerial renewal of pest control business licenses. In August of 1983, petitioner received an application for renewal from Donald & Bales.

    
    

11. With respect to sufficient 2/ renewal applications timely filed, Section 120.60(5), Florida Statutes (1981), provides that "the existing license shall not expire until the application has been finally acted upon by the agency. . ." It follows that the license petitioner issued to Donald and Bales Exterminating Company, Inc., on September 22, 1982, and the identification card granted on that date to respondent McLean remained in effect, pending final agency action on the application for renewal, which, according to uncontroverted testimony, has yet to be taken. But Section 482.091(2), Florida Statutes (1982 Supp.), provides that "[a]n identification card shall automatically expire when the holder thereof ceases to be an employee of the licensee which secured the

    card," and the evidence showed that respondent has "cease[d] to be an employee of the licensee."

    
    

    Burden on Petitioner

    
    

12. License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487,

    491 (Fla. 1973); Kozerowitz v Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den. 1980). At the formal hearing, petitioner had the burden to establish its jurisdiction and to show by clear and convincing evidence that respondent committed the acts alleged in the administrative complaint. Walker

    v. State, 322 So.2d 612 (Fla. 3d DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). See The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970).

    
    

    No Jurisdiction

    
    

13. The evidence showed that Ronnie James McLean left the employ of Donald & Bales. When he did so, his identification card automatically expired.

Section 482.091(2), Florida Statutes (1982 Supp.). He is no longer an "identification cardholder," and there is no longer any statutory basis for action against him by Petitioner. It is not necessary to decide, therefore, the significance of petitioner's failure to show that he held an identification card at the time of the transactions in issue.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner dismiss the administrative complaint filed against respondent as moot.

DONE AND ENTERED this 15th day of December, 1983, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1983.

ENDNOTES

1/ Although the evidence showed that pest control business licenses had issued for the same location for prior years back to 1974, the record evidence did not show to whom those licenses issued.

2 The application for renewal filed by Donald and Bales Exterminating Company, Inc., does not list the name of a certified operator, but petitioner did not request such a name within 30 days or propose to deny the application on that ground within 90 days. See Section 120.60(2), Florida Statutes (1981).

COPIES FURNISHED:

Maureen L. McGill, Esquire

160 Governmental Center Pensacola, Florida 32501

Joseph S. Farley, Jr., Esquire Mahan, Mahan & Farley

315 East Adams Street Jacksonville, Florida 32202

Mr. David Pingree Secretary

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Petitioner,

vs. CASE NO. 83-1223

RONNIE JAMES McLEAN,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (D0AH) in the above-styled case has submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.

1. OPHEN - meaning HRS Office of Entomology - filed Exceptions to the Recommended Order.

A copy of OPHEN's Exceptions is attached hereto as Exhibit A.

HRS STATEMENT AND RULING ON THE EXCEPTIONS

(AA) OPHEN Exceptions To Conclusions of Law - The Exceptions have merit and are sustained. Expiration of Mr. McLean's identification card does not divest HRS of jurisdiction to inflict a revocation and the associated penalty therewith, namely, the ineligibility of Mr. McLean for a new card for three (3) years. HRS emphasizes the factual finding that Mr. McLean committed a fraudulent act as late as September 15, 1982. At that time, an application for his identification card was pending. The conclusion of law stated by the Hearing Officer is rejected.

FINDINGS OF FACT

The Department hereby adopts and incorporates by reference the findings of fact made by the Hearing Officer.

CONCLUSIONS OF LAW

The overall conclusions of law stated by the Hearing Officer are rejected. The conclusions amount to an erroneous or otherwise inappropriate interpretation and application of law. The correct interpretation and application, which compel a different result, is set out in the Exceptions filed by OPHEN and the HRS statement and Ruling of those Exceptions. Accordingly,

It is ADJUDGED that the pest control identification card held by Ronnie James McLean is REVOKED.

ORDERED this 7th day of May, 1984, in Tallahassee, Florida.

DAVID H. PINGREE

Secretary

Copies furnished to:

Maureen L. McGill, Esquire Department of HRS

160 Governmental Center Pensacola, Florida 32501

Joseph S. Farley, Jr., Esquire

315 East Adams Street Jacksonville, Florida 32202

Robert T. Benton, II, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Harden King, Agency Clerk Department of HRS

1323 Winewood Boulevard

Suite 407

Tallahassee, Florida 32301

Docket for Case No: 83-001223

Orders for Case No: 83-001223