STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

designated hearing officer, Mary Clark, held a formal hearing in the above- styled consolidated cases on February 14 and 15, 1995, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Howard J. Hochman, Esquire

1320 South Dixie Highway, Suite 1180 Coral Gables, Florida 33146 Attorney for Florida Pest Control

Association, Inc.

Lance McKinney, Esquire Post Office Box 88

Cape Coral, Florida 33910-0088 Attorney for Certified Operators

of Southwest Florida, Inc., Lan-Mac Pest Control-Englewood, Inc., and Lan-Mac Pest Control-Ft. Myers, Inc.

For Department of Robert G. Worley, Esquire Agriculture and 515 Mayo Building Consumer Services: 407 South Calhoun Street

Tallahassee, Florida 32399-0800

For Individual Jonathan A. Glogau, Esquire Respondents: Assistant Attorney General

The Capitol, PL-01

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES

These twenty-two consolidated cases relate to the registry of especially pesticide-sensitive persons maintained by the Department of Agriculture and Consumer Services (DACS) pursuant to section 482.2265(3)(d), F.S. The

individual respondents in these cases have applied for designation as especially pesticide-sensitive, and the petitioners have challenged that designation. The central issue is whether any individual seeking that designation has a hypersensitivity to pesticides to such a degree that notice of exterior pesticide application on contiguous or adjacent property is not adequate to prevent the individual's health from being endangered, and notice of applications at a greater distance is necessary to protect that individual's health.

PRELIMINARY STATEMENT

After the DACS published notice of its intent to approve the individual applications, the petitioners timely requested formal administrative hearings and the cases were forwarded to the Division of Administrative Hearings (DOAH) where they were consolidated and set for hearing.

The list of individual cases which proceeded to hearing is included in an appendix attached to this recommended order. A couple of cases involve the same individual respondents, since the petitioners filed separate challenges and the cases were referred and docketed separately. Throughout the almost year-long history of these cases at DOAH, other individual respondents withdrew their applications, and their files were closed. In one such case, however, involving the individual Carol Ann Rodriguez, the file involving Petitioner, Florida Pest Control Association, Inc. (FPCA) was closed (DOAH #94-2854), but the companion case initiated by other petitioners was left open (DOAH #94-3237) because of pending attorneys' fees requests. Those fees requests are the subject of two other consolidated cases, DOAH #94-4921 and #94-6609F; and DOAH #94-3237 should have been closed as moot when Ms. Rodriguez withdrew her application. A recommendation to dismiss that case is included here.

Several preliminary and threshold issues were addressed and disposed of in various motion hearings conducted prior to the final hearing. Those issues are referenced again here, where necessary. The final hearing was set and continued twice, for good cause at the request of the parties, before proceeding in February 1995, as set forth above.

As required by the prehearing order, the parties presented a stipulation describing those issues of fact and law upon which they were able to agree. The stipulated facts are incorporated here.

At the final hearing, DACS presented the testimony of John Mulrennan, Ph.D. and Christopher Teaf, Ph.D. The individual respondents presented deposition testimony of the following physicians: Francis Waickman, M.D.; Paul Frederick Wubbena, Jr., M.D.; Albert Robbins, D.O.; Hana Chaim, D.O.; and S. J. Klemsawesch, M.D. Certified Operators of S.W. Florida, Inc., presented the testimony of Larry McKinney; and Florida Pest Control Association, Inc., presented the testimony of Roger A. Yeary, D.V.M. Other testimony was presented by depositions described as exhibits, below.

Pursuant to subsection 120.57(1)(b)4., F.S., Ashley Simmons Hotz was permitted to present oral testimony.

The following exhibits were offered and received into evidence: Department's exhibit #1 (looseleaf binder containing agency files related to nineteen individual respondents), Department's exhibits #3-8 (correspondence related to Board certification), Department's exhibit #9 (sample notice of the registry of pesticide-sensitive persons), Department's exhibits #13 and 14

(Florida Administrative Weekly notices of especially pesticide-sensitive persons), and Department's exhibit #15 (Christopher Teaf curriculum vitae); Individual Respondent's exhibit #1 (letter from Department and attachments regarding certification by Dr. Chaim); Florida Pest Control Association (FPCA) exhibit #10 (curriculum vitae of Dr. Yeary and Dr. Gots), FPCA exhibit #16

(hand-drawn diagram), FPCA exhibit #17 (sample certification form), FPCA exhibit #18 (marked in error as #17 - Deposition testimony of Ronald Gots, M.D.); and Certified Operators Exhibit #2 (Deposition testimony of Philip Helseth).

Without objection, the hearing officer took official recognition of Department of Health and Rehabilitative Services (HRS) rule 10D-55.146, F.A.C.

After hearing, the transcript was filed and the parties filed memoranda and proposed recommended orders. The findings of fact proposed by the parties are addressed in an appendix to this recommended order.

FINDINGS OF FACT

The Parties

1. Lan-Mac Pest Control-Englewood, Inc. and Lan-Mac Pest Control-Fort Myers, Inc. (Lan-Mac) are pest control operators conducting business in the general area of each individual respondent regarding whom they have requested a formal hearing. Larry McKinney owns these companies and has over 4,000 customers, nine pest control routes, six lawn care routes and a termite crew, all servicing the west coast from Collier County up through Sarasota County.

   
   

2. Certified Operators of SW Florida, Inc. and Florida Pest Control Association, Inc. (FPCA) are trade associations with members who are pest control operators conducting business in the geographical area of each individual respondent regarding whom they have petitioned for a formal hearing. The members of these associations are substantially affected by the issues raised in this proceeding.

   
   

3. As stipulated by the parties, the petitioners described above have standing to petition and participate as parties in this proceeding. (Prehearing Stipulation, page 12)

   
   

4. Each of the individual respondents has submitted to the Department of Agriculture and Consumer Services (DACS) an application for registration as an especially pesticide-sensitive person, together with the statutory fee and a purported physician's certificate. Each individual respondent's claim is addressed more specifically below.

   
   

5. The DACS is the state agency responsible for administering and maintaining the pesticide-sensitive persons' registry as provided in section 482.2265(3), F.S.

   
   

   The Registry

   
   

6. Upon payment of a fee and submittal of an appropriate physician's certificate, pesticide-sensitive persons are placed on a list of persons who are entitled to 24-hour advance notice when a pest control operator is going to make an exterior application on property adjacent or contiguous to the pesticide- sensitive person's primary residence.

7. The certificate must be from a physician qualified in a category established by department rule. The department has adopted rule 5E-14.146,

   F.A.C. specifying the categories.

   
   

8. The DACS may designate a person "especially pesticide-sensitive" if, in addition to the submittal described above, the person provides "clear and convincing proof" that he or she is so sensitive to pesticides that the standard notice is not enough, and notification of applications at greater distance is necessary to protect the person's health.

   
   

9. The notification distance requirement may not exceed one-half mile from the boundaries of the property where the hypersensitive person resides. The required notice is limited to use of a pesticide or pesticide class to which sensitivity is documented or for which the department determines sensitivity is scientifically probable. The department may limit notice requirements in applications in excess of a stipulated quantity and may not require notice of applications at a distance beyond the minimum distance required to prevent endangerment of the health of the individual.

   
   

10. Section 482.2265, F.S. requires the individual registrant (pesticide- sensitive person) to notify the department of the properties or residences falling within the notice parameters (either adjacent or extra distance) so that the department can supply this necessary information to the pest control operators. Without this information, the operators cannot know whether a specific application is subject to notice.

    
    

11. Pest control operators who fail to provide the notice required by section 482.2265, F.S. are subject to administrative sanctions by DACS, including fines and license suspension or revocation. Violations of the Pest Control Act are third degree misdemeanors.

