STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 93-6624

) TURNER PEST CONTROL, INC., )

a Florida corporation, and ) WILLIAM D. KINCADE, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on to be heard before Stephen F. Dean, Hearing Officer, State of Florida, Division of Administrative Hearings, at 136 East Bay Street, Jacksonville, Florida, on February 23, 1994.

APPEARANCES

For Petitioner: Robert G. Worley

Office of General Counsel Department of Agriculture and

Consumer Services Room 515, Mayo Building

Tallahassee, Florida 32399-0800

For Respondent: William G. Cooper

COOKER MYERS

136 East Bay Street Jacksonville, Florida 32201

PRELIMINARY STATEMENT

This case was instituted by the Department of Agriculture and Consumer Services, as Petitioner against Turner Pest Control, Inc., a corporation (hereinafter "Turner Pest"), and its employee, William D. Kincade (hereinafter "Kincade") on or about October 7, 1993.

The original Administrative Complaint contained eight (8) counts and sought relief as provided in Section 482.161, Florida Statutes, including revocation of Respondents' licenses and certificates, a fine not to exceed $5,000.00 for each count or such lesser penalty under Chapter 482, Florida Statutes.

Respondents petitioned for a formal hearing pursuant to Rule 28-5.201, Florida Administrative Code; Chapter 482, Florida Statutes and s. 120.57(1), Florida Statutes. Respondents denied any wrongdoing, and affirmatively pled that Respondents were being selectively prosecuted and sought attorney's fees and costs incurred in the defense of the matter.

The Division of Administrative Hearings entered its Initial Order on November 22, 1993, and a Joint Response was filed by the parties on or about December 1, 1993.

The matter was set for hearing on February 23, 1994, by Notice of Hearing and Order dated December 14, 1993. On February 14, 1994, Petitioner moved to amend the Complaint. Respondents initially objected and the amendment was disallowed on or about February 21, 1994. Petitioner then moved for a continuance and Respondents withdrew their objections to the Amended Complaint in order to proceed with the hearing on February 23, 1994.

The Amended Complaint asserted seven (7) counts, and changed the material claims from those initially alleged in the first Complaint. The general allegations in the Amended Complaint are that on or about July 12, 1993, Kincade applied a chemical known as "Dursban 2E" to "the soil" at sites one and two and that the label of "Dursban 2E" does not provide for application to a pre- construction site. Respondents' initial Answer and Affirmative Defenses are considered to constitute a general denial to the Amended Complaint.

The issues raised by the Amended Complaint are:

Count I. Did Respondents fail to use pesticide in accordance with label in violation of s. 482.051(1), Florida Statutes (Supp. 1992); and Rule 5E- 14.106(1), Florida Administrative Code at Site I.?

Count II. Did Respondents negligently engage in pest control in violation of s. 482.161(f), Florida Statutes (Supp. 1992) at Site I?

Count III. Did Respondents use materials suitable for pest control in violation of s. 482.161(1)(e), Florida Statutes (Supp. 1992) at Site I?

Counts IV, V and VI. Are repeat charges of Counts I, II and III as to Site

II.

Count VII. Did Respondent Kincade operate without an identification card

in violation of s. 482.091(2)(b), Florida Statutes (Supp. 1992).

FINDINGS OF FACT

1. Respondent Turner is engaged in the business of pest control, including the application of termiticide to the soil of pre-construction sites for the prevention of subterranean termites. Respondent is licensed by the Petitioner under Chapter 482, Florida Statutes, as a pest control business and maintains its primary place of business in Jacksonville, Florida. Respondent Kincade is employed by Turner as a pesticide applicator technician.

   
   

2. The Petitioner is the state agency with jurisdiction to regulate and license pest control businesses and technicians.

3. On June 12, 1993, Mr. Phil Helseth and Mr. Montgomery, employees of the Petitioner, were returning from lunch and observed one of Respondent Turner's trucks turning onto the Blodgett construction area in Jacksonville, Florida. Helseth surmised the Respondent's truck was there to do a pretreatment for termites. Helseth then observed activities by a Turner Pest employee, later identified as Mr. Kincade, who was spraying a substance on the soil on foundation areas at sites one and two. Mr. Helseth concluded the Respondent's agent was engaged in termite pretreatment.

