STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE No. 91-2240

)

JOSEPH A. CUTLER and )

MARY H. CUTLER d/b/a ) VIKING TERMITE CONTROL, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

This matter came on for hearing in Ocala, Florida, before Robert T. Benton II, Hearing Officer of the Division of Administrative Hearings, on August 7, 1991.

APPEARANCES

For Petitioner: Ralph J. McMurphy, Esquire

Asst. District Legal Counsel Department of Health and

Rehabilitative Services 1000 N.E. 16th Avenue Gainesville, Florida 32609

For Respondent: William Allan King, Esquire

BOND ARNETT & PHELAN, P.A.

Post Office Box 2405 Ocala, Florida 32678

At the conclusion of the hearing, the parties waived the right to submit proposed recommended orders and agreed that the recommended order be recited on the record at hearing.

The recommended order stated at that time has now been transcribed and attached hereto.

It is, accordingly,

ORDERED:

The attached transcript is hereby adopted as the recommended order in this matter.

DONE and ENTERED this 20th day of August, 1991, in Tallahassee, Leon County, Florida.

ROBERT T. BENTON II

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 20th day of August, 1991.

COPIES FURNISHED:

Ralph J. McMurphy, Esquire Asst. District Legal Counsel Department of Health and

Rehabilitative Services 1000 N.E. 16th Avenue Gainesville, Florida 32609

William Allan King, Esquire BOND ARNETT & PHELAN, P.A.

Post Office Box 2405 Ocala, Florida 32678

R. S. Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700

John Slye, Esquire General Counsel 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.

ATTACHMENT

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2240

) JOSEPH A. CUTLER and MARY H. ) CUTLER d/b/a VIKING TERMITE ) CONTROL, INC. )

)

Respondent. )

)

PROCEEDINGS: Administrative Hearing (Excerpt) BEFORE: Robert T. Benton, II, Hearing Officer

REPORTED BY: Catherine J. Phillips

Notary Public, State of Florida at Large.

DATE: August 7, 1991. TIME: 9:50 a.m. - 1:40 p.m.

PLACE: City Council Chambers, Second Floor City Hall

151 Southeast Osceola Avenue Ocala, Florida.

APPEARANCES: Ralph J. McMurphy, Esquire

District 3, Legal Office 1000 Northeast 16th Avenue Gainesville, Florida 32609 Attorney for Petitioner

William Allan King, Esquire Bond, Arnett & Phelan, P.A. Post Office Box 2405

Ocala, Florida 32678 Attorney for Respondent.

All right. I'm going to ask you-all to repeat on the record what I understand to be your positions.

We had discussed off the record the possibility of the parties waiving their rights to submit proposed recommended orders and, instead, going forward right now with entry of a recommended order which would be accomplished by my reciting on the record a recommended order.

The Department would then pay for the transcription of the recommended order. And when that came to me I would -- the transcript that is -- I would forward it to the Secretary, or his designee, for entry of a final order.

Is that an agreeable procedure? MR. KING: Yes, it is.

MR. McMURPHY: It's agreeable to the Department.

HEARING OFFICER: All right. This is then the recommended order in Department of Health and Rehabilitative Services against Joseph A. Cutler and Mary H. Cutler, doing business as Viking Termite Control, Incorporated, Case Number 91-2240.

This matter came on for hearing in Ocala, Florida, before the Division of Administrative Hearings, by Robert T. Benton, II, a hearing officer of the Division, on August 7, 1991. The parties appeared through counsel, for the Petitioners Department, Ralph McMurphy, whose address is 1000 Northeast 16th Avenue, Gainesville, Florida, 32609; and for the Respondent, Allan King, of the firm Bond, Arnett and Phelan, P.A., Post Office Box 2405, Ocala, Florida, 32678.

The issue in this case is whether a five hundred dollar fine, which the Department proposes to levy against the Respondent, should in fact be levied. And that depends on whether the Department has proven the allegations of the Administrative Complaint.

The Administrative Complaint alleges that on February 11, 1991, Drew Ramasco, representing Viking Termite Control, Incorporated, of Ocala, performed a pre-construction subterranean termite control application using the termiticide product DURSBAN, D-U-R-S-B-A-N, TC, which is chlorpyrifos, C-H-L-O- R-P-Y-R-I-F-O-S, on the premises of 117 Almond Road, Lot 1, Block 500, Unit 23 Subdivision S.S.S., Ocala, inconsistently with the registered label and in violation of Department Rules.

The allegation is that he applied approximately ninety-five gallons of the mixture of DURSBAN to a sub-slab fill area of approximately seventeen hundred six square feet when the registered label provision requires approximately a hundred and seventy gallons of the mixture for proper treatment of seventeen hundred six square feet of fill area.

It is further alleged that he mixed two gallons of DURSBAN TC concentrate to two hundred gallons of water making a solution or emulsion of 0.5 percent when the registered label requires that a one percent use-dilution be applied to a sub-slab fill area.