    
    

12. John Mulrennan, Ph.D. is the Bureau Chief of DACS' Bureau of Entomology and Pest Control, which bureau administers the requirements of Chapter 482, F.S. Dr. Mulrennan has a Ph.D. in entomology from Oklahoma State University. Dr. Mulrennan has delegated the day-to-day administration of the registry to Philip Helseth, Administrator of the Pest Control Section; and to Cherie Decker, Philip Helseth's secretary.

    
    

13. Mr. Helseth, and more often, Cherie Decker, review applications from persons seeking to be placed on the registry. They determine whether the application is complete, the fee is attached or waived, and the physician signing the certification is properly qualified under the rule. The department has no medical personnel on staff to review medical records and it relies entirely on the physician's certification for the determination of eligibility for the registry. Dr. Mulrennan considers that a physician who is licensed and board-certified should be able to make the necessary diagnosis and the department is in no position to question that diagnosis.

    
    

14. There are several versions of the application form/physician's certification that have been used by the agency, DACS, and its predecessor agency, the Department of Health and Rehabilitative Services (HRS), but the current version is a one-page form with blanks to be completed on the front and printed guidelines on the back.

    
    

15. The form elicits the person's name and primary residence address, with day and night telephone numbers. The form includes this "Physician's Certification:"

    I certify that the individual named above is a patient of mine and should be placed on the list of pesticide-sensitive persons.

    This individual has a documented sensitivity to a particular pesticide or class of pest- icides. The specific pesticide or class of pesticides to which registrant is sensitive:

    
    

    [blanks provided]

    
    

    The individual named above is currently under my care for a diagnosed condition or ailment for which I have proof that the normal appli- cation of a pesticide would aggravate the condition or ailment to such an extent that

    placement on the registry for prior notification is necessary to protect that person's health.

    Diagnosed condition or ailment: [blanks provided]

    (FPCA Exhibit #17)

    
    

    For persons registering as especially pesticide- sensitive, the form requests the special distance required: one block, two blocks, 1/4 mile, up to 1/2 mile limit.

    
    

16. The certifying physician's signature, address, telephone number and the signature of a witness follows this statement:

    
    

    I further certify that I am a qualified physician, board certified and recognized by the American Board of Medical Specialties in the specialty of toxicology, allergy or occupational medicine.

    I have diagnosed this patient's sensitivity based on the guidelines set forth by the department (see reverse side). Board certification will

    be verified by this Bureau.

    
    

    (FPCA Exhibit #17)

    
    

17. The guidelines on the reverse of the form were developed with the assistance of the State Health Director, Dr. Mahan, and the Florida Medical Association. The guidelines are:

    
    

    GUIDELINES FOR DIAGNOSING PESTICIDE SENSITIVITY

    The department recommends the following basic steps be considered in diagnosing an individual as pesticide sensitive:

    1. good evidence of exposure history

    2. clinical manifestations from a particular exposure

    3. body testing related to an exposure, such

       as x-ray, blood test, urine test, etc., necessary to make a diagnosis

    4. environment [sic] examination of the site where the exposure occurs, such as a person's place of work, to determine the existence of exposure in the environment

       
       

       (FPCA Exhibit #17)

       
       

18. According to FPCA expert, Dr. Ronald Gots, these guidelines, with minor modifications, are appropriate in determining whether or not someone has sustained a pesticide exposure and reaction and whether there is a causal relationship between a more distant application and endangerment to health. In Dr. Gots' view, the clinical manifestations ought to be the kind that have been specifically associated with the particular substance at issue. Dr. Gots also contends that specific laboratory evidence is not always required to determine pesticide toxicity. Guideline number four is particularly important in dealing with symptoms from remote applications.

    
    

19. DACS does not require that the certifying physician use the guidelines provided on the form, as they are only intended as an aid. The agency only intends that the physicians make a diagnosis and reflect that fact in the certificates by their signature.

    
    

20. DACS also does not require that the applicant provide actual addresses within the notification area. Instead, if there is a complaint that an operator made a pesticide application without the required notice, the agency will have to determine in that case whether the operator should be held accountable. Placement on the registry for extra distance notice is based solely on the physician's certificate, and whether the individual provides specific addresses or simply distances for the notice is immaterial, according to Dr. Mulrennan, until the agency is confronted with an enforcement issue.

    
    

21. DACS checks the qualifications of the doctors who are making the certification. The secretary who checks the applications, Cherie Decker, has a phone number for the American Board of Medical Specialties (ABMS) to call to check on physicians. Examples of qualifications that have been rejected include academic doctorates. The agency has specifically accepted certificates from osteopathic physicians who are certified by the American Osteopathic Association but are not certified by the ABMS. That acceptance was based, in part, on correspondence from the ABMS, American Osteopathic Association, and Albert F. Robbins, D.O. (Department's Exhibits #3-8). Nothing in that correspondence establishes that one board certification is considered equivalent to another by the ABMS or is "recognized" by the ABMS.

    
    

    The Certifying Physicians

    
    

22. The individuals at issue in this consolidated proceeding were all certified by one of the following: Albert F. Robbins, D.O.; Michael J. Waickman, M.D.; Neil Ahner, M.D.; Rory P. Doyle; S. J. Klemsawesch M.D.; Hana T. Chaim, D.O.; Paul F. Wubbena, Jr., M.D.; Linda A. Marraccini, M.D.; and Caren B. Singer, M.D.

    
    

23. Dr. Robbins practices at the Robbins Environmental Medical Center, 400 South Dixie Highway, Boca Raton, Florida. He has a doctorate of Osteopathic Medicine from Chicago College of Osteopathic Medicine; he is board-certified by the American Osteopathic Board of Preventative Medicine, with a sub-specialty in Occupational and Environmental Medicine; he has a Master of Science in Public Health from the University of Miami. He is not board-certified by the ABMS but

    he strongly avers that his board certification is equivalent to the specific requirement of the DACS rule referenced in paragraph 7, above.

    
    

24. Dr. Waickman practices in Akron, Ohio. A medical doctor, he is board- certified in pediatrics, in allergy and clinical immunology and in environmental medicine. He practices with his son, who is also a medical doctor and who is board-certified in internal medicine and in allergy and clinical immunology.

    
    

25. Dr. Ahner is a medical doctor who practices in Jupiter, Florida. The only evidence of his qualifications is his certificate on a patient's application for registration as a pesticide-sensitive person. The certificate, dated February 16, 1993, has all of the language regarding board-certification crossed out.

    
    

26. Rory P. Doyle is the name appearing on a certificate for Carol Arrighi's application for registration. Nothing on that certificate indicates whether R. Doyle is a physician. The signature appears beneath the printed statement described in paragraph 16, above.

    
    

27. Dr. Klemsawesch is a medical doctor who is board-certified in internal medicine and in allergy and immunology.

    
    

28. Dr. Chaim is an osteopathic physician practicing primarily in the areas of family practice and environmental medicine. She is board-certified under the ABMS in family practice. She is a member of several professional organizations, including the American Academy of Occupational and Environmental Medicine and the American Academy of Environmental Medicine. She is not board- certified in any areas other than family practice.

    
    

29. Dr. Wubbena is a medical doctor practicing in Jacksonville, Florida. He is board-certified in pediatrics and in allergy and immunology and he practices primarily in the specialty of allergy.

    
    

30. The only evidence of qualifications of Drs. Marraccini and Singer is what purports to be their signatures beneath the certificate statement on the DACS application form. Both indicate they are medical doctors. Dr. Singer's signature has the handwritten notation, "Board certified internal medicine only"; Dr. Marraccini's signature has the handwritten notation, "family practice 1989." (Department Exhibit #1)

    
    

    The Individual Applicants

    
    

31. Cheryl Mansker's application for registration was certified by Dr. Robbins on March 24, 1993. According to the certificate, she is sensitive to the following: organophosphates, carbamates and pyrethrum. The certification states that notification of 1/2 mile radius is required.

