STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES,

Petitioner,

vs.

RONALD A. CIRRINCIONE,

Respondent.

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) Case Nos. 04-4317PL

) 04-4318PL

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in these cases on March 8, 2005, in Orlando, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: David W. Young, Esquire

Department of Agriculture and Consumer Services

Mayo Building, Suite 520

407 South Calhoun Street Tallahassee, Florida 32399-0800

For Respondent: Howard J. Hochman, Esquire

Law Offices of Howard J. Hochman 7695 Southwest 104th Street Suite 210

Miami, Florida 33156

STATEMENT OF THE ISSUES

Whether Respondent violated Subsections 482.051(5) and 482.161(1)(e), Florida Statutes (2003),1/ and Florida Administrative Code Rules 5E-14.106(1) and 5E-14.106(6), and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On June 7, 2004, Petitioner, Department of Agriculture and Consumer Services (Department), issued Administrative Complaint No. A31578 against Respondent, Ronald A. Cirrincione (Cirrincione), charging him with violating Subsections 482.051(5) and 482.161(1)(e), Florida Statutes, and Florida Administrative Code Rules 5E-14.106(6) and 5E-14.106(1) on March 22, 2004, by using a deficient concentration of pesticide in preconstruction soil treatments for the prevention of subterranean termites and failing to use the necessary personal protective equipment as stated on the label of the product being applied. On June 7, 2004, the Department also issued Administrative Complaint No. A31577 against Cirrincione alleging that he violated Subsections 482.051(5) and 482.161(1)(e), Florida Statutes, and Florida Administrative Code Rule

5E-14.106(6) on March 16, 2004, by using a deficient concentration of pesticide in preconstruction soil treatments for the prevention of subterranean equipment. Administrative Complaint No. A31577 was amended on November 30, 2004, to

include a count that Cirrincione failed to use the necessary personal protective equipment as stated on the product label in violation of Florida Administrative Code 5E-14.106(1).

The cases were forwarded to DOAH on December 1, 2004, for assignment to an Administrative Law Judge. Administrative Complaint No. A31577 was assigned DOAH Case No. 04-4318PL, and Administrative Complaint No. A31578 was assigned DOAH Case No. 04-4317PL. The cases were consolidated by Order dated December 9, 2004. The final hearing was scheduled for

January 25, 2005, but was continued at the request of Cirrincione and was rescheduled.

Cirrincione filed a challenge to certain practices of the Department, claiming the practices constituted rules which had not been promulgated pursuant to the rulemaking procedures set forth in Section 120.54, Florida Statutes (2004). The challenge was assigned DOAH Case No. 05-0145RU. The final hearing in the rule challenge was also heard March 8, 2005.

The parties filed a Pre-Hearing Stipulation in which they agreed to certain facts contained in Section E of the

Pre-Hearing Stipulation. Those facts have been incorporated in this Recommended Order.

At the final hearing, the Department submitted Petitioner's Exhibits 1 through 7, which were admitted into evidence. The Department did not call any witnesses. At the final hearing,

Cirrincione testified in his own behalf and requested that the Affidavit of James J. Hannan be admitted as a late-filed exhibit. The Affidavit of Mr. Hannan was filed on March 8, 2005, and was admitted as Respondent's Exhibit 1. Additionally, the parties agreed at the final hearing to "use the depositions in both cases," meaning the parties were also relying on the depositions that were filed in DOAH Case No. 05-0145RU.

On March 17, 2005, the Department filed Petitioner's Motion to Dismiss or Strike Respondent's Sunshine Law Affirmative Defense for Lack of Subject Matter Jurisdiction. The motion has been considered and is denied.

The Transcript of the final hearing was filed on April 13, 2005. At the final hearing, the parties agreed to file their proposed recommended orders within 20 days of the filing of the Transcript. On April 29, 2005, Cirrincione filed a Motion for Extension of Time in which to file the proposed recommended orders. The motion was granted, and the time for filing proposed recommended orders was extended to May 9, 2005. The Department filed its Proposed Recommended Order on May 9, 2005. Cirrincione filed his Proposed Recommended Order on May 10, 2005, and filed two corrections of scrivener's errors on May 12, 2005. The parties' Proposed Recommended Orders have been considered in the rendering of this Recommended Order.

On June 7, 2005, the Department filed Petitioner's Notice of Additional Authority. Cirrincione filed Respondent's Notice of Additional Authority on June 8, 2005.

