The Issue Whether Respondent, Elite Inspectors, LLC, d/b/a EliteInspectors.com, engaged in the unlicensed practice of pest control, in violation of sections 482.071, 482.161, and 482.165, Florida Statutes (2015)1/; whether Respondents, Tamer Kekec and Stephen Franco, engaged in pest control services in violation of sections 482.071, 482.165, and 482.191; and, if so, what penalties should be imposed against Respondents.
Findings Of Fact The Parties Petitioner, Department of Agriculture and Consumer Services (Petitioner or Department), is the state agency charged with administering the Structural Pest Control Act, chapter 482, Florida Statutes (the Act). Respondent, Elite Inspectors, LLC, d/b/a EliteInspectors.com (Elite), is a Florida Limited Liability Company, whose principal place of business is 9951 Atlantic Avenue in Jacksonville, Florida. Elite is a residential structural inspection company offering home inspections in northeast Florida and southeast Georgia. Elite has never been licensed by the Department to engage in the business of pest control, pursuant to section 482.071. Respondents, Tamar Kekec and Stephen Franco (the Individual Respondents), are the managers, and only members, of Elite, which was formed in 2004. Pest Control Activities Petitioner is authorized to issue licenses to qualified businesses to engage in the business of pest control in this state. See § 482.071(1), Fla. Stat. Petitioner is likewise authorized to issue employee identification cards to persons employed by licensees to perform pest control services. See § 482.091, 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). See § 482.165(1), Fla. Stat. "Pest control" is broadly defined in section 482.021(22) to include: (b) The identification of or inspection for infestations or infections in, on, or under a structure, lawn, or ornamental; * * * (e) 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. Thus, both the conduct of wood-destroying organism (WDO) inspections, and advertising for the conduct of WDO inspections, are “pest control” activities regulated by the Act. 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 is further authorized to take disciplinary action against licensees and identification cardholders, pursuant to section 482.161, and to issue fines against persons who engage in the unlicensed practice of pest control, pursuant to section 482.165. WDO Inspections by Elite Prior to April 10, 2014 Between January 3 and April 10, 2014, Elite, through its member Mr. Franco, performed 99 WDO inspections, in addition to residential structural inspections, for its customers. During that timeframe, Elite billed its customers $6,850.00 for WDO inspections performed by Mr. Franco. During that same timeframe, Mr. Kekec performed 49 WDO inspections, in addition to residential structural inspections for Elite customers, billing them a total of $6,290.00. All customer payments for WDO inspections conducted by the Individual Respondents were deposited into Elite’s business banking account with BBVA Compass Bank. DL and the Individual Respondents Florida Quality Services, Inc., d/b/a DL (DL), is a Florida corporation licensed to engage in the business of pest control, and whose business address is 7008 Bayard Road, Ft. Pierce, Florida. William R. Miles is DL’s president and holds a pest control operator’s certificate, pursuant to section 482.111. In the language of the licensing statute, Mr. Miles is the Certified Operator in Charge (COIC) at DL. Every employee who performs pest control for a licensee must have an identification card. See § 482.091(1)(a), Fla. Stat. On April 5, 2014, Mr. Miles applied to Respondent for pest control employee identification cards for Respondents Kekec and Franco. In the application, Mr. Miles stated that the Individual Respondents would begin conducting WDO inspections for DL on April 22, 2014. The Individual Respondents signed a portion of the application certifying that they were not “currently employed by any other pest control licensee.” They also certified that they were previously employed by another unnamed licensee with a termination date of April 21, 2014. Mr. Kekec was “employed” by a number of pest control companies concurrent with his operation and management of Elite, including FK Pest Control from January to March 2014, DL Pest Control from June 2011 to December 2013, CS Pest Control from April 2009 to May 2011, TI Pest Control for an unspecified period, and A1 Pest Control from May 2005 to October 2006. Curiously, all these companies had the same business address as DL--7008 Bayard Road, Ft. Pierce, Florida.2/ The Individual Respondents were issued pest control employee-identification cards by the Department on April 10, 2014, identifying them as employees of DL. In August 2014, DL applied to renew its license for the 2014-2015 license year, listing the Individual Respondents as employees to be issued identification cards as WDO inspectors for DL. DL and Respondent Elite Following issuance of employee-identification cards to the Individual Respondents, Elite continued to conduct WDO inspections, as well as residential inspections, for its clients, and bill those clients for WDO inspections. All payments received by Elite from its customers for whom it conducted WDO inspections were deposited into Elite’s business bank account. Between January 3 and December 31, 2014, Elite conducted over 300 WDO inspections for its customers, billing them in excess of $48,000 for said inspections. Elite continued to conduct WDO inspections for its customers, bill its customers for those WDO inspections, and accept payment for those WDO inspections, in 2015 as it had in 2014. Elite obtained customers through its website, and through referrals from both previous customers and real estate agents. Elite’s customers scheduled their home and WDO inspections directly with Elite through Mr. Kekec or Mr. Franco. Elite set the price per inspection based upon the size, age, and the type of construction of the customer’s property. Elite provided the ladders, flashlights, screwdrivers, extension probes, and, with the exception of a short period in 2015, the vehicle, used by the Individual Respondents to conduct WDO inspections. When Elite did not provide the vehicle for a brief period in 2015, Elite used a vehicle personally owned by Mr. Kekec. Elite also paid the fuel cost to travel to and from inspections of customer properties, which is Elite’s only operating expense. After issuance of employee-identification cards to the Individual Respondents, Elite entered into an arrangement with DL by which Elite would pay DL $38 for each WDO inspection conducted by the Individual Respondents. In turn, DL paid the Individual Respondents $10 for each WDO inspection they conducted. For the 2014 tax year, DL paid Mr. Kekec $1,160 and issued him a W-2 wage and tax statement. That same year, DL paid Mr. Franco $1,130 and issued him a W-2 wage and tax statement. For each WDO inspection conducted, the Individual Respondents prepared and signed a WDO inspection report on a form required by the state. Each inspection report listed DL as the inspection company. Each report was reviewed by Mr. Miles after-the-fact in his office in Ft. Pierce. Mr. Miles testified that he provided constructive criticism via email once a month to his WDO inspectors regarding completion of the reports. However, if an inspector had completed inspection reports for three consecutive months, Mr. Miles suspended monthly review of their reports and only conducted “spot checks.” Respondents introduced no document to evince review and criticism of any report completed by either Mr. Kekec or Mr. Franco. Whether DL provided ongoing training in WDO inspections to the Individual Respondents was a contested issue at hearing. Respondents attempted to introduce a composite exhibit consisting of two manuals, two posters of termites, and a “flip-book” produced by University of Florida. When asked whether DL provided the manuals to Mr. Kekec, he testified, “[W]ell, the last version of the manuals, I believe it was provided in 2013, but I think there was four or five different versions of it. It’s been updated over the years.” The evidence was not clear whether DL provided the manuals to the Individual Respondents or they were obtained by other means. Even if the manuals were provided by DL to the Individual Respondents, there is insufficient evidence to find that DL provided any ongoing relevant training to the Individual Respondents. The parties stipulated that the Individual Respondents met the training requirements to qualify to be identification cardholders. The only equipment issued to the Individual Respondents by DL for their use in conducting WDO inspections was a magnifying glass. Elite Website During all times relevant hereto, Elite maintained a website whose address was www.eliteinspectors.com. Elite noted “WDO Inspections” as one of its services and areas of expertise. Under “About Us” on its website, Elite stated, “In addition to home inspections, we do . . . wood destroying organism (termite) inspections (performed by DL employees).” With regard to WDO inspections, the website included the following: Our inspectors are State Certified WDO inspectors with several years of experience and meet all of the Florida continuing education requirements. We perform the WDO inspection while performing the home inspection so one additional step can be eliminated, which saves time and money. WDO inspections are performed by DL employees. In the “Inspector Biographies” section, the website reported that Mr. Franco was a “Certified Pest Operator- Termite” and that Mr. Kekec was “a licensed WDO inspector under DL pest services.” At final hearing, Mr. Kekec was unable to identify any reason why Elite would want to identify Mr. Franco to its customers as a licensed pest control operator. The website did not identify what DL was or its relationship with either Elite or its managers, Mr. Franco and Mr. Kekec.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order finding: Respondents, Elite Inspectors, LLC, d/b/a EliteInspectors.com, Tamer Kekec, and Stephen Franco, violated sections 482.071(1) and 482.165(1), by engaging in the business of pest control in 2014 and 2015 without a license from the Department, and impose an administrative fine of $4,500 against the Respondents, jointly; Respondent, Elite Inspectors, LLC, d/b/a EliteInspectors.com violated section 482.161(1)(h), by engaging in misleading advertising relating to pest control, and issue a warning letter thereto; and, Respondents, Tamer Kekec and Stephen Franco, violated section 482.091(2)(a), by conducting WDO inspections in 2014 and 2015 as independent contractors to DL, and revoking the Individual Respondents’ identification cards, pursuant to section 482.161. DONE AND ENTERED this 22nd day of March, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 22nd day of March, 2016.
