STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES D. COOLEY, AND JAMES D. ) COOLEY d/b/a MURDER, INC., )

)

Petitioners, )

)

vs. ) CASE NO. 77-1606

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

SERVICES, )

)

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 Respondent: Robert M. Eisenberg, Esquire

Department of Health and Rehabilitative Services

5920 Arlington Expressway Jacksonville, Florida

For Petitioner: Paul M. Harden, Esquire

2601 Gulf Life Tower Jacksonville, Florida 32207

ISSUE

1. Whether or not James D. Cooley, d/b/a Murder, Inc., is entitled to a business license to engage in pest control in Florida, in the category of general household pest control.

   
   

2. Whether or not James D. Cooley is entitled to the issuance of an identification card under the licensee James D. Cooley, d/b/a Murder, Inc., and in direction and control of James D. Cooley, certified pest control operator.

   
   

3. Whether or not James D. Cooley is entitled to the issuance of a certified pest control operator's license in the general household category.

FINDINGS OF FACT

1. The Petitioner, James D. Cooley, is the holder of pest control operator's certificate no. 2236 held with the Respondent, State of Florida, Department of Health and Rehabilitative Services. This category of pest control

   operator's certificate qualifies the Petitioner to perform treatment on termites and wood-infesting organisms.

   
   

2. By separate action, the Respondent has moved to suspend the aforementioned pest control operator's certificate held by the Petitioner 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 Petitioner to make a timely renewal of the pest control operator's certificate. The basis of this separate action by the Respondent is premised upon a letter of August 8th, 1977, addressed to the Petitioner, 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 Petitioner, 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 in the Division of Administrative Hearings' Case Number 77-1564), as a termite control and complete pest control service. Cooley did, in fact, spray the "Romp and Troop 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 Troop 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 Troop 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, 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 license 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 Troop 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 Respondent, 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 am employee of "Tropical Pest Control", because "Tropical Pest Control" was not licensed and no employee for that organization could have an identification card, thus causing a violation of Section 482.091, F.S. By his activities in dealing with the two premises, 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 Respondent to suspend, revoke or stop the issuance or renewal of any certificate or identification card, under authority of Section 482.161, F.S. The Respondent 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.

   
   

9. In consideration of the violations established in the Petitioner's dealings with the "Romp and Troop Day Care Center" and Ellen Church, the Respondent has refused to issue a business license to James Cooley, d/b/a Murder, Inc., which intends to do business in the general household pest control category. If James D. Cooley is not granted his certified operator's license in the category of general household pest control, then he may not serve as a certified operator in that category, in behalf of the proposed licensee James D. Cooley, d/b/a Murder, Inc. If James D. Cooley is unable to serve in the capacity of certified pest control operator, general household category, them the business known as James D. Cooley, d/b/a Murder, Inc., must employ am alternate certified operator in the general household category, before the Respondent shall issue a license to the business to operate in the general household category. That operator must be a resident of the State of Florida. This is in keeping with the license requirements of Section 482.071, F.S.

   
   

10. James D. Cooley does not qualify for certification in the category of general household pest control, because through the violations established in his dealings with the "Romp and Tromp Day Care Center" and Ellen Perry Church, he has shown himself not to be of good character and good reputation for fair dealings, as required by Section 482.132, F.S., prior to the issuance of any certificate. Therefore, the only possibility that James D. Cooley, d/b/a Murder, Inc., would have for operating under the general household pest control category and for receiving a license would be to have another duly qualified certified operator in general household pest control to be hired by the licensee.

    
    

11. No identification card can be issued to James D. Cooley or any other person who might be employed by James D. Cooley, d/b/a Murder, Inc., to operate in the general household pest control business, unless it will be under the supervision of a certified pest control operator in the specialty of general household pest control, other than James D. Cooley.

