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 pertinent hereto, Joey Collins Pest Control of America, Inc. (Collins Pest Control) was subject to the regulatory provisions of Chapter 482, Florida Statutes, and the pertinent rules adopted by Petitioner, as a business entity licensed by Petitioner to engage in pest control in the State of Florida. At all times pertinent hereto, Eric C. Van De Ven was employed by Collins Pest Control as a pest control operator and was subject to the regulatory provisions of Chapter 482, Florida Statutes, and the pertinent rules adopted by Petitioner. On May 15, 1990, Mr. Van De Ven performed a termite inspection at the residence located at 8411 S.W. 84th Terrace, Miami, Florida, at the request of J. Raul Cosio and Maria F. Trabanco, in connection with their intended purchase of that residence. This work was performed in his capacity as an employee of Collins Pest Control. Mr. Van De Ven prepared, signed, and caused to be delivered to Mr. Cosio and Ms. Trabanco, a written inspection report pursuant to Section 482.226, Florida Statutes. This report was prepared on behalf of his employer, Collins Pest Control, on Collins Pest Control's letterhead. This report, states that visible evidence of Formosan termites was observed on the main beam above the pool deck, that live Formosan termites were observed on the main beam above the pool deck, and that there was visible evidence of damage by Formosan termites. The report also estimates that treating the premises by "tent and soil poisoning" would cost $1,525.00. The report did not include observable damage that had been caused by drywood termites. Mr. Van De Ven had observed this damage, but he did not note this damage in his report because the owner of the premises had been aware of the damage, the damaged area had been treated, and the area had been patched. Mr. Van De Ven recommended to Mr. Cosio and Ms. Trabanco that the owners of the premises should contact Truly Nolen, the company that had treated the premises for drywood termites, to determine whether Truly Nolen would pay for any additional treatment that may be necessary. Mr. Van De Ven erroneously identified a drywood termite as being a Formosan termite. There were no Formosan termites on the premises, and there was no condition that would have warranted the treatment recommended by Mr. Van De Ven. All damage that had been observed by Mr. Van De Ven had been caused by drywood termites. Mr. Van De Ven should have been able to distinguish between evidence of Formosan termites and evidence of drywood termites because of the physical differences between the two types of termites and because of the differences between the damage each type does to an infested area. Mr. Van De Ven was negligent in failing to distinguish between the two types of termites and in recommending the unnecessary treatment. There was no evidence that Mr. Van De Ven deliberately misled his customers or that he was trying to sell unnecessary services. There was no evidence that Mr. Cosio or Ms. Trabanco suffered any damages as a result of their dealings with Respondents. There was no evidence that either Respondent had been previously disciplined by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which: finds that Respondents Eric C. Van De Ven and Joey Collins Pest Control of America, Inc. have violated the provisions of Section 482.226(1), Florida Statutes, by performing the subject inspection in a negligent manner; further finds that said Respondents have violated the provisions of Rule 10D-55.1046(6), Florida Administrative Code, by recommending treatment for Formosan termites where there was no evidence of such infestation; and imposes an administrative fine in the amount of $250 against each Respondent. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of February, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1991. APPENDIX TO RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1, 2, and 10 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 3-9 are rejected as being subordinate to the findings made. The only post-hearing submittal submitted by Respondents was in the form of a letter addressed to the Hearing Officer filed January 28, 1991. This letter contained no proposed findings of fact. COPIES FURNISHED: Karen Miller, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401 Joey Collins Pest Control of America, Inc. 243 N.E. 5th Avenue Delray Beach, Florida 33483 Joseph A. Collins, III Owner Joey Collins Pest Control of America, Inc. 243 N.E. 5th Avenue Delray Beach, Florida 33483 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Respondent is licensed by the State of Florida, Department of Health and Rehabilitative Service as a pest control service authorized to perform all functions for which such organizations may be licensed. Gilbert Bellino was certified operator for Respondent from prior to the earliest charge in the Administrative Complaint until mid-1977. He was certified in the four types of treatment authorized by pest control companies, viz. fumigation, general household pest control, including rodent control, termite or other wood infesting organisms control, and lawn and ornamental pest control. A certified operator is required to supervise and direct the activities of all employees engaged in pest control. Many of the complaining witnesses made their first contact with Respondent when answering an advertisement for a onetime household pest treatment and a free termite inspection. Lloyd Green responded to an ad in which Respondent offered a spray treatment of the yard and house for $15. Folsom and Jones appeared and after an inspection of his house advised Green that he had dry wood and subterranean termites and induced him to sign a contract to treat them at a price of $286. After reflection and before any work was done Green called and cancelled the contract. He had the house inspected by Mr. Chapman of Chapman Pest Control who found no evidence of active infestation. All evidence Chapman found of wood damage was done prior to the timber having been processed. The house was later inspected by David Jones, District V Entomologist and he too found no evidence of active infestation. A second inspection of Green's home was made by Jones in company with Casale, the President of Respondent. The only evidence found was one hole in a bed slat which had occurred before the lumber was processed. Turpentine beetles and pine sawyer beetles are wood borers that attack trees but not processed lumber. Once lumber is processed any further damage from these beetles is highly improbable if not impossible. Evidence of the damage they have caused will remain in the wood but is readily distinguishable from an active infestation by one with almost any training in pest control. Wood borers make round holes and any eliptical hole found in timber is indicative that the hole was made before the wood was processed. The oblique angle to the borer's tunnel cut by the saw when the lumber was processed causes an eliptical hole. Charles Casale visited Robert Rankin's house for a free termite inspection and identified himself as an employee of Respondent. He was