STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 79-721

)

KINSEY C. HADDOCK d/b/a )

H & K PEST CONTROL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this case on September 28, 1979, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Robert M. Eisenberg, Esquire

District IV Counsel State of Florida Department of Health and

Rehabilitative Services Post Office Box 2417-F Jacksonville, Florida 32231

For Respondent: Albin C. Thompson, Jr., Esquire

26 South 5th Street (Post Office Box 711)

Fernandina Beach, Florida 32034

By letter dated March 9, 1979, the State of Florida, Department of Health and Rehabilitative Services ("Petitioner" or "HRS") notified Kinsey C. Haddock, d/b/a H & K Pest Control ("Respondent" or "licensee") of its intent to revoke his Pest Control Business License No. 875, his Pest Control Operator's Certificate No. 667, and his Identification Card No. 6415 for performing pest control services without a proper license; allowing an employee to perform services for which Respondent was not properly licensed; not applying for and obtaining an employee identification card for one of his employees; failing to display a current certified operator's certificate renewal form and a current business license at his business location; accepting and performing pest control services outside his area of licensure, for which he employed no certified operator; and not having his primary occupation in the structural pest control business, all in violation of various sections of Chapter 482, Florida Statutes. Respondent requested an administrative hearing pursuant to the provisions of Section 120.57(1), Florida Statutes. Thereafter, Petitioner requested that a

hearing officer from the Division of Administrative Hearings be assigned to conduct the formal hearing in this proceeding. Final hearing was scheduled for September 27, 1979, by Amended Notice of Hearing dated July 16, 1979.

At the final hearing, Petitioner called Dolphus White, Clyda Peterson, Barry A. Smedstead, Joyce Davis, Philip R. Helseth and Frances R. DuChanois as its witnesses. Petitioner offered Petitioner's exhibits Numbers 1 through 12, inclusive, each of which was received into evidence. Respondent testified in his own behalf, and called no other witnesses. In addition, Respondent offered Respondent's exhibits Numbers 1 and 2, both of which were received into evidence.

At the conclusion of the hearing, counsel for both Petitioner and Respondent waived the requirement of Chapter 120, Florida Statutes, that a Recommended Order be entered by the Hearing Officer within thirty days from conclusion of the final hearing.

It was agreed at final hearing that counsel for Petitioner and Respondent would submit proposed findings of fact and conclusions of law for consideration by the Hearing Officer no later than October 22, 1979. However, by Motion for Extension of Time, counsel for Petitioner requested that the period for filing proposed findings of fact and conclusions of law be extended through February 28, 1980. Subsequently, counsel for Petitioner submitted a Proposed Order for consideration by the Hearing Officer on February 15, 1980. Counsel for Respondent submitted his proposed findings of fact in the form of a letter dated February 29, 1980, which was filed with the Division of Administrative Hearings on March 3, 1980.

FINDINGS OF FACT

1. At all times material hereto, Respondent was the holder of Pest Control Business License No. 875, Pest Control Operator's Certificate No. 667, and Identification Card No. 6415. Respondent's business was and is located at 512 South Eighth Street, Fernandina Beach, Florida. The anniversary date for purposes of renewal of Respondent's Pest Control Business License was November 30, 1978. Those persons holding identification cards issued in connection with the operation of H & K Pest Control were Respondent, Dolphus Lee White, Donna Kay Young and George Morrison Young. Respondent was licensed to conduct pest control business only in the category of Lawn and Ornamental pests.

   
   

2. On November 28, 1978, two days before Respondent's pest control business license was to expire, HRS received an Application for Pest Control Business License and Identification Cards from Respondent requesting renewal of the aforementioned licenses and identification cards. However, the Certificate of Insurance attached to the renewal application failed to meet the requirements for minimum financial responsibility for property damage contained in Section 482.071, Florida Statutes. The Certificate of Insurance in question indicated that the limits of liability for property damage were $50,000 for each occurrence, and $50,000 in the aggregate. The statutory requirements are

   $50,000 for each occurrence and $100,000 aggregate. As a result, by notice dated November 29, 1978, HRS returned Respondent's application, indicating that the Certificate of Insurance did not meet the statutory standard. In addition, the November 29, 1978 letter specifically informed Respondent that . . . it is unlawful to operate a pest control business that is not licensed."

