STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) AGRICULTURE AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 86-3953

)

BOBBY YON, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on February 10, 1987, a formal hearing was held in this case. The location of the hearing was Blountstown, Florida. The authority for the conduct of the hearing is found in Section 120.57(1), Florida Statutes. Charles C. Adams served as the hearing officer. At the conclusion of the hearing, the parties were granted an opportunity to submit proposed recommended orders. Counsel for Petitioner has written and indicated that Petitioner does not wish to file a proposed recommended order. Respondent has not indicated his desire in this regard; however, the time allotted for the submission of a proposed recommended order has expired. Therefore, this recommended order is being entered without the benefit of remarks of the parties.

APPEARANCES

For Petitioner: Frank A. Graham, Jr., Esquire

Resident Counsel

Florida Department of Agriculture and Consumer Services

Mayo Building

Tallahassee, Florida 32399-0800

For Respondent: Bobby Yon

Post Office Box 8 Altha, Florida 32421

ISSUES

Issues for consideration in this case were those promoted through an administrative complaint brought by the Petitioner against the Respondent. Under the authority of Chapter 487, Florida Statutes, and Chapter 5E, Florida Administrative Code, the Petitioner seeks to impose an administrative fine against the Respondent for the use or application of certain restricted use pesticides without the benefit of an applicator's license.

FINDINGS OF FACT

1. Chapter 487, Florida Statutes, and Chapter 5E, Florida Administrative Code, empower the State of Florida, Department of Agriculture and Consumer

   Services (Petitioner) to regulate a category of pesticide known as "restricted- use pesticide." More particularly, as it is related to this dispute, the statute requires that those persons purchasing or using a restricted-use pesticide must be licensed by the Petitioner. The license is known as an applicator's license. Bobby Yon (Respondent) had held an applicator's license through October 31, 1983. On that date the applicator's license expired. Yon did not renew the license within sixty days of the expiration date.

   Consequently, it was incumbent upon Respondent to obtain a new applicator's license, in contrast to renewing the license as described in this paragraph before purchasing or using restricted-use pesticides in the future.

   
   

2. Having failed to renew the license which expired on October 31, 1983, on that date or within the grace period which lasted for sixty days beyond that date, Respondent, without the benefit of a license, made the aerial application of a restricted-use pesticide known as "Nudrin 1.8," EPA Reg. No. 201-347. This application was made by Respondent in his capacity as an agricultural pilot. The application dates were April 25, May 6 and June 2, 1985, on an acreage of gladiolus at a business known as Scott's Gladiolus. On April 25, 1955, Respondent made aerial application of Nudrin to watermelons belonging to Steve Basford.

   
   

3. The Nudrin which Respondent applied in the instances mentioned before was obtained by the Respondent from Altha Farmers Coop. That Nudrin was delivered to the airstrip where Respondent has his business and from there loaded on his plane.

   
   

4. In a statement prepared by the Respondent upon a form provided by Petitioner through its employee Hal A. Davis, Respondent gave written acknowledgment of his use of Nudrin in the instances spoken to in the course of this recommended order. A copy of that affidavit may be found as Petitioner's composite Exhibit 1 admitted into evidence. In the statement he describes the acreage which was sprayed in the four instances mentioned and indicates that his son mixed and loaded the treatment into the plane while wearing rubber boots.

   It is further indicated that no other safety equipment was utilized. The Nudrin applications at issue are described as being made at the rate of two to four and a half gallons per acre total solution, depending on other things that may have been in the mixture. Respondent described how the Nudrin containers were rinsed in mixing tanks and later burned on site. Respondent points out the records of these applications were photographed by Davis; however, these records or copies of the records were not produced at the final hearing. Finally, in describing the experience with the substance Nudrin, Respondent states in his affidavit that he is aware that a restricted-use pesticide license was necessary to legally apply the restricted-use pesticide Nudrin.

   
   

5. On June 30, 1984, without the benefit of an applicator's license, Respondent aerially applied the restricted-use pesticide known as "Red Panther 8 lb Toxaphene," EPA Reg. No. 42761-9. This was applied to a pea crop on the property of James Edenfield. One gallon of Toxaphene was mixed into twenty or twenty-five gallons of water. This substance was delivered to Respondent by the Farmers Coop, in a five gallon can. The balance of this substance is still at the airstrip location at his property and is seen by the Respondent as being part of the Coops inventory. In the affidavit made by the Respondent, he acknowledges that the documents related to this application were made available to Davis and were photographed by Davis. Nonetheless, as with the situation pertaining to Nudrin, copies of the documentation were not presented at hearing. Respondent acknowledges in the affidavit that he was aware at the time that he treated the land with the Toxaphene that a restricted-use pesticide license was

   needed to make that application. The Toxaphene which was applied to the Edenfield acreage had been purchased by Edenfield from the Farmers Coop.