The Issue Whether Petitioner should be issued a Pest Control Identification Card pursuant to Chapter 482, Florida Statutes. Petitioner James C. Melvin appeared at the hearing without counsel. After being advised of his rights under Chapter 120, Florida Statutes, he indicated that he understood such rights and did not desire to be represented by counsel.
Findings Of Fact Petitioner made application for a Pest Control Identification Card through Guardian Termite and Pest Control Company of Tampa, Florida, a certified operator, on February 13, 1978. By letter of March 2, 1978, to that organization, the Respondent's Director, Office of Entomology, advised that the application was denied because of Petitioner's previous noncompliance with Chapter 482, Florida Statutes, and Pest Control Regulations of the then Florida State Board of Health. (Exhibits 7, 8) Petitioner was employed by several pest control firms in Tampa during the period 1956 to 1962, and 1964 to 1965, during which periods he held a Pest Control Identification Card issued by Respondent. (Testimony of Bargren) On December 12, 1962, Petitioner was found guilty of violating State Board of Health structural pest control rules in the County Judges Court of Hernando County and sentenced to $15.00 costs and a suspended five-day confinement. On June 21, 1967, Petitioner pleaded guilty to a pest control violation in the Criminal Court of Record in and for Hillsborough County, Florida, and was sentenced to pay a fine of $200.00 or be confined in the county jail at hard labor for a period of sixty (60) days. Again, on September 11, 1967, in the Criminal Court of Record in and for Polk County, Florida, Petitioner pleaded guilty to engaging in structural pest control without a license and, on December 8, 1967, was sentenced to pay a fine of $200.00 or be confined in the county jail for a term of ninety days. (Exhibits 1, 4, 5)
Recommendation That the application of James C. Melvin for a Pest Control Identification Card be denied. DONE and ENTERED this 1st day of June, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: William Park, Esquire W. T. Edwards Facility 4000 West Buffalo Avenue Fourth Floor Tampa, Florida 33614 James C. Melvin 1310 West Rambla Street Tampa, Florida 33612 Steven W. Huss, Esquire Central Operations Services Department of HRS 1317 Winewood Boulevard Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES JAMES C. MELVIN, Petitioner, vs. CASE NO. 78-645 DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, STATE OF FLORIDA, Respondent. / ADMINISTRATIVE ORDER A hearing was held in the above styled administrative cause before a Hearing Officer Thomas C. Oldham, Florida Division of Administrative Hearings, on May 23, 1978, upon the Petition of James C. Melvin which contested the denial of his application for a pest control identification cared through Guardian Termite and Pest Control Company of Tampa, Florida. Present at the hearing were the Petitioner, James C. Melvin and William M. Park, Attorney for the Department of Health and Rehabilitative Services, District VI. The Department of Health and Rehabilitative Services has reviewed the recommended order by Thomas C. Oldham, Hearing Officer, and adopts said order as follows:
The Issue Whether or not the Petitioner, Kenneth F. Feathers, d/b/a Feathers Exterminating Company, is entitled to the renewal of an emergency pest control certificate in accordance with the terms and conditions of Subsection 482.111(10), Florida Statutes.
Findings Of Fact This cause comes on for consideration based upon the Respondent, State of Florida, Department of Health and Rehabilitative Services' refusal to renew the emergency pest control certificate of Kenneth F. Feathers, d/b/a Feathers Exterminating Company. On November 6, 1978, a representative of the Respondent wrote to the Petitioner and indicated the basis for denying the renewal request, after which the Petitioner requested a formal hearing pursuant to Section 120.57, Florida Statutes. The testimony in the course of the hearing revealed that the Petitioner, Kenneth F. Feathers, d/b/a Feathers Exterminating Company, is involved with the structural pest control business. Kenneth F. Feathers, the licensee, is the holder of a special identification card under the authority of Section 482.151, Florida Statutes. He does not hold a pest control operator's certificate as described in Section 482.111, Florida Statutes. In the years 1977 and 1978 the Petitioner had listed at various times, the names of Wayne Neal Pearce and Michael D. Brennan as being the certified pest control operators in charge of all categories of pest control being carried out by Feathers Exterminating Company. In fact, Pearce and Brennan, though certified as pest control operators and listed by the Petitioner as being the certified operator in charge of the Feathers Exterminating Company, were in fact employed in Gainesville, Florida, in other primary occupations which they worked contemporaneously with the work day of the Feathers Exterminating Company. Under the arrangement they were merely on call and never actually performed supervisory duties for the Petitioner. Mr. Pearce was a police officer with the Gainesville, Florida, Police Department and subsequently opened up his own pest control business in Gainesville. Mr. Brennan was and is primarily employed by Clay Electric Company. When these discoveries were made by employees of the Respondent, the Petitioner was advised that neither Mr. Pearce nor Mr. Brennan could serve in the capacity as certified pest control operators for the Feathers Exterminating Company, in view of the fact that these individuals were not employed on a full-time basis by Feathers Exterminating Company, in the sense of being in charge of all categories of pest control. After these discoveries on the part of the Respondent, the Petitioner requested an emergency pest control certificate under authority of Subsection 482.111(10), Florida Statutes, and this emergency certificate was granted. That initial request occurred sometime in October, 1978. On October 28, 1978, the Petitioner requested a renewal of the emergency pest control certificate which brought about the denial which is the issue in this hearing. At present and during the time for which the original emergency certificate had been granted and a renewal requested, the Petitioner does not and did not have a certified pest control operator in charge of the categories of pest control conducted by Feathers Exterminating Company. Both Pearce and Brennan have terminated their involvement with the Feathers Exterminating Company, even in an advisory capacity, and the Petitioner's efforts at arranging for a replacement certified pest control operator have not been successful. This has been the outcome notwithstanding the long-term efforts on the part of the Respondent, beginning in 1975, to assist the Petitioner in complying with the requirements for having a certified pest control operator in charge of the Petitioner/licensee's business activities conducted under Chapter 482, Florida Statutes. In view of these facts, the Petitioner is not entitled to a renewal of the emergency pest control certificate. Subsection 482.111(3), Florida Statutes, states: "Each category of each licensee shall be in the charge of a certified operator who is certified for the particular category..." Under the current statement of the law found in Section 482.152, Florida Statutes (1978), whose effective date was October 1, 1978; for the business activity of the licensee to be in the charge of a certified operator, it is necessary for that certified pest control operator to fulfill the duties set forth in this section. Section 482.152, Florida Statutes (1978), contained the following language: "Duties of certified pest control operator in charge of pest control activities of licensee.--A certified operator in charge of pest control operations of a licensee shall be a Florida resident whose primary occupation is in the structural pest con trol business, who is employed on a full time basis by the licensee, and whose principal duty is the personal supervision of and participation in the pest control operations of the licensee as the same relate to the following: ..." It can be seen by the language set forth in this Section 482.152, Florida Statutes, that neither Pearce nor Brennan would qualify as certified pest control operators for the benefit of the Petitioner, because they either do not have their primary occupation in the structural pest control business, and/or are not employed on a full-time basis by the Petitioner and do not have their principal duties as one of personal supervision and participation in the pest control operations of the Petitioner, even if those individuals consented to continue their prior arrangement with Feathers. Nevertheless, the Petitioner might be entitled to an emergency certified pest control operator's certificate if provisions of Subsection 482.111(10), Florida Statutes, could be satisfied; however, the Petitioner has failed to demonstrate that he has any reasonable expectation of hiring a certified pest control operator who may fulfill the requirements of Section 482.152, Florida Statutes, in terms of the duties incumbent on a certified operator through whom the licensee intends to transact business in accordance with the requirements of Section 482.111, Florida Statutes. In addition, the testimony clearly demonstrated that the Petitioner at one time was using the certificates of Pearce and Brennan to secure or keep his license at a time when Pearce and Brennan were not in charge of the pest control activities, and the Petitioner was thereby in violation of Subsection 482.121(2), Florida Statutes, which violation in turn would constitute a sufficient ground for denying the renewal of the emergency pest control operator's certificate. This ground for denial is authorized by Subsection 482.161(1), Florida Statutes, which states that a license renewal may be denied on the basis that a Provision of Chapter 482, Florida Statutes, has been violated. In summary, the renewal of the emergency certified pest control operator's certificate should be denied because the Petitioner has failed to give sufficient reasons for such renewal and because the Petitioner, by violating Subsection 482.121(2), Florida Statutes, has given the Respondent an affirmative ground for such a denial under provision Subsection 482.161(1), Florida Statutes. (At the conclusion of the hearing the Petitioner indicated his intention to stand for an examination under Chapter 482, Florida Statutes, which would allow him to obtain a pest control operator's certificate that would allow him to operate his business in those categories which he desired to be employed in. On March 22, 1979, the attorney for the Respondent informed the undersigned that Mr. Feathers had successfully passed those portions of the examination which would allow him to obtain a certificate to operate in the areas of lawn and ornamental pest control and general household pest control. On this occasion, Mr. Feathers was not successful in passing the portion of the examination involved in termite pest control. It would therefore appear that the Petitioner is entitled to a certificate to operate in the fields of lawn and ornamental pest control and general household pest control, after the payment of the appropriate fees. Under these circumstances, the Petitioner would not be entitled to operate in the area of termite pest control in the sense of being the holder of such a certificate and in keeping with the undersigned's impression of this case, the affect of this Recommended Order would be a recommendation that the Petitioner not be granted a renewal of his emergency pest control operator's certificate in the termite pest control specialty.)
