vs. ) Case No. 04-4465PL
Respondent. )
Pursuant to notice, a formal hearing was held in this case before Larry J. Sartin, an Administrative Law Judge of the Division of Administrative Hearings, on May 31, 2005, by video teleconference between sites in Miami and Tallahassee, Florida.
For Petitioner: David W. Young, Senior Attorney
For Respondent: Howard J. Hochman, Esquire
The issue in this case is whether Respondent, Alex Esteves, committed the violations alleged in Petitioner's Amended Administrative Complaint and, if so, the appropriate penalty.
On June 7, 2004, Petitioner issued an Administrative Complaint and Settlement Agreement, Administrative Complaint #A31575, BEPC (Bureau of Entomology and Pest Control) Case# 04- 648, alleging that Respondent had, by improperly applying a pesticide used for preconstruction soil treatments for the prevention of subterranean termites, violated "§ 482.051(5),
The final hearing was conducted as scheduled on May 31, 2005. The hearing was conducted by a video teleconference. The undersigned and counsel for Petitioner appeared from Tallahassee, Florida. Counsel for Respondent and the court reporter appeared from Miami, Florida.
No witnesses were called by either party at the final hearing. Without objection, Petitioner had admitted three exhibits. Respondent had admitted 11 exhibits, ten of which
consisted of deposition testimony taken in DOAH Case Nos. 04- 4317PL and 4318PL. Respondent's Exhibit 11 consisted of a portion of the deposition testimony of Phillip Helseth, taken April 4, 2000. Petitioner's objections to Respondent's exhibits and the attendant rulings thereon may be found in the Transcript of the final hearing.
Petitioner agreed at hearing that it would not present evidence as to whether Respondent's pretreatment application would effectively kill or control subterranean termites. Both parties stipulated that, if it is concluded that Respondent committed the violations at issue in this matter, a fine of
$400.00 would be an appropriate penalty.
At the conclusion of the hearing it was agreed that post- hearing argument would be filed 20 days from the filing of the transcript of the final hearing. By Notice of Filing Transcript entered August 8, 2005, the parties were informed that the Transcript had been filed August 4, 2005. The parties were informed that post-hearing submittals were due, therefore, on or before August 24, 2005. Petitioner filed Petitioner's Proposed Recommended Order on August 22, 2005. Respondent's Proposed Recommended Order was filed August 24, 2005. Both pleadings have been fully considered in issuing this Recommended Order.
Mr. Esteves has suggested that the Department has an informal policy, not adopted as a rule. Mr. Esteves has argued that the policy, which is hereinafter referred to as the "Non- Rule Policy," consists of:
waiving the strict or literal enforcement of Rule 5E-14.106(6) by not taking disciplinary action in all concentration or volume deficiencies, but instead pursuing a case by case review depending upon the circumstances presented.
Florida Administrative Code Rule 5E-14.106(6) (hereinafter referred to as the "Label Rule"), provides the following:
(6) Pesticides used for treatment for the prevention of subterranean termites for new construction shall be applied in the specific amounts, concentration, and treatment areas designated by the label.
According to Mr. Esteves, in some cases the Department does not apply the literal requirement of the Label Rule. Instead, the Department uses the Non-Rule Policy, a policy of
exercising discretion on a case-by-case basis to determine whether to seek disciplinary action against individuals who have failed to apply "the specific amounts, concentration, and treatment areas designated by [a] label."
Assuming that the Department utilizes the Non-rule Policy as suggested by Mr. Esteves, it is clear that the Non- Rule Policy has not been applied to Mr. Esteves. The only "policy" utilized by the Department against Mr. Esteves is one clearly defined and adopted as the Label Rule. Accordingly, the alleged existence and application of the Non-rule Policy, as defined by Mr. Esteves, having not been applied in this case, has not and cannot have any impact on Mr. Esteves. Consequently, Mr. Esteves has not been substantially affected by the existence or use of such a policy any more than a motorist who is given a speeding citation has been directly injured by the failure of a law enforcement officer to give another motorist anything more than a warning.
