STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1066

)

CHRISTINE M. PROFERA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on September 20, 1982, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Steven W. Huss, Esquire

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

For Respondent: Christine M. Profera, pro se

1608 Cherry Street

Jacksonville, Florida 32205

ISSUE

Whether respondent's pest control operator's certificate should be revoked on charges that she violated Chapter 482, Florida Statutes, by acting as a certified operator when her primary occupation and full-time employment were not in the pest control business.

BACKGROUND

By administrative complaint dated March 15, 1982, petitioner, Department of Health and Rehabilitative Services ("Department") charged respondent Christine

1. Profera ("respondent") with violating Chapter 482, Florida Statutes, (1981), by working for the Department as a chemist on a full-time basis while working as the certified operator in charge of the pest control operations of Burkes Tree Surgeons and Outdoor Spraying. As a penalty, the Department seeks to revoke her pest control operator's certificate.

   
   

   The respondent disputed the charges and requested a hearing. On April 15, 1982, the Department forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer.

   At hearing, the Department called Robert L. Sullivan, John A. Mulrennan, and Jack G. Burkes as its witnesses and offered Petitioner's Exhibits 1/ 1-3. Respondent testified in her own behalf.

   
   

   Proposed findings of fact were filed by the parties by October 7, 1982. No transcript of hearing has been filed.

   
   

   Based on the evidence presented, the following facts are determined: FINDINGS OF FACT

   1. Respondent is the certified pest control operator in charge of lawn and ornamental pest control for Burkes' Tree Surgeons and Outdoor Spraying ("Burkes"), a business located in Palatka, Florida, and licensed by the Department to engage in pest control. (Testimony of respondent, Burkes.)

      
      

   2. Burkes does tree surgery throughout the year. But its pest control work consists solely of tree spraying 2/ and is performed, sporadically, on a seasonal basis. It accounts for only 20 percent of its annual business. (Testimony of respondent, Burkes.)

      
      

   3. From June 9, 1981, to March 15, 1982, respondent was employed by Burkes, in a part-time basis, during periods when tree spraying was performed. During this same time period, she was also a permanent career service employee with the Department, serving as a chemist for forty hours a week. (Testimony of respondent, Sullivan.)

      
      

   4. Although respondent worked primarily as a chemist during the time in question, her most advanced degree is in the field of entomology. She holds bachelor's degrees in biology and chemistry and a master's degree in entomology. (Testimony of respondent, Profera.)

      
      

   5. John Mulrennan, Director of the Department's Office of Entomology, the agency charged with enforcing Chapter 482, Florida Statutes, (1981), helped respondent find initial employment with Burkes. At that time, he knew that Burkes' pest control work was part-time but did not see this as an obstacle since she was unemployed at the time. (Testimony of respondent, Mulrennan.)

      
      

   6. The Department has received no complaints about Burkes' tree spraying activities or respondent's performance as a pest control operator. The single issue here is whether respondent violated Chapter 482 by working as a full-time chemist and part-time pest control operator.

      
      

   7. In implementing Chapter 482, the Department has interpreted "full- time," as used in Section 482.121(1), to mean 40 hours a week. (Testimony of Mulrennan.)

      
      

      CONCLUSIONS OF LAW

      
      

   8. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

      
      

   9. License revocation proceedings, such as this, are penal in nature. The prosecuting agency bringing the charges must offer proof commensurate with the potential penalty facing the licensee:

      [T]he violation of a penal statute is not to be found on loose interpretations and problematic evidence, but the violation must in all its implications be shown by evidence which weighs as "substantially" on a scale suitable for evidence as the penalty does on the scale of penalties.

      
      

      Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981). Further, penal statutes are strictly construed, and any ambiguities must be construed in favor of the person charged. School Board of Pinellas County v. Noble, 384 So.2d 205,206 (Fla. 1st DCA 1980).

      
      

   10. The Department may suspend or revoke a pest control operator's certificate for any violation of Chapter 482. 482.161, Fla. Stat. (1981).

