STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAY B. LAVAN, d/b/a )

VANGUARD PEST CONTROL CO., )

INC., GEORGE H. SKINNER, )

and RICHARD C. MORETTI, )

)

Petitioners, )

)

vs. ) CASE NO. 81-558RX

)

DEPARTMENT OF HEALTH and )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

FINAL ORDER

Pursuant to due and proper notice, a final hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on June 8, 1981, in Miami, Florida.

APPEARANCES

For Petitioners: Howard Hochman, Esquire

2650 Biscayne Boulevard, Suite 207

Miami, Florida 33137

For Respondent: Steven W. Huss, Esquire

Building 1, Room 308

1323 Winewood Boulevard

Tallahassee, Florida 32301 BACKGROUND

On November 4, 1980, the Respondent, Department of Health and Rehabilitative Services, filed administrative complaints against Petitioners, Jay B. Lavan, d/b/a Vanguard Pest Control Company, Inc., George H. Skinner and Richard C. Moretti, alleging they had violated Chapter 482, Florida Statutes, and certain rules promulgated thereunder. The Petitioners disputed the allegations of fact set forth in the administrative complaints and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The matters were referred to the Division of Administrative Hearings by the Respondent on December 15, 1980, with a request that a Hearing Officer be assigned to conduct a hearing. The three proceedings were assigned Case Nos. 80-2398, 80-2399 and 80-2401, and by agreement of the parties were set for final hearing on April 1 and 2, 1981, in Miami, Florida.

On March 20, 1981, Petitioners filed a Petition to Declare Administrative Rules Invalid, and Motion to Dismiss under Section 120.56, Florida Statutes, wherein they sought to have certain unpromulgated rules of the Department declared invalid, and the license revocation proceedings dismissed on other

grounds not relevant hereto. 1/ As a result of this filing, the parties agreed to hold Case Nos. 80-2398, 80-2399 and 80-2401 in abeyance pending the outcome of the rule challenge. In their Petition, Petitioners specifically contended that (1) Respondent had failed to adopt rules governing its organization, method of operation and manner in which the public may obtain information or make requests, general rules of practice and procedure, and rules of procedure for the presentation of arguments concerning issues of law and policy, all of which are required by Section 120.53, Florida Statutes, (2) Respondent had failed to adopt a rule governing the procedure by which a declaratory statement may be requested as required by Section 120.565, Florida Statutes, (3) Respondent had established unpromulgated and therefore illegal rules relating to the issuance of written citations and warning letters to licensees, and the practice of holding informal conferences with licensees, and (4) Respondent bad informally modified Rule 10D-55.104(4), Florida Administrative Code, by placing an unduly restrictive interpretation on the rule for enforcement purposes without complying with statutory rulemaking requirements. Respondent then filed a Motion to Dismiss the Petition wherein it contended that, as a matter of law, the Petition should be dismissed.

A prehearing/motion conference was held on Friday, April 24, 1981, at which time the petitioners voluntarily narrowed their contentions to two broad areas:

(1) the failure of the Department to adopt certain procedural rules as required by Subsections 120.53(1)(a), (b) and (c) , Florida Statutes, and (2) the illegal establishment by the Department of certain unpromulgated rules, and the informal modification of another. By Order dated April 30, 1981, the undersigned granted the Motion to Dismiss that portion of the Petition challenging the Respondent's failure to adopt rules of practice, procedure and organization on the grounds

(1) such rules had in fact been adopted, and (2) the matter was not subject to a Section 120.56 challenge. A ruling was reserved on the remaining portion of the Motion to Dismiss pending the final hearing.

The parties have filed a written stipulation waiving the requirement that the final hearing be held within 30 days after the Petition was filed, and that the final order be rendered within 30 days thereafter. By Notice of Hearing dated May 4, 1981, the final hearing was scheduled for June 8, 1981, in Miami, Florida. At the final hearing, Petitioners called Philip S. VanDam, Dr. John A. Mulrennan, Jr., Jay B. Lavan and Thomas A. Preve and offered Petitioners' Exhibits 1 and 2. Exhibit 1 was received in evidence while a ruling was reserved on the admissibility of Exhibit 2. The latter exhibit is a deposition of witness Mulrennan previously taken on February 16, 1981, in the license revocation proceedings.

