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 The primary issue in this disciplinary proceeding is whether Respondent, which operates a convenience store and sells alcoholic beverages on the premises under a license issued by Petitioner, permitted a sale of drug paraphernalia to occur in the store, in violation of the statutes governing holders of beverage licenses. If Petitioner proves the alleged violation, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact At all relevant times, Respondent Moti's, Inc., d/b/a Continental Market ("Continental"), has held a license to sell alcoholic beverages at retail. Consequently, Continental is subject to the regulatory and disciplinary jurisdiction of Petitioner Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (the "Division"). On December 12, 2006, two undercover agents of the Division, together with a detective from the Broward County Sheriff's Office, conducted a "sting" operation at the convenience store that Continental owns. The sting was arranged in response to complaints that the Sheriff's Office had received regarding sales of drug paraphernalia (specifically "crack pipes" used for smoking crack cocaine), which were allegedly taking place at this store. The purpose of the sting was to purchase a "crack pipe" and arrest anyone involved in the sale. Pursuant to the plan, Special Agent Ralius Thompson entered the store in an undercover capacity. He was wearing a "wire" (concealed microphone) and a hidden camera. These devices, which were monitored by the other agent and the detective (both of whom remained outside the store), allowed the ensuing transaction to be recorded on a videotape. Once inside, Thompson headed first to the cooler, where he took a six-pack of beer from the shelf. He then proceeded to the counter, to purchase the beer. As the clerk, Aziar Baig, was ringing up the sale, Thompson whispered, "Got any pipes? Got any pipes?"i Baig reached down behind the counter and pulled up a "love rose." (A love rose is a trinket, a tiny fake flower encased in a thin glass tube, which latter is about 4 inches long. Though the tube containing a love rose can be used as a pipe, love roses are not necessarily drug paraphernalia; they can be legally sold, purchased, and possessed.) "You're talking about here?" Baig asked, displaying a love rose. "Yeah, smoke my crack in, man, smoke my crack in," replied Thompson. "A pipe——got a stem?" "Huh?" said Baig. "A stem," repeated Thompson. (According to the evidence, the term "stem" is street talk for filter. Filter material is inserted in one end of the pipe to prevent the user from inhaling the burning cocaine "rock.") "This one?" Baig inquired, holding up a Chore Boy® copper scrubber. (Chore Boy® scrubbers are clearly legal merchandise having an obvious, non-nefarious purpose. According to the evidence, however, the metal in these pot scrubbers can be used illicitly as a crack pipe filter.) "Yeah," said Thompson, who then paid $6.75 for the items. Shortly after making this sale, Baig was arrested on the charge of delivering drug paraphernalia, which is a third- degree felony under Section 893.147(2), Florida Statutes. The evidence presented in this case is sufficient, for present purposes, to support the inference——which the undersigned draws——that Baig either knew or reasonably should have known that his customer (Thompson) intended to use the love rose and copper scrubber to fashion a makeshift crack pipe.ii Thus, it is determined, as a matter of ultimate fact, that Baig committed the crime of delivering drug paraphernalia. There is, on the other hand, no persuasive evidence (or any evidence of any quality, for that matter) establishing that the corporate licensee (as opposed to its employee Baig) committed any misconduct, e.g. negligent failure to train or supervise employees; failure to exercise due diligence in attempting to prevent unlawful sales; or fostering or condoning such sales, for which the Division could impose discipline against Continental pursuant to Section 561.29(1), Florida Statutes. It is determined, therefore, as a matter of ultimate fact, that Continental is not guilty of the pending charge, namely permitting the sale of drug paraphernalia on the licensed premises.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order finding Continental not guilty of the instant charge. DONE AND ENTERED this 17th day of October, 2007, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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.stae.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2007.
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 The issues in this case are whether Respondent violated provisions of the Food Code and, if so, what penalties should be imposed.