accompanied by another man who inspected the crawl space under the house. Upon completion of the inspection Casale advised Rankin he had an infestation and needed treatment which would cost $300. After getting an opinion from another pest control company that he did not have termites Rankin called HRS and David Jones inspected the entire house. At this inspection Jones found no evidence of active infestation but a colony of fleas from Rankin's two dogs. At the time of Casale's inspection application for an identification card had not been submitted for Casale. Thelma P. Wray contracted with Respondent for fumigation of her house. No written instructions were given her by Respondent, nor was she advised to remove medicines. She was advised to remove only milk cartons, cheese and open food. The only warning sign placed on front and rear of house during fumigation (Exhibit 4) on November 10, 1974 did not show type of fumigant used and stated house is safe for reentry at 10:30 a.m. December 11, 1974. This sign appeared on the house the evening of December 10, 1974 and was placed only at the front and rear. No notice of this fumigation was provided to the County Industrial Hygienist who maintains records of notices of all fumigations. Neither Mr. nor Mrs. Chaney testified. No one having personal knowledge was called to identify Exhibit 6 and no evidence was offered that Larry A. Donald, Jr. was employed by Respondent and visited the Cheney home without a valid identification card. Mrs. Ruby Moser did not testify. No witness was produced to testify regarding Phillip Jones' visit to the Moser home on June 10, 1975 or identify Exhibit 7. Neither Mr. nor Mrs. Donald R. Seldes testified. No evidence was presented regarding the alleged visit of Bill Gillian, while an employee of Respondent, to the home of the Seldes. Judith Bashline was contacted by Respondent through telephone solicitation for special pest cleanout and termite inspection. One man sprayed for the pest cleanout and he was followed by Phillip Jones and Ken Ely, Jr. who, after inspecting the attic, advised her she had an infestation in the attic in a dormant state which needed immediate treatment. She entered into a contract for spot treatment for $190. After Jones and Ely left Mrs. Bashline began having misgivings and called another pest control company for information. She was referred to HRS and there contacted David Jones who inspected the property. Upon inspection Jones found no evidence of active infestation - only the preprocessed type damage found in the other homes. When Helen M. Hopper purchased her home at 1037 - 12th Street North, St. Petersburg, Florida she acquired a subterranean termite policy from Respondent. She then started monthly sprayings with Respondent. After the first spraying on September 16, 1975, Ken Ely, Jr., an employee of Respondent, went into Hopper's attic and told Mrs. Hopper she had borers in the roof and needed immediate treatment to save the roof. After he left she called another pest control company for verification. When that company inspected the attic they reported no problem with borers. She then called HRS and David Jones inspected the premises October 24, 1975 and in the attic he found only old damage which had occurred before the wood was processed. There was no infestation for which treatment was indicated. When Donald R. Bond II and his wife purchased a home his mother recommended they use Gulf Coast Pest Control. In January, 1977 Robert R. Plowman, an employee of Respondent, advised the Bonds that they had powder post beetles and dry wood termites and the attic needed to be treated. He came back that evening when Mr. Bond was home and a contract for the work was signed. The following day Mrs. Bond had two other pest control companies inspect the house. Whey they advised her there was no evidence of active infestation she cancelled her contract and called HRS. On February 10, 1977 David Jones inspected her property. He found no evidence of borer or termite infestation; however Jones did find evidence of rat infestation. On June 26, 1976 Robert R. Plowman, an employee of Respondent, inspected the home of Rita M. Spera at 9783 - 52nd Avenue North, St. Petersburg, Florida and reported to her that there was an infestation of wood borers in the attic and she needed to have fumigation. The previous year the Speras had replaced the shingles on the roof and had found the wood in good condition. Accordingly Mrs. Spera really didn't believe Plowman and called HRS for verification. When David Jones Inspected the house on July 2, 1976 he found only evidence of old damage that had occurred before the wood was processed. No evidence of active infestation was observed. Mrs. Ellen M. Hameroff received a telephone solicitation from Respondent for a cleanout and termite inspection. She accepted the offer and on September 2, 1976 Robert R. Plowman, an employee of Respondent, inspected her attic and reported that powder post beetles were present and treatment was needed which would cost $200 to $400. Plowman returned that evening to talk with Dr. Hameroff but they didn't sign a contract. The following day another pest control company was contacted for an inspection. They reported no infestation. She then called HRS and on November 22, 1976 David Jones inspected the property and found only evidence of old damage. On September 1, 1977 William C. Bargren, Scott Askins and F. R. DuChanois, Entomologists with HRS inspected the Hameroff property. They found evidence that pine sawyer beetles had been in the tree from which some sheathing boards in the attic had been processed. There was no evidence of infestation in the Hameroff home. In December, 1976 Robert L. Dill had a spray and free inspection by Respondent on his home at 1551 Citrus Street Clearwater, Florida. Following an inspection of the home, Robert R. Plocnan and John D. Lucas, employees of Respondent, advised Dill that he had powder post beetles in the attic, ceiling and floor under the house and needed treatment. Before agreeing to the treatment for the powder post beetles and preventive treatment for termites for which Respondent wanted $500, Dill had two other pest control companies inspect the property. Both of these companies advised Dill he had no infestation. Jimmy Robinson of Exterminator Terminix, International, a certified operator, inspected the Dill property on November 22, 1976 and found no evidence of powder post beetles or termites for which treatment was indicated. He noticed no damage to floor but did see some evidence of borers before the wood was processed. When Dill reported the incident to HRS, David Jones inspected the property on January 20 and 26, 1977, the second time in company with the Casales, Plowman and Donald. Damage to wood in the floor was done before the lumber was processed and no infestation was present for which treatment was indicated. Lawrence A. Donald, an employee of Respondent, holds a certified operator's license and he found evidence of "tremendous damage due to boring animals" under Dill's house. He opined that there were live larvae in the wood, however, his credibility and expertise left a great deal