The Issue The primary issue for determination is whether Emerald Shores Heath Care Associates, LLC, d/b/a Emerald Health Care Associates (Respondent) committed the deficiencies as alleged in the Administrative Complaint dated September 17, 2004. Secondary issues include whether Petitioner should have changed the status of Respondent's license from Standard to Conditional for the time period of July 16, 2004 until August 13, 2004; and whether Petitioner should impose administrative fines for alleged deficiencies that are proven to be supported by the evidence.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes. Respondent is licensed to operate a nursing home located at 626 North Tyndall Parkway, Panama City, Florida 32404 (the facility). Petitioner conducted a survey of Respondent's facility on July 16, 2004. Upon completion of that survey, Petitioner prepared a report that charged Respondent with violations of various nursing home regulations. This report organized each of the charged violations under “Tags,” which are shorthand references to the regulatory standards that Petitioner alleges were violated. Additionally, Petitioner assigned, as required by law, Class I severity ratings and widespread scope ratings to the two deficiencies or Tags (F224, and F469) at issue in this proceeding. On July 8, 2004, one of Petitioner’s surveyors observed that a patient in Respondent’s facility had approximately 60 ant bite pustules on her face, arms, neck, and chest. Investigation revealed that the patient had been discovered with fire ants in her bed at about 4 p.m. on July 7, 2004. Personnel of the facility had, at that time, taken appropriate steps to care for the injured patient. That care and treatment is not at issue in this proceeding. Petitioner initiated another survey of Respondent’s facility on July 16, 2004. A primary objective of that survey team was to ascertain the extent of the ant bite situation in the facility. There had been other incidents in the past involving ants. One incident involved harmless, non-biting “sugar” ants, covering a patient’s sandwich left by the patient on a nightstand. The sandwich was removed, the room sprayed and the patient admonished about leaving food in the room. Later, ants were again discovered in the room, requiring further spraying and maintenance. In the course of the July 16th survey, dead ants were found in the room of the patient who had been bitten. Additionally, a couple of ant beds were found in the lawn outside the facility. As a consequence of the findings of ant nests outside the facility and dead ants inside the facility, coupled with the previous incidents involving the sandwich attacking ants and other ant incidents, Petitioner cited Respondent for “immediate jeopardy” on July 16. The surveyor report found Respondent had not dealt adequately with its pest problem and cited Respondent for violation of Tag F224, abuse and neglect, and Tag F469, pest management. Before Respondent erected the facility, a contract was executed with A to Z Pest Control to provide a termite barrier effective against termites, as well as other all arthropods, including ants. A to Z Pest Control is a certified, licensed pest control company with certifications in entomology and pest control. Respondent’s continuing contract with the pest control company required that the pest control barrier be renewed in December of every year. After opening the facility, Respondent entered into a regular pest control contract with A to Z. The contract was for integrated pest control management. Under the integrated pest management approach, the pest control company continually changed its approach to eliminating and preventing insect problems depending on the nature of the problem and its location within the facility. Monthly routine service and “call-backs” as needed were provided under the contract. The pest control company used EPA approved and laboratory-tested chemicals at the facility. No adverse incidents occurred at the facility as the result of ants or other insects from 1999 through 2003. From time to time, ant mounds were discovered in the yard to the facility, but were treated by maintenance personnel or the pest control company. Typical of insects in Florida, activity of insects increased in the spring and summer months. In addition to monthly treatment and Friday drop-bys, the pest control company personnel would treat pests at the facility whenever they were called. The first adverse incident related to ants at the facility occurred in August 2003, concluding a summer of an unusual amount of insect activity. In August, a patient was discovered in her bed with ant bites and pustules. Respondent then asked A to Z for a solution to the problem. The pest control company recommended a “barrier” treatment which involved placing insecticide in all openings in the facility, digging a trench around the building and placing granular insecticide in the trench, and finally spraying the lawn area in a band five to ten feet around the entire building. Despite the extra cost of such a treatment, Respondent approved the treatment and the additional payment. Notably, Respondent conducted a complaint survey in response to the August 2003 ant bite incident and determined that no deficient practices had occurred to cause the incident. Respondent assumed its pest control practices were adequate and continued to use the same pest control company, A to Z until the conclusion of July 2004. The barrier treatment, or grounds treatment, provided after the 2003 ant bite incident remained effective, in conjunction with the annual termite treatment, through the fall of 2003 and into the winter and spring of 2004. After that, it might have started breaking down due to rain and exposure to the elements. As previously noted, the afternoon of July 7, 2004, presented the patient with fire ants in her bed and approximately 60 ant bites on her head and upper body. The patient was removed from the room and thorough treatment for ants applied to the room while the patient was being treated. A survey was made of all of the rooms in the facility to determine if there were ants anywhere else. The grounds were inspected and all ant beds were treated. A to Z Pest Control was called, but couldn’t get out to the facility until the next day. On the following day, A to Z treated the entire inside of the building, but could not treat the grounds because it was raining. Personnel of A to Z returned and treated the outside of the facility on the following day, July 9. Thereafter, the “sugar” ant sandwich attack occurred. The room was immediately sprayed with pesticide. Several days later, the ants were again found in the same room and the room was cleaned and sprayed again. At this point, Respondent sought more aggressive treatment of ants to ensure that everything possible was being done to keep patients safe. Further, facility management created an “Action Plan” on July 7 to deal with this issue. This plan included daily rounds of the grounds; inspections of every resident’s room for signs of ants three times per shift (nine times per day); educating residents and staff of the necessity of keeping all food items tightly sealed; and implementation of a pest control log. Respondent also began the process of reevaluating its contract with A to Z after this incident. Several other local pest control operators were contacted and asked for a plan of treatment. The proposal to include an annual barrier treatment as a part of regular pest control services was made to Respondent for the first time. Shortly thereafter, Respondent terminated its routine pest control contract with A to Z (although A to Z retains the termite contract), and hired Panama Pest Control to provide both interior and exterior treatment with regular barrier treatment. Patients of Respondent’s facility were not at risk or in “immediate jeopardy” from insects on July 16, 2004. Petitioner requires nursing home facilities to adopt specific policies and procedures. Fla. Admin. Code R. 59A-4.106. Although pest control is not one of the required policies and procedures, Respondent has had since 2002, a policy and procedure on pest control. Respondent followed those policies and procedures. Among the pest control activities of Respondent before either ant bite incident were daily checks of every room, so-called “Angel Rounds," and regular monitoring of the grounds. Pest control is not part of the curriculum for Nursing Home Administrators. Neither Petitioner nor the Centers for Medicare and Medicaid Services have issued any regulations, guidance, or advisories with regard to pest control. The term “effective” as is used in the regulation requiring “effective pest control” isn’t defined anywhere. It is impossible to be certain that fire ants will not enter any building. The owner of A to Z Pest Control Company, bearing certifications in entomology and pest control, opined that no matter what you are doing to prevent ant bites, you can still do more. Even then, you cannot be sure of success “because you are trying to control something that is based in nature.” You can only provide pest “control” as opposed to pest “elimination.”
