Judges: ROBERT E. MEALE
Agency: Department of Agriculture and Consumer Services
Latest Update: Jan. 27, 1988
Summary: Termite operator's tent not cut when first placed on house.
87-3900STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )
)
Petitioner, )
)
vs. ) CASE NO. 87-3900
)
STEVEN D. DAY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled action was held on January 21, 1988, in Orlando, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
The parties were represented as follows:
For Petitioner: Lynn Porter-Carlton, Esquire
Department of Health and Rehabilitative Services
400 West Robinson Street, Suite 911 Orlando, Florida 32801
For Respondent: Steven D. Day, pro se
1406 Tech Boulevard
Tampa, Florida 33619 BACKGROUND
On August 28, 1987, Petitioner filed an Administrative Complaint alleging that Respondent, as Certified Operator of Thumb Pest Control, Inc., violated Sections 482.152(2) and (5), 482.161(1)(a), and 482.161(1)(e) and/or (f), Florida Statutes, and Rules 10D-55.106(1), 10D-55.108(1), (2), and (3)(c), 10D- 55.111(7), and 10D-55.112(1) and (3), Florida Administrative Code. The violations allegedly arose as a result of Respondent's performance and supervision of a tent fumigation of a residential structure in Orlando, Florida, on May 29, 1987. The Administrative Complaint alleged that members of the Orlando Fire Department, responding to a complaint of a leaking tent, observed several tears in the tent, tried unsuccessfully to contact Respondent, and finally had to patch the tent themselves. The Administrative Complaint sought to impose a fine of $150 against Respondent.
By letter dated August 19, 1987, Respondent requested a formal hearing on the issues raised in the Administrative Complaint.
Petitioner presented two witnesses and offered into evidence five exhibits. Respondent presented two witnesses, including himself, and offered into evidence one exhibit. All exhibits were admitted into evidence. Neither party filed a proposed recommended order.
FINDINGS OF FACT
Respondent is and at all material times has been a certified pest control operator in the category of fumigation. He works for Thumb Pest Control, Inc. He was the supervisor present when the company performed the tent fumigation of a residential structure located at 11 West Muriel Street, Orlando, Florida, on May 29, 1987.
On May 28, 1987, Respondent gave Petitioner and the Orlando Fire Department written notice of the details of the job, including his night telephone number. The night number was for Respondent's home telephone. Respondent lived in Tampa. His telephone number was in the "813" area code, not the "305" area code of Orlando. The notice did not disclose Respondent's area code. However, the form bore the address of Thumb Pest Control, Inc., which was in Tampa. It was Respondent's understanding-- uncontradicted by Petitioner-- that he was required by law to give this notice only to Respondent; he gave the notice to the Orlando Fire Department as an added precaution.
Respondent and Tim Lightner, a certified operator and the Orlando branch manager of Thumb Pest Control Inc., testified that the tent did not have tears when they released the fumigant at around 3:00 p.m. on May 29, 1987. Their testimony is credible and unrebutted.
The fumigant that they used was methyl bromide. The fumigant also included chloropicrin, which is a warning odorant accompanying the odorless methyl bromide. The commercial formulation of the fumigant in this case was Brom-O-Gas. This is a highly toxic gas which causes nausea, convulsions, and death to humans exposed to it.
The manufacturer states in a booklet accompanying Brom-O-Gas that "two persons trained in the use of this product must be present at all times when worker exposure exceeds 5 PPM. . . ." Petitioner's Exhibit Number 4, page 1. In another document, entitled "Structural Fumigant: A guide for fumigating effectively with Bromo-O-Gas," the manufacturer emphasizes, as the title suggests, methods designed to increase the killing efficiency of the pesticide.
The manufacturer suggests frequent monitoring during fumigation when persons are occupying an adjacent building sharing a common wall with the building being fumigated. Petitioner's Exhibit Number 5, page 2. By negative implication, the manufacturer does not suggest monitoring when persons occupy buildings that are nearby but not sharing a common wall.
At around 8:30 p.m., the Orlando Fire Department received a telephone call from a neighbor living nearby the tented house. She reported that fumigant was escaping from the tent. Members of the Orlando Fire Department responded to the call and found that the tent had approximately ten tears in it with some as much as one foot long. It took six firemen about two hours to repair the tears with duct tape.
Prior to making the repairs, the firemen contacted their dispatcher and directed him to try to reach a representative of Thumb Pest Control, Inc. There was no admissible evidence concerning precisely how the dispatcher or dispatchers, who did not testify, tried to reach Respondent or other
representatives of Thumb Pest Control, Inc. In any event, the Orlando Fire Department was unable to reach anyone with Thumb Pest Control, Inc. that evening.
Respondent testified that he, his wife, and one-year old child were home all evening on May 29, 1987, and that he received no calls. He also testified that he uses a telephone answering machine when away from home and, even though he was home all night, he had no messages from that evening. There does appear to have been some confusion concerning area codes. There also was no positive testimony that anyone tried to telephone the night number of Respondent, as shown on the fumigation notice that he had delivered the prior day, together with the "813" area code.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Sections 120.57(1) and 482.161(5), Florida Statutes.
