Findings Of Fact Respondent Charles T. Noegel has been in the pest control business for some sixteen years. In February of 1976, the petitioner Office of Entomology sent all licensees a license renewal application for a license to be effective on March 31, 1976. Petitioner received a check from respondent, but the proceeds thereof were applied to review respondent's pest control operator's certificates. A check sent by respondent during 1975 had been returned for insufficient funds. A pest control business license cannot be issued unless there is evidence of a current operator's certificate in existence. Petitioner did not receive respondent's application or a check for the license which was to be effective on March 31, 1976. In June of 1976, petitioner notified respondent that they needed his application and a check for the renewed license. They also sent him an application form. According to respondent, he did not receive the entire application form. Respondent testified that he telephoned the petitioner's office in Jacksonville on two or three occasions and told a secretary there that he did not have a complete application form. In March of 1977, Mr. Page from petitioner's office called respondent. Respondent was not available and Mr. Page left the message with respondent's answering service that respondent was operating illegally without a license and asked Mr. Noegel to call him. Mr. Page received no reply from this message. According to Mr. Noegel, he received the message but did not receive the name or telephone number of the person who left the message. In April of 1977, petitioner did receive from respondent an application for the renewal of his operator's certificate and a check. Respondent has been delinquent in the past in applying for his license, and various checks have been returned for insufficient funds. Had respondent timely applied and paid for the renewal of his March 31, 1976, license, petitioner would have issued the license to him. By certified letter dated August 10, 1978, petitioner notified respondent that his pest control operator's certificate number 519 was being revoked for failure to comply with Chapter 482 of the Florida Statutes and Chapter 10D-55 of the Florida Administrative Code. Generally, respondent was charged with conducting his pest control business, known as the Seminole-Gator Exterminator, without a license. While more specific charges are contained in the August 10, 1978, letter, petitioner offered no evidence at the administrative hearing to substantiate such specific allegations.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner find that respondent violated Section 482.071(1) by operating his business without a valid license. It is further recommended that respondent's operator's certificate number 519 be suspended for a period of sixty (60) days from August 10, 1978, and that upon the payment of all back license renewal fees, respondent's certificate be reinstated, and respondent be placed on probation for a period of eighteen months. The terms of probation should include the timely renewal and payment of all permits required by petitioner's laws and regulations. Respectfully submitted and entered this 6th day of October, 1978, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1978. COPIES FURNISHED: Charles T. Noegel Entomologist - Manager Seminole Gator Exterminator 1409 Pichard Drive Tallahassee, Florida 32304 Donna Stinson, Esq. Department of HRS 2639 N Monroe Street Suite 200-A Tallahassee, Florida 32304 William J. Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Andrew J. Rogers Director, Office of Entomology Department of HRS Post Office Box 210 Jacksonville, Florida 32231 =================================================================
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.
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.
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, 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.
Findings Of Fact Respondent Turner is engaged in the business of pest control, including the application of termiticide to the soil of pre-construction sites for the prevention of subterranean termites. Respondent is licensed by the Petitioner under Chapter 482, Florida Statutes, as a pest control business and maintains its primary place of business in Jacksonville, Florida. Respondent Kincade is employed by Turner as a pesticide applicator technician. The Petitioner is the state agency with jurisdiction to regulate and license pest control businesses and technicians. On June 12, 1993, Mr. Phil Helseth and Mr. Montgomery, employees of the Petitioner, were returning from lunch and observed one of Respondent Turner's trucks turning onto the Blodgett construction area in Jacksonville, Florida. Helseth surmised the Respondent's truck was there to do a pretreatment for termites. Helseth then observed activities by a Turner Pest employee, later identified as Mr. Kincade, who was spraying a substance on the soil on foundation areas at sites one and two. Mr. Helseth concluded the Respondent's agent was engaged in termite pretreatment. When the Turner employer concluded his activities, he drove his truck to the construction trailer on the building site where he was confronted by Mr. Helseth and Mr. Montgomery. At that time a third employee of the Department, Mr. Parker, had arrived, bringing calibration equipment to measure the rate of discharge from the Turner Pest pumper truck. Petitioner's inspectors introduced themselves to Kincade and identified themselves. Petitioner's representative requested Kincade to produce the identification card issued to him by Petitioner. Mr. Kincade did not do so. Petitioner's representative asked Kincade questions about what he was doing, and Kincade demurred, stating it was Turner's policy for him to call a supervisor who would answer their questions. Kincade called his office, and shortly thereafter Joe Turner arrived on site. The spraying equipment utilized by Kincade was then calibrated to determine the amount of pesticide mixture being emitted. Joe Turner, President of Turner Pest Control, Inc., denied that they were performing a pre-construction treatment for termites. Mr. Turner testified that the purpose of spraying the Dursban 2E on the site in question was to empty the tank and that this was proper disposal of the chemical in accordance with the label instructions. A local pest control