to be desired. During a monthly contract spraying Robert R. Plowman, an employee of Respondent, told Mrs. Shirley I. Bond that she had powder post wood borer beetles in the attic of her home at 6701 - 19th Street North, St. Petersburg, Florida and needed to have the attic power dusted. Mrs. Bond gave Plowman a check for $295 but after her daughter-in-law's experience, stopped the work. She called HRS and David Jones inspected her property on April 14, 1977. He found no evidence of infestation and in Jones' opinion the power spray of Dridie (a trade name for silica gel) would not be appropriate to treat dry wood termites or powder post beetles. Raymond L. Jackson employed Respondent for the advertised "clean-out" and free inspection. On January 6 and 7, 1977 Robert R. Plowman, an employee of Respondent, inspected Jackson's property at 6243 - 6th Avenue South, St. Petersburg, Florida and advised Jackson that he had active termites and powder post beetles and needed treatment. Jackson signed a contract and paid Plowman $300 for the work. About two weeks later two men power dusted Jackson's attic. After reading an article in the newspaper about powder post beetles Jackson called HRS and his property was inspected by Askins on July 26, 1977 and by Askins and Bargren on August 10, 1977. The only evidence of damage they found was that caused by turpentine beetles prior to the wood being processed. In their opinion no treatment was indicated before the power dusting was done. Mrs. Helen Stambaugh had a "clean-out" and free termite inspection in July, 1977 at her home at 2518 - 67th Avenue South, St. Petersburg, Florida by Respondent. Larry D. Brown, an employee of Respondent, to whom an application for identification card had not been submitted, told Mrs. Stambaugh that dry wood termites were infesting her garage and treatment was necessary. Spot treatment was offered for $130. She contacted another pest control company who, after inspection, advised that no treatment was indicated. She then called HRS and on July 20, 1977, Bargren and Askins inspected her property and found only evidence of old turpentine beetle damage in the garage which had occurred before the wood was processed. No infestation for which treatment was indicated was observed. In October, 1975 representatives from Gulf Coast Pest Control, Louis Casale, the company manager, Carmine Casale the owner and Gilbert Bellino, the certified operator, met with HRS representatives in Jacksonville to discuss the numerous complaints HRS had received about Respondent and to formulate remedial action. At this meeting the need for additional training of their salesman was discussed in connection with the complaints filed by Green, Rankin, Wray, and others with particular emphasis on the need to train their operators to distinguish old damage in the preprocessed tree from damage requiring correction. Respondent agreed to increase their training to improve the quality of their inspectors. Respondent has discharged all of the salesmen who made the misrepresentations noted above. Plowman was finally discharged because "he was too dumb" to learn to distinguish between old damage not requiring treatment and new damage which did require treatment. However, Plowman was continued as an employee even after criminal charges involving fraudulent misrepresentation had been filed against him.
Findings Of Fact Respondent is and at all material times has been a certified pest control operator in the category of fumigation. He works for Thumb Pest Control, Inc. He was the supervisor present when the company performed the tent fumigation of a residential structure located at 11 West Muriel Street, Orlando, Florida, on May 29, 1987. On May 28, 1987, Respondent gave Petitioner and the Orlando Fire Department written notice of the details of the job, including his night telephone number. The night number was for Respondent's home telephone. Respondent lived in Tampa. His telephone number was in the "813" area code, not the "305" area code of Orlando. The notice did not disclose Respondent's area code. However, the form bore the address of Thumb Pest Control, Inc., which was in Tampa. It was Respondent's understanding-- uncontradicted by Petitioner-- that he was required by law to give this notice only to Respondent; he gave the notice to the Orlando Fire Department as an added precaution. Respondent and Tim Lightner, a certified operator and the Orlando branch manager of Thumb Pest Control Inc., testified that the tent did not have tears when they released the fumigant at around 3:00 p.m. on May 29, 1987. Their testimony is credible and unrebutted. The fumigant that they used was methyl bromide. The fumigant also included chloropicrin, which is a warning odorant accompanying the odorless methyl bromide. The commercial formulation of the fumigant in this case was Brom-O-Gas. This is a highly toxic gas which causes nausea, convulsions, and death to humans exposed to it. The manufacturer states in a booklet accompanying Brom-O-Gas that "two persons trained in the use of this product must be present at all times when worker exposure exceeds 5 PPM. . . ." Petitioner's Exhibit Number 4, page 1. In another document, entitled "Structural Fumigant: A guide for fumigating effectively with Bromo-O-Gas," the manufacturer emphasizes, as the title suggests, methods designed to increase the killing efficiency of the pesticide. The manufacturer suggests frequent monitoring during fumigation when persons are occupying an adjacent building sharing a common wall with the building being fumigated. Petitioner's Exhibit Number 5, page 2. By negative implication, the manufacturer does not suggest monitoring when persons occupy buildings that are nearby but not sharing a common wall. At around 8:30 p.m., the Orlando Fire Department received a telephone call from a neighbor living nearby the tented house. She reported that fumigant was escaping from the tent. Members of the Orlando Fire Department responded to the call and found that the tent had approximately ten tears in it with some as much as one foot long. It took six firemen about two hours to repair the tears with duct tape. Prior to making the repairs, the firemen contacted their dispatcher and directed him to try to reach a representative of Thumb Pest Control, Inc. There was no admissible evidence concerning precisely how the dispatcher or dispatchers, who did not testify, tried to reach Respondent or other representatives of Thumb Pest Control, Inc. In any event, the Orlando Fire Department was unable to reach anyone with Thumb Pest Control, Inc. that evening. Respondent testified that he, his wife, and one-year old child were home all evening on May 29, 1987, and that he received no calls. He also testified that he uses a telephone answering machine when away from home and, even though he was home all night, he had no messages from that evening. There does appear to have been some confusion concerning area codes. There also was no positive testimony that anyone tried to telephone the night number of Respondent, as shown on the fumigation notice that he had delivered the prior day, together with the "813" area code.