Mr. Esteves lacks standing to challenge the alleged Department's Non-rule Policy.
CONCLUSIONS OF LAW
Jurisdiction.
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of
the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2005).
The Burden and Standard of Proof.
The Department seeks to impose penalties against Mr. Esteves through the Amended Administrative Complaint which may include the suspension or revocation of his pest control certification. Therefore, the Department has the burden of proving the specific allegations of fact that support its charges by clear and convincing evidence. See Department of Banking and Finance, Division of Securities and Investor
Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); and Pou v.
Department of Insurance and Treasurer, 707 So. 2d 941 (Fla. 3d DCA 1998).
What constitutes "clear and convincing" evidence was described by the court in Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA 1989), as follows:
. . . [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 evidence 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 the firm belief or conviction, without hesitancy, as to the truth of the
allegations sought to be established. Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
See also In re Graziano, 696 So. 2d 744 (Fla. 1997); In re Davey, 645 So. 2d 398 (Fla. 1994); and Walker v. Florida Department of Business and Professional Regulation, 705 So. 2d 652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).
The Department's Charges.
Section 482.161(1), Florida Statutes (2003), authorizes the Department to take disciplinary action, which may include a written warning, the imposition of a fine, or the suspension or revocation of a pest control certification, if it finds that any of a number of acts specified in that Section have been committed.
In this case, the Amended Administrative Complaint includes the following allegations for which it seeks to discipline Mr. Esteves:
Deficient concentration of a pesticide used for preconstruction soil treatments for the prevention of subterranean termites is a violation of Section 482.051(5), F.S. and Rule 5E-14.106(6), F.A.C. and is construed as failure to use methods and materials suitable for pest control in violation of Section 482.161(1)(e), F.S.
The volume of of [sic] Dursban TC which Respondent applied to the site . . . was less than the volume required by label instructions for preconstruction soil treatment of subterranean termites. This is a violation of Rule 5E-14.106(6), F.A.C.
As discussed, infra, these allegations contain only one alleged violation of Section 482.161(1), Florida Statutes (2003).
Section 482.161(1)(e), Florida Statutes (2003).
Section 482.161(1)(e), Florida Statutes (2003), the only specific violation of Section 482.161(1), Florida Statutes (2003), which the Department has alleged Mr. Esteves violated, authorizes the Department to take disciplinary action if a certificate holder is found to be guilty of:
Knowingly making false or fraudulent claims with respect to pest control; knowingly misrepresenting the effects of materials or methods used in pest control; or knowingly failing to use materials or methods suitable for the pest control undertaken.
The evidence supports a conclusion that Mr. Esteves violated this provision when he knowingly made false claims with respect to his treatment of Lot 223. In particular,
Mr. Esteves' representation in the first Affidavit provided to Mr. Lucas concerning the concentration of Dursban TC he applied to Lot 223 was knowingly false and a misrepresentation of the methods he used in treating the lot.
The Department has proved clearly and convincingly that Mr. Esteves violated Section 482.161(1)(e), Florida Statutes (2003).
Section 482.051(5), Florida Statutes (2003).
Section 482.051(5), Florida Statutes (2003), which the Department has alleged Mr. Esteves "violated," provides the following:
482.051 Rules.--The department has
authority to adopt rules pursuant to ss.
120.536 (1) and 120.54 to implement the provisions of this chapter. Prior to proposing the adoption of a rule, the department shall counsel with members of the pest control industry concerning the proposed rule. The department shall adopt rules for the protection of the health, safety, and welfare of pest control employees and the general public which require:
. . . .
(5) That any pesticide used for preconstruction treatments for the prevention of subterranean termites be applied in the amount, concentration, and treatment area in accordance with the label; that a copy of the label of the registered pesticide being applied be carried in a vehicle at the site where the pesticide is being applied; and that the licensee maintain for 3 years the record of each preconstruction treatment, indicating the date of treatment, the location or address of the property treated, the total square footage of the structure treated, the type of pesticide applied, the concentration of each substance in the mixture applied, and the total amount of pesticide applied.
