STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH F. FEATHERS, d/b/a ) FEATHERS EXTERMINATING COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2238

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

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, at the Council Room, City Hall, 151 Southeast Osceola Avenue, Ocala, Florida, at 10:15 a.m., February 26, 1979.

APPEARANCES

For Petitioner: Kenneth F. Feathers

Feathers Exterminating Company 1527 Northeast 8th Avenue Ocala, Florida 32670

For Respondent: Joseph E. Hodges, Esquire

District III Legal Counsel Department of Health and

Rehabilitative Services 2002 Northwest 13th Street Gainesville, Florida 32601

ISSUE

Whether or not the Petitioner, Kenneth F. Feathers, d/b/a Feathers Exterminating Company, is entitled to the renewal of an emergency pest control certificate in accordance with the terms and conditions of Subsection 482.111(10), Florida Statutes.

FINDINGS OF FACT

1. This cause comes on for consideration based upon the Respondent, State of Florida, Department of Health and Rehabilitative Services' refusal to renew the emergency pest control certificate of Kenneth F. Feathers, d/b/a Feathers Exterminating Company. On November 6, 1978, a representative of the Respondent wrote to the Petitioner and indicated the basis for denying the renewal request, after which the Petitioner requested a formal hearing pursuant to Section 120.57, Florida Statutes.

2. The testimony in the course of the hearing revealed that the Petitioner, Kenneth F. Feathers, d/b/a Feathers Exterminating Company, is involved with the structural pest control business. Kenneth F. Feathers, the licensee, is the holder of a special identification card under the authority of Section 482.151, Florida Statutes. He does not hold a pest control operator's certificate as described in Section 482.111, Florida Statutes.

   
   

3. In the years 1977 and 1978 the Petitioner had listed at various times, the names of Wayne Neal Pearce and Michael D. Brennan as being the certified pest control operators in charge of all categories of pest control being carried out by Feathers Exterminating Company. In fact, Pearce and Brennan, though certified as pest control operators and listed by the Petitioner as being the certified operator in charge of the Feathers Exterminating Company, were in fact employed in Gainesville, Florida, in other primary occupations which they worked contemporaneously with the work day of the Feathers Exterminating Company.

   Under the arrangement they were merely on call and never actually performed supervisory duties for the Petitioner. Mr. Pearce was a police officer with the Gainesville, Florida, Police Department and subsequently opened up his own pest control business in Gainesville. Mr. Brennan was and is primarily employed by Clay Electric Company. When these discoveries were made by employees of the Respondent, the Petitioner was advised that neither Mr. Pearce nor Mr. Brennan could serve in the capacity as certified pest control operators for the Feathers Exterminating Company, in view of the fact that these individuals were not employed on a full-time basis by Feathers Exterminating Company, in the sense of being in charge of all categories of pest control.

   
   

4. After these discoveries on the part of the Respondent, the Petitioner requested an emergency pest control certificate under authority of Subsection 482.111(10), Florida Statutes, and this emergency certificate was granted. That initial request occurred sometime in October, 1978. On October 28, 1978, the Petitioner requested a renewal of the emergency pest control certificate which brought about the denial which is the issue in this hearing. At present and during the time for which the original emergency certificate had been granted and a renewal requested, the Petitioner does not and did not have a certified pest control operator in charge of the categories of pest control conducted by Feathers Exterminating Company. Both Pearce and Brennan have terminated their involvement with the Feathers Exterminating Company, even in an advisory capacity, and the Petitioner's efforts at arranging for a replacement certified pest control operator have not been successful. This has been the outcome notwithstanding the long-term efforts on the part of the Respondent, beginning in 1975, to assist the Petitioner in complying with the requirements for having a certified pest control operator in charge of the Petitioner/licensee's business activities conducted under Chapter 482, Florida Statutes.

   
   

5. In view of these facts, the Petitioner is not entitled to a renewal of the emergency pest control certificate.

   
   

   Subsection 482.111(3), Florida Statutes, states: "Each category of each licensee shall

   be in the charge of a certified operator who is certified for the particular category..."

   
   

6. Under the current statement of the law found in Section 482.152, Florida Statutes (1978), whose effective date was October 1, 1978; for the business activity of the licensee to be in the charge of a certified operator,

   it is necessary for that certified pest control operator to fulfill the duties set forth in this section.

