STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTOPHER HAGERTY, d/b/a )

HAGERTY'S TERMITE AND PEST )

CONTROL, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1069

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on May 19, 1983, in Fort Lauderdale, Florida. The parties waived the 14 days' notice of hearing required by Section 120.57(1)(b)2, Florida Statutes.

Petitioner Christopher Hagerty appeared on his own behalf, and Harold L. Braynon, Esquire, Fort Lauderdale, Florida, appeared on behalf of Respondent Department of Health and Rehabilitative Services.

On June 15, 1982, Respondent denied Petitioner's Application for Renewal of his Pest Control Operator's Certificate No. 2303 for 1982-1983, and Petitioner timely requested a formal hearing regarding that denial. Accordingly, the issue for determination is whether Petitioner's Application for Renewal should be granted.

The Petitioner testified on his own behalf, and Phillip R. Helseth testified on behalf of the Respondent. Additionally, Joint Exhibits numbered 1-

3 and Petitioner's Exhibit numbered 1 were admitted in evidence.

FINDINGS OF FACT

1. Petitioner has a degree in pest control technology.

   
   

2. On June 18, 1981, Respondent renewed Petitioner's Pest Control operator's Certificate No. 2303 until June 1, 1982, in the categories of general household pests and rodent control, termite and other wood-destroying organism control, and lawn and ornamental pest control.

   
   

3. On May 6, 1982, Petitioner filed his annual Application for Renewal of his certificate in the same categories. On that application, Petitioner answered "yes" to the question: "Have you been convicted by any court of a felony or of a crime involving moral turpitude within the past year?" and he answered "no" to the question: "[H]ave your civil rights been restored?"

4. By letter dated June 15, 1982, Respondent denied Petitioner's Application for Renewal based upon Petitioner's answers to those questions, and Petitioner timely requested a formal hearing on that denial.

   
   

5. On December 16, 1982, Respondent wrote to the Division of Administrative Hearings advising that a Hearing Officer had not yet been assigned to hear this matter and attaching only a copy of a July 6, 1982, letter from Respondent requesting the Division to conduct a formal hearing in this cause. Since the July 6 letter had never been received by the Division of Administrative Hearings, and since the December 16 letter failed to transmit Petitioner's request for hearing or any other pleadings or papers setting forth the substance of the cause, the Staff Assistant of the Division telephoned Mrs. Cheryl Ganley of Respondent's Clerk's Office on December 23, 1982, and requested the documents required to open a case before the Division of Administrative Hearings. That telephonic request was followed up with a letter to Mrs. Ganley on January 4, 1983. No response to either the telephonic or written inquiry was made by Respondent until March 24, 1983, when Respondent again wrote to the Division of Administrative Hearings asking why the matter was not scheduled for hearing and attaching only a copy of its December 16, 1982, letter. On March 31, 1983, the Director of the Division wrote Respondent outlining the chronology of the letters to and from Respondent and again advising Respondent that the case could not be heard until Respondent transmitted the pleadings required to open a case file. On April 11, 1983, Respondent finally did so.

   
   

6. Petitioner relies upon his licensure by Respondent as a Certified Pest Control Operator for his livelihood and has no other training or means for earning a living.

   
   

7. Other than Petitioner's testimony that his involvement in the incident was minimal, the only evidence introduced regarding the circumstances surrounding his arrest and conviction is a letter from Petitioner's Probation Officer, which letter constitutes uncorroborated hearsay and, therefore, cannot support a finding of fact.

   
   

8. Petitioner's probation should be terminated in approximately six months, at which time he will be able to seek restoration of his civil rights. He anticipates no problem in having his civil rights restored.

   
   

9. At the formal hearing in this cause, the parties stipulated that the only bar to renewal of Petitioner's licensure is his conviction of a felony or of a crime involving moral turpitude without his civil rights being restored.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

    
    

11. When Respondent denied Petitioner's Application for Renewal, it did so in reliance on the provisions of Sections 482.132(1) and 482.161(4), Florida Statutes. At the time, Section 482.132(1) provided as follows:

    
    

    Qualifications for examination and certification. --

    1. The Department of Health and Rehabilitative Services may award a pest control operator's certificate or renewal

       thereof to an individual who has passed the examinations prescribed by the department and who makes it appear to the department that he is not under the disabilities of minority and that he is domiciled in and a resident citizen of the state, is of good moral character and of good reputation for fair dealings, is qualified to be a certified operator with safety to persons and property, and is otherwise qualified under the provisions of this act and the rules made pursuant thereto.