    
    

32. Ms. Mansker has been a patient of Dr. Robbins since 1987. He considers her one of the most highly allergic individuals he has seen in his practice. He attributes the onset of her sensitivity to an occasion when she was employed in a bank when, in the process of repairing an air conditioner, a worker ripped the lining of a fiberglass duct and sent fiberglass throughout the entire building. This occasion, according to Dr. Robbins, subjected the patient to mold, formaldehyde and fiberglass. He has no record of any incidents of pesticide exposure, but believes her extreme chemical sensitivity qualifies her as eligible for certification. Dr. Robbins concedes that the amount of dosage

    is a factor in deciding whether a person is going to react, and whether it is necessary to protect that person.

    
    

33. Thomas Milo has been a patient of Dr. Robbins since at least 1986.

    The certification by Dr. Robbins states that this patient "becomes very ill when exposed to pesticides and other chemicals - Pt. has been advised to avoid exposure to any and all pesticides." (Department exhibit #1)

    
    

34. Mr. Milo used to have a florist shop but had to let his son take over because he could not continue to be exposed to pesticides or the flowers in the shop. Although he is functioning better, he must avoid fragrance products, pesticides or automobile exhaust fumes. Generally, when Mr. Milo visited Dr. Robbins with a reaction, the patient gave an exposure history. Sometimes the physician surmised the reaction was to cumulative exposures. Dr. Robbins recalls only one outdoor exposure incident, when a lawn was sprayed, but has no notes to evidence the date or specifics, including distance. According to Dr. Robbins, Mr. Milo needs at least a quarter mile notice to protect his health. This distance is based on the history, apparently given to the doctor by Mr. Milo, that he had reactions to pesticides that affected his health within a quarter of a mile.

    
    

35. Joyce Charney has been a patient of Dr. Robbins since approximately 1982. On his certification on her application he listed these classes of pesticides to which she is sensitive: "Organophosphates, chlorinated [sic] and pyrethrum." Someone else apparently added the words "pesticides" and "Dursban" to the certification form.

    
    

36. Dr. Robbins has tested Ms. Charney extensively for her multiple severe allergies to pollen, dust and mold. He does not test for allergies to pesticides, but for this and other patients he relies on their history with regard to exposures. In his words:

    
    

    ...[G]enerally, when I fill out those forms I just - if a patient is very chemically sensitive and very allergic I put all classes. It is hard for me to determine which one of the -- If they have said they have had reactions when they go by lawns, or have been in someplace like a Home Depot and they get around the pesticide and they have reactions, or they were spraying with some- thing and have a reaction, it is hard to tell which ones.

    * * *

    So if they have had multiple exposures and multiple reactions I just put the full class.

    
    

    (Deposition of Albert Robbins, page 59-60)

    
    

37. Dr. Robbins designated two blocks as the required notice distance for Ms. Charney based on her explanation to him that if she gets in the wind drift of a pesticide that has been sprayed, she gets a reaction. He also considered the fact that Ms. Charney and her husband own and live at a motel a few miles from the doctor's office. The motel is an "allergy-free"

    motel patronized by some of Dr. Robbins' patients who come from out of town and are very chemically sensitive and allergic. He feels that it is appropriate for these patients to have some protection against significant exposures to that motel.

38. Carrietta Kelly was never a patient of Dr. Robbins and he never met her. He signed the certification on her application for registration as a pesticide-sensitive individual after she and her husband, a physician, called him. Her husband is a medical doctor in Naples, Florida, but not a physician qualified according to the DACS rules.

    
    

39. Dr. and Mrs. Kelly sent Dr. Robbins a two-page letter describing her health history and describing the symptoms she experienced after her apartment was treated six years prior to the letter, and her condominium was sprayed with Cynoff and Orthane a year prior to the letter. Dr. Robbins classifies those products as fungicides.

    
    

40. Based on the history he received from Dr. and Mrs. Kelly, Dr. Robbins identified on the certification form these groups to which she is sensitive: organophosphates, carbamates and pyrethrum; and he designated a 1/2 mile notification distance.

    
    

41. Charlene McClure has been a patient of Dr. Robbins since July of 1993. Skin testing reveals that she is food sensitive, pollen sensitive, dust and mold sensitive; and she is sensitive to terpenes, which are the odors from flowering plants. When she comes to Dr. Robbins' office she is generally in a state of collapse. Because of the general sensitivities, Dr. Robbins certified on Ms. McClure's application that she is sensitive to three classes of pesticides: organophosphates, carbamates and pyrethrum. He further certified that she needs notification within a 1/2 mile radius.

    
    

42. As part of the exposure history which Ms. McClure gave Dr. Robbins, she stated that in the summer of 1992 there was an aerial application of Decromal 14 mosquito spray over her house. She told him that as a result she suffered from severe headaches, exhaustion, nausea and stomach cramps. Dr. Robbins does not know whether droplets from the spray landed on his patient; he assumes that the Decromal is an organophosphate. The evidence does not establish that it is.

    
    

43. Marilyn Friedman has been a patient of Dr. Robbins since 1989. He signed the certification on her application for registration and stated that she is sensitive to these specific pesticides or pesticide classes: organophosphates, carbamates and chlorinated pesticides. At his deposition he indicated that pyrethrums should also be on the list. As with his other patients, the list is based on her history of being severely allergic and chemically sensitive.

    
    

44. Ms. Friedman's allergies include pollens, dust, mites, insects, molds, terpenes and foods. According to Dr. Robbins, she cannot tolerate someone coming in the office with a fabric softener on clothing.

    
    

45. Dr. Robbins' determination that Ms. Friedman requires one block distance notification is based on his patient's request. His records, as he testified in deposition, do not document specific exposures and reactions but he believes that his certification probably resulted from her request to him and her desire to be protected.

    
    

46. The application for Sally B. Platner, dated October 2, 1992, includes a certificate by Michael Waickman, M.D., the son and partner of Francis Waickman, M.D. The certificate includes this description of the pesticides or class of pesticides to which Ms. Platner is sensitive:

    Fungicides including "Twosome" Chem-lawn Fertilizer application liquid.

    
    

    (Department exhibit #1)

    
    

    There is some further notation, but the evidence fails to establish who made those notes.

    
    

47. Dr. Francis Waickman treated Ms. Platner, and his son saw her in his absence. She had previously been treated and tested by Dr. Bill Rea in Texas and she was determined to have many allergies and sensitivities. Sometime in 1982, she was living in an apartment complex in Ohio and reported that she was exposed to some pesticide application by a company called Chem-lawn. Dr. Francis Waickman surmised she had both dermal and respiratory absorption since she developed a skin rash within two hours of the exposure. He is not certain what chemical was implicated, but he is confident that it was a pesticide because he has personally observed that company's practices in the area.

    
    

48. Dr. Francis Waickman's regimen of treatment for Ms. Platner included one thousand milligrams of vitamin C hourly, until she improved or got a loose stool from too much vitamin C. The record does not establish whether this treatment was successful for Ms. Platner.

    
    

49. The certification in 1992 was based on Ms. Platner's phone call to the Ohio doctors' office and her description of the exposure. Dr. Waickman believes she was exposed to the fungicide, "Twosome," when it was sprayed on a golf course across the street from her residence in Florida. He surmised that since she had angina and other problems with other chemical exposures, she was also sensitive to "Twosome" as a related chemical and through what he described as a "spreading phenomena."

    
    

50. Jesse Naglich has been a patient of Dr. Klemsawesch since 1992. She is allergic to a multitude of medicines, has allergic rhinitis and asthma. Dr. Klemsawesch certified her application for registration on November 16, 1993, stating that she is sensitive to Diazinon and organophosphates. She requires two blocks' notice of any application of those substances.

