STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2230

) PORT MALABAR COUNTRY CLUB, INC., )

a Florida corporation; and )

ROBERT L. McDANIEL; )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal administrative hearing was held in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on August 25, 1993, in Melbourne, Florida.

APPEARANCES

For Petitioner: John S. Koda, Esquire

Department of Agriculture and Consumer Services

Room 515, Mayo Building Tallahassee, Florida 32399-0800

For Respondent: Elting L. Storms, Esquire

Post Office Box 1376 Melbourne, Florida 32902-1376

STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether Respondents purchased and applied a restricted-use pesticide without a license and whether Respondents applied the pesticide in an improper manner.

PRELIMINARY STATEMENT

This case was referred to the Division of Administrative Hearings and assigned to the undersigned on April 27, 1993. A formal hearing was scheduled for August 25, 1993.

At the formal hearing, Petitioner presented the testimony of: Mr. Larry Wohlers, Regulations Manager, Magna-Bon Corporation; Mr. Dennis Culligan, Environmental Manager for Petitioner; Respondent, Robert McDaniel; Mr. Jason McDaniel, an employee of Respondent, Port Malabar Country Club; and, by deposition, Mr. Robert Dolci, the owner of Respondent, Port Malabar Country Club.

Petitioner submitted one composite exhibit consisting of the licensure file for Respondent, Robert McDaniel. Petitioner's Exhibit 1 was admitted in evidence without objection.

Respondent called no witnesses and submitted one exhibit consisting of Petitioner's inspection report. Respondent's Exhibit 1 was admitted in evidence without objection.

Subsequent to the formal hearing, Petitioner filed a Petitioner's Motion To Amend Complaint To Conform Pleadings With Evidence. The motion in effect seeks to join Raysteff Corporation as a party to this proceeding. Petitioner's motion is denied.

A transcript of the formal hearing was filed with the undersigned on September 14, 1993. Proposed findings of fact and conclusions of law were timely filed by Petitioner on September 24, 1993. Respondent timely filed proposed findings of fact and conclusions of law on September 23, 1993. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Port Malabar Country Club, is an unincorporated 18-hole golf course located in Palm Bay, Florida, owned and operated by Raysteff Corporation ("Raysteff"). Raysteff is a Florida Corporation, wholly owned by Mr. Robert Dolci. Respondent, Robert L. McDaniel, is the superintendent of golf course maintenance at Port Malabar Country Club and has held that position since 1985.

   
   

2. On February 26, 1992, Respondent, McDaniel, purchased a 42 pound container of Kerb 50-W herbicide ("Kerb") from Harrell's Inc., located in Lakeland, Florida. Kerb contains chemicals that are classified as restricted- use pesticides by Petitioner. The labelling on the product's package contains the following warning:

   
   

   RESTRICTED USE PESTICIDE Because pronamide has produced tumors in laboratory animals, this product is for retail sale to and use only by Certified Applicators or persons under their direct supervision, and only for those uses covered by the Certified Applicator's certification.

   
   

   On February 26, 1992, neither Respondent, McDaniel, nor any other employee, officer, or agent of Raysteff held a valid applicator's license as required by Section 487.031(7), Florida Statutes.

   
   

3. On March 4, 1992, Mr. Jason McDaniel was an employee of Raysteff and applied all Kerb to approximately three acres of the golf course. Respondent, McDaniel, supervised the application of the Kerb. Neither Respondent, McDaniel, nor any other employee, officer, or agent of Raysteff held a valid applicator's license at the time of the application.

4. Respondent, McDaniel, had been licensed by Petitioner in 1975 and 1976 as a certified applicator. Mr. McDaniel's license expired on October 31, 1983. Mr. McDaniel took the examination required to obtain a new license after December 5, 1991. At the time he purchased and applied the Kerb, Mr. McDaniel had not been notified that he had passed the examination. Mr. McDaniel subsequently received his current license which expires sometime in 1996.

   
   

5. The Kerb was applied properly around tees and greens on a sunny day with little wind. The treated area was not used by golfers until after the treated area was dry. The method of application did not expose either golfers or workers directly or by drift. The method of application complied with labeling precautions on the product.

   
   

6. Neither package labeling, Petitioner's rules, nor Petitioner's policy establishes the amount of time needed for Kerb to dry. Petitioner failed to present any evidence to explicate its assertion that Respondents failed to determine that the Kerb was dry before allowing persons into the treated area. Evidence presented by Respondents was credible and persuasive.

   
   

7. Respondents have no history of formal administrative disciplinary action for prior offenses. Respondent, McDaniel, properly applied the Kerb after taking the examination to obtain his license as a certified applicator and subsequently received that license.

   
   

8. No harm was caused to any individual as a result of the application of the Kerb. There was no damage which would otherwise require expense to the state to rectify. Respondents did not benefit pecuniarily as a result of applying the Kerb prior to the time Mr. McDaniel received his license. However, Mr. McDaniel knew or should have known that he did not have his license when he purchased and applied the Kerb.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

   
   

10. The burden of proof in this proceeding is on Petitioner. Petitioner must establish by a preponderance of evidence that Respondents committed the alleged acts and the reasonableness of the remedy sought. Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

11. Petitioner failed to show by a preponderance of the evidence that Respondents administered the Kerb in an improper manner. The testimony of Mr. McDaniel and his son was credible and persuasive.

    
    

12. Petitioner showed by a preponderance of the evidence that the Kerb was purchased and applied during a time in which neither Respondent, McDaniel, nor any other employee, officer, or agent of Raysteff was licensed as a certified applicator in violation of Section 487.031(7) and (8), Florida Statutes.

13. Section 487.165, Florida Statutes, imposes a fine of up to $10,000 for each violation by Respondents. Respondents committed two separate violations when they purchased the Kerb on February 26, 1992, and applied it on March 4, 1992, without a license. Respondents knew or should have known that they did so without the requisite license.

    
    

14. Respondents have no history of formal administrative disciplinary action for prior offenses. Respondent, McDaniel, properly applied the Kerb after taking the examination to obtain his license as a certified applicator and subsequently received that license.

    
    

15. No harm was caused to any individual as a result of the application of the Kerb. There was no damage which would required the state to rectify at great expense to the state. Respondents did not benefit pecuniarily as a result of applying the Kerb prior to the time Mr. McDaniel received his license.

    
    

16. In view of all of the surrounding facts and circumstances a fine of

$500 should be imposed for each offense and increased by $500 for the willfulness of their acts. The fine in the aggregate amount of $1,500 should be born equally by each of the Respondents.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of

unlawful discrimination.

DONE AND ENTERED this 19th day of October, 1993, at Tallahassee, Florida.

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2230

Petitioner did not submit proposed findings of fact. 1.-10. Accepted in substance

11.-12. Rejected as unsupported by the weight of evidence

1. Accepted in substance

2. Rejected as irrelevant and immaterial

Respondent's Proposed Findings of Fact

1.-2. Accepted in substance

1. Rejected as irrelevant and immaterial

2. Accepted in substance

5.-11. Rejected as irrelevant and immaterial

12. Accepted in substance

COPIES FURNISHED:

Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10

Tallahassee, Florida 32399-0810

John S. Koda, Esquire

Florida Department of Agriculture and Consumer Services

Room 515, Mayo Building Tallahassee, Florida 32399-0800

Elting L. Storms, Esquire Post Office Box 1376 Melbourne, Florida 32902-1376

Richard Tritschler, Esquire General Counsel

Florida Department of Agriculture and Consumer Services

Room 515, Mayo Building Tallahassee, Florida 32399-0800

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.

Docket for Case No: 93-002230

Orders for Case No: 93-002230