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a final order dismissing the Administrative Complaint and issuing a standard rating to Respondent’s facility, and further finding that no deficiencies stemming from the survey of July 16, 2004, as described under the tags and regulations cited and discussed above, have occurred. DONE AND ENTERED this 16th day of May, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2005.
The Issue The issues to be resolved are as follows: With regard to Count Four of the Amended Petition, whether the Petitioners have sufficiently alleged a rule challenge and more particularly whether sufficient facts have been alleged to identify the challenged rule, whether existing, proposed, or unpromulgated; and whether, through an unpromulgated rule, the Department (Respondent) has prohibited the installation of "pest control insulation" or borate containing insulation by anyone other than a card-carrying employee of a certified pest control operator or licensee. If so, it must be determined whether such action is outside the Respondent's rulemaking authority, whether it is contrary to statute, whether it disregards the exceptions proved in Section 482.211(9), Florida Statutes, and whether it violates Section 482.051, Florida Statutes. With regard to Count Five of the Amended Petition, whether the Petitioners have sufficiently alleged a rule challenge to a proposed or existing rule or have offered evidence legally sufficient to establish a rule, proposed, or existing, which the Petitioners are challenging relating to the Respondent allegedly having selectively investigated pest control operators performing 100 or more pre-construction termite treatments annually, and whether such action is an invalid exercise of delegated legislative authority. With regard to Count Six of the Amended Petition, whether the Petitioners have sufficiently alleged a rule challenge to a proposed or existing rule or have offered evidence legally sufficient to establish a rule, proposed, existing, or unpromulgated, which the Petitioners are challenging relating to the Respondent's alleged enforced application of termiticide arbitrarily and capriciously by not requiring the best available technology and not regulating according to acceptable standards in the manner in which it conducts field investigations. With regard to Count Seven of the Amended Petition, whether the Petitioners have sufficiently alleged a rule challenge based on a proposed or existing rule or have offered legally sufficient evidence to establish a rule, proposed, existing, or unpromulgated, which the Petitioners are challenging relating to the Respondent's enforcement of Chapter 482, Florida Statutes, as it relates to preventive soil treatments for new construction and its alleged failure to protect the public. With regard to Counts Two, Three, and Eight of the Amended Petition, whether the Petitioners have alleged any facts or presented any evidence to establish a proposed, existing, or unpromulgated rule substantially affecting the interests of the Petitioners. Whether either the Petitioners or the Respondent are entitled to recovery of attorney's fees and costs.
Findings Of Fact The Petitioners conceded at hearing that the Order on the Motion to Dismiss, prior to the hearing, concerning the mootness caused by the withdrawal of the above-referenced agency memos not only disposed of Count One of the Amended Petition, but had rendered moot Counts Two and Three, as well. No evidence was presented as to the those counts. Neither was any evidence or argument presented regarding Count Eight of the Amended Petition. Thus, Counts Two, Three, and Eight, as well as Count One, should be dismissed. The Petitioners, with regard to Count Four of the Amended Petition, did not allege the text of any statement or description of one which could be construed as an unpromulgated rule by the agency, which prohibited the installation of insulation containing borate by anyone other than a "card- carrying" employee of a certified pest control operator or licensee. There was no evidence to establish the existence of such an unpromulgated statement or rule of general application. Cliff Killingsworth testified that he was an officer and party representative of the Petitioners' companies in this case. "In-cide" is a cellulose fiber with borate or borate- containing materials for fire retardancy and fungal control. The manufacturer had increased the borate content in the material so that it could make claims with the Environmental Protection Agency (EPA) for the product's pest control value. Mr. Killingsworth acknowledged that it was a licensed and registered "pest control product." While Mr. Killingsworth agreed that claims to the public about the pest control value of the product should be done by a pest control operator, he felt that should not prevent him from subcontracting the installation of the insulation material to a professional insulation installer so that the material would be properly installed in a home or other building. Mr. Killingsworth met with Steve Dwinell and Joe Parker, representatives of the Respondent agency, in Jacksonville, Florida, in the summer of 1997. He provided them with a 30-to-40-page report regarding installation of the insulation with its pest control properties. He received no communication from the Respondent following this meeting and sought no written opinion from the Respondent about the use of the material before he began using it. Mr. Killingsworth invited George Owens, a field inspector for the Respondent in the Northwest Florida area, to observe the product being installed in a structure. Mr. Killingsworth testified that Mr. Owens, thereafter, sent him a letter stating that the Respondent was not going to regulate that material. Mr. Killingsworth, however, did not produce that letter or a copy of it. Mr. Owens testified that he had visited a site in Destin, Florida, at Mr. Killingsworth's invitation, where "Green Stone" insulation was being applied by being blown into a small section of a wall. He did not know that a subcontractor was making the application when he visited the site. He thought that an employee of Mr. Killingsworth was performing the installation of the material. Mr. Owens did not recall telling Mr. Killingsworth or any of his representatives that application of the product by an agent other than Mr. Killingsworth's own company would be prohibited. It was not Mr. Owens' belief that he had authority to make those decisions. He did not believe that he had authority to approve or disapprove the application of a pesticide. Mr. Killingsworth invited Mike McDaniels, another field investigator with the Respondent in the Gainesville, Florida, area to observe the installation of the product in the spring of 1998. Mr. McDaniels commented to Mr. Killingsworth that he was glad that they were doing it, but he made no report. After the