    
    

51. Dr. Klemsawesch's assessment of Ms. Naglich's condition and requirements is based on her history. She reported to the doctor that she had adverse reactions after exposure to various chemicals.

    
    

52. Sandra Metzger is also a patient of Dr. Klemsawesch. He has treated this "very complex patient" since 1986. On his most recent certification on Ms. Metzger's application for registration, he notes that she is sensitive to "organophosphates, pyrethrins and petrochemical-based compounds." Her diagnosed condition for purposes of the registration is "respiratory allergies and chemical sensitivity," and she requires a two-block notice, according to her physician.

    
    

53. Dr. Klemsawesch prefers the term "sensitivity" instead of "allergy" with regard to his patients' reactions, because there is no specific test to determine an allergy to pesticides. Ms. Metzger had to leave her employment because of her reactions to insecticides sprayed in her workplace. She was exposed in 1991 at the same time that her office was being painted. In order to have an adverse reaction, in Dr. Klemsawesch's view, the patient must actually receive a dermal or respiratory exposure, or contact with the mucus membranes of

    the mouth or eyes. Mere olfactory detection (smell) might be an unpleasant event, but an olfaction reaction is not an allergic or toxic reaction unless the substance is being absorbed into the mucus membranes.

    
    

54. Dr. Paul Wubbena has treated Pia Valentine since 1987. She is currently ten years old and suffers from asthma and allergic rhinitis; and, according to Dr. Wubbena's certification dated December 29, 1993, she is sensitive to pyrethrums, Diazinon and Dursban. She had recurring problems when riding her bicycle to the grocery store with her mother, and when pesticides were being sprayed she would start wheezing and coughing and getting sick. Also, based on her history given to the physician, she reacted to pyrethrums in flying insect spray.

    
    

55. Dr. Wubbena based his conclusions regarding the specific chemicals on the history given to him by his patient and her mother and on his knowledge that Dursban and Diazinon are commonly used for lawn spraying. Miss Valentine has been tested for reactions to pollens and molds and is allergic to things of that type. Her allergic reactions are similar to her reactions in the presence of the specific pesticides listed by Dr. Wubbena.

    
    

56. Jeanne Pellegrino has been treated by Dr. Hana Chaim for multiple chemical sensitivity and pesticide sensitivity since July of 1992. Dr. Chaim signed the certificate on Ms. Pellegrino's application for registration on June 2, 1993, indicating that she is sensitive to "organophosphates, pyrethrums, cypermethrin, especially Dursban" and that she needs 1/2 mile distance notification of application of those pesticides.

    
    

57. The determination of what chemicals to put on the certificate was based on discussion with the patient, whom Dr. Chaim understood had established the specific pesticides she had been exposed to in the past. The distance determination was based on Dr. Chaim's understanding that sprays can go from a 900 to 1500-mile radius and the 1/2 mile notice is the maximum required by law. Although she suspected organophosphates were involved in Ms. Pellegrino's first exposure between April and June of 1993, this was not confirmed.

    
    

58. Within the files of DACS for Kathryn Kaeding are two physician's certifications, dated February 16, 1993 and June 12, 1992, by Dr. Ahner. On the forms it is noted that she is sensitive to "Hydrocarbons, all pesticides, chlorinated compounds." Her diagnosed condition is "allergy - hypersensitivity

    - immune dysfunction." There is no other evidence in the record, from the individual or her physician, regarding Ms. Kaeding's condition or eligibility for registration.

    
    

59. Nor is there any evidence, other than her application, regarding the eligibility of Carol Arrighi. From the form in the record it is impossible to determine whether the individual or her physician completed the application, or whether the signature on the certification is that of a physician.

    
    

60. The certification for Kayleigh Marie Nunez is signed by Dr. Chaim. It states that she is sensitive to "organophosphates, all pesticides and herbicides, one-half mile limit requested."

    
    

61. The certification for Estelle Greene, dated July 2, 1993, is signed by Linda Marraccini, M.D. The class of pesticides to which the individual is sensitive is noted as "All."

62. Dr. Robbins appears to have signed certifications for Betty Jane Napier and for Susan and Donald Maxwell (both Maxwells are included on a single application form). The notation typed on Ms. Napier's form states: "Known to react to ethylene oxide." The pesticides or class of pesticides listed on Mr. and Mrs. Maxwell's form are "organophosphates, organochlorines, pyrethroids."

    
    

63. The certification by Dr. Chaim on Barbara Rauker's application states that she is sensitive to "all classes of pesticides." The certification by Caren B. Singer, M.D. on Judith Lessne's application states that she is sensitive to "Pesticides in general, Petroleum based products."

    
    

    Pesticide Industry Practice

    
    

64. A reliable pest control operator will determine the nature and extent of a problem before attempting a treatment. The operator must consider the surroundings of the area to be treated and the environmental factors such as rain, wind and sun. Treatment is tailored to reduce drift, which not only can cause harm but also causes needless expense due to waste.

    
    

65. Good industry practice includes training technicians and carefully following the manufacturer's instructions regarding the most safe and effective use of the product. While careful use can control drift, unexpected wind gusts can disperse the product beyond its target, and even Petitioners' expert concedes that a post-application vapor of pesticide could drift for a half mile.

    
    

    Pesticide Sensitivity

    
    

66. According to the Department's expert, Dr. Teaf, pesticide sensitivity by definition relates only to the substance that was the subject of an initial exposure and subsequent exposure that causes a reaction in an individual. The medical and toxicological link for pesticide sensitivity is much tighter than for the condition referred to as "multiple chemical sensitivities" or "MCS".

    
    

67. There is no generally accepted definition in the scientific community of what constitutes pesticide sensitivity and there is no simple blood test to establish pesticide sensitivity.

    
    

68. While there is commonly a psychological or psychogenic factor in pesticide sensitivity just as there is with other health conditions like heart problems, pesticide sensitivity is not solely a psychogenic or psychological condition. Pesticide sensitivity can be reasonably determined, even through the mechanism by which an individual acquires that condition is not clearly understood.

    
    

69. A reaction to a specific chemical or pesticide class can be documented and quantified by a physical change in the body. Exposure histories are significant so long as the pesticide or pesticide class is identified. However, exposure histories alone are insufficient unless other causes are reasonably ruled out. Specifically, many individuals in the cases here were determined to be sensitive to many different agents: molds and pollens, food, animals, petroleum products and perfumes. It is impossible to deduce that an individual's symptoms are caused by exposure to one, rather than another agent, unless there is some process of elimination or isolation of the suspect agent.

    Summary of Findings

    
    

70. Evidence of the process for diagnosis for the individual respondents in this proceeding is meager. Not one individual applicant testified, and only eleven applicants were addressed through the deposition testimony of their certifying physicians. Not one of the certifying physicians could testify that he or she actually followed the guidelines provided by the department, which guidelines, although non-binding, are accepted by experts for both sides of the dispute as important to good diagnosis.

    
    

71. Dr. Klemsawesch, a very credible and competent witness and specialist in allergy and immunology, conceded that in order to respond to questions regarding the connection between exposures to pesticides and subsequent reactions, from a scientific point of view, you would need to test people by exposures in a controlled fashion and determine their physiological response. For Dr. Klemsawesch's patients, Ms. Naglich and Ms. Metzger, the specific events reported to him stood out beyond the background of their other common allergies to lead him to his conclusion that the chemicals he listed on their certificates were having an effect. That conclusion falls short of the finding required by law for the extra distance notice.

