STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF HEALTH AND REHABILITATIVE ) SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1564

)

JAMES D. COOLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing has been held before Charles C. Adams, a Hearing Officer of the Division of Administrative Hearings, at 10:00 a.m., October 31st, 1977, at Room D, State Office Building, 5920 Arlington Expressway, Jacksonville, Florida.

APPEARANCES

For Petitioner: Robert M. Eisenberg, Esquire

Department of Health and Rehabilitative Services

5920 Arlington Expressway Jacksonville, Florida

For Respondent: Paul M. Harden, Esquire

2601 Gulf Life Tower Jacksonville, Florida 32207

ISSUES

1. Whether or not the Respondent, James D. Cooley, unlawfully operated a pest control business that is not licensed by the Petitioner, in violation of Section 482.071, F.S.

   
   

2. Whether or not the Respondent, James D. Cooley, was in charge of the performance of pest control activities of a category by a licensee who was not properly certified, in violation of Section 482.111(4), F.S.

   
   

3. Whether or not the Respondent, James D. Cooley, performed pest control without a current valid identification card, in violation of Section 482.091, F.S.

   
   

4. Whether or not the Respondent, James D. Cooley, unlawfully solicited, practiced, performed or advertised for pest control in a fashion not provided by Chapter 482, F.S., in violation of Section 482.191, F.S.

5. Whether or not the Respondent, James D. Cooley, was guilty of fraudulent or misleading advertising or advertising in an unauthorized category, in violation of Section 482.161(8), F.S.

FINDINGS OF FACT

1. The Respondent, James D. Cooley, is the holder of pest control operator's certificate no. 2236 held with the Petitioner, State of Florida, Department of Health and Rehabilitative Services. This category of pest control operator's certificate qualifies the Respondent to perform treatment on termites and wood-infesting organisms.

   
   

2. The thrust of this action by the Petitioner pertains to its stated intent to suspend the aforementioned pest control operator's certificate held by the Respondent for a period of six (6) months, in accordance with the provisions of Chapter 482, F.S. It has as an aspect of the contention the failure of the Respondent to make a timely renewal of the pest control operator's certificate. The basis of the action by the Petitioner is premised upon a letter of August 8th, 1977, addressed to the Respondent, apprising him of the factual allegations and statutory references upon which its action is predicated. A copy of that letter is attached and made a part of the record herein.

   
   

3. The facts reveal that the Respondent, James D. Cooley, entered into an agreement with the proprietors of the "Romp and Tromp Day Care Center" located at 143 State Road 13, St. Johns County, Florida, for purposes of spraying for roaches. At that time, James D. Cooley was operating under the name "Tropical Pest Control", located at 355 Monument Road, Jacksonville, Florida. He identified himself in the form of a business card, which is Petitioner's Exhibit

   3 admitted into evidence, as a termite control and complete pest control service. Cooley did, in fact, spray the "Romp and Tromp Day Care Center" for the extermination of roaches. The sprayings took place in April and May, 1977. The substance being sprayed had a peculiar odor which the witnesses, Alice E. Stock and Ellen Perry Church indicated seemed like household bug spray. They also indicated that they noticed a resulting improvement with the roach problem after spraying.

   
   

4. James D. Cooley, under the guise of "Tropical Pest Control", also sprayed the residence of Ellen Perry Church, which is at 1975 State Road 13, St. Johns County, Florida. He sprayed this premises for roaches and ants. Again the substance had an odor which was similar to retail bug spray. The ant and roach problem did not go away in her home.

   
   

5. In both instances, when dealing with the proprietors of the "Romp and Tromp Day Care Center" and the residence of Ellen Perry Church, James D. Cooley had identified himself as the owner of "Tropical Pest Control" and a person qualified to perform complete pest control services.

   
   

6. In fact, James D. Cooley was not qualified to perform general household pest control, which is the category of treatment he was performing in spraying for roaches and ants. By that, it is meant that James D. Cooley at the time he performed the functions for the proprietors of the "Romp and Tromp Day Care Center" and the residence of Ellen Perry church, was not the holder of a certified operator's certificate in the category of general household pest control, as contemplated by Chapter 482, F.S. Moreover, the company he was operating under, to wit "Tropical Pest Control", was not licensed with the State of Florida, Department of Health and Rehabilitative Services and no identification card was on file for James D. Cooley as an employee of "Tropical

   Pest Control". The only document on record pertaining to James D. Cooley was one pertaining to his certified operator's certificate for termites and other wood-infesting organisms, license no. 2236, which at the time of the investigation of Mr. Cooley's activities was due for renewal in accordance with the terms of Section 482.071, F.S.

