STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES,

Petitioner,

vs.

JAMES BARTLEY,

Respondent.

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) Case No. 07-5026PL

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RECOMMENDED ORDER

This case came before Larry J. Sartin, an Administrative Law Judge of the Division of Administrative Hearings, on a factual record stipulated to by the parties.

APPEARANCES

For Petitioner: David W. Young, Senior Attorney

Office of the General Counsel Department of Agriculture and

Consumer Services

Mayo Building, Suite 520

407 South Calhoun Street Tallahassee, Florida 32399-0800

For Respondent: Howard J. Hochman, Esquire

7965 South West 104th Street, Suite 210 Miami, Florida 33331-2156

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent, James Bartley, violated Section 482.091(1), Florida Statutes (2007), as alleged in Petitioner’s Amended Administrative Complaint

issued by Petitioner, the Department of Agriculture and Consumer Services, on October 31, 2007, and, if so, what disciplinary action should be taken against his Florida pest control certified operator’s license.

PRELIMINARY STATEMENT

On or about September 13, 2007, the Department of Agriculture and Consumer Services issued an Administrative Complaint and Warning Letter, BEPC Case Number 07-1650, Administrative Complaint Number A51612, against James Bartley, an individual licensed as a Florida-certified pest control operator, in which it alleged that Respondent had committed a violation of Section 482.091(1), Florida Statutes (2007).

Petitioner alleged that Respondent committed the violation by failing to timely apply for a pest control employee identification card for Rudy Benvin while Respondent was the certified operator in charge of Diligent Environmental Services, Inc., or Diligent Lawn and Pest Control, Inc.

On or about October 4, 2007, Respondent, through counsel, filed a Petition for Formal Hearing disputing the facts upon which the Amended Administrative Complaint is based and requesting a formal administrative hearing pursuant to Sections 120.569, and 120.57(1), Florida Statutes (2007).On October 31, 2007, the matter was filed by Petitioner with the Division of Administrative hearings requesting that an administrative law

judge be assigned to conduct the formal administrative hearing requested by Respondent. The matter was designated DOAH Case No. 07-5026PL and was assigned to the undersigned.

In response to an Initial Order entered in this case, Petitioner filed a response requesting that this case be consolidated with DOAH Case No. 07-5027, an action by Petitioner against Diligent Lawn and Pest Control, Inc., and suggesting that a one-day hearing be scheduled to conduct the final hearing.

By Order of Consolidation entered November 9, 2007, this case and DOAH Case No. 07-5027 were consolidated. By Notice of Hearing entered the same day, the final hearing of the two cases was scheduled for January 7, 2008.

On November 28, 2007, Petitioner filed a request for hearing involving Diligent Environmental Services, Inc. The matter was designed DOAH Case No. 07-5417. In its response to the Initial Order in that case, Petitioner reported that the parties agreed that DOAH Case No. 07-5417 should be consolidated with this case and DOAH Case No. 07-5027. That request was granted by an Order of Consolidation entered December 10, 2007.

On December 21, 2007, the parties filed a Pre-Hearing Stipulation. The parties stipulated and agreed that the case against Diligent Lawn and Pest Control, Inc., DOAH Case No. 07- 5027, should be dismissed without prejudice; that Diligent

Environmental Services, Inc., while no longer disputing the alleged violation of Section 482.091(1), Florida Statutes (2007), in DOAH Case No. 07-5417, was not in agreement as to the appropriate penalty; and to the pertinent facts in this case.

On January 3, 2008, Petitioner filed a Motion to Relinquish Jurisdiction and Schedule Telephone Conference. In the Motion, it was pointed out that the parties had agreed to the dismissal of DOAH Case No. 07-5027, represented that they had reached a tentative settlement in DOAH Case No. 07-5417, and agreed that the facts stipulated to in the Pre-Hearing Stipulation resolved the material issues of fact in this case, DOAH Case No. 07- 5026PL. Petitioner also requested a telephone conference on this case.

On January 7, 2008, the requested telephone conference was held. During the conference, the parties requested that a recommended order be entered in this case, after the parties filed proposed recommended orders. This request was granted and the parties, by Order entered January 8, 2008, were given until January 18, 2007, to file proposed recommended orders.

By Order Closing Files entered January 8, 2008, DOAH Case Nos. 07-5027 and 07-5417 were closed, with leave for either party to request that DOAH Case No. 07-5417 be reopened should the settlement in that case be rejected by the Commissioner of

Agriculture; and the cancellation of the final hearing scheduled for January 7, 2008, in this case was memorialized.

Both parties filed Proposed Recommended Orders which have been fully considered in the preparation of this Recommended Order.

All further references to the Florida Statutes in this Recommended Order are to the 2007 edition.

FINDINGS OF FACT

1. Rudy L. Benvin was employed as a pest control employee by Diligent Environmental Services, Inc. (hereinafter referred to as “DESI”), on February 15, 2007. While DESI was the “licensee” for which Mr. Benvin was employed, the evidence failed to prove who the certified operator in charge (hereinafter referred to as the “Certified Operator”) was upon Mr. Benvin’s employment. Clearly, Mr. Bartley was not the Certified Operator when Mr. Benvin was employed or during the 30-day period thereafter.

2. DESI failed to apply for a pest control identification card for Mr. Benvin upon his employment, during the 30 days after his employment, or at any time that Mr. Benvin was employed by DESI.

3. Respondent, James Bartley, became the Certified Operator of DESI on April 12, 2007. Mr. Bartley was employed as the DESI Certified Operator until May 24, 2007. Mr. Benvin was

   still in the employee of DESI on April 12, 2007, and continued as an employee of DESI during the period that Mr. Bartley served as the DESI Certified Operator.