Recommendation It is recommended that the Petitioner's request for the renewal of his emergency pest control operator's certificate be DENIED. DONE AND ENTERED this 22nd day of March 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1979. COPIES FURNISHED: Mr. Kenneth F. Feathers Feathers Exterminating Company 1527 Northeast 8th Avenue Ocala, Florida 32670 Joseph E. Hodges, Esquire District III Legal Counsel Department of Health and Rehabilitative Services 2002 Northwest 13th Street Gainesville, Florida 32601
The Issue Whether Respondent committed the violations set forth in the Administrative Complaint, as amended and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is an agency of the State of Florida charged with regulating the operation of the pest control industry pursuant to Section 482.032, Florida Statutes. At all times material to this case, Clinton Killingsworth was the owner and Certified Operator in Charge (COIC) of Environmental Security of Okaloosa, Inc., a licensed pest control company in Cantonment, Florida. Counts 4 and 6 2. Counts 4 and 6 of the Administrative Complaint allege as follows: Count 4 During an inspection on July 11, 2003, the Department found that Environmental Security of Okaloosa operated an unlicensed business location at 9100 Hamman Avenue, Pensacola, at which sales solicitations were made and remuneration received. This is a violation of Chapters 482.071(1) and (2), Florida Statutes. Count 6 During an inspection on July 11, 2003 the Department found that Environmental Security of Okaloosa phone numbers terminated in an unlicensed location as 9100 Hamman Avenue. This is a violation of Chapter 5E-14.142(3)(b). Environmental Security of Okaloosa, Inc., d/b/a Environmental Security, is physically located at 4141 Pine Forest Road in Cantonment, Florida, and is listed at this address on its application for business license filed with the Department. Cantonment is located in Escambia County near Pensacola, Florida. Two other pest control companies, Killingsworth Environmental, Inc., and Atlas Termite and Pest Control of Cantonment, Inc., are located at the same address. On July 11, 2003, the Department conducted an inspection of a company called Home Services Marketing and Management, LLC, (hereinafter Home Services) which is located at 9100 Hamman Avenue in Pensacola. Clifford Killingsworth and Clinton Killingsworth2/ are the managers of Home Services. On March 26, 2002, entered into a Management and Marketing Agreement with Home Services, executed by Clinton Killingsworth on behalf of Environmental Security of Okaloosa and by Clifford Killingsworth on behalf of Home Services. Since that agreement was signed, the telephone number for Environmental Security of Okaloosa listed in the local telephone directory terminated at Home Services. Home Services also answers calls for Killingsworth Environmental, Inc. and Atlas Exterminating. Home Services employees do not make "cold calls" to new customers. They receive calls from existing customers. They contact customers with active accounts to set up renewals. They also contact homeowners whose homes were treated during construction and whose initial accounts were with the builder of the home. If a new customer calls, a Home Services employee answers the call, gets the contact information from the potential new client, and then calls the appropriate technician who would then call or visit the potential customer. The appropriate technician is generally determined by the geographic location of the caller. While a Home Services employee might send a preprinted contract to the technician to take to the job site or mail a contract to a customer, Home Services does not enter into any contract to perform pest control services. No pest control trucks or chemicals are stored at Home Services. Home Services also has a payment processing component. Home Services sends bills to pest control customers which instruct customers to make out the check to the appropriate pest control company, not to Home Services. Payments from customers for pest control services are deposited into the account of the appropriate pest control company. No evidence was presented that 9100 Hamman Avenue is an advertised permanent location of Environmental Security of Okaloosa from which business was solicited, accepted, or conducted. After the July 11, 2003, inspection of Home Services, Clinton Killingsworth took steps to get Home Services licensed as a pest control company. Mr. Killingsworth did this because it was his understanding that the Department took the position that Home Services was in the business of practicing pest control services. He employed his brother, Daniel Killingsworth, to be the required licensed person in charge, and contacted several insurance companies to obtain the required insurance. He had difficulty obtaining the required insurance since Home Services does not offer pest control services. Despite these difficulties, Home Services was issued a license in December 2003. Count 5 Count 5 of the Administrative Complaint, as amended, reads as follows: During an inspection on July 16, 2003, the Department found that Environmental Security of Okaloosa, Incorporated stored pesticides at an unlicensed business location at 1830 Galvez Road, Gulf Breeze, Florida, which is a violation of Chapter 5E-14.142(5)(f) and (g), Florida Administrative Code. That in addition, the Respondent, Environmental Security of Okaloosa, Inc., regularly parked trucks containing pesticide at that location during nighttime hours, published in the 2002-2003 Bell South Telephone Directory under Pest Control Services in the yellow pages of the telephone directory, a listing for "Environmental Security", a name under which it did business, and its employees received by facsimile daily work assignments that were sent to them at that location. That the Respondent, Environmental Security of Okaloosa, Inc operated an unlicensed business location at 1830 Galvez Road, Gulf Breeze, Florida, in violation of Section 482.071(2)(a), Florida Statutes.[3/] The property located at 1830 Galvez Drive is surrounded by a fence and contains a structure. The structure is not enclosed. Both Environmental Security of Okaloosa and Killingsworth Environmental park trucks there overnight. They entered the property when the pest control employees arrived. The Department conducted an inspection of 1830 Galvez Drive on July 16, 2003. The gate to the property was locked and the trucks were locked. On the day of the inspection, the Department's inspectors found unmixed chemicals in the trucks. Clinton Killingsworth acknowledges that at the time of the inspection, company trucks parked at the Galvez Drive location overnight and pesticides were in the locked trucks. Company records or contracts are not stored at the Galvez Drive location. No customer contact takes place at or from the Galvez Drive location. The Pest Control Business License Application Form contains a space in which the licensee must respond to the following: "Designate location where pest control records and contracts will be kept and the exact location address for storage of chemicals if other than licenses business location." The applications for business license for Environmental Security of Okaloosa do not reference 1830 Galvez Road as a location where storage of chemicals occurs. Environmental Security of Okaloosa does not have a license for operating a business at this location. The yellow pages for the Pensacola area contains a listing in red ink for "Environmental Security, Inc." It lists an address of 4141 Pine Forest Road with the telephone number 473-1060. There is another reference to "Environmental Security" in black ink in smaller type which lists the address 1830 Galvez Drive with the number 916-7731.4/ Clinton Killingsworth brother, Clifford Killingsworth, arranged to have a phone line for a fax machine to be located in a trailer at the Galvez Drive location. The purpose of installing a fax line at Galvez Drive was for employees to receive daily schedule assignments. The 916-7731 number listed in the yellow pages is the number of the fax machine. Clinton Killingsworth did not request a listing for the number of the fax machine. However, the telephone company listed it in the phone book. Clinton Killingsworth has requested the local telephone company to remove the erroneous listing a number of times.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered assessing a fine against Respondent Environmental Security of Okaloosa, Inc., in the amount of $2,600.00. DONE AND ENTERED this 25th day of May, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 25th day of May, 2005.