Section 482.051(5), Florida Statutes (2003), has no application to Mr. Esteves whatsoever. It simply imposes on the Department a duty and responsibility to adopt rules, including
one concerning the application of pesticides for preconstruction treatments for the prevention of subterranean termites.
Even if Section 482.051(5), Florida Statutes (2003), imposed some obligation on Mr. Esteves' conduct as a pest control certificateholder, which it does not, it does not authorize the Department to take disciplinary action against him for failing to meet that obligation.
The Department has failed to prove that Mr. Esteves has violated Section 482.051(5), Florida Statutes (2003).
The Label Rule.
The Label Rule, quoted in Finding of Fact 11, does place a restriction on Mr. Esteves' conduct as a pest control certificateholder. It does not, however, authorize the Department to take any disciplinary action for his failure to comply with that restriction.
The Department's authority to discipline a pest control certificateholder for a violation of any statute or rule which prescribes or proscribes the conduct of pest control certificateholders, including the Label Rule, is found in Section 482.161(1)(a), Florida Statutes (2003). That Section authorizes disciplinary action for a:
(a) Violation of any provision of this chapter or of any rule of the department adopted pursuant to this chapter.
It is only through Section 482.161(1)(a), Florida Statutes (2003), that the Department may impose discipline on Mr. Esteves for a violation of Label Rule. The Department has not, however, alleged that Mr. Esteves violated Section 482.161(1)(a), Florida Statutes (2003).
Generally, the grounds proven in support of an agency's assertion that a licensee should be disciplined are limited to those specifically alleged in the charging document. See, e.g., Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v. Department of State, 501 So. 2d
129 (Fla. 5th DCA 1987); and Hunter v. Department of Professional Regulation, 458 So. 2d 842 (Fla. 2nd DCA 1984).
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 (Fla. 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,
Board of Medical Examiners, 443 So. 2d 373 (Fla. 1st DCA 1983).
In this case, it was clear from the Amended Administrative Complaint that the Department intended to discipline Mr. Esteves, in part, for having violated the Label Rule. Mr. Esteves understood this and defended the charge accordingly. It is concluded, therefore, that, while the
Department should have specifically alleged in its Amended Administrative Complaint that Mr. Esteves violated Section 482.161(1)(a), Florida Statutes (2003), allowing the Department to now correct this oversight will cause no prejudice to
Mr. Esteves.
It is, therefore, concluded that the Department proved clearly and convincingly that Mr. Esteves violated the Label Rule and, thereby, violated Section 482.161(1)(a), Florida Statutes (2003).
Mr. Esteves' Affirmative Defenses.
In his Petition, Mr. Esteves alleged the following:
It is further asserted that the investigative process and determination of a factual/legal basis for the initiation of an administrative complaint is and historically has been inconsistent and arbitrarily applied in part due to the Department's failure to promulgate rules governing this process and/or its non-compliance with Florida Statute 286.011 which facilitates secretive and inconsistent action.
In an Order Denying Motion to Dismiss or Strike entered May 19, 2005, denying Petitioner's Motion to Dismiss or Strike Respondent's Affirmative Defense for Lack of Subject Matter Jurisdiction, it was indicated that Mr. Esteves, by his assertions quoted in paragraph 34, had raised three affirmative defenses. Those affirmative defenses were characterized in the May 19, 2005, Order as follows:
All involve the sufficiency of Petitioner's efforts to investigate the events which led to the issuance of, and the process followed in deciding to issue, the administrative complaint at issue in this case. One of those issues raises questions concerning Petitioner's compliance with Section 286.011, Florida Statutes. Two of the issues involve allegations that Petitioner violated Respondent's constitutional rights.
In his Proposed Recommended Order, Mr. Esteves has discussed his defenses under the headings "Florida Sunshine Law Violations," "Termite Pre-Treatment Concentration Rate Enforcement Policies," and "Inspection Procedure." Each of these defenses are considered separately, infra.
The Florida Sunshine Law Defense.
