STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA. DEPARTMENT OF ) HEALTH AND REHABILITATIVE )
SERVICES, )
)
Petitioner, )
)
vs. ) CASE NO. 79-1453
)
BILLY F. KILLINGSWORTH and ) CYNTHIA H. KILLINGSWORTH d/b/a ) KILLINGSWORTH, INC., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held public hearings in this case on December 6 and 7, 1979; January 21 and 22, 1980; and April 3 and 4, 1980, in Pensacola, Florida.
APPEARANCES
For Petitioner: Jon W. Searcy, Esquire
HRS District II Counsel
160 Governmental Center Pensacola, Florida 32522
For Respondent: Larry G. Parks, Esquire
Murphy, Beroset & Parks
216 Government Street Pensacola, Florida 32501
ISSUE
The issue posed herein is whether or not the Department of Health and Rehabilitative Services' revocation of Respondent's pest control business license, operator's certificate and employee's identification is warranted based on conduct set forth hereinafter in detail as set forth in the Petitioner's revocation notice dated June 4, 1979. 1/
FINDINGS OF FACT
Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the arguments and briefs of counsel and the entire record compiled herein, the following relevant facts are found.
Pursuant to Petitioner's Notice of Violation dated June 4, 1979, the administrative proceeding herein commenced on December 6, 1979, on twenty-six of
the thirty-nine specific violations alleged to have been committed by Respondent. The specific alleged violations are as set forth below based on a separation by complainant or victim with the alleged date of violation:
On February 28, 1977, it is alleged that Respondent and/or its agents, performed
pest control services for Ms. Ethel Atkinson and Ms. Loree Atkinson, 1903 East Leonard Street, Pensacola, Florida, and violated
the following Administrative Code sections and/or statutes:
Treated the Atkinsons' residence with fumigant gas, methyl bromide, without notifying in advance, the Escambia County Health Department, in violation of Chapter 10D-55.110(1), Florida Administrative Code.
Failed to perform the fumigation
of the Atkinson residence in strict accordance with the registered label directions for methyl bromide, in violation of Chapter
10D-55.111(4), Florida Administrative Code.
On March 17, 1977, Respondent failed to perform subterranean termite control treat- ment for the Atkinsons, in violation of Chapter 10D-55.142(1)(b), Florida Administra- tive Code.
During July, 1978, Respondent's agents and/or employees, Steven R. Foster and Gerald
A. Caudill, inspected the Atkinson residence and told them that the home was infested with powder-post beetles and proposed a treatment when no such infestation existed, and thus
no treatment was required, which acts constitute violations of Chapter 10D-55.104(4), Florida Administrative Code.
Respondent, during times material, failed to apply for and obtain an I.D. card for Steven R. Foster, in violation of Chapter
10D-55.143(1), (2) and (3), Florida Adminis- trative Code.
Respondent performed Phostoxin fumi- gation on residences when Phostoxin is not labeled or registered for residential fumi- gation, in violation of Chapters 10D-55.106(1); 10D-55.111(4) and 10D-55.144(1), Florida Administrative Code.
Respondent and/or its agents, during times material but particularly during July, 1978, illegally used Phostoxin for fumigation purposes in a residential structure, in vio- lation of Chapter 10D-55.116(2), Florida Administrative Code.
During July, 1978, Respondent per- formed Phostoxin fumigation without notifying the Escambia County Health Department, in violation of Chapter 10D-55.110(1), Florida Administrative Code.
During July, 1978, Respondent performed Phostoxin fumigation without the knowledge and personal supervision of its certified registered operator in charge of fumigation for Killingsworth, Inc., Elmer Logan, in violation of Chapter
10D-55.108(1) and (2), Florida Administrative Code.
Shumpert/Graham Case
On April 22, 1977, Respondent performed services for Robert Shumpert and/or R. A. Graham of 109 Harris Street, Pensacola, Florida, by
fumigation of their residence at 109 Harris Street, without informing the Escambia County Health Depart- ment, in violation of Chapter 10D-55.110(1), Florida Administrative Code.
On or about April 22, 1977, Respondent fumigated the Shumpert/Graham residence with "Vikane" gas in a manner not in accordance with the label instructions, nor were occupants of the residence properly warned of the hazards, in
violation of Chapters 10D-55.106(1); 10D-55.110(3); 10D-55.111(4) and 10D-55.144(1), Florida Adminis- trative Code.