   
   

   Section 482.152, Florida Statutes (1978), contained the following language:

   "Duties of certified pest control operator in charge of pest control activities of licensee.--A certified operator in charge of pest control operations of a licensee shall be a Florida resident whose primary occupation is in the structural pest con trol business, who is employed on a full time basis by the licensee, and whose principal duty is the personal supervision of and participation in the pest control operations of the licensee as the same relate to the following: ..."

   
   

7. It can be seen by the language set forth in this Section 482.152, Florida Statutes, that neither Pearce nor Brennan would qualify as certified pest control operators for the benefit of the Petitioner, because they either do not have their primary occupation in the structural pest control business, and/or are not employed on a full-time basis by the Petitioner and do not have their principal duties as one of personal supervision and participation in the pest control operations of the Petitioner, even if those individuals consented to continue their prior arrangement with Feathers.

   
   

8. Nevertheless, the Petitioner might be entitled to an emergency certified pest control operator's certificate if provisions of Subsection 482.111(10), Florida Statutes, could be satisfied; however, the Petitioner has failed to demonstrate that he has any reasonable expectation of hiring a certified pest control operator who may fulfill the requirements of Section 482.152, Florida Statutes, in terms of the duties incumbent on a certified operator through whom the licensee intends to transact business in accordance with the requirements of Section 482.111, Florida Statutes. In addition, the testimony clearly demonstrated that the Petitioner at one time was using the certificates of Pearce and Brennan to secure or keep his license at a time when Pearce and Brennan were not in charge of the pest control activities, and the Petitioner was thereby in violation of Subsection 482.121(2), Florida Statutes, which violation in turn would constitute a sufficient ground for denying the renewal of the emergency pest control operator's certificate. This ground for denial is authorized by Subsection 482.161(1), Florida Statutes, which states that a license renewal may be denied on the basis that a Provision of Chapter 482, Florida Statutes, has been violated.

   
   

9. In summary, the renewal of the emergency certified pest control operator's certificate should be denied because the Petitioner has failed to give sufficient reasons for such renewal and because the Petitioner, by violating Subsection 482.121(2), Florida Statutes, has given the Respondent an affirmative ground for such a denial under provision Subsection 482.161(1), Florida Statutes.

   
   

10. (At the conclusion of the hearing the Petitioner indicated his intention to stand for an examination under Chapter 482, Florida Statutes, which would allow him to obtain a pest control operator's certificate that would allow him to operate his business in those categories which he desired to be employed in. On March 22, 1979, the attorney for the Respondent informed the undersigned

    that Mr. Feathers had successfully passed those portions of the examination which would allow him to obtain a certificate to operate in the areas of lawn and ornamental pest control and general household pest control. On this occasion, Mr. Feathers was not successful in passing the portion of the examination involved in termite pest control.

    
    

11. It would therefore appear that the Petitioner is entitled to a certificate to operate in the fields of lawn and ornamental pest control and general household pest control, after the payment of the appropriate fees.

    
    

12. Under these circumstances, the Petitioner would not be entitled to operate in the area of termite pest control in the sense of being the holder of such a certificate and in keeping with the undersigned's impression of this case, the affect of this Recommended Order would be a recommendation that the Petitioner not be granted a renewal of his emergency pest control operator's certificate in the termite pest control specialty.)

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in this cause.

    
    

14. Based upon a full consideration of the facts herein, it is concluded as a matter of law that the Petitioner is not entitled to the renewal of his emergency certified pest control operator's certificate as requested pursuant to Subsection 482.111(10), Florida Statutes.

RECOMMENDATION

It is recommended that the Petitioner's request for the renewal of his emergency pest control operator's certificate be DENIED.

DONE AND ENTERED this 22nd day of March 1979, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1979.

COPIES FURNISHED:

Mr. Kenneth F. Feathers Feathers Exterminating Company 1527 Northeast 8th Avenue Ocala, Florida 32670

Joseph E. Hodges, Esquire District III Legal Counsel

Department of Health and Rehabilitative Services

2002 Northwest 13th Street Gainesville, Florida 32601

Docket for Case No: 78-002238

Orders for Case No: 78-002238