Petitioners' companies had been operating for two or three months in the Gainesville area, sharing space with Green Stone Industries, the company producing the insulation, Mr. McDaniels returned. He informed Mr. Killingsworth that the Respondent agency had changed its position on the application of the product. Because it was a "labeled material," that is, labeled and promoted as a certified pest control product, for purposes of EPA regulations, it had to be installed and handled only by a pest control operator meeting the definition of an employee under Chapter 482, Florida Statutes. Mr. McDaniel was shown the insulation in question by Mr. Killingsworth and how it was installed at a job site. He never told Mr. Killingsworth whether he could use the product or not, but during a "non-adversarial inspection," he told him that he had to have "ID cardholders" (i.e., employees of a licensed pest control operator) install the insulation, since it had advertised pesticide qualities. Mr. McDaniel was shown a warehouse with two different types of insulation. One had borate advertised as a fire retardant. The other had a higher content of borate which was advertised to have pesticide qualities. Mr. McDaniel determined that employees applying the second type of product were conducting pest control by installing that product and should, therefore, have pest control operator identification cards. He explained that to Mr. Killingsworth and thought he may have written that opinion on an inspection form which he supplied to Mr. Killingsworth. He also believes he notified his supervisor, Phil Helseth. His normal practice, when a new material is reported to him or observed, is to inform his superior of the facts concerning that product. He never told Mr. Killingsworth or his representatives that they could not install the product in question. He informed them that since it was listed as a pesticide that they would have to be have employees of a licensed pest control operator to legally install the product. Mr. McDaniel did not consult with anyone at the Respondent agency about this, but rather relied on his own judgment as to agency policy and the interpretation of the statutes and rules enforced by the Respondent. He testified that he had no central direction from his superiors at the Department on the issue and was unaware what other districts or regions under the Department's regulation were doing to address this question. He simply determined that if the Petitioners' personnel were applying a product that was a registered pesticide insulation that, under his understanding of the broad statutory definition of pesticides as anything that "curbed, mitigated, destroyed, or repelled insects," then the installers would have to be employees of a registered pesticide operator. Mr. Dwinell testified as the bureau chief for the Bureau of Entomology and Pest Control. He met with Mr. Killingsworth along with Mr. Parker, another employee of the bureau. Mr. Killingsworth made a presentation regarding the product in dispute, the borate-impregnated cellulose insulation. He determined that the product was a pesticide because it was advertised as a registered pesticide and performed pesticide functions, in addition to its insulation function. He did not recall that the precise issue of subcontracting with a non- licensed pest control operator or insulation installer was a topic of their conversation. Following that meeting, he may have discussed the question with Mr. Helseth, in a general way, but does not recall discussing it with any other person. He recalls some discussion concerning the Gainesville office of the Killingsworth companies and whether Mr. Killingsworth, or that office of his company, was licensed as a certified operator. He believes he recalls that a cease and desist letter informing the Killingsworth companies of the need to have the application of the product performed by someone licensed to do pest control may have been sent, although he is not certain. Mr. Dwinell established that the Respondent agency had never published anything regarding pest control insulation. He noted that a pesticide was a pesticide under the statutory definition, whether a corn bait, insulation, or mixed in a jug. The same laws applied to it and under Chapter 482, Florida Statutes, a pesticide must be applied by a licensed applicator. Mr. Killingsworth insisted that the insulation product, though a registered pesticide, was exempt from the provisions of Section 482.211(9), Florida Statutes, because it was a derivative wood product. He agreed that the product in question was a wood by-product and not wood. If a product did not meet the statutory definition of being exempt, then it would be appropriate for the Respondent to issue a cease and desist directive until the Petitioners came into compliance with Chapter 482, Florida Statutes. Mr. Dwinell opined that the subject insulation product was not exempt under the provisions of Section 482.211(9), Florida Statutes. Unlike pre-treated lumber, which is exempt, the installation product at issue is a registered pesticide. Pre-treated lumber, though treated with pesticide in the manufacturing process, is not intended to be used as pesticide, nor is it a registered pesticide. The Petitioners have not stated a basis for a rule challenge pursuant to Section 120.56, Florida Statutes, as to Counts Five and Six of the Amended Petition. Although references were made to alleged "actions" by the Respondent agency, the Petitioners have not alleged with particularity, nor adduced any competent, substantial evidence of any rule provisions alleged to be invalid, nor have they shown, in an evidential way, any to be invalid. The evidence does not show that there is a rule, either proposed, existing, or as an unpromulgated agency statement of general applicability, which is actually being challenged by the Petitioners. There has not been a definitive showing by preponderant evidence that such exists concerning the product and operation at issue. The Petitioners in Count Seven of the Amended Petition have not stated any basis for a rule challenge in accordance with Section 120.56, Florida Statutes. There are numerous references to provisions of Chapter 482, Florida Statutes, but it is not alleged with any particularity which rule provisions are purported to be invalid, nor has preponderant evidence been adduced to establish any rule provisions either proposed, existing, or as unpromulgated agency statements, which have imposed a substantial effect on the Petitioners. In this regard, the Petitioners' counsel argued at the hearing: Your Honor, what we have suggested is that the rule that's being challenged is the Department's statutory obligation under the statute as it relates to their promulgated Rule 5E-14.105, and as it relates to their treatment guarantees or warranties that are required by that regulation for a treatment that just doesn't work. The Department rule requires a certain warranty and requires a renewable warranty, placing that upon the pest control operator under the guise of protecting the consumer, but the fact of the matter is, it doesn't protect the consumer, and it just endangers the pest control operator. And so I guess the actual rule is the 5E-14.105. In addition to that we have the statutory obligations of the Department, which is to provide a protection to the public health and the economic benefit of the consumer and evaluate these chemicals that they are requiring warranties for. That's the basis of the rule challenge, and admittedly, this one is a little bit nebulous, but there is a regulatory, I guess, mandate of these preconstruction soil treatments as a method, as the preferred method, and to the extent that the operators, who are the regulated entity in this case are required to--is mandated to require a warranty for a method they know doesn't work . . . . Mr. Killingsworth acknowledged in his testimony that he was not contending that there should not be a warranty requirement for treatments of subterranean termites, as stated in the