On or about April 22, 1977, Respondent used Phostoxin for residential fumigation for the Graham/Shumpert residence, in violation of Chapters 10D-55.106(1); 10D-55.111(4) and
10D-55.144(1), Florida Administrative Code.
On or about April 22, 1977, Respondent fumigated the Graham/Shumpert Residence with Phostoxin without informing the occupants of
the hazards, in violation of Chapter 10D-55.110(3), Florida Administrative Code.
During approximately April 22, 1977, Respondent performed a fumigation with Phostoxin without advance notification to the Escambia County Health Department, in violation of Chapter 10D-55.110(1), Florida Administrative Code.
During April 22, 1977, Respondent
performed a Phostoxin fumigation without the knowledge and personal supervision of its certified operator in charge of fumigation,
Elmer Logan, in violation of Chapter10D-55.108(1) and (2), Florida Administrative Code.
During May 22, 1978, Respondent per- formed pest control services for Mrs. Ann Boyett of 706 North Lynch Street, Pensacola,
Florida, and during the course of such treatment, through its agent and employee, Steven R.
`Foster, placed Phostoxin pellets under the Boyett residence for control of powder-post beetles, in violation of Chapter 10D-55.108(1) and (2), Florida Administrative Code.
Respondent used Phostoxin in resi- dential fumigation in violation of Chapter
10D-55.106(1); 10D-55.111(4) and 10D-55.144(1),
Florida Administrative Code.
Respondent, during May 23, 1978, released Phosphine gas during use of Phostoxin. which is highly inflammable and its use in resi- dential structures is illegal pursuant to Chapter 10D-55.116(2), Florida Administrative Code.
During May 23, 1978, Respondent performed a fumigation with Phostoxin without informing the Escambia County Health Department, in violation of Chapter 10D-55.110(1), Florida Administrative Code.
Respondent, during May 23, 1978, per- formed a fumigation with Phostoxin without informing the homeowner of the hazards, in violation of Chapter 10D-55.110(3), Florida Administrative Code.
Respondent, during May 23, 1978,
failed to apply for and obtain an employee I.D. card for Steven R. Foster, in violation of Section 482.091(1), (2) and (4), Florida Statutes, and Chapter 10D-55.143(1),(2) and (3), Florida Administrative Code.
Based on the foregoing activities, it is alleged that Respondent violated his duties as a certified operator in charge of the pest control activities of a licensee,
in violation of Section 482.152(1), (2),, (4), and (5), Florida Statutes.
During July 12, 1978, Respondent performed pest control work for John A. Sanders, Jr. , at his residences located at 912, 914 and 916 North 63rd Avenue, Pensacola, Florida. During the course of this treatment it is alleged that Respondent failed to per- form the work in accordance with the label directions of any registered termiticide or
by the use of methods and equipment generally suitable and accepted as good industry
practice, in violation of Chapters 10D-55.106(1); 10D-55.135(2) and 10D-55.144(1), Florida Adminis- trative Code.
Based on the conduct set forth in the paragraph next above, it is alleged that the Respondent violated the duties of a certified operator in charge of pest control activities
of a licensee, in violation of Section 482.152(1), (4), and (5), Florida Statutes.
The Hinote Case
During December 21, 1978, it is alleged that Respondent's agent Wayne Thompson, repre- sented to Ms. Lee Hinote of 1405 East Gonzales Street, Pensacola, Florida, that wood borers were infesting her residence and that treatment was needed, when no such infestation existed and
no treatment was required, in violation of
Chapter 10D-55.104(4), Florida Administrative Code.
Based on the alleged conduct set forth in the paragraph next above, it is alleged that the Respondent engaged in conduct violative
of Section 482.152(1), (2), (4), and (5), Florida Statutes.
William E. Grimsley, Supervisor, Environmental Health Unit of the Escambia County Health Department, is the person in charge of inspecting and ensuring that within the county no violations of Chapter 10D-55.110(1), Florida Administrative Code, occur. All pest control companies operating in the county, including Respondent, are required to notify the County Health Department when a fumigation is to take place and the approximate time that the "gas" will be released. Fumigation notices are required to be submitted to the Health Department twenty-four hours in advance of the fumigation. Thee Health Department inspects the premises to be certain that the tent is properly sealed, that there is first aid equipment readily available and to generally ensure that the operator is qualified to perform the fumigation Mr. Grimsley recalled having received no fumigation notices from Respondent. Specifically, Mr. Grimsley testified that his office, the County Health Department, received no fumigation notice from Respondent for the Atkinson residence during April of 1977, for the Sumpert residence during times material, or for Ann Boyett's residence during the period of May, 1978.