Section 286.011(1), Florida Statutes (2003) (hereinafter referred to as 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 commission must provide reasonable notice of all such meetings.
Section 286.011, Florida Statutes (2003), goes on to provide criminal and civil penalties/remedies which may be
imposed for a violation of the Sunshine Law. The penalties and remedies specifically provided in the Sunshine Law, however, may be imposed only by the courts. For example, Section 286.011(2), Florida Statutes (2003), provides the following remedy for a violation of the Sunshine Law: "The circuit courts of this state shall have jurisdiction to issue injunctions to enforce the purposes of this section upon application by any citizen of this state." Clearly, an injunction to enforce the purposes of Section 286.011(1), Florida Statutes (2003), may be granted only by the circuit courts. Consequently, this forum has no authority to impose any remedy or penalty provided for a violation of Section 286.011(1), Florida Statutes.
Despite the foregoing conclusion, in the May 19, 2005, Order Denying Motion to Dismiss or Strike and in an Order Denying Motion to Dismiss or Strike entered April 26, 2005, it was concluded that case law supports the conclusion that an alleged violation of the Sunshine Law may be raised and considered in this proceeding. Silver Express Co. v. District
Board of Lower Tribunal Trustess of Miami-Dade Community College, 691 So. 2d 1099 (Fla. 3d DCA 1997); and Board of County Commissioners of Orange County v. Central Florida Professional Fire Fighters Association, Local 2057, IAFF, 467 So. 2d 1023 (Fla. 5th DCA 1985), were cited in support of this conclusion.
The undersigned's reliance on the Silver Express and the Central Florida Professional Fire Fighters cases was overstated. In the latter case, the district court of appeal merely notes that the hearing officer addressed a Sunshine Law issue and that the Public Employees Relations Commission, upon consideration of the hearing officer's recommendations, "refused to hold that parties had a right under section 286.011 to tape- record negotiation sessions . . . ." Id. At 1024. The district court of appeal did not otherwise address the question of this forum's authority to take action in an administrative proceeding based upon a violation of the Sunshine Law.
In the Silver Express case, Silver Express, after administratively challenging its loss of a contract award, sought injunctive relief pursuant to Section 268.011(2), Florida Statutes. The district court of appeal, addressing the question of whether Silver Express was barred from bring the action for injunctive relief because it has not raised any issue concerning the alleged Sunshine Law violation in the administrative proceeding, stated the issue and ruled on it as follows:
We are next called upon to decide whether Silver Express is precluded from bringing its Sunshine Law action in the circuit court because it possibly had an administrative remedy available to it which it did not take; i.e., it could have challenged the bid process (as violative of the Sunshine Law) in the administrative hearing that was held to hear Silver Express' other objections to
the committee's ranking of the proposals. We conclude that whether Silver Express had an administrative remedy as to the Sunshine Law or not, such would have been personal to it as a bidder . . . . This remedy would be unavailable to non-bidders, thus unavailable to the public generally. The Sunshine Law, on the other hand, was enacted so as to permit any citizen to vindicate the public's interest in open government. . . .
That a citizen may have an available administrative remedy, does not preclude him from pursuing the public's statutory remedy on behalf of the public's interest in open government. The two are unrelated remedies, one for the individual's own private interest, the other for the goal of public vindication. . . .
Silver Express, 691 So. 2d at 1101. Thus, the precise holding of the Silver Express court is that an individual may pursue the remedies provided in the Sunshine Law regardless of whether the individual could have raised a Sunshine Law violation in support of his or her own personal interest in another forum. Whether the issue could have been raised in the administrative proceeding was not addressed by the court.
The court's ruling in Silver Express, while not specifically ruling on the issue, does, however, suggest that it may be possible to assert one's personal interest based upon an alleged Sunshine Law violation in an administrative proceeding. It is, therefore, concluded that, in an appropriate case, issues concerning whether an agency has failed to comply with the
Sunshine Law may be considered in this forum. This, however, is not such a case.