The transcript of hearing was filed on June 19, 1981. Proposed findings of fact and conclusions of law were filed by Respondent on July 14, and by Petitioners on July 21, 1981, and have been considered by the undersigned in the preparation of this order. Proposed findings of fact not included in this order were not considered relevant to the issues, were not supported by competent and substantial evidence or were considered immaterial to the results reached.

The issue herein is whether Respondent has established unpromulgated and therefore illegal rules relative to citations, informal conferences and warning letters, and has modified Rule 10D-55.104(4), Florida Administrative Code, without complying with the provisions of Section 120.54, Florida Statutes.

Based upon all the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. BACKGROUND

   
   

   1. At all times relevant hereto, Petitioner, Jay B. Lavan, owned and operated Vanguard Pest Control Company, Inc., a pest control business in Miami, Florida, having been issued a pest control business license, operator's certificate and identification card by the Respondent, Department of Health and Rehabilitative Services. Petitioners George H. Skinner and Richard C. Moretti were employees of Vanguard, and were the holders of pest control employee- identification cards issued by Respondent. Skinner also held an operator's certificate.

      
      

   2. The Respondent issued administrative complaints against Petitioners on November 4, 1980, wherein Respondent alleged Petitioners had violated certain provisions of Chapter 482, Florida Statutes, and various rules promulgated thereunder. As is pertinent here, Respondent charged that in November, 1979, and January and August, 1980, Petitioner Moretti performed three wood-destroying organism inspections of residences in Miami and North Miami Beach, Florida. After performing such inspections he filled out reports which indicated an active infestation of termites on the premises. A subsequent investigation by the Department allegedly revealed that no live termites or other wood-destroying organisms were present. Accordingly, Respondent charged that Moretti and his employer has violated Rule 10D-55.104(4), Florida Administrative Code, by misrepresenting to the property owners that their homes were infested. This allegation was based upon a Department interpretation of the Rule that live termites or other wood-destroying organisms were required to be observed in order to represent that an active infestation was present.

      
      

2. ALLEGED ESTABLISHMENT OF UNPROMULGATED RULES RELATING TO CITATIONS, INFORMAL CONFERENCES AND WARNING LETTERS

   
   

   1. The Department's Office of Entomology (Office) is charged with the responsibility of enforcing the Pest Control Act and the rules promulgated thereunder. Section 482.032, Florida Statutes. The applicable statutes are found in Chapter 482, Florida Statutes, and the rules are codified in Chapter 10D-55, Florida Administrative Code.

      
      

   2. Complaints that licensees may have violated Chapter 482 and Chapter 10D-55 come to the attention of the Office in several ways. They include written memoranda, letters and telephone calls. This information is then evaluated by Office personnel on a case-by-case basis to determine what type of action, if any, may be required under the circumstances. If further action is

      warranted, the Office may use one of three preliminary or informal procedures to investigate and/or correct the violation; in the alternative it may elect to initiate a formal administrative proceeding. The three informal procedures are written citations, informal conferences and warning letters. The type of action that is ultimately taken is dependent upon such variables as the nature, frequency and severity of the alleged violations.

      
      

   3. In a small number of cases, informal conferences are held by representatives of the Office with the licensees. The conferences enable the parties to meet in an informal atmosphere where the licensees may respond to or clarify the alleged violations that prompted the meeting. If the allegations appear to be true, the licensees may be advised to take corrective steps in order to avoid formal administrative action.

   4. In certain cases, the Office may elect to send a warning letter to the licensee where the licensee has violated rules or statutes on a repeated basis. The letter sets out each of the alleged transgressions and warns that if further violations occur, an administrative complaint will be issued.

      
      

   5. Written citations are used by the Office approximately 100 times a year where more serious or frequent violations of rules and statutes are present. Citations are generally drafted by District Office inspectors, with the approval of the Director, and set forth in detail the violations alleged to have occurred. They also offer the licensee an opportunity to respond to each of the charges. Once issued, citations become a part of a licensee's permanent file.

