STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

)

Petitioner, )

)

vs. ) CASE NO. 90-6568

) JOEL S. PEREZ, d/b/a ALLIED ) EXTERMINATING OF PALM BEACH ) COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on February 6, 1991, in West Palm Beach, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Karen Miller, Esquire

District Legal Office

111 Georgia Avenue, #317

West Palm Beach, Florida 33401

For Respondent: Leonel R. Plasencia, Esquire

1400 Centrepark Blvd.

Suite 1000

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

The issue in this case is whether the Department of Health and Rehabilitative Services (Department) should impose an administrative fine on Joel S. Perez, certified operator of Allied Exterminating of Palm Beach County (Respondent), based upon allegations of violations of Chapter 482, Florida Statutes, and Chapter 10D-55, Florida Administrative Code, set forth in the administrative complaint entered herein.

PRELIMINARY STATEMENT

At the hearing, the Department called Joseph Parker, who was accepted as an expert in fumigation operations and inspections. The Respondent testified on his own behalf, and also called Miguel Romero to testify. The Department introduced five exhibits, and the Respondent introduced two exhibits.

No transcript of the final hearing was filed. A ruling on each timely filed proposed finding of fact is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On or about January 17, 1990, Joseph Parker, an expert in fumigation operations and inspection, inspected a residence located at 318 Hemlock Drive in West Palm Beach, Florida. The residence at this location was under a fumigation tent, and Parker conducted a routine inspection of this location which he noticed as he was driving by. There was no complaint which initiated this inspection.

   
   

2. Parker's inspection of this residence identified the fact that warning signs were not located on all four sides of the structure, the business address shown on these signs of the fumigation company performing this work, Allied Exterminating of Palm Beach County, was unfamiliar to Parker, the tenting placed over this structure was not properly sealed in several places, fans were running under the tent, and hoses for injecting fumigation gas under the tent were in place. Using commonly accepted gas detection procedures, Parker also could not detect the presence of any gas under the tent.

   
   

3. The evidence produced at hearing establishes that the tenting of this residence at 318 Hemlock Drive was deficient when observed by Parker on January 17, 1990. Specifically, a continuous ground seal was not maintained and there were significant separations in the tenting materials. The Respondent does not dispute this fact, but maintains that all tenting was secure and properly in place when the tenting was put in place the day before and the fumigation gas was injected under the tent. Respondent also maintains that fumigation gases were properly injected under this tent during the afternoon of January 16, 1990.

   
   

4. In order to explain the deficiencies observed by Parker during his inspection, the Respondent produced credible evidence of vandalism and intentional damage done to other fumigation jobs performed by the Respondent in early 1990. This damage included cuts and slashes in tenting, as well as the removal and destruction of warning signs placed on these other premises. Because of this damage, the Respondent requested police surveillance of some of his fumigation jobs during 1990, and began a process of inspecting his jobs at night to prevent vandalism. Since mid-1990, this vandalism has ceased.

   
   

5. Based upon the Respondent's demeanor while testifying at hearing, and the fact that he has been licensed as a certified operator for almost four years without any prior disciplinary action, it is found that Respondent's explanation of vandalism and intentional damage to his fumigation job at 318 Hemlock is credible, and that therefore, he did not negligently or improperly tent, fumigate and place warning signs on these premises.

   
   

6. It is found, however, that the Respondent's warning signs placed on these premises included an incorrect business address. The Respondent admitted that the signs he posted on this job did not contain his company's business address, but rather, included his residence address.

   
   

7. The Department had no record of any 24-hour notice from the Respondent concerning this fumigation job at 318 Hemlock Drive. However, the Respondent offered a credible explanation of this failure. The Respondent maintains that notice was delivered to the Department's office on the Friday prior to this job. The Monday prior to this job was a state holiday, and this job was performed on

   Tuesday, January 16, 1990. Credible testimony from Miguel Romero, termite inspector with Respondent, established that he hand delivered this notice to the Department's office on the Friday prior to January 16, 1990, but that it was apparently not properly filed by the Department. Due to the fact that the Department admits that at the time material to this proceeding, there were other instances of notices being lost or misfiled, and that in order to avoid such occurrences the Department has instituted a procedure of allowing notices to be filed by "fax", it is found that Respondent did not fail to provide the Department with 24-hour notice of this fumigation job.

