STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1235

)

NATIONWIDE PROFESSIONAL )

ENTERPRISES, INC., and )

RAUL O. GONZALEZ, )

)

Respondents. )

)

RECOMMENDED ORDER

This matter came on for hearing in Miami, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on November 8, 1978. The parties were represented by counsel:

For Petitioner: Morton Laitner, Esquire

1350 Northwest 14th Street Miami, Florida 33125

For Respondent: William J. Swink, Esquire

2915 Southwest 13th Street Miami, Florida 33145

By letter to respondent Gonzalez dated June 5, 1978, Andrew J. Rogers gave notice of petitioner's "intent . . . to revoke the Pest Control Business License of NATIONWIDE PROFESSIONAL ENTERPRISES (or Enterprises), INC., . . . [Raul O.

Gonzalez'] Pest Control Operator's Certificate No. 1705 in all categories issued, and [Raul O. Gonzalez') Special Identification Card (Fumigation) No. 137 (Issued 4 January 1973). . . ." As grounds for the intended revocation, the letter alleged that Mr. Gonzalez "engaged . . . in the business of pest control from on or about 31 January to on or about 17 March 1978 . . . without being licensed . . . in violation of Subsections 482.071(1) and (2), F.S., and Subsection 10D-55.142(5), F.A.C.; and without holding a valid identification card in violation of Subsections 482.091(2) and (4) of the Florida Statutes;" that Mr. Gonzalez fumigated "in a . . . careless manner in violation of Subsection 10D-55.108(1) and (2), 10D-55.110(1), 10D-55.111(7), 10D-55.112(3)

and 10D-55.113(2) of the Florida Administrative Code;" and that Mr. Gonzalez "made use of misleading, deceptive and unauthorized advertising by using various unregistered firm names in violation of Subsection 482.161(8), F.S., and Subsections 10D-55.103(1) and (2), and 10D-55.142(3)(a) and (c) of the Florida Administrative Code."

FINDINGS OF FACT

1. After working for other exterminating companies since 1970, respondent Raul O. Gonzalez joined with his wife and a Mr. Zwass to form Nationwide

   Exterminating Company, a Florida corporation organized originally as a vehicle for Mr. Gonzalez's extermination business but eventually also employing roofers. When respondent and Mr. Zwass came to a parting of the ways, respondent decided to form his own company. On January 20, 1978, he wrote petitioner that he was "resigning all duties with [Nationwide Exterminating Company) as of Jan 30 1978," petitioner's exhibit No. 1, and requested cancellation of his Nationwide Exterminating Company identification card, effective January 30, 1978. On March 8, 1978, petitioner received respondent's application for a pest control business license for Nationwide Professional Enterprises, Inc. (NPE), but returned the application to respondent for his signature. Petitioner received the application a second time on March 14, 1978, and issued a pest control business license for NPE to respondent on March 17, 1978.

   
   

2. Between January 31, 1978, and March 16, 1978, inclusive, respondent undertook 12 assignments for Target Pest Control (Target). Charles M. Kirby, Target's proprietor, holds a certified fumigator's license but prefers that somebody else do fumigation for Target, and had regularly subcontracted this work to Nationwide Exterminating Company. After respondent decided to leave Nationwide Exterminating Company, he told Juan Espinoza, an employee of Target, that he could not continue fumigating for Target under the authority of Nationwide Exterminating Company's license. Either Mr. Kirby or Mr. Espinoza was present for the discharge of fumigant at each of the dozen jobs respondent performed for Target during the period January 31, 1978, to March 16, 1978. The Dade County Department of Public Health got no written notice that any of these jobs were to be performed. Signs required to be posted at the fumigation sites bore Target's name. Target made no application for an identification card for respondent and respondent did not suggest that this be done. Except for the work done for Target, respondent did no pest control work from January 31, 1978, to March 16, 1978, with the possible additional exception of a job at 2881 East 9th Avenue on January 31, 1978.

   
   

3. Respondent's letter to petitioner of January 20, 1978, was written on stationery whose letterhead reads "Nationwide Termite and Roofing." Petitioner's exhibit No. 1. Petitioner had earlier received correspondence from respondent in an envelope, postmarked October 6, 1977, indicating the sender was "Nationwide, Inc. Termite & Roofing Div." Petitioner's exhibit No. 2. This name has not been registered in petitioner's records. D. B. Lieux saw two of respondent's trucks marked "Nationwide Pest Control" on March 20, 1978. The trucks were originally marked "Nationwide Exterminating Company." Even before organizing NPE, Mr. Gonzalez felt a need to change the name of the original corporation because of the confusion that might arise for customers writing checks to Nationwide Exterminating Company as payment for work on their roofs. As a result, Mr. Gonzalez instructed Nationwide Exterminating Company's bank to cause its records to reflect additional names under which the Company might do business. Mr. Larry J. Lancaster, an employee of the Dade County Department of Public Health familiar with pest control companies in Dade County, is unaware of any other such company with the word "Nationwide" in its name and was not misled by receiving an envelope indicating the sender's name was Nationwide Termite and Roofing, Inc. Mr. Gonzalez never used any name with the intent to mislead.

