STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 93-2245

)

WILLIAM E. PEYTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on July 13, 1993, in Port Orange, Florida, before Ella Jane P. Davis, a duly assigned hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gabriel Mazzeo, Esquire

Department of Agriculture & Consumer Services

Mayo Building, Room 515 Tallahassee, Florida 32399-0800

For Respondent: William E. Peyton pro se

977 Whippoorwill Drive

Port Orange, Florida 32127 STATEMENT OF THE ISSUE

Count I: Whether or not Respondent allowed his pesticide operator certificate to be utilized for licensure purposes while not being a full-time employee or having his primary occupation with the licensee, in violation of Sections 482.091(2)(a), 482.121(1) and 482.121(3) F.S. and, if so, what penalty should be imposed.

Count II: Dismissed.

Count III: Whether or not Respondent possessed multiple identification cards in violation of Section 482.091(2)(a), 482.091(4) and 482.091(7) F.S., and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner originally charged Respondent in a three count administrative complaint. At the commencement of formal hearing, Petitioner voluntarily dismissed Count II. The case proceeded as to Counts I and III.

In the course of formal hearing, Petitioner moved to strike certain language from Count III of its administrative complaint. The motion was strongly opposed by Respondent, and was denied.

Petitioner presented the oral testimony of Respondent and had two exhibits admitted in evidence. Respondent testified on his own behalf and presented the oral testimony of Mary Sue Peyton. Respondent had no exhibits admitted in evidence.

No transcript was filed. Each party filed a proposed recommended order, the findings of fact of which have been ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. Petitioner is an agency of the State of Florida with the responsibility for regulation and control of structural pesticide use and application and disciplinary action against pesticide license and certificate holders in Florida under the provisions of Chapter 482, F.S., as amended by Chapter 92-203, Laws of Florida, and the rules promulgated thereunder. Petitioner is the successor to the Department of Health and Rehabilitative Services, as provided in Section 34, Chapter 92-203, Laws of Florida, effective July 1, 1992, for the above duties and responsibilities.

   
   

2. At all times material to this action, Respondent was a Certified Operator, Certification No. 1872.

   
   

3. Respondent admitted that at all times material, he understood that he could not legally be issued more than one license or identification card.

   
   

4. Respondent was originally working for Coastal Pest Control Inc. (Coastal Pest) on a strictly commission basis. Coastal Pest paid Respondent a weekly draw against a 15 percent commission on pest control work he personally did for them. While Respondent was so-employed for Coastal Pest, Respondent's wife was employed as an office worker for 3-D Universal Pest Control Inc.

   
   

5. 3-D Universal Pest Control Inc. (3-D Universal) was then purchased by a new owner, Pete Luongo. Mr. Luongo wanted to become qualified in the pest control business. Respondent agreed to help Mr. Luongo become qualified. The principals of 3-D Universal, Mr. and Mrs. Luongo, knew before hiring Respondent that he worked for Coastal Pest. Mr. Luongo, on behalf of 3-D Universal, guaranteed Respondent a salary, and Respondent thereafter was "on call" to 3-D Universal for 24 hours a day.

   
   

6. Respondent's wife set up schedules so that Respondent could work for both pest control companies on an "on call 24 hours a day" basis. Neither schedule set out a specific shift for Respondent with one company or the other on a daily basis. At all times material, Respondent considered himself employed "full-time" by 3-D Universal. There is no evidence as to whether Coastal Pest's principals knew or did not know of Respondent's employment by 3-D Universal.

   
   

7. Respondent worked daily on paperwork and on training Mr. Luongo. Respondent testified that by agreement with Mr. Luongo, Respondent's employment with 3-D Universal was not supposed to involve any field work or handling of chemicals. Respondent set up this arrangement with 3-D Universal in reliance upon his own personal assessment that in so doing, he was complying with Section 482.091(6) F.S. which exempts office employees from holding identification

   cards. That statutory section is set out fully within the Conclusions of Law, infra. Respondent's testimony on this issue is credible as to intent, but not as to performance.