The Issue Whether Respondents committed the violations set forth in the Administrative Complaint, as amended, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is an agency of the State of Florida charged with regulating the operation of the pest control industry pursuant to Section 482.032, Florida Statutes. At all times material to this case, Joyce Beard was the Certified Operator in Charge (COIC) of Atlas Termite and Pest Control Of Cantonment, Inc. Counts 1 and 2 Counts 1 and 2 of the Administrative Complaint allege as follows: Count 1 During an inspection on July 11, 2003, the Department found that Atlas Termite and Pest Control of Cantonment operated an unlicensed business location at 9100 Hamman Avenue, Pensacola, at which sales solicitations were made and remuneration received. This is a violation of Chapters 482.071(1) and (2), Florida Statutes. Count 2 During an inspection on July 11, 2003 the Department found that Atlas Termite and Pest Control of Cantonment phone numbers terminated in an unlicensed location as 9100 Hamman Avenue. This is a violation of Chapter 5E-14.142(3)(b). Atlas Termite and Pest Control of Cantonment, (hereinafter Atlas) is physically located at 4141 Pine Forest Road in Cantonment, Florida, and is listed at this address on its application for business license filed with the Department. Cantonment is located in Escambia County near Pensacola, Florida. Two other pest control companies, Environmental Security of Okaloosa, Inc., and Killingsworth Environmental, Inc., a/k/a KEFL, Inc., are located at the same address. On July 11, 2003, the Department conducted an inspection of a company called Home Services Marketing and Management, LLC, (hereinafter Home Services) which is located at 9100 Hamman Avenue in Pensacola. Clifford Killingsworth and Clinton Killingsworth2/ are the managers of Home Services. The record is unclear as to whether Atlas ever entered into any written agreement with Home Services. However, Home Services did perform certain services for Atlas. Atlas has a full-time employee, Angie Foster, who answers the phones and performs administrative tasks at 4141 Pine Forest Road. When Ms. Foster has to leave the office, the calls to Atlas may be forwarded to Home Services. When the phone call is forwarded, the telephone number for Atlas listed in the local telephone directory terminates at Home Services. Home Services also answers calls for Environmental Security of Okaloosa, Inc. and Killingsworth Environmental, Inc. Home Services employees do not make "cold calls" to new customers. They contact customers with active accounts to set up renewals. They also contact homeowners whose homes were treated during construction and whose initial accounts were with the builder of the home. If a new customer calls, a Home Services employee answers the call, gets the contact information from the potential new client, and then calls the appropriate technician who would then call or visit the potential customer. The appropriate technician is generally determined by the geographic location of the caller. While a Home Services employee might send a preprinted contract to the technician to take to the job site or mail a contract to a customer, Home Services does not enter into any contract to perform pest control services. No pest control trucks or chemicals are stored at Home Services. Home Services also has a payment processing component. Home Services sends bills to pest control customers which instruct customers to make out the check to the appropriate pest control company, not to Home Services. Payments from customers for pest control services are deposited into the account of the appropriate pest control company, including Atlas when appropriate. No evidence was presented that 9100 Hamman Avenue is an advertised permanent location of Atlas from which business was solicited, accepted, or conducted. After the July 11, 2003, inspection of Home Services, Clinton Killingsworth, a manager of Home Services, took steps to get Home Services licensed as a pest control company. He did this because it was his understanding that the Department took the position that Home Services was in the business of practicing pest control services. He employed his brother, Daniel Killingsworth, to be the required licensed person in charge, and contacted several insurance companies to obtain the required insurance. He had difficulty in obtaining the required insurance since Home Services does not offer pest control services. Despite these difficulties, Home Services was issued a license in December 2003. Count 4 Count 4 of the Administrative Complaint reads as follows: During inspections conducted on July 11, 2003 and July 16, 2003, the Department found that service vehicles are marked with unregistered fictitious name-Atlas Environmental Pest and Termite Control. This is a violation of Chapter 5E- 14.142(3)(a), Florida Administrative Code. During inspections, Department investigators saw trucks with the logo, "Atlas Environmental Pest and Termite Control" on the side of the trucks. When shown a photograph of those trucks, Ms. Beard believed the trucks to be Alabama trucks, not Florida trucks. Ms. Beard is also licensed in Alabama although the name of the company in Alabama is not clear from the record. The word "Environmental" is not in the name of the company, Atlas Termite and Pest Control of Cantonment, licensed to do business in Florida. Many of the trucks used by Atlas at the time of the inspection had defective brakes and transmission problems. Both Florida trucks and Alabama trucks had these problems. Many of the trucks were recalled and were taken off the road. According to Ms. Beard, the trucks shown parked in one of the photographs were parked waiting until they would be repaired. Alabama trucks were parked in the same area as the Florida trucks that were being recalled. However, when asked why a truck with Atlas Environmental Pest and Termite Control was parked at 1830 Galvez Road in Gulf Breeze, she responded that it was being used to transport chemicals to a man in that area. One photograph taken by an investigator clearly shows a man inside one of the trucks standing next to a large barrel inside the truck. The word "Environmental" is clearly written on the truck as part of the company logo. Atlas has sold some of their trucks. When asked at her deposition taken on December 9, 2004, whether Atlas still owned any trucks, Ms. Beard responded, "I believe we have a couple of smaller ones. I don't know that we have any of the larger ones left that are not up for sale." Unnumbered Count of Amended Administrative Complaint The Amended Administrative Complaint contains one additional count which reads in pertinent part as follows: Joyce Beard does not perform the duties of a certified operator as set forth in Section 482.152, Florida Statutes. There is only one other employee of Atlas and her duties are limited to clerical duties in the office. Virtually all of the actual pest control treatments done in the name of Atlas are performed by the company by which they are employed, not Ms. Beard. Atlas is in fact a shell company consisting of Ms. Beard who does not work full time and a clerical employee. She is not in charge of the pest control activities of the licensee, Atlas in the categories covered by her certificate. This constitutes a misuse of her certificate by Ms. Beard and also by Atlas, which is a violation [sic] Section 482.121, Florida Statutes. The Amended Administrative Complaint also references Section 482.152, Florida Statutes. Atlas has only two employees: Joyce Beard and Angie Foster. In addition to being Atlas' COIC, she is Atlas' only corporate officer, serving as president, secretary, and treasurer. Ms. Beard has been in the pest control business for over 30 years. Atlas does not employ any pest control technicians. Atlas subcontracts with Killingsworth Environmental, Inc., a/k/a KEFL, to perform the actual pest control services. The employees of KEFL actually go out into the field to perform the jobs that are subcontracted by Atlas to KEFL. The last time Ms. Beard performed pest control treatment was approximately 1999 or early 2000. However, she "goes behind them a lot" to check to see that the work has been done. Ms. Beard has a physical disability that interferes with or prevents her from doing pest control work. Her disability impedes her ability to climb stairs, work all day without a nap, and maintain her equilibrium. She acknowledges that she is "not as sharp as she used to be." Subcontractors for Atlas primarily provide treatment for residential customers, and some commercial customers. Atlas presently does not accept new customers, but services current customers under contract. Ms. Beard lives across the street from the business location of 4141 Pine Forest Road. She has the ability to keep in communication with technicians out in the field through a computer, fax machine, and by using mobile phones which are equipped with radios and cameras. Technicians of the subcontracting company carry radios and phones with cameras on them on which a picture can be transmitted to her on her mobile phone or via the Internet. Ms. Beard's level of participation and supervision can best be described in her words: Q: Are you currently in charge of all of the business activities of Atlas Termite and Pest Control of Cantonment, Inc.? A: Yes. Q: Are you currently a full-time employee of Atlas Termite and Pest Control of Cantonment, Inc.? A: Yes. Q: Have you been a full-time employee of Atlas since you've become a CPO? A: Yes. Q: Is your employment with Atlas your primary occupation? A: Yes, absolutely. Q: Since your certification of Atlas CPO, has your employment with Atlas always been your primary occupation? A: Yes, absolutely. Q: Have you always or do you now personally supervise and participate in the pest control activities of Atlas regarding the selection of the proper chemicals for particular pest control work performed? A: I did do all of that when there was nobody doing the work except strictly Atlas employees. Now that it is subcontracted out, I supervise, but I'm not always the primary one to make that determination. I can do it, but I have no need to do it. Q: If Atlas had subcontracted the job to another company, who is the CPO then that would be in charge of the chemical side of the whole thing? A: Whoever is the CPO with that company. And I might add that, you know, I don't deal with anybody that's---except CPO's with expertise in a lot of different fields including building construction and biology and chemistry. And they're not just simply CPO's. They are degreed professionals with the expertise to do it. Q: Let me ask you: Have you