12. The results of the examination which James D. Cooley completed in the general household pest control specialty, should stand until he is otherwise qualified or the requirements for certification have changed prior to his obtaining further qualification in the terms of his good character and good reputation for fair dealings. This conclusion is reached upon a reading of Rule 10D-55.177 (5 FAC) which only prohibits those persons from being examined who have been suspended, revoked or on probation. James D. Cooley was not in one of those categories prior to taking the examination which he passed and was notified of the passing grade in September, 1977.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. For the reasons stated in the Findings of Fact, the applicant, James

    D. Cooley, d/b/a Murder, Inc., is not entitled to a general household pest control license, unless some person other than James D. Cooley will act as the certified operator in general household pest control.

    
    

15. James D. Cooley or other employees will only be entitled to hold an identification card in the company known as James D. Cooley, d/b/a Murder, Inc., which contemplates doing business in the general household pest control category, if there were a person other than James D. Cooley who is a certified pest control operator participating in the category of general household pest control.

    
    

16. James D. Cooley is not entitled to receive a certificate as a general household pest control operator because in his dealings with "Romp and Troop Day Care Center" and Ellen Perry Church, he has shown that he is not of good character and good reputation for fair dealing necessary under the terms of Section 482.132, F.S.

RECOMMENDATION

Pursuant to the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

1. That a business license for James D. Cooley, d/b/a Murder, Inc., only be issued if some person other than James D. Cooley will be serving in the capacity of a certified pest control operator in the category of general household pest control, which is the desired license specialty.

   
   

2. That no identification card be issued to James D. Cooley as an employee of James D. Cooley, d/b/a Murder, Inc., in view of the fact that the license is not being issued to that organization and no employee shall receive an identification card without being employed by a licensed pest control business and under the authority of a certified operator. This position of the recommendation shall be in effect until and unless a separate certified operator is employed, which would allow the license to be given to James D. Cooley, d/b/a Murder, Inc.

   
   

3. That James D. Cooley's application to be a certified operator in the category of general household pest control be denied, because he has been shown to' be lacking in good character and good reputation for fair dealings.

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

COPIES FURNISHED:

Robert M. Eisenberg, Esquire Department of HRS

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

JAMES D. COOLEY, AND JAMES D. COOLEY d/b/a MURDER, INC.,

Petitioners,

vs. CASE NO. 77-1606

STATE OF FLORIDA, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

FINAL ORDER

The Department of Health and Rehabilitative Services being in receipt of the Recommended Order of the Hearing Officer, of the Proposed Order of the Respondent, and of Stipulation between the parties, 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. Application for a business license by James D. Cooley, d/b/a Murder, Inc., be and the same is hereby DENIED and can be issued only if same person other than James D. Cooley will be serving in the capacity of certified pest control operator in the category of general household pest control, which is the desired license specialty.

   
   

2. The application of James D. Cooley for identification card as an employee of James D. Cooley, d/b/a Murder, Inc., be and the same is hereby DENIED in view of the fact that a license has not been issued to the organization and that no employee shall receive an identification card without being employed by a licensed pest control business and under the authority of a certified operator. This position of the recommendation shall be in effect until and unless a separate certified operator is employed, which would allow the license to be given to James D. Cooley, d/b/a Murder, Inc.

   
   

3. That application of James D. Cooley for certified operator's certificate in the category of general household pest control be and the same is hereby DENIED because Petitioner, James D. Cooley, has been shown to be lacking in good character and good reputation for fair dealings.

   
   

4. That upon investigation by the Office of Entomology and presentation of evidence, by James D. Cooley that he is no longer lacking in good character and good reputation for fair dealings, which proof is acceptable to the Office of Entomology, State of Florida Department of Health and Rehabilitative Services, the Office of Entomology shall issue in compliance with law, to James D. Cooley, a certified operator's certificate in the category of general household pest control, an identification card, or a business license.

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

P. O. Box 2417 F Jacksonville, Florida 32231

Docket for Case No: 77-001606

Orders for Case No: 77-001606