The Issue Whether Respondents Lee Ann Kennedy ("Kennedy") and Kenco Industries, L.L.C. ("Kenco"), engaged in various activities constituting pest control under chapter 482 without having obtained the required licenses from Petitioner Department of Agriculture and Consumer Services, in violation of sections 482.161(1)(j), 482.165(1), and 465.191(1), Florida Statutes.
Findings Of Fact The Parties Petitioner is the state agency charged with administering the Structural Pest Control Act, chapter 482. Respondent Kennedy is a resident of Wellington, Florida. Respondent Kenco Industries, L.L.C., is a registered Florida Limited Liability Company. Kennedy is the manager and sole member of, and the registered agent for, Kenco. Pest Control Regulation under Chapter 482, Florida Statutes Chapter 482 authorizes Petitioner to regulate activities constituting "pest control" and to impose sanctions for violations of that chapter. "Pest control" is broadly defined in section 483.021(22) as: The use of any method or device or the application of any substance to prevent, destroy, repel, mitigate, curb, control, or eradicate any pest in, on, or under a structure, lawn, or ornamental; The identification of or inspection for infestations or infections in, on, or under a structure, lawn, or ornamental; The use of any pesticide, economic poison, or mechanical device for preventing, controlling, eradicating, identifying, inspecting for, mitigating, diminishing, or curtailing insects, vermin, rodents, pest birds, bats, or other pests in, on, or under a structure, lawn, or ornamental; All phases of fumigation, including: The treatment of products by vault fumigation; and The fumigation of boxcars, trucks, ships, airplanes, docks, warehouses, and common carriers; and The advertisement of, the solicitation of, or the acceptance of remuneration for any work described in this subsection, but does not include the solicitation of a bid from a licensee to be incorporated in an overall bid by an unlicensed primary contractor to supply services to another. Petitioner is authorized to issue licenses to qualified businesses to engage in the business of pest control in this state. § 482.165(1), Fla. Stat. It is unlawful for any person, partnership, firm, corporation, or other business entity to engage in the unlicensed practice of pest control as that term is defined in section 482.021(22). Id. Section 482.191(1) makes unlawful the advertisement of pest control services except as authorized under chapter 482. Absent limited circumstances not applicable here, persons or entities engaging in such advertisement must be licensed by Petitioner to practice pest control. Petitioner also is authorized to fine persons who impersonate an employee of Petitioner. § 482.161(1)(j), Fla. Stat. Respondents' Acts Alleged to Violate Chapter 482 Respondent Kennedy did not hold a pest control business license or other license to practice pest control at any time relevant to this proceeding.2/ Respondent Kenco also did not hold a pest control business license or other license to practice pest control at any time relevant to this proceeding. On or about April 1, 2011, Kennedy entered Saigon Oriental Market in Lake Park, Florida. According to its owner, Hung The Thach, Kennedy walked around the store inspecting it, then told him that she was employed by Petitioner, that some of his produce was infested by insects, and that he would have to have pest control services performed or she would return in a week to conduct another compliance inspection. Kennedy gave Mr. Thach the telephone number for Outside In, a pest control company, and the business card of its owner, Dennis O'Rourke. Concerned that Kennedy would shut down his store or fine him, Mr. Thach called Outside In; the following day, an employee of that company performed pest control services at the store. Outside In performed additional pest control services at the store on or around May 26, 2011. Mr. Thach paid Outside In for these services. In mid-May 2011, Kennedy inspected Fajita's Super Market in Lake Worth, Florida, and told its owner, Ali Jaber, that she was employed by Petitioner as an inspector, and that he had a fly problem in his store. She recommended that he contact Outside In to correct the problem. Mr. Jaber told her he used another pest control company, but thereafter, a representative from Outside In visited the store, left a business card with Mr. Jaber, and offered to provide pest control services for the store for $150.00 per month with no contract. Kennedy returned to the store approximately a week later and wanted to know why nothing had been done to correct the fly problem; she also asked an employee of Fajita's who was going to pay for her time to inspect the store; when she was referred to Mr. Jaber, she left the store and did not return. On or around May 24, 2011, Kennedy entered the Fortune Cookie oriental supermarket in West Palm Beach, Florida, and told its president, David Chang, that she was with an inspector with Petitioner. She inspected the store, told him that there was a fly problem, and stated she would return in two weeks. Mr. Chang testified that Kennedy did not provide him the name of any pest control businesses, but that approximately a week before Kennedy inspected the store, a representative of Outside In had come to the store and tried to sell him pest control services, but that he had declined to purchase the services at that time. Dennis O'Rourke, President of Outside In, testified that Kennedy was not on his company's payroll, but that she had solicited pest control business for his company for approximately four months prior to September 2011. She successfully solicited four accounts and he paid her 30% of the profits made on those accounts. At the time she solicited the accounts, she did not possess a valid identification card to perform pest control services on behalf of Outside In.3/ Mr. O'Rourke subsequently obtained a valid identification card for Kennedy so that she could perform pest control, including business solicitation, for his company. Petitioner initiated an investigation of Kennedy in June 2011, after being notified by several small food markets in Palm Beach County that she was holding herself out as a food inspector with Petitioner, inspecting the stores, notifying the store operators that there was a pest problem, and recommending that Outside In be contacted to correct the problem. In the course of the investigation, on September 7, 2011, John Berquist, an inspector with Petitioner's Bureau of Entomology and Pest Control, took photographs of Kennedy's motor vehicle4/ bearing magnetic signs on the front passenger and driver side doors labeled "Kenco Industries," which depicted a photograph of Kennedy and advertised the provision of pest control services. Berquist checked Petitioner's pest control licensing records and determined that Petitioner had not issued a pest control business license or other pest control license to Kennedy or to Kenco. At the hearing, Kennedy acknowledged that she conducted food store inspections, pointed out pest problems to store operators, and recommended that they contact Outside In for pest control service. However, she denied holding herself out as an employee of Petitioner. She testified that she is certified in food safety by the Department of Health and that if she observed a pest problem while shopping, she would show her food safety certification card to the store operator and point out the problem. She claimed she did this because she is Vietnamese, so often shops at Asian food markets and wants the stores where she purchases her family's food to be pest-free. She also claimed that she only wanted the stores "to get what they needed" in the way of pest control service and that it did not matter whether she was compensated for soliciting business for Outside In. However, she acknowledged that she had been compensated by Outside In for the pest control business she had successfully solicited on their behalf. Kennedy testified that she did not intend to do anything that was against the law, and was not aware that she was engaging in conduct that violated the law. The evidence established that neither Kennedy nor Kenco previously violated chapter 482 or Petitioner's rules. Ultimate Findings of Fact Regarding Alleged Violations Based on the foregoing, Petitioner established, by clear and convincing evidence, that Kennedy impersonated an employee of Petitioner, as alleged in Count 1 of the Amended Administrative Complaint, in violation of section 482.161(1)(j). Kennedy's testimony that she did not hold herself out as an employee of Petitioner was contradicted by all other witnesses and was not credible. Petitioner also established, by clear and convincing evidence, that Kennedy and Kenco advertised pest control services without obtaining a pest control business license in violation of sections 482.165(1) and 482.191(1). There was no dispute that Kennedy advertised the provision of pest control services by herself and by Kenco by placing signs on her vehicle depicting her image and Kenco's business name. Further, Kennedy is Kenco's manager, sole member, and agent, so her actions in advertising the provision of pest control services by Kenco are imputed to Kenco.5/ Petitioner also proved, by clear and convincing evidence, that Kennedy solicited pest control business for Outside In for compensation, in violation of sections 482.165(1) and 482.191(1). Kennedy's testimony that she was motivated by altruism and personal interest in food safety at markets where she shopped, rather than by being compensated for soliciting business for Outside In, was not credible. The undisputed evidence establishes that she was compensated by Outside In for soliciting pest control business on its behalf. However, Petitioner did not establish, by clear and convincing evidence, that Kenco solicited business on behalf of Outside In. The evidence does not show that Kennedy represented to the food store operators that she was acting on behalf of Kenco when she solicited business for Outside In. To the contrary, the evidence established that Kennedy represented that she was an inspector employed by Petitioner. Accordingly, it is determined that Kenco did not solicit pest control business for Outside In, in violation of sections 482.165(1) and 482.191(1). As further addressed below, Petitioner's Enforcement and Penalties rule, Florida Administrative Code Rule 5E-14.149, makes the deliberate commission of an act that constitutes a violation of chapter 482 an aggravating factor in determining the applicable fine. Here, the evidence shows that Kennedy intentionally misrepresented that she was employed by Petitioner specifically to solicit and induce food store operators to purchase pest control services for which she would be compensated. Accordingly, it is determined that Kennedy acted deliberately in impersonating an employee of Petitioner and in soliciting business on behalf of Outside In for compensation. Furthermore, the evidence shows that Kennedy——and by operation of the law of agency, Kenco——deliberately engaged in advertising the provision of pest control services without having obtained the required license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner Department of Agriculture and Consumer Services impose a fine of $2,600.00 on Respondent Lee Ann Kennedy, and impose a fine of $1,000.00 on Respondent Kenco Industries, L.L.C. DONE AND ENTERED this 27th day of June, 2012, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 2012.