always and do you now personally supervise and participate in the pest control activities of Atlas regarding the safe and proper use of pesticides? A: Well, there again, I have in the past entirely. I could in the future, but I do not presently do that because that is passed on to the subcontractor. Q: Atlas has employees, doesn't it? A: Yes. Q: But presently it doesn't have any employees that apply pesticide? A: No. Q: During the time that Atlas had employees that applied pesticide, did you supervise and participate in the training regarding the correct concentration in the formulation of those pesticides? A: Yes, I did absolutely every day. Q: And secondly, the same question-- A similar question is: Do you now and did you then supervise and participate in the pest control activities of Atlas regarding the training of personnel in the proper and acceptable methods of pest control? A: I did then to the extent of seeing that it was done. It was a lot of times done in a group format with other companies, so I was not always the one who was doing the presentation. Although, the presentation was done by people who were sanctioned by the Department, and then I do it entirely for Atlas myself. Although they can't get their CPU's [sic] from me, but we held training sessions and so forth. At the present time, I do not because I'm not over those employees. Q: What are some of the ways that an employee of yours at Atlas could get their appropriate, proper and acceptable training, I guess you would call then the CEU's? A: If they were an employee of Atlas? Q: Yes. A: You can get them over the Internet easily now.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That a final order be entered revoking the certificate of Ms. Beard and the license of Atlas. DONE AND ENTERED this 25th day of May, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 25th day of May, 2005.
The Issue Whether or not James D. Cooley, d/b/a Murder, Inc., is entitled to a business license to engage in pest control in Florida, in the category of general household pest control. Whether or not James D. Cooley is entitled to the issuance of an identification card under the licensee James D. Cooley, d/b/a Murder, Inc., and in direction and control of James D. Cooley, certified pest control operator. Whether or not James D. Cooley is entitled to the issuance of a certified pest control operator's license in the general household category.
Findings Of Fact The Petitioner, James D. Cooley, is the holder of pest control operator's certificate no. 2236 held with the Respondent, State of Florida, Department of Health and Rehabilitative Services. This category of pest control operator's certificate qualifies the Petitioner to perform treatment on termites and wood-infesting organisms. By separate action, the Respondent has moved to suspend the aforementioned pest control operator's certificate held by the Petitioner for a period of six (6) months, in accordance with the provisions of Chapter 482, F.S. It has as an aspect of the contention the failure of the Petitioner to make a timely renewal of the pest control operator's certificate. The basis of this separate action by the Respondent is premised upon a letter of August 8th, 1977, addressed to the Petitioner, apprising him of the factual allegations and statutory references upon which its action is predicated. A copy of that letter is attached and made a part of the record herein. The facts reveal that the Petitioner, James D. Cooley, entered into an agreement with the proprietors of the "Romp and Tromp Day Care Center" located at 143 State Road 13, St. Johns County, Florida, for purposes of spraying for roaches. At that time, James D. Cooley was operating under the name "Tropical Pest Control", located at 355 Monument Road, Jacksonville, Florida. He identified himself in the form of a business card, (which is Petitioner's Exhibit 3 admitted into evidence in the Division of Administrative Hearings' Case Number 77-1564), as a termite control and complete pest control service. Cooley did, in fact, spray the "Romp and Troop Day Care Center: for the extermination of roaches. The sprayings took place in April and May, 1977. The substance being sprayed had a peculiar odor which the witnesses, Alice E. Stock and Ellen Perry Church indicated seemed like household bug spray. They also indicated that they noticed a resulting improvement with the roach problem after spraying. James D. Cooley, under the guise of "Tropical Pest Control", also sprayed the residence of Ellen Perry Church, which is at 1975 State Road 13, St. Johns County, Florida. He sprayed this premises for roaches and ants. Again the substance had an odor which was similar to retail bug spray. The ant and roach problem did not go away in her home. In both instances, when dealing with the proprietors of the "Romp and Troop Day Care Center" and the residence of Ellen Perry Church, James D. Cooley had identified himself as the owner of "Tropical Pest Control" and a person qualified to perform complete pest control services. In fact, James D. Cooley was not qualified to perform general household pest control, which is the category of treatment he was performing in spraying for roaches and ants. By that, it is meant that James D. Cooley at the time he performed the functions for the proprietors of the "Romp and Troop Day Care Center" and the residence of Ellen Perry Church, was not the holder of a certified operator's license in the category of general household pest control, as contemplated by Chapter 482, F.S. Moreover, the company he was operating under, to wit "Tropical Pest Control", was not licensed with the State of Florida, Department of Health and Rehabilitative Services and no identification card was on file for James D. Cooley as an employee of "Tropical Pest Control". The only document on record pertaining to James D. Cooley was one pertaining to his certified operator's license for termites and other wood-infesting organisms, license no. 2236, which at the time of the investigation of Mr. Cooley's activities was due for renewal in accordance with the terms of Section 482.071, F.S. By his actions in dealing with the premises known as "Romp and Troop Day Care Center" and the residence of Ellen Perry Church, the Respondent, in performing these tasks as "Tropical Pest Control", was unlawfully operating a pest control business that was not licensed by the Respondent, in violation of Section 482.071, F.S. Cooley was also in charge of the performance of pest control activities of a category in which he was not properly certified, namely general household pest control, thereby violating Section 482.111(4), F.S. In addition, James D. Cooley failed to have a valid pest control identification card as am employee of "Tropical Pest Control", because "Tropical Pest Control" was not licensed and no employee for that organization could have an identification card, thus causing a violation of Section 482.091, F.S. By his activities in dealing with the two premises, the Respondent was unlawfully soliciting, practicing, performing or advertising in pest control in a fashion that was not authorized by Chapter 482, F.S., in violation of Section 482.191(1), F.S. Finally, James D. Cooley, by holding himself out to be a certified operator in general household pest control, was guilty of fraudulent or misleading advertising or advertising in an unauthorized category, in violation of Section 482.161(8), F.S. For these violations, set forth above, sufficient grounds have been established for the Respondent to suspend, revoke or stop the issuance or renewal of any certificate or identification card, under authority of Section 482.161, F.S. The Respondent has taken action to bring about a suspension of certified pest control operator's license no. 2236, in keeping with the provisions of Section 482.171, F.S., and is warranted in suspending, revoking or stopping the issuance or renewal of any certificate or identification card. In consideration of the violations established in the Petitioner's dealings with the "Romp and Troop Day Care Center" and Ellen Church, the Respondent has refused to issue a business license to James Cooley, d/b/a Murder, Inc., which intends to do business in the general household pest control category. If James D. Cooley is not granted his certified operator's license in the category of general household pest control, then he may not serve as a certified operator in that category, in behalf of the proposed licensee James D. Cooley, d/b/a Murder, Inc. If James D. Cooley is unable to serve in the capacity of certified pest control operator, general household category, them the business known as James D. Cooley, d/b/a Murder, Inc., must employ am alternate certified operator in the general household category, before the Respondent shall issue a license to the business to operate in the general household category. That operator must be a resident of the State of Florida. This is in keeping with the license requirements of Section 482.071, F.S. James D. Cooley does not qualify for certification in the category of general household pest control, because through the violations established in his dealings with the "Romp and Tromp Day Care Center" and Ellen Perry Church, he has shown himself not to be of good character and good reputation for fair dealings, as required by Section 482.132, F.S., prior to the issuance of any certificate. Therefore, the only possibility that James D. Cooley, d/b/a Murder, Inc., would have for operating under the general household pest control category and for receiving a license would be to have another duly qualified certified operator in general household pest control to be hired by the licensee. No identification card can be issued to James D. Cooley or any other person who might be employed by James D. Cooley, d/b/a Murder, Inc., to operate in the general household pest control business, unless it will be under the supervision of a certified pest control operator in the specialty of general household pest control, other than James D. Cooley. The results of the examination which James D. Cooley completed in the general household pest control specialty, should stand until he is otherwise qualified or the requirements for certification have changed prior to his obtaining further qualification in the terms of his good character and good reputation for fair dealings. This conclusion is reached upon a reading of Rule 10D-55.177 (5 FAC) which only prohibits those persons from being examined who have been suspended, revoked or on probation. James D. Cooley was not in one of those categories prior to taking the examination which he passed and was notified of the passing grade in September, 1977.