FINDINGS OF FACT

1. At the times of the violations alleged in the Administrative Complaints, Cirrincione was an employee of Diligent Environmental Services. His responsibilities included performing preconstruction soil treatments for prevention of subterranean termites.

2. On March 16 and 22, 2004, Cirrincione was applying the pesticide, Dragnet SFR, at a construction site at 2050 Ocoee/Apopka Road, Ocoee, Florida. The label for Dragnet SFR required that the pesticide be applied at a 0.5 percent concentration for preconstruction soil treatment for subterranean termites. An inspector for the Department took a sample each day of the pesticide being applied at the site. The samples were sent to the Department's laboratory for analysis.

3. The active ingredient in the pesticide, Dragnet SFR, is permethrin. The pesticide analysis reports prepared by the Department's laboratory showed that the concentration level of the pesticide in the sample taken on March 16, 2004, was 0.2 percent, which is 60 percent less than the 0.5 percent concentration required by the Dragnet SFR label. The laboratory report showed that the concentration level for the sample taken

   on March 22, 2004, was 0.3 percent, which is 40 percent less than the label-required concentration. The concentration amounts of the samples reported by the Department's laboratory were corroborated by independent laboratory analyses performed by Analytical Pesticide Technology Laboratories at the request of Cirrincione's counsel.

4. The parties stipulated, and it is found that on

   
   

   March 16 and 22, 2004, when Cirrincione was applying Dragnet SFR at the 2050 Ocoee/Apopka site, he was not wearing all of the protective equipment required by the Dragnet SFR pesticide label, including a long-sleeved shirt, long pants, socks, shoes, and chemical-resistant gloves.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2004).

6. The Department has the burden to establish the violations alleged in the Administrative Complaints by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932, 935 (Fla. 1996). The Department alleged that Cirrincione violated Subsections 482.051(5) and 482.161(1)(e), Florida Statutes, and Florida Administrative Code Rules 5E-14.106(1) and 5E-14.106(6).

7. Subsection 482.051(5), Florida Statutes, provides that the Department shall adopt rules which provide "[t]hat any pesticide used for preconstruction treatments for the prevention of subterranean termites be applied in the amount, concentration, and treatment area in accordance with the label." In response to this statutory directive, the Department promulgated Florida Administrative Code Rule 5E-14.106(6), which provides:

   Pesticides used for treatment for the prevention of subterranean termites for new construction shall be applied at the specific amounts, concentration, and treatment areas designated by the label.

   
   

8. The Department has established by clear and convincing evidence that Cirrincione violated Florida Administrative Code Rule 5E-14.106(6), by failing to apply the pesticide, Dragnet SFR, in accordance with the pesticide's label on March 16

   and 22, 2004, at the 2050 Ocoee/Apopka site.

   
   

9. The authority for the Department to discipline a person for a violation of any statute or rule is found in Subsection 482.161(1)(a), Florida Statutes, which provides that disciplinary action may be taken for a "[v]iolation of any provision of this chapter or of any rule of the department adopted pursuant to this chapter." The Department has not alleged that Cirrincione violated Subsection 482.161(1)(a), Florida Statutes. Instead, the Department has alleged that

   Cirrincione violated Subsection 482.051(5), Florida Statutes, which merely provides the authority to promulgate rules requiring pesticides to be applied in accordance with the label.

10. Generally, the grounds proven in support of an agency's assertion that a licensee should be disciplined are limited to those specifically alleged in the charging document. See Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996). An incorrect statutory citation in the charging instrument, however, is not fatal if the alleged offending acts are adequately described. See B.H. v. State, 645 So. 2d 987, 996 (Fla. 1994); Maravel v. Department of Professional Regulation, Board of Medical Examiners, 498 So. 2d 481 (Fla. 1st DCA 1986); and Farzad v. Department of Professional Regulation, 443 So. 2d 373 (Fla. 1st DCA 1983).

11. In the instant cases, it is clear from the Administrative Complaints that the Department intended to discipline Cirrincione for a violation of Florida Administrative Code Rule 5E-14.106(6), and Cirrincione understood and defended the charge accordingly. It is concluded, therefore, that while the Department should have specifically alleged in its Administrative Complaints that Cirrincione violated Subsection 482.161(1)(a), Florida Statutes, allowing the Department to correct this oversight will cause no prejudice to Cirrincione.

12. The Department has established by clear and convincing evidence that Cirrincione violated Subsection 482.161(1)(a), Florida Statutes, by violating Florida Administrative Code Rule 5E-14.106(6).