       
       

       Although that provision was scheduled for repeal (along with the entire Chapter

       482) on October 1, 1982, pursuant to the provisions of the Regulatory Sunset Act, Chapter 482 was readopted by the Legislature with certain amendments. Effective October 1, 1982, Section 482.132(1) provides as follows:

       
       

       Qualifications for examination and certification --

       1. The department may award a pest control operator's certificate to an individual who has passed the examinations prescribed by the department and who submits to the department proof that he is not under the disabilities of minority and that he is domecile in and a resident citizen of the state, is of good moral character and of good reputation for fair dealings, is qualified to be a certified operator with safety to persons and property, and is otherwise qualified under the provisions of this chapter and the rules made pursuant hereto.

       
       

       Thus, when Section 482.132(1) was amended effective October 1, 1982, the Legislature removed from Respondent the authority to apply the requirements for original certification to annual renewals of certificates by specifically deleting the words ". . .or a renewal thereof. . ." Accordingly, Section 482.132(1), Florida Statutes, can no longer afford a basis for denial of Petitioner's Application for Renewal of his Pest Control Operator's Certificate.

       
       

12. Section 482.161(4), Florida Statutes, the other basis for Respondent's denial of Petitioner's Application for Renewal of his Pest Control Operator's Certificate, provided, at that time, as follows:

    
    

    Grounds for suspension and revocation.-- The Department of Health and Rehabilitative Services may suspend, revoke, or stop the issuance or renewal of any certificate, special identification card, license, or identification card coming within the scope of this measure, in accordance with the provisions of chapter 120, upon any one or more of the following grounds as the same may be applicable:

    (4) Conviction in any court in any state or in any federal court of a felony, unless civil rights have been restored.

    When Section 482.161 was amended effective October 1, 1982, the Legislature expanded Respondent's discretion as to the punitive measures to be imposed upon a licensee for violation of Chapter 482, as follows:

    
    

    Remedies of department.--

    (1) The department may fine the licensee, certified pest control operator, identification cardholder, or special identification cardholder or may suspend, revoke, or stop the issuance or renewal of any certificate, special identification card, license, or identification card coming within the scope of this measure, in accordance with the provisions of chapter 120, upon any one or more of the following grounds as the same may be applicable:

    (d) Conviction in any court in any state or in any federal court of a felony, unless civil rights have been restored.

    1. If, after appropriate hearing in accordance with the provisions of chapter 120, the department finds that an identification cardholder, special identification cardholder, certified operator, or licensee has committed any act set forth in subsection (1), but further finds that such violation is of such nature or under such circumstances that revocation or suspension of a certificate would either be detrimental to the public or

       be unnecessarily harsh under the circumstances, it may in its discretion, and in lieu of executing the order of suspension or revocation, either:

       1. Reprimand the party publicly or privately; or

       2. Place the party on probation for a period of not more than 2 years.

    1. The department, pursuant to chapter 120, in addition to or in lieu of any other remedy provided by state or local law, may impose an administrative fine not exceeding $500, or less than $25, for the violation of any of the provisions of this measure. All amounts collected pursuant to this section shall be deposited in the General Revenue Fund. In determining the amount of fine to be levied for a violation, the following factors shall be considered:

       1. The severity of the violation, including the probability that death or serious harm to the health or safety of any person will result or has resulted; the severity of the actual or potential harm; and the extent to which the provisions of this measure were violated;

       2. Actions taken by the licensee or certified operator in charge to correct the

          violation or remedy complaints; and

       3. Any previous violations of this measure.

    2. A hearing officer may, in lieu of or in addition to a fine, recommend probation or public or private reprimand. Public reprimand shall be in a newspaper of general circulation in the county of the licensee. The department shall publish quarterly a list of disciplinary actions taken pursuant to this measure and shall provide such list to each licensee.

