STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS FLORIDA DEPARTMENT OF ) AGRICULTURE AND CONSUMER ) SERVICES, ) ) Petitioner, ) ) vs. ) Case No s . 04 4317PL ) 04 4318PL RONALD A. CIRRI N CIONE, ) ) Respondent. ) ) RECOMMENDED ORDER Pursuant to notice, a final hearing was held in th ese case s on March 8, 2005 , in Orlando, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of Administrative Hearings (DOAH ). APPEARANCES For Petitioner: David W. Young, Esquire Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Fl orida 32399 0800 For Respondent: Howard J. Hochman, Esquire Law Offices of Howard J. Hochman 7695 Southwest 104th Street Suite 210 Miami, Florida 33156 STATEMENT OF THE ISSUES Whether Respondent violated Subsections 482.051(5) and 482.161(1)(e), Florida Statutes (2003), 1/ and Florida Administrative Code Rules 5E 14.106(1) and 5E 14.106(6), and, if so, what discipline should be imposed. PRELIMINARY STATEMENT On June 7, 2004, Petitioner, Department of Agriculture and Consumer Services (Department), issued Administrative Complaint No. A31578 against Respondent, Ronald A. Cirrincione (Cirrincione), charging him with violating Subse ctions 482.051(5) and 482.161(1)(e), Florida Statutes , and Florida Administrative Code Rules 5E 14.106(6) and 5E 14.106(1) on March 22, 2004, by using a deficient concentration of pesticide in preconstruction soil treatments for the prevention of subterran ean termites and failing to use the necessary personal protective equipment as stated on the label of the product being applied. On June 7, 2004, the Department also issued Administrative Complaint No. A31577 against Cirrincione alleging that he violated Subsections 482.051(5) and 482.161(1)(e), Florida Statutes, and Florida Administrative Code Rule 5E 14.106(6) on March 16, 2004, by using a deficient concentration of pesticide in preconstruction soil treatments for the prevention of subterranean equipment . Administrative Complaint No. A31577 was amended on November 30, 2004, to include a count that Cirrincione failed to use the necessary personal protective equipment as state d on the product label in violation of Florida Administrative Code 5E 14.106(1). The cases were forwarded to DOAH on December 1, 2004, for assignment to an A dministrative L aw J udge. Administrative C omplaint No. A31577 was assigned DOAH C ase No. 04 4318PL, and Administrative Complaint No. A31578 was assigned DOAH C ase N o. 04 4317PL. The cases were consolidated by O rder dated December 9, 2004. The final hearing was scheduled for January 25, 2005, but was continued at the request of Cirrincione and was rescheduled. Cirrincione filed a challenge to certain practices of the Department, c laiming the practices constituted rules which had not been promulgated pursuant to the rulemaking procedures set forth in Section 120.54, Florida Statutes (2004) . The challenge was assigned DOAH C ase No. 05 0145RU . The final hearing in the rule challenge was also heard March 8, 2005. The parties filed a Pre Hearing Stipulation in which they agreed to certain facts contained in Section E of the Pre Hearing Stipulation. Those facts have been incorporated in this Recommended Order. At the final hearing, th e Department submitted Petitioner's Exhibits 1 through 7, which were admitted in to evidence. The Department did not call any witnesses. At the final hearing, Cirrincione testified in his own behalf and requested that the A ffidavit of James J. Hannan be a dmitted as a late filed exhibit. The A ffidavit of Mr. Hannan was filed on March 8, 2005, and was admitted as Respondent's Exhibit 1. Additionally, the parties agreed at the final hearing to "use the depositions in both cases," meaning the parties were al so relying on the depositions that were filed in DOAH Case No. 05 0145RU . On March 17, 2005, the Department filed Petitioner's Motion to Dismiss or Strike Respondent's Sunshine Law Affirmative Defense for Lack of Subject Matter Jurisdiction. The motion ha s been considered and is denied. The Transcript of the final hearing was filed on April 13, 2005. At the final hearing, the parties agreed to file their proposed recommended orders within 20 days of the filing of the Transcript. On April 29, 2005, Cirrin cione filed a Motion for Extension of Time in which to file the proposed recommended orders. The motion was granted, and the time for filing proposed recommended orders was extended to May 9, 2005. The Department filed its Proposed Recommended Order on M ay 9, 2005. Cirrincione filed his Proposed Recommended Order on May 10, 2005 , and filed two corrections of scrivener's errors on May 12, 2005. The parties' P roposed R ecommended O rders have been considered in the rendering of this Recommended Order. On Ju ne 7, 2005, the Department filed Petitioner's Notice of Additional Authority. Cirrincione filed Respondent's Notice of Additional Authority on June 8, 2005. FINDINGS OF FACT 1. At the times of the violations alleged in the Administrative Complaints, Cir rincione was an employee of Diligent Environmental Services. His responsibilities included performing preconstruction soil treatments for prevention of subterranean termites. 