And the allegation is that this conduct violated 10D-55.106 (1) and (8) of the Administrative Code and Section 482.161(1) (a), Florida Statutes, as well as (1)(e) and (f) of that provision.

And it is further alleged that these violations are a proper basis for imposing an Administrative fine under 482.161, Florida Statutes.

I now make finding of the fact: On February 1, 1991, Byron Lemont, an entomology inspector in the employ of the Department of Health and Rehabilitative Services, arrived at 117 Almond Road in Ocala, Florida, where construction had begun on a house. He asked the concrete workers who were there whether they expected a pest control operator and they said that they did expect somebody from Viking Termite Control, Incorporated, to show up shortly. So Mr. Lemont drove off two hundred yards or so and sat in his white car with the yellow license tag and awaited the arrival of the pest control operator, who turned out to be Drew Ramasco, employee of Viking Termite Control, Incorporated.

The concrete workers told Mr. Ramasco that somebody from EPA was watching while he administered the termite control solution. And -- he had arrived in a truck, a half ton or three-quarter ton pickup truck which contained a two hundred gallon tank and the tank was full when he arrived. Mr. Ramasco added a gallon of DURSBAN TC to the site after his arrival and began spraying in the sub-slab area and sprayed for thirty-eight minutes before stopping. He was

under the impression that in so doing he had applied approximately a hundred and sixty gallons of solution.

The last time the sprayer had been calibrated it was spraying something like four point two gallons a minute.

Shortly after he finished, Mr. Lemont drove the two hundred yards and talked to him about the application of termiticide that had just occurred. Mr. Ramasco told Mr. Lemont that he had treated sixteen hundred six square feet of ground prepared for placement of a monolithic slab; and although he had intended to apply a hundred sixty gallons, he had to agree, when he looked in the tank and saw what was left, that he had probably applied no more than a hundred and twenty-five gallons. In fact, when the two of them calibrated the sprayer by spraying for a minute into a calibrated five gallon container, they concluded that at that point only two and a half gallons per minute was coming through the sprayer.

The evidence suggests that, as sometimes apparently happens, rust flakes, or other foreign matter, had clogged the filter to some extent and some of this clogging may have occurred in the spraying at this particular site. Rather than spraying any additional termiticide on the property, however, Mr. Ramasco eventually left, returning only some days later to spray a one hundred square foot area where a porch was -- or patio was eventually destined to be.

The testimony of Mr. Ramasco that Mr. Lemont told him that there was no problem, that everything was in order, that there was no reason for any further spraying, is rejected as incredible in light of Mr. Lemont's contrary testimony and surrounding circumstances.

At the time of their initial conversation about this job, Mr. Ramasco told Mr. Lemont that although he only added one gallon of DURSBAN TC to the tank on the job site, that he had already mixed a gallon of DURSBAN TC in the tank. At the hearing today Mr. Ramasco claimed that not only had he mixed one gallon of DURSBAN with two hundred gallons of water but that there was additional DURSBAN in the tank. His story today was that he had done another job before the Almond Road job and that after that he had gone back to the Viking premises and added a hundred gallons of unadulterated water to a mixture of a hundred gallons of water in the tank which contained two gallons of DURSBAN TC. So that by the time he arrived at the site the tank contained two hundred gallons of water in which three gallons of DURSBAN TC had been mixed.

This testimony has not been convincing and has not been credited. The termiticide is very expensive. It costs fifty-six dollars a gallon. And the issue was clear at the time that Mr. Ramasco and Mr. Lemont discussed the matter. And there is every reason to believe that there was no more than two gallons of DURSBAN in the entire tank when the mixture was applied on site.

I now set conclusions of the law.

May I have a copy of the statute book that has 482. MR. KING: (Tenders.)

HEARING OFFICER: I should first state that the Division of Administrative Hearings has jurisdiction in a matter like this in which the licensee asked for a formal Administrative Hearing and in accordance with Section 120.57(1) (b), the Department of Rehabilitative Services forwarded the matter to the Division for hearing.

Section 482.161, Florida Statutes (1989) authorizes HRS to, quote, issue a written warning to or fine the licensee, certified operator identification card holder, or special identification card holder, or suspend, revoke or stop the issuance or renewal of any certificate, special identification card, license or identification card coming within the scope of this chapter upon stated grounds.

I'm not sure there was proof in this case of licensure of the Respondent.

I don't recall if there was.

MR. McMURPHY: Mr. Lemont testified that they were licensed.

HEARING OFFICER: Well, I recall he testified that HRS notified all certified operators by memorandum of change in the Rules.

MR. McMURPHY: And I had asked him if Cutler was licensed -- Viking was licensed in connection with that so that they would have gotten a notification.

HEARING OFFICER: Is that your recollection, Mr. King?

MR. KING: I don't recall. I recall there being testimony about there being another party that was the owner of the business at one point in time.

HEARING OFFICER: Is there an issue about licensure? Is Viking licensed or does it hold a certificate?