    
    

72. Dr. Klemsawesch's conclusion, like that of the other certifying physicians, was based primarily on the individual's history. While that is an appropriate and accepted method of diagnosis, the histories described in the record of this proceeding are wholly lacking in the detail necessary for the determination required by law. No individual in the multiple cases consolidated presented adequate proof of the need for notification at greater distance than that specified for pesticide-sensitive persons.

    
    

    CONCLUSIONS OF LAW

    
    

73. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to section 120.57(1), Florida Statutes and 482.2265(3)(d), Florida Statutes.

    
    

74. The Department of Agriculture and Consumer Services regulates pest control business and activities pursuant to Chapter 482, F.S. It licenses qualified business pursuant to section 482.071, F.S.; and it issues operator's certificates to qualified individuals. It also issues limited certificates pursuant to section 482.155, F.S., to qualified persons who are governmental employees or who apply pesticides to private property where the public may be exposed, including, for example, public buildings, schools, apartments, restaurants, common areas of condominiums and grocery stores.

    
    

75. Section 482.2265(3), F.S. creates the registry of pesticide-sensitive and especially pesticide-sensitive persons. It is this latter category that is at issue in this proceeding. This is the first administrative hearing arising from the department's attempt to implement that section.

76. Section 482.2265(3), F.S. provides, in full: (3)(a) The department shall maintain a

    current registry of pesticide-sensitive persons. Upon request, the department shall register any person who pays a registration fee of $50 and submits to the department:

    1. A certificate from a physician qualified in a category established by department rule which states that the person has a sensitivity

       to a particular pesticide or class of pesticides and which either states that the physician has a preexisting doctor-patient relationship with that person or provides a detailed medical history of that person for the particular pesticide-sensitivity designation; or

    2. A physician's certificate stating that the person is currently under the physician's care for a diagnosed condition or ailment for which the physician has documented proof that the normal application of a pesticide according to good industry practice and standards would aggravate the condition or ailment to such an extent that placement on the registry for prior notification of the application of a pesticide is necessary to protect that person's health. Persons placed on the registry pursuant to this subparagraph must provide an annual update of their physician's certificate in order to renew their registry participation.

       
       

       A person desiring to have his name continue to appear on the registry from year to year must submit an annual renewal fee of $10. In a bona Fide case of a person's financial inability to pay the initial registration renewal fee or

       any subsequent registration fee, the department may grant a waiver of the fee or all such fees.

       1. The department shall notify all licen- sees and limited certificateholders quarterly or more often if necessary of the names and addresses of those persons who are currently registered as pesticide-sensitive and of any special notifica- tion requirements established pursuant to para- graph (d)

       2. Before making a pesticide application to a lawn, plant bed, or exterior foliage on property contiguous with or adjacent to the property on which the primary residence of a person registered under paragraph (a) is located, a licensee or limited certificateholder must notify that person at least 24 hours before applying the pesticide. Notification may be

          made by telephone, by mail, in person, or by hand delivery. Notification must also include information on the type of pesticide to be used,

          except in an instance of pesticide application of a small amount on an infestation or disease that is discovered onsite at the time of treatment.

       3. The department may designate a particular person as especially pesticide-sensitive if the person, in addition to submitting the documentation and fees required by paragraph (a), submits clear and convincing proof that he has a hypersensitivity

          to pesticides to such an extent that the notification required by paragraph (c) would not be adequate to prevent his health from being endangered and that notification of pesticide application at a greater distance from his residence is necessary to protect his health. Any person registered under this para- graph must be provided notification of a pesticide application at a greater distance from the person's residence as fixed by the department based on the proof submitted by the registrant. However, the department may not require notification of pesticide application at a distance any greater than one-half mile from the boundaries of the property where a hypersensitive person resides, and it shall limit such extra-distance notifications to instances of

          use of the pesticide or pesticide class to which sensitivity is documented, or for which the depart- ment determines sensitivity is scientifically probable. Additionally, the department may limit notification requirements with respect to the application of a pesticide in excess of a stipulated quantity. Further, a distance requirement must be set at the minimum distance required to prevent the health of the registrant from being endangered.

          Such notification shall include the specific vicinity to which the pesticide is to be applied. The department's determination with respect to an application to designate a person under this paragraph as especially pesticide-sensitive is subject to the procedure set forth in s. 120.57,

          and pest control operators conducting business in the general area of the person's residence have

          standing to participate as parties to such proceeding.

       4. It is the responsibility of a registrant under this subsection to notify the department of the addresses of the properties or residences that fall within the applicable contiguous, adjacent, or special-distance parameters for notification. The

          department shall supply this information to licensees and certificateholders.

       5. This section does not create any duties, liabilities, or obligations of licensees or certificateholders to registrants other than those expressly stated in this section.

       
       

       (Emphasis added)

       
       

77. Petitioners have established their standing in this proceeding.

    
    

78. The applicants for designation as especially pesticide-sensitive have the burden of proving their entitlement. Balino v. Department of Health and Rehabilitative Services, 348 So2d 349 (Fla. 1st DCA 1977), Florida Department of Transportation v. J.W.W. Co., Inc., 396 So2d 778 (Fla. 1st DCA 1981).

    
    

79. That entitlement is based on submittal of the documentation described in section 482.2265(3)(a), F.S. (the threshold requirement) plus clear and convincing proof that the individual is so hypersensitive to pesticides that

    notice must be given of pesticide application beyond property contiguous or adjacent to the individual's primary residence.

    
    

80. Several individuals failed to prove the threshold requirement of a "certificate from a physician qualified in a category established by department rule." Rule 5E-14.146, F.A.C. provides, in its entirety:

    
    

    5E-14.146 Registry of Pesticide Sensitive Persons. In accordance with Chapter 482.2265(3)(a)1.,

    F.S., Physicians who are board certified and recognized by the American Board of Medical Specialties in one or more of the following medical specialties are qualified to designate and certify a person pesticide sensitive, namely:

    (1)Allergy. (2)Toxicology. (3)Occupational medicine.

    
    

81. Evidence in this proceeding established that Drs. Waickman, Klemsawesch and Wubbena meet the requirements of the rule. Drs. Robbins and Chaim are osteopathic physicians certified in related areas by other professional accreditation bodies but there is no evidence that they are either board-certified or "recognized" by the American Board of Medical Specialties in the specified areas. Dr. Chaim is board-certified in a different area by the American Board of Medical Specialties, a fact which belies any suggestion that osteopathic physicians would be automatically excluded from the rule's purview.

    
    

82. To the extent that the department, by policy, has determined that physicians other than those specified in its rule may be qualified, that policy was neither explicated nor justified in this proceeding. See section 120.57(1)(b)15. An agency may not deviate from its own rules. Decarion v. Martinez, 537 So2d 1083(Fla. 1st DCA 1989). Moreover, when an agency, as here, is directed to adopt criteria by rule, ad hoc development through litigation is inappropriate. Merritt v. DBPR, Board of Chiropractic, Fla. 1st DCA, case #94- 2831 (Slip Op. filed May 22, 1995).

    
    

83. There is no evidence at all of the qualifications of the other physicians who certified the applications at issue in this proceeding, and in one case, Rory P. Doyle for Carol Arrighi, it is not clear that the certification is signed by a physician.

    
    

84. Assuming that the threshold requirements were met, the second prong of the test prescribes an elevated standard of proof, "clear and convincing." The Fourth District Court of Appeal in Slomowitz v. Walker, 429 So2d 797, 800 (Fla. 4th DCA 1983) provides this workable definition of the standard:

    
    

    ...[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must

    be precise and explicit and the witnesses must

    be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to

    the truth of the allegations sought to be established.