operator testifying for Respondents stated that the disposal of the pesticide Dursban 2E in this manner was perfectly in accordance with the label and that he has emptied tanks of Dursban 2E on construction sites twenty to thirty times in the last two or three years. Petitioner did not offer any testimony that this method of disposal was contrary to the label. Petitioner concluded that Turner Pest was conducting a termite pretreatment, although informed by Joe Turner at the time such was not the case, and filed the initial Administrative complaint. The Blodgett site contractor's job superintendent, Joe Wilson, testified. Sites prepared for construction at Blodgett Homes would receive termite pretreatment and pest control. Joe Turner had consulted with Wilson about spraying the Dursban 2E to dispose of the chemical. The job superintendent knew the operator, Kincade, was not performing a pretreatment for termites. Dursban 2E is a general insecticide. It, according to its label, can be used in a variety of concentrations, for a variety of insects, but termites are not one of those insects. Disposal, according to the labels, is by spraying the chemical on soil such as to lawn or a building site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services dismiss the charges against Turner Pest Control, Inc. and impose an administrative fine in the amount of $100.00 against Respondent, William D. Kincade. DONE AND ENTERED this 14th day of April, 1994, in Tallahassee, Florida. STEPHEN F. DEAN 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 14th day of April, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 93-6624 Both parties filed Proposed Recommended Orders which were read and considered. The following states which of these proposed findings were adopted and which were rejected and why. Petitioner's PFOF: Paragraph 1 and 2 Adopted. Paragraph 3 True, but irrelevant. Paragraph 4 Respondent's paragraph 3 et seq. better states the facts. Last part adopted as paragraph 5. Paragraph 5 Adopted RO paragraph 5. Paragraph 6 Adopted RO paragraph 6. Paragraph 7 Adopted RO paragraph 7. Paragraph 8 Rejected as argument. Paragraph 9 Contrary to better evidence. Mr. Helseth conclusions were based upon his conclusion that Dursban 2E was being used as a termite pre- treatment, not being disposed of. Paragraphs 10, 11 RO paragraph 8. Last sentence is rejected because it was accepted that use and disposal was controlled by the instructions on the label. The label indicates disposal by spraying on soil was appropriate. Respondent's PFOF: Paragraph 1 RO paragraph 3. Paragraph 2 RO paragraph 4 and RO paragraph 9. Paragraph 3 Irrelevant. Paragraph 4 Restated in RO paragraph 5 and 6. Paragraph 5 RO paragraph 11. Paragraph 6 RO paragraph 11. Paragraph 7 RO paragraph 12. COPIES FURNISHED: Bob Crawford, Commissioner Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, Esquire Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Robert G. Worley, Esquire Department of Agriculture Room 515, Mayo Building Tallahassee, FL 32399-0800 William G. Cooper, Esquire COOKER MYERS 136 East Bay Street Post Office Box 1860 Jacksonville, FL 32201
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 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 The issues in this case are whether Respondent violated Subsections 482.121(1)(a) and 482.121(1)(b), Florida Statutes (2007),1 and, if so, what discipline should be imposed.
Findings Of Fact PFSG, Inc., d/b/a US Lawns of Destin (US Lawns),2 submitted a Pest Control Business License Application to the Petitioner, listing Mr. Lewis as its certified operator in charge for lawn and ornamental pest control, effective August 9, 2007. Mr. Lewis’ certificate number is Jf 13685. US Lawns had been operating on an emergency certificate from June 6, 2007, until Mr. Lewis’ employment on August 8, 2007. In its application for a business license, US Lawns requested that its emergency certificate be canceled as of August 8, 2007. In order for a pest control company to operate, the company has to have a certified pest control operator in charge of the pest control activities at the licensed business location. If a company does not have a certified operator to serve as the certified operator in charge, an emergency certificate can be issued and renewed monthly up to a year, allowing an employee who did not have a certified operator’s certificate to serve as the certified operator in charge. As the certified operator in charge for US Lawns, Mr. Lewis applied to Petitioner for a pest control employee identification card, effective August 9, 2007. He listed the commencement of his employment with US Lawns as August 9, 2007. He also stated that his last employment with a pest control company had ended on June 11, 2007. A pest control employee identification card was issued to Mr. Lewis by Petitioner. Mr. Lewis’ wife died on July 4, 2007. Petitioner received a complaint that Mr. Lewis was not working full time for US Lawns and was allowing US Lawns to use his certificate to maintain its business license. Based on the complaint, Michael Walters, who is employed by Petitioner as an environmental specialist II, began an investigation. Mr. Walters went to US Lawns' office and made an inspection. On October 31, 2007, Mr. Walters went to see Mr. Lewis at Mr. Lewis’ home for the purpose of interviewing Mr. Lewis. Mr. Lewis gave Mr. Walters a signed affidavit, which stated: I work full time with U.S. Lawns of Santa Rosa Beach. I have been part time since the loss of my wife, but I do go to work at least once a week and check on things. I do all the training for card holders and such. As soon as I feel better I should be back fulltime. I have been there around 5 yrs., minus one year with another company. In his request for an administrative hearing, Mr. Lewis stated: “I was on vacation for 4 weeks, due to the death of my wife,” and I was not working part time ever. The evidence is clear that Mr. Lewis was not working full time for US Lawns from the time of his wife’s death until at least the date of his affidavit, October 31, 2007.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Lewis violated Subsection 482.121(1)(a) and 482.121(1)(b), Florida Statutes, and revoking his certified operator’s certificate. DONE AND ENTERED this 19th day of August, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 2008.
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.