above-cited Rule 5E-14.105, Florida Administrative Code. He also acknowledged that he was not contending that the Respondent should require warranties from pest control companies for every kind of pest control performed. He thought there were a lot of factors not within a pest control operator's control affecting particular wood fungi, but what was in the pest operator's control was the opportunity to do a preventive treatment for more than just subterranean termites and they, in his view, should not be prevented from doing so. When asked what preventive treatment he had been prevented from doing by the Respondent, his reply was: The effect of memos and other actions prevented us from doing our choice of preventative treatment, the borate application, through the effects of raising questions in building officials' eyes, through the effects of increasing the economic impact to us to get it done. Builders will not pay enough to do both soil treatment and bait and borate. The memoranda referred to as preventing Mr. Killingsworth from doing his choice of preventive treatment were not actually identified in the record, however. Mr. Dwinell testified that the EPA guidelines require an efficacy standard for soil treatments which states: "Data derived from such testing should provide complete resistance to termite attack for a period of five years." The EPA also provides guidelines for preventive treatment/wood impregnation: "When acceptable data derived from testing for at least two years, or less than five years, shows complete resistance to termite attack, the product may be registered." The efficacy standard for borate, thus, was not five years, but two years. Mr. Dwinell had concerns about the type of data that had been relied upon by the EPA for registration and how that data related to the situation in Florida. That was the basis for the negotiated rulemaking process that the Respondent was engaged in at the time of the hearing in this case. The purpose of the negotiated rulemaking process was to comply with the statute that required a rule, but ultimately the purpose was to have a mechanism in the State of Florida where the product was registered for use under construction and a reliable set of data that could show whether the product would actually protect against termites when applied. The ultimate goal of the statute at issue is to protect the consumer, which is the Respondent's statutory duty. Borate pesticides are registered for use, with label directions for use during construction. They are one of three categories of materials for use in construction, including soil- applied pesticide materials, baiting products, and wood treatments, the last being the borates. There are no directives issued by the Respondent that specifically preclude the use of either borate as a stand-alone treatment or a baiting system as a stand-alone treatment. The Respondent does not require soil treatments only. Mr. Dwinell has never told any licensee that he could not use borate products if he were licensed.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioners, Ameraquatic, Inc., Applied Aquatic Management, Inc. and Aquatic Systems, Inc., are Florida corporations engaged in the business of maintaining lakes and other waterbodies by controlling or eradicating noxious aquatic weeds. Petitioner, Boliden Intertrade, Inc., is a manufacturer of heavy industrial chemicals, six of which are copper sulfates used for aquatic plant control. Petitioner, Applied Biochemists, Inc., is also a manufacturer of herbicides used for the control of aquatic plants, including copper-based herbicides. On March 5, 1993, respondent, Department of Natural Resources (DNR), published notice of its intent to adopt substantial revisions to Chapter 16C-20, Florida Administrative Code. That chapter sets forth DNR's aquatic plant management policies, including permit application requirements, exemptions from permitting, review criteria to be used by DNR in determining if a permit should be issued, management method criteria and standards, public notification requirements, and penalties for violation of the chapter. Many of the proposed rules codify existing DNR informal policies. All of the rules cite, at a minimum, Sections 369.20, 369.22 and 369.251, Florida Statutes, as the statutes implemented while they cite the same statutes (and others) as the statutory authority for their adoption. On March 26, 1993, petitioners filed their petition challenging various portions of the proposed rules. As grounds for invalidating the rules, petitioners contended that certain rules (a) exceeded the rulemaking authority or modified, enlarged or contravened the specific provisions of law implemented, (b) were vague, failed to establish adequate standards for agency decisions, and vested unbridled discretion in the agency, and (c) were arbitrary and capricious. Standing Ameraquatic, Inc., Aquatic Systems, Inc. and Applied Aquatic Management, Inc. are in the business of lake management, including the control of aquatic plants to meet lake management objectives. As such, these petitioners are subject to DNR's regulatory authority and must comply with the requirements of the proposed rules. They are accordingly affected by the agency action. Applied Biochemists, Inc. and Boliden Intertrade, Inc. are both foreign corporations and manufacture herbicides used for the control of aquatic plants, including copper-based herbicides. Although Applied Biochemists, Inc. has not registered to do business in the state, it distributes products through independent distributors and sales representatives throughout the state. Even so, by law it is not authorized to maintain an administrative action in this state, and thus it lacks standing to participate. As to Boliden Intertrade, Inc., the proposed rules place limitations on the use of herbicides for aquatic plant control, including copper-based herbicides, and its substantial interests are affected. An Overview of the Process There are over 7,700 lakes in Florida greater than ten acres in size, each with its own individual characteristics. There are also more than 300,000 natural ponds and other waterbodies under five acres in size. Aquatic plants are found in most, if not all, of these waterbodies. Statutory law defines aquatic plants as including all floating, emersed, submersed and ditch bank species of plants growing in the aquatic environment. Although the scientific community is not in total agreement as to the benefit of aquatic plants, it is commonly believed that aquatic plants are beneficial in a lake's ecosystem, providing a substrate for animals, protection from predators and changing the chemical composition of the water. Aquatic plants also provide a nursery area for small fishes, as well as carbon and food for water fowl and other vertebrates. Even so, aquatic plants may be noxious, that is, they have the potential to hinder the growth of beneficial plants, interfere with irrigation or navigation, or adversely affect the public welfare or natural resources of the state. Accordingly, DNR has been given the duty of administering the Florida Aquatic Weed Control Act and Florida Nonindigenous Aquatic Plant Control Act, as codified in Part II of Chapter 369, Florida Statutes. Under these acts, DNR has the responsibility of controlling, eradicating and regulating noxious aquatic weeds in waters of the state in such a manner as to protect human health, safety and recreation, and to the "greatest degree practicable", prevent injury to plant and animal life and property. To carry out this statutory mandate, DNR has been given the authority to adopt rules and regulations, which are now codified in chapter 16C-20. Aquatic plant control can be accomplished by chemical, biological or mechanical means. As is relevant here, it includes the application of chemical products (herbicides) used to chemically control or regulate aquatic plant growth. DNR administers the control of aquatic plants through a program of contracts and permits with various public and private entities. Under