   
   

3. HRS received a corrected Certificate of Insurance on February 27, 1979. However, this Certificate of Insurance did not indicate the name of the insured

   pest control business, and was, accordingly, returned to Respondent's insurance agent. Respondent's name was then apparently inserted in the Certificate of Insurance by the agent, and the corrected Certificate of Insurance was received by HRS on March 3, 1979. As a result, Respondent's application for renewal of his licenses and identification cards was not, in fact, complete until March 3, 1979. The renewal licenses and identification cards were thereafter issued on June 4, 1979. The delay between receipt of the completed application and issuance of the licenses and identification cards was apparently due to work load in the HRS Office of Entomology.

   
   

4. Notwithstanding the fact that Respondent was licensed only in the area of Lawn and Ornamental Pest Control, H & K Pest Control performed pest control services inside buildings at the Florida Marine Welcome Station in Fernandina Beach, Florida, for the period July 1, 1978 through and including two days prior to the hearing in this cause on September 28, 1979. The State of Florida, Department of Commerce, Office of Administrative Services was billed ten dollars monthly on H & K Pest Control statements for this service, and payment was remitted by the State of Florida for these services to H & K Pest Control. In addition, on at least two occasions H & K Pest Control performed pest control services inside buildings at the Florida Welcome Station on Interstate Highway

   95 in Yulee, Florida. One of these occasions occurred in November, 1978 for which H & K Pest Control billed the Florida Welcome Station in Yulee, Florida, thirty dollars on its statement dated January, 1979. At no time during the performance of pest control services inside the Florida Marine Welcome Station in Fernandina Beach, Florida, and the Florida Welcome Station on Interstate Highway 95 in Yulee, Florida, was Kinsey C. Haddock or any other employee of H & K Pest Control licensed in the category of General Household Pests and Rodents, or in any other category that would have allowed them to treat the inside of buildings for pests. Although Respondent was never observed to have personally sprayed the insides of buildings at either Welcome Station, persons identifying themselves as employees of H & K Pest Control did perform those services, the State of Florida was billed on statement forms of H & K Pest Control for these services, and payment was remitted by check to H & K Pest Control.

   
   

5. On December 27, 1978 an inspector from HRS visited the business location of H & K Pest Control at 512 South Eighth Street, Fernandina Beach, Florida. The business office was open and being operated by a person claiming to be an employee of H & K Pest Control who identified herself as Joyce French. Ms. French advised the inspector that she had been trained in the category of General Household Pest Control, and had performed these services inside the Florida Welcome Station on Interstate Highway 95 in Yulee, Florida. Records maintained by the Office of Entomology indicate that no identification card or other license had ever been issued to a "Joyce French" in the area of General Household Pest Control. Respondent denied that he had ever employed a "Joyce French", nor was Miss French called as a witness in this proceeding. Further, other than the statement attributed by the inspector to Ms. French, there is no evidence in this proceeding to corroborate that Ms. French did, in fact, perform pest control services of any description.

   
   

6. Further, on December 27, 1978, Respondent did not have displayed in his business office a certified operator's certificate renewal or a current business license, as required Chapter 482, Florida Statutes.

   
   

7. Finally, the record in this proceeding establishes, and Respondent has, in fact, admitted, that he is not a full- time employee of H & K Pest Control. In fact, the record clearly establishes that Respondent has been a full-time employee of Container Corporation of America as an engineer in the Power

   Department of that company since December 9, 1937. Respondent works rotating shifts in his employment at Container Corporation of America, but usually works the 8:00 a.m. to 4:00 p.m. shift an average of only five days per month. When not working the 8:00 a.m. to 4:00 p.m. shift at Container Corporation of America, Respondent operates his pest control business at the address above mentioned.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties to this proceeding. Section 120.57(i), Florida Statutes.

   
   

9. Section 482.071, Florida Statutes, provides that:

   
   

   1. The Department of Health and Rehabilitative Services may issue licenses to qualified businesses to engage in pest control in this state. It is unlawful for any person to operate a pest control business that is not licensed by the department. Before entering business and also annually thereafter, on or before an anniversary date to be set by the department for each licensee, each

      person, firm, partnership, or corporation engaged in pest control shall

      apply to the dePartment for a license, or a renewal thereof, for each business location. Applications shall be on forms prescribed and furnished by the department. Each license expires the next anniversary date following issuance or renewal. The license fee is

      $25. A license shall cease to be in force when a licensee changes his business address and the old license shall be surrendered and a new license issued for a fee of $5. The department shall not issue a license to a pest control business unless its pest control activities shall be in charge or a certified operator or operators certified in the categories of the licensee and resident in the state. All fees collected by the department shall be deposited in the Pest Control Trust

      Fund and shall be used in carrying out the provisions of this measure.