13. Subsection 482.161(1)(e), Florida Statutes, provides that the Department may take disciplinary action against a person for "knowingly failing to use materials or methods suitable for the pest control undertaken." Florida Administrative Code Rule 5E-14.106(1), provides:

    Only those pesticides having federal or state label registration clearance shall be used. It shall be unlawful to use any registered pesticide in a manner inconsistent with its label and labeling, except as provided by the United States Environmental Protection Agency, the United States Department of Agriculture, or the Department.

    
    

14. The Department has established by clear and convincing evidence that Cirrincione knowingly failed to wear all the protective gear required by the label for Dragnet SFR when he was applying the pesticide on March 16 and 22, 2004, at the 2050 Ocoee/Apopka site. Thus, the Department has established that Cirrincione violated Subsection 482.161(1)(e), Florida Statutes, and Florida Administrative Code Rule 5E-14.106(1).

15. Cirrincione has raised the following affirmative defense in his requests for administrative hearings:

    Whether or not the complaint was issued as a result of an investigative process and probable cause determination that failed to comply with the requirements of Florida Statute 286.011.

    
    

16. Subsection 286.011(1), Florida Statutes (the Sunshine Law), provides the following:

    All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings.

    
    

17. Section 286.011, Florida Statutes, also provides for criminal and non-criminal penalties for a violation of Subsection 286.011(1), Florida Statutes. These penalties may only be imposed by courts. Subsection 286.011(2), Florida Statutes, provides: "The circuit courts of this state shall have jurisdiction to issue injunctions to enforce the purposes of this section upon application by a citizen of this state." The enforcement of a violation of the Sunshine Law is through the court system and not through the administrative process. DOAH does not have jurisdiction to impose any remedy or penalty provided for a violation of Subsection 286.011(1), Florida Statutes.

18. Cirrincione has also raised an affirmative defense that the Department has adopted an informal policy by which the Department does not consistently enforce Florida Administrative Code Rule 5E-14.106(6) and does not take enforcement action when the pesticide being applied is between 80 and 99 percent of the rate specified by the pesticide label rate. The deficient applications made by Cirrincione were 60 and 40 percent of the rate required by the Dragnet SFR label. If such an informal policy existed, it was not applied in the instant cases. Thus, Cirrincione has failed to establish that he was adversely affected by the informal policy and lacks standing to challenge it. See Advocacy Center for Persons with Disabilities, Inc. v. Department of Children and Family Services, 721 So. 2d 753, 755 (Fla. 1st DCA 1988).

19. Cirrincione has raised as an affirmative defense that the collection methods and investigatory methods used by the Department violated administrative fairness and equal protection under the 14th Amendment to the United States Constitution. DOAH does not have jurisdiction to rule on such constitutional issues. See Central Florida Investments, Inc. v. Orange County Code Enforcement Board, 790 So. 2d 593 (Fla. 5th DCA 2001); and Department of Revenue v. Young American Builders, 330 So. 2d 864 (Fla. 1st DCA 1976).

20. Cirrincione has challenged the investigatory process used by the Department prior to the issuance of the Administrative Complaints. Subsection 120.57(5), Florida Statutes, provides the following concerning agency investigations: "This section does not apply to agency investigations preliminary to agency action." The issues raised by Cirrincione concerning the investigatory process are not reviewable in this administrative proceeding.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ronald Cirrincione violated Subsections 482.161(1)(a)

and (e), Florida Statutes, and Florida Administrative Code Rules 5E-14.106(1) and (6); issuing warning letters for the violations of failing to wear protective equipment as specified by the pesticide label; and imposing an administrative fine of $400 for each violation of applying a deficient concentration of pesticide, for a total of $800.

DONE AND ENTERED this 3rd day of January, 2006, in Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 2006.

ENDNOTES

1/ Unless otherwise indicated all references to Florida Statutes are to the 2003 version.

COPIES FURNISHED:

David W. Young, Esquire Department of Agriculture and

Consumer Services Mayo Building, Suite 520

407 South Calhoun Street Tallahassee, Florida 32399-0800

Howard J. Hochman, Esquire

Law Offices of Howard J. Hochman 7695 Southwest 104th Street Suite 210

Miami, Florida 33156

Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and

Consumer Services

407 South Calhoun Street Mail Station 38

Tallahassee, Florida 32399-0800

Richard D. Tritschler, General Counsel Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 04-004317PL

Orders for Case No: 04-004317PL