current rules, before any persons (except those having a contract) can engage in the activity of controlling noxious aquatic plants, they must make application for a permit. However, DNR has exempted from permitting requirements control activities in certain types of waterbodies. They include, among others, all waterbodies less than ten acres in size not connected to Waters of Special Concern. The rules also prescribe the general criteria to be used for reviewing permit applications, operation requirements for licensees, including conditions for applying herbicides, and penalties for violating the chapter. The existing and proposed rules apply not only to professional pesticide applicators, such as petitioners, but also to members of the general public who can purchase and apply them as lay persons. Registration of Herbicides Because herbicides are chemical poisons, they are regulated by the Federal Insecticide, Fungicide and Rodenticide Act, as amended. This act requires the Environmental Protection Agency (EPA) to assure that products entering channels of trade in the United States do so with no unreasonable adverse effect on man or the environment. The registration process of herbicides with EPA is a long, expensive and arduous one. Among other things, a company wishing to register products must conduct studies involving acute toxicity, chronic toxicity, environmental effects, effect on non-target organisms, and a chemistry package on how the product is formulated or synthesized. These studies, which must be conducted in accordance with EPA protocol, are then reviewed by the EPA staff. Once a manufacturer registers a product with EPA and has its product label stamped "Accepted", this means the product can be manufactured, distributed and sold within the channels of trade. The labeling is designed to ensure that the product, if used as directed, will cause no "unreasonable adverse effect on man and the environment" and will not reduce the quality of water below the classification established for it. It is noted that aquatic herbicides fall rather low on EPA's priority for product review. This is because they rank below other chemicals reviewed by EPA in terms of toxicity and exposure. If data submitted to the EPA indicates that when a product is used as directed it may affect either the habitat of an endangered species or the endangered species, the registration application is referred to the U. S. Fish and Wildlife Service for a jeopardy opinion. If jeopardy exists, the EPA must then review the registration packet and address these concerns, and the label is thereafter modified to protect the endangered species or its habitat. A chemical either passes the test as to environmental risk or it doesn't. There is no ranking within that determination. Therefore, two or more products may be registered for the same use without a determination as to which would be the safer of the two. None of the aquatic plant control herbicides have restricted use labels and there are no special requirements on persons who use them. Besides federal registration requirements, pesticides must be registered with the Department of Agriculture and Consumer Services (DACS) before being sold and distributed for use in Florida. For the purpose of making recommendations to the Commissioner of Agriculture regarding the sales, use and registration of pesticides, a Pesticide Review Council (PRC) has been established by the legislature and includes representatives from the Department of Health and Rehabilitative Services (HRS), DNR, DER, DACS and the Game and Fresh Water Fish Commission (Commission). In this way, DACS brings each agency's expertise to bear in determining solutions to pesticide problems. DACS does not make a comparative determination between products as to their relative safety or rank them according to safety. Also, it does not try to duplicate EPA's efforts. Rather, it assesses pesticides from the perspective of issues specific to Florida, such as groundwater and soil content, that may not have been addressed or assessed by EPA during that agency's registration process. Finally, there is nothing in law that prevents a state from imposing more restrictive uses on herbicides than does the EPA. Indeed, Florida and many other states have done so. Are the Rules Invalid? In their petition initiating this action, petitioners have challenged more than thirty proposed revisions to chapter 16C-20 on the theory they violate Subsections 120.52(9)(b)-(e), Florida Statutes. Although no objection or request for clarification was made by DNR, the petition is vague in some respects because it alleges that a "rule" is invalid for various reasons but gives no citation to the specific rule or part thereof being challenged. There is also no document filed in this case which sets out with specificity all of the language which petitioners find offensive. In addition, petitioners' proposed order does not address all matters raised in the initial petition, and it contains argument regarding the invalidity of certain rules or parts thereof which were not addressed in the initial petition, and argument that certain rules are invalid for different reasons than originally alleged. At the same time, the agency's proposed order does not provide a response to many of the allegations and argument in the petition. This has made a difficult task for the undersigned even more so. In an effort to simplify what is otherwise a factually complicated case, the undersigned has grouped what he perceives to be the challenged rules into the following broad areas of subject matter. Manatees Manatees are an endangered species in this state and must by law be accorded a very high level of protection. They are herbivores and eat more than forty species of plants and vegetation. Although relatively slow-moving, manatees are highly mobile and move as much as twenty to thirty miles in a twenty-four hour period. They are also migratory in nature, generally moving south in the winter and north during the warmer months. In an effort to provide protection to manatees from potentially harmful chemicals used in controlling aquatic plants, DNR has proposed to adopt several new rules which restrict the use of chemicals in areas where manatees congregate. These areas are known as "manatee aggregation sites" and are defined in section (14) of proposed rule 16C-20.0015 as follows: (14) "Manatee aggregation site" means a spe- cific area within a waterbody or canal system where a significant number of manatees peri- odically congregate, as identified by the department. Petitioners complain that the definition is vague and lacks definitive guidelines for the agency to use in determining whether an area constitutes a manatee aggregation site. However, for the following reasons, it is found that it would be impractical to identify specific sites, as petitioners suggest, or to provide more definite standards. To begin with, manatees tend to congregate at specific sites depending on environmental conditions and the availability of food sources. Therefore, the sites will vary as environmental conditions and food sources change from time to time. In addition, manatees have changing habits and "wide-ranging movements" and, except for a few well-known sites such as Crystal River, the areas in which significant numbers aggregate are not static. Because these sites are dependent on a number of constantly changing variables, it would be impractical, if not impossible, to name specific sites or place more definitive standards in the rule. In subparagraph (1)(a)8. of proposed rule 16C-20.0055, DNR has restricted the use of herbicides in manatee aggregation sites in the following manner: 8. Control activities using herbicides may be permitted in manatee aggregation sites at a time and in a manner specified in the permit. In addition, the last sentence in proposed rule 16C-20.0035(2) reads as follows: Copper-based herbicides shall not be used in any exempt waterbody connected to any natural waterbody designated as a manatee aggregation site without