STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0944

)

BRADFORD B. BAKER, d/b/a ) BAKER'S TERMITE AND PEST CONTROL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer from the Division of Administrative Hearings, on September 27, 1990, in Stuart, Florida.

APPEARANCES

For Petitioner: John Rodriguez

Senior Attorney Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 100

Tallahassee, Florida 32399-0700

For Respondent: Peter T. Gianino, Esquire

Grazi, Gianino & Cohen

217 East Ocean Boulevard Post Office Box 2846 Stuart, Florida 34995

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of violating certain statutes and rules regulating the pest control business, as alleged in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent seeking to impose an administrative fine for alleged violations of the statutes and rules regulating the pest control business, and Respondent timely requested a formal hearing regarding the allegations contained within that Administrative Complaint. This matter was thereafter transferred to the Division of Administrative Hearings for the conduct of a formal hearing.

At the final hearing, Petitioner presented the testimony of Respondent, Bradford B. Baker, and of Fred Hassut. The Respondent also testified on his own behalf and presented the testimony of Earl M. Nesbit, Richard R. Fulton, and Lloyd Baker. Additionally, Petitioner's Exhibits numbered 1-6 and Respondent's Exhibits numbered 1-7 were admitted in evidence.

Both parties submitted posthearing proposed findings of fact in the form of proposed recommended orders. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent Bradford B. Baker is a certified operator, licensed to perform pest control services in the State of Florida. He is also the owner of Baker's Termite and Pest Control.

   
   

2. In early June, 1989, Baker's Termite and Pest Control was contacted by Who-To-Call, a real estate brokerage service, to perform an inspection for termites and wood destroying organisms. The structure to be inspected was a residence owned by Mike and Susan Gillen and located at 825 28th Avenue, Vero Beach, Florida.

   
   

3. Baker's sent its then-employee Earl M. Nesbit to perform the inspection on June 3, 1989. When Nesbit arrived, he encountered a number of adults and children sitting around the breakfast table. One of the men was Mike Gillen, the woman turned out to be a real estate broker, and the other gentleman identified himself as a prospective buyer who was in the pest control business in New York. When Nesbit completed his inspection, he advised all of the adults that he had found live dry-wood termites and wood-decaying fungi. He recommended that the home be structurally fumigated. He explained to all of the adults the types of gases that could be used, the various processes involved in fumigation, and those things that needed to be performed by the homeowner in preparation for fumigation. Gillen and the prospective buyer specified that they wanted the residence fumigated with Vikane.

   
   

4. On June 9, 1989, Nesbit went to Mike Gillen's place of employment. Gillen signed an agreement with Baker's for Baker's to perform the fumigation services on his residence and specified in the contract that Vikane gas was to be used and that the fumigation was to be performed on July 7, 1989. Gillen advised Nesbit that Baker's would be performing the fumigation prior to the closing on the sale of the Gillen residence and that Baker's would be paid for the fumigation services out of proceeds to be placed in escrow at the time of closing. At the same meeting, Nesbit presented Gillen with a Customer's Duties List which specified those items which needed to be performed by the homeowner in preparation for tent fumigation. Gillen signed a copy of that list, and Nesbit orally reviewed. The list with Gillen advising him of all the things to be done prior to the fumigation. The Customer's Duties List reviewed by Nesbit and given to and signed by Gillen contains a list of materials that can be contaminated or damaged by the fumigant, the items to be removed from the structure, and other precautions to be taken by the property owner.

   
   

5. On July 7, 1989, the date called for in the contract with Gillen, a crew from Baker's led by Richard Fulton arrived at the Gillen residence at approximately 9:00 a.m. A number of private vehicles were parked in the driveway so that Fulton had to park his vehicle out at the street. Fulton began walking around the outside of the house to see what the job entailed when a man came out of the house and approached him. The man told Fulton that they were not

   prepared for the fumigation to take place that day and that it would have to be done some other time. Fulton was relieved because he had noted that the trees and bushes around the perimeter of the house had not been trimmed so that it would be possible to drop a tarp from the top of the house down to the ground. The man asked Fulton what gas was going to used, and Fulton advised him that Baker's intended to use Vikane. They discussed the Vikane and Fulton advised the man that the shrubs had to be trimmed back from the house so that they could get a tarp down to the ground. The man never identified himself.

   
   

6. Fulton returned to his truck and, using the truck radio, contacted Lloyd Baker, one of Baker's certified operators who was on his way to the Gillen job. As a result of being advised that the job had been cancelled, Lloyd Baker proceeded to the next job, and Fulton and the crew left the Gillen residence.

