STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD E. CAMPBELL, )

)

Petitioner, )

)

vs. ) CASE NO. 83-109RX

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

OFFICE OF ENTOMOLOGY, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on February 21, 1983, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Marilyn C. Wolf, Esquire

Post Office Drawer C Gainesville, Florida 32602

For Respondent: Steven W. Russ, Esquire

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

By Petition filed with the Division of Administrative Hearings on January 10, 1983, Petitioner, Donald E. Campbell ("Petitioner"), challenges as invalidly promulgated "rules" two agency memoranda dated January 25, 1977, and February 23, 1978, respectively.

Final hearing in this cause was scheduled for February 21, 1983, by Notice of Hearing dated January 26, 1983. At the final hearing, Petitioner testified in his own behalf, and offered Petitioner's Exhibits A-1, A-2, A-3, B-1, B-2, C- 1, C-2, D, and E, each of which was received into evidence. Proposed findings of fact have been submitted for consideration by the Hearing Officer in preparation of this order. To the extent that those proposed findings of fact are not included in this order, they have been specifically rejected as being either irrelevant to the issues involved in this cause, or as not having been supported by evidence of record.

FINDINGS OF FACT

1. At all times material hereto, Petitioner was, and is, a Florida certified pest control operator. Petitioner owns and operates Campbell's Pest Control, a firm licensed by the State of Florida for pest control purposes and

   doing business in Alachua, Florida. In his capacity as owner and operator of that firm, Petitioner supervises two cardholder employees.

   
   

2. In the latter part of 1982, Petitioner received two letters from Respondent, one dated August 13, 1982, and the other September 7, 1982. Both of these letters contained notification to Petitioner of Respondent's contention that he had failed to comply with the requirements of Section 482.152, Florida Statutes, which provides as follows:

   
   

   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.

      
      

3. Two memoranda were enclosed with the letter from Respondent dated September 7, 1982. The first of these was a legal memorandum from Respondent's counsel concerning an interpretation of Section 482.152, Florida Statutes, quoted above. This memorandum provided in pertinent part that:

   
   

   It is clear from a careful reading of Chapter 482 that the requirement concerning a fully qualified certified operator exists as a condition precedent to licensure because of the many dangers inherent in pest control activities.

   The interpretation placed on the language above quoted from Section

   482.152, F.S. is that the certified operator's primary job should be that of a certified operator. Because of the many functions

   which are required to be performed by the certified operator, he should be on the job on a full-time basis or a nearly full-time basis for the licensee. It

   is obvious that the legislature, by using the language above described, intended to preclude 'certificate selling'. . .

   
   

4. The other memorandum was dated February 23, 1978, and furnished to all commercial pest control licensees and certified operators, and concerned the subject of "renting" of pest control certificates. This memorandum provided in part that:

   
   

   It has come to the attention of this office that some licensees and certified operators are not in compliance with the provisions of Chapter 482.121 and 482.152, Florida Statutes, concerning the status and activities of a certified operator

   in charge of pest control activities of a licensee.

   * * *

   The intent and purpose of the provisions

   of the Pest Control Act . . . are to prevent such practices as certificate 'renting' or 'selling' under the pretense that the certified operator is in the [sic] charge of pest control activities of the licensee, when in fact he or she is not.

   
   

   The Office of Entomology will enforce the referenced provisions of chapter 482 F.S. as interpreted

   by legal counsel [in the January 25, 1977 memorandum] with regard to certificate 'renting'. Licensees and certified operators should examine their present arrangements with regard to this matter to determine if they are in compliance with the law.

   Violations could be grounds for suspension or revocation of licenses or certificates.

   
   

   Any licensee adversely affected would be entitled to apply for an emergency certificate upon loss of certified operator.

   
   

5. By Administrative Complaint dated October 13, 1982, Petitioner was charged with a violation of Chapter 482, Florida Statutes:

   
   

   . . . in that you are presently employed on a full-time basis by the City of Gainesville as a firefighter and at the same time registered with the Department

   as an employee--identification cardholder and as a certified operator in charge of the pest control operations of Campbell's Pest Control . . . This constitutes a violation of Section 482.152, F.S., which requires, in part, that the primary

   occupation of a certified operator in charge of the pest control operations of a licensee shall be in the pest control business and that such certified operator be employed

   on a full-time basis by the licensee with the principal duty of personal supervision of and participation in the licensee's pest control operations as these operations relate to selection and safe, and correct use of pesticides, control measures and procedures used, and training of personnel; and a violation of section 482.121(1),

   F.S., which provides that 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.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.56, Florida Statutes.

   
   

7. Petitioner is "substantially affected" by the memoranda challenged as rules in this proceeding within the intent and meaning of Section 120.56(1), Florida Statutes, and therefore has standing to maintain this proceeding.

   
   

8. Section 120.52(14), Florida Statutes, provides, in pertinent part, as follows:

   
   

   'Rule' means each agency statement

   of general applicability that implements, interprets, or prescribes law or

   policy or describes tic 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. The term does not include:

   (b) Legal memoranda or opinions issued to an agency by the Attorney General or agency legal opinions prior

   to their use in connection with an agency action . . .

9. The challenged memoranda do not constitute "rules" within the intent and meaning of Section 120.52(14), Florida Statutes. As indicated above, Section 482.152, Florida Statutes, requires that a pest control licensee engage in the pest control industry as his "primary occupation." The challenged memoranda provide that a licensee ". . . should be on the job on a full- time basis or a nearly full-time basis . . ." The memoranda, in effect, use different language to restate what the statute itself requires, without purporting to either add to or detract from the statutory requisites. Further, the memoranda contain no objective criteria for evaluating what constitutes either a "primary occupation" or what constitutes being on the job on either a "full-time basis" or a "nearly full-time basis." As a result, the memoranda do not "[purport] in and of [themselves] to create certain rights and adversely affect others." Department of Administration v. Stevens, 344 So.2d 290, 296 (Fla. 1st DCA 1977). Additionally, the agency could hardly have used the language contained in the memoranda as a "rule of decision," Department of Administration v. Harvey, 356 So.2d 323, 326 (Fla. 1st DCA 1977), since the memoranda contained no standards or criteria to serve as a "yardstick" by which to gauge a licensee's conduct. It is concluded that the language of the memoranda and the language contained in the statute are so substantially similar as to obviate the necessity for adoption of a rule under the circumstances here present. DeDakis v. Florida Real Estate Commission, 388 So.2d 22, (Fla. 1st DCA 1980). As stated by the court in Department of Highway Safety and Motor Vehicles v. Florida Police Benevolent Association, 400 So.2d 1302, 1303-1304 (Fla. 1st DCA 1981) [i]n marginal rule challenges such as this . . . the public interest is . . . better served by permitting other incentives for rulemaking to operate in Section 120.57 proceedings."

Petitioner having failed to demonstrate that the memoranda of January 25, 1977, and February 23, 1978, constitute "rules" within the intent and meaning of Section 120.52(14), Florida Statutes, the relief sought by Petitioner should be, and the same is hereby DENIED.

DONE AND ORDERED this 31st day of March, 1983, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1983.

COPIES FURNISHED:

Marilyn C. Wolf, Esquire Post Office Drawer C Gainesville, Florida 32602

Steven W. Huss, Esquire Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Ms. Liz Cloud

Chief, Bureau of Administrative Code Room 1802, The Capitol

Tallahassee, Florida 32301

Carroll Webb, Executive Director Joint Administrative Procedures

Committee

120 Holland Building Tallahassee, Florida 32301

Docket for Case No: 83-000109RX

Orders for Case No: 83-000109RX