   2. Each licensee shall display his license within his business location. Each business location must be licensed.

   3. No licensee shall operate a pest control business without carrying the required insurance coverage. Each person making application for a pest control business license or renewal

      thereof shall furnish to the department a certificate of insurance that meets the requirements for minimum financial responsibility for bodily injury and property damage consisting of:

      1. Bodily injury: $100,000 each person and $300,000 each occurrence; and

      2. Property damage: $50,000 each occurrence and $100,000 aggregate. [Emphasis added.)

         
         

10. Section 482.091(1) and (2), Florida Statutes, provides in pertinent parts, that "[n]o licensee shall assign any person to perform or be trained for pest control without first applying for an identification card for such person .

    . ., and that the " responsibility for obtaining identification cards for employees is jointly on the licensee and the certified pest control operator."

    
    

11. Section 482.111(2), Florida Statutes, provides, in part, that " . . . [e]ach certified operator in charge of pest control activities of a licensee must display his certificate and current renewal form at the business location in his charge."

    
    

12. Section 482.111(3), Florida Statutes, provides that "[e]ach category of licensee shall be in the charge of a certified operator who is certified for the particular category."

    
    

13. Section 482.111(4), Florida Statutes, provides that "[n]o person shall be in charge of the performance of pest control activities of any category of any licensee unless such person is properly certified."

    
    

14. Section 482.112(1), Florida Statutes, provides that "[n]o certified pest control operator shall allow his certificate to be used by any licensee . .

    . unless such certified operator . . . is a full-time employee of the licensee."

    
    

15. Section 482.152, Florida Statutes, provides that:

    
    

    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 control 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:

    1. The selection of proper and correct chemicals for the particular pest control work to be performed.

    2. The safe and proper use of these pesticides.

    3. The correct concentration and formulation of pesticides used in all pest control

       work performed.

    4. The training of personnel in the

       proper and acceptable methods of pest control.

    5. The control measures and procedures used.

    6. The notification of the Department of Health and Rehabilitative Services within 24 hours of any knowledge of accidental human poisoning or death connected with pest control work performed on jobs he is supervising. (Emphasis added.)

    
    

16. Section 482.191(1) and (2), Florida Statutes, makes it " . . . unlawful to solicit, practice, perform or advertise in pest control . . ." except as authorized in Chapter 482, Florida Statutes, and provides that any violation of the provisions of that chapter is a misdemeanor of the second degree.

    
    

17. Section 482.161(1), Florida Statutes, empowers HRS to suspend, revoke or stop the issuance or renewal of any certificate, identification card or license for violation of any of the provisions of Chapter 482, Florida Statutes.

    
    

18. Section 482.021(8), Florida Statutes, defines "general household pest control as . . . pest control as to any structure . . ."

    
    

19. Section 482.021(11), Florida Statutes, defines "lawn and ornamental pest control" as " . . . pest control with respect to any lawn or ornamental, but specifically excluding the application of pest control to structures.

    
    

20. Respondent has violated the provisions of Chapter 482, Florida Statutes, set forth above by:

1. Performing pest control services without holding a proper, valid and current license therefor between December 1, 1978 and

   March 1, 1979;

2. Performing pest control services without carrying the required amount of insurance coverage;

3. Failing to display a certified operators certificate renewal or current business license at his business location;

4. Performing pest control services in the category of general household pest control without being certified in that category and without employing a certified operator in that category from July, 1978 through

   August, 1979.

5. Failure to maintain his primary occupation in the structural pest control business on a full-time basis.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That a Final Order be entered by the State of Florida, Department of Health and Rehabilitative Services revoking Respondent's Pest Control Business License No. 875, Pest Control Operator's Certificate No. 667 and Identification Card No. 6415, and/or stopping any renewal thereof.

RECOMMENDED this 7th day of April, 1980, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Robert M. Eisenberg, Esquire District IV Counsel

State of Florida Department of Health and

Rehabilitative Services Post Office Box 2417-F Jacksonville, Florida 32231

Albin C. Thompson, Jr., Esquire

26 South 5th Street Post Office Box 711

Fernandina Beach, Florida 32034

Docket for Case No: 79-000721

Orders for Case No: 79-000721