During May of 1978, Mr. Grimsley, through the Escambia County Health Department, received a complaint from the Atkinsons regarding the pest control services performed by Respondent. Mr. Grimsley referred Ms. Atkinson to Mr. William E. Page, Petitioner's agent in the Office of Entomology, Department of Health and Rehabilitative Services. During October of 1978, Mr. William Page and Mr. William Grimsley removed a sample of a white powdery substance found in the Atkinsons' attic. The sample was analyzed by Chris Bush, a chemist employed by Petitioner, who determined that the substance was a residue of Phostoxin. (Petitioner's Exhibits 32 and 40.)
The Atkinson residence was treated by Respondent during, April of 1977. As stated, the Atkinsons complained to the Health Department during May of 1978, approximately fifteen months after the treatment. Samples of a white powdery residue found in the attic were analyzed by Petitioner's chemist during. October, 1978, and were determined to be a Phostoxin residue. Respondent and its agents and employees denied treating the Atkinson residence with anything other than Lindane and Methyl Bromide.
During late 1978, Messrs. Grimsley and Page visited the residence of Mrs. Ann Boyett of 704 North Lynch Street, Pensacola, Florida. Mr. Page removed two prepac Phostoxin strips from underneath the Boyett residence.
Steven Roy Foster (Moneyhun) also known as Steven Roy Foster was employed by Respondent from March of 1978 through July of 1978. Foster was hired by Respondent to perform mechanical work, although he assisted in tapings for fumigations and assisted Respondent's pest control operators. Foster placed two prepac Phostoxin strips under the Boyett residence. Foster was assigned to do the work by Respondent's agent, Frank Ancarrow, and was paid by the Boyetts for the work. (Petitioner's Exhibit 13.) Respondent and its agents, Frank Ancarrow and former employee, Elmer Logan, denied any knowledge, authorization or other assistance in the use of the treatment of residential structures with Phostoxin. Phostoxin is not authorized for the use in residential construction according to its label use restrictions. (Petitioner's Exhibit 12.)
Respondent treated the Graham-Shumpert residence at 109 Harris Street, Pensacola, Florida, for subterranean termites and old house wood borers during late April, 1977. The old house wood borers were located in the attic and, according to Respondent, were treated by him using a "spot" fumigation treatment of Methyl Bromide. 3/ Approximately two years later, Mr. Shumpert detected traces of termites again swarming in the kitchen of his home and called Frank Roberts of Roberts Pest Control Company to check on the termites. Mr. Roberts inspected the Shumpert residence and noted what he found in the attic, a residue of suspected Phostoxin. Mr. Roberts engaged the services of a private laboratory in Pensacola, Florida, to analyze the residue of the substance he found in the Shumpert residence. The sample was analyzed and, according to the lab analysis, the residue of the sample was Phostoxin. Gail Thompson, a former employee of the Respondent, testified that he treated the Shumpert residence for termites and that he assisted in taping the house in preparation for the fumigation which was performed by Respondent Billy F. Killingsworth. Respondent testified that he treated the Shumpert house by a "spot" fumigation using Methyl Bromide as a localized treatment to eradicate the infestation which was concentrated on a few joists.
Respondent's testimony to the effect that the infestation was localized to a few joists conflicts with the testimony of witnesses William Page, Carlton Layne and John Boitnott, who testified that the damage and infestation was severe and widespread. Based on the extended hiatus between the treatment by Respondent and the inspections by Messrs, Page, Layne and Boitnott, it cannot be concluded that the condition of the premises as found by Respondent, continued unchanged until the subsequent and, of course, more recent visit by the investigating officials. (Petitioner's Exhibit 3.)
When the Shumpert residence was treated, it was under contract to be sold by Mims-Snow Realty of Pensacola, Florida. Prior to sale, it was necessary to receive an FHA wood infestation report which admittedly, as testified to by Respondent's secretary and assistant, Joyce Beard, was filed incorrectly using information from another wood infestation report for another property. (Petitioner's Exhibits 6 and 9.) According to that report, Vikane gas was used as a fumigant, which, if used according to the petitioner's licensing administrator, Warren T. Frazier, was not applied in accordance with the label instructions of that fumigant. 4/
On or about July 12, 1978, Mr. John A. Sanders entered into a contract with Respondent for pest control treatment of three houses that he owned on North 63rd Avenue, Pensacola, Florida. (Petitioner's Exhibits 17, 15 and 19.) Respondent contracted to control household pests, fleas, etc. in the Sanders' residences for a total price of $520.00. According to 14r. Sanders, the treatment period lasted approximately twenty minutes and no trenches were dug, no drilling took place and there was no treatment for powder-post beetles contrary to his payment and contract for these services. Mr. Sanders filed a complaint with local and state officials and executed a complaint form. (Petitioner's Exhibits 20 and 21.)