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:
Findings Of Fact Petitioner is an agency of the State of Florida with the responsibility for regulation and control of structural pesticide use and application and disciplinary action against pesticide license and certificate holders in Florida under the provisions of Chapter 482, F.S., as amended by Chapter 92-203, Laws of Florida, and the rules promulgated thereunder. Petitioner is the successor to the Department of Health and Rehabilitative Services, as provided in Section 34, Chapter 92-203, Laws of Florida, effective July 1, 1992, for the above duties and responsibilities. At all times material to this action, Respondent was a Certified Operator, Certification No. 1872. Respondent admitted that at all times material, he understood that he could not legally be issued more than one license or identification card. Respondent was originally working for Coastal Pest Control Inc. (Coastal Pest) on a strictly commission basis. Coastal Pest paid Respondent a weekly draw against a 15 percent commission on pest control work he personally did for them. While Respondent was so-employed for Coastal Pest, Respondent's wife was employed as an office worker for 3-D Universal Pest Control Inc. 3-D Universal Pest Control Inc. (3-D Universal) was then purchased by a new owner, Pete Luongo. Mr. Luongo wanted to become qualified in the pest control business. Respondent agreed to help Mr. Luongo become qualified. The principals of 3-D Universal, Mr. and Mrs. Luongo, knew before hiring Respondent that he worked for Coastal Pest. Mr. Luongo, on behalf of 3-D Universal, guaranteed Respondent a salary, and Respondent thereafter was "on call" to 3-D Universal for 24 hours a day. Respondent's wife set up schedules so that Respondent could work for both pest control companies on an "on call 24 hours a day" basis. Neither schedule set out a specific shift for Respondent with one company or the other on a daily basis. At all times material, Respondent considered himself employed "full-time" by 3-D Universal. There is no evidence as to whether Coastal Pest's principals knew or did not know of Respondent's employment by 3-D Universal. Respondent worked daily on paperwork and on training Mr. Luongo. Respondent testified that by agreement with Mr. Luongo, Respondent's employment with 3-D Universal was not supposed to involve any field work or handling of chemicals. Respondent set up this arrangement with 3-D Universal in reliance upon his own personal assessment that in so doing, he was complying with Section 482.091(6) F.S. which exempts office employees from holding identification cards. That statutory section is set out fully within the Conclusions of Law, infra. Respondent's testimony on this issue is credible as to intent, but not as to performance. On June 12, 1991, Petitioner agency received Coastal Pest's application for an identification card for Respondent. (Exhibit P-1-A) The application stated that Respondent was an employee of Coastal Pest Control, Inc., 414 Grant Street, Port Orange, Florida, working under a certified operator in charge. Respondent purportedly signed a representation thereon that he was not then employed by any other pest control licensee. It may be reasonably inferred that Respondent was issued a card as a result of this application, because he admitted that he was originally employed by Coastal Pest. On June 13, 1991, the agency received from 3-D Universal, 385 Dorset Avenue, Deltona, Florida, a combined application for a business license and request for identification cards which stated that Respondent was the certified operator in charge of all areas of 3-D Universal's pest control. No other certified operators were listed on this form. This form bears no signatures. On June 21, 1991, a new business license 3884 was issued by the agency to 3-D Universal. (Exhibit P-1-B) An identification card application for Respondent was also filed with the agency on June 13, 1991 (Exhibit P-1-C). The portion of the June 13, 1991 identification card application whereby Respondent was required to disclose that he was either (a) employed elsewhere and applying for a second card for experience in various areas of pest control or (b) was not currently employed elsewhere was left blank. The signature line for the card applicant was also blank. Respondent purportedly signed the line for the "certified operator in charge or licensee's authorized agent" and the remainder of the form clearly lists Respondent as "certified operator in charge" of all areas of pest control for 3-D Universal. Because the 3-D Universal combined business license and identification card application form (Exhibit P-1-B) provides that new identification cards must be issued with each license, and since that form was accompanied by an identification card application form signed by Respondent (Exhibit P-1-C), it may be reasonably inferred that a new, annually renewable identification card was issued to Respondent for work through 3-D Universal. Moreover, since the "William E. Peyton" signature on the June 13, 1991 3-D Universal identification card application (Exhibit P-1-C) appears to be the same as the "William E. Peyton" signature on the June 12, 1991 Coastal Pest identification card application (Exhibit P-1-A), the undersigned infers therefrom that Respondent signed both applications and that he knew that 3-D Universal had also applied for its business license on June 13, 1991 (Exhibit P-1-B). It is not credible that some person other than Respondent penned the same signature in his name for a Coastal Pest identification card on June 12, 1991 and for a 3-D Universal identification card on June 13, 1991. On August 22, 1991, the agency received Coastal Pest's combined business license renewal application for license no. 2803 and identification cards which listed Respondent as one of Coastal Pest's certified operators or special identification card holders in charge of no named category of pest control. This application was not signed. No separate request form for an identification card signed by Respondent accompanied it. The license was renewed August 27, 1991. It is unclear whether a new identification card was issued to Respondent with this license renewal. Unlike the earlier situations, issuance of new cards cannot be inferred here, in light of there being no separate identification card application signed by Respondent and due to an indicator on the exhibit that acknowledges only payment of the $75.00 license renewal fee and not the $5.00 fee for each new card. (Exhibit P-1-D) On March 19, 1992, the agency received 3-D Universal's combined business license renewal application for business license number 3884 and request for identification cards, on which Respondent was listed as a certified operator in charge of all areas of 3-D Universal's pest control. Respondent is the only certified operator listed on this application form. The application was not signed. The business license was renewed May 29, 1992. No inference that a new identification card was issued to Respondent can be made from this exhibit because no fee for cards was acknowledged with the business license fee and no separate application for an identification card was signed by Respondent. (Exhibit P-1-E) On August 20, 1992, the agency received Coastal Pest's unsigned combined business license renewal application and request for identification cards on