Findings Of Fact The Division is responsible for monitoring all places of public food service and preparation in the state. It is the Division's duty to ensure that all public eating establishments comply with the standards set forth in relevant statutes and rules. Steagles, LLC, operates a food establishment located at 1395 Cypress Avenue, No. C, Melbourne, Florida. For purposes of this Recommended Order, the establishment will be referred to as “Steagles.” On January 30, 2012, at 11:10 a.m., the Division conducted an unannounced health and safety inspection of Steagles. A number of violations, both critical and non- critical, were found. Critical violations are those which are likely to lead to food-borne illnesses; non-critical violations are those which are not as likely to lead to such illnesses. At the conclusion of inspection, the Division notified Respondent that a “callback” inspection would be performed on March 29, 2012, at 8:00 a.m., and that all the violations were to be corrected by that time. On the specified date, but at 1:26 p.m., the callback inspection was conducted at Steagles. The callback inspection resulted in a finding of three critical violations and four non-critical violations which had not been corrected since the initial inspection. The critical violations found during the callback inspection were as follows: 31-09-1 The sink used by employees to wash their hands was blocked by a bucket of towels. 22-81-1 The interior of a microwave was heavily soiled; the interior of a reach-in cooler was heavily soiled; and, there was heavy encrusted material on a can opener. 32-04-1 The restroom doors did not have self-closing devices attached to them, nor did the trash receptacles have lids. The non-critical violations found during the callback inspection included the following: 14-35-1 Cardboard was being used as a shelf liner; a cutting board was badly scored. 15-35-1 A wooden shelf did not have sealant on it. 37-06-1 Walls were heavily soiled with grease. 38-07-1 There were no shields or caps on some of the lighting fixtures. The storage of towels or other items in the sink used for washing hands could lead to cross-contamination which could lead to food-borne illness. The soiled microwave, can opener, and reach-in cooler could lead to bacterial growth and could cause physical contamination of food. The absence of self-closing doors and lids on restroom trash cans could result in the attraction and harborage of insects and rodents. The non-critical violations, though less serious, could result in bacterial growth, the attraction of rodents, or other problems. The conditions found during the inspection were attested to at final hearing by the inspector who made the observations. Respondent did not rebut or disprove any of the alleged violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, imposing a fine in the amount of $1,350.00, to be paid by Respondent, Steagles, LLC, within 30 days of the entry of a Final Order in this matter. DONE AND ENTERED this 27th day of December, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 December, 2012. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399 Michael J. Patrick Steagles, LLC No. 6 1395 Cypress Avenue Melbourne, Florida 32935 William L. Leach, Director Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399
The Issue Whether Respondent violated subsection 760.10(1), Florida Statutes by denying Petitioner a promotion on account of his race and color.
Findings Of Fact Henry E. Tate is a forty-nine year old black male who has worked at the Kennedy Space Center (KSC) since April 12, 1965. (tr-10, 11) From 1965 until the present, a series of civilian contractors have had agreements with the National Aeronautics and Space Administration (NASA) to perform logistical and housekeeping duties at KSC. These included Transworld Airline, the Boeing Company and Expedient Services, Inc. (tr-34) In January 1983, EG & G Florida, Inc., (EG&G) assumed the master base contract for logistics and housekeeping, but it was not until July 1983 that it took over operational control of the roads and grounds department. EG & G employs in excess of fifteen persons. (tr-101, 102, Exhibit number 11) Except for three or four months in the early 1970's when he worked in the mechanic shop, Mr. Tate was employed in the roads and grounds department steadily from 1965. As each successor contractor took over he applied for, and was hired for the same job. This included EG & G in July 1983. (tr-11, 13, 34) His current title is lead labor operator- pest control and he makes $10.16, plus $.75 lead pay, per hour. (tr-11) Mr. Tate's duties in the roads and grounds department have included pesticide and herbicide spraying of the grounds and buildings, and all aspects of weed, insect and pest control, both indoors and out. At different times he has driven dump trucks and operated forklifts, locals and trailer trucks. (tr-ll, 12, Exhibit number 15) In 1971, Mr. Tate was made "lead" over pest control, herbiciding and sanitation. In that capacity he worked directly under a supervisor who gave him instructions as to the work to be performed. He would then take his people and get the work done. Afterwards he would report back on the results. (tr-51, 56, 57, Exhibit 115) He has remained a lead worker since that time; even though the formal title was abolished in 1984, the pay differential remains. (tr-152) The rationale for the higher pay is that leads assign work to crews which vary commonly from two to eight people. Leads order material and perform some, administrative tasks in conjunction with the functions of their job classification. (tr-153) At varying times Mr. Tate has served as lead over one to ten persons. He is currently lead over a crew of six. (tr-13, 14, 36, 49, 266, 267) During the period of the TWA contract, Mr. Tate filled in as acting supervisor when his supervisor was on vacation. (tr-47) In November 1983, EG & G posted a job listing for the position of Supervisor, Roads and Grounds Department. The job posting number 1125 required a high