STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF HEALTH ) AND REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2160

)

DR. A. C. BANERJEE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Harold L. Braynon, Esquire

Department of Health and Rehabilitative Services

201 West Broward Boulevard

Fort Lauderdale, Florida 33301 For Respondent: Respondent failed to appear.

This cause arose on the Petitioner's issuance to the Respondent of a "Notice of Intent to Enter Cease and Desist Order" dated October 7, 1980, and filed November 13, 1980. This charging document alleges that the Petitioner has no record showing the Respondent to be licensed or certified pursuant to Sections 482.071 and 482.111, Florida Statutes, to conduct pest control in the State of Florida. Accordingly, the charging document gives notice that it is the Petitioner's intent to enter a cease and desist order directed at the pest control aspects of the Respondent's business. Specifically, the Petitioner alleges that the Respondent performed a wood-destroying organism inspection of certain residences in Hallandale, Florida, on July 23, 1979, without the benefit of a pest control business license and a pest control operator's certificate issued in the category of termite or other wood-destroying organism control; in violation of Section 482.226, Florida Statutes. The issue thus, as framed by the Petitioner, concerns whether the Respondent's activities are violative of the above-cited statutory authority. The Petitioner presented one witness and four exhibits. The Respondent failed to appear, but subsequent to the hearing, submitted a handwritten statement dated July 2, 1981, in which he agreed to refrain from practicing consulting work in entomology any longer, which therefore is taken as an admission against interest regarding the Petitioner's allegation, in that it is an agreement to refrain from that activity which the Petitioner charges constitutes a violation of the above authority.

FINDINGS OF FACT

1. Evidence adduced by the Petitioner in the form of the testimony of F. Robert DuChanois, an entomologist and supervisor in charge of commercial pest control, Office of Entomology, Department of Health and Rehabilitative Services, as well as Exhibit 2, established that on July 1, 1979, the Respondent made an inspection of an apartment house in Hallandale, Florida, to determine whether suspicions by the occupants of drywood termite infestations were well-founded. As delineated in Exhibit 2, the Respondent's report of his inspection, positive evidence was found in a number of places of termite infestation, which findings revealed that indeed the Respondent made a detailed professional investigation of the premises for such infestations. The evidence in the record also reveals (Exhibit 4) that the Respondent is not operating a pest control business, but is only performing consulting work for those property owners who request that he make inspections for termite and other wood-destroying pests.

   
   

2. In any event, the Respondent, in the posthearing pleading he filed, has agreed to cease the activity objected to and which forms the basis of the Petitioner's charges. He has agreed to cease practicing consulting work in entomology henceforth.

   
   

   CONCLUSIONS OF LAW

   
   

3. Section 482.021, Florida Statutes, defines at Subsection 15, that "'pest control' means . . . the identification of infestation or infections in, on or under a structure, . . ."

   
   

4. There is no question that the evidence in this record, specifically the testimony of the Petitioner's witness as well as Exhibit 2 and Exhibit 4, establishes that the Respondent was engaged in inspecting a structure for identification of infesting pests, which Subsection 17 defines in pertinent part as wood-destroying organisms such as termites.

   
   

5. Section 482.071--Licenses, provides as pertinent hereto that the department may issue licenses to qualify businesses to engage in pest control in this state and that it is unlawful for any person to operate a pest control business that is not licensed by the department (emphasis supplied). The remainder of this Section, in its licensing requirements, refers in its entirety to the licensing of pest control businesses where it refers to license fees, changes of business address, to display of the license at the business location and the required business insurance coverage. No evidence adduced by the Petitioner establishes that the Respondent was in pest control business (emphasis supplied). Indeed, Exhibit 4 contains a positive assertion by the Respondent that his activities do not constitute a pest control business, but rather that he merely occasionally consulted with individuals requesting his services regarding pest control in the area of his expertise as an entomologist. Thus, no violation of Section 482.071 regarding the requirement for licensing of a pest control business has been established by the Petitioner.

   
   

6. Section 482.111, the other authority for the Petitioner's charges requires generally that any individual who engages in pest control work, as defined above must have a pest control operator's certificate. Specifically, however, Subsection 2 of that Section provides:

   
   

   Before engaging in pest control work and on or before June 1 of each year, each individual qualified under the provisions

   of this act for a pest control operator's certificate and permitted to be in charge

   of the pest control activities of a licensee, shall apply to the department on forms of

   the department for a pest control operator's certificate or renewal of such certificate

   . . . each 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.

