STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 85-4452

)

FLORIDA TERMITE AND PEST ) CONTROL, DIVISION OF RENTOKIL, ) INC., )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing was held in St. Petersburg, Florida, on March 18, 1986, before the Division of Administrative Hearings, by its duly-designated Hearing Officer J. Lawrence Johnston.

The following appearances were entered:

APPEARANCES

For Petitioner: Claudia Isom-Rickert, Esquire

District VI Legal Counsel Department of Health and

Rehabilitative Services

400 West Buffalo Avenue Tampa, Florida 33614

For Respondent: Bruce W. Sibson

Technical Manager of Rentokil, Inc.

Post Office Box 17590 Plantation, Florida 33318

The issue was to be whether the facts alleged in the Administrative Complaint filed by Petitioner, Department of Health and Rehabilitative Services (HRS), against Respondent, Florida Termite and Pest Control, Division of Rentokil, Inc. (Respondent), are true and legally support imposition of a

$400.00 administrative fine. However, at the final hearing, HRS dismissed the portion of paragraph (2)a. of the Administrative Complaint, alleging that Respondent performed pest control on May 17, 1985, under a contract with Frank Kaplan without carrying the required insurance coverage. Previously, by letter dated November 13, 1985, and confirmed at final hearing, Respondent conceded the violation alleged in paragraph (2)b. of the Administrative Complaint.

On July 16, 1985, Florida Termite and Pest Control performed a tent fumigation of a structure at 1727 Watrous Ave., Tampa. Warning signs posted on the tent failed to display the proper information. Further, the tent had several tears, was not properly sealed at the bottom and was not reasonably gas-tight. The above noted conduct is in violation of ss. 10D-55.106(1), FAC; ss. 10D-55.111(4),

FAC; ss. 10D-5.111(7), FAC; ss. 10D-5.112

(3), FAC; ss. 482-161(1)(a), F.S.;

and ss. 482.161(1)(e) and/or (f), F.S.

The issues therefore became simply the truth and legal sufficiency of the remaining allegations in paragraph (2)a. of

the Administrative Complaint and the allegations of paragraphs (2)c. and (2)d. of the Administrative Complaint.1

FINDINGS OF FACT

1. Respondent, Florida Termite and Pest Control, Division of Rentokil, Inc. (Respondent), entered into a service agreement contract with Frank Kaplan on May 7, 1985, for the control of dry wood termites in the Kaplan residence at 4020 W. Cleveland Street, West Tampa. The service was to be performed on May 17, 1985.

2. On May 15, 1985, Respondent's certified operator in charge walked off another job. The certified operator, Larry Lee Grimes, was dissatisfied with his employment conditions and situation and was unsure whether he intended to return to the employ of Respondent. However, Grimes did not notify Respondent of his true thoughts and intentions. Instead, Grimes sent an employee under his supervision to Respondent's office to advise Respondent falsely that Grimes had injured his ankle on the job and had gone home on sick leave. To complete the subterfuge, Grimes had the employee ask Respondent for a worker's compensation form to be taken to Grimes to complete and file.

3. On May 16, 1985, Grimes stayed home from work, continuing the subterfuge. Grimes remained available by telephone and electronic beeper service in the event his

   services as certified operator in charge were required by Respondent on May 16.

4. By May 17, 1985, Grimes had made the decision to quit his employment with Respondent. However, Grimes did not notify Respondent of his decision. Respondent still believed Grimes was employed as Respondent's certified operator in charge. At the start of the day, on May 17, 1985, Respondent was not sure whether Grimes would appear for work at the Kaplan residence.

5. On May 17, 1985, Michael A. Cabrera and Andrew Pinckert, employee identification cardholders with Respondent, erected a fumigation tent over the Kaplan residence. When the erection of the tent had been completed, Cabrera poured approximately 4 to 8 ounces of the warning agent chloropicrin (more commonly known as tear gas) onto the soil within the tent and adjacent to the front foundation wall of the structure in violation of the applicable registered pesticide label provisions. Cabrera was neither a certified operator nor a special fumigation identification cardholder. But Grimes had taught and permitted him to apply the warning agent in this manner in the past (contrary to Respondent's policy and the instruction of other representatives of Respondent.)