   
   

8. On June 12, 1991, Petitioner agency received Coastal Pest's application for an identification card for Respondent. (Exhibit P-1-A) The application stated that Respondent was an employee of Coastal Pest Control, Inc., 414 Grant Street, Port Orange, Florida, working under a certified operator in charge. Respondent purportedly signed a representation thereon that he was not then employed by any other pest control licensee. It may be reasonably inferred that Respondent was issued a card as a result of this application, because he admitted that he was originally employed by Coastal Pest.

   
   

9. On June 13, 1991, the agency received from 3-D Universal, 385 Dorset Avenue, Deltona, Florida, a combined application for a business license and request for identification cards which stated that Respondent was the certified operator in charge of all areas of 3-D Universal's pest control. No other certified operators were listed on this form. This form bears no signatures. On June 21, 1991, a new business license 3884 was issued by the agency to 3-D Universal. (Exhibit P-1-B)

   
   

10. An identification card application for Respondent was also filed with the agency on June 13, 1991 (Exhibit P-1-C). The portion of the June 13, 1991 identification card application whereby Respondent was required to disclose that he was either (a) employed elsewhere and applying for a second card for experience in various areas of pest control or (b) was not currently employed elsewhere was left blank. The signature line for the card applicant was also blank. Respondent purportedly signed the line for the "certified operator in charge or licensee's authorized agent" and the remainder of the form clearly lists Respondent as "certified operator in charge" of all areas of pest control for 3-D Universal.

    
    

11. Because the 3-D Universal combined business license and identification card application form (Exhibit P-1-B) provides that new identification cards must be issued with each license, and since that form was accompanied by an identification card application form signed by Respondent (Exhibit P-1-C), it may be reasonably inferred that a new, annually renewable identification card was issued to Respondent for work through 3-D Universal. Moreover, since the "William E. Peyton" signature on the June 13, 1991 3-D Universal identification card application (Exhibit P-1-C) appears to be the same as the "William E. Peyton" signature on the June 12, 1991 Coastal Pest identification card application (Exhibit P-1-A), the undersigned infers therefrom that Respondent signed both applications and that he knew that 3-D Universal had also applied for its business license on June 13, 1991 (Exhibit P-1-B). It is not credible that some person other than Respondent penned the same signature in his name for a Coastal Pest identification card on June 12, 1991 and for a 3-D Universal identification card on June 13, 1991.

    
    

12. On August 22, 1991, the agency received Coastal Pest's combined business license renewal application for license no. 2803 and identification cards which listed Respondent as one of Coastal Pest's certified operators or special identification card holders in charge of no named category of pest control. This application was not signed. No separate request form for an identification card signed by Respondent accompanied it. The license was renewed August 27, 1991. It is unclear whether a new identification card was issued to Respondent with this license renewal. Unlike the earlier situations, issuance of new cards cannot be inferred here, in light of there being no

    separate identification card application signed by Respondent and due to an indicator on the exhibit that acknowledges only payment of the $75.00 license renewal fee and not the $5.00 fee for each new card. (Exhibit P-1-D)

    
    

13. On March 19, 1992, the agency received 3-D Universal's combined business license renewal application for business license number 3884 and request for identification cards, on which Respondent was listed as a certified operator in charge of all areas of 3-D Universal's pest control. Respondent is the only certified operator listed on this application form. The application was not signed. The business license was renewed May 29, 1992. No inference that a new identification card was issued to Respondent can be made from this exhibit because no fee for cards was acknowledged with the business license fee and no separate application for an identification card was signed by Respondent. (Exhibit P-1-E)

    
    

14. On August 20, 1992, the agency received Coastal Pest's unsigned combined business license renewal application and request for identification cards on which Respondent is listed as one of its certified operators or special identification card holders. This form lists no areas of pest control under Respondent's control. Although the renewal fee was apparently tendered, there is no indication that the business license was renewed or that new identification cards were issued. (Exhibit P-1-F)

    
    

15. The agency's administrative complaint and post-hearing proposals assert that the agency terminated each prior license and all identification cards simultaneously with issuing each new license. If these allegations had been proven, they would explain why Coastal Pest's license 2803 was not renewed with its August 20, 1992 renewal application. If these allegations had been proven, then the agency's allegations that Respondent knowingly and intentionally operated simultaneously under two cards with different business licensee employers would be significantly undermined. However, the exhibits in evidence do not "prove up" any termination of licenses or cards by the agency, and there was no oral testimony to that effect. Likewise, Section 482.091(4)

    F.S. (set out on full in the Conclusions of Law, infra.) does not provide for automatic expiration of Respondent's cards for both licensees until at least June 1992 under the facts of this case.

