STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 78-2527

)

ROY C. HULING and HARRY E. )

POWELL d/b/a UNITED PEST )

CONTROL, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 26 September 1979 at Jacksonville, Florida.

APPEARANCES

For Petitioner: Robert M. Eisenberg, Esquire

District IV Legal Counsel Post Office Box 2417-F Jacksonville, Florida 32231

For Respondent: Harry L. Shorstein, Esquire

605 Blackstone Building

Jacksonville, Florida 32202

By reason of allegations contained in certified letters No. 300796 and 301735 dated 6 December 1978, the Department of Health and Rehabilitative Services, Petitioner, seeks to revoke the Pest Control Business Licenses No. 1195 and 1196 of United Pest Control, and the pest control operator's certificates and identification cards of Roy C. Huling and Harry E. Powell. As grounds therefor it is alleged that in Respondent's Jacksonville and New Smyrna Beach offices during the period between 27 May 1976 and 28 April 1977 they entered into various fumigation contracts without having a certified operator; that fumigations were conducted without the properly registered certified operator; that fumigations were conducted without giving 24-hour prior notice to local health authorities; that agents entered into contracts without having current pest control identification cards; that fumigation contracts were transferred from one office to another; that notices of intent to fumigate were sent to local health authorities without having a properly registered and certified operator; that agents represented to customers that termite infestation was present when this was not so; inadequate fumigation was performed; and sales were made by representatives not properly registered and/or certified.

These allegations comprise some 35 separate charges, one of which was withdrawn at the hearing, and are alleged to violate various provisions of Chapter 482, Florida Statutes, and Chapter 10D-55, Florida Administrative Code.

At the commencement of the hearing Respondent admitted the allegations contained in 25 of the charges which involved contracting for fumigation without having a certified operator in the category of fumigation. Respondent also admitted the allegations involving their agents soliciting contracts without having current pest control identification cards. Thereafter some eight witnesses were called by Petitioner, two witnesses were called by Respondent and

15 exhibits were admitted into evidence.

FINDINGS OF FACT

1. Respondents, during all times here involved, were licensed by Petitioner as alleged and operated three separate pest control offices in Jacksonville, New Smyrna Beach and Palatka. During the period between May 1976 and April 1977 no certified operator was registered with Petitioner at the Jacksonville or New Smyrna Beach offices. During this period numerous fumigation contracts were entered into by Respondents. When these contracts were carried out all fumigation was performed under the supervision of a currently registered certified operator who was attached to the Palatka office owned by Respondents.

   
   

2. Between June 1976 and October 1977 24-hour advance written notice of fumigation was not provided by Respondents to the health authorities in Duval County on five occasions and to the health authorities of Volusia County on six occasions. However, the health inspectors of each county apparently received telephone notice because they inspected the fumigations for which the written notice was not provided a higher percentage of times than the average inspection for fumigation for which 24-hour written advance notice was provided.

   
   

3. Several violations involved the certified operator notifying HRS by letter that he would be certified operator for a specific office commencing on a given date and thereafter failing to submit the proper forms to obtain a current pest control identification card for the office at which he worked.

   
   

4. Proper registration of pest control salesmen and certified operators requires the issuance of a pest control identification card for a specific location.

   
   

5. On some occasions the charges resulted from Respondent, United Pest Control, acquiring another pest control company and continuing operations under United Pest Control without having changed the pest control identification cards of these employees.

   
   

6. Two charges involved agents of Respondent who entered into contracts with customers. One resulted from a complaint that the agent inaccurately advised the customer that there was termite infestation and one involved a complaint of improper treatment for subterranean termites. After the customers complained to governmental authorities Respondents refunded their money. When Respondent Powell attempted to inspect the premises to verify the complaint of these two customers he was denied access to the premises by the customers.

   
   

7. The certified operator in the Palatka office was used to supervise a fumigation contract obtained in the Jacksonville office and the New Smyrna Beach office during the period here involved. He told Respondent several times that

   it was a violation of the regulation for him to perform the fumigation on contracts in these other offices, but only after he reported this to HRS was the practice stopped.