Findings Of Fact At all times material hereto, Respondent was the holder of Pest Control Business License No. 875, Pest Control Operator's Certificate No. 667, and Identification Card No. 6415. Respondent's business was and is located at 512 South Eighth Street, Fernandina Beach, Florida. The anniversary date for purposes of renewal of Respondent's Pest Control Business License was November 30, 1978. Those persons holding identification cards issued in connection with the operation of H & K Pest Control were Respondent, Dolphus Lee White, Donna Kay Young and George Morrison Young. Respondent was licensed to conduct pest control business only in the category of Lawn and Ornamental pests. On November 28, 1978, two days before Respondent's pest control business license was to expire, HRS received an Application for Pest Control Business License and Identification Cards from Respondent requesting renewal of the aforementioned licenses and identification cards. However, the Certificate of Insurance attached to the renewal application failed to meet the requirements for minimum financial responsibility for property damage contained in Section 482.071, Florida Statutes. The Certificate of Insurance in question indicated that the limits of liability for property damage were $50,000 for each occurrence, and $50,000 in the aggregate. The statutory requirements are $50,000 for each occurrence and $100,000 aggregate. As a result, by notice dated November 29, 1978, HRS returned Respondent's application, indicating that the Certificate of Insurance did not meet the statutory standard. In addition, the November 29, 1978 letter specifically informed Respondent that . . . it is unlawful to operate a pest control business that is not licensed." HRS received a corrected Certificate of Insurance on February 27, 1979. However, this Certificate of Insurance did not indicate the name of the insured pest control business, and was, accordingly, returned to Respondent's insurance agent. Respondent's name was then apparently inserted in the Certificate of Insurance by the agent, and the corrected Certificate of Insurance was received by HRS on March 3, 1979. As a result, Respondent's application for renewal of his licenses and identification cards was not, in fact, complete until March 3, 1979. The renewal licenses and identification cards were thereafter issued on June 4, 1979. The delay between receipt of the completed application and issuance of the licenses and identification cards was apparently due to work load in the HRS Office of Entomology. Notwithstanding the fact that Respondent was licensed only in the area of Lawn and Ornamental Pest Control, H & K Pest Control performed pest control services inside buildings at the Florida Marine Welcome Station in Fernandina Beach, Florida, for the period July 1, 1978 through and including two days prior to the hearing in this cause on September 28, 1979. The State of Florida, Department of Commerce, Office of Administrative Services was billed ten dollars monthly on H & K Pest Control statements for this service, and payment was remitted by the State of Florida for these services to H & K Pest Control. In addition, on at least two occasions H & K Pest Control performed pest control services inside buildings at the Florida Welcome Station on Interstate Highway 95 in Yulee, Florida. One of these occasions occurred in November, 1978 for which H & K Pest Control billed the Florida Welcome Station in Yulee, Florida, thirty dollars on its statement dated January, 1979. At no time during the performance of pest control services inside the Florida Marine Welcome Station in Fernandina Beach, Florida, and the Florida Welcome Station on Interstate Highway 95 in Yulee, Florida, was Kinsey C. Haddock or any other employee of H & K Pest Control licensed in the category of General Household Pests and Rodents, or in any other category that would have allowed them to treat the inside of buildings for pests. Although Respondent was never observed to have personally sprayed the insides of buildings at either Welcome Station, persons identifying themselves as employees of H & K Pest Control did perform those services, the State of Florida was billed on statement forms of H & K Pest Control for these services, and payment was remitted by check to H & K Pest Control. On December 27, 1978 an inspector from HRS visited the business location of H & K Pest Control at 512 South Eighth Street, Fernandina Beach, Florida. The business office was open and being operated by a person claiming to be an employee of H & K Pest Control who identified herself as Joyce French. Ms. French advised the inspector that she had been trained in the category of General Household Pest Control, and had performed these services inside the Florida Welcome Station on Interstate Highway 95 in Yulee, Florida. Records maintained by the Office of Entomology indicate that no identification card or other license had ever been issued to a "Joyce French" in the area of General Household Pest Control. Respondent denied that he had ever employed a "Joyce French", nor was Miss French called as a witness in this proceeding. Further, other than the statement attributed by the inspector to Ms. French, there is no evidence in this proceeding to corroborate that Ms. French did, in fact, perform pest control services of any description. Further, on December 27, 1978, Respondent did not have displayed in his business office a certified operator's certificate renewal or a current business license, as required Chapter 482, Florida Statutes. Finally, the record in this proceeding establishes, and Respondent has, in fact, admitted, that he is not a full- time employee of H & K Pest Control. In fact, the record clearly establishes that Respondent has been a full-time employee of Container Corporation of America as an engineer in the Power Department of that company since December 9, 1937. Respondent works rotating shifts in his employment at Container Corporation of America, but usually works the 8:00 a.m. to 4:00 p.m. shift an average of only five days per month. When not working the 8:00 a.m. to 4:00 p.m. shift at Container Corporation of America, Respondent operates his pest control business at the address above mentioned.
The Issue The issues in this case are whether Respondent, James Bartley, violated Section 482.091(1), Florida Statutes (2007), as alleged in Petitioner’s Amended Administrative Complaint issued by Petitioner, the Department of Agriculture and Consumer Services, on October 31, 2007, and, if so, what disciplinary action should be taken against his Florida pest control certified operator’s license.