    
    

16. Respondent testified, without corroboration, that Mrs. Luongo had applied for the 3-D Universal business license and identification cards without his knowledge and that within moments of his being notified by an agency field operative that she had done so, Respondent quit his employment with Coastal Pest. Respondent did not give a date for when precisely this occurred, but giving him the benefit of the doubt, and upon the evidence as a whole, it is probable that he was referring to the March 19, 1992 3-D Universal application, for the totality of the evidence shows Respondent was involved in the initial 3- D Universal application of June 13, 1991. See, Finding of Fact 11, supra.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to Section 120.57(1), F.S.

18. The statutory scheme applicable to this case is as follows:

    482.091 Employee identification cards.- (2)(a) An identification cardholder must

    be an employee of the licensee and work under the direction and supervision of the licensee's certified operator in charge and may not be an independent contractor. An identification cardholder may perform only pest control services out of, or for customers arising from, the licensee's licensed business location. An identification cardholder may not perform any pest control independently of and without the knowledge of the licensee and the licensee's certified operator in charge and may perform pest control only for the licensee's customers.

    
    

    (4) An identification card automatically expires when the holder thereof ceases to be an employee of the licensee for which the card was secured. In such case, either the licensee or certified operator in charge

    shall obtain and destroy the expired card. An identification card expires on the licensee's next anniversary date after issuance or upon transfer of business

    ownership, change of business name registered with the department, or change of licensee's business location address. Each identification card must be renewed annually thereafter on or before the licensee's anniversary date as set by the department

    for each licensed business location.

    
    

    1. An employee whose duties are confined to office secretarial, bookkeeping, office clerical, office filing, trenching, digging, raking, putting up or taking down tents, clamping, or carrying away debris or such other activities as specified by the department shall be exempted by the department from being required to hold an identification card.

       
       

    2. A person may not be issued, or may not hold, an identification card for more than one licensee at any one time, except a certified operator for the express and sole purpose of, and period for, obtaining experience to qualify for examination in a category for which such person is not certified and seeks certification.

    482.121 Misuse of certificate.-

    
    

    1. A certified operator may not allow his certificate to be used by a licensee to secure or keep a license unless:

       
       

       1. He is in charge of the pest control activities of the licensee in the category or categories covered by his certificate;

          
          

       2. He is a full-time employee of the licensee; and

          
          

       3. His primary occupation is with the licensee.

          
          

    2. A licensee may not use the certificate of any certified operator to secure or keep a license unless the holder of the certificate

       is in charge of the pest control activities in the category or categories of the licensee covered by the certificate.

       
       

    3. If a certificate is used in violation

    of this section, the department may revoke the license of the pest control business or the certified operator's certificate, or both such license and certificate.

    
    

19. Respondent is charged in Count I as follows:

    
    

    Respondent allowed his certificate to be utilized for licensure purposes only while not being a full-time employee or having his primary occupation with the licensee, in violation of Sections 482.091(2)(a), 482.121

    1. and 482.121(3) Florida Statutes.

       
       

20. Respondent is charged in Count III as follows:

    
    

    Respondent's possession of multiple identification cards unbeknownst to either pest control business is a violation of Sections 482.091(2)(a), 482.091(4) and 482.091(7) Florida Statutes.

    
    

21. Respondent defended, in part, upon grounds that the exhibits in evidence did not show more than that applications for cards and licenses had been made, that the applications did not show that cards and licenses had been issued, and that no one should be prosecuted merely for applying for employment. The foregoing legal argument is undermined by the record evidence and the facts found supra. Respondent also defended on the basis that he had tried to comply with the statute by only doing paperwork for 3-D Universal, based upon his interpretation of Section 482.091(6) F.S., and that he was guilty only of a bad judgment call as to how the law was to be interpreted.

