STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, OFFICE ) OF ENTOMOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1614

)

CHARLES T. NOEGEL d/b/a ) SEMINOLE-GATOR EXTERMINATOR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, at 10:00 a.m., September 25, 1978, in Room 104 of the Collins Building, Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles T. Noegel

1409 Pichard Drive

Tallahassee, Florida 32304

For Respondent: Donna Stinson

2639 North Monroe Street, Suite 200-A Tallahassee, Florida 32303

FINDINGS OF FACT

1. Respondent Charles T. Noegel has been in the pest control business for some sixteen years. In February of 1976, the petitioner Office of Entomology sent all licensees a license renewal application for a license to be effective on March 31, 1976. Petitioner received a check from respondent, but the proceeds thereof were applied to review respondent's pest control operator's certificates. A check sent by respondent during 1975 had been returned for insufficient funds. A pest control business license cannot be issued unless there is evidence of a current operator's certificate in existence.

   
   

2. Petitioner did not receive respondent's application or a check for the license which was to be effective on March 31, 1976. In June of 1976, petitioner notified respondent that they needed his application and a check for the renewed license. They also sent him an application form. According to respondent, he did not receive the entire application form. Respondent testified that he telephoned the petitioner's office in Jacksonville on two or three occasions and told a secretary there that he did not have a complete application form.

3. In March of 1977, Mr. Page from petitioner's office called respondent. Respondent was not available and Mr. Page left the message with respondent's answering service that respondent was operating illegally without a license and asked Mr. Noegel to call him. Mr. Page received no reply from this message. According to Mr. Noegel, he received the message but did not receive the name or telephone number of the person who left the message. In April of 1977, petitioner did receive from respondent an application for the renewal of his operator's certificate and a check.

   
   

4. Respondent has been delinquent in the past in applying for his license, and various checks have been returned for insufficient funds. Had respondent timely applied and paid for the renewal of his March 31, 1976, license, petitioner would have issued the license to him.

   
   

5. By certified letter dated August 10, 1978, petitioner notified respondent that his pest control operator's certificate number 519 was being revoked for failure to comply with Chapter 482 of the Florida Statutes and Chapter 10D-55 of the Florida Administrative Code. Generally, respondent was charged with conducting his pest control business, known as the Seminole-Gator Exterminator, without a license. While more specific charges are contained in the August 10, 1978, letter, petitioner offered no evidence at the administrative hearing to substantiate such specific allegations.

   
   

   CONCLUSIONS OF LAW

   
   

6. Respondent admitted at the hearing that he was conducting his pest control business without a current license. It was the respondent's contention, however, that the culpability for this should be placed on the petitioner's failure to send him a complete application.

   
   

7. One who operates a business regulated and licensed by the State must familiarize himself and comply with the regulations governing the operation of that business. F.S. Section 482.072(1) provides that "it is unlawful for any person to operate a pest control business that is not licensed by the Department." Having been in the business for some sixteen years and having been previously licensed by the State, it must certainly be assumed that respondent was aware of this requirement. Even absent such an assumption, respondent was specifically notified by petitioner on several occasions that his license needed to be renewed as of March 31, 1976. Even if the respondent did receive an incomplete application form from petitioner, two or three telephone calls to the Jacksonville office over an almost two and one-half year period did not satisfy petitioner's obligation to assure that he was in compliance with the State's rules and regulations governing the pest control business. Indeed, respondent knew that he was not in compliance with the law, and several phone calls do not negate or justify a violation of the petitioner's law governing pest control.

   
   

8. Section 482.161, Florida Statutes, provides that the petitioner may suspend, revoke or stop the issuance or renewal of any permit when a rule or statute is violated. Here, respondent illegally operated his pest control business without a valid license, and that constitutes grounds for suspension or revocation. It is provided in Section 482.162, Florida Statutes, that the petitioner may impose other disciplinary measures against a violator when revocation or suspension would either be detrimental to the public or be unnecessarily harsh under the circumstances. Inasmuch as there was no evidence that respondent had violated other laws or rules relating to the operation of his pest control business over a sixteen year period, it is concluded that the penalty of revocation of respondent's operator's certificate would be an

unnecessarily harsh penalty to impose. A period of suspension with probation would be more appropriate under the circumstances herein.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner find that respondent violated Section 482.071(1) by operating his business without a valid license. It is further recommended that respondent's operator's certificate number 519 be suspended for a period of sixty (60) days from August 10, 1978, and that upon the payment of all back license renewal fees, respondent's certificate be reinstated, and respondent be placed on probation for a period of eighteen months. The terms of probation should include the timely renewal and payment of all permits required by petitioner's laws and regulations.

Respectfully submitted and entered this 6th day of October, 1978, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1978.