which Respondent is listed as one of its certified operators or special identification card holders. This form lists no areas of pest control under Respondent's control. Although the renewal fee was apparently tendered, there is no indication that the business license was renewed or that new identification cards were issued. (Exhibit P-1-F) The agency's administrative complaint and post-hearing proposals assert that the agency terminated each prior license and all identification cards simultaneously with issuing each new license. If these allegations had been proven, they would explain why Coastal Pest's license 2803 was not renewed with its August 20, 1992 renewal application. If these allegations had been proven, then the agency's allegations that Respondent knowingly and intentionally operated simultaneously under two cards with different business licensee employers would be significantly undermined. However, the exhibits in evidence do not "prove up" any termination of licenses or cards by the agency, and there was no oral testimony to that effect. Likewise, Section 482.091(4) F.S. (set out on full in the Conclusions of Law, infra.) does not provide for automatic expiration of Respondent's cards for both licensees until at least June 1992 under the facts of this case. Respondent testified, without corroboration, that Mrs. Luongo had applied for the 3-D Universal business license and identification cards without his knowledge and that within moments of his being notified by an agency field operative that she had done so, Respondent quit his employment with Coastal Pest. Respondent did not give a date for when precisely this occurred, but giving him the benefit of the doubt, and upon the evidence as a whole, it is probable that he was referring to the March 19, 1992 3-D Universal application, for the totality of the evidence shows Respondent was involved in the initial 3- D Universal application of June 13, 1991. See, Finding of Fact 11, supra.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Commissioner of Agriculture enter a final order privately reprimanding Respondent and imposing a three-month period of probation. RECOMMENDED this 4th day of October, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1993. APPENDIX TO RECOMMENDED ORDER 93-2245 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: Accepted, except as unnecessary, subordinate, or cumulative. Accepted. 3-11 These proposals reiterate the administrative complaint and, in part, track the lengthy certification of the agency clerk attached to Exhibit P-1. The certifications of the clerk and the interpretations of the agency notwithstanding, these proposals are accepted in part in Findings of Fact 8-15 and rejected in part as not supported by the exhibits themselves, hence not supported by the record. Respondent's PFOF are not numbered or paragraphed in any way that can be readily ruled upon, pursuant to Section 120.59(2) F.S. They are apparently intended as persuasive argument and are discussed as such within the Conclusions of Law. Respondent's concern that settlement negotiations have been considered is ill- founded. Exhibit P-2 constitutes the Respondent's Answer and Request for Informal Hearing which was converted to a Formal Hearing. COPIES FURNISHED: Gabriel Mazzeo, Esquire Department of Agriculture & Consumer Services Mayo Building, Room 515 Tallahassee, Florida 32399-0800 William E. Peyton 977 Whippoorwill Drive Port Orange, Florida 32127 Richard Tritschler, Esquire General Counsel Department of Agriculture & Consumer Services Mayo Building, Room 515 Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture & Consumer Services Mayo Building, Room 515 Tallahassee, Florida 32399-0800 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800
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 Petitioner, Department of Health and Rehabilitative Services, is the regulatory agency charged with regulating the terminate and pest control industry in Florida. Respondent, Howard R. Kempton, is a certified operator licensed by the Petitioner. During times material, Respondent was a certified pest control operator for Pinellas Termite and Pest Control, Inc., in St. Petersburg. On July 24, 1991, Respondent was the certified operator in charge of fumigation of a residential structure at 3318 Shamrock in Tampa, Florida. In carrying out the fumigation, Respondent used the fumigant product VIKANE (sulfuryl fluoride). Respondent did not provide Petitioner a notice of the intended fumigation at 3318 Shamrock in Tampa within 24 hours in advance of the fumigation as is required by the Petitioner's rules and the labeling provisions for the product VIKANE. In addition, Petitioner's inspector, William Bargen, who has been employed by Petitioner in the office of entomology in excess of 28 years, visited the residence on the day of the fumigation and the tarpaulin that Respondent used was not air tight as practicable in that it contained numerous slits and tears that was not properly sealed at the ground level encompassing the structure. The safety warning signs fastened to the exterior of the tarpaulin were not printed in indelible ink or paint and the emergency phone numbers for the certified operator were not legible. As a result of the improper seals, the fumigant VIKANE was escaping from the tarpaulin while the gas was being pumped into the structure at 3318 Shamrock on July 24, 1991. Inspector Bargen took photos of the fumigation tent as it was in place at 3318 Shamrock on the day in question, July 24, 1991 and it depicts the condition of the tarpaulin and the improper signs that were utilized by Respondent on that jobsite. The owner of the property called Petitioner's office and Inspector Bargen visited the site on July 24, 1991. It is undisputed that Respondent alerted the homeowner to call Petitioner who in turn dispatched Inspector Bargen to the site based on instructions from Respondent that he alert the Department of the on-going problems that he was having with his employer, Pinellas Termite and Pest Control, Inc. Respondent admits that the manner in which the fumigation occurred on July 24, 1991 at 3318 Shamrock in Tampa was improperly performed. However, Respondent offers that he did as much as he could under the circumstances to comply with the Petitioner's rules and regulations and the labelling instructions for the fumigant VIKANE as set forth by the manufacturer. Respondent related numerous occurrences whereby he attempted to convey the importance of carrying out the proper instructions to his employer without success. As a result, Respondent sought other employment and is no longer employed as a certified operator with Pinellas Pest Control. Finally, while Respondent recognized that a certified operator is responsible for the overall operations of the fumigation projects that he is in charge of, he relates that instructions were given to office personnel at Pinellas Pest Control to advise the Petitioner of the 24 hour notice prior to the date of fumigation and he was under the impression that timely notice was forwarded to Petitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order imposing an administrative fine against Respondent in the amount of $250.00 payable to Petitioner within 30 days of the entry of the Petitioner's final order.1/ DONE and ENTERED this 29 day of May, 1992, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29 day of May, 1992.