Respondent's former employee, Steven Foster, was assigned the task of treating the Sanders' residences. Foster acknowledged that he inadequately and incompletely treated the Sanders' residences for termites and powder-post beetles. Testimony of Warren Frazier, John Sanders and William Page corroborate Foster's testimony to the effect that the treatment was substandard and was not in accordance with the label directions of any registered termiticide. Additionally, the treatment fell below what is generally accepted as good industry Practice. Respondent testified that the Sanders' residences were
treated by Carl Heichel. Heichel was unavailable and did not testify in this proceeding.
Opal Lee Hinote of 1405 East Gonzalez Street contacted Respondent during December, 1978, for an annual renewal inspection of her residence. Respondent's agent, Wayne Thompson, performed the annual inspection. (Petitioner's Exhibit 27.) Additionally, Respondent's agent, Thompson, represented to Ms. Hinote that old house wood borers were affecting her residence and that treatment was needed. Thompson discussed a treatment price of $175.00, which was reduced, after some negotiation, to $125.00. Ms. Hinote, being suspicious, called Elmer Logan, Respondent's former employee who presently operates Fireman Pest Control, to inspect her premises. Mr. Logan advised Ms. Hinote that there were no wood borers in her house but merely old traces of wood borer activity. Ms. Hinote, still concerned, contacted Petitioner's agent, William Page, who inspected the house and confirmed Logan's report that there was no present wood horer activity to her residence. (Petitioner's Exhibits 28,
29 and 30.) Respondent's position on Ms. Hinote's complaint is that it is difficult to discern whether or not there is active or inactive wood borer activity and that Thompson, being a sales representative only for a short time when he made the inspection, was unable to discern whether or not the activity signs were evidences from old damage by powder-post beetles and wood borers. 5/
Mr. F. R. Du Chanois is Petitioner's supervisor for pest control records and has in excess of twenty-six years experience as an Entomologist.
Mr. Du Chanois, who is Petitioner's records custodian, also receives and assigns complaints for investigation. Based on the complaints received about Respondent, Mr. Du Chanois directed an Inquiry to the manufacturer respecting the application of Phostoxin for residential application. Mr. Du Chanois determined and received confirmation that there are presently no registered uses for residential application for Phostoxin fumigations to control wood destroying insects. (Petitioner's Exhibit 42.) According to Du Chanois, the responsibility for obtaining an I.D. card is jointly placed on the operator and the employee. See Section 482.091(1) and (2), Florida Statutes.
Billy F. Killingsworth, the certified operator and owner of Killingsworth pest control business, has been in business for approximately eleven years in Escambia County. Respondent has a B.S. degree in Entomology from Auburn University and is certified in all areas of pest control, i.e,. general household pest and rodent control, subterranean termites, lawn and ornamental, and fumigation. According to Respondent, it is very difficult to determine whether powder-post beetles are in an active or inactive status. Respondent uses Lindane as a residual treatment for the eradication of beetles and Methyl Bromide as a fumigant to control beetles, dry wood termites and rodent control. Respondent only uses Phostoxin as a commodity fumigant since it is only labeled for such uses and since it is one-half to two-thirds more expensive than other registered fumigants. Respondent, Billy F. Killingsworth, is the only certified operator within his employ in Escambia County who is registered to use Phostoxin. (Testimony of Billy F. Killingsworth.)
According to the worksheets, Tommy Phelps was the card holder assigned to perform the work for the Atkinson job. Respondent performed the fumigation, using oil based Lindane in the attic. Respondent acknowledged that he erroneously issued a termite contract for the Atkinsons. Respondent considers a "spot" fumigation as being superior to a complete or tent fumigation, in that it permits a larger concentration of gas to be infused to the exposed area and is least expensive. Respondent has performed less than ten structural fumigations since he has been in business. (Respondent's Exhibits 4, 5 and 6.)
Respondent employed Steven Roy Foster (Moneyhun) to help in repairing hydraulic pumps, refrigeration equipment and to do mechanical and other minor maintenance tasks based on his (Foster's) prior experience. Respondent denied that Foster was assigned to assist or perform fumigations within the short period that Foster was employed by Respondent.