a permit from the department. The above rules generally track and codify the informal policy used by DNR since 1990. Petitioners contend that subparagraph (1)(a)8. is vague, fails to establish adequate standards, or vests unbridled discretion in DNR. They also assert that the last sentence in proposed rule 16C-20.0035(2) vests unbridled discretion in DNR and is arbitrary or capricious. Because manatees are an endangered species, they will never be tested, as other animals are, to determine the impacts of chemicals. Therefore, there is insufficient evidence to determine the impacts of herbicides on the species. Also, there are no documented cases of manatees dying from chemical toxicity. Indeed, the primary cause of death to manatees is from boating accidents. However, manatees have a long life span, and to the extent chemicals are used in waterbodies that they frequent, they will suffer exposure to chemicals for a long period of time. For this reason, DNR has proposed to allow herbicides to be used in manatee aggregation sites only after prior DNR approval is obtained. Since each area is site specific, and the conditions that might be imposed in a permit could vary depending on a waterbody's individual characteristics, it would be impractical to be more precise in subparagraph (1)(a)8. The effect of copper on manatees is not known at this time. Thus, scientists do not know the normal copper level for a manatee. For the last three years, DNR has imposed a moratorium on the use of copper in systems frequented by manatees. An examination of manatees' liver tissues since 1990 reveals lower copper levels than those found in earlier studies. This suggests a correlation between the copper levels in manatees and the use of copper-based herbicides in waters that they frequent. However, it should be noted that copper is not considered to be a cumulative systemic poison. Like subparagraph (1)(a)8., rule 16C-20.0035(2) does not prohibit the use of copper-based herbicides in exempt waters that connect to waterbodies designated as manatee aggregation sites. Rather, it requires prior approval by DNR before copper- based chemicals can be used in these waters. Given the uncertainty at this time as to the long-term effects of copper on manatees, such a safeguard is consistent with the agency's mandate that, to the greatest degree practicable, it prevent injury to plant and animal life and property, and that it give special protection to the manatee. Therefore, the last sentence in proposed rule 16C-20.0035(2) is not arbitrary or capricious nor does it vest unbridled discretion in DNR. Interagency agreements Proposed rule 16C-20.0011(2) incorporates by reference an interagency agreement between DNR and DER and a memorandum of agreement between DNR and the Division of State Lands. Section (3) of the same rule incorporates by reference an interagency agreement between DNR and the Commission. In addition, proposed rule 16C-20.0055(2)(b) incorporates by reference an interagency memorandum of understanding between DNR and DACS. These agreements and memoranda are necessary for two reasons. First, the legislature has specifically directed the agencies to enter into such agreements. Second, the legislature has directed that DNR "guide and coordinate the activities of all . . . agencies . . . charged with the control or eradication of aquatic weeds and plants." Thus, as to matters pertaining to the quality of waters in the state, sovereign lands, pesticide registration and fish and wildlife habitat management, DNR has the statutory authority to coordinate these activities to the extent they impact on aquatic plant management. The rule merely carries out this mandate and, contrary to petitioners' claim, does not deviate from the statutes implemented. To the extent petitioners quarrel with the validity of the language in the underlying agreements, these issues were not raised in the initial petition and need not be addressed. Among other things, rule 16C-20.0055(2)(b) authorizes DNR employees, pursuant to the memorandum of understanding with DACS, "to remove samples from spray tanks to ascertain compliance with the terms of this chapter, and permit conditions." Under this rule, DNR employees would be able to inspect and sample spray tanks used by persons engaged in herbicide control activities to ascertain whether the user was complying with the requirements of the chapter and his permit. The source of authority is found in paragraph 11, page 9 of the DACS memorandum executed by the signatories on May 8, 1985. It provides in relevant part as follows: DACS, under authority of Section 487.13, F. S., grants to DNR authority, as agents of DACS, to enter upon and inspect vessels and vehicles for purposes of collecting informa- tion and samples necessary to determine com- pliance with provisions of pesticide product label or labeling relating to application of pesticides (herbicides) to waters of the state for aquatic plant control. DNR, in conducting inspection under authority granted by this agreement, shall adopt inspection, evidentiary and custody procedures as specified by DACS. Since the memorandum authorizes DNR to "collect . . . samples", and the rule allows DNR to "remove samples from spray tanks" for inspection purposes, the rule is consistent with the memorandum and does not exceed the grant of authority in that document. Potable water setbacks In an effort to protect potable water sources from the harmful effects of chemicals, DNR has proposed to place certain restrictions on the use of herbicides within specified distances of potable water sources. These restrictions are in the form of setbacks and vary in distance depending on whether the waterbody is a lake or river, the plants to be removed are floating or submerged, and the activity takes place upstream or downstream from the water source. The EPA has established three types of restrictions on aquatic herbicide products which are applied to potable water sources. First, there is a setback requirement which establishes a distance between potable water intake and treatment areas. Such a restriction has been imposed by EPA when it determines that the chemical is at too high a concentration for potable water. These restrictions appear on the product label. However, there are no setback requirements on copper-based chemicals because EPA considers them to be free of environmental risk when used at the prescribed rates. The second restriction is a time delay, which requires that after being treated with herbicides, the water not be used for a specified period of time. Most of the aquatic herbicides registered with EPA have time delay restrictions for swimming, fishing or irrigation. The last restriction is a tolerance restriction, which requires a monitoring program to sample water collected at the intake valve. It is noted that of the eight most commonly used aquatic herbicides, only two have setback restrictions, while the remaining six have either tolerance or time delay restrictions. Proposed rule 16C-20.0055(1)(a)2.