The Issue The issue in this case is whether an application for a pest control employee-identification card filed by Respondent, Larry Kravitsky, with Petitioner, the Department of Agriculture and Consumer Services, should be denied for the reasons stated in Administrative Complaint # A61227, BEPC Case # 09-0850.
Findings Of Fact Respondent, the Florida Department of Agriculture and Consumer Services, Bureau of Entomology and Pest Control (hereinafter referred to as the “Department”), is charged with the responsibility of administering and enforcing the provisions of Chapter 482, Florida Statutes, the “Structural Pest Control Act.” Among other duties, the Department is responsible for issuing pest control employee-identification cards. On or about February 13, 2007, the Department issued an Administrative Complaint and Settlement Agreement, Notice to Cease and Desist, BEPC Case Number 06-1951, Administrative Complaint Number A47018, against Larry Kravitsky (hereinafter referred to as the “Disciplinary Administrative Complaint”). It is alleged in Count 1 of the Disciplinary Administrative Complaint that Mr. Kravitsky committed a violation of Section 482.165(1), Florida Statutes (2006), by “practicing pest control in the State of Florida without a Pest Control Business License . . . .” In Count 2 it is alleged that Mr. Kravitsky violated Florida Administrative Code Rule 5E- 14.106(1) by “[a]pplying a pesticide in a manner inconsistent with its labeling ” On or about February 28, 2007, Mr. Kravitsky disputed the facts upon which the Disciplinary Administrative Complaint is based and requested a formal administrative hearing pursuant to Sections 120.569, and 120.57(1), Florida Statutes. On December 4, 2007, the matter was filed by the Department with the Division of Administrative Hearings requesting that an administrative law judge be assigned to conduct the formal hearing requested by Mr. Kravitsky. The matter was designated DOAH Case No. 07-5600PL and was assigned to the undersigned. An evidentiary hearing was held in DOAH Case No. 07- 5600PL on December 18, 2008. On June 2, 2009, a Recommended Order was entered in DOAH Case No. 07-5600PL. The Findings of Fact, Conclusions of Law, and recommendation in that case are hereby incorporated by reference into this Recommended Order. In the Recommended Order Mr. Kravitsky was found to have violated Section 482.165, Florida Statutes, and Florida Administrative Code Rule 5E- 14.106(6), as alleged in the Disciplinary Administrative Complaint. On July 14, 2009, a Final Order was entered by the Department in the disciplinary Administrative Complaint case. The Findings of Fact and Conclusions of Law set forth in the Recommended Order were adopted “in their entirety” and Mr. Kravitsky was ordered to pay a fine of $4,000.00. On or about January 6, 2009, subsequent to the issuance of Disciplinary Administrative Complaint and prior to the entry of the Recommended Order in DOAH Case No. 07-5600PL, Mr. Kravitsky applied with the Department for a pest control employee-identification card. By Administrative Complaint # A61227, BEPC Case # 09- 0850, the Department notified Mr. Kravitsky that his January 6, 2009, application for a pest control employee-identification card was being denied based upon the following: A copy of an Administrative Complaint and Settlement Agreement against Larry Kravitsky dated February 13, 2007, Administrative Complaint Number A47018, BEPC Case Number 06-1951 is attached hereto as Exhibit A. The factual allegations against Mr. Kravitsky in Exhibit A are incorporated by reference herein. Based on the factual allegations in Exhibit A, Larry Kravitsky practiced pest control on or about June 5, 2006, in the State of Florida without a pest control business license and without an identification card in violation of Section 482.165(1), Florida Statutes. Based on the factual allegations in Exhibit A, Larry Kravitsky applied a pesticide on or about June 5, 2006, in a manner inconsistent with its labeling in violation of Section 5E-14.106(1), Florida Administrative Code. The Department is authorized by Florida Statutes, Section 482.161(1)(a) to deny the application for licensure of an identification cardholder for the violation of any provision of Chapter 482, Florida Statutes or of any rule adopted by the Department pursuant to Chapter 482, Florida Statutes. The alleged violations against Larry Kravitsky set forth in Exhibit A were tried in an administrative hearing on December 8, 2008, before Honorable Larry Sartin Administrative Law Judge in Division of Administrative Hearings (DOAH) Case Number 07-5600. A Recommended Order has not yet been issued in that case. Mr. Kravitsky disputed the foregoing allegations and requested a formal administrative hearing. His request was filed with the Division of Administrative Hearings and designed DOAH Case No. 09-2300.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services denying the application for a pest control employee-identification card filed by Larry Kravitsky due to his violation of Section 482.165, Florida Statutes, and Florida Administrative Code Rule 5E-14.106(6), as alleged in the Disciplinary Administrative Complaint and found in DOAH Case No. 07-5600PL. DONE AND ENTERED this 10th day of August, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 2009. COPIES FURNISHED: David W. Young, Esquire Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Larry Kravitsky 3300 South Ocean Boulevard, Apartment 917 Highland Beach, Florida 33487 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue The issue for consideration in this matter is whether the Department should issue a Warning Letter to the Respondent because of his application of a pesticide in a client's home on September 16, 1994.