MR. KING: There's no issue with regards to the license. HEARING OFFICER: All right. Thank you.

All right. Among the stated grounds for disciplinary action are those found in Section 482.161(1)(a), namely, quote, the violation of any Rule of the Department's or any provision of this chapter, close quote.

In this case the Department has charged a violation of Rule 10D-55.106(1) and (8). They have also charged violations of Section 482.161(1)(e), which makes it grounds for discipline, quote, 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. And they've also charged a violation of subsection (f), performing pest control in a negligent manner.

License disciplinary proceedings are serious matters. They have been said by the courts to be quasi-penal in nature. Allegations of the kind the Department has made today -- I should say made originally in the Administrative Complaint, must be established, if at all, by clear and convincing evidence.

For that reason I do not find that the Department has proven that the Respondent knowingly made false or fraudulent claims; did not prove that Respondent misrepresented the effects of materials or methods; and did not prove that the Respondent knowingly failed to use materials or methods suitable for the pest control undertaken.

But I believe that the evidence is clear and convincing that the pest control undertaken here was performed in a negligent manner. And I believe that the Rule was shown to have been violated, that is to say, Rule 10D-55.106(8)

I'm not going to find a violation of 10D-55.106(1), because in order to prove that there has to be a clear and convincing showing about what the EPA has done, what the U.S. Department of Agriculture has done, what the Florida Department of Agriculture and Consumer Services have done, and I'm not sure that Mr. Lemont's testimony would fill the bill.

In light of these findings and conclusions, it is recommended that the Department levy the five hundred dollar fine it proposed to levy.

And to reiterate, I will be looking for a transcript of this brief portion of today's proceedings and will forward that as my recommended order to the Department. And I will at that time copy the parties with the letter or order which I write or enter at that time. And you should calculate the time for exceptions running from the date of that document.

Is there anything further? MR. KING: No, sir.

MR. McMURPHY: No, sir.

HEARING OFFICER: The hearing stands adjourned, (Whereupon, the hearing concluded at 1:40 p.m.)

CERTIFICATE

STATE OF FLORIDA COUNTY OF MARION

I, CATHERINE J. PHILLIPS, Notary Public, State of Florida at Large, do hereby certify that a hearing was held in the foregoing case at the time and place set forth in the caption hereof; that I was authorized to and did report stenographically the proceedings, and that the foregoing pages, numbered 1 through 12, inclusive, constitute a true and correct transcription of my said stenographic report.

WITNESS MY HAND AND SEAL this 8th day of August, 1991, at Ocala, Marion County, Florida.

My Commission expires: June 17, 1993.

Catherine J. Phillips, Notary Public, State of Florida at Large.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO.: 91-2240

)

JOSEPH A. CUTLER and )

MARY H. CUTLER d/b/a ) VIKING TERMITE CONTROL, INC., )

)

Respondents. )

)

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 (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.

FINDINGS OF FACT

The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except for the conclusion that the applicable standard of proof was the "clear and convincing" test. The "clear and convincing" standard is applicable to the revocation of a professional license. Ferris vs. Turlington, 510 So2d 292 (Fla. 1987). When a less severe sanction is sought the standard of proof is the "preponderance" test. Allen vs. School Board, 571 So2d 568 (Fla. 3rd DCA 1990), American Insurance vs.

Department of Insurance, 518 So2d 1342 (Fla. 1st DCA 1987). Here the penalty at issue is a fine; thus, the correct standard is the preponderance test.

Based upon the foregoing, it is

ADJUDGED, that a fine of $500.00 be imposed on respondents, Joseph A. Cutler and Mary H. Cutler d/b/a Viking Termite Control, Inc.

The fine shall be paid by check or money order payable to Treasurer, State of Florida and shall be mailed or delivered to Department of Health and Rehabilitative Services, Attn: John A. Mulrennan, Jr., Ph.D., Director, Entomology Services, Post Office Box 210, Jacksonville, FL 32231. The fine shall be paid no later than 30 days from the entry of this Order.

DONE and ORDERED this 23rd day of September, 1991, in Tallahassee, Florida.

Robert B. Williams Secretary

Department of Health and Rehabilitative Services

by Deputy Secretary for Health

COPIES FURNISHED:

Ralph J. McMurphy, Esquire District 3 Asst. Legal Counsel 1000 NE 16th Avenue Gainesville, FL 32609

William Allan King, Esquire BOND ARNETT & PHELAN, P. A.

Post Office Box 2405 Ocala, FL 32678

Robert T. Benton, II Hearing Officer

Division of Administrative Hearings 1230 Apalachee Parkway

The DeSoto Building Tallahassee, FL 32399-1550

John A. Mulrennan, Jr., Ph.D. Director, Entomology Services Post Office Box 210 Jacksonville, FL 32231

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above named people by U. S. Mail this 27th day of September, 1991.

R. S. Power, Agency Clerk Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 904/488-2381

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE-AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 91-002240

Orders for Case No: 91-002240