   
   

7. The Gillen job was rescheduled on the morning of July 7, 1989, by a real estate agent, who rescheduled the Gillen job for Friday, September 8, 1989. On Thursday before the scheduled fumigation, a Baker's employee obtained a key to the Gillen residence from the occupants of the house since they would be out of town from Friday morning to Sunday night. In accordance with the rescheduling, the Baker's crew arrived at the Gillen residence on Saturday, September 9, 1989, to perform the fumigation. No one was home when the crew arrived, but the bushes around the house had been trimmed so that the tarps could be dropped to the ground. While preparing the house for introduction of the Vikane, the crew did notice several containers of chemicals in the garage of the residence, which chemicals are restricted and can only be purchased by persons holding the proper licensure.

   
   

8. The house was properly fumigated with Vikane. Because Vikane is a colorless, odorless poison, Baker's also used chlor-o-pic, a tear gas which is properly used with Vikane as a warning agent.

   
   

9. On Sunday, September 10, Respondent went with the crew to the Gillen residence to lift the tarps. At that time, Respondent also noticed the presence in the garage of restricted chemicals requiring licensure. Respondent walked through the house after the tarp was lifted and the house had been aired. He determined through the use of a device called an Interscan that no Vikane was present in the house. While he was in the house, Baker experienced no nausea or eye irritation from the chlor-o-pic. Fulton, who was also in the house after the tarp was lifted and the house was aired out, experienced no physical irritations resulting from the Vikane or the chlor-o-pic.

   
   

10. Respondent Baker placed a treatment sticker on the circuit breaker panel box, which sticker identified the fumigant used as being Vikane. He also placed a notice on the front door indicating that the house was safe to enter.

    
    

11. On Monday, September 11, 1989, Respondent Baker received a telephone call from a Mr. Jenkins, complaining that he, his wife and his children had returned to their home the previous evening and had experienced physical discomforts and symptoms necessitating that they leave the house. Jenkins was seeking reimbursement for medical expenses, hotel expenses, and other monies.

    
    

12. The first knowledge that Respondent or Baker's had of Mr. and Mrs. Jenkins was the phone call from Mr. Jenkins to Respondent on September 11.

    
    

13. At the time that the Gillen residence was fumigated by Baker's, Respondent and Baker's did not know that Mrs. Jenkins had purchased the Gillen residence; that the closing of that real estate transaction had occurred on July

    5, two days before the fumigation date scheduled in the contract between Gillen and Baker's; and that the man who had sent away the crew from Baker's on July 7 because he was not prepared was not Mr. Gillen, the owner of the house with whom Baker's had a contract, but rather was Mr. Jenkins, the husband of the new owner of the house.

    
    

14. It is uncontroverted that Respondent never saw the contract for purchase and sale between the Gillens and Mrs. Jenkins, that Respondent had no knowledge of any terms of that real estate transaction between the Gillens and Mrs. Jenkins, that Respondent did not know that a closing was scheduled to take place on July 5, or that it had in fact taken place, that Mrs. Jenkins and the Gillens had agreed to close without the fumigation being performed, or that the Jenkins family had moved into the Gillen residence prior to it being fumigated.

    
    

15. If Respondent had known that a closing had taken place on the house, he would have required that the new owner enter into a contract with Baker's before Baker's performed fumigation services. Baker's would not have performed fumigation services pursuant to a contract with someone who did not own the property that was being fumigated.

    
    

16. In late September, Mrs. Jenkins filed a complaint with Petitioner regarding the fumigation performed by Baker's. Petitioner's entomologist- inspector contacted Baker's, and Respondent returned to the Jenkins residence and again tested for the presence of Vikane. None was detected. Petitioner's inspector later attempted to "scan" the Jenkins residence as part of his investigation in this matter using equipment loaned to him by Baker's, Mr. and Mrs. Jenkins refused to allow him to test their residence. Based upon his investigation, Petitioner's inspector concluded that the fumigation performed by Baker's was not performed in a negligent manner.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in this case. Section 120.57(1), Florida Statutes (1989).

    
    

18. At the commencement of the final hearing in this cause, Petitioner dismissed several of the allegations contained in the Administrative Complaint filed against Respondent. Petitioner announced on the record that the only statutes and rules Respondent is alleged to have violated are Sections 482.161(1)(a) and (f), Florida Statutes, and Rules 10D-55.108(3)(c) and 10D- 55.110(3), Florida Administrative Code. Those statutes and rules provide as follows:

    
    

    482.161 Remedies of department.--

    1. The department may issue a written warning to or fine the licensee, certified operator, identification cardholder, or special identification cardholder or may suspend, revoke, or stop the issuance or renewal of any certificate, special identification card, license, or identification card coming within the scope of this measure, in accordance with the provisions of chapter 120, upon any one or more of the following grounds as the same may be applicable:

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

    (f) Performing pest control in a negligent manner.

    Rule 10D-55.108 Fumigation Requirements -- General Fumigation.