    
    

    Accordingly, the thrust of Section 482.161 has now been changed from "grounds for suspension and revocation" to "remedies" including private reprimands, probation and $25 fines--all of which evidence a legislative intent to expand Respondent's ability to discipline a licensee, or not to discipline that licensee, depending upon the circumstances determined on a case-by-case basis. Additionally, Section 482.161, in both its prior and current forms, provides that Respondent "may" impose disciplinary remedies in appropriate circumstances but need not do so at all.

    
    

13. Although Petitioner on his Application for Renewal stated that he had been convicted of a felony or of a crime involving moral turpitude, absolutely no evidence was introduced by either Petitioner or Respondent to show that in fact Petitioner had been convicted of one or the other of those two separate types of offenses. If Petitioner was convicted of a crime involving moral turpitude, there is no statutory authority for Respondent to deny his Application for Renewal, since the statute upon which Respondent relies does not mention crimes involving moral turpitude as grounds for anything. On the other hand, if Petitioner was convicted of a felony, there has been no showing of either a conviction or of a felony, which is defined legally as ". . .any criminal offense that is punishable under the laws of this state, or that would be punishable if committed in this state by death or by imprisonment in the state penitentiary." Article X, 10, Florida Constitution (1968). See also Shields v. Smith, 404 So.2d 1106 (Fla. 1st DCA 1981); Department of Insurance v. Natelson, DOAH Case No. 82-2335 (Recommended Order issued May 20, 1983).

    Neither party introduced or even offered in evidence a copy of the information or indictment against Petitioner or a copy of the judgment of conviction, if one exists. The only evidence in this record is the testimony of Petitioner that he was at the scene of something with very minimal involvement and that he is on probation somewhere for something, which probation is almost completed.

    Accordingly, there is no evidence as to the crime with which Petitioner was charged in order to determine if that is a felony as defined by Florida law; there is no evidence as to any plea entered by Petitioner; there is no evidence as to whether Petitioner was convicted or if adjudication was withheld; there is no evidence as to whether any sentence was imposed or if Petitioner was instead placed on probation in conjunction with an adjudication being withheld; there is no evidence as to the jurisdiction in which the unnamed offense was committed; and there is no competent, substantial evidence upon which findings can be made to justify Respondent's denial of Petitioner's Application for Renewal of his annual certificate. Since there are no facts in this record upon which it can be determined that Petitioner was convicted of a felony as defined by the Florida Constitution, there are also no facts upon which a determination can be made that relicensure of Petitioner would have any effect on the public health or safety.

    
    

14. As set forth in the Findings of Fact portion of this Recommended Order, Petitioner filed his Application for Renewal of his Pest Control

Operator's Certificate on May 6, 1982, seeking a renewed certificate to cover the June 1, 1982, annual renewal period. Respondent did not deny that Application for Renewal until June 15, 1982, two weeks into the next renewal period. Although Petitioner immediately requested a hearing on that denial, through a series of clerical and/or administrative mistakes on the part of Respondent's employees, Petitioner's request for hearing was not transmitted to the Division of Administrative Hearings until April 11, 1983, almost one year later. Although the hearing in this cause was expedited due to the delay, the renewal now of the certificate sought by Petitioner would result in the issuance to him of an expired certificate, since the next licensure year commenced June 1, 1983. In the meantime, Petitioner has continued to expend his personal resources, his time and his finances in building up a business with which to support himself and anyone dependent upon him for support. To deny Petitioner a renewed certificate while he has continued to build his business while waiting for the hearing to which he had a right would be unnecessarily harsh under the circumstances, especially where, as here, a formal evidentiary hearing pursuant to Section 120.57(1), Florida Statutes (1981), has been conducted but no evidence has been introduced to show any basis upon which Respondent should exercise its discretionary power.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered approving Petitioner's

Application for Renewal of his Pest Control Operator's Certificate No. 2303 for the annual period commencing June 1, 1983.

DONE and RECOMMENDED this 17th day of June, 1983, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT, 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 17th day of June, 1983.

COPIES FURNISHED:

Harold L. Braynon, Esquire Department of Health and Rehabilitative Services

201 West Broward Boulevard

Fort Lauderdale, Florida 33301

Mr. Christopher M. Hagerty 1141 South West Sixth Avenue

Fort Lauderdale, Florida 33315

David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 83-001069

Orders for Case No: 83-001069