22. The culpable facts as found may be synopsized as follows: Respondent allowed the Luongos/3-D Universal to name him as the certified operator in charge on June 13, 1991, in order for 3-D Universal to be licensed in June of 1991. Respondent had to know of 3-D Universal's initial application for business licensure because he signed the necessary application for an identification card and received an identification card. Moreover, since Mr. Luongo apparently was not a certified operator, there was no way he could have continued his pest control business while training for certification unless he did so through Respondent both as operator in charge and as field man. Although Respondent testified that he did not handle chemicals for 3-D Universal, in fact he had to have handled chemicals in order to oversee Mr. Luongo's training, since no other certified operators were ever listed for 3-D Universal.

    Likewise, since no other certified operators were listed for 3-D Universal, that business licensee could not have continued in business if Respondent had not been handling its chemicals and/or performing field work for it. It appears, however, that Respondent's primary employment was with 3-D Universal.

    Therefore, violations of Sections 482.091(2)(a), 482.121(1), and 482.121(3), F.S., as charged under Count I of the administrative complaint, have not been proven. Although there is no evidence whether or not Coastal Pest knew of Respondent's arrangement with 3-D Universal or not, that element is not controlling. The statutes are clear that Respondent cannot hold an identification card for more than one licensee at any one time for these purposes and may not act as an independent contractor without subjecting himself to discipline therefor. Therefore, violations of Sections 482.091(2)(a), 482.091(4) and 482.091(7), F.S., as charged under Count III of the administrative complaint, have been proven.

    
    

23. Petitioner seeks to impose $500 per offense. Under Section 482.161(7) F.S., Petitioner is entitled to fine up to $1,000. However, that statutory section also sets out the following specific guidelines to be considered in assessing a fine: "(a) the severity of the violation, including the probability that death or serious harm to the health or safety of any person will result or has resulted; the severity of the actual or potential harm; and the extent to which the provisions of this measure were violated; (b) actions taken by the licensee or certified operator in charge to correct the violation or remedy complaints; and (c) any previous violations of this measure." Section 482.161(8), F.S., also provides that a period of probation or a public or private reprimand may be assigned in lieu of, or in addition to, a fine. Having considered all of these factors, the undersigned is persuaded that an appropriate penalty would be a private reprimand and probation for three months. In this case, revocation or suspension would be unnecessarily harsh, and a fine of $500-$1,000 would not fit the offense. Respondent has already taken all steps to correct the offense, and there has been no proof that Respondent profited by the offense to the detriment of any person's safety.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the Commissioner of Agriculture enter a final order privately reprimanding Respondent and imposing a three-month period of probation.

RECOMMENDED this 4th day of October, 1993, at Tallahassee, Florida.

ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1993.

APPENDIX TO RECOMMENDED ORDER 93-2245

The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF).

Petitioner's PFOF:

1. Accepted, except as unnecessary, subordinate, or cumulative.

2. Accepted.

3-11 These proposals reiterate the administrative complaint and, in part, track the lengthy certification of the agency clerk attached to Exhibit P-1. The certifications of the clerk and the interpretations of the agency notwithstanding, these proposals are

accepted in part in Findings of Fact 8-15 and rejected in part as not supported by the exhibits themselves, hence not supported by the record.

Respondent's PFOF are not numbered or paragraphed in any way that can be readily ruled upon, pursuant to Section 120.59(2) F.S. They are apparently intended as persuasive argument and are discussed as such within the Conclusions of Law.

Respondent's concern that settlement negotiations have been considered is ill- founded. Exhibit P-2 constitutes the Respondent's Answer and Request for Informal Hearing which was converted to a Formal Hearing.

COPIES FURNISHED:

Gabriel Mazzeo, Esquire

Department of Agriculture & Consumer Services

Mayo Building, Room 515 Tallahassee, Florida 32399-0800

William E. Peyton

977 Whippoorwill Drive

Port Orange, Florida 32127

Richard Tritschler, Esquire General Counsel

Department of Agriculture & Consumer Services

Mayo Building, Room 515 Tallahassee, Florida 32399-0800

Honorable Bob Crawford Commissioner of Agriculture

Department of Agriculture & Consumer Services

Mayo Building, Room 515 Tallahassee, Florida 32399-0800

Brenda Hyatt, Chief

Bureau of Licensing & Bond Department of Agriculture

508 Mayo Building

Tallahassee, Florida 32399-0800

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: 93-002245

Orders for Case No: 93-002245