   
   

8. There is no dispute between the parties concerning Respondent's certification by the Department. At all times material hereto, Respondent has been the certified operator of Allied Exterminating of Palm Beach County in West Palm Beach, Florida.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes. Since this is a case in which the Department is seeking to discipline the Respondent's certification, and could thereby adversely affect his ability to continue to engage in his profession, the Department has the burden of establishing the basis for disciplinary action by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). In order to meet this clear and convincing standard, "The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of conviction, without hesitancy, as to the truth of the allegations sought to be established." Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112,

   116 at n.5 (Fla. 1st DCA 1989), citing Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

   
   

10. The Department has charged Respondent with violating Sections 482.161(1)(a),(e), and (f), Florida Statutes, which provide, in pertinent part, that certified operators shall be subject to disciplinary action by the Department for violations of Departmental rules, knowingly making false claims or misrepresenting the effects of materials or methods, knowingly failing to use methods acceptable for pest control, and negligently performing pest control procedures. In addition, the Respondent has been charged by the Department with violating Rules 10D-55.106(1) and 10D-55.108(3)(c), which deal with labeling and fumigation requirements, Rule 10D-55.110(1), which requires 24-hour notice to the Department of any fumigation operation, Rule 10D-55.111(7), which requires tented structures to be as gas-tight as practicable, and Rules 10D-55.112(2)(b) and (3) Florida Administrative Code, which govern warning signs to be placed on tented structures.

    
    

11. The Department has proven, by the requisite standard of proof, that the Respondent failed to include his company's business address on the warning signs placed on the tenting job at 318 Hemlock Drive. The Respondent did not dispute this violation. Therefore, the Department has proven that Respondent violated Rule 10D-55.112(3), Florida Administrative Code, and Section 482.116(1)(a), Florida Statutes.

    
    

12. In all other respects,the Department has failed to prove any of the violations of Chapter 482, Florida Statutes, or Chapter 10D-55, Florida Administrative Code, alleged against the Respondent. As found above, the Respondent did not negligently tent or inject fumigants at 318 Hemlock Drive on January 16, 1990. There is substantial credible evidence to support the

Respondent's allegation that the deficiencies noted by Joseph Parker on January 17, 1990, were the result of vandalism involving the tenting materials and signs at this job location. The required 24-hour notice was delivered to the Department's offices by Respondent's employee, Miguel Romero, on the Friday prior to this job on Tuesday, January 16, 1990, but was either lost or improperly filed by the Department. The Respondent has not otherwise been the subject of disciplinary action during the almost 4 years he has been a certified operator, and his testimony and demeanor at hearing were convincing and credible. No evidence was offered at hearing regarding the allegations of false or misleading claims or representations.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Department enter a written warning against the Respondent by Final Order for his failure to include his business address on signs posted on the job at issue on this case.

DONE AND ENTERED this 25th day of February, 1991 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1991.

APPENDIX TO RECOMMENDED ORDER

The Department did not timely file Proposed Findings of Fact. Rulings on the Respondent's Proposed Findings of Fact:

1. This is a conclusion of law rather than a proposed finding of fact.

2-3. These are preliminary and introductory matters.

4. This is a statement of position rather than a proposed finding of fact.

5-6. Rejected based upon Findings of Fact 4 and 5.

1. Rejected based on Finding of Fact 6.

2. Adopted in Finding of Fact 7.

COPIES FURNISHED:

Karen Miller, Esquire District Legal Office

111 Georgia Avenue, #317 West Palm Beach, FL 33401

Leonel R. Plasencia, Esquire 1400 Centrepark Blvd.

Suite 1000

West Palm Beach, FL 33401

R. S. Power, Agency Clerk 1323 Winewood Blvd. Tallahassee, FL 32399-0700

Linda K. Harris, Acting General Counsel 1323 Winewood Blvd.

Tallahassee, FL 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Petitioner,

vs. CASE NO.: 90-6568

JOEL S. PEREZ d/b/a ALLIED EXTERMINATING OF PAL BEACH COUNTY,

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 the Hearing Officer's conclusion of law that Ferris vs. Turlington, 510 So2d 292 (Fla. 1987) requires the department to prove the allegations of the complaint by clear and convincing evidence. Ferris is applicable to revocation of a professional license, not imposition of lesser sanctions. The correct burden of proof here is the preponderance test. American Insurance Association vs. Department of Insurance, 518 So2d 1342 (Fla. 1st DCA 1987), Allen vs. School Board, 571 So2d

568 (Fla. 3rd DCA 190).

Based upon the foregoing, it is

ADJUDGED, that petitioner be found guilty of failure to include his business address on signs posted at the job site. No fine is imposed, but this Final Order constitutes a written warning.

DONE and ORDERED this 25th day of March 1991, in Tallahassee, Florida.

Robert B. Williams Acting Secretary Department of Health and Rehabilitative Services

by Deputy Secretary for Health

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.

Copies furnished to:

Karen Miller, Esquire District 9 Legal Office

111 Georgia Avenue, 3rd Floor West Palm Beach, Florida 33401

Leonel R. Plasencia, Esquire 1400 Centrepark Boulevard

Suite 1000

West Palm Beach, FL 33401

Donald D. Conn Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee parkway

Tallahassee, FL 32399-1550

John A. Mulrennan, Jr., Ph. D. Director

Entomology Services

P. O. Box 210 Jacksonville, FL 32231

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing wad sent to the above-named

people by U.S. Mail this 28 day of Mar , 1991.

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

Docket for Case No: 90-006568

Orders for Case No: 90-006568