Findings Of Fact Rudy L. Benvin was employed as a pest control employee by Diligent Environmental Services, Inc. (hereinafter referred to as “DESI”), on February 15, 2007. While DESI was the “licensee” for which Mr. Benvin was employed, the evidence failed to prove who the certified operator in charge (hereinafter referred to as the “Certified Operator”) was upon Mr. Benvin’s employment. Clearly, Mr. Bartley was not the Certified Operator when Mr. Benvin was employed or during the 30-day period thereafter. DESI failed to apply for a pest control identification card for Mr. Benvin upon his employment, during the 30 days after his employment, or at any time that Mr. Benvin was employed by DESI. Respondent, James Bartley, became the Certified Operator of DESI on April 12, 2007. Mr. Bartley was employed as the DESI Certified Operator until May 24, 2007. Mr. Benvin was still in the employee of DESI on April 12, 2007, and continued as an employee of DESI during the period that Mr. Bartley served as the DESI Certified Operator. Because Mr. Benvin was already “employed” by DESI at the time Mr. Bartley became Certified Operator and had been continuously so employed since February 15, 2007, Mr. Bartley could not have, simply by becoming the DESI Certified Operator, “employed” Mr. Benvin. On or about August 14, 2007, an application for an identification card was filed by Mr. Bartley with Petitioner, the Department of Agriculture and Consumer Services (hereinafter referred to as the “Department”). The name of the employing company reported on the application by Mr. Bartley was incorrect. Mr. Benvin continued his employment with DESI until sometime during the week of September 9, 2007. In settlement of DOAH Case No. 07-5417, DESI agreed that it had violated Section 482.091(1), Florida Statutes, by failing to apply for a pest control identification card for Mr. Benvin “within 30 days after employment of [Mr. Benvin] ”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services dismissing the Amended Administrative Complaint against James Bartley. DONE AND ENTERED this 8th day of February, 2008, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 8th day of February, 2008. COPIES FURNISHED: Howard J. Hochman, Esquire Law Offices of Howard J. Hochman 7695 Southwest 104th Street, Suite 210 Miami, Florida 33156 David W. Young, Esquire Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Findings Of Fact The Petitioner, Thriftway of Indiantown, is a retail food store located at 15488 Southwest Warfield Boulevard, Indiantown, Florida. It has a mailing address of Post Office Box 188, Indiantown, Florida 34956. The Department of Agriculture and Consumer Services is charged with the administration and enforcement of Chapter 500, Florida Statutes, along with rules promulgated thereunder relating to food safety and the selling of food to the consuming public. Department food safety inspectors conducted food safety inspections at Thriftway of Indiantown's place of business on the following dates during 1995: April 4 and 19, May 4 and 18, and June 1 and 15. On each of the five inspections from April 4 through June 1, the Thriftway of Indiantown received an overall rating of "poor." These ratings resulted from the fact that on each of these five occasions the inspector observed unsanitary conditions that constituted violations of applicable statutory and rule provisions. On each of the five inspections from April 4 through June 1, most of the violations were not critical violations. Only two critical violations were noted during the subject five inspections. One critical violation was the presence of rodent droppings. The other critical violation was the presence of live roaches. Rodent droppings were observed on all five of the subject inspections. Live roaches were observed on four of the five subject inspections. The last inspection of the Thriftway of Indiantown was on June 15, 1995. On that date there were no rodent droppings, no roaches, and no other critical violations. On June 15, 1995, there were only two minor problems, which were promptly corrected, and the store received an overall rating of "fair." During the period from the "poor" rating on April 4, 1995, until the "fair" rating on June 15, 1995, the manager and owners of Thriftway of Indiantown made diligent and industrious efforts to correct all of the violations noted on all of the inspection reports from April 4, 1995, through June 15, 1995. They made continuous progress towards correcting all of the non- critical violations, but in spite of their best efforts over several weeks they were unable to resolve the rodent and roach problems until early June. During April and May of 1995 the manager and owners of Thriftway of Indiantown did everything they could think of to resolve the rodent and roach problem. They called their pest control service and had extra pest control treatments applied. They searched in vain for rodent nests. They moved stock and cleaned everywhere they thought there might be rodents. They set out mouse traps and glue strips. When the existing pest control service appeared to be unable to solve the rodent and roach problems, the manager and owners of Thriftway of Indiantown began looking for another pest control service. After contacting and negotiating with several pest control companies, on May 31, 1995, the owners of Thriftway of Indiantown signed a contract with a new pest control company. The new pest control company was apparently successful, because when the store was inspected on June 15, 1995, the inspector did not see any rodent droppings or any roaches. On the dates of the five inspections from April 4, 1995, through June 1, 1995, Thriftway of Indiantown held food items in an unsanitary environment and offered such food for sale to the consuming public.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order imposing an administrative fine in the amount of five hundred dollars ($500.00). DONE AND ENTERED this 4th day of April 1996 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, 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 4th day of April 1996.
Findings Of Fact Petitioner has a degree in pest control technology. On June 18, 1981, Respondent renewed Petitioner's Pest Control operator's Certificate No. 2303 until June 1, 1982, in the categories of general household pests and rodent control, termite and other wood-destroying organism control, and lawn and ornamental pest control. On May 6, 1982, Petitioner filed his annual Application for Renewal of his certificate in the same categories. On that application, Petitioner answered "yes" to the question: "Have you been convicted by any court of a felony or of a crime involving moral turpitude within the past year?" and he answered "no" to the question: "[H]ave your civil rights been restored?" By letter dated June 15, 1982, Respondent denied Petitioner's Application for Renewal based upon Petitioner's answers to those questions, and Petitioner timely requested a formal hearing on that denial. On December 16, 1982, Respondent wrote to the Division of Administrative Hearings advising that a Hearing Officer had not yet been assigned to hear this matter and attaching only a copy of a July 6, 1982, letter from Respondent requesting the Division to conduct a formal hearing in this cause. Since the July 6 letter had never been received by the Division of Administrative Hearings, and since the December 16 letter failed to transmit Petitioner's request for hearing or any other pleadings or papers setting forth the substance of the cause, the Staff Assistant of the Division telephoned Mrs. Cheryl Ganley of Respondent's Clerk's Office on December 23, 1982, and requested the documents required to open a case before the Division of Administrative Hearings. That telephonic request was followed up with a letter to Mrs. Ganley on January 4, 1983. No response to either the telephonic or written inquiry was made by Respondent until March 24, 1983, when Respondent again wrote to the Division of Administrative Hearings asking why the matter was not scheduled for hearing and attaching only a copy of its December 16, 1982, letter. On March 31, 1983, the Director of the Division wrote Respondent outlining the chronology of the letters to and from Respondent and again advising Respondent that the case could not be heard until Respondent transmitted the pleadings required to open a case file. On April 11, 1983, Respondent finally did so. Petitioner relies upon his licensure by Respondent as a Certified Pest Control Operator for his livelihood and has no other training or means for earning a living. Other than Petitioner's testimony that his involvement in the incident was minimal, the only evidence introduced regarding the circumstances surrounding his arrest and conviction is a letter from Petitioner's Probation Officer, which letter constitutes uncorroborated hearsay and, therefore, cannot support a finding of fact. Petitioner's probation should be terminated in approximately six months, at which time he will be able to seek restoration of his civil rights. He anticipates no problem in having his civil rights restored. At the formal hearing in this cause, the parties stipulated that the only bar to renewal of Petitioner's licensure is his conviction of a felony or of a crime involving moral turpitude without his civil rights being restored.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered approving Petitioner's Application for Renewal of his Pest Control Operator's Certificate No. 2303 for the annual period commencing June 1, 1983. DONE and RECOMMENDED this 17th day of June, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1983. COPIES FURNISHED: Harold L. Braynon, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301 Mr. Christopher M. Hagerty 1141 South West Sixth Avenue Fort Lauderdale, Florida 33315 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issues are whether Respondent violated regulatory requirements to maintain and to implement a written policy that prohibits the neglect of nursing home residents; whether Petitioner should have changed the status of Respondent's license from Standard to Conditional; and whether Petitioner should fine Respondent $2,500 and recover investigative costs.