Recommendation Pursuant to the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a business license for James D. Cooley, d/b/a Murder, Inc., only be issued if some person other than James D. Cooley will be serving in the capacity of a certified pest control operator in the category of general household pest control, which is the desired license specialty. That no identification card be issued to James D. Cooley as an employee of James D. Cooley, d/b/a Murder, Inc., in view of the fact that the license is not being issued to that organization and no employee shall receive an identification card without being employed by a licensed pest control business and under the authority of a certified operator. This position of the recommendation shall be in effect until and unless a separate certified operator is employed, which would allow the license to be given to James D. Cooley, d/b/a Murder, Inc. That James D. Cooley's application to be a certified operator in the category of general household pest control be denied, because he has been shown to' be lacking in good character and good reputation for fair dealings. DONE and ENTERED this 28th day of December, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Robert M. Eisenberg, Esquire Department of HRS 5920 Arlington Expressway Jacksonville, Florida Paul M. Harden, Esquire 2601 Gulf Life Tower Jacksonville, Florida 32207 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue The primary issue for determination is whether Emerald Shores Heath Care Associates, LLC, d/b/a Emerald Health Care Associates (Respondent) committed the deficiencies as alleged in the Administrative Complaint dated September 17, 2004. Secondary issues include whether Petitioner should have changed the status of Respondent's license from Standard to Conditional for the time period of July 16, 2004 until August 13, 2004; and whether Petitioner should impose administrative fines for alleged deficiencies that are proven to be supported by the evidence.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes. Respondent is licensed to operate a nursing home located at 626 North Tyndall Parkway, Panama City, Florida 32404 (the facility). Petitioner conducted a survey of Respondent's facility on July 16, 2004. Upon completion of that survey, Petitioner prepared a report that charged Respondent with violations of various nursing home regulations. This report organized each of the charged violations under “Tags,” which are shorthand references to the regulatory standards that Petitioner alleges were violated. Additionally, Petitioner assigned, as required by law, Class I severity ratings and widespread scope ratings to the two deficiencies or Tags (F224, and F469) at issue in this proceeding. On July 8, 2004, one of Petitioner’s surveyors observed that a patient in Respondent’s facility had approximately 60 ant bite pustules on her face, arms, neck, and chest. Investigation revealed that the patient had been discovered with fire ants in her bed at about 4 p.m. on July 7, 2004. Personnel of the facility had, at that time, taken appropriate steps to care for the injured patient. That care and treatment is not at issue in this proceeding. Petitioner initiated another survey of Respondent’s facility on July 16, 2004. A primary objective of that survey team was to ascertain the extent of the ant bite situation in the facility. There had been other incidents in the past involving ants. One incident involved harmless, non-biting “sugar” ants, covering a patient’s sandwich left by the patient on a nightstand. The sandwich was removed, the room sprayed and the patient admonished about leaving food in the room. Later, ants were again discovered in the room, requiring further spraying and maintenance. In the course of the July 16th survey, dead ants were found in the room of the patient who had been bitten. Additionally, a couple of ant beds were found in the lawn outside the facility. As a consequence of the findings of ant nests outside the facility and dead ants inside the facility, coupled with the previous incidents involving the sandwich attacking ants and other ant incidents, Petitioner cited Respondent for “immediate jeopardy” on July 16. The surveyor report found Respondent had not dealt adequately with its pest problem and cited Respondent for violation of Tag F224, abuse and neglect, and Tag F469, pest management. Before Respondent erected the facility, a contract was executed with A to Z Pest Control to provide a termite barrier effective against termites, as well as other all arthropods, including ants. A to Z Pest Control is a certified, licensed pest control company with certifications in entomology and pest control. Respondent’s continuing contract with the pest control company required that the pest control barrier be renewed in December of every year. After opening the facility, Respondent entered into a regular pest control contract with A to Z. The contract was for integrated pest control management. Under the integrated pest management approach, the pest control company continually changed its approach to eliminating and preventing insect problems depending on the nature of the problem and its location within the facility. Monthly routine service and “call-backs” as needed were provided under the contract. The pest control company used EPA approved and laboratory-tested chemicals at the facility. No adverse incidents occurred at the facility as the result of ants or other insects from 1999 through 2003. From time to time, ant mounds were discovered in the yard to the facility, but were treated by maintenance personnel or the pest control company. Typical of insects in Florida, activity of insects increased in the spring and summer months. In addition to monthly treatment and Friday drop-bys, the pest control company personnel would treat pests at the facility whenever they were called. The first adverse incident related to ants at the facility occurred in August 2003, concluding a summer of an unusual amount of insect activity. In August, a patient was discovered in her bed with ant bites and pustules. Respondent then asked A to Z for a solution to the problem. The pest control company recommended a “barrier” treatment which involved placing insecticide in all openings in the facility, digging a trench around the building and placing granular insecticide in the trench, and finally spraying the lawn area in a band five to ten feet around the entire building. Despite the extra cost of such a treatment, Respondent approved the treatment and the additional payment. Notably, Respondent conducted a complaint survey in response to the August 2003 ant bite incident and determined that no deficient practices had occurred to cause the incident. Respondent assumed its pest control practices were adequate and continued to use the same pest control company, A to Z until the conclusion of July 2004. The barrier treatment, or grounds treatment, provided after the 2003 ant bite incident remained effective, in conjunction with the annual termite treatment, through the fall of 2003 and into the winter and spring of 2004. After that, it might have started breaking down due to rain and exposure to the elements. As previously noted, the afternoon of July 7, 2004, presented the patient with fire ants in her bed and approximately 60 ant bites on her head and upper body. The patient was removed from the room and thorough treatment for ants applied to the room while the patient was being treated. A survey was made of all of the rooms in the facility to determine if there were ants anywhere else. The grounds were inspected and all ant beds were treated. A to Z Pest Control was called, but couldn’t get out to the facility until the next day. On the following day, A to Z treated the entire inside of the building, but could not treat the grounds because it was raining. Personnel of A to Z returned and treated the outside of the facility on the following day, July 9. Thereafter, the “sugar” ant sandwich attack occurred. The room was immediately sprayed with pesticide. Several days later, the ants were again found in the same room and the room was cleaned and sprayed again. At this point, Respondent sought more aggressive treatment of ants to ensure that everything possible was being done to keep patients safe. Further, facility management created an “Action Plan” on July 7 to deal with this issue. This plan included daily rounds of the grounds; inspections of every resident’s room for signs of ants three times per shift (nine times per day); educating residents and staff of the necessity of keeping all food items tightly sealed; and implementation of a pest control log. Respondent also began the process of reevaluating its contract with A to Z after this incident. Several other local pest control operators were contacted and asked for a plan of treatment. The proposal to include an annual barrier treatment as a part of regular pest control services was made to Respondent for the first time. Shortly thereafter, Respondent terminated its routine pest control contract with A to Z (although A to Z retains the termite contract), and hired Panama Pest Control to provide both interior and exterior treatment with regular barrier treatment. Patients of Respondent’s facility were not at risk or in “immediate jeopardy” from insects on July 16, 2004. Petitioner requires nursing home facilities to adopt specific policies and procedures. Fla. Admin. Code R. 59A-4.106. Although pest control is not one of the required policies and procedures, Respondent has had since 2002, a policy and procedure on pest control. Respondent followed those policies and procedures. Among the pest control activities of Respondent before either ant bite incident were daily checks of every room, so-called “Angel Rounds," and regular monitoring of the grounds. Pest control is not part of the curriculum for Nursing Home Administrators. Neither Petitioner nor the Centers for Medicare and Medicaid Services have issued any regulations, guidance, or advisories with regard to pest control. The term “effective” as is used in the regulation requiring “effective pest control” isn’t defined anywhere. It is impossible to be certain that fire ants will not enter any building. The owner of A to Z Pest Control Company, bearing certifications in entomology and pest control, opined that no matter what you are doing to prevent ant bites, you can still do more. Even then, you cannot be sure of success “because you are trying to control something that is based in nature.” You can only provide pest “control” as opposed to pest “elimination.”