school diploma, five years supervisory experience in the assigned area of responsibility and a State of Florida restricted pesticide license. (Exhibit number 1) Mr. Tate applied for the job. He has a high school education and felt that his long experience in the field and his lead experience qualified him. His supervisor vacating the job also thought Mr. Tate was qualified and would be hired. (tr-60) Mr. Tate was not interviewed for job posting number 1125; nor were the two other internal applicants who were also black. (tr-18, 275, 276) Instead a white male was hired. That individual, Ted Bender, had an associate degree in business administration, some supervisory experience and the required pesticide license. (Exhibit number 13) Mr. Tate was informed of the posting result by a form dated November 8, 1983. The basis for his non-selection was checked, "meeting minimum qualifications", with an asterick and the hand-written notation, "Must have a restricted pesticide license in the State of Florida". No other basis was checked or noted. (exhibit number 2) At the time that he applied for job posting number 1125, Henry Tate had applied for his pesticide license but did not receive it until December 1983. He studied on his own, reading anything he could find on pest control, and took vacation time off to go to Gainesville to take the license exam. His current license expires October 31, 1987. (tr-15, 64, Joint Prehearing Stipulation) Ted Bender resigned in May 1938, and the vacancy was again posted. Job posting number 1331 stated a posting date of May 24, 1984 and a closing date of May 28, 1984. It differed from posting number 1125 in the requirement that the successful applicant get a restricted pesticide license within sixty days of position acceptance. The five years supervisory experience in assigned area of responsibility and high school diploma requirements remained the same. (Exhibit number 5) Henry Tate applied again and was interviewed on May 31, 1984, by Raymond Tuttle, who at that time was Manager of Roads and Grounds. At the end of the interview Mr. Tuttle filled out the company Interviewer's Report form with the following appraisal: Job qualifications are met if lead time is classified as supervisory experience. He has worked with pesticides for approximately 15 years on KSC. He has a working knowledge of pesticide application although he has no formal horticulture training. He has attended several extension service sponsored seminars over the past 15 years that covered pest control problems in our local area. He currently holds a valid state of Florida pesticide license. Mr. Tate seems willing to accept the responsibilities involved but would require some management skills training to aid in the performance of this position. (Exhibit number 15) He rated Mr. Tate "good" on a scale which ranged from "top" to "unsuitable"; he checked "Hold-Further Review" for the recommended action. (tr. 157, 164, Exhibit 15) During the interview he did not tell Mr. Tate there was a problem with his supervisory experience. (tr-23, 183) Raymond Tuttle also interviewed another internal candidate, William Deffendall. He noted on the Interviewer's Report that this candidate did not meet minimum qualifications. (Exhibit 14) After the interviews, Raymond Tuttle went to see Nancy King, who at that time was Supervisor of Employment at EG & G. He asked her whether lead time could be considered as supervisory experience and she did not have an answer. They both looked at the files and could not find anyone who had supervisory background or a restricted pesticide license. At that point they discussed advertising for external candidates and drafted the advertisement. (tr-185, 186, 205, 207, 208) Sometime later, after the first week in June, Nancy Ring asked Mr. Erikson in employment relations whether lead time could be used to meet the supervision requirement. He also had to check; and when he got back to Ms. King a few days later the answer was that EG & G had not used lead time in lieu of supervisory experience. (tr-232, 233, 234) Meanwhile, on June 4, 1984, Mr. Tate was given his posting result form: "You were not selected for this position due to:" *Other ". The handwritten explanation of "other" was "Other candidates are being considered." (Exhibit number 16) At that time there were no other candidates available to be considered as Messers. Tate and Deffendall were the only internal applicants; no candidates with applications on file met the minimum qualifications, and the advertisement for external candidates didn't run until June 12, 1984. (tr-191, 211) The advertisement that ran from June 12-June 17, 1984, differed materially from both job posting number 1331 and the position description for Supervisor, Roads and Grounds that was in effect at that time. The newspaper notice required not a high school degree, but a "B.S. in Agriculture", and 3-5 years experience in horticulture, entomology and supervision. The formal education requirement was therefore increased and the experience requirement was reduced from 5 years to "3-5 years". (Exhibit number 22) Ms. King admitted that the advertisement was not a formal upgrading of the job. (tr-237) More significantly, Raymond Tuttle admitted that they were not looking for someone with a Bachelor's degree but rather increased the requirements to keep out a flood of candidates. (tr-190) According to Ms. King, the company has a policy of substituting experience for educational requirements and the B.S. degree would not have excluded Mr. Tate. However, he was not told of this and there was no way that an individual reading the advertisement could surmise that. (tr-214, 238, 239) Four candidates responded to the advertisement and were interviewed; all were white. (tr-203) The first choice among those candidates was Richard Van Epp, rated "high" by Raymond Tuttle. Mr. Van Epp's application reveals solid experience in landscape work, including supervision, but nothing specific in entomology, a deficiency also noted on Raymond Tuttle's Interviewer's Report. (Exhibit