    (3) It shall be the duty of the certified operator in charge of fumigation to carry out the following:

    (c) Use fumigants having registered label clearance for specific intended use, and specific type of structure to be fumigated and see that all such fumigants are stored, used and ventilated in strict accordance with these regulations and strict adherence to manufacturer's recommendations, directions and precautions as specifically set forth in the registered labels. Provided, however, when the regulations conflict directly with the registered label, the label shall then take precedence.

    10D-55.110(3) Fumigation Requirements -- Notices.

    (3) The licensee or certified operator shall advise the property holder, or adult occupant responsible for the structure to be fumigated, of the accepted common or trade

    name of the fumigant to be used, of materials which may be contaminated or damaged by the fumigant to be used and shall furnish the property holder or adult occupant responsible for the structure, prior to the fumigation operation, a printed list of items to be removed from the structure as required by the registered label, and other precautions to be taken by the property holder or person responsible for the structure.

    
    

19. As to Rule 10D-55.108(3)(c), Petitioner offered no evidence that Respondent used an improper fumigant or used the fumigant improperly.

    
    

20. As to Rule 10D-55.110(3), the uncontroverted evidence is that Baker's supplied Gillen, the property owner, with a customer duty list, the accepted common name of the fumigant to be used, notification of which materials may be contaminated or damaged by the fumigant, as well as other precautions to be taken by the property holder. There is no evidence that Respondent or Baker's knew the name of any prospective purchaser of the Gillen property. There is no credible evidence that anyone advised Respondent or Baker's that Mr. and Mrs. Gillen had sold the property to Mrs. Jenkins.

    
    

21. The Gillens did not testify in this proceeding. In her deposition Mrs. Jenkins admits that she does not remember if she ever advised anyone at Baker's that she was the new owner of the property. Petitioner's inspector testified that Mrs. Jenkins never represented to him that she had advised Baker's or Respondent that the ownership of the property had changed. Although Mr. Jenkins testified in his deposition that he told Baker's employees on July 7

    that he owned the property, the weight of the credible evidence in this cause is that he did not. The depositions of Mr. and Mrs. Jenkins are internally inconsistent and are inconsistent with each other. For example, Mr. Jenkins testified that he made certain phone calls to Baker's, while Mrs. Jenkins testified that she was the one who made the phone calls. Similarly, Mr. Jenkins testified that they aired the house during the day for three days after the fumigation while Mrs. Jenkins testified that they aired the house continuously for weeks. Lastly, common sense dictates that had Respondent known that the ownership of the property had changed, he would have obtained a contract from the new owner before performing fumigation services, if for no other reason than to be sure that he would be paid. Accordingly, Petitioner has failed to prove a violation of Rule 10D-55.110(3), Florida Administrative Code.

    
    

22. Petitioner offered no evidence that Respondent or Baker's was guilty of performing pest control in a negligent manner. On the other hand, Petitioner's entomologist-inspector testified that there was no negligence involved in the fumigation of the Gillen/Jenkins residence. Accordingly, Petitioner has failed to prove its allegation that Respondent is guilty of violating Section 482.161(1)(f), Florida Statutes.

    
    

23. Since Petitioner has failed to prove that Respondent violated any rule of the Department or any provision of Chapter 482, Florida Statutes, then Petitioner has failed to prove that Respondent is guilty of violating Section 482.161(1)(a), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of

the allegations contained in the Administrative Complaint and dismissing the Administrative Complaint filed against him in this cause.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 7th day of January, 1991.

LINDA N. RIGOT

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1991.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-0944

1. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law.

2. Petitioner's proposed findings of fact numbered 2, 3, and 6-8 have been adopted either verbatim or in substance in this Recommended Order.

3. Petitioner's proposed findings of fact numbered 4, 5, and 12 have been rejected as being unnecessary for determination of the issues involved in this cause.

4. Petitioner's proposed findings of fact numbered 9- 11, and 13-15 have been rejected as not being supported by competent or credible evidence in this cause.

5. Respondent's proposed findings of fact numbered 1-8 have been adopted either verbatim or in substance in this Recommended Order.

6. Respondent's proposed findings of fact numbered 9 and 10 have been rejected as being unnecessary for determination of the issues involved in this cause.

7. Respondent's proposed findings of fact numbers 11 and 12 have been rejected as not constituting findings of fact but rather as constituting conclusions of law or argument of counsel.

COPIES FURNISHED:

John Rodriguez Senior Attorney

Department of Health and Rehabilitative Services

1323 Winewood Boulevard Building One, Suite 100 Tallahassee, Florida 32399-0700

Peter T. Gianino, Esquire Grazi, Gianino & Cohen

217 East Ocean Boulevard Post Office Box 2846 Stuart, Florida 34995

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Linda K. Harris, Esquire Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-000944

Orders for Case No: 90-000944