      
      

   6. Informal conferences, warning letters and citations are procedures used by the Office in lieu of or before the commencement of formal disciplinary proceedings. None can be characterized as a standard procedure for each is dependent upon the circumstances of the individual case. In all cases, the final selection of a particular procedure is made by the Director of the Office of Entomology and only then after a thorough evaluation of the complaint.

      
      

   7. Once a decision is made to take formal administrative action against a licensee, a letter to show cause is mailed to the licensee advising him that certain violations have occurred, and his right to attend an informal conference as authorized by Section 120.60(6), Florida Statutes. This procedure was followed in Case Nos. 80-2398, 80-2399 and 80-2401.

      
      

3. ALLEGED MODIFICATION OF RULE 10D-55.104(4), F.A.C.

1. Termite or other wood-destroying organism inspection reports are required to be completed in writing by licensees after an inspection of a structure is made. Rule 10D-55.141(2)(c), Florida Administrative Code. The completed report is then furnished to both the Department and the property owner. Rule 10D-55.141(2)(c), supra, requires responses to six questions on the report. As is pertinent here, the following question must be answered:

   
   

   (1) Active infestation was observed: YES NO .

   . (Common name(s) of all organism(s) observed)

   Location(s): (Continue on reverse side if necessary)

   
   

   It is Office policy that in order to answer the above question in the affirmative, an actual live insect must be observed. Petitioners answered this question in the affirmative but allegedly did not find live insects on the premises.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Section 120.56, Florida Statutes.

3. Section 120.56(1), Florida Statutes, provides as follows.

   
   

   1. Any person substantially affected by a rule invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.

      
      

4. Section 120.54(14), Florida Statutes, defines a "rule" as follows:

   
   

   ... each agency statement of general appli- cability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule ...

   
   

   ALLEGED UNPROMULGATED RULES CONCERNING INFORMAL CONFERENCES, CITATIONS AND WARNING LETTERS

   
   

5. Petitioners challenge as unadopted, and therefore allegedly invalid rules, the so-called "policy" of the Department in issuing written citations and warning letters to licensees, and its practice of holding informal conferences in certain cases. It contends that these procedures are "rules of practice" within the meaning of Section 120.53(1)(b), Florida Statutes, and as such, must be adopted under the guidelines established by Section 120.54, Florida Statutes. Petitioners argue these procedures or policies are invalid because of the Department's failure to follow those requirements.

   
   

6. Petitioners admit their primary concern is the Department's decision to first use citations and then to seek revocation of the licenses in lieu of resorting to the less formal procedures of warning letters or informal conferences. They argue that had they known of these less stringent procedures, through published rules, they would have requested the Department to use those measures as a vehicle to explain or clarify the violations for which they were charged. But Petitioners do not have the right to choose between a formal or "informal" proceeding to present their case--this is a choice that the Department must make. Moreover, it is well-settled that "...the legislature may enact a law complete in itself, which leaves some discretion in the operation and enforcement of the law with an administrative official." Brewer v. Insurance Commissioner and Treasurer, 393 So.2d 593, 595 (Fla. 1st DCA 1981); Donaldson v. Department of Health and Rehabilitative Services, DOAH Case No. 81- 630R, final order entered April 3, 1981. Here the Director has properly used that discretion in the operation and enforcement of the law.

   
   

7. Admittedly, the procedures for using informal conferences, citations and warning letters are somewhat akin to broad standards or policies that have general application in the enforcement scheme. However, in order to constitute a "rule", they must be intended "by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law." McDonald v. Department of Banking and Finance, 346 So.2d 569, 581 (Fla. 1st DCA 1977). The procedures in question were ".... effective in themselves only as guidelines, subject in application to the discretion of the enforcing officer." Department of Highway Safety and Motor Vehicles v. Florida Police

   Benevolent Association, So.2d , Case No. MM-180 (Fla. 1st DCA op. filed 7/9/81). As such, they do not constitute a policy, procedure or practice within the meaning of Section 120.52(14), supra. Therefore, Petitioners' claim for relief should be denied.

