STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

)

Petitioner, )

)

vs. ) CASE NO. 91-7731

)

HOWARD R. KEMPTON, )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on March 26, 1992 in St. Petersburg, Florida.

APPEARANCES

For Petitioner: Thomas W. Kaufman, Esquire

HRS District 5 Legal Office 701 - 94th Ave. N.

St. Petersburg, FL 33702

For Respondent: Howard R. Kempton

2695 - 65th Ave. S.

St. Petersburg, FL 33712 STATEMENT OF THE ISSUES

Whether or not Respondent engaged in proscribed conduct in violation of Sections 482.161(1)(a), (e) and (f), Florida Statutes and Chapter 10D-55, Florida Administrative Code to wit, used a fumigant product and failed to give the required notice to the Petitioner; utilized improper warning and safety signs on a fumigation tent as is more particularly set forth in the administrative complaint filed herein dated October 16, 1991.

PRELIMINARY STATEMENT

By its Administrative Complaint filed herein dated October 16, 1991, Petitioner seeks to impose an administrative fine against Respondent in the amount of $350. Respondent does not completely dispute the material allegations in the administrative complaint but instead indicate that he was taken advantage of by the owner of the pest control company that he was employed; indicates that he, as a certified operator, was responsible for the manner in which the fumigation was carried out and offered testimony to the fact that he tried to place the Department (Petitioner) on notice by telling the homeowner to notify

Pinellas County and Petitioner of the shoddy manner in which the fumigation process was carried out.

Petitioner introduced the testimony of William C. Bargren and introduced one exhibit which was offered into evidence at the hearing. Respondent testified on his own behalf.

FINDINGS OF FACT

1. Petitioner, Department of Health and Rehabilitative Services, is the regulatory agency charged with regulating the terminate and pest control industry in Florida.

   
   

2. Respondent, Howard R. Kempton, is a certified operator licensed by the Petitioner. During times material, Respondent was a certified pest control operator for Pinellas Termite and Pest Control, Inc., in St. Petersburg.

   
   

3. On July 24, 1991, Respondent was the certified operator in charge of fumigation of a residential structure at 3318 Shamrock in Tampa, Florida. In carrying out the fumigation, Respondent used the fumigant product VIKANE (sulfuryl fluoride).

   
   

4. Respondent did not provide Petitioner a notice of the intended fumigation at 3318 Shamrock in Tampa within 24 hours in advance of the fumigation as is required by the Petitioner's rules and the labeling provisions for the product VIKANE. In addition, Petitioner's inspector, William Bargen, who has been employed by Petitioner in the office of entomology in excess of 28 years, visited the residence on the day of the fumigation and the tarpaulin that Respondent used was not air tight as practicable in that it contained numerous slits and tears that was not properly sealed at the ground level encompassing the structure.

   
   

5. The safety warning signs fastened to the exterior of the tarpaulin were not printed in indelible ink or paint and the emergency phone numbers for the certified operator were not legible.

   
   

6. As a result of the improper seals, the fumigant VIKANE was escaping from the tarpaulin while the gas was being pumped into the structure at 3318 Shamrock on July 24, 1991.

   
   

7. Inspector Bargen took photos of the fumigation tent as it was in place at 3318 Shamrock on the day in question, July 24, 1991 and it depicts the condition of the tarpaulin and the improper signs that were utilized by Respondent on that jobsite.

   
   

8. The owner of the property called Petitioner's office and Inspector Bargen visited the site on July 24, 1991. It is undisputed that Respondent alerted the homeowner to call Petitioner who in turn dispatched Inspector Bargen to the site based on instructions from Respondent that he alert the Department of the on-going problems that he was having with his employer, Pinellas Termite and Pest Control, Inc.

   
   

9. Respondent admits that the manner in which the fumigation occurred on July 24, 1991 at 3318 Shamrock in Tampa was improperly performed. However, Respondent offers that he did as much as he could under the circumstances to comply with the Petitioner's rules and regulations and the labelling instructions for the fumigant VIKANE as set forth by the manufacturer.

   Respondent related numerous occurrences whereby he attempted to convey the importance of carrying out the proper instructions to his employer without success. As a result, Respondent sought other employment and is no longer employed as a certified operator with Pinellas Pest Control. Finally, while Respondent recognized that a certified operator is responsible for the overall operations of the fumigation projects that he is in charge of, he relates that instructions were given to office personnel at Pinellas Pest Control to advise the Petitioner of the 24 hour notice prior to the date of fumigation and he was under the impression that timely notice was forwarded to Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to the sanction pursuant to Section 120.57(1), Florida Statutes.

    
    

11. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

12. The authority of the Petitioner is derived from Chapter 482, Florida Statutes.

    
    

13. Respondent is a certified operator licensed by the Petitioner. As such, Respondent is subject to the disciplinary guides of Chapter 482, Florida Statutes and Chapter 10D-55, Florida Administrative Code.

    
    

14. Respondent, by using a tarpulin which would not properly seal and faulty warning signs in fumigating the residence at 3318 Shamrock in Tampa, Florida on July 24, 1991 when the materials were unsuitable for the fumigation of that residence engaged in proscribed conduct in violation of Sections 482.161(1)(a), (e) and (f), Florida Statutes. As such, Petitioner is authorized to impose a fine against Respondent for such actions.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

Petitioner enter a final order imposing an administrative fine against Respondent in the amount of $250.00 payable to Petitioner within 30 days of the entry of the Petitioner's final order.1/

DONE and ENTERED this 29 day of May, 1992, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29 day of May, 1992.

ENDNOTES

1/ This fine is in keeping with the Department's disciplinary guides and the mitigating factors offered in evidence by Respondent.

COPIES FURNISHED:

Thomas W. Kaufman, Esquire HRS District 5 Legal Office 701 - 94th Ave. N.

St. Petersburg, FL 33702

Howard R. Kempton 2695 - 65th Ave. S.

St. Petersburg, FL 33712

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, FL 32399-0700

John Slye, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, FL 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. 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: 91-007731

Orders for Case No: 91-007731