6. Later on the same day, Carl S. Lennon, a special fumigation identification cardholder with Respondent, arrived at

   the premises and released the fumigant gas Vikane into the tented structure.

7. On May 18, 1985, Grimes left town for the weekend, leaving his company-owned truck at his residence. He still had not notified Respondent of his decision to quit.

8. On May 18, 1985, Lennon returned to the Kaplan residence. Following removal of the tent, Lennon inspected the entire structure, using his own sense of smell to determine whether the structure was safe for human occupancy. Use of one's own sense of smell is one of several acceptable methods of monitoring a treated structure for unacceptable levels of lingering Vikane pesticide. At 1:00 P.M., on May 18, 1985, Lennon declared the Kaplan residence safe for human occupancy.

9. Because Cabrera had violated the pesticide label provisions by pouring some of the tear gas onto the ground outside the residence and because Mrs. Kaplan is unusually sensitive to chloropicrin, the residence became uninhabitable by the Kaplans. Lennon had negligently cleared the residence for occupancy.

10. Upon being notified of the Kaplan's complaint, Respondent took proper action to correct the situation. Respondent also fired Grimes. The evidence is that Respondent consistently appropriately responded to customer complaints and

    has cooperated with Petitioner, Department of Health and Rehabilitative Services (HRS), in resolving customer complaints.

11. In a separate incident, on August 12, 1985, the Hillsborough Health Unit received a notice of intended fumigation from Respondent. The notice indicated that the structure to be fumigated was located at 2195 San Carlos, Tampa, and that the fumigant would be released at approximately noon on August 12, 1985.

12. Similarly, on August 12, 1985, the Hillsborough County Health Unit received a notice of intended fumigation from Respondent for fumigation of a structure at 1717 Watrous Avenue, Tampa, at approximately 2:00 P.M. on August 12, 1985.

13. Respondent normally mails notices of intended fumigation to the county health unit at least 72 hours before intended release of the fumigant so that the notice will arrive at least 24 hours before release of the fumigant. However, when the contract with the customer calls for fumigation to take place less than 72 hours from the time of the contract, Respondent hand delivers the notice of intended fumigation as soon as possible. In the case of the two notices referred to above, it was not possible to deliver the notices of intended fumigation at least 24 hours before the intended release of fumigant because of the short length of time within which Respondent had contracted to perform the fumigation services.

    CONCLUSIONS OF LAW

    
    

14. Section 482.111(3), Florida Statutes (1985), requires that each category of each licensee shall be in the charge of a certified operator who is certified for the particular category. The evidence in this case is that on May 17, 1985, Respondent had in its employ a licensed certified operator named Larry Lee Grimes, who was supposed to have been in charge of the fumigation of the Kaplan residence. It was not Respondent's fault that Grimes quit without notice.

15. Rule 10D-55.108(1), Florida Administrative Code, requires that general fumigation "be personally directed, supervised and performed by a certified fumigation operator or personally by a special fumigation identification cardholder authorized by the Department and designated by and under the direct supervision of the certified fumigation operator in charge." It further requires that the certified fumigation operator or his special designated fumigation identification cardholder "shall be available and on call at all times during the fumigation period of each general fumigation job in progress." (Citations omitted.) As far as Respondent knew, Grimes was to direct, supervise and perform the Kaplan fumigation. But, unbeknownst to Respondent, Grimes quit and ceased any direction, supervision or performance of the Kaplan fumigation. Later, the fumigation was personally performed by

    Lennon, a special fumigation cardholder. Respondent still thought Lennon was under the general direction and supervision of Grimes. At the time, Respondent believed Grimes was still available and on call during the Kaplan fumigation period. But he was not.

16. Rule 10D-5.106(1), Florida Administrative Code, makes it "unlawful to use any registered pesticide in a manner inconsistent with its label and labeling . . . ." Acting in accordance with Grimes' instruction and example in the past, Cabrera violated that rule. Section 482.161(1)(a), Florida Statutes (1985), authorizes HRS to fine a licensee for violation of any HRS rule. A licensee can be disciplined for the violation of an employee if it is culpably responsible for the violation. Cf. Jones vs. Department of Business Regulation, 448 So.2d 1109 (Fla. 1st DCA 1984); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979). In this case, HRS proved Grimes' culpable responsibility for Cabrera's violation. As Respondent's certified operator in charge, Grimes' culpable responsibility makes Respondent culpably responsible. See Final Order, Department of Health and Rehabilitative Services vs. Bales, et al., 6 F.A.L.R. 6042, 6063-6065, entered September 21, 1984.