-4. establishes setback requirements for herbicides with labels which do not indicate a potable water intake setback distance. In other words, for those products without an EPA setback requirement on the label, DNR intends to prescribe specific setback requirements for using herbicides in potable water sources. In choosing this type of restriction, DNR decided against using a tolerance or monitoring type of restriction due to vigorous opposition made at a workshop by a member of the scientific community, and its concern over the lengthy amount of time required to obtain results through a monitoring system. The proposed setback distances have been in use on an informal basis since 1985. They were established at that time through a collective effort by representatives of DNR, DER, DACS and the Commission to determine a reasonably safe distance between potable water sources and the use of chemical herbicides. The rule implements in part the DER interagency agreement which mandates that, when EPA has no setback requirement, DNR establish a "setback distance area based on available water quality monitoring data" and "with input from DER." DNR readily concedes that the proposed setback distances are not supported by scientific literature. However, they represent the best scientific judgment of four state agencies and, because the EPA does not consider Florida-specific issues during its registration process, the rule takes into account Florida's special drinking water concerns by placing restrictions on the use of herbicides in and near drinking water sources. Then, too, there is no credible evidence that the setback distances are unreasonable. Finally, the rule is in accord with the statutory mandate that DNR address by rule standards for "chemical . . . control activities", and the statutory requirement that it "protect human health, safety, and recreation and, to the greatest extent practicable, prevent injury to plant and animal life and property." Selection of herbicides Proposed rule 16C-20.0055(1)(a)5. relates generally to herbicide control activities and provides that When more than one herbicide is registered for use in an aquatic site, the department shall require the use of the herbicide which it determines has the least adverse effect upon human health, safety, recreational uses, non-target plants, fish, and wildlife. In determining which herbicide shall be used, the following criteria shall be considered: Which herbicide will provide the greatest protection to human health, safety, and recreational uses. Which herbicide will provide the greatest protection to non-target and animal life. Which herbicide will be most effective at controlling the targeted species. Under the terms of this rule, when more than one herbicide is registered for the same use and site, which is not an unusual occurrence, DNR will make a determination, based on the criteria enumerated in subparagraphs a.-c., as to which herbicide has the least adverse impact upon humans, vegetation, recreational uses, fish and wildlife. Petitioners contend that the rule goes beyond the statutory grant of authority, contravenes the statutes implemented, is vague, fails to establish adequate standards and vests unbridled discretion in the agency, and is arbitrary and capricious. Because most registered aquatic herbicides have some type of use restriction, DNR will evaluate each herbicide registered for a site to see which product provides "the greatest protection to human health, safety and recreational uses", or provides "the greatest protection to non-target plant and animal life", or which is the "most effective at controlling the targeted species". For example, an applicator may request to use a herbicide that would prevent the public from fishing for food in that waterbody for a specified number of days. If another registered product can effectively control the plants without such a restriction, DNR would approve the second product on the ground it provided "the greatest protection to human health". Similarly, if water hyacinths are intermixed with bulrush, a beneficial native plant used for fisheries, DNR would approve a herbicide that kills the water hyacinths but does not harm the bulrush. This decision would conform with the requirement that the herbicide selected offer "the greatest protection to non-target plant(s)." Finally, if a registered product is the only one that will control the targeted plant, under the last criterion DNR would have to take this factor into account in approving one of several registered products. It is noted that the criteria in subparagraphs a.-c. track the language in section 369.20 and thus do not exceed the statutory authority or enlarge, modify or contravene the statute implemented. In making a determination under the rule, DNR does not intend to review the toxicologist data for herbicides because EPA has already done so. Thus, there is no need for special in-house expertise in this area. Also, DNR will continue its existing practice of allowing the decision to be made by a DNR regional biologist in consultation with the Tallahassee office. Although the decision may be subjective to a certain extent, the guidelines in the rule merely track the language in the statute implemented and thus are not vague or otherwise lacking in standards. Given the fact that most aquatic herbicides have some type of use restriction, DNR's proposal to require the use of the least restrictive herbicide is not arbitrary or capricious. Finally, the contention that DNR lacks funding and staff to carry out its responsibilities is not a ground for invalidating the rule. Definitions Proposed rule 16C-20.0015 contains twenty-four definitions to be used in applying and interpreting the various provisions within chapter 16C-20. Of these, sections (1), (5), (11), (14) and (23) are subject to challenge on various grounds. In section (1) of the proposed rule, DNR has defined the term "aquatic plant" as follows: "Aquatic plant" means any plant, in- cluding a floating, emersed, submersed, or ditchbank species, growing in, or closely associated with, an aquatic environment, and includes any part or seed of such plant. This includes those species listed in s. 369.251, F. S. (Emphasis added) Section 369.251 lists five species of plants that fall within the category of "invasive nonnative plants". Since the more credible evidence shows that these five species are wetland and upland species of plants and are not considered to be aquatic plants, they have been improperly included within that definition. Section (5) of the rule defines the term "classes of surface water" as follows: (5) "Classes of surface water" means the classification of surface waters as defined by the Department of Environmental Regula- lation, pursuant to Rule 17-302.400, F.A.C. By its terms, section (5) adopts the same water classifications as are used by DER. Therefore, the rule does not contravene any statutes. Although the rule will obviously have to be amended at a future time if DER changes these classifications, this is not a ground to invalidate the rule. Further, by adopting this definition, DNR has not delegated its rulemaking authority to DER. Section (11) defines the term "eradication program" as follows: (11) "Eradication program" means a method for the control of non-indigenous aquatic plants in which control techniques are utilized in a coordinated manner in an attempt to kill all the target aquatic plants on a permanent basis in a given geographical area. Petitioners contend that the definition is invalid because it modifies the law being implemented. That is to say, DNR has limited the eradication program to non-indigenous plants, thus excluding all indigenous plants. However, the law implemented (s. 369.20) directs the agency to control all noxious plants, whether indigenous or not. By limiting the rule in this manner, DNR has modified the implementing statute. Section (14) of the rule defines the term "manatee aggregation site". For the reasons given in finding of fact 15, the definition is not deemed to be vague or overly imprecise. Finally, section (23) of the rule defines "waters" as follows: (23) "Waters" mean rivers, streams, lakes, navigable waters and associated tributaries, canals, meandered lakes, enclosed water systems, and all other bodies of water. This rule tracks verbatim the definition of "waters" found in subsection 369.22(1)(g), one of the statutes cited as the specific authority and statute implemented. Therefore, DNR has not exceeded its grant of rulemaking authority nor contravened the statute implemented. Permits - applications Under the current permitting scheme established in existing rule 16C- 20.002, all persons engaged in aquatic plant management activities, except those doing so in exempt waters, must file with DNR an application for a permit. Upon issuance, the permit is valid for a period of one year and may be subsequently renewed for a second year. The application now requires a listing of the acreage of the treatment site, the targeted plants, the acreage of the targeted