STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Petitioner, )

)

vs. )

)

FRANK C. BAKER, )

)

Respondent. )

Case No. 05-0023

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case before Florence Snyder Rivas, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, by video teleconference at sites in Tallahassee, and Miami, Florida, on March 15, 2005.

APPEARANCES

For Petitioner: David W. Young, Esquire

Department of Agriculture and Consumer Services

Mayo Building, Suite 520

407 South Calhoun Street Tallahassee, Florida 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 ISSUE

Whether the Respondent violated Florida law regulating the manner in which pesticide chemicals are to be utilized and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Amended Administrative Complaint dated February 2, 2005, Petitioner Florida Department of Agriculture and Consumer Affairs (Petitioner) alleged that Respondent Frank C. Baker (Respondent or Baker) had violated Florida law regulating the manner in which pesticide chemicals are to utilized; specifically, Respondent was charged with violating Florida Administrative Code Rule 5E-14.106(6).

Respondent timely requested a formal hearing to contest the charge.

At the commencement of the final hearing, the parties stipulated that the concentration of a pesticide known as Dursban TC, which Respondent applied at 7750 Okeechobee Boulevard, West Palm Beach, Florida on February 21, 2004, was less than the 0.5% concentration required by the label for preconstruction soil treatment for subterranean termite prevention. The parties further stipulated that an administrative fine of $400.00 is an appropriate penalty if the allegations of the administrative complaint are proved.

The identity of witnesses and exhibits and attendant rulings are set forth in the one-volume transcript of the proceedings filed April 18, 2005.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the duty to prosecute administrative complaints against operators, applicators, and licensed pest control businesses pursuant to Section 482.011, et seq., Florida Statutes.

2. Respondent is at all relevant times a licensed operator and applicator, subject to Petitioner's regulatory jurisdiction.

3. On or about February 21, 2004, Respondent was performing preconstruction termite treatment services at a job site at 7750 Okeechobee Boulevard in West Palm Beach, Florida, utilizing a pesticide known as Dursban TC.

4. Label instructions for Dursban TC provide that a 0.5 percent concentration be utilized for preconstruction treatment for the prevention of subterranean termites.

5. Baker admits he did not follow the label instruction; rather, the concentration of pesticide was less than one tenth of the 0.5 percent concentration provided for on the label instructions as regards the pre-construction soil treatment for subterranean termites.

6. Florida Administrative Code Rule 5E-14.106(6) states in pertinent part:

   Pesticides used for treatment for the prevention of subterranean termites for new construction shall be applied at the specific amounts, concentration, and treatment areas designated by the label.

   
   

7. Baker defends his failure to follow the label instructions on the grounds that such instructions call for a higher concentration of pesticide than is actually necessary to accomplish an effective termite treatment. Even if, as Baker contends, the label instructions suggest a higher concentration of pesticide than is actually necessary to accomplish an effective termite treatment, that is not grounds for him, or Petitioner, to disregard the Rule mandating that label instructions be followed.

8. Pesticide usage is highly regulated due to the potential of such chemicals to impact public health, safety and welfare. § 482.011, et seq., Fla. Stat. Changes in the regulations must come from the legislature, and cannot be made on an ad hoc basis by individual operators.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat.

10. To prevail, Petitioner must prove the material allegations of the administrative complaint by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

11. Based upon the parties' pre-hearing stipulation and the evidence of record, it is concluded that Petitioner has fulfilled its burden to prove a violation of Florida Administrative Code Rule 5E-14.106(6).

12. The parties have agreed and the record supports a finding that under all the circumstances of this case, an administrative fine of $400.00 is an appropriate sanction to be imposed upon a finding of guilt.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that a final order be entered assessing a fine of $400.00 against Respondent for violation of Florida Administrative Code Rule 5E-14.106 (6).

DONE AND ENTERED this 5th day of August, 2005, in Tallahassee, Leon County, Florida.

S

FLORENCE SNYDER RIVAS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, 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 5th day of August, 2005.

COPIES FURNISHED:

Howard J. Hochman, Esquire

Law Offices of Howard J. Hochman 7695 Southwest 104th Street Suite 210

Miami, Florida 33156

David W. Young, Esquire Department of Agriculture and

Consumer Services

Mayo Building, Suite 520

407 South Calhoun Street Tallahassee, Florida 32399-0800

Brenda D Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and

Consumer Services

407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32399-0800

Richard D. Tritschler, General Counsel Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810

Honorable Charles H. Bronson Commissioner of Agriculture 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 written 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: 05-000023

Orders for Case No: 05-000023