2. On March 16 and 22, 2004, Cirrincione was applying the pesticide , Dragnet SF R , at a construction site at 2050 Ocoee/Apopka Road, Ocoee, Florida. The label for Dragnet SFR required that the pesticide be applied at a 0.5 percent concentration for preconstruction soil treatment for subterranean termites. An inspector for the Depart ment took a sample each day of the pesticide being applied at the site. The samples were sent to the Department's laboratory for analysis. 3. The active ingredient in the pesticide, Dragnet SFR, is permethrin. The pesticide analysis reports prepared by the Department's laboratory showed that the concentration level of the pesticide in the sample taken on March 16, 2004, was 0.2 percent, which is 60 percent less than the 0.5 percent concentration required by the Dragnet SFR label. The laboratory report s howed that the concentration level for the sample taken on March 22, 2004, was 0.3 percent, which is 40 percent less than the label required concentration. The concentration amounts of the samples reported by the Department's laboratory were corroborated by independent laboratory analyses performed by Analytical Pesticide Technology Laboratories at the request of Cirrincione's counsel. 4. The parties stipulated , and it is found that on March 16 and 22 , 2004, when Cirrincione was applying Dragnet SFR at th e 2050 Ocoee/Apopka site, he was not wearing all of the protective equipment required by the Dragnet SFR pesticide label, including a long sleeved shirt, long pants, socks, shoes, and chemical resistant gloves. CONCLUSIONS OF LAW 5. The Division of Admini strative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2004). 6. The Department has the burden to establish the violations alleged in the A dministrative C omplaint s by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Co. , 670 So. 2d 932, 935 (Fla. 1996). The Department alleged that Cirrincione violated Subsections 482.051(5) and 482.161(1)(e), Florida Statutes, and Florida Administrative Cod e Rules 5E 14.106(1) and 5E 14.106(6). 7. Subsection 482.051(5), Florida Statutes, provides that the Department shall adopt rules which provide "[t]hat any pesticide used for preconstruction treatments for the prevention of subterranean termites be appli ed in the amount, concentration, and treatment area in accordance with the label." In response to this statutory directive, the Department promulgated Florida Administrative Code Rule 5E 14.106(6), which provides: Pesticides used for treatment for the pre vention of subterranean termites for new construction shall be applied at the specific amounts, concentration, and treatment areas designated by the label. 8. The Department has established by clear and convincing evidence that Cirrincione violated Flori da Administrative Code Rule 5E 14.106(6), by failing to apply the pesticide , Dragnet SFR , in accordance with the pesticide's label on March 16 and 22, 2004, at the 2050 Ocoee/Apopka site. 9. The authority for the Department to discipline a person for a v iolation of any statute or rule is found in Subsection 482.161(1)(a), Florida Statutes, which provides that disciplinary action may be taken for a "[v]iolation of any provision of this chapter or of any rule of the department adopted pursuant to this chapt er. " The Department has not alleged that Cirrincione violated Subsection 482.161(1)(a), Florida Statutes. Instead, the Department has alleged that Cirrincione violated Subsection 482.051(5), Florida Statutes, which merely provides the authority to promul gate rules requiring pesticides to be applied in accordance with the label. 10. Generally, the grounds proven in support of an agency's assertion that a licensee should be discipline d are limited to those specifically alleged in the charging document. See Cottrill v. Department of Insurance , 685 So. 2d 1371 (Fla. 1st DCA 1996). An incorrect statutory citation in the charging instrument, however, is not fatal if the alleged offending acts are adequately described. See B.H. v. State , 645 So. 2d 987, 996 (F la. 1994); Maravel v. Department of Professional Regulation, Board of Medical Examiners , 498 So. 2d 481 (Fla. 1st DCA 1986); and Farzad v. Department of Professional Regulation , 443 So. 2d 373 (Fla. 1st DCA 1983). 11. In the instant cases, it is clear from the Administrative Complaints that the Department intended to discipline Cirrincione for a violation of Florida Administrative Code Rule 5E 14.106(6), and Cirrincione understood and defended the charge accordingly. It is concluded, therefore, that while the Department should have specifically alleged in its Administrative Complaints that Cirrincione violated Subsection 482.161(1)(a), Florida Statutes, allowing the Department to correct this oversight will cause no prejudice to Cirrincione. 12. The Departm ent has established by clear and convincing evidence that Cirrincione violated Subsection 482.16 1 (1)(a), Florida Statutes, by violating Florida Administrative Code Rule 5E 14.106(6). 