In his Proposed Recommended Order, Mr. Esteves has requested the following relief:
The issuance of the administrative complaint against the Respondent violated Florida Statutes 286.011, and is hereby declared void ab initio. Monroe County v. Pigeion Key Historical Parks, Inc., 647 So. 2d 37 (Fla. 3d DCA 1944), Town of Palm Beach v.
Gradison, 296 So. 2d 473 (Fla. 1974).
Such relief may be granted, not by this forum or by the Department, but only by the courts.
I. The Termite Pre-Treatment Concentration Rate Enforcement Policies Defense.
While this defense was characterized as a "constitutional" issue in the two Orders Denying Motion to Dismiss or Strike, it has not been argued as such in
Mr. Esteves' Proposed Recommended Order. Instead, Mr. Esteves has argued essentially that the Department utilizes its Non-rule Policy but has failed to explain or support it by competent and substantial evidence. Consequently, Mr. Esteves argues that the Department's "disciplinary action must be set aside. "
Mr. Esteves has defined the Non-rule policy as a practice of "waiving the strict or literal enforcement of Rule 5E-14.106(6) by not taking disciplinary action in all
concentration or volume deficiencies, but instead pursuing a case by case review depending upon the circumstances presented."
Mr. Esteves' challenge to the Non-rule Policy must be rejected for several reasons. First, Mr. Esteves has failed to show that he has been adversely affected by the Non-rule Policy and, therefore, 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 1998)("To establish that one is adversely affected it must be shown that the proposed action will cause immediate injury in fact; and that the injury is of the type that the pertinent statute was designed to protect.").
Assuming that the Non-rule Policy exists, it has not been relied upon by the Department in this case. Therefore, Mr. Esteves lacks standing to attack it. Assuming that the Non- rule Policy exists, its existence and use by the Department in other cases has caused no injury of any kind to Mr. Esteves in this case.
Secondly, if it is assumed that the Non-rule Policy exists, that Mr. Esteves has standing to challenge it, and that the Policy has not been explicated adequately in this proceeding by the Department, the appropriate remedy would be to disallow any reliance by the Department on the Non-rule Policy, not to set aside the Department's disciplinary action in this case.
Viewed most favorably for Mr. Esteves, the Department's refusal to apply the Non-rule Policy in this case, again assuming the Department has done so in other cases, might constitute a denial of Mr. Esteves equal protection rights, but Mr. Esteves has not advanced such an argument. Even if he had raised such an argument, this forum has no authority to rule on such a constitutional issue. 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).
J. The Inspection Procedure Defense.
Again, this issue was characterized as a "constitutional" argument in the Orders Denying Motion to Dismiss or Strike. Mr. Esteves, in his Proposed Recommended Order, has characterized this defense as follows:
The Department's inspection procedure is also so arbitrary and capricious as to deny Respondent administrative fairness and Due Process of Law under the 14th Amendment to the United States Constitution. . . .
To the extent Mr. Esteves has attempted to raise any constitutional issue concerning the investigative process, as stated in paragraph 49, this forum has no jurisdiction to consider such arguments.
Additionally, Section 120.57(5), Florida Statutes (2005), provides the following concerning agency investigations:
"This section does not apply to agency investigations preliminary to agency action." The issue raised by Mr. Esteves relates, not to whether he committed the violation alleged in the Amended Administrative Complaint, but to the Department's investigative process preliminary to issuing the Administrative Complaint and Settlement Agreement and, therefore, is not reviewable pursuant to Section 120.57(5), Florida Statutes (2005).
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department finding that Alex Esteves violated Section 482.161(1)(a) and (e), Florida Statutes (2003), and imposing an administrative fine, as stipulated to by the parties, of
$400.00.
DONE AND ENTERED this 16th day of September, 2005, in Tallahassee, Leon County, Florida.
LARRY J. SARTIN
Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 2005.
David W. Young, Senior Attorney Office of the General Counsel Department of Agriculture and
Howard J. Hochman, Esquire
Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and
Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and
Richard D. Tritschler, General Counsel Department of Agriculture and
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.