Findings Of Fact At all times pertinent to the issues herein, the Department of Agriculture was responsible for the registration, licensing and regulation of pest control applicators in Florida. In September, 1994, Crystal S. Tipton contacted the Respondent, Michael A. Kaeler, as the representative for Terminix International, and requested that he come to her home, located at 6253 Old Trail in New Port Richey, to spray for bugs and fleas. Mrs. Tipton had a contract with Terminix, dated July 19, 1994, which called for periodic applications, and this was the second visit under the plan. On September 16, 1994, Respondent came to the home in response to the call, arriving about 9:00 AM. At that time, Mrs. Tipton advised him that she had had a bad reaction from the July spraying. On September 16, 1994, Mrs. Tipton was in the house alone. Respondent started treating the house shortly after he arrived. Mrs. Tipton had told him not to spray her daughter's bedroom because of the reaction the child had had from the prior treatment. Mrs. Tipton remained in the house, cleaning, while Respondent applied the substance. At no time, she asserts, did Respondent instruct her to leave the house or give her any instructions except to tell her to wear shoes when she walked on the carpet. He did not tell her to stay off the carpet until it dried. According to Mrs. Tipton, while Respondent was applying the pesticide, on occasion she was in the same room with him, and she could smell the spray. At no time did he advise her to leave the room while he sprayed. Respondent also got behind the baseboards to spray, and put pesticide on the ground outside the house. He then left. According to Mrs. Tipton, the smell was worse this time than after the first spraying. Though she opened all the windows, even while Respondent was spraying, the smell remained for hours, and at 11:30 PM, the carpet was still damp, she claims. As she recalls it, the smell stayed in the house until the following day. After Mrs. Tipton realized there was a problem, she contacted several experts to come out and see what could be done. Her husband contacted Mr. Bowen, the Department's local representative, and told him what had happened, but no other complaint was filed. Mrs. Tipton called Terminix the Monday after the spraying to tell them that all the people in the house were sick. They did not respond promptly, so she had the carpets cleaned and a maid service in to clean the house, but even after that the smell was still present. Mrs. Tipton does not know what chemical was applied in her home by Respondent either in July or in September. She recalls only that in July Mr. Kaeler also told her to wear shoes on the damp carpet. On that occasion, the carpet was damp for three to four hours after spraying, but she does not know how much chemical was applied. During the September application, Mrs. Tipton remained in the family room and the kitchen while Mr. Kaeler was applying the substance throughout the house, and even when he was applying in the kitchen, which is tiled. Though he used a broadcast spray in those areas which were carpeted, including the living room, the dining room, the family room, the master bedroom, the halls, and the entrances to the children's bedrooms, he used a pin spray in the kitchen. Whereas the broadcast spray gives a wide application, the pin spray is exact and puts the pesticide in a very limited area. She had told him not to spray in the children's rooms, and claims she asked him not to use the same spray he had used in the earlier visit. Mrs. Tipton claims Mr. Kaeler did not tell her he had used the same spray but in a diluted strength or in a lesser volume. She claims he said he would not use the same spray and would not spray the daughter's bedroom. It would appear he did not spray the children's rooms, but there is no indication he used a different spray in September than in July. Mrs. Tipton claims the carpet remained damp far longer than it did during the July spraying and she thought this was unusual. When Mr. Bowen, the Department's entomologist inspector, was contacted by Mr. Tipton, he gave Mr. Tipton some advice on how to deal with the problem. The children's doctor also called Bowen about what Bowen had told Mr. Tipton. When Mr. Tipton finally suggested that the pesticide had been applied improperly, Bowen opened his investigation. He took Mrs. Tipton's statement and got the doctor's comments. He also took a statement from Mr. Kaeler and his records for the July and September applications, as well as copies of the labels from the containers of the pesticide applied. The Department requires that all products be used consistent with the labeling instructions and the standards of the Department and the Environmental Protection Agency, (EPA). From his investigation, Mr. Bowen determined that the Respondent used Dursban L.O. Mr. Bowen is familiar with that product and determined that the Respondent applied the product at a concentrated rate in a broadcast pattern over the carpets. This was appropriate, but if it were done while people other than the applicator were in the structure, he contend this was specifically prohibited by the label. In his opinion, Mr. Kaeler's actions constitute a violation of the statute and the Department's rule. None of the information received by Mr. Bowen from the family doctor or the Health Department related to the propriety of Respondent's application of the product. These contacts related only to the health of the children. The only reference to possibly improper application is found in Mrs. Tipton's undated statement. The label on the Dursban L.O. product indicates, "Other than the applicator, treated areas should be vacated during application. Do not permit humans or pets to contact treated surfaces until the spray has dried." Mr. Bowen did not contact the manufacturer to see what "areas" being treated meant. He feels that the interpretation is up to his agency, and he agrees with the agency determination that the entire residence must be vacated. No direct evidence was presented to show the agency determination, however, and it appears the determination of propriety of application was left up to Mr. Bowen. A broadcast spray is used for large areas. A pin stream is used for cracks and crevices. A pin stream application does not, in Mr. Bowen's opinion, require vacation of the