13. Subsection 482.161(1)(e), Florida Statutes, provides that the Departm ent may take disciplinary action against a person for "knowingly failing to use materials or methods suitable for the pest control undertaken." Florida Administrative Code Rule 5E 14.106(1), provides: Only those pesticides having federal or state label re gistration 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 Agricul ture, or the Department. 14. The Department has established by clear and convincing evidence that Cirrincione knowingly failed to wear all the protective gear required by the label for Dragnet SFR when he was applying the pesticide on March 16 and 22, 200 4, at the 2050 Ocoee/Apopka site. Thus, the Department has established that Cirrincione violated Subsection 482.161(1)(e), Florida Statutes, and Florida Administrative Code Rule 5E 14.106(1). 15. Cirrincione has raised the following affirmative defense in his requests for administrative hearings: Whether or not the complaint was issued as a result of an investigative process and probable cause determination that failed to comply with the requirements of Florida Statute 286.011. 16. Subsection 286.011(1), Florida Statutes (the Sunshine Law), provides the following: All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or co mmission must provide reasonable notice of all such meetings. 17. Section 286.011, Florida Statutes, also provides for criminal and non criminal penalties for a violation of Subsection 286.011(1), Florida Statutes. These penalties may only be imposed by courts. Subsection 286.011(2), Florida Statutes, provides: "The circuit courts of this state shall have jurisdiction to issue injunctions to enforce the purposes of this section upon application by a citizen of this state." The enforcement of a violatio n of the Sunshine Law is through the court system and not through the administrative process. D OAH does not have jurisdiction to impose any remedy or penalty provided for a violation of Subsection 286.011(1), Florida Statutes. 18. Cirrincione has also ra ised an affirmative defense that the Department has adopted an informal policy by which the Department does not consistently enforce Florida Administrative Code Rule 5E 14.106(6) and does not take enforcement action when the pesticide being applied is betw een 80 and 99 percent of the rate specified by the pesticide label rate. The deficient applications made by Cirrincione were 60 and 40 percent of the rate required by the Dragnet SFR label. If such an informal policy existed, it was not applied in the in stant case s . Thus, Cirrincione has failed to establish that he was adversely affected by the informal policy and lacks standing to challenge it. See Advocacy Center for Persons with Disabilities, Inc. v. Department of Children and Family Services , 721 So . 2d 753, 755 (Fla. 1st DCA 1988). 19. Cirrincione has raised as an affirmative defense that the collection methods and investigatory methods used by the Department violated administrative fairness and equal protection under the 14th Amendment to the Unit ed States Constitution. DOAH does not have jurisdiction to rule on such constitutional issues. See Central Florida Investments, Inc. v. Orange County Code Enforcement Board , 790 So. 2d 593 (Fla. 5th DCA 2001); and Department of Revenue v. Young American Builders , 330 So. 2d 864 (Fla. 1st DCA 1976). 20. Cirrincione has challenged the investigatory process used by the Department prior to the issuance of the Administrative Complaints. Subsection 120.57(5), Florida Statutes, provides the following concerning agency investigations: "This section does not apply to agency investigations preliminary to agency action." The issues raised by Cirrincione concerning the investigatory process are not reviewable in this administrative proceeding. RECOMMENDATION Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ronald Cirrincione violated Subsections 482.161(1)(a) and (e), Florida Statutes, and Florida Administrative Code Rules 5E 14.106(1) and ( 6) ; issuing warning letters for the violations of failing to wear protective equipment as specified by the pesticide label ; and imposing an administrative fine of $400 for each violation of applying a deficient concentration of pesticide, for a total of $8 00. DONE AND ENT ERED this 3rd day of January , 2006 , in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Ta llahassee, Florida 32399 3060 (850) 488 9675 SUNCOM 278 9675 Fax Filing (850) 921 6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January , 2006 . ENDNOTES 1/ Unless otherwise indicated all re ferences to Florida Statutes are to the 2003 version. COPIES FURNISHED : David W. Young, Esquire Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399 0800 Howard J. Hochman, Esqu ire Law Offices of Howard J. Hochman 7695 Southwest 104th Street Suite 210 Miami, Florida 33156 Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and Consumer Services 407 South Calhoun Street Mail Station 38 Tallah assee, Florida 32399 0800 Richard Ditschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399 0810 NOTICE OF RIGHT TO SUBMIT EXCEPTIONS All parties have the right to submit w ritten exceptions within 15 days from the date of 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: 04-004318PL

Orders for Case No: 04-004318PL