Petitioner has jurisdiction over the licensing and disciplining of certified pest control operators. Section 482.161, Florida Statutes. Discipline may be imposed for the violation of any provision of Chapter 482, Florida Statutes, or Chapter 10D-55, Florida Administrative Code. Section 482.161(1), Florida Statutes.
The statutory provisions cited in the Administrative Complaint require that the licensee personally supervise and participate in the safe and proper use of pesticides and the use of control measures and procedure. Section 482.152(2)(5), Florida Statutes. The statutory provisions also prohibit a licensee from knowingly failing to use materials or methods suitable for the pest control undertaken, Section 482.161(1)(e), and from performing pest control in a negligent manner, Section 482.161(1)(f), Florida Statutes.
The regulatory provisions cited in the Administrative Complaint require that the licensee use pesticides only in a manner consistent with the manufacturer's directions, Rule 10D-55.106(1); that a certified fumigation operator personally supervise each fumigation and that such person "be available and on call at all times during the fumigation period," Rule 10D-55.108(1); that a certified fumigation operator must be present personally when the fumigant is released, when the tented building is checked the final time for occupants and open flames, and when the building is deemed safe for human re-entry, Rule 10D- 55.108(2); that the structure to be fumigated must be made as gas-tight as practicable, Rule 10D-55.111(7); and that warning signs, carrying specified information, must be posted at the site of the fumigation, Rule 10D-55.112(3).
Petitioner must prove the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
There is no evidence that Respondent violated the above-cited statutory provisions. He was in attendance during the tenting and at the release of the fumigant. He did not knowingly (or otherwise) use materials unsuitable for pest control. He was not negligent in the performance of pest control. The tent was in good condition when placed over the building. Neither Petitioner nor the manufacturer requires the attendance of Respondent or his representative during the entire period of time after the fumigant has been released.
There is similarly no evidence that Respondent violated the above- cited regulatory provisions. The evidence is closest in this regard with respect to Respondent's availability by telephone at all times. Respondent claims that he was at home all evening and was never contacted. More significantly, there is no evidence that the Orlando Fire Department ever tried to reach Respondent at home, using the "813" area code. There is no evidence that the Orlando Fire Department dispatchers ever availed themselves of the information that Respondent had provided them the prior day. Without positive evidence of an unsuccessful attempt to reach Respondent at his correct telephone number, it is impossible to disregard his testimony and find that he was not in fact available at all times.
Based on the foregoing, it is hereby
RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty as alleged and dismissing the Administrative Complaint.
DONE and RECOMMENDED this 27th day of January, 1988, in Tallahassee, Florida.
ROBERT E. MEALE
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1988.
COPIES FURNISHED:
Lynn Porter-Carlton, Esquire Department of Health and
Rehabilitative Services
400 West Robinson Street Suite 911
Orlando, Florida 32801
Steven D. Day, pro se 1406 Tech Boulevard
Tampa, Florida 33619
John Miller General Counsel
Department of Health and Rehabilitative Service
1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Gregory L. Coler Secretary
Department of Health and Rehabilitative Services
1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Sam Power Clerk
Department of Health and Rehabilitative Services
1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,
Petitioner,
vs. CASE NO. 87-3900
STEVEN D. DAY,
Respondent.
/
FINAL ORDER
This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.
FINDINGS OF FACT
The Department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.
CONCLUSIONS OF LAW
The Department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except for conclusion of law number five (5). In conclusion of law number five (5) the Hearing Officer held that the applicable burden of proof was the "clear and convincing" standard. The
Hearing Officer relied on the recent case of Ferris vs. Turlington, 510 So2d 292 (Fla. 1987), in which the Supreme Court held that where an agency seeks to revoke an occupational license the applicable burden of proof on the agency is the "clear and convincing" standard. The Court reasoned that where the "loss of livelihood" was at issue, the "elevated standard is necessary to protect the rights and interests of the accused." Ferris at 295.
In the present case, HRS sought only to impose a fine; thus, the preponderance test is applicable. Fla. Jur 2d, Administrative Law, Section 81.
Based upon the foregoing, it is
ADJUDGED, that respondent be found not guilty and the complaint be DISMISSED.
DONE and ORDERED this 9th day of February, 1988, in Tallahassee, Florida.
Gregory L. Coler Secretary
Department of Health and Rehabilitative Services
by Assistant Secretary for Programs
COPIES FURNISHED:
Lynn Porter-Carlton, Esquire District 7 Legal Counsel Office
400 West Robinson Suite 911
Orlando, Florida 32801
Steven D. Day, pro se 1406 Tech Boulevard
Tampa, Florida 33619
Robert E. Meale Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 11th day of February, 1988.
R. S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407
Tallahassee, Florida 32399-0700 904/488-2381
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
Docket for Case No: 87-003900
Orders for Case No: 87-003900