Respondent acknowledged that the FHA Wood Infestation Report given to Ms. Graham of Mims-Snow Realty was erroneously issued based on the realtor's rush to sell the property. (Respondent's Exhibit 8.) Respondent performed the fumigation for the Shumpert residence and placed a warning sign on the front and back doors of the house. At the time of the fumigation, the house was unoccupied. Respondent used Methyl Bromide to fumigate the Shumpert residence and had no explanation as to the presence of Phostoxin in the attic of the Shumpert residence.
Respondent assigned Carl Heichel to do the termite and beetle treatment for the Boyett residence. (Respondent's Exhibit 9.) Lindane and Heptachloride were used for the treatment. Heichel left Respondent's employ approximately October of 1978.
According to Respondent, Heichel was also assigned to perform the work for the Sanders' houses on 63rd Avenue. (Respondent's Exhibit 10.) Respondent testified that he attempted to correct the problems in connection with the Sanders residence but was unable to arrange a mutually convenient schedule to resolve the matter. Wayne Thompson was assigned to perform the pest control treatment for the Hinote residence. Thompson had only been employed approximately six months when he was assigned to inspect the Hinote residence. Respondent noted that it was a mistake not to apply for an I.D. card for Steven
R. Foster. He acknowledged that there was no reason not to apply for an I.D. card for Foster; however, the fact that Foster was hired to do mechanical work delayed his decision to apply for or to obtain an I.D. card for Foster. Respondent treated the Shumpert residence using Methyl Bromide which was registered and labeled "Dowfume MC-2". 6/
Respondent acknowledged that it is unlawful to use a registered pesticide in a way which is inconsistent with the label. He also acknowledged that certified operators are charged with the duty of using fumigants in accordance with the registered labels consonant with the structure to be fumigated. (Testimony of Billy F. Killingsworth.)
Several of Respondent's former employees who were employed during times material herein testified that they were unaware of any illegal uses of Phostoxin by Respondent and/or its employees. These employees included J. D. White, Sr., of Sterling, Illinois; Gerald Caudill of Evansville, Indiana; Frank Ancarrow; Elmer Logan and Gail Thompson.
J. D. White, Sr. , of Sterling, Illinois, was formerly employed by Respondent from June, 1973, through the end of 1974. Mr. White worked for Frank Roberts, a competitor of Respondent during the period July, 1976, through August of 1977. Mr. White was party to conversations between Frank Roberts to the effect that he was; "out to get" Respondent and was privy to conversations with Mr. Roberts to the effect that Roberts had communicated with various Federal regulatory and state agencies to register complaints about Respondent and other competitors in the area. White testified that he was offered money to spray the yards of customers who were on annual contract with Respondent using the wrong chemicals to destroy the grass.
Gerald Caudill presently is employed by Economy Pest Control of Evansville, Indiana. He was formerly employed by Respondent from approximately March, 1978, through approximately April of 1979. Caudill did a localized treatment for powder-post beetles for the Atkinson residence on Leonard Street in Pensacola, Florida. Caudill was shown by the Atkinsons, signs of what he viewed to be an active infestation in the attic of the Atkinson residence and advised them that they needed treatment in their attic.
Frank Ancarrow, Respondent's sales manager, has been employed in that capacity for approximately four years and has approximately eight years' experience with another pest control company. Mr. Ancarrow is certified in all categories except fumigation. Messrs, Ancarrow and Thompson prepared the Shumpert residence for fumigation. The Shumpert residence was treated by Gail Thompson for subterranean termites and the Respondent fumigated the attic for old house wood borers.
Frank Ancarrow was shown the statement given in an affidavit taken by Carlton Layne of the Environmental Protection Agency (EPA) to the effect that Gail Thompson was in charge of the fumigation of the Shumpert residence. Mr. Ancarrow testified that that was a mistake and that Thompson only prepared the house for fumigation. (Petitioner's Exhibits 5 and 26.)
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.
The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.
The authority of the Petitioner is derived from Chapter 482, Florida Statutes, and Chapter 10D-55, Florida Administrative Code.
By fumigating the Atkinson residence on or about February 28, 1977, without adhering to the label directions for the fumigant, Methyl Bromide, Respondent violated Chapter 10D-55.111(4), Florida Administrative Code.