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a final order dismissing the Administrative Complaint and issuing a standard rating to Respondent’s facility, and further finding that no deficiencies stemming from the survey of July 16, 2004, as described under the tags and regulations cited and discussed above, have occurred. DONE AND ENTERED this 16th day of May, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 16th day of May, 2005.
The Issue Whether Respondent committed the violations set forth in the Administrative Complaint, as amended, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is an agency of the State of Florida charged with regulating the operation of the pest control industry pursuant to Section 482.032, Florida Statutes. At all times material to this case, Clifford Killingsworth was the owner and Certified Operator in Charge (COIC) of Killingsworth Environmental, Inc., d/b/a Environmental Security, a/k/a KEFL, Inc., a licensed pest control company in Cantonment, Florida. Counts 9 and 11 Counts 9 and 11 of the Administrative Complaint allege as follows: Count 9 During an inspection on July 11, 2003, the Department found that Killingsworth Environmental, Incorporated operated an unlicensed business location at 9100 Hamman Avenue, Pensacola, at which sales solicitations were made and remuneration received. This is a violation of Chapters 482.071(1) and (2), Florida Statutes. Count 11 During an inspection on July 11, 2003 the Department found that Killingsworth Environmental, Incorporated phone numbers terminated in an unlicensed location at 9100 Hamman Avenue. This is a violation of Chapter 5E-14.142(3)(b). Killingsworth Environmental, Inc., d/b/a Environmental Security, a/k/a KEFL (hereinafter KEFL), is physically located at 4141 Pine Forest Road in Cantonment, Florida, and is listed at this address on its application for business license filed with the Department. Cantonment is located in Escambia County near Pensacola, Florida. Two other pest control companies, Environmental Security of Okaloosa, Inc., and Atlas Termite and Pest Control of Cantonment, Inc., are located at the same address. On July 11, 2003, the Department conducted an inspection of a company called Home Services Marketing and Management, LLC (hereinafter Home Services), which is located at 9100 Hamman Avenue in Pensacola. Clifford Killingsworth and Clinton Killingsworth2/ are the managers of Home Services. On March 26, 2002, KEFL entered into a Management and Marketing Agreement with Home Services, executed by Clifford Killingsworth on behalf of KEFL and by Clinton Killingsworth on behalf of Home Services. Since that agreement was signed, the telephone number for KEFL listed in the local telephone directory terminated at Home Services. Home Services also answers calls for Environmental Security of Okaloosa and Atlas Termite and Pest Control of Cantonment, Inc. Through their computer system and caller ID, the Home Services employee knows which company is being called and answers accordingly. Home Services employees do not make "cold calls" to new customers. They receive calls from existing customers. They contact customers with active accounts to set up renewals. They also contact homeowners whose homes were treated during construction and whose initial accounts were with the builder of the home. If a new customer calls, a Home Services employee answers the call, gets the contact information from the potential new client, and then calls the appropriate technician who would then call or visit the potential customer. The appropriate technician is generally determined by the geographic location of the caller. While a Home Services employee might send a preprinted contract to the technician to take to the job site or mail a contract to a customer, Home Services does not enter into any contract to perform pest control services. No pest control trucks or chemicals are stored at Home Services. Home Services also has a payment processing component. Home Services sends bills to pest control customers which instruct customers to make out the check to the appropriate pest control company, not to Home Services. Payments from customers for pest control services are deposited into the account of the appropriate pest control company. No evidence was presented that 9100 Hamman Avenue is an advertised permanent location of KEFL from which business was solicited, accepted, or conducted. After the July 11, 2003, inspection of Home Services, Clinton Killingsworth, Clifford Killingsworth's brother, took steps to get Home Services licensed as a pest control company. Clifford Killingsworth did this because it was his understanding that the Department took the position that Home Services was in the business of practicing pest control services. He employed his brother, Daniel Killingsworth, to be the required licensed person in charge, and contacted several insurance companies to obtain the required insurance. He had difficulty in obtaining the required insurance since Home Services does not offer pest control services. Despite these difficulties, Home Services was issued a license in December 2003. Count 10 Count 10 of the Administrative Complaint, as amended, reads as follows: During an inspection on July 16, 2003, the Department found that Killingsworth Environmental, Incorporated stored pesticides at an unlicensed business location at 1830 Galvez Road, Gulf Breeze, Florida, which is a violation of Chapter 5E- 14.142(5)(f) and (g), Florida Administrative Code. That in addition, the Respondent, Killingsworth Environmental, Inc., regularly parked trucks containing pesticide at that location during nighttime hours, published in the 2002-2003 Bell South Telephone Directory under Pest Control Services in the yellow pages of the telephone directory, a listing for "Environmental Security", a name under which it did business, and its employees received by facsimile daily work assignments that were sent to them at that location. That the Respondent, Killingsworth Environmental, Inc operated an unlicensed business location at 1830 Galvez Road, Gulf Breeze, Florida, in violation of Section 482.071(2)(a), Florida Statutes.[3/] The property located at 1830 Galvez Drive is surrounded by a locked fence and contains a structure. The structure is not enclosed. Both KEFL and Environmental Security of Okaloosa park trucks there overnight. The Department conducted an inspection of 1830 Galvez Drive on July 16, 2003. When the inspectors arrived, the gate to the property was locked and the trucks were locked. They entered the property when pest control employees arrived. On the day of the inspection, the Department's inspectors found unmixed chemicals in the trucks. Clifford Killingsworth acknowledges that at the time of the inspection, company trucks parked at the Galvez Drive location overnight and pesticides were in the locked trucks. Company records or contracts are not stored at the Galvez Drive location. No customer contact takes place at or from the Galvez Drive location. The Pest Control Business License Application Form contains a space in which the licensee must respond to the following: "Designate location where pest control records and contracts will be kept and the exact location address for storage of chemicals if other than licensed business location." The applications for business license for KEFL d/b/a Environmental Security do not reference 1830 Galvez Road as a location where storage of chemicals occurs. KEFL does not have a license for operating a business at this location. The yellow pages for the Pensacola area contains a listing in red ink for "Environmental Security, Inc." It lists an address of 4141 Pine Forest Road with the telephone number 473-1060. There is another reference to "Environmental Security" in black ink in smaller type which lists the address 1830 Galvez Drive with the number 916-7731.4/ Clifford Killingsworth arranged to have a phone line for a fax machine to be located in a trailer at the Galvez Drive location. The purpose of installing a fax line at Galvez Drive was for employees to receive daily schedule assignments. The 916-7731 number listed in the yellow pages is the number of the fax machine. Clifford Killingsworth did not request a listing for the number of the fax machine. However, the telephone company listed it in the phone book. Clinton Killingsworth has requested the local telephone company remove the erroneous listing a number of times. Count 13 Count 13 of the Administrative Complaint reads as follows: During an inspection on July 11, 2003 the Department found that pesticide was kept at 4141 Pine Forest Road in a container other than application equipment and not accurately identified through the use of permanent, durable label or tag, showing the common or chemical name(s) of principal active ingredients(s), which is a violation of Chapter 5E-14.106(4), Florida Administrative Code. On July 11, 2003, the Department conducted an inspection of KEFL's business location, 4141 Pine Forest Road. One of the inspectors that day was Bruce Nicely, a regional supervisor of the Department's Bureau of Entomology