   1. Each category of each licensee shall be in the charge of a certified operator

      who is certified for the particular category.

      * * *

   2. No person shall be in charge of the performance of pest control activities of any category of any licensee unless such person is certified.

   3. No certified operator shall be in charge of the performance of pest control activities at more than one business loca- tion; . . . . (emphasis supplied)

      
      

      Therefore, although this Section under which the Respondent is charged, refers to the certification of an individual who engages in pest control work, this Section also refers to such an individual who operates or is in charge of a business of pest control (emphasis supplied). There has been no showing by the evidence in this record that the mere inspection of a structure to determine whether or not it is infested by termites, by a trained entomologist, although it meets the definition of pest control, is an activity requiring licensing or certification under the two above-charged Sections since this activity is not done in conjunction with the ongoing, continuous operation of a pest control business. Accordingly, it is concluded that the Petitioner has failed to establish that the particular limited pest control activity conducted by the Respondent is violative of Sections 482.071 and 482.111, Florida Statutes. In any event, however, the matter is now apparently moot, inasmuch as Respondent has agreed in his statement filed posthearing, to refrain from the subject activity in the future.

      
      

7. Notwithstanding the above conclusions, they, of course, only become germane if it be assumed that Petitioner has the jurisdictional basis for entering such a "cease and desist" order. That assumption cannot be made on the basis of the record in this proceeding. Petitioner has not demonstrated the statutory basis which must exist to clothe it with the power to issue such a cease and desist order. Section 482.032 provides in pertinent part as follows:

   
   

   Enforcement.--

   1. The Office of Entomology under the assistant secretary for operations for the Department of Health and Rehabilitative Services is empowered to enforce this measure . . .

   2. It shall be the duty of every state attorney, sheriff, police officer and other appropriate city and county officers to enforce, or to assist the office or

      any duly authorized inspector or other

      agent of the department in the enforcement of, this act and the rules promulgated by the department under the provisions of this measure.

   3. The department, through the Office of Entomology, may commence and maintain all proper and necessary actions and proceed-

   ings for any or all of the following purposes:

   1. To enforce its rules.

   2. To make application for injunction to the proper circuit court, and the judge of said court shall have jurisdiction upon hear- ing and for cause shown to grant a temporary or permanent injunction, or both, restraining any person from violating or continuing to violate any provisions of this measure or

   failure or refusing to comply with the require- ments of this measure.

   
   

8. Section 482.191 provides generally, with regard to violations and penalties, that it is unlawful to solicit, practice or perform pest control except as provided by the chapter and that persons violating any provision of Chapter 482 are guilty of misdemeanors of the second degree punishable as provided in Sections 775.082, 775.083, and 775.084, Florida Statutes. The same punishment is provided in Subsection 3 of that Section for anyone who violates the rules of the department. The only other provisions of Chapter 482 relating to sanctions which may be imposed for violations of Chapter 482 are contained in Section 482.161, "Grounds for suspension and revocation" and Section 482.162, "Other disciplinary measures and probation." These provisions deal respectively with grounds for suspension or revocation of licenses, or certificates, or special identification cards of those persons or entities who are already licensed or certified to perform pest control, or pest control services and Section 482.162 contains certain lesser disciplinary measures which may be imposed upon such licensees if the Department deems that revocation or suspension is an excessively severe penalty. The point is that those two Sections are the only ones allowing the Department itself to proceed against the violators, and those two Sections refer only to licensees, or certificate holders, or other "permittees" who are already under the Department's jurisdiction prior to any disciplinary proceeding (emphasis supplied). Therefore, it becomes obvious that the only other means by which the provisions of Chapter 482 may be enforced against violators of it are contained in Section

482.032 quoted above which provides that the Department, through the Office of Entomology may only commence and maintain proper and necessary actions and proceedings to enforce its rules, or to make application for injunction to the proper circuit court which shall have jurisdiction on hearing, and for cause shown, to grant temporary or permanent injunctive relief, with the above- mentioned criminal penalty provisions then applying with reference too the penalties available in Chapter 775. Those provisions are criminal penalties only cognizable and assessable by courts of general jurisdiction capable of issue injunctive relief or imposing criminal penalties. If the Legislature had intended to grant the Petitioner authority to issue orders in the nature of injunctive relief (as it seeks here to do), it would not have provided it with the above alternative of applying for injunctive relief in circuit court to enforce Chapter 482. Thus, it is apparent that the only sanctions assessable and cognizable by the Department in its own administrative proceeding are those which relate solely to licensees, certificate holders or identification card holders, and that there is, thus, no jurisdiction in the Department to impose a