   
   

   ALLEGED MODIFICATION OF RULE 10D-55.104(4), F.A.C.

8. Rule 10D-55.104, Florida Administrative Code, provides in part that: No licensee or its employees shall repre-

   sent to any property owner or occupant of any structure that any specific pest is infesting said property, structure or lawn or ornamental thereof, or that it requires a specific treatment for pest control when an infestation, or strongly supporting evidence of such infestation, does not exist.

   
   

9. Petitioners contend the Department has modified the rule by requiring that an actual live insect be found in order to represent that an active infestation exists. They assert that this interpretation effectively rescinds that portion of the Rule that permits such a conclusion to be reached when "strongly supporting evidence" is found. Because the Department did not amend the Rule in conformity with Section 120.54, supra, they ask that the "amendment" be declared invalid as an unauthorized exercise of legislative authority, and the three charges against Moretti and Lavan which stem from this interpretation be dismissed.

   
   

10. It is true that the Department as a matter of policy interprets the rule to require evidence of a live insect before a representation of active infestation to a property owner can be made. The Department contends this interpretation is not an amendment of the Rule, but merely an administrative interpretation that is both logical and consistent with the Rule itself.

    
    

11. But even if it did constitute a "policy" within the meaning of Chapter 120, the Department may permissibly withhold its policy from rulemaking and assume instead the burden of proof and exposition in a Section 120.57 proceeding. Florida Cities Water Company vs. Florida Public Service Commission,

    384 So.2d 1280(Fla. 1980). Rather than subject "marginal cases" such as this to the difficult semantic debate that is engendered by the establishment of so- called "nonrule policy" the courts have encouraged the matters to be adjudicated in Section 120.57 proceedings. Department of Corrections v. McCain Sales of Florida, Inc. and Annat, Inc., So.2d , Case No. LL-231, (Fla. 1st DCA op. filed 7/9/81); Department of Highway Safety and Motor Vehicles, supra. Accordingly, Respondent will have the duty to explicate its nonrule interpretation in Case Nos. 80-2398, 80-2399 and 80-2401. ABC Liquors, Inc. v. Department of Business Regulation, 397 So.2d 696, 697 (Fla. 1st DCA 1981). That being so, the relief sought by Petitioners must be denied.

    
    

12. Remaining for resolution is the question of whether the deposition of witness Mulrennan taken on February 16, 1981, in the license revocation proceedings may be used in this proceeding. The deposition was marked for identification as Petitioners' Exhibit 2, but a ruling on its admissibility was reserved in light of objections by Respondent. Mulrennan was present at the hearing and testified as witness for Petitioners. The use of a deposition in a hearing is generally governed by Rule 1.330, Florida Rules of Civil Procedure.

The specific conditions under which a deposition may be used at a final hearing are enumerated in subparagraphs (1)-(6) of paragraph (a) of the Rule. In the absence of any showing that any of the conditions were met, the objection to the receipt in evidence of Exhibit 2 is hereby sustained.

In light of the conclusions reached above, the Respondent's Motion to Dismiss is hereby denied as being moot.

NOW, THEREFORE, in consideration of the above, it is

ORDERED that the Petition to Declare Administrative Rules Invalid be and it is hereby DENIED.

DONE and ORDERED this 31st day of July, 1981, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1981.

ENDNOTES

1/ Petitioners subsequently filed without objection an amended Petition on May 8, 1981, for the purpose of correcting certain typographical errors and omissions contained in their original Petition.

COPIES FURNISHED:

Howard Hochman, Esquire Suite 207

2650 Biscayne Boulevard

Miami, Florida 33137

Steven W. Huss, Esquire Building 1, Room 308

1323 Winewood Boulevard

Tallahassee, Florida 32301

Morton Laitner, Esquire 1350 N. W. 14th Street Miami, Florida 33125

Ms. Liz Cloud

Bureau of Administrative Code 1802 The Capitol

Tallahassee, Florida 32301

Carroll V. Webb, Esquire

Joint Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Docket for Case No: 81-000558RX

Orders for Case No: 81-000558RX