and Pest Control. He was accompanied by Paul Matola of the Department, who did not testify at the hearing. During the inspection, Clifford Killingsworth opened a storage trailer for inspection. Mr. Killingsworth described the trailer as a jug disposal trailer, where empty jugs and drums were stored until they could be recycled or disposed of properly. At the back of the trailer, Mr. Nicely found a two- and-one-half gallon unmarked jug inside a five-gallon bucket. An unidentified substance was inside the jug. Mr. Nicely took a sample of the substance inside the jug, pouring it directly into an eight-ounce sample jar. He labeled the jar "PHY number 07110346060107" and placed the sample in a sealed sample collection bag which was put in a cooler of ice. When completing the pesticide collection report, he wrote "pesticide screen" in a blank after the words, "List active ingredient(s) and/or compounds to analyze for." Mr. Nicely then gave the sample to Steven Dwinnel, at 4:35 p.m. on July 11, 2003.5/ Mr. Dwinnel relinquished the sample to Mike Page at 8:03 p.m. on July 11, 2003. At the time, Mr. Page was the director of the Department's pesticide laboratory. Mr. Page has an undergraduate degree in chemistry and a graduate degree in toxicology and pharmacology with over 16 years of experience as an analytical chemist. When Mr. Page received the pesticide collection report, the word "Lindane" also appeared on the report along with the request for a pesticide screen. It is not clear who wrote the word "Lindane" on the collection report or when the word "Lindane" was written. According to Mr. Page, a pesticide screen includes testing for Lindane. He therefore concluded that whether or not the word "Lindane" was included in the request for analysis made no difference in the lab's testing. An analysis of the sample was performed revealing that the sample contained a concentration of 34.2 percent Lindane and 46 parts per million of Chlorophyrifos. Mr. Page described the amount of Chlorophyrifos compared to the Lindane as a minuscule amount. Both Lindane and Chlorophyrifos are pesticides. The undersigned is persuaded that the Department appropriately maintained the chain of custody of the sample regardless of whether or not the word "Lindane" appeared on the collection report. The fact that "Lindane" appeared on the collection report sometime after Mr. Nicely relinquished it and the sample is of no consequence as to the validity of the laboratory testing of the sample. Clifford Killingsworth is uncertain as to whether his company ever used Lindane but is certain that they have not used it in recent years as it has been "off the market" since approximately 1999. Two other pest control companies, Environmental Security of Okaloosa, Inc. and Atlas Termite and Pest Control of Cantonment, Inc., also use the trailer from which the sample was taken, to store empty pesticide containers. Clifford Killingsworth does not know if the jug from which the sample was taken belonged to his company. Although he was aware that his company stored empty pesticide jugs in the trailer, he was unaware that a jug in the trailer contained an unidentified substance. When asked under cross-examination what he would have done had he been aware of a jug containing an unidentified substance, he answered that he probably would have called the landfill to see when the next "roundup" would be as that is when the landfill takes "unidentifieds."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that a final order be entered assessing a fine against Respondents in the amount of $2,600. DONE AND ENTERED this 25th day of May, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 25th day of May, 2005.
Findings Of Fact At all times material hereto, Petitioner was, and is, a Florida certified pest control operator. Petitioner owns and operates Campbell's Pest Control, a firm licensed by the State of Florida for pest control purposes and doing business in Alachua, Florida. In his capacity as owner and operator of that firm, Petitioner supervises two cardholder employees. In the latter part of 1982, Petitioner received two letters from Respondent, one dated August 13, 1982, and the other September 7, 1982. Both of these letters contained notification to Petitioner of Respondent's contention that he had failed to comply with the requirements of Section 482.152, Florida Statutes, which provides as follows: A certified operator in charge of pest control operations of a licensee shall be a Florida resident whose primary occupation is in the structural pest control business, who is employed on a full-time basis by the licensee, and whose principal duty is the personal supervision of and participation in the pest control operations of the licensee as the same relate to the following: The selection of proper and correct chemicals for the particular pest control work to be performed. The safe and proper use of these pesticides. The correct concentration and formulation of pesticides used in all pest control work performed. The training of personnel in the proper and acceptable methods of pest control. The control measures and procedures used. The notification of the Department of Health and Rehabilitative Services within 24 hours of any knowledge of accidental human poisoning or death connected with pest control work performed on jobs he is supervising. Two memoranda were enclosed with the letter from Respondent dated September 7, 1982. The first of these was a legal memorandum from Respondent's counsel concerning an interpretation of Section 482.152, Florida Statutes, quoted above. This memorandum provided in pertinent part that: It is clear from a careful reading of Chapter 482 that the requirement concerning a fully qualified certified operator exists as a condition precedent to licensure because of the many dangers inherent in pest control activities. The interpretation placed on the language above quoted from Section 482.152, F.S. is that the certified operator's primary job should be that of a certified operator. Because of the many functions which are required to be performed by the certified operator, he should be on the job on a full-time basis or a nearly full-time basis for the licensee. It is obvious that the legislature, by using the language above described, intended to preclude 'certificate selling'. . . The other memorandum was dated February 23, 1978, and furnished to all commercial pest control licensees and certified operators, and concerned the subject of "renting" of pest control certificates. This memorandum provided in part that: It has come to the attention of this office that some licensees and certified operators are not in compliance with the provisions of Chapter 482.121 and 482.152, Florida Statutes, concerning the status and activities of a certified operator in charge of pest control activities of a licensee. * * * The intent and purpose of the provisions of the Pest Control Act . . . are to prevent such practices as certificate 'renting' or 'selling' under the pretense that the certified operator is in the [sic] charge of pest control activities of the licensee, when in fact he or she is not. The Office of Entomology will enforce the referenced provisions of chapter 482 F.S. as interpreted by legal counsel [in the January 25, 1977 memorandum] with regard to certificate 'renting'. Licensees and certified operators should examine their present arrangements with regard to this matter to determine if they are in compliance with the law. Violations could be grounds for suspension or revocation of licenses or certificates. Any licensee adversely affected would be entitled to apply for an emergency certificate upon loss of certified operator. By Administrative Complaint dated October 13, 1982, Petitioner was charged with a violation of Chapter 482, Florida Statutes: . . . in that you are presently employed on a full-time basis by the City of Gainesville as a firefighter and at the same time registered with the Department as an employee--identification cardholder and as a certified operator in charge of the pest control operations of Campbell's Pest Control . . . This constitutes a violation of Section 482.152, F.S., which requires, in part, that the primary occupation of a certified operator in charge of the pest control operations of a licensee shall be in the pest control business and that such certified operator be employed on a full-time basis by the licensee with the principal duty of personal supervision of and participation in the licensee's pest control operations as these operations relate to selection and safe, and correct use of pesticides, control measures and procedures used, and training of personnel; and a violation of section 482.121(1), F.S., which provides that no certified pest control operator shall allow his certificate to be used by any licensee to secure or keep a license unless such certified operator is in charge of the 'pest control activities of the licensee in the category or categories covered by his certificate and is a full-time employee of the licensee.
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.