85. No evidence, other than the certificate in the agency's file, was presented by or on behalf of Kathryn Kaeding, Carol Arrighi, Kayleigh Nunez, Estelle Greene, Betty Jane Napier, Susan Maxwell, Barbara Rauker or Judith Lessne. The certificate standing alone is uncorroborated hearsay and may not be relied upon for a finding of eligibility in this proceeding. See section 120.58(1)(a), F.S., State, Department of Administration v. Porter, 591 So2d 1108 (Fla. 2nd DCA 1992). The agency may have been fully justified in accepting conclusory statements of the physicians in their certifications on the individual applications, but once 120.57 is invoked, the underlying basis for those statements must be examined.

    
    

86. This underlying basis is lacking even for those individuals whose physicians testified and were cross-examined. The histories relied on by the physicians may have been adequate to establish their patients' pesticide sensitivity. Those histories are not adequate to establish in the mind of this trier of fact a firm belief or conviction, without hesitancy, that the standard notice of subsection 482.2265(3)(c), F.S. would not be adequate, and some greater distance notice is necessary to prevent endangerment to the individual's health.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the agency enter its final order denying the petition in Case #94-3237 (Carol Ann Rodriguez) as moot (see preliminary statement); and granting the remaining petitions by denying the applications for designation as "especially pesticide-sensitive."

RECOMMENDED in Tallahassee, Leon County, Florida, this 31st day of May, 1995.

MARY W. CLARK, 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 31st day of May, 1995.

APPENDIX A

INDIVIDUAL CERTIFYING

DOAH CASE# RESPONDENT PHYSICIAN

APPENDIX B

The following constitute specific rulings on the findings of fact proposed by the parties.

Florida Pest Control Association, Inc.

Adopted, or adopted in substance or in summary form: #1-7, 11-18, 22-28, 38, 41, 48-49, 62-82, 88-90, 93-105, 107-109, 115-121, 124-126, 129-133, 137,

140-147, 158.

Accepted, but not incorporated, as unnecessary or immaterial: #8-10, 19- 21, 29-37, 39-40, 42-47, 50-61, 83-87, 91, 106, 110-114, 122-123, 127-128, 134-

136, 138-139, 148-157.

Rejected, as inconsistent with or unsupported by the weight of evidence:

#92.

Certified Operators of Southwest Florida, Inc., Lan-Mac Pest Control-Englewood,Inc.

Lan-Mac Pest Control-Ft. Myers, Inc.

Adopted, or adopted in substance or in summary form: #1-5, 8-11, 13-15, 18-22, 24-25.

Rejected, as inconsistent with, or unsupported by the weight of evidence:

#27.

(The remaining numbered paragraphs are designated as conclusions of law.) The Department of Agriculture and Consumer Services

Adopted, or adopted in substance or in summary form: #1-4, first sentence of #5, 6, 8-10.

Accepted, but not incorporated, as unnecessary or immaterial: #7. Rejected, as inconsistent with or unsupported by the weight of evidence:

Second sentence of #5. Individual Respondents

Adopted, or adopted in substance or in summary form: #2-7, 10, 12-14, 22,

24-33, 40, 42, 47-56, 58-63, 66, 69-71, 80, 82-86, 90-95, 101, 106-109, 111-113.

Accepted, but not incorporated, as unnecessary or immaterial: #8-9, 11, 15-21, 23, 34-38 [the issue is not the patient's sensitivity, but the extra distance notice requirement], 43, 46, 67 (not the required Board), 68, 72, 74-

77, 81, 88, 98, 99, 100, 115.

Rejected, as inconsistent with or unsupported by the weight of evidence: #1, 39, 41, 44-45, 57, 64, 65, 73, 78-79, 87, 89, 96-97, 102-105, 110, 114, 116-

117.

COPIES FURNISHED:

Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler General Counsel The Capitol, PL-10

Tallahassee, Florida 32399-0810

Robert G. Worley, Esquire Dept. of Agriculture & Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

Jonathan A. Glogau, Esquire Assistant Attorney General The Capitol, PL-01

Tallahassee, Florida 32399-1050

Lance McKinney, Esquire

1. O. Box 88

   Cape Coral, Florida 33910-0088

   
   

   Howard J. Hochman, Esquire 1320 S. Dixie Highway Suite 1180

   Coral Gables, Florida 33146

   
   

   NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

   
   

   All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the Final Order in this case concerning their 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.

   ================================================================= AGENCY FINAL ORDER

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

   
   

   STATE OF FLORIDA

   DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

   
   

   FLORIDA PEST CONTROL ASSOCIATION,	DOAH NOS.	94-2801	94-2866
   INC., et al.,		94-2802	94-2867
   		94-2803	94-2869
   Petitioners,		94-2805	94-2871
   		94-2852	94-2872
   vs.		94-2853	94-2873
   		94-2855	94-3234
   DEPARTMENT OF AGRICULTURE AND		94-2857	94-3235
   CONSUMER SERVICES, and		94-2858	94-3236
   CHERYL MANSKER, et al.,		94-2859	94-6376
   		94-2862
   Respondents.		94-2864
   		94-2865
   /	FDACS NO.	94-0336

   
   

   
   

   FINAL ORDER

   
   

   THIS MATTER, arising under the Structural Pest Control Act, Fla. Stat.

   Sections 482.011 - 482.242, is before the Commissioner of Agriculture as agency head of the Florida Department of Agriculture and Consumer Services (hereinafter referred to as the "Department") for final agency action.

   
   

   BACKGROUND

   
   

   This action involves twenty-two consolidated cases relating to registry as especially pesticide sensitive persons with the Department. The individual respondents applied for designation as especially pesticide sensitive, after which such applications were published in the Florida Administrative Weekly.

   Petitioners timely requested formal administrative hearings which were forwarded to the Division of Administrative Hearings, the cases were consolidated and set for hearing. Final Hearing was held on February 14 and 15, 1995. At hearing, the Department presented the testimony of John Mulrennan, Ph.D. and Christopher Teaf, Ph.D. The individual respondents presented deposition testimony of: Francis Waickman, M.D.; Paul Frederick Wubbena, Jr., M.D.; Albert Robbins, D.O.; Hana Chaim, D.O.; and S.J. Klamsawesch, M.D. Certified Operators of Southwest Florida, Inc., presented the testimony of Larry McKinney; Florida Pest Control Association, Inc., presented live testimony of Roger A. Yeary, D.V.M. and deposition testimony of Ronald Gots, M.D., Ph.D. Pursuant to Fla. Stat. Section 120.57(1)(b)4, Ashley Simmons Hotz was permitted to present oral testimony.

   
   

   The Department proffered eleven exhibits, Individual Respondents proffered one exhibit, Florida Pest Control Association, Inc. proffered four exhibits, and Certified Operators of Southwest Florida, Inc. proffered one exhibit. All exhibits were entered into evidence. Without objection, the Hearing Officer took official recognition of Department of Health and Rehabilitative Services rule 10D-55.146, F.A.C.

   The Hearing Officer in this matter issued a Recommended Order on May 31, 1995 which recommended the Commissioner issue a final order denying the petition of Carol Ann Rodriguez, Case No. 94-3237 as moot and granting the remaining petitions by denying the applications for designation as "especially pesticide- sensitive." Petitioners Certified Operators of Southwest Florida, Inc., Lan-Mac Pest Control-Ft. Myers, Inc., Lan-Mac Pest Control-Englewood, Inc. and Individual Respondents filed timely Exceptions to Recommended Order.

   
   

   DISCUSSION

   
   

   Under Florida law: "It is for the hearing officer to consider all the evidence presented, resolve conflicts, judge the credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent substantial evidence." Martuccio v. Dept. of Pro.

   Regulation, 622 So.2d 607, 609 (Fla. 1st DCA 1993) and "The agency may not reject or modify the finding of facts . . . unless the agency . . .[determines]

   . . . the findings of fact were not based upon competent substantial evidence .