Respondent's failure to perform subterranean termite control treatment at the Atkinson residence on or about February 28, 1977, as contracted, amounts to a violation of Chapter 10D-55.142(1)(b), Florida Administrative Code.
Respondent's agents, by inspecting the Atkinson residence and advising the owners that the property was infested with powder-post beetles and proposed a treatment procedure for such infestation when no such treatment or infestation existed, amounts to a violation of Chapter 10D-55.104(4), Florida Administrative Code.
Respondent, by failing to apply for and obtain an employee I.D. card for employee Steven R. Foster during July, 1978, amounts to conduct violative of Chapter 10D-55.143(1), (2) and (3), Florida Administrative Code.
Respondent's fumigation of the Shumpert residence during late April, 1977, with Vikane was not in keeping with the label instructions nor were occupants properly warned of the hazards and, as such, amounted to conduct
violative of Chapters 10D-55.106(1); 10D-55.110(3); 10D-55.111(4) and 10D- 55.144(1), Florida Administrative Code.
Respondent's employee and agent, Steven R. Foster's placement of Phostoxin pellets under the Boyett residence during May of 1978 for control of powder-post beetles amounts to conduct violative of Chapter 10D-55.108(1) and (2), Florida Administrative Code.
Respondent's failure to apply for and obtain an employee I.D. card for Steven R. Foster is also a violation of Chapter 482.091(1), (2) and (4), Florida Statutes.
Respondent, by its agents and employees's pest control treatment of the Sanders residences amounts to work performed not in accordance with label directions of any registered termiticide or by the use of methods and equipment which are not recognized as generally suitable or accepted in the industry and, as such, amount to violations of Chapters 10D-55.106(1); 10D-55.135(2) and 10D- 55.144(1), Florida Administrative Code.
Respondent, by its agent, Wayne Thompson's representation of the Hinotes that old house wood borers were infesting their residence and that treatment was needed and required when no such treatment was needed amounts to conduct violative of Chapter 10D-55.104(4), Florida Administrative Code.
It is concluded as a matter of law that Petitioner failed to establish by competent and substantial 4 evidence that Respondent engaged in the remaining cited conduct contained in the June 4, 1979, Notice of Violation issued to Respondent.
Based on the foregoing acts and conduct by Respondent and its agents, Respondent is guilty of conduct amounting to a violation of Section 482.152(1), (2), (4) and (5), Florida Statutes.
Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby,
RECOMMENDED:
That the Respondent's pest control license be SUSPENDED for a period of two (2) year is also
RECOMMENDED that the initial six (6) months of the suspension be active and that the remaining eighteen (18) months be held in abeyance and during such period, Respondent be placed on probation pursuant to Section 482.162(b), Florida Statutes. If the Department (Petitioner) finds that the terms of probation are violated by Respondent, 8/ it may revoke such probation and the initial term of suspension, two (2) years, shall become effective.
That Petitioner's notice to Respondent of its intended denial of its renewal application for licensure be SUSTAINED.'
It is further RECOMMENDED that the remaining allegations for which no violations are found be DISMISSED.
RECOMMENDED this 10th day of June, 1980, in Tallahassee, Florida.
JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
ENDNOTES
1/ A related issue is whether or not the Petitioner's notice to respondent of its intended denial of its application for renewal of its pest control business license based upon the same facts at issue and alleged violations as set forth in the Petitioner's revocation notice on June 4, 1979, is also warranted. The issues were consolidated during the hearing by the undersigned on January 21, 1980, based on Petitioner's Motion for Consolidation.
2/ The remaining thirteen (13) allegations were voluntarily dismissed by Petitioner without objection from Respondent.
3/ There is no requirement for best control operators to notify the Health Department for "spot" fumigations.
4/ Warren Frazier, an employee of Petitioner in the Office of Entomology for approximately fifteen years, was tendered and received as an expert in commercial applications of chemicals.
5/ Respondent, a certified operator, is charged with properly training employees/personnel in acceptable methods of pest control. Section 482.152(4), Florida Statutes.
6/ "Dowfume MC-2" is not registered with the FHA for residential applications. (Testimony of Layne and Du Chanois.)
7/ In making this recommendation, the undersigned noted that some of the violations found above amounted to what can well be considered technical violations. However, the violations occurred during a short period of time in a repetitive manner. This indicated that the Respondent, as was its obligation, failed to ensure that the chemicals selected for the particular pest control work to be performed were proper and correct; that the employees and other support personnel were not properly trained in accentable methods of pest control and failed to devise proper and adequate control measures and procedures. Respondent, a very competent and intelligent pest control operator, became lax in the rules and procedures of his pest control operation and, as a consequence, his customers suffered.