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes in Florida pursuant to Subsection 400.23(7), Florida Statutes (2003). Respondent is licensed to operate a nursing home located at 710 North Sun Drive, Lake Mary, Florida 32746 (the facility). The facility admitted Resident 1 on November 20, 2000. Resident 1 was immobile and could not communicate verbally. She depended on a feeding tube for nourishment. On August 10, 2003, facility staff found ants in Resident 1's room. The ants had not bitten Resident 1. Staff sprayed the room with bug spray and then called the pest control company responsible for providing pest control at the facility (the pest control company). On August 12, 2003, the pest control company treated all of the rooms on the affected wing of the facility with ant bait gel and noted in the facility's pest control log that the problem in the affected area was "resolved." On the same day, another company treated the grounds outside the facility. During the early morning of August 20, 2003, facility staff found Resident 1 in her bed with ants and ant bites on her body. Staff immediately removed Resident 1 from her bed, showered her, called her doctor, and obtained orders for medications to treat the ant bites. Facility staff also treated the room and removed any ants that staff observed. Resident 1 went to the hospital briefly and then returned to the facility. Respondent notified Petitioner of the incident, and Petitioner sent two surveyors to the facility on August 22, 2003. Thereafter, Petitioner charged that the facility committed a Class II violation of 42 C.F.R. Section 483.13(c)(1). The relevant federal regulatory requirements are also set forth in what is identified in the record as Tag F224. Tag F224 requires the facility to maintain and to implement written policies and procedures that prohibit the neglect, abuse, and mistreatment of residents (an anti-neglect policy). Respondent does not dispute that the ant bites to Resident 1 on August 20, 2003, constituted harm sufficient to support a Class II violation, if Respondent violated the requirements to maintain and to implement an anti-neglect policy. The preponderance of evidence does not show that Respondent violated those requirements. Respondent maintained an anti-neglect policy that satisfied the requirements in Tag F224. In relevant part, the policy sets forth the standards and processes for identifying potential incidents of neglect of residents; investigating those incidents; and reporting them to appropriate agencies. Petitioner was unable to identify any component of Respondent's anti-neglect policy that violated the requirements of Tag F224. Petitioner also was unable to identify any other required policy that Respondent failed to maintain. Respondent implemented its anti-neglect policy. Facility staff identified the potential risk of harm, investigated the risk, implemented professional pest control treatments to all rooms on the same wing of the facility as the affected room, and treated the lawn outside the facility. The facility reported the incident to Petitioner. Petitioner was unable to identify any component of the anti-neglect policy, or that of any other policy, that Respondent did not implement to prevent the incident involving Resident 1. Irrespective of the anti-neglect policy that Respondent maintained and implemented, Petitioner sought to prove at the hearing that Respondent violated quality of care requirements. The Administrative Complaint does not allege that Respondent violated a quality of care requirement. If it were determined that the ALJ has authority to find Respondent guilty of violating a quality of care requirement not alleged in the Administrative Complaint, the preponderance of evidence does not show that the quality of care exercised by facility staff after they discovered ants on August 10, 2003, was deficient. Petitioner sought to prove that Respondent violated quality of care requirements by failing to provide adequate pest control service to the affected room. Petitioner did not identify any additional pest control procedures that applicable law required the facility to provide. Nor did Petitioner identify any pest control treatment or service that the facility could or should have provided to prevent the ant bites to Resident 1 on August 20, 2003. Petitioner also sought to prove that Respondent violated quality of care requirements by failing to increase monitoring of Resident 1. Petitioner failed to cite any legal standard that required facility staff to increase their monitoring of Resident 1 between August 10 and 20, 2003. The standard of practice in nursing homes is to monitor residents every two hours. No standard required a higher level of monitoring after August 10, 2003. There was no evidence that Respondent failed to monitor Resident 1 every two hours between August 10 and 20, 2003. Strict liability is not the appropriate standard for determining whether Respondent is responsible for the harm suffered by Resident 1 on August 20, 2003. The preponderance of evidence does not show that Respondent failed to provide any required goods or services to Resident 1. The ant bites on August 20, 2004, occurred despite the reasonable care undertaken by Respondent to prevent the ant bites.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order deleting the disputed deficiencies from the Survey Report for August 20, 2003; replacing the Conditional rating from August 22, 2003, until October 15, 2003, with a Standard rating; finding Respondent not guilty of the remaining allegations in the Administrative Complaint; and denying the proposed fine and recovery of investigative costs. DONE AND ENTERED this 8th day of June, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 8th day of June, 2004. COPIES FURNISHED: Gerald L. Pickett, Esquire Agency for Health Care Administration Sebring Building, Suite 330K 525 Mirror Lake Drive, North St. Petersburg, Florida 33701 Donna Holshouser Stinson, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302-1300 R. Davis Thomas, Jr. Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302-1300 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact At all times pertinent hereto, Joey Collins Pest Control of America, Inc. (Collins Pest Control) was subject to the regulatory provisions of Chapter 482, Florida Statutes, and the pertinent rules adopted by Petitioner, as a business entity licensed by Petitioner to engage in pest control in the State of Florida. At all times pertinent hereto, Eric C. Van De Ven was employed by Collins Pest Control as a pest control operator and was subject to the regulatory provisions of Chapter 482, Florida Statutes, and the pertinent rules adopted by Petitioner. On May 15, 1990, Mr. Van De Ven performed a termite inspection at the residence located at 8411 S.W. 84th Terrace, Miami, Florida, at the request of J. Raul Cosio and Maria F. Trabanco, in connection with their intended purchase of that residence. This work was performed in his capacity as an employee of Collins Pest Control. Mr. Van De Ven prepared, signed, and caused to be delivered to Mr. Cosio and Ms. Trabanco, a written inspection report pursuant to Section 482.226, Florida Statutes. This report was prepared on behalf of his employer, Collins Pest Control, on Collins Pest Control's letterhead. This report, states that visible evidence of Formosan termites was observed on the main beam above the pool deck, that live Formosan termites were observed on the main beam above the pool deck, and that there was visible evidence of damage by Formosan termites. The report also estimates that treating the premises by "tent and soil poisoning" would cost $1,525.00. The report did not include observable damage that had been caused by drywood termites. Mr. Van De Ven had observed this damage, but he did not note this damage in his report because the owner of the premises had been aware of the damage, the damaged area had been treated, and the area had been patched. Mr. Van De Ven recommended to Mr. Cosio and Ms. Trabanco that the owners of the premises should contact Truly Nolen, the company that had treated the premises for drywood termites, to determine whether Truly Nolen would pay for any additional treatment that may be necessary. Mr. Van De Ven erroneously identified a drywood termite as being a Formosan termite. There were no Formosan termites on the premises, and there was no condition that would have warranted the treatment recommended by Mr. Van De Ven. All damage that had been observed by Mr. Van De Ven had been caused by drywood termites. Mr. Van De Ven should have been able to distinguish between evidence of Formosan termites and evidence of drywood termites because of the physical differences between the two types of termites and because of the differences between the damage each type does to an infested area. Mr. Van De Ven was negligent in failing to distinguish between the two types of termites and in recommending the unnecessary treatment. There was no evidence that Mr. Van De Ven deliberately misled his customers or that he was trying to sell unnecessary services. There was no evidence that Mr. Cosio or Ms. Trabanco suffered any damages as a result of their dealings with Respondents. There was no evidence that either Respondent had been previously disciplined by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which: finds that Respondents Eric C. Van De Ven and Joey Collins Pest Control of America, Inc. have violated the provisions of Section 482.226(1), Florida Statutes, by performing the subject inspection in a negligent manner; further finds that said Respondents have violated the provisions of Rule 10D-55.1046(6), Florida Administrative Code, by recommending treatment for Formosan termites where there was no evidence of such infestation; and imposes an administrative fine in the amount of $250 against each Respondent. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of February, 1991. CLAUDE B. ARRINGTON 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 20th day of February, 1991. APPENDIX TO RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1, 2, and 10 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 3-9 are rejected as being subordinate to the findings made. The only post-hearing submittal submitted by Respondents was in the form of a letter addressed to the Hearing Officer filed January 28, 1991. This letter contained no proposed findings of fact. COPIES FURNISHED: Karen Miller, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401 Joey Collins Pest Control of America, Inc. 243 N.E. 5th Avenue Delray Beach, Florida 33483 Joseph A. Collins, III Owner Joey Collins Pest Control of America, Inc. 243 N.E. 5th Avenue Delray Beach, Florida 33483 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue for consideration in this matter is whether the Department should issue a Warning Letter to the Respondent because of his application of a pesticide in a client's home on September 16, 1994.