   
   

6. The affidavit that has been alluded to in the course of this recommended order had been prepared by Respondent upon the occasion of an inspection of his business premises in Altha, Florida, conducted by Hal A. Davis on June 5, 1985. As a part of the affidavit, Petitioner's composite Exhibit 1, Respondent makes mention of liability insurance held with Air South Insurance of Dothan, Alabama. On the other hand, Respondent acknowledges that although Florida law requires proof of liability insurance for the use of the subject chemicals or the posting of a bond, his insurance policy did not provide chemical liability. This requirement in law pertains to a necessary prerequisite to obtaining a license for purchase and use of restricted-use pesticides in Florida, as contemplated by Chapter 487, Florida Statutes. In addition to not having the necessary insurance coverage, Respondent had failed to post bond with the Department. Therefore, he could not have been licensed on the date of the inspection.

   
   

7. By Respondent's remarks in the course of the final hearing, it is evident that Respondent recognized the necessity of being appropriately licensed before applying the restricted- use pesticides mentioned in this factual rendition, and that he was unable to obtain the necessary license, given the fact that he was without requisite liability insurance and had failed to post a bond in lieu of that insurance. His protestation that he had not renewed his license to apply restricted-use pesticides beyond the expiration date of October 31, 1983, based upon some misunderstanding with officials within the petitioning agency concerning forms for obtaining his new license is without credence. The more likely explanation is the fact that the Respondent, as he alluded to in his testimony, did not feel that he could afford the insurance coverage or bond amount and simply did not renew his license. In any event, it was incumbent upon the Respondent to seek and obtain timely renewal of his existing applicator's license or in the failure to do that, to obtain a new license as an applicator before setting out to apply restricted-use pesticides. Respondent failed to do this and during the hiatus between licenses which existed between October 31, 1983, and June 19, 1985, when he obtained a new applicator's license, Respondent applied restricted-use pesticides without the benefit of a license.

   
   

8. In his testimony Respondent makes some reference to a license which he held in the period at question which pertains to dealers who sell restricted-use pesticides, this license being number 002027. This license did not allow him to purchase or use restricted-use pesticides. It only would allow selling to others who had the necessary license or authorization to purchase or use restricted-use pesticides, which, unlike the others, Respondent did not have.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.

   
   

10. "Nudrin 1.8" and "Red Panther 8 lb Toxaphene" are restricted-use pesticides as defined by Sections 481.021(50) and 487.153(25), Florida Statutes. Section 487.042(2), Florida Statutes requires that persons such as the Respondent who make aerial application of restricted-use pesticides must do so in accordance with a valid applicator's license. Section 487.031(7), Florida Statutes, makes it unlawful for a person in Respondent's capacity to use

    restricted-use pesticides without the benefit of a valid applicator's license. In the instances related to the use of "Nudrin 1.8" on April 25, April 28, May 6 and June 2, 1985, and the use of "Red Panther 8 lb Toxaphene" on June 30, 1984, Respondent has operated contrary to the latter stated provisions in the statute. Consequently, he is held to a possible fine not to exceed $1,000 for each of the five violations under the authority of Section 487.091(2), Florida Statutes.

    
    

11. Reference is made in the administrative complaint to Rule 5E-9.15, Florida Administrative Code [sic], meaning Rule 5E- 9.015, Florida Administrative Code, to the effect that all aerial restricted-use pesticide applicators must be licensed by the Petitioner to apply restricted-use pesticides. The rule's provision in question does not establish that requirement. Moreover, it is alleged that Respondent was not licensed by the Petitioner when he applied the "Nudrin 1.8" and "Red Panther 8 lb Toxaphene," which is said to be contrary to Section 487.158(1)(b), Florida Statutes. By contrast to the allegations, that provision disciplines an applicator for making pesticide recommendations or applications not in accordance with the product labeling with exceptions as provided in Section 487.031(8), Florida Statutes, or not in accordance with recommendations of the United States Environmental Protection Agency or not in accordance with specifications of a special local need registration. No proof was offered at hearing which would tend to describe a violation of the provision of Section 487.158(1)(b), Florida Statutes. In this connection, Petitioner seeks to impose a fine against the Respondent pursuant to Section 487.158(2)(e) , Florida Statutes. To impose a fine in accordance with that section, it is necessary to show a violation of some provision within Section 487.158(1), Florida Statutes. Such violation has not been demonstrated and no fine may be imposed under this theory.

    
    

12. Based upon consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED:

That a final order be issued which imposes a fine in the amount of $600,

$200 related to the incidents of the use of Nudrin 1.8 at Scott's Gladiolus;

$200 for the use of "Nudrin 1.8" on the property of Steve Basford; and $200 for the use of "Red Panther 8 lb Toxaphene" on the property of James Edenfield.

DONE AND ENTERED this 6th day of March, 1987, at Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1987.

COPIES FURNISHED:

Frank A. Graham, Jr., Esquire Resident Counsel

Florida Department of Agriculture and Consumer Services

Mayo Building

Tallahassee, Florida 32399-0800

Mr. Bobby Yon Post Office Box 8

Altha, Florida 32421

Hon. Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32399-0810

Docket for Case No: 86-003953

Orders for Case No: 86-003953