   
   

4. When the Turner employer concluded his activities, he drove his truck to the construction trailer on the building site where he was confronted by Mr. Helseth and Mr. Montgomery. At that time a third employee of the Department, Mr. Parker, had arrived, bringing calibration equipment to measure the rate of discharge from the Turner Pest pumper truck.

   
   

5. Petitioner's inspectors introduced themselves to Kincade and identified themselves. Petitioner's representative requested Kincade to produce the identification card issued to him by Petitioner. Mr. Kincade did not do so. Petitioner's representative asked Kincade questions about what he was doing, and Kincade demurred, stating it was Turner's policy for him to call a supervisor who would answer their questions. Kincade called his office, and shortly thereafter Joe Turner arrived on site. The spraying equipment utilized by Kincade was then calibrated to determine the amount of pesticide mixture being emitted.

   
   

6. Joe Turner, President of Turner Pest Control, Inc., denied that they were performing a pre-construction treatment for termites.

   
   

7. Mr. Turner testified that the purpose of spraying the Dursban 2E on the site in question was to empty the tank and that this was proper disposal of the chemical in accordance with the label instructions.

   
   

8. A local pest control operator testifying for Respondents stated that the disposal of the pesticide Dursban 2E in this manner was perfectly in accordance with the label and that he has emptied tanks of Dursban 2E on construction sites twenty to thirty times in the last two or three years. Petitioner did not offer any testimony that this method of disposal was contrary to the label.

   
   

9. Petitioner concluded that Turner Pest was conducting a termite pretreatment, although informed by Joe Turner at the time such was not the case, and filed the initial Administrative complaint.

   
   

10. The Blodgett site contractor's job superintendent, Joe Wilson, testified. Sites prepared for construction at Blodgett Homes would receive termite pretreatment and pest control.

    
    

11. Joe Turner had consulted with Wilson about spraying the Dursban 2E to dispose of the chemical. The job superintendent knew the operator, Kincade, was not performing a pretreatment for termites.

    
    

12. Dursban 2E is a general insecticide. It, according to its label, can be used in a variety of concentrations, for a variety of insects, but termites are not one of those insects. Disposal, according to the labels, is by spraying the chemical on soil such as to lawn or a building site.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this cause pursuant to Section 120.57(1), Florida Statutes, and Florida Administrative Code, Chapter 60Q-2.

    
    

14. The Department of Agriculture and Consumer Services, is a state agency created pursuant to Section 20.16, Florida Statutes, and is the agency responsible for administering and enforcing the provisions of Chapter 482, Florida Statutes. Chapter 482, Florida Statutes, and Florida Administrative Code, Rule 5E-14.106(1) are applicable to pest control companies when applying termiticide treatment to pre-construction sites.

15. Section 482.051, Florida Statutes (Supp. 1992), provides as follows: The [Florida] Department [of Agriculture]

    shall adopt rules to carry out the intent and purpose of [chapter 482, F.S.]. . . .

    The department shall adopt rules for the protection of the health, safety and welfare of pest control employees and the general public, in conformity with this chapter and chapter 120, which require:

    
    

    1. That all pesticides or economic poisons be used only in accordance with the registered labels and labeling or as directed by the United States Environmental Protection Agency or the department.

       
       

16. Florida Administrative Code, Rule 5E-14.106 states the following:

    
    

    Only those pesticides having federal or state label registration clearance shall be used.

    It shall be unlawful to use any registered pesticide in a manner inconsistent with its label and labeling, except as provided by the United States Environmental Protection Agency, the United States Department of Agriculture, or the [Florida] Department [of Agriculture].

    
    

17. Based upon the facts, the issue is wholly factual. The Respondents were not engaged in pretreatment, and were disposing of the insecticide, the only issue is whether disposal was in accordance with instructions for disposal.