Findings Of Fact At all times pertinent to the issues herein, the Department of Agriculture was responsible for the registration, licensing and regulation of pest control applicators in Florida. In September, 1994, Crystal S. Tipton contacted the Respondent, Michael A. Kaeler, as the representative for Terminix International, and requested that he come to her home, located at 6253 Old Trail in New Port Richey, to spray for bugs and fleas. Mrs. Tipton had a contract with Terminix, dated July 19, 1994, which called for periodic applications, and this was the second visit under the plan. On September 16, 1994, Respondent came to the home in response to the call, arriving about 9:00 AM. At that time, Mrs. Tipton advised him that she had had a bad reaction from the July spraying. On September 16, 1994, Mrs. Tipton was in the house alone. Respondent started treating the house shortly after he arrived. Mrs. Tipton had told him not to spray her daughter's bedroom because of the reaction the child had had from the prior treatment. Mrs. Tipton remained in the house, cleaning, while Respondent applied the substance. At no time, she asserts, did Respondent instruct her to leave the house or give her any instructions except to tell her to wear shoes when she walked on the carpet. He did not tell her to stay off the carpet until it dried. According to Mrs. Tipton, while Respondent was applying the pesticide, on occasion she was in the same room with him, and she could smell the spray. At no time did he advise her to leave the room while he sprayed. Respondent also got behind the baseboards to spray, and put pesticide on the ground outside the house. He then left. According to Mrs. Tipton, the smell was worse this time than after the first spraying. Though she opened all the windows, even while Respondent was spraying, the smell remained for hours, and at 11:30 PM, the carpet was still damp, she claims. As she recalls it, the smell stayed in the house until the following day. After Mrs. Tipton realized there was a problem, she contacted several experts to come out and see what could be done. Her husband contacted Mr. Bowen, the Department's local representative, and told him what had happened, but no other complaint was filed. Mrs. Tipton called Terminix the Monday after the spraying to tell them that all the people in the house were sick. They did not respond promptly, so she had the carpets cleaned and a maid service in to clean the house, but even after that the smell was still present. Mrs. Tipton does not know what chemical was applied in her home by Respondent either in July or in September. She recalls only that in July Mr. Kaeler also told her to wear shoes on the damp carpet. On that occasion, the carpet was damp for three to four hours after spraying, but she does not know how much chemical was applied. During the September application, Mrs. Tipton remained in the family room and the kitchen while Mr. Kaeler was applying the substance throughout the house, and even when he was applying in the kitchen, which is tiled. Though he used a broadcast spray in those areas which were carpeted, including the living room, the dining room, the family room, the master bedroom, the halls, and the entrances to the children's bedrooms, he used a pin spray in the kitchen. Whereas the broadcast spray gives a wide application, the pin spray is exact and puts the pesticide in a very limited area. She had told him not to spray in the children's rooms, and claims she asked him not to use the same spray he had used in the earlier visit. Mrs. Tipton claims Mr. Kaeler did not tell her he had used the same spray but in a diluted strength or in a lesser volume. She claims he said he would not use the same spray and would not spray the daughter's bedroom. It would appear he did not spray the children's rooms, but there is no indication he used a different spray in September than in July. Mrs. Tipton claims the carpet remained damp far longer than it did during the July spraying and she thought this was unusual. When Mr. Bowen, the Department's entomologist inspector, was contacted by Mr. Tipton, he gave Mr. Tipton some advice on how to deal with the problem. The children's doctor also called Bowen about what Bowen had told Mr. Tipton. When Mr. Tipton finally suggested that the pesticide had been applied improperly, Bowen opened his investigation. He took Mrs. Tipton's statement and got the doctor's comments. He also took a statement from Mr. Kaeler and his records for the July and September applications, as well as copies of the labels from the containers of the pesticide applied. The Department requires that all products be used consistent with the labeling instructions and the standards of the Department and the Environmental Protection Agency, (EPA). From his investigation, Mr. Bowen determined that the Respondent used Dursban L.O. Mr. Bowen is familiar with that product and determined that the Respondent applied the product at a concentrated rate in a broadcast pattern over the carpets. This was appropriate, but if it were done while people other than the applicator were in the structure, he contend this was specifically prohibited by the label. In his opinion, Mr. Kaeler's actions constitute a violation of the statute and the Department's rule. None of the information received by Mr. Bowen from the family doctor or the Health Department related to the propriety of Respondent's application of the product. These contacts related only to the health of the children. The only reference to possibly improper application is found in Mrs. Tipton's undated statement. The label on the Dursban L.O. product indicates, "Other than the applicator, treated areas should be vacated during application. Do not permit humans or pets to contact treated surfaces until the spray has dried." Mr. Bowen did not contact the manufacturer to see what "areas" being treated meant. He feels that the interpretation is up to his agency, and he agrees with the agency determination that the entire residence must be vacated. No direct evidence was presented to show the agency determination, however, and it appears the determination of propriety of application was left up to Mr. Bowen. A broadcast spray is used for large areas. A pin stream is used for cracks and crevices. A pin stream application does not, in Mr. Bowen's opinion, require vacation of the structure. The broadcast spray for flea control does, however, as he sees it. If the manufacturer were to hold that application did not require evacuation of the entire structure, but only the room being treated, then in that case, Mr. Bowen would conclude that the application by Mr. Kaeler was appropriate. As he recalls, Mr. Kaeler used one half gallon of 1/4 percent solution for an 1800 square foot application. This was a fairly light treatment. Mr. Bowen has, himself, applied Dursban L.O. at this rate. Mr. Kaeler has been employed by Terminix since November, 1993 as a service technician. He underwent 30 days of a training program in identification of insects and application techniques and requirements of pesticides, including Dursban, with the company. He is not licensed. Terminix holds the license under which he operates. Mr. Kaeler admits that when he treated the Tipton house on September 16, 1994, Mrs. Tipton complained of her daughter's head aches resulting from the prior application and asked him not to spray the child's bedroom, but she did not object to the use of this pesticide. He broadcast sprayed all the carpeted area up to the entry to the girls' bedrooms. In all the girls' rooms there were clothes, books and toys on the floor so he did not spray inside. In the kitchen, which, he claims, was the only location where Mrs. Tipton was present while he sprayed, he used the pin stream technique. The entire spraying took about 30 minutes. Mr. Kaeler also sprayed the windows and doors from the outside and the garage, using the pin stream spray in all those locations. The one half gallon of solution was used to do all the spraying at the Tipton's house that day, both inside and out. Mr. Kaeler believes that the solution he sprayed on the carpeted areas on September 16, 1994 should have dried in no more than an hour. He confirms that Mrs. Tipton opened the windows and turned on the fans while he was still spraying. He had told her to do this the first time. As Mr. Kaeler understands it, Terminix's policy is that occupants of property being broadcast sprayed for insects should stay off the carpet being sprayed but need not vacate the structure. Dr. Ellen Thoms, an entomologist working for the manufacturer of the chemical in issue, indicates that the label instructions on containers of Dursban L.O. were intended by the company to mean that the term "area" where the chemical is being applied by broadcast spray includes not the entire structure but the immediate area of the application because of the possibility of spraying the chemical on someone. The danger is in contact with the substance through the skin or through oral ingestion, not in the odor or the fumes. In Dr. Thoms' opinion, Mr. Kaeler's application was consistent with the terms of the label, which uses the term "should" rather than the term "must". The drying time for carpet sprayed with Dursban L.O. by broadcast spray is effected by the thickness of the carpet and the relative humidity in