8/ The terms of probation are that during the eighteen (18) months following the initial six (6) month suspension set forth above in this Recommended Order, Respondent shall:
File monthly reports to the Department detailing all pest control work performed in the county.
File monthly reports to the Department detailing all estimates given, the services to be rendered, the treatment processes to be utilized, etc. , for
all work to be done in the county without regard to whether the services offered are in fact provided.
Refrain from violating any provision of Chapter 482, Florida Statutes, or Chapter 10D-55, Florida Administrative Code, during the two (2) year period of suspension.
COPIES FURNISHED:
Jon U. Searcy, Esquire Department of Health and
Rehabilitative Services
160 Governmental Center Pensacola, Florida 32522
Larry G. Parks, Esquire MURPHY, BEROSET & PARKS
216 Government Street Pensacola, Florida 32501
David H. Pingree, Secretary Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32301
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA. DEPARTMENT OF ) HEALTH AND REHABILITATIVE )
SERVICES, )
)
Petitioner, )
)
vs. ) CASE NO. 79-1453
)
BILLY F. KILLINGSWORTH and ) CYNTHIA H. KILLINGSWORTH d/b/a ) KILLINGSWORTH, INC., )
)
Respondent. )
)
SUPPLEMENTAL RECOMMENDED ORDER
This cause is before the undersigned based on a request by Counsel for Petitioner to clarify the Recommendation portion of the Recommended Order entered herein on June 10, 1980.
After consideration of said motion, paragraph 1 of the Recommendation portion of the June 10, 1980 Recommended Order entered herein is amended as follows:
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby,
Recommended:
That the Respondent's Pest Control Operator's Certificate Number 1306; Respondent's Pest Control Employee Identification Card Numbers 5832 and 5843 and Respondent's Pest Control Business License Number 78 be SUSPENDED for a period of two (2) years.
In all other respects, the June 10, 1980 Recommended Order previously entered herein remains unchanged.
RECOMMENDED this 7th day of July, 1980, in Tallahassee, Florida.
JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
COPIES FURNISHED:
Jon W. Searcy, Vsquire Department of IIIS
160 Governmenta] Center Pensacola, Florida 32522
Larry Parks, Esquire Murphy, Beroset and Parks
216 Government Street Pensacola, Florida 32501
Alvin J. Taylor, Secretary Department of IRS
1323 Winewood Boulevard
Tallahassee, Florida 32301
================================================================= STIPULATION TO CONSENT FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,
Petitioner,
vs. CASE NO. 79-1453
BILL F. KILLINGSWORTH and CYNTHIA H. KILLINGSWORTH d/b/a KILLINGSWORTH, INC.,
Respondent.
/
STIPULATION TO CONSENT FINAL ORDER
The Petitioner, Department of Health and Rehabilitative Services, and the Respondents Billy F. Killlngsworth and Cynthia H. Killingsworth d/b/a Killingsworth, Inc., do hereby stipulate, agree, and consent to the entry of a consent final order in the above styled cause as follows:
The Recommended Order of the Hearing Officer of the Division of Administrative Hearings entered on June 10, 1980 is hereby accepted and adopted by the parties in its entirety with the following exceptions, corrections, and substitutions:
In the second sentence of the first full paragraph of page eleven (11) of the Findings of Fact, the word "contract" is deleted and the word "warranty" is substituted therefore.
Paragraph number five (5) on page fifteen (15) of the Conclusions of Law is hereby deleted and stricken. Paragraphs six (6) through thirteen (13) on pages fifteen (15) and sixteen (16) re hereby renumbered paragraphs five (5), through twelve (12) inclusive.
In new paragraph seven (7)(old paragraph eight (8)) on page 15 of the Conclusions of Law the word "Vikane" is hereby deleted and the words "Methyl Bromide" is substituted therefore.
In the last unnumbered paragraph on page sixteen (16) of the Conclusions of Law, the words and numbers "Section 482.152(1), (2), (4) and (5), Florida Statutes'' is hereby deleted and the wards and numbers "Section 482.161(I) and (6), Florida Statutes'' is substituted therefore.
The Recommendation portion of the said Recommended Order is hereby deleted and stricken and the following paragraphs two (2) through six (6) below substituted therefore.