COPIES FURNISHED:

Charles T. Noegel Entomologist - Manager Seminole Gator Exterminator 1409 Pichard Drive

Tallahassee, Florida 32304

Donna Stinson, Esq. Department of HRS 2639 N Monroe Street Suite 200-A

Tallahassee, Florida 32304

William J. Page, Jr., Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Andrew J. Rogers

Director, Office of Entomology Department of HRS

Post Office Box 210 Jacksonville, Florida 32231

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, OFFICE OF ENTOMOLOGY,

Petitioner,

vs. CASE NO. 78-1614

CHARLES T. NOEGEL d/b/a SEMINOLE-GATOR EXTERMINATOR,

Respondent.

/

FINAL ORDER

The Florida Department of Health and Rehabilitative Services, finding the Recommended Order to be correct, hereby adopts the findings of fact and conclusions of law of the attached Recommended Order entered in this cause by Hearing Officer Diane D. Tremor, dated October 6, 1978, and said Order is hereby declared to be and by this Order becomes the Final Order of the Department.

ORDERED that, Respondent having violated Section 482.071(1), F.S., Operator Certificate Number 519 issued to Respondent, Charles T. Noegel d/b/a Seminole- Gator Exterminator, be suspended for a period of sixty (60) days, with the period of suspension beginning to run thirty (30) days after the date of rendition of this Final Order, and that upon the payment of all back license renewal fees, Respondent's certificate be reinstated, but not before the expiration of the 60 day suspension, and that upon any such reinstatement the Respondent's operator's certificate be placed on probation for a period of eighteen (18) months from the date of reinstatement with the terms of probation being that Respondent comply with all pest control statutes and regulations, and specifically, that Respondent make timely renewal and payment of all licenses and license fees required by this Department's statutes and regulations.

DONE and ORDERED this 22nd day of November, 1978, in Tallahassee, Florida.

EMMETT S. ROBERTS, Secretary Department of Health and

Rehabilitative Services

COPIES FURNISHED:

Diane D. Tremor Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304

Charles T. Noegel Entomologist - Manager Seminole Gator Exterminator 1409 Picharde Drive

Tallahassee, Florida 323204

Donna Stinson, Esquire District II Legal Counsel Department of HRS

2639 N. Monroe Street Suite 200-A

Tallahassee, Florida 32304

Andrew J. Rogers

Director, Office of Entomology Department of HRS

Post Office Box 210 Jacksonville, Florida 32231

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

AMENDED AGENCY FINAL ORDER

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, OFFICE OF ENTOMOLOGY,

Petitioner,

vs. CASE NO. 78-1614

CHARLES T. NOEGEL d/b/a SEMINOLE-GATOR EXTERMINATOR,

Respondent.

/

AMENDED FINAL ORDER

On November 22, 1978, the Department of Health and Rehabilitative Services entered a Final Order adopting a Recommended Order of the Division of

Administrative Hearings and ordered, among other things, that Respondent's Operator Certificate Number 519 be suspended for a period of 60 days. The period of suspension would run from December 22, 1978, through February 20, 1979. Subsequent thereto, on December 27, 1978, Respondent Noegel submitted a letter to the Department indicating that he had already received more than a two-month suspension and requested authorization to reapply for his certificate. An investigation was thereafter conducted by the Department.

Upon a review of the results of the investigation and being otherwise well advised in the premises, it is determined as follows:

1. Respondent Charles T. Noegel has not been performing pest control work from approximately August 1, 1978, through the present time, and therefore, it is determined that Respondent Noegel has received the 60-day suspension ordered by this Department and fulfilled the intent of the Final Order concerning this suspension.

WHEREFORE, it is ORDERED that the Final Order entered by this Department on November 22, 1978, is amended to reflect that Respondent Noegel has served his 60-day suspension and may immediately reapply for his Pest Control Operator's Certificate, I.D. Card, and License.

DONE and ORDERED this 2nd day of February, 1979, in Tallahassee, Florida.

DAVID H. PINGREE, Secretary Department of Health and

Rehabilitative Services

COPIES FURNISHED:

Charles T. Noegel Entomologist - Manager Seminole Gator Exterminator 1409 Picharde Drive

Tallahassee, Florida 323204

Diane D. Tremor Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304

Donna Stinson, Esquire District II Legal Counsel Department of HRS

2639 N. Monroe Street Suite 200-A

Tallahassee, Florida 32304

Andrew J. Rogers

Director, Office of Entomology Department of HRS

Post Office Box 210 Jacksonville, Florida 32231

O. H. Boorde, Director Central Operations Services Department of HRS

1323 Winewood Boulevard

Tallahassee, Florida 32301

Eric J. Haugdahl Assistant General Counsel Department of HRS

1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 78-001614

Orders for Case No: 78-001614