the sprayed area. Since a greater amount of applied substance dried more quickly in the high humidity of July, in Dr. Thoms' opinion it is unlikely a smaller amount applied in September would take more than 14 hours to dry. She does not know what the climate factors were that day, however. Dr. Mangold, a technical specialist for Terminix, and an entomologist certified in all four categories of pest control, reviewed all the material evidence in this case and heard the testimony given at hearing. He has concluded that what Mr. Kaeler did was conservatively to apply a very diluted spray, usually applied at a rate of one gallon per 1,600 square feet. His one half gallon application for an 1,800 square foot house, plus outside, is an appropriate maintenance application. In Dr. Mangold's opinion, Mr. Kaeler's application in September, 1994 was consistent with the label requirements in amount, concentration and percent, and with the requirement that all other persons be out of the area being treated. He does not believe, in light of what was shown, it could have taken in excess of fourteen hours for this application to dry. In his opinion, drying should have taken between twenty minutes and an hour, and he can see no possible explanation for it having taken as long as Mrs. Tipton claims. Dr. Mangold defines the term "area treated" as being the immediate area being treated - an eighteen inch swath and some adjacent area, to-wit: the area being contacted by the spray. Mr. Lemont, a fully certified entomologist-consultant reviewed the file on this case and heard the testimony given at hearing. In his opinion, the term, "area treated" includes the contact area, not the entire structure. He believes Mr. Kaeler performed consistently with the label instructions and there was no violation. The words, "should" and "may", are interpreted in the trade as permissive and non-enforceable. Stronger words, such as "shall" and "must", are directive and enforceable. Mr. Lemont agrees that the application by Mr. Kaeler was a light application. Drying depends on humidity, but often an application dries before the operator leaves. He cannot believe this application would have taken more than two to three hours, even under the most adverse atmospheric conditions. Certainly, it would not have taken more than fourteen hours. In Lemont's opinion, the issue of how close an applicator can come to others while applying Dursban L.O. by broadcast spray is a judgement call. The issue is contact. Mrs. Tipton was not positive on the issue of Mr. Kaeler's being in the room with her, other than the kitchen, while applying the substance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT a Warning Letter not be issued to either Michael A. Kaeler or Terminix International Co., LP., as a result of Mr. Kaeler's application of Dursban L.O. at the Tipton residence in New Port Richey, Florida on September 16, 1994. RECOMMENDED this 24th day of July, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 24th day of July, 1995. COPIES FURNISHED: Robert G. Worley, Esquire Department of Agriculture Room 515, Mayo Building Tallahassee, Florida 32399-0800 James M. Nicholas, Esquire P.O. Box 814 Melbourne, Florida 32902 The Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level Tallahassee, Florida 32399-0350 Harry Hooper General Counsel Department of Agriculture Room 1302, The Capitol Tallahassee, Florida 32399-0800
The Issue The issue posed herein is whether or not the Department of Health and Rehabilitative Services' revocation of Respondent's pest control business license, operator's certificate and employee's identification is warranted based on conduct set forth hereinafter in detail as set forth in the Petitioner's revocation notice dated June 4, 1979. 1/
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the arguments and briefs of counsel and the entire record compiled herein, the following relevant facts are found. Pursuant to Petitioner's Notice of Violation dated June 4, 1979, the administrative proceeding herein commenced on December 6, 1979, on twenty-six of the thirty-nine specific violations alleged to have been committed by Respondent. The specific alleged violations are as set forth below based on a separation by complainant or victim with the alleged date of violation: On February 28, 1977, it is alleged that Respondent and/or its agents, performed pest control services for Ms. Ethel Atkinson and Ms. Loree Atkinson, 1903 East Leonard Street, Pensacola, Florida, and violated the following Administrative Code sections and/or statutes: Treated the Atkinsons' residence with fumigant gas, methyl bromide, without notifying in advance, the Escambia County Health Department, in violation of Chapter 10D-55.110(1), Florida Administrative Code. Failed to perform the fumigation of the Atkinson residence in strict accordance with the registered label directions for methyl bromide, in violation of Chapter 10D-55.111(4), Florida Administrative Code. On March 17, 1977, Respondent failed to perform subterranean termite control treat- ment for the Atkinsons, in violation of Chapter 10D-55.142(1)(b), Florida Administra- tive Code. During July, 1978, Respondent's agents and/or employees, Steven R. Foster and Gerald A. Caudill, inspected the Atkinson residence and told them that the home was infested with powder-post beetles and proposed a treatment when no such infestation existed, and thus no treatment was required, which acts constitute violations of Chapter 10D-55.104(4), Florida Administrative Code. Respondent, during times material, failed to apply for and obtain an I.D. card for Steven R. Foster, in violation of Chapter 10D-55.143(1), (2) and (3), Florida Adminis- trative Code. Respondent performed Phostoxin fumi- gation on residences when Phostoxin is not labeled or registered for residential fumi- gation, in violation of Chapters 10D-55.106(1); 10D-55.111(4) and 10D-55.144(1), Florida Administrative Code. Respondent and/or its agents, during times material but particularly during July, 1978, illegally used Phostoxin for fumigation purposes in a residential structure, in vio- lation of Chapter 10D-55.116(2), Florida Administrative Code. During July, 1978, Respondent per- formed Phostoxin fumigation without notifying the Escambia County Health Department, in violation of Chapter 10D-55.110(1), Florida Administrative Code. During July, 1978, Respondent performed Phostoxin fumigation without the knowledge and personal supervision of its certified registered operator in charge of fumigation for Killingsworth, Inc., Elmer Logan, in violation of Chapter 10D-55.108(1) and (2), Florida Administrative Code. Shumpert/Graham Case On April 22, 1977, Respondent performed services for Robert Shumpert and/or R. A. Graham of 109 Harris Street, Pensacola, Florida, by fumigation of their residence at 109 Harris Street, without informing the Escambia County Health Depart- ment, in violation of Chapter 10D-55.110(1), Florida Administrative Code. On or about April 22, 1977, Respondent fumigated the Shumpert/Graham residence with "Vikane" gas in a manner not in accordance with the label instructions, nor were occupants of the residence properly warned of the hazards, in violation of Chapters 10D-55.106(1); 10D-55.110(3); 10D-55.111(4) and 10D-55.144(1), Florida Adminis- trative Code. On or about April 22, 1977, Respondent used Phostoxin for residential fumigation for the Graham/Shumpert residence, in violation of Chapters 10D-55.106(1); 10D-55.111(4) and 10D-55.144(1), Florida Administrative Code. On or about April 22, 1977, Respondent fumigated the Graham/Shumpert Residence with Phostoxin without informing the occupants of the hazards, in violation of Chapter 10D-55.110(3), Florida Administrative Code. During approximately April 22, 1977, Respondent performed a fumigation with Phostoxin without advance notification to the Escambia County Health Department, in violation of Chapter 10D-55.110(1), Florida Administrative Code. During April 22, 1977, Respondent performed a Phostoxin fumigation without the knowledge and personal supervision of its certified operator in charge of fumigation, Elmer Logan, in violation of Chapter10D-55.108(1) and (2), Florida Administrative Code. During May 22, 1978, Respondent per- formed pest control services for Mrs. Ann Boyett of 706 North Lynch Street, Pensacola, Florida, and during the course of such treatment, through its agent and employee, Steven R. `Foster, placed Phostoxin pellets under the Boyett residence for control of powder-post beetles, in violation of Chapter 10D-55.108(1) and (2), Florida Administrative Code. Respondent used Phostoxin in resi- dential fumigation in violation of Chapter 10D-55.106(1); 10D-55.111(4) and 10D-55.144(1), Florida Administrative Code. Respondent, during May 23, 1978, released Phosphine gas during use of Phostoxin. which is highly inflammable and its use in resi- dential structures is illegal pursuant to Chapter 10D-55.116(2), Florida Administrative Code. During May 23, 1978, Respondent performed a fumigation with Phostoxin without informing the Escambia County Health Department, in violation of Chapter 10D-55.110(1), Florida Administrative Code. Respondent, during May 23, 1978, per- formed a fumigation with Phostoxin without informing the homeowner of the hazards, in violation of Chapter 10D-55.110(3), Florida Administrative