That the Respondent's Pest Control Business License No. 78, Respondent's Certified Operator's Certificate No. 1306, and Respondent's Employee Identification Cards Nos. 5832 and 5843 be SUSPENDED for a period of two (2) years and that the said two-year suspension be held in abeyance and during such period, Respondent shall be placed on probation pursuant to Section 482.162(b), Florida Statutes.
The terms of probation are that during the two (2) year period of probation which shall commence on the date the final order is entered by the Secretary of the Department of Health and Rehabilitative Services, the Respondents shall:
File monthly reports to the Department detailing all pest control work performed in the county.
File monthly reports to the Department detailing all estimates given, the services to be rendered, the treatment processes to be utilized, etc., for all work to be done in the county without regard to whether the services offered are in fact provided.
Refrain from violating any provision of Chapter 482, Florida Statutes or Chapter 100-55, Florida Administrative Code, during the two (2) year period of probation.
That, as an additional condition of the two (2) year period of probation, the Respondents shall not perform any residential or other structural fumigation(s) of any type or nature whatsoever, other than commodity fumigations at the Port of Pensacola, for a period of six (6) months from the date the final order is entered by. the Secretary of the Department.
5.. if the Department (Petitioner) finds that any of the above terms of probation are violated by Respondents during the two (2) year probation, the Department may revoke such probation and the initial term of suspension, two (2) years, shall become effective.
6. That the remaining allegations for which no violations are found be DISMISSED.
WHEREFORE, the above Stipulation to Consent Final Order is hereby entered into and executed this 8th day of July, 1980 by the parties' respective counsel.
Larry G. Parks, Esquire W. Searcy, Esquire MURPHY, BEROSET & PARKS Department of Health and
216 Government Street Rehabilitative Services Pensacola, Florida 32501 District One Legal Counsel Attorney for Respondents 160 Governmental Center Billy F. Killingsworth and Post Office Box 17389 Cynthia H. Killlngsworth d/b/a Pensacola, Florida 32522 Killingsworth, Inc.
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
STATE OF FLORIDA, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,
Petitioner,
vs. CASE NO. 79-1453
BILLY F. KILLINGSWORTH and CYNTHIA H. KILLINGSWORTH d/b/a KILLINGSWORTH, INC.,
Respondent.
/
FINAL ORDER
The Department of Health and Rehabilitative Services having received a Recommended Order and a Stipulation to Consent Final Order and being otherwise well advised in the premises decides as follows:
The Stipulation to Consent Final Order entered into between the parties on July 8, 1980, is approved and adopted as a part of this Final Order.
The Recommended Order entered on June 10, 1980, by Hearing Officer James E. Bradwell and the Supplemental Recommended Order entered on July 7, 1980, are hereby approved and adopted as a part of this Final Order except as modified by the Stipulation to Consent Final Order.
Therefore, it is ORDERED and ADJUDGED that Respondents Billy F. Killingsworth and Cynthia H. Killingsworth d/b/a Killingsworth, Inc. are directed to comply with the Stipulation to Consent Final Order and the terms and conditions contained therein, and Respondents' Pest Control Business License No. 78, Respondents' Certified Operator's Certificate No. 1306, and Respondents' Employee Identification Cards Nos. 5832 and 5843 be SUSPENDED for a period two
(2) years and that the said two-year suspension be held in abeyance and during such period, Respondents shall be placed on probation pursuant to Section 482.162(b), Florida Statutes.
DONE and ORDERED this 22nd day of July, 1980, in Tallahassee, Florida.
ALVIN J. TAYLOR
Secretary
COPIES FURNISHED:
Jon W. Searcy, Esquire Department of Health and
Rehabilitative Services District One Legal Counsel
160 Governmental Center Post Office Box 17389 Pensacola, Florida 32522
Larry G. Parks, Esquire MURPHY, BEROSET & PARKS
216 Government Street Pensacola, Florida 32501
James E. Bradwell, Hearing Officer Division of Administrative Hearings
101 Collins Building Tallahassee, Florida 32301
Steve Huss, Esquire
Staff Attorney - Operations Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32301
Dr. J. A. Mulrennan Office of Entomology Department of Health and
Rehabilitative Services 1217 Pearl Street
Jacksonville, Florida 32231
| Issue Date | Proceedings |
|---|---|
| Jul. 25, 1980 | Final Order filed. |
| Jun. 10, 1980 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 22, 1980 | Agency Final Order | |
| Jun. 10, 1980 | Recommended Order | Respondent should have pest control license suspended two years for violating pest control rules and procedures. |