   
   

4. On the afternoon of March 17, 1978, D. B. Lieux, at that time an entomology inspector in petitioner's employ, visited the home of Juan Martinez, which respondent and his employees had covered with a tarpaulin tent. The house was ringed with sand-filled vinyl-skinned cylindrical "snakes" lying atop the tarpaulin so as to prevent the escape of fumigant. Such snakes were also placed on the roof of the house. It was a very windy day. To prevent the edges of the tarpaulin from flapping, the portion outside the circle formed by the snakes was

   folded houseward over the snakes and weighted down with miscellaneous objects. Mr. Lieux returned to the Martinez residence the following day and found clearance notices posted at the front and rear entrances to the house but not at either side door. The clearance notices indicated that the premises had been found safe for human occupancy at nine o'clock on the morning of March 18, 1978, but forbade entry until five o'clock in the afternoon of the same day. This form of clearance notice is used by 10 or 15 exterminating companies in Dade County alone.

   
   

5. While on his way to work, on April 12, 1978, Mr. Lancaster noticed one of respondent's tents over a building near Mr. Lancaster's own residence. He noticed three holes in the tarpaulin on the west side of the building and undated warning signs posted on the premises. When Mr. Lancaster arrived at his office at the Dade County Department of Public Health, he checked to see whether the Department had received a "fumigation notification" with respect to the building over which respondent's tent had been draped, but found none. Towards the middle of the day, Raymond J. Brooks, vice-resident of NPE, received a telephone call from the Dade County Department of Public Health. As a result Mr. Brooks went to the site and taped up the holes in the tarpaulin. Later in the afternoon, Mr. Brooks returned with Mr. Gonzalez who also inspected the tarpaulin, before releasing fumigant into the building. At that time, Mr. Brooks filled out the warning notices that had already been posted. Tarpaulin tents like those respondent uses may cost $475.00 and fumigators commonly use masking tape to repair tears in the fabric.

   
   

6. Richard Wayne Strait and Edward J. Stys, like Mr. Lancaster, had responsibility for handling "fumigation notifications" received by the Dade County Department of Public Health. Fumigators are supposed to furnish the Department written notice of their intention to fumigate a building the day before the job is done, allowing Department employees opportunity to make spot checks to enforce compliance with safety regulations. In practice, a notice received the same day as the job was to be done was not marked late, and fumigators commonly telephoned notice, only submitting a written "fumigation notification" after the job was done. Although Messrs. Lancaster, Strait and Stys did not remember getting such telephone calls from anybody on behalf of NPE or Nationwide Exterminating Company, other employees of the Dade County Department of Health sometimes take these telephone messages from fumigators. Mr. Brooks could not remember a single time that he had been in respondent's office and learned of plans to fumigate that he had failed to notify the Department of Health by telephone, but conceded that he was not always in respondent's office.

   
   

7. In February of 1978, the Dade County Department of Health received a group of respondent Gonzalez's "fumigation notifications" for January jobs in an envelope that was not postmarked. After discharging a secretary in January of 1978, respondent discovered "fumigation notifications" for jobs that had already been done sealed in envelopes which had never been sent.

   
   

   CONCLUSIONS OF LAW

   
   

8. The law provides that "[a]n identification card shall cease to be in force when the holder thereof ceases to be an employee of the licensee which secured the . . . card." Section 482.091(2), Florida Statutes (1977). Because he left the employ of Nationwide Exterminating Company and NPE had not yet been licensed as a pest control business, respondent Gonzalez had no current valid identification card from January 31, 1978, to March 16, 1978. All pest control work done by Mr. Gonzalez without a current valid identification card was done

   in violation of Section 482.091(2), Florida Statutes (1977), which provides that "no one shall perform pest control without carrying on his person a current valid identification card . . . ." Fumigation by respondent Gonzalez during the period January 31, 1978, to March 16, 1978, also violated Rule 10D-55.108(1) and (2), Florida Administrative Code.

   
   

9. Petitioner established that respondent failed to meet the requirements of Rule 10D-55.110(1), Florida Administrative Code, on several occasions. The rule requires that "[e]ach licensee, before performing general fumigation, shall in advance notify in writing the county health unit having jurisdiction" and that these "notices shall be received by the county health unit at least twenty- four (24) hours in advance of the fumigation."

   
   

10. The rules require that clearance notices "be conspicuously posted on all entrances to [a fumigated] structure," Rule 10D-55.113(2), Florida Administrative Code, once the structure has been determined to be safe for human habitation. The evidence established that, in the case of the Martinez residence, respondent neglected to post clearance notices on side doors at the time these notices were posted on the front A and back doors of the building. Petitioner failed to prove that respondent violated Rule 10D-55.111(7) or Rule 10D-55.112(3), Florida Administrative Code.

    
    

11. Petitioner did not prove that respondent was guilty of fraudulent or misleading advertising in violation of subsection 482.161(8), Florida Statutes (1977), and Rule 10D-55.142(3)(c), Florida Administrative Code. Petitioner did show, however, that respondent violated Rules 10D-55.103 and 10D-55.142(3)(a), Florida Administrative Code, by using a name other than a name respondent had registered with petitioner.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner suspend respondent Gonzalez's pest control operator's certificate and his special identification card for five (5) days.

DONE and ENTERED this 1st day of December, 1978, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Morton Laitner, Esquire 1350 N.W. 15th Street Miami, Florida 33125

William J. Swink, Esquire 2915 S.W. 13th Street Miami, Florida 33145

Docket for Case No: 78-001235

Orders for Case No: 78-001235