       
       

   11. Section 482.121(1), Florida Statutes (1981), provides in part:

       
       

       1. No certified pest control operator shall allow his certificate to be used by any licensee to secure or keep a license unless such certified operator is in charge of the pest control activities of the licensee in the category or categories covered by his certificate and is a full-time employee of the licensee. (e.s.)

          
          

   12. Section 482.152, lists the duties of a certified pest control operator whose primary occupation is in the structural pest control business and who is employed on a full-time basis by the pest control licensee. 3/ "Structural pest control" does not include pest control with regard to lawns and ornamentals. 482.021(22), Fla. Stat. (1981). "Ornamentals" means shrubs, bushes, trees or other plants used in connection with a structure. 482.021(14), Fla. Stat. (1981). The statute does not define "full-time."

       
       

   13. "Full-time" is defined by the dictionary as "the amount of time considered the normal or standard amount for working during a given period." Webster's New Collegiate Dictionary (1981). Consistent with this definition, the Department has construed the term, as used in Chapter 482, to mean 40 hours per week. Unless clearly erroneous, great weight must be given to an agency's interpretation of a law it is charged with executing. ABC Liquors, Inc. v. Department of Business Regulation, 397 So.2d 696 (Fla. 1st DCA 1981). Thus, the Department's construction of the term "full-time" is persuasive.

       
       

   14. Applying this definition, the evidence establishes that respondent violated Section 482.121(1), Florida Statutes (1981), by, acting as the certified operator in charge of the pest control activities of Burkes while she was not its full-time employee. The evidence does not, however, establish a violation of Section 482.152, Florida Statutes, (1981) since this section applies only to operators where primary occupation is in the structural pest control business. Since respondent was not engaged in structural pest control, the section is inapplicable.

       
       

   15. Respondent's violation of Chapter 482 is a technical one. There is no evidence she is incompetent or unscrupulous, or that her part-time work as an operator caused injury to anyone. She simply chose, in her own words, to be a "workaholic." Although such diligence is ordinarily to be commended, the

       legislature has forbidden a certified operator in charge from working part-time. This is not the appropriate forum to challenge the wisdom or constitutional validity of such a prohibition. Under these circumstances, revocation of respondent's license, without first giving her an opportunity to terminate her part-time employment with Burkes, would be unduly harsh and draconian. Cf.

       Flaig v. Pest Control Commission, 213 So.2d 471 (Fla. 1st DCA 1968). If she terminates her part-time employment within 30 days of entry of the final order, no further penalty should be imposed.

       
       

   16. To the extent the parties' proposed findings of fact are incorporated herein, they are adopted. Otherwise, they are rejected as unsupported by the evidence or unnecessary to resolution of the issues presented.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That respondent's certificate as a pest control operator be revoked; but such revocation should be stayed for 30 days and vacated if, during such period, she terminates her part-time employment as a certified pest control operator in charge of Burkes' pest control activities.

DONE and RECOMMENDED this 12th day of November, 1982, in Tallahassee, Leon County, Florida.

R. L. CALEEN, JR. 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 12th day of November, 1982.

ENDNOTES

1/ Petitioner's and Respondent's Exhibits will be referred to as "P- "and "R-

", respectively.

2/ Most of the spraying is for the purpose of demossing trees.

3/ This section was amended by Chapter 82-229, Laws of Florida (1982) effective October 1, 1982. But since the legislature did not make this amendment retroactive, it cannot be applied to respondent's alleged misconduct occurring from June 9, 1981 to March 15, 1982. Although the Department argues that the misconduct has continued to the present date, the charges have not been amended to include misconduct occuring after March 15, 1982.

COPIES FURNISHED:

Christine M. Profera 1608 Cherry Street

Jacksonville, Florida 32205

Steven W. Huss, Esquire Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

David H. Pingree Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 82-001066

Orders for Case No: 82-001066