Code. Respondent, during May 23, 1978, failed to apply for and obtain an employee I.D. card for Steven R. Foster, in violation of Section 482.091(1), (2) and (4), Florida Statutes, and Chapter 10D-55.143(1),(2) and (3), Florida Administrative Code. Based on the foregoing activities, it is alleged that Respondent violated his duties as a certified operator in charge of the pest control activities of a licensee, in violation of Section 482.152(1), (2),, (4), and (5), Florida Statutes. During July 12, 1978, Respondent performed pest control work for John A. Sanders, Jr. , at his residences located at 912, 914 and 916 North 63rd Avenue, Pensacola, Florida. During the course of this treatment it is alleged that Respondent failed to per- form the work in accordance with the label directions of any registered termiticide or by the use of methods and equipment generally suitable and accepted as good industry practice, in violation of Chapters 10D-55.106(1); 10D-55.135(2) and 10D-55.144(1), Florida Adminis- trative Code. Based on the conduct set forth in the paragraph next above, it is alleged that the Respondent violated the duties of a certified operator in charge of pest control activities of a licensee, in violation of Section 482.152(1), (4), and (5), Florida Statutes. The Hinote Case During December 21, 1978, it is alleged that Respondent's agent Wayne Thompson, repre- sented to Ms. Lee Hinote of 1405 East Gonzales Street, Pensacola, Florida, that wood borers were infesting her residence and that treatment was needed, when no such infestation existed and no treatment was required, in violation of Chapter 10D-55.104(4), Florida Administrative Code. Based on the alleged conduct set forth in the paragraph next above, it is alleged that the Respondent engaged in conduct violative of Section 482.152(1), (2), (4), and (5), Florida Statutes. William E. Grimsley, Supervisor, Environmental Health Unit of the Escambia County Health Department, is the person in charge of inspecting and ensuring that within the county no violations of Chapter 10D-55.110(1), Florida Administrative Code, occur. All pest control companies operating in the county, including Respondent, are required to notify the County Health Department when a fumigation is to take place and the approximate time that the "gas" will be released. Fumigation notices are required to be submitted to the Health Department twenty-four hours in advance of the fumigation. Thee Health Department inspects the premises to be certain that the tent is properly sealed, that there is first aid equipment readily available and to generally ensure that the operator is qualified to perform the fumigation Mr. Grimsley recalled having received no fumigation notices from Respondent. Specifically, Mr. Grimsley testified that his office, the County Health Department, received no fumigation notice from Respondent for the Atkinson residence during April of 1977, for the Sumpert residence during times material, or for Ann Boyett's residence during the period of May, 1978. During May of 1978, Mr. Grimsley, through the Escambia County Health Department, received a complaint from the Atkinsons regarding the pest control services performed by Respondent. Mr. Grimsley referred Ms. Atkinson to Mr. William E. Page, Petitioner's agent in the Office of Entomology, Department of Health and Rehabilitative Services. During October of 1978, Mr. William Page and Mr. William Grimsley removed a sample of a white powdery substance found in the Atkinsons' attic. The sample was analyzed by Chris Bush, a chemist employed by Petitioner, who determined that the substance was a residue of Phostoxin. (Petitioner's Exhibits 32 and 40.) The Atkinson residence was treated by Respondent during, April of 1977. As stated, the Atkinsons complained to the Health Department during May of 1978, approximately fifteen months after the treatment. Samples of a white powdery residue found in the attic were analyzed by Petitioner's chemist during. October, 1978, and were determined to be a Phostoxin residue. Respondent and its agents and employees denied treating the Atkinson residence with anything other than Lindane and Methyl Bromide. During late 1978, Messrs. Grimsley and Page visited the residence of Mrs. Ann Boyett of 704 North Lynch Street, Pensacola, Florida. Mr. Page removed two prepac Phostoxin strips from underneath the Boyett residence. Steven Roy Foster (Moneyhun) also known as Steven Roy Foster was employed by Respondent from March of 1978 through July of 1978. Foster was hired by Respondent to perform mechanical work, although he assisted in tapings for fumigations and assisted Respondent's pest control operators. Foster placed two prepac Phostoxin strips under the Boyett residence. Foster was assigned to do the work by Respondent's agent, Frank Ancarrow, and was paid by the Boyetts for the work. (Petitioner's Exhibit 13.) Respondent and its agents, Frank Ancarrow and former employee, Elmer Logan, denied any knowledge, authorization or other assistance in the use of the treatment of residential structures with Phostoxin. Phostoxin is not authorized for the use in residential construction according to its label use restrictions. (Petitioner's Exhibit 12.) Respondent treated the Graham-Shumpert residence at 109 Harris Street, Pensacola, Florida, for subterranean termites and old house wood borers during late April, 1977. The old house wood borers were located in the attic and, according to Respondent, were treated by him using a "spot" fumigation treatment of Methyl Bromide. 3/ Approximately two years later, Mr. Shumpert detected traces of termites again swarming in the kitchen of his home and called Frank Roberts of Roberts Pest Control Company to check on the termites. Mr. Roberts inspected the Shumpert residence and noted what he found in the attic, a residue of suspected Phostoxin. Mr. Roberts engaged the services of a private laboratory in Pensacola, Florida, to analyze the residue of the substance he found in the Shumpert residence. The sample was analyzed and, according to the lab analysis, the residue of the sample was Phostoxin. Gail Thompson, a former employee of the Respondent, testified that he treated the Shumpert residence for termites and that he assisted in taping the house in preparation for the fumigation which was performed by Respondent Billy F. Killingsworth. Respondent testified that he treated the Shumpert house by a "spot" fumigation using Methyl Bromide as a localized treatment to eradicate the infestation which was concentrated on a few joists. Respondent's testimony to the effect that the infestation was localized to a few joists conflicts with the testimony of witnesses William Page, Carlton Layne and John Boitnott, who testified that the damage and infestation was severe and widespread. Based on the extended hiatus between the treatment by Respondent and the inspections by Messrs, Page, Layne and Boitnott, it cannot be concluded that the condition of the premises as found by Respondent, continued unchanged until the subsequent and, of course, more recent visit by the investigating officials. (Petitioner's Exhibit 3.) When the Shumpert residence was treated, it was under contract to be sold by Mims-Snow Realty of Pensacola, Florida. Prior to sale, it was necessary to receive an FHA wood infestation report which admittedly, as testified to by Respondent's secretary and assistant, Joyce Beard, was filed incorrectly using information from another wood infestation report for another property. (Petitioner's Exhibits 6 and 9.) According to that report, Vikane gas was used as a fumigant, which, if used according to the petitioner's licensing administrator, Warren T. Frazier, was not applied in accordance with the label instructions of that fumigant. 4/ On or about July 12, 1978, Mr. John A. Sanders entered into a contract with Respondent for pest control treatment of three houses that he owned on North 63rd Avenue, Pensacola, Florida. (Petitioner's Exhibits 17, 15 and 19.) Respondent contracted to control household pests, fleas, etc. in the Sanders' residences for a total price of $520.00. According to 14r. Sanders, the treatment period lasted approximately twenty minutes and no trenches were dug, no drilling took place and there was no treatment for powder-post beetles contrary to his payment and contract for these services. Mr. Sanders filed a complaint with local and state officials and executed a complaint form. (Petitioner's Exhibits 20 and 21.) Respondent's former employee, Steven Foster, was assigned the task of treating the Sanders' residences. Foster acknowledged that he inadequately and incompletely treated the Sanders' residences for termites and powder-post beetles. Testimony of Warren Frazier, John Sanders and William Page corroborate Foster's testimony to the effect that the treatment was substandard and was not in accordance with the label directions of any registered termiticide. Additionally, the treatment fell below what is generally accepted as good industry Practice. Respondent testified that the Sanders' residences were treated by Carl Heichel. Heichel was unavailable and did not testify in this proceeding. Opal Lee Hinote of 1405 East Gonzalez Street contacted Respondent during December, 1978, for an annual renewal inspection of her residence. Respondent's agent, Wayne Thompson, performed the annual inspection. (Petitioner's Exhibit 27.) Additionally, Respondent's agent, Thompson, represented to Ms. Hinote that old house wood borers were affecting her residence and that treatment was needed. Thompson discussed a treatment price of $175.00, which was reduced, after some negotiation, to $125.00. Ms. Hinote, being suspicious, called Elmer Logan, Respondent's former employee who presently operates Fireman Pest Control, to inspect her premises. Mr. Logan advised Ms. Hinote that there were no wood borers in her house but merely old traces of wood borer activity. Ms. Hinote, still concerned, contacted Petitioner's agent, William Page, who inspected the house and confirmed Logan's report that there was no present wood horer activity to her residence. (Petitioner's Exhibits 28, 29 and 30.) Respondent's position on Ms. Hinote's complaint is that it is difficult to discern whether or not there is active or inactive wood borer activity and that Thompson, being a sales representative only for a short time when he made the inspection, was unable to discern whether or not the activity signs were evidences from old damage by powder-post beetles and wood borers. 