   . . ". Dept. of Business & Pro. Reg. v. McCarthy, 638 So.2d. 574, 575 (Fla. 1st DCA 1993), Fla. Stat. Section 120.57(1)(b)(10).

   
   

   Florida's statutory scheme, specifically Fla. Stat. Section 120.57(1)(b)(10), sets the standard by which a recommended order is to be reviewed. That statute reads as follows:

   
   

   The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order. The agency may not reject or modify the findings of fact, including findings of fact that form the basis for an agency statement, unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of were not based upon competent substantial evidence or that the proceedings on which the proceedings were based did not comply with essential requirements of law . . .

   
   

   Fla. Stat. Section 120.57(1)(b)(10)(Emphasis supplied).

   
   

   Therefore, unless the hearing officer's findings of fact are clearly erroneous and not based on competent substantial evidence, only then may an agency substitute its finding of fact for that of the hearing officer. Further:

   
   

   . . . when the question is simply the weight or credibility of testimony by witnesses, or when factual issues are otherwise susceptible of ordinary methods of proof, or when concerning those facts the agency may not claim special insight . . . reviewing court will naturally accord greater probative force to the hearing officers contrary findings . . .

   
   

   Dunham v. Highlands County School Bd., 652 So.2d 894,896 (Fla. 1st DCA 1995) citing McDonald v. Dep't of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

   
   

   RULING ON PETITIONERS' WRITTEN EXCEPTIONS

   (Petitioners Certified Operators of Southwest Florida, Inc., Lan-Mac Pest Control-Ft. Myers, Inc. and Lan-Mac

   Pest Control-Englewood, Inc.)

   Petitioners Certified Operators of Southwest Florida, Inc., Lan-Mac Pest Control-Ft. Myers, Inc. and Lan-Mac Pest Control-Englewood, Inc. list as exceptions 21 numbered paragraphs. Contained within those numbered paragraphs, Petitioners provide for one hundred seven exceptions.

   
   

   1. Petitioners' Exception no. 1. Petitioners take exception to Finding of Fact, Paragraph 18 of the Recommended Order. That Finding of Fact is as follows:

      
      

      18. According to FPCA expert, Dr. Ronald Gots, these guidelines, with minor modifications, are appropriate in determining whether or not someone has sustained a pesticide exposure and reaction and whether there is a causal relationship between a more distant application and endangerment to health. In Dr. Gots' view, the clinical manifestations ought to be the kind that have been specifically associated with the particular substance at issue. Dr. Gots also contends that specific laboratory evidence is not always required to determine pesticide toxicity. Guideline number four

      is particularly important in dealing with symptoms from remote applications.

      
      

      Recommended Order, p. 9-10.

      
      

      A review of Dr. Gots' testimony demonstrates that the hearing officer's finding is supported by competent substantial evidence " . . . which the agency may not reject or modify . . ." Fla. Stat. Section 120.57(1)(b)(10), McCarthy, Supra. Therefore, the exception is denied.

      
      

   2. Petitioners' Exceptions nos. 2, 3 and 5. Petitioners' exceptions 2, 3 and 5 are conditional, that is to say they are only exceptions if the hearing officer's findings mean something other than what the plain language of the finding conveys. There is substantial competent evidence to support these findings based upon the plain and obvious meaning of the words employed, therefore, Petitioners' Exceptions 2, 3 and 5 are denied.

      
      

   3. Petitioners' Exception no. 4. Petitioners take exception to Finding of Fact, paragraph 68 of the Recommended Order. That Finding Fact reads as follows:

      
      

      68. While there is commonly a psychological or psychogenic factor in pesticide sensitivity just as there is with other health conditions like heart problems, pesticide sensitivity is not solely a psychogenic or psychological condition. Pesticide sensitivity can be reasonably determined, even through the mechanism by which an individual acquires that condition is not clearly understood.

      
      

      Recommended Order p. 23

      
      

      A complete review of the file in this matter, including all expert testimony received into evidence, demonstrates the presence of competent

      substantial evidence to support this finding, therefore Petitioners Exception no. 4 is denied.

      
      

   4. Petitioners' Exceptions nos. 6 through 21. Petitioners' exceptions 6 through 21 consist of objections to the hearing officer's Appendix B wherein she explicitly ruled upon each proposed finding of fact submitted by the parties. Little or no grounds are given for the exceptions other than petitioners disagreement with the particular finding in question. The findings by the hearing officer are supported by competent substantial evidence, therefore, Petitioners' exceptions 6 through 21 are denied.

RULING ON RESPONDENTS' EXCEPTIONS

(Individual Respondents)

Individual Respondents argue that the clear and convincing standard as adopted by the hearing officer is wrong and that the hearing officer should have accepted the physicians certificates, as did the Department, as clear and convincing proof of the requisite sensitivity to pesticides. Further, Individual Respondents assert that whether clear and convincing proof has been presented is a question of law for the Department to rule upon, citing 1800 Atlantic Developers v. Dept of Env. Reg., 552 So.2d 946 (Fla. 1st DCA 1989).

In 1800 Atlantic, the court held that DER had unlawfully abdicated its statutory responsibility by accepting a hearing officer's finding of fact determining the establishment of mitigating measures in connection with an application for a dredge and fill permit. In other words, the statute explicitly conferred responsibility upon DER to define the mitigative measures that would be sufficient to offset any adverse effects of the dredge and fill operation and that such a determination by DER is not subject to a Section

120.57 hearing. The court held that whether or not such mitigative measures were sufficient to offset perceived adverse effects of the dredge and fill operation was a question of law, not fact and that the function of a hearing officer is that of:

. . . fact finder, it was the hearing officer's function to make findings of fact regarding disputed factual issues underlying the conditions set by DER and the implementation

of and compliance with the mitigative conditions set by DER.

1800 Atlantic, supra at 955.

The statutory framework under which 1800 Atlantic was decided is different than Section 482.2265. Under Section 482.2265, pest control operators have specific standing to bring a Section 120.57 challenge to the Department's determination of especially pesticide-sensitive:

The department's determination with respect to an application to designate a person under this paragraph as especially pesticide-sensitive is

subject to the proceedings set forth in s. 120.57, and all pest control operators conducting

business in the general area of the person's residence have standing to participate as parties to such proceedings. Fla. Stat. Section 482.2265(3)(d).

Once an agency's actions have been administratively challenged and the matter referred to the Division of Administrative Hearings for assignment of a hearing officer, that hearing officers role has been recognized as one that "independently serves the public interest by providing a forum to expose, inform and challenge agency policy and discretion." State Ex Rel. Dept. of General Services v. Willis, 344 So.2d 580, 591 (Fla. 3d DCA 1977). Further, "[s]ection

120.57 proceedings are intended to formulate final agency action, not to review action taken earlier and preliminarily. "McDonald v. Dep't of Banking and Finance, supra at 584. Therefore, a different standard of proof may be employed by a hearing officer when "formulat[ing] final agency action". id.

The standard of "clear and convincing proof" in the day-to-day administration of governmental affairs, as in the initial determination of especially pesticide-sensitive status, by necessity is different than that extant under a Section 120.57 hearing. Government decisions, such as that required by the Department under Section 482.2265(3), cannot approach the detailed analysis of a hearing officer in a setting where subpoenaed witness testimony and documents are offered into evidence for inquiry and evaluation under the analytical eye of a legally trained officer in a quasi-judicial forum. Government can ill afford to turn every decision into a judicial inquiry, nor can it make every application by the citizenry an adversarial encounter; government should not be hostile to those who seek its shelter. That is not to say the Department lacks authority to overrule a hearing officer's conclusion as to what constitutes clear and convincing proof in other circumstances. Here, however, where the hearing officer's determination was inextricably linked to the facts of the case and the overall statutory scheme specifically contemplates a Section 120.57 hearing, the Department is loathe to overrule it.