    
    

18. While an agency's interpretation of its rules and operable statutes is entitled to great deference and should not be overruled as long as the interpretation is consistent with legislative intent and supported by substantial competent evidence (Citizens of State of Fla. v. Wilson, 568 So.2d 1267 (Fla. 1990); Mainer v. Canal Authority of State, 467 So.2d 989 (Fla. 1985); Ball v. Florida Podiatrist Trust, 620 So.2d 1018 (Fla. 1st DCA 1993); Rudy Creek Imp. v. State Dept. of Envir., 486 So.2d 642 (Fla. 1st DCA 1986); findings of fact are within the province of the finder of fact. There is no evidence to contradict the credible testimony of Joe Turner and Joe Wilson that Kincade was engaged in disposal of the insecticide. What the Department's employees saw was consistent with disposal of the chemical. There was credible evidence that spraying Dursban 2E on the soil was in accordance with the label instructions. There was no specific evidence to the contrary.

19. Based upon the uncontradicted testimony of the witnesses, the Hearing Officer concludes that Respondents have not violated the provisions of Section 482.051(1), Florida Statutes (Supp. 1992), and Florida Administrative Code, Rule 5E-14.106(1) by applying a pesticide in a manner inconsistent with its labeling and Section 482.161(1)(e), Florida Statutes (Supp. 1992) by knowingly failing to use materials or methods suitable for pest control.

    
    

20. Section 482.091(2)(b), Florida Statutes, provides that a technician shall carry his identification card when performing or soliciting pest control. This raises the question of whether "disposal" of an insecticide is "pest control." For purposes of this portion of the statute, the Hearing Officer concludes it is. The statutory purpose of Section 482.091(2)(b), Florida Statutes, is for Petitioner and regulators to be able to identify operators and their employees.

    
    

21. Respondent Kincade violated the provisions of Section 482.091(1)(b), Florida Statutes (Supp. 1992), by failing to carry and present upon demand his identification card. However, under the circumstances, this is a very technical violation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services

dismiss the charges against Turner Pest Control, Inc. and impose an administrative fine in the amount of $100.00 against Respondent, William D. Kincade.

DONE AND ENTERED this 14th day of April, 1994, in Tallahassee, Florida.

STEPHEN F. DEAN

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 14th day of April, 1994.

APPENDIX TO RECOMMENDED ORDER CASE NO. 93-6624

Both parties filed Proposed Recommended Orders which were read and considered. The following states which of these proposed findings were adopted and which were rejected and why.

Petitioner's PFOF:

Paragraph 1 and 2 Adopted. Paragraph 3 True, but irrelevant.

Paragraph 4 Respondent's paragraph 3 et seq. better states the facts.

Last part adopted as paragraph 5.

Paragraph 5 Adopted RO paragraph 5.

Paragraph 6 Adopted RO paragraph 6.

Paragraph 7 Adopted RO paragraph 7. Paragraph 8 Rejected as argument.

Paragraph 9 Contrary to better evidence. Mr. Helseth conclusions were based upon his conclusion that Dursban 2E was being used as a termite pre- treatment, not being disposed of.

Paragraphs 10, 11 RO paragraph 8. Last sentence is rejected because it was accepted that use and disposal was controlled by the instructions on the label. The label indicates disposal by spraying on soil was appropriate.

Respondent's PFOF:

Paragraph 1 RO paragraph 3.

Paragraph 2 RO paragraph 4 and RO paragraph 9.

Paragraph 3 Irrelevant.

Paragraph 4 Restated in RO paragraph 5 and 6.

Paragraph 5 RO paragraph 11.

Paragraph 6 RO paragraph 11.

Paragraph 7 RO paragraph 12.

COPIES FURNISHED:

Bob Crawford, Commissioner Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810

Richard Tritschler, Esquire Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810

Robert G. Worley, Esquire Department of Agriculture Room 515, Mayo Building Tallahassee, FL 32399-0800

William G. Cooper, Esquire COOKER MYERS

136 East Bay Street Post Office Box 1860 Jacksonville, FL 32201

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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: 93-006624

Orders for Case No: 93-006624