5/ Mr. F. R. Du Chanois is Petitioner's supervisor for pest control records and has in excess of twenty-six years experience as an Entomologist. Mr. Du Chanois, who is Petitioner's records custodian, also receives and assigns complaints for investigation. Based on the complaints received about Respondent, Mr. Du Chanois directed an Inquiry to the manufacturer respecting the application of Phostoxin for residential application. Mr. Du Chanois determined and received confirmation that there are presently no registered uses for residential application for Phostoxin fumigations to control wood destroying insects. (Petitioner's Exhibit 42.) According to Du Chanois, the responsibility for obtaining an I.D. card is jointly placed on the operator and the employee. See Section 482.091(1) and (2), Florida Statutes. Billy F. Killingsworth, the certified operator and owner of Killingsworth pest control business, has been in business for approximately eleven years in Escambia County. Respondent has a B.S. degree in Entomology from Auburn University and is certified in all areas of pest control, i.e,. general household pest and rodent control, subterranean termites, lawn and ornamental, and fumigation. According to Respondent, it is very difficult to determine whether powder-post beetles are in an active or inactive status. Respondent uses Lindane as a residual treatment for the eradication of beetles and Methyl Bromide as a fumigant to control beetles, dry wood termites and rodent control. Respondent only uses Phostoxin as a commodity fumigant since it is only labeled for such uses and since it is one-half to two-thirds more expensive than other registered fumigants. Respondent, Billy F. Killingsworth, is the only certified operator within his employ in Escambia County who is registered to use Phostoxin. (Testimony of Billy F. Killingsworth.) According to the worksheets, Tommy Phelps was the card holder assigned to perform the work for the Atkinson job. Respondent performed the fumigation, using oil based Lindane in the attic. Respondent acknowledged that he erroneously issued a termite contract for the Atkinsons. Respondent considers a "spot" fumigation as being superior to a complete or tent fumigation, in that it permits a larger concentration of gas to be infused to the exposed area and is least expensive. Respondent has performed less than ten structural fumigations since he has been in business. (Respondent's Exhibits 4, 5 and 6.) Respondent employed Steven Roy Foster (Moneyhun) to help in repairing hydraulic pumps, refrigeration equipment and to do mechanical and other minor maintenance tasks based on his (Foster's) prior experience. Respondent denied that Foster was assigned to assist or perform fumigations within the short period that Foster was employed by Respondent. Respondent acknowledged that the FHA Wood Infestation Report given to Ms. Graham of Mims-Snow Realty was erroneously issued based on the realtor's rush to sell the property. (Respondent's Exhibit 8.) Respondent performed the fumigation for the Shumpert residence and placed a warning sign on the front and back doors of the house. At the time of the fumigation, the house was unoccupied. Respondent used Methyl Bromide to fumigate the Shumpert residence and had no explanation as to the presence of Phostoxin in the attic of the Shumpert residence. Respondent assigned Carl Heichel to do the termite and beetle treatment for the Boyett residence. (Respondent's Exhibit 9.) Lindane and Heptachloride were used for the treatment. Heichel left Respondent's employ approximately October of 1978. According to Respondent, Heichel was also assigned to perform the work for the Sanders' houses on 63rd Avenue. (Respondent's Exhibit 10.) Respondent testified that he attempted to correct the problems in connection with the Sanders residence but was unable to arrange a mutually convenient schedule to resolve the matter. Wayne Thompson was assigned to perform the pest control treatment for the Hinote residence. Thompson had only been employed approximately six months when he was assigned to inspect the Hinote residence. Respondent noted that it was a mistake not to apply for an I.D. card for Steven R. Foster. He acknowledged that there was no reason not to apply for an I.D. card for Foster; however, the fact that Foster was hired to do mechanical work delayed his decision to apply for or to obtain an I.D. card for Foster. Respondent treated the Shumpert residence using Methyl Bromide which was registered and labeled "Dowfume MC-2". 6/ Respondent acknowledged that it is unlawful to use a registered pesticide in a way which is inconsistent with the label. He also acknowledged that certified operators are charged with the duty of using fumigants in accordance with the registered labels consonant with the structure to be fumigated. (Testimony of Billy F. Killingsworth.) Several of Respondent's former employees who were employed during times material herein testified that they were unaware of any illegal uses of Phostoxin by Respondent and/or its employees. These employees included J. D. White, Sr., of Sterling, Illinois; Gerald Caudill of Evansville, Indiana; Frank Ancarrow; Elmer Logan and Gail Thompson. J. D. White, Sr. , of Sterling, Illinois, was formerly employed by Respondent from June, 1973, through the end of 1974. Mr. White worked for Frank Roberts, a competitor of Respondent during the period July, 1976, through August of 1977. Mr. White was party to conversations between Frank Roberts to the effect that he was; "out to get" Respondent and was privy to conversations with Mr. Roberts to the effect that Roberts had communicated with various Federal regulatory and state agencies to register complaints about Respondent and other competitors in the area. White testified that he was offered money to spray the yards of customers who were on annual contract with Respondent using the wrong chemicals to destroy the grass. Gerald Caudill presently is employed by Economy Pest Control of Evansville, Indiana. He was formerly employed by Respondent from approximately March, 1978, through approximately April of 1979. Caudill did a localized treatment for powder-post beetles for the Atkinson residence on Leonard Street in Pensacola, Florida. Caudill was shown by the Atkinsons, signs of what he viewed to be an active infestation in the attic of the Atkinson residence and advised them that they needed treatment in their attic. Frank Ancarrow, Respondent's sales manager, has been employed in that capacity for approximately four years and has approximately eight years' experience with another pest control company. Mr. Ancarrow is certified in all categories except fumigation. Messrs, Ancarrow and Thompson prepared the Shumpert residence for fumigation. The Shumpert residence was treated by Gail Thompson for subterranean termites and the Respondent fumigated the attic for old house wood borers. Frank Ancarrow was shown the statement given in an affidavit taken by Carlton Layne of the Environmental Protection Agency (EPA) to the effect that Gail Thompson was in charge of the fumigation of the Shumpert residence. Mr. Ancarrow testified that that was a mistake and that Thompson only prepared the house for fumigation. (Petitioner's Exhibits 5 and 26.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, Recommended: That the Respondent's Pest Control Operator's Certificate Number 1306; Respondent's Pest Control Employee Identification Card Numbers 5832 and 5843 and Respondent's Pest Control Business License Number 78 be SUSPENDED for a period of two (2) years. In all other respects, the June 10, 1980 Recommended Order previously entered herein remains unchanged. RECOMMENDED this 7th day of July, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jon W. Searcy, Vsquire Department of IIIS 160 Governmenta] Center Pensacola, Florida 32522 Larry Parks, Esquire Murphy, Beroset and Parks 216 Government Street Pensacola, Florida 32501 Alvin J. Taylor, Secretary Department of IRS 1323 Winewood Boulevard Tallahassee, Florida 32301 ================================================================= STIPULATION TO CONSENT FINAL ORDER =================================================================