structure. The broadcast spray for flea control does, however, as he sees it. If the manufacturer were to hold that application did not require evacuation of the entire structure, but only the room being treated, then in that case, Mr. Bowen would conclude that the application by Mr. Kaeler was appropriate. As he recalls, Mr. Kaeler used one half gallon of 1/4 percent solution for an 1800 square foot application. This was a fairly light treatment. Mr. Bowen has, himself, applied Dursban L.O. at this rate. Mr. Kaeler has been employed by Terminix since November, 1993 as a service technician. He underwent 30 days of a training program in identification of insects and application techniques and requirements of pesticides, including Dursban, with the company. He is not licensed. Terminix holds the license under which he operates. Mr. Kaeler admits that when he treated the Tipton house on September 16, 1994, Mrs. Tipton complained of her daughter's head aches resulting from the prior application and asked him not to spray the child's bedroom, but she did not object to the use of this pesticide. He broadcast sprayed all the carpeted area up to the entry to the girls' bedrooms. In all the girls' rooms there were clothes, books and toys on the floor so he did not spray inside. In the kitchen, which, he claims, was the only location where Mrs. Tipton was present while he sprayed, he used the pin stream technique. The entire spraying took about 30 minutes. Mr. Kaeler also sprayed the windows and doors from the outside and the garage, using the pin stream spray in all those locations. The one half gallon of solution was used to do all the spraying at the Tipton's house that day, both inside and out. Mr. Kaeler believes that the solution he sprayed on the carpeted areas on September 16, 1994 should have dried in no more than an hour. He confirms that Mrs. Tipton opened the windows and turned on the fans while he was still spraying. He had told her to do this the first time. As Mr. Kaeler understands it, Terminix's policy is that occupants of property being broadcast sprayed for insects should stay off the carpet being sprayed but need not vacate the structure. Dr. Ellen Thoms, an entomologist working for the manufacturer of the chemical in issue, indicates that the label instructions on containers of Dursban L.O. were intended by the company to mean that the term "area" where the chemical is being applied by broadcast spray includes not the entire structure but the immediate area of the application because of the possibility of spraying the chemical on someone. The danger is in contact with the substance through the skin or through oral ingestion, not in the odor or the fumes. In Dr. Thoms' opinion, Mr. Kaeler's application was consistent with the terms of the label, which uses the term "should" rather than the term "must". The drying time for carpet sprayed with Dursban L.O. by broadcast spray is effected by the thickness of the carpet and the relative humidity in the sprayed area. Since a greater amount of applied substance dried more quickly in the high humidity of July, in Dr. Thoms' opinion it is unlikely a smaller amount applied in September would take more than 14 hours to dry. She does not know what the climate factors were that day, however. Dr. Mangold, a technical specialist for Terminix, and an entomologist certified in all four categories of pest control, reviewed all the material evidence in this case and heard the testimony given at hearing. He has concluded that what Mr. Kaeler did was conservatively to apply a very diluted spray, usually applied at a rate of one gallon per 1,600 square feet. His one half gallon application for an 1,800 square foot house, plus outside, is an appropriate maintenance application. In Dr. Mangold's opinion, Mr. Kaeler's application in September, 1994 was consistent with the label requirements in amount, concentration and percent, and with the requirement that all other persons be out of the area being treated. He does not believe, in light of what was shown, it could have taken in excess of fourteen hours for this application to dry. In his opinion, drying should have taken between twenty minutes and an hour, and he can see no possible explanation for it having taken as long as Mrs. Tipton claims. Dr. Mangold defines the term "area treated" as being the immediate area being treated - an eighteen inch swath and some adjacent area, to-wit: the area being contacted by the spray. Mr. Lemont, a fully certified entomologist-consultant reviewed the file on this case and heard the testimony given at hearing. In his opinion, the term, "area treated" includes the contact area, not the entire structure. He believes Mr. Kaeler performed consistently with the label instructions and there was no violation. The words, "should" and "may", are interpreted in the trade as permissive and non-enforceable. Stronger words, such as "shall" and "must", are directive and enforceable. Mr. Lemont agrees that the application by Mr. Kaeler was a light application. Drying depends on humidity, but often an application dries before the operator leaves. He cannot believe this application would have taken more than two to three hours, even under the most adverse atmospheric conditions. Certainly, it would not have taken more than fourteen hours. In Lemont's opinion, the issue of how close an applicator can come to others while applying Dursban L.O. by broadcast spray is a judgement call. The issue is contact. Mrs. Tipton was not positive on the issue of Mr. Kaeler's being in the room with her, other than the kitchen, while applying the substance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT a Warning Letter not be issued to either Michael A. Kaeler or Terminix International Co., LP., as a result of Mr. Kaeler's application of Dursban L.O. at the Tipton residence in New Port Richey, Florida on September 16, 1994. RECOMMENDED this 24th day of July, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1995. COPIES FURNISHED: Robert G. Worley, Esquire Department of Agriculture Room 515, Mayo Building Tallahassee, Florida 32399-0800 James M. Nicholas, Esquire P.O. Box 814 Melbourne, Florida 32902 The Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level Tallahassee, Florida 32399-0350 Harry Hooper General Counsel Department of Agriculture Room 1302, The Capitol Tallahassee, Florida 32399-0800