4. Because Mr. Benvin was already “employed” by DESI at the time Mr. Bartley became Certified Operator and had been continuously so employed since February 15, 2007, Mr. Bartley could not have, simply by becoming the DESI Certified Operator, “employed” Mr. Benvin.

5. On or about August 14, 2007, an application for an identification card was filed by Mr. Bartley with Petitioner, the Department of Agriculture and Consumer Services (hereinafter referred to as the “Department”). The name of the employing company reported on the application by Mr. Bartley was incorrect.

6. Mr. Benvin continued his employment with DESI until sometime during the week of September 9, 2007.

7. In settlement of DOAH Case No. 07-5417, DESI agreed that it had violated Section 482.091(1), Florida Statutes, by failing to apply for a pest control identification card for Mr. Benvin “within 30 days after employment of [Mr. Benvin] ”

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

8. 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.

   1. The Burden and Standard of Proof.

      
      

9. The Department seeks to impose penalties against Mr.

   
   

   Bartley through the Amended Administrative Complaint that include mandatory and discretionary suspension or revocation of his license. 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).

10. 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).

    1. The Charges of the Amended Administrative Complaint.

    
    

11. The Department has charged Mr. Bartley with having violated Section 482.091(1), Florida Statutes, which provides:

    (1)(a) Each employee who performs pest control for a licensee must have an identification card.

    
    

    (b) Either the licensee or the licensee's certified operator in charge must apply to the department for an identification card for each employee who will perform pest control therefor within 30 days after employment of that employee, on a form prescribed by the department. The licensee and the licensee's certified operator in charge are jointly responsible for obtaining such identification cards. (Emphasis added).

    
    

12. The Department asserts the following in Petitioner’s Proposed Recommended Order in support of its position that Mr. Bartley has violated Section 482.091(1), Florida Statutes:

    The Department asserts that the obligation of the [Certified Operator] pursuant to Fla. Stat. § 482.091(1)(b) to apply for a pest control employee identification card for an employee does not end after the first 30 days of that employee’s employment but is a continuing obligation. When a [Certified

    Operator] assumes the duties of his position, he has a duty along with the licensee to apply for a pest control identification card for each employee who will perform pest control within 30 days of employment of that employee. There is no dispute that Bartley was the [Certified Operator] of Diligent Environmental Services, Inc [sic] for more than 30 days from April 12, 2007 to May 24, 2007, and Benvin was employed as a pest control employee by the company during that entire time period.

    
    

13. In Respondent’s Proposed Findings of Fact, Conclusions of Law and Recommended Order, Mr. Bartley argues that, in order for the Department to prevail, it is necessary to find that Section 482.091(1), Florida Statutes, clearly creates a “continuing offense,” an offense that is not complete upon the first act. See United States v. De La Mata, 206 F.3d 1275 (11th Circuit 2001), cert. denied, 122 S. Ct. 1543, 535 U.S. 939, 152 L. Ed. 2d 469.

14. Petitioner’s and Respondent’s arguments are not persuasive. The unambiguous language of Section 482.091(1)(b), Florida Statutes, imposes an obligation on either the “licensee” or the “licensee’s certified operator in charge” to apply for an employee’s identification card; the application must be submitted “within 30 days after employment of that employee.”

15. The operative event which triggers the necessity to submit an application is the “employment” of an employee who is to provide pest control services. “Employment” is defined as:

    1. an act or instance of employing someone or something.

    2. the state of being employed; employ; service: to begin or terminate employment.

    3. an occupation by which a person earns a living; work; business.

    4. the total number of people gainfully employed or wording.

    5. an activity or the like that occupies a person’s time: She found knitting a comforting employment for her idle hours.

       
       

       Http://dictionary.reference.com/browse/employment

       
       

16. Applying the pertinent terms of Section 482.091(1) to this case, it is concluded that Mr. Bartley had no obligation to file an application for an identification card for Mr. Benvin:

1. Mr. Benvin is the “employee” in this case and was hired to perform pest control services;

2. Mr. Benvin began his “employment” on February 15, 2007;

   
   

3. On February 15, 2007, and for next 30 days, DESI was the “licensee” for whom Mr. Benvin was employed on February 15, 2007, to perform pest control services;

4. The evidence failed to prove who the Certified Operator for DESI was on February 15, 2007, and for the 30-day period thereafter. More importantly, the evidence failed to prove that Mr. Bartley was the Certified Operator on February 15, 2007, or during the 30-day period thereafter;

5. The “licensee,” DESI, and the Certified Operator, if there was one, when Mr. Benvin’s employment began, failed to

   file an application for an identification card for Mr. Benvin “within 30 days after employment of that employee ”;

6. Mr. Bartely became the Certified Operator for DESI 56 days after Mr. Benvin’s “employment” with DESI. It was, therefore, impossible for him, as Certified Operator of the “licensee,” to submit an application for an identification card for Mr. Benvin “within 30 days after employment of that employee

. . . .”

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services dismissing the Amended Administrative Complaint against James Bartley.

DONE AND ENTERED this 8th day of February, 2008, in Tallahassee, Leon County, Florida.

S

LARRY J. SARTIN

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 8th day of February, 2008.

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

Richard D. Tritschler, General Counsel Department of Agriculture and

Consumer Services Mayo Building, Suite 520

407 South Calhoun Street Tallahassee, Florida 32399-0800

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 these cases.

Docket for Case No: 07-005026PL

Orders for Case No: 07-005026PL