   
   

8. At the time of the hearing the Jacksonville pest control operation had been sold by Respondent United Pest Control.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings.

   
   

10. At the time of the violation here alleged Section 482.111(5), Florida Statutes, provided:

    
    

    No certified operator shall be in charge of the performance of Pest control activi ties at more than one business location.

    
    

11. This provision was modified by Laws, 1978, c. 78-292 s5 eff. October 1, 1978 which provides:

    
    

    A licensee having more than one licensed business location may assign an identi fication card holder to any of its licensed business locations without obtaining another identification card for such holder.

    
    

12. Of the 34 charges remaining after one was dismissed, 29 involved using an identification card holder at a licensed business location for which he did not have an identification card.

    
    

13. Two of the charges involved failure to notify local health authorities in writing 24 hours in advance of fumigation. Rule 10D-55.110, Florida Administrative Code, provides in pertinent part:

    
    

    1. Each licensee, before performing general fumigation, shall in advance notify in writ ing the county health unit having jurisdiction over the location where the fumigation opera tion is to be performed. Such notices shall be received in the county health unit at

       least twenty-four (24) hours in advance of the fumigation.

       
       

14. As noted in the findings above actual notice was received by the local health authorities on most of the violations alleged and an inspector was on site during fumigation. However, written notice was not given.

    
    

15. Of the three remaining charges one involved transferring a fumigation contract from New Smyrna Beach office to the Palatka office. The Palatka office had a certified operator while the New Smyrna Beach office did not.

    
    

16. The two final charges involved a representation by a salesman of Respondent that a customer had drywood termite infestation when, in fact, this was not so; and an allegation of inadequate treatment for subterranean termites.

    In both of these cases when the matter was brought to the attention of Respondents by government officials refunds were made to the customers. Although one customer had complained to the salesman no evidence was presented that Respondents were aware of this complaint before the customer complained to the Department of Agriculture, Division of Consumer Services and the complaint reached Respondents.

    
    

17. Grounds for a revocation or suspension of licenses and certificates are contained in Section 482.161, Florida Statutes, which provides in pertinent part:

    
    

    The Department of Health and Rehabilitative Services may suspend, revoke or stop the issuance or renewal of any certificate... upon any one or more of the following grounds as the same may be applicable:

    1. Violation of any rule of the depart- ment or any provision of this act.

       
       

18. Section 482.162, Florida Statutes (1978) provides in pertinent part:

    
    

    1. If after appropriate hearing in accord ance with the provisions of chapter 120, the Department of Health and Rehabilitative Services shall find that any identification

       card holder, certified operator, or licensee has committed any acts set forth in s.

       482.161, but shall further find that such violation is of such a nature or under such circumstances that revocation or suspension of a certificate would either be detrimental to the public

       or unnecessarily harsh under the circum- stances, it may in its discretion, and in lieu of executing the order of sus- pension or revocation, either:

       1. Reprimand the party publicly or privately; or,

       2. Place the party on probation for a period of not more than 2 years.

       
       

19. The violations alleged, and to which Respondents admitted, technical infractions of a statutory provision which had been revoked and which, if committed at the time of the hearing, would not constitute a violation.

    Likewise the other violations except the two involving misrepresentations to and inadequate work for, customers, also involve technical violations since actual notice was given to the health authorities.

    
    

20. From the foregoing it is concluded that Respondents were guilty of numerous minor infractions of the statutes and regulations for pest control businesses as alleged and that revocation or suspension of their licenses is not appropriate. cf. Flaig v. Pest Control Commission of Florida, 213 So.2d 471 (Fla. 1 DCA 1968). It is therefore

Recommended that Respondents Roy C. Huling and Harry E. Powell d/b/a United Pest Control be issued a private reprimand.

DONE and ENTERED this 24th day of October, 1979, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1979.

COPIES FURNISHED:

Robert M. Eisenberg, Esquire District IV Legal Counsel Post Office Box 2417-F Jacksonville, Florida 32231

Harry L. Shorstein, Esquire 605 Blackstone Building

Jacksonville, Florida 32202

Docket for Case No: 78-002527

Orders for Case No: 78-002527