number 17) Richard Van Epp was offered the job but turned it down. (tr-172) The second-choice candidate, Larry Gast, was hired effective July 24, 1984, with a salary offer of $13.50 per hour in a salary range of $9.94 (minimum), $12.64 (mid) and $15.34 (maximum). (Exhibit number 5) Mr. Gast was rated "high" by Raymond Tuttle with a notation on the Interviewer's Report that he met all requirements of this position. Mr. Gast's application reveals a B.S. degree from the University of Florida in 1980, with his major field in entomology. Prior to college he was in high school. The only job experiences listed on his resume and application are lab technician with the U.S. Department of Agriculture in Gainesville, from 11/79 to 3/81; and from 4/81- 6/84, production supervisor/entomologist with the U.S. Sugar Corporation in Clewiston, Florida. (Exhibit number 18) At the time that he was hired by EG & G Larry Gast had approximately three years and two months experience supervising others in a related field. This falls within the minimum required by the newspaper advertisement but falls short of the five years required by the job posting and position description. (Exhibit number 5) On July 23, 1584, Henry Tate was sent another posting result form, this time checked "Another candidate was selected." (Exhibit number 20) He was called into Mr. Tuttle's office and was told that a new supervisor was hired. He was told that pesticides were no problem, herbicides were no problem, but that Mr. Tuttle was "not comfortable" with his background in horticulture. Mr. Tuttle also told him that something might come along later. Mr. Tate replied that he had been in roads and grounds for almost 20 years and how much later was he supposed to wait. (tr-274) Henry Tate was never told that there was any problem with his lack of supervisory experience until the fact finding conference held before an investigator from the Florida Commission on Human Relations. (tr-32, 253, 273) Sometime after the fact finding conference, Earle Patrick, who was then EG&G's Equal Employment Opportunity, Supervisor, called Mr. Tate and asked why he had not applied for another Supervisor job posting. This posting also required supervisory experience and Mr. Tate quickly informed him that he had no more experience than when he applied for the first job. (tr-272) Earle Patrick's convoluted testimony explaining why the phone call was made ended with this exchange: Q. [by Mr. Betancourt] Well, did you think he was qualified for this position and had a shot at it? A. No, I didn't. Q. So you were calling him about a job he couldn't possibly get? A. That's right. (tr-261) When Larry Gast was initially hired he was Supervisor of Roads and Grounds in charge of grounds maintenance and pest control. He supervised approximately 29 individuals and had three leads. There was another Supervisor of Roads and Grounds in charge of road maintenance and sanitation services. The Roads and Grounds Department was reorganized in early 1985 to create three supervisors. Larry Gast became responsible for the bridgetenders and pest control and his staff was reduced to fifteen individuals, including one lead, Henry Tate. Nine of the staff are bridgetenders who never leave the bridge and do not require a lead. The remaining workers can be anywhere in an area 28 miles long and 14 miles wide. As lead, in the words of Larry Gast, Henry Tate is the "eyes in the field" for those workers. This organizational structure still exists. (tr-121, 123, 266, 267, 269, Exhibit number 11) The reorganization brought Larry Gast's position closer into line with the industry standard described by EG & G's Manager of Personnel Management, Stephen Mansfield. That standard says that supervisors should be able to handle six to eight people; anything more tends to stretch the supervisor thin; anything less would suggest that you may not need a supervisor. (tr-151,152) With 29 persons, Larry Gast concedes he was stretched very thin. (tr-270) Henry Tate was highly qualified for the position of Supervisor of Roads and Grounds, job posting number 1331. While EG & G had never counted lead time for supervisory experience in the past, the evidence strongly suggests that the issue simply never arose in the past. Various individuals in the employment office couldn't immediately answer when asked if lead time could be considered. Most supervisor positions do not require previous supervisory experience. (tr-136) At one point during another reorganization, approximately 16 leads were reclassified as supervisors. (tr-153, 156) The substantial weight of evidence supports a finding that EG &G did not consider Henry Tate unqualified: For job posting number 1125, he was told only that he lacked the restrictive pesticide license and he was not interviewed. He then got the required license. He was interviewed for job posting number 1331 and was not informed that there was a problem with his failure to meet minimum qualifications until well after the position was filled and the discrimination issue was raised. Neither job posting result forms so informed him, despite the fact that the form includes a line to be checked with regard to meeting minimum qualifications. Raymond Tuttle rated Tate a "good" candidate and put his application "on hold", both of which are inconsistent with a belief that the individual is unqualified. Earle Patrick's intent in calling Henry Tate about the new supervisory position could hardly be so perverse as he has contrived in his testimony. EG & G cannot legitimately claim that Mr. Tate's lack of supervisory experience was the basis for their rejection of his request for promotion. They commenced the solicitation of outside candidates well before the answer on lead time came back. (tr-210, 211, 233)`' While Henry Tate may have benefitted from some training to acquire polish as a supervisor, training is provided routinely by EG & G for all new, as well as old supervisors. (tr-244) The company espouses a policy of promoting from within.
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.