   
   

7. By his actions in dealing with the premises known as "Romp and Tromp Day Care Center" and the residence of Ellen Perry Church, the Respondent in performing these tasks as "Tropical Pest Control" was unlawfully operating a pest control business that was not licensed by the Petitioner, in violation of Section 482.071, F.S. Cooley was also in charge of the performance of pest control activities of a category in which he was not properly certified, namely general household pest control, thereby violating Section 482.111(4), F.S. In addition, James D. Cooley failed to have a valid pest control identification card as an employee of "Tropical Pest Control", because "Tropical Pest Control" was not licensed and no employee for that organization could have an identification card, thus caused a violation of Section 482.091, F.S. By his activities in dealing with the two permises, the Respondent was unlawfully soliciting, practicing, performing or advertising in pest control in a fashion that was not authorized by Chapter 482, F.S., in violation of Section 482.191(1), F.S. Finally, James D. Cooley, by holding himself out to be a certified operator in general household pest control, was guilty of fraudulent or misleading advertising or advertising in an unauthorized category, in violation of Section 482.161(8), F.S.

   
   

8. For these violations, set forth above, sufficient grounds have been established for the Petitioner to suspend, revoke or stop the issuance or renewal of any certificate or identification card, under authority of Section 482.161, F.S. The Petitioner has taken action to bring about a suspension of certified pest control operator's license no. 2236, in keeping with the provisions of Section 482.171, F.S., and is warranted in suspending, revoking or stopping the issuance or renewal of any certificate or identification card.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over this cause.

   
   

10. James D. Cooley, at the time he performed the functions for the proprietors of the "Romp and Tromp Day Care Center" and the residence of Ellen Perry Church, was not the holder of a certified operator's license in the category of general household pest control, and in performing these tasks as "Tropical Pest Control", was thereby in violation of Section 482.111(4), F.S.

    
    

11. James D. Cooley, by his actions in dealing with the premises known as "Romp and Tromp Day Care Center" and the residence of Ellen Perry Church under the name of "Tropical Pest Control", did unlawfully solicit, practice, perform and advertise for pest control in a fashion not Provided by Chapter 482, F.S., in violation of Section 482.191, F.S.

    
    

12. James D. Cooley, by his actions in dealing with the premises known as "Romp and Tromp Day Care Center" and the residence of Ellen Perry Church under the name of "Tropical Pest Control", was unlawfully operating a pest control business that was not licensed by the Petitioner, in violation of Section 482.071, F.S.

13. James D. Cooley failed to have a valid pest control identification card as am employee of "Tropical Pest Control", because "Tropical Pest Control" was not licensed and no employee for that organization could have an identification card, and was thereby in violation of Section 42.091, F.S.

    
    

14. James D. Cooley, by holding himself out to be a certified operator in general household pest control, was guilty of fraudulent or misleading advertising or advertising in an unauthorized category, in violation of Section 482.161(8), F.S.

    
    

15. The Petitioner, the State of Florida, Department of Health and Rehabilitative Services, is warranted in suspending, revoking or stopping the issuance or renewal of any certificate or identification card to James D. Cooley, the Respondent, in accordance with the provisions of Section 482.171, F.S.

RECOMMENDATION

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

That the Respondent, James D. Cooley, have his pest control operator's certificate no. 2236, for performing pest control in the category of termite and wood-infesting organisms, suspended for a period of six months, after which time he shall be entitled to renew his certified operator's certificate in the stated category, upon the payment of fees contemplated by Section 482.111, F. S.

DONE and ENTERED this 28th day of December, 1977, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Robert M. Eisenberg, Esquire Department of Health and

Rehabilitative Services 5920 Arlington Expressway Jacksonville, Florida

Paul M. Harden, Esquire 2601 Gulf Life Tower

Jacksonville, Florida 32207

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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Petitioner,

vs. CASE NO. 77-1564

JAMES D. COOLEY,

Respondent.

/

FINAL ORDER

The Department of Health and Rehabilitative Services being in receipt of the Recommended Order of the Hearing Officer of the Division of Administrative Hearings, of stipulation between the parties, and of Recommended Order of Office of Entomology, State of Florida Department of Health and Rehabilitative Services, copies of which are attached, hereby:

1. Concurs in, accepts, and adopts as its own the findings of fact of the Hearing Officer.

   
   

2. Concurs in, accepts, and adopts as its own the conclusions of law of the Hearing Officer,

WHEREFORE, it is hereby ORDERED that:

1. The respondent James D. Cooley's pest control operator's certificate number 2236, for performing pest control in the category of termite and wood- infesting organisms, be and is hereby suspended for a period of six (6) months.

   
   

2. At the end of said six (6) months the respondent, James D. Cooley, shall be and is entitled to renew his certified operator's certificate in the stated category upon the payment of fees contemplated by Section 482.11 F.S.

In consideration of the stipulation between the parties and the suggested order of the petitioner herein, the six (6) months' period of suspension here imposed run from August 8, 1977.

DONE and ORDERED this 7th day of March, 1978, in Tallahassee, Florida.

WILLIAM J. PAGE, JR., Secretary

State of Florida, Department of Health and Rehabilitative Services

COPIES FURNISHED:

Charles C. Adams, Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304

James D. Cooley

2248 Sheppard Street

Jacksonville, Florida 32211

Robert M. Eisenberg District IV Counsel Post Office Box 2417 F

Jacksonville, Florida 32231

Docket for Case No: 77-001564

Orders for Case No: 77-001564