cease and desist order against a person or entity not already regulated by the Department. The Department's cause of action and remedy, therefore, against persons not already licensed would lie in circuit court in the nature of injunctive relief, as it relates to this Respondent. Administrative boards and commissions have no common law powers and can exercise only those powers expressly provided by statute or those powers so necessary to the exercise of the expressed powers that they may be implied. State ex rel. Greenberg, 297 So. 2d 628 (1st DCA Fla. 1974), Cert. Dism. 300 So. 2d 900; Fiat Motors of North America, Inc., Petitioner against John D. Calvin, as Director, Division of Motor Vehicles of the State of Florida and Alpine Motors, Inc., a Florida corporation, Respondents, 356 So. 2d 909 (1st DCA Fla. 1978). The Department has been shown to have no power expressly provided in the statute to issue such a cease and desist order against an unlicensed individual such as the Respondent nor have such powers been shown to be so necessary to the exercise of the expressed power to regulate pest control such that jurisdiction may be implied, since an adequate remedy is available to the Department by seeking injunctive relief in the appropriate circuit court. It is, accordingly, concluded that the Petition in the form of the "Notice of Intent to Issue Cease and Desist Order" should be dismissed.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law and the evidence in the record, it is, therefore,

RECOMMENDED that the Petition in this cause filed by the Department of Health and Rehabilitative Services against Dr. A.C. Banerjee be DISMISSED and Case No. 80-2160 be hereby closed.

DONE AND ENTERED this 10th day of August, 1981, in Tallahassee, Florida.

P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1981.

COPIES FURNISHED:

Harold L. Braynon, Esquire Department of Health and

Rehabilitative Services

201 West Broward Boulevard

Ft. Lauderdale, Florida 33301

Dr. A. C. Banerjee 10891 N.W. 17th Manor Coral Springs Branch

Pompano Beach, Florida 33065

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Petitioner,

vs. CASE NO. 80-2160

DR. A. C. BANERJEE,

Respondent.

/

FINAL ORDER

The Department of Health and Rehabilitative Services, having received the Recommended Order entered in this proceeding by Hearing Officer P. Michael Ruff, dated August 11, 1981, and being otherwise well advised in the premises, decides as follows:

1. The Findings of Fact contained in the Recommended Order are hereby adopted as a part of this Final Order.

   
   

2. The Conclusions of Law contained in the Recommended Order are completely rented and the following Conclusions of Law are substituted:

   
   

   1. Respondent was engaged in inspecting a structure for identification of infesting pests without any license or certification. Respondent was in the pest control business and engaged in and operating a pest control business as those terms are used in Chapter 482, Florida Statutes, and specifically Sections

      482.071 and 482.111, Florida Statutes.

      
      

   2. Respondent's activities required a license and certification pursuant to Chapter 482, F.S. and Sections 482.071 and 482.111, F.S. , and Respondent was acting in violation of said laws.

      
      

   3. The Department has sufficient authority under section 482.032, F.S. to enter cease and desist orders to prevent violations of and to enforce its statutes and rules, and it is therefore

      
      

3. Respondent submitted a handwritten statement dated July 2, 1981 in which he agreed to refrain from practicing consulting work in entomology, so that be has in fact consented to this cease and desist order.

ORDERED that Respondent cease and desist from engaging in the pest control business, performing consulting work in entomology and making pest control inspections without first being licensed and certified pursuant to Chapter 482, Florida Statutes.

DONE and ORDERED this 26th day of August, 1981, in Tallahassee, Florida.

ALVIN J. TAYLOR

Copies furnished:

Harold L. Braynon, Esquire District X Legal Counsel Department of Health and Rehabilitative Services

201 West Broward Boulevard

Fort Lauderdale, Florida 33301

Dr. A. C. Banerjee 10891 N.W. 17th Manor Coral Springs Branch

Pompano Beach, Florida 33065

P. Michael Ruff, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Steven W. Huss, Esquire Staff Attorney

Health and Technical Support Services Department of Health and Rehabilitative Services

1323 Winewood Boulevard Building One, Room 308 Tallahassee, Florida 32301

Docket for Case No: 80-002160

Orders for Case No: 80-002160