17. Section 482.161(1)(f), Florida Statutes (1985), authorizes HRS to fine a licensee for performing pest control in

    a negligent manner. Again, Cabrera's violation of the pesticide label provisions constitutes negligent performance of pest control. Grimes, and therefore Respondent, was culpably responsible for the violation. (The evidence also proved that Lennon negligently performed pest control, but did not prove the culpable responsibility of either Grimes or Respondent with respect to Lennon's negligence.)

18. Section 482.161(1)(e), Florida Statutes (1985), authorizes HRS to fine a licensee for various types of generally fraudulent conduct. In this case, there was no proof of any of the fraudulent conduct set out in the statute.

19. Rule lOD-55.110(1), Florida Administrative Code, requires that a licensee "in advance, notify in writing the county health unit having jurisdiction over the location where the fumigation operation is to be performed." The rule goes on to say: "Such notices shall be received by the county health unit at least twenty-four (24) hours in advance of the fumigation." In this case, the evidence proved a technical violation of the rule, authorizing discipline under Section 482.161(1)(a), Florida Statutes (1985). Respondent did not seriously dispute the technical violation. But Respondent did prove mitigating circumstances under which the violations occurred (the very short length of time within which Respondent had to perform the fumigation services under the contracts.)

    PENALTY

    
    

20. The Administrative Complaint seeks imposition of a $400 administrative fine for four separate occurrences, giving rise to alleged violations. The discipline might have been calculated at $100 per occurrence. However, the violations that were proved concerning the Kaplan residence and the stipulated violation at 1727 Watrous Avenue, Tampa, are more serious. Respondent is culpably responsible for both of these more serious violations. HRS also proved both of the less serious violations alleging untimely notice of intended fumigations, but Respondent proved mitigating circumstances.

21. Given the relative seriousness of the violations proved and stipulated to and the mitigating circumstances proved by Respondent, $350 would be an appropriate administrative fine as

discipline in this case.

RECOMMENDATION

Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Petitioner, Department of Health and Rehabilitative Services, impose a $350 administrative fine on Respondent, Florida Termite and Pest Control, Division of Rentokil, Inc., in this case.

RECOMMENDED this 12th day of May, 1986, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1986.

ENDNOTE

1/ HRS' objection to taking evidence on paragraphs (2)c. and (2)d. of the Administrative Complaint is overruled. The objection was that Respondent did not take issue with those charges before the final hearing and excluded those charges from the list of charges with which Respondent took issue by Respondent's November 13, 1985 letter. HRS claimed unfair prejudice from the issues being raised for the first time at final hearing. However, as will be seen in this Recommended Order, HRS suffered no unfair prejudice and was able to address the issues adequately.

COPIES FURNISHED:

Claudia Isom-Rickert District VI Legal Counsel Department of Health and

Rehabilitative Services 4000 West Buffaio Avenue Tampa, FL 33614

Bruce Sibson Technical Manager

of Rentokil, Inc.

P.O. Box 17590 Plantation, FL 33318

William Page, Jr. Secretary

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, FL 32301

John A. Mulrennan, Jr., Ph.D. Office of Entomology Department of Health and Rehabilitative Services

P.O. Box 210 Jacksonville, FL 32231

APPENDIX

HRS's proposed findings of fact 1 through 6 are accepted, but parts of proposed findings of fact 4 are subordinate and unnecessary.

Respondent's proposed findings of fact concerning Paragraph (2)b. of the Administrative Complaint are not supported by evidence presented at the final hearing. In any event, Respondent stipulated to this charge.

Similarly, Respondent's proposed findings of fact regarding Paragraphs (2)c. and (2)d. also are not supported by evidence presented at the final hearing. In addition, the evidence did prove receipt of the fumigation notices by the county health

units.

1

Docket for Case No: 85-004452

Orders for Case No: 85-004452