Individual Respondents cite Christo v. Dept. of Banking & Fin., 649 So.2d

318 (Fla. 1st DCA 1995) in support of their contention that, in this proceeding, Petitioners cannot challenge the Department's non-rule policy of accepting the certifications of osteopathic doctors as to a person's status as pesticide- sensitive. The court in Christo held that Fla. Stat. Section 120.535 was the exclusive mechanism to challenge an agency's failure to adopt statements of general applicability as rules. Christo does not apply because it did not deal with, as we have here, a current promulgated rule which conflicts with an existing unpromulgated rule.

The department does not agree with the hearing officer's conclusion that the Department failed to justify its unpromulgated rule pursuant to Fla. Stat. Section 120.57(b)(15). That statute provides:

A statement shall not enlarge, modify, or contravene the specific provision of law implemented or otherwise exceed delegated legislative authority. The statement applied as a result of a proceeding pursuant to this subsection shall be demonstrated to be within the scope of delegated legislative authority.

Fla. Stat. Section 120.57(b)(15).

Section 482.2265(3)(a)1 directs the Department to establish by rule the qualification of physicians necessary to certify a person pesticide-sensitive. The testimony of Dr. John Mulrennan, Chief, Bureau of Entomology and Pest Control, established the rationale of accepting the certifications of

osteopathic doctors who are board certified by their professional authorities as equivalent to medical doctors certified by the American Board of Medical Specialties. (Tr. 30-35) Dr. Mulrennan specifically stated at hearing:

This is correspondence that -- some of it was initiated by us in responses to some questions regarding qualifications of osteopathic physicians and whether they would be equivalent or were recognized by the American Board of Medical Specialties. And based on the information we got back from the American Board of Medical Specialties, which indicated that they could be recognized by that, that Dr.

Robbins made a very strong statement that he was recognized by the American Board of Medical Specialties. Essentially this was the information that I used to establish the

policy, you know, as far as I could tell.

And based on reading the rule and my interpretation of the rule about the word "recognized" in there, they are recognized. Based on that, that is why we accepted those particular physician certifications.

Tr. 30-31.

Although osteopathic doctors were not specifically mentioned in the rule, the Department investigated their qualifications and determined they were recognized by the American Board of Medical Specialties. The intent of the rule was to ensure that "qualified" physicians make the initial diagnosis of especially pesticide-sensitive, therefore, accepting a diagnosis by an equivalent osteopathic doctor was merely a deviation from the rule, which administrative agencies are allowed to do. The court has stated, "Administrative agencies are not foreclosed from deviating from their own rules, but they must adequately explain their deviation in their order" E. M. Watkins & Co. v. Board of Regents, 414 So.2d 583, 588 (Fla. 1st DCA 1982). Under the circumstances of this case, and the explanation given by the Department, the hearing officer's finding of fact that the Department did not explicate or justify it's deviation from the promulgated rule is rejected. Further, the hearing officer's conclusion that the Department may not deviated from its own rule is overruled pursuant to Watkins, supra.

Individual Respondents further complain that the standard set by the hearing officer for persons seeking "especially pesticide-sensitive" status is impossible to meet. Whether that standard, set by the legislature, is one that is impossible to attain is not within the hearing officer's or the Department's province to change.

A review of the entire record does not reveal that the findings of the hearing officer are not supported by competent substantial evidence nor that any errors of law would change the outcome. Accordingly, Individual Respondents' exceptions are denied.

CONCLUSION

As pronounced in Heifetz v. Department of Banking and Finance, 475 So.2d 1277, 1282 (Fla. 1st DCA 1985):

If, as is often the case, the evidence presented supports two inconsistent findings, it is the hearing officer's role to decide the issue one way or the other. The agency may

not reject the hearing officer's finding unless there is no competent substantial evidence

from which the finding could reasonable be inferred. The agency is not authorized to weigh the evidence presented, judge credibility of witnesses, or otherwise interpret the

evidence to fit its desired ultimate conclusion.

Therefore, following the court's admonishment in Heifetz and Martuccio, supra, the Department will resist the temptation to change the findings made by the hearing officer concerning the quantity or quality of evidence presented pertaining to the diagnostic process utilized by physicians when attempting to make a diagnosis of especially pesticide-sensitive. As a result of this finding, the hearing officer concluded that the Individual Respondents failed to show clearly and convincingly that they were especially pesticide-sensitive. An agency cannot substitute its view for that of the hearing officer if the recommended order and the findings are supported by competent substantial evidence. School Bd. of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981); Intern. Brotherhood of Painters v. Anderson, 401 So.2d 824 (Fla. 5th DCA 1981).

Based upon the standard of review permitted, this agency cannot substitute its findings when there is competent substantial evidence in the record to support the findings of the hearing officer. Upon consideration of the foregoing, and being otherwise fully advised in the premises,

IT IS ORDERED AND ADJUDGED:

1. Finding of Fact 26 which provides "Nothing on the certificate indicates that R. Doyle is a physician" is rejected. The Department's form requires the person signing to certify ". . . that I am a qualified medical specialist, board certified and recognized by the American Board of Medical Specialties..." The name "Roy P. Doyle" is printed in the space provided on the certificate for "Physician's Name." Although it is faint and hard to read, the notation "B.C. allergy" appears on the form beside the name Roy P. Doyle.

   
   

2. Finding of Fact 82 which provides "To the extent that the department, by policy, has determined that physicians other than those specified in its rule may be qualified, that policy was neither explicated nor justified in this proceeding", is rejected.

   
   

3. All other findings of fact specifically adopted by the hearing officer are adopted by the Department.

   
   

4. The hearing officer's Conclusions of Law, except as modified in the ruling on exceptions, are adopted as the Department's.

5. All proposed findings of fact "accepted but not incorporated as unnecessary or immaterial" or "rejected as inconsistent with or unsupported by the weight of evidence" in Exhibit B of the Recommended Order are rejected.

   
   

6. The exceptions of Certified Operators of Southwest Florida, Inc.; Lan- Mac Pest Control-Ft. Myers, Inc.; and Lan-Mac Pest Control-Englewood, Inc. are denied.

   
   

7. The exceptions of Individual Respondents are denied.

   
   

8. The Individual Respondents, including Carol Ann Rodriguez, are hereby removed from the Department's registry as especially pesticide-sensitive; however, they shall remain on the pesticide sensitive list entitling them only to notice of the application of pesticides to adjacent and contiguous property pursuant to Fla. Stat. Section 482.2265(3)(c).

REVIEW

Any party to these proceedings adversely affected by this Final Order is entitled to seek review of this Order pursuant to Fla. Stat. 120.68, and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be initiated by filing a petition or notice of appeal with the Agency Clerk, 515, Mayo Building, Tallahassee, Florida 32399-0800, and a copy of the same with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order.

DONE AND ORDERED this 4th day of August, 1995.

BOB CRAWFORD

COMMISSIONER OF AGRICULTURE

ANN H. WAINWRIGHT

Assistant Commissioner

Florida Department of Agriculture and Consumer Services

FILED with the Agency Clerk this 4th day of August, 1995.

Agency Clerk

COPIES TO:

Mary Clark Robert Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

G. Worley, Esquire Department of Agriculture

and Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

Richard Tritschler General Counsel The Capitol, PL-10

Tallahassee, Florida 32399-0810

Lance McKinney, Esquire

P.O. Box 88

Cape Coral, Florida 33910-0088

Jonathan A. Glogau, Esquire Assistant Attorney General The Capitol, PL-01

Tallahassee, Florida 32399-1050

Howard J. Hochman, Esquire 1320 South Dixie Highway Suite 1180

Coral Gables, Florida 33146

Docket for Case No: 94-002801

Orders for Case No: 94-002801