plants, and the chemicals proposed for use. It also requires the applicant to submit a map of the water body, indicating the location of the vegetation desired for control. The existing rule does not call for the applicant to submit proof of ownership of the property being treated nor a drawing of the riparian owner's boundaries and boundary dimensions. In its revisions to rule 16C-20.002, DNR proposes to modify certain existing requirements and to add new requirements for obtaining a permit. The application form itself has not been formulated as of this time but will be filed with the Department of State upon these rules becoming effective. Petitioners contend that proposed changes in the last sentence of section (2) and paragraphs (3)(d), (5)(a) and (6)(b) of the rule are invalid for a number of reasons. The apparent offending language in paragraph (3)(d) requires that (d) All applications, except for those from government agencies, research institutions, and wastewater treatment facilities approved by the Department of Environmental Regulation, shall be in the name of and signed by the riparian owner who shall, upon request, provide proof of riparian ownership. (emphasis added) As noted above, DNR does not currently require proof of ownership of the property being treated. In addition, it is not a practice of the industry to require proof of ownership while contracting for lake management services. Indeed, the industry says it does not ask if a person owns the property being treated or where the property boundaries are. Rather, it assumes that a person would not contract and pay for such services unless he owned the property. DNR now proposes to require such proof but will do so only in rare instances and under unusual circumstances. For example, when "border wars" erupt between adjoining property owners over who owns aquatic vegetation, and one owner does not want the vegetation to be controlled, DNR would request "proof of riparian ownership" to resolve this type of dispute. When these disputes have arisen in the past, DNR has been required to ascertain the same information that it now proposes to require by rule. Given the agency's valid need for this information, and the fact that this provision in the rule will be employed sparingly, the offending language is neither arbitrary or capricious. In paragraphs (5)(a) and (6)(b) DNR proposes to add the following provisions: (5)(a) All conditions of the permit shall be stated on the permit. (6)(b) Following notice to the permittee, the department is authorized to amend a permit issued pursuant to this chapter during the term of the permit to restrict or limit the scope of the permitted activity. This shall be done if necessary to ensure the protection of human health, safety, recreation, plant and animal life, and property. Petitioners complain that paragraph (5)(a) is invalid because it fails to identify the "conditions" that may be stated on a permit. This contention overlooks the fact that it would be impractical to list every possible condition that could be stated on a permit or when that condition might be imposed. Then, too, an applicant need only review the other provisions in the chapter to learn when specific conditions may be warranted. As to paragraph (6)(b), this provision allows DNR to add conditions after a permit is issued when human health, safety, recreation and other similar issues come into play. Since the circumstances under which conditions may be imposed track the statutory language in section 369.20, the rule does not contravene the statute implemented. Further, by utilizing the statutory criteria, the rule contains adequate standards for the agency to follow. Finally, the last sentence of section (2) of the rule reads as follows: As a condition of the permit, any aquatic plants removed pursuant to an aquatic plant control permit may be required to be relocated in the control area to maintain habitat or for other environmental benefits. Petitioners contend there are no standards or criteria in the rule for determining under what conditions relocation of vegetation may be required. They also argue that the rule is arbitrary and capricious. As to the latter contention, they point to a research project performed for DNR by Dr. Canfield, a University of Florida professor, which examined the relationship of plants to fish and determined the amount of vegetation that should remain in a controlled area. Some sixty lakes were included in the study, and Dr. Canfield concluded that there is no relationship between aquatic macrophytes and fish. In other words, in those lakes with macrophyte coverage between 15 percent and 85 percent, the sport fish population was uniformly good while the population was unpredictable in lakes having below 15 percent coverage and above 85 percent coverage. The study also indicated that the effect on the population may not be the direct result of vegetation because of other factors. The study further found no strong correlation between birds and aquatic macrophytes. Rather, lake trophic status was the dominant factor. In another study performed for the EPA by Dr. Haller, also a faculty member at the University of Florida, he evaluated the effect of grass carp, mechanical harvesting and the use of herbicides on fish population in twenty-four experimental Florida ponds. This study revealed that the removal of aquatic plants was immaterial to the fish populations. Finally, experience derived from the Polk County lake system shows that the clearing of lake front does not destroy the environment on that part of the lake but simply results in a different group of species utilizing that area. DNR concedes that the Canfield study "provide(s) some broad generalities that are helpful." However, DNR chose not to accept Dr. Canfield's conclusions and instead relied upon other literature, not identified in the record, to support its theory that a correlation exists between vegetation and fish population and thus the proposed rule is justified. Since the more credible evidence supports a finding to the contrary, the last sentence of section (2) of proposed rule 16C-20.002 is deemed to be arbitrary and capricious. Permits - Criteria to be used Proposed rule 16C-20.0045 sets forth the criteria for issuing, modifying, or denying a permit application. Petitioners allege that the second and third sentences of section (1), a part of paragraph (2)(b), subparagraphs (2)(c)2. and 6., subparagraphs (2)(d)2. and 3., subparagraph (2)(e)2., paragraph (2)(h) and section (4) are invalid because they exceed the statutory authority or statute implemented in some respect. In this regard, it is noted that the rule implements sections 369.20, 369.22 and 369.251 while the general authority is found in the same sections and section 370.021. Petitioners also contend that section (2) is invalid in its entirety because it fails to establish adequate standards or vests unbridled discretion in the agency. The criteria in question are somewhat lengthy, and because they are found in petitioners' exhibit 1 received in evidence, they are not repeated here. Although proposed rule 16C-20.0045 has been substantially reworded, the criteria for issuing, modifying or denying a permit application are essentially unchanged from prior policy, and they generally track the criteria found in section 369.20. Thus, they do not exceed the rulemaking authority or contravene the statute implemented. While no specific weight has been assigned to each criterion, to do so, as petitioners suggest, would be impractical. Finally, the rules contain seven categories of criteria, some with subcategories, and are precise and understandable. Therefore, the section embodies adequate standards and does not vest unbridled discretion in the agency. Exempt waters Proposed rule 16C-20.0035 describes the waters in which no permit is required in order to engage in aquatic plant control activities. The petition initiating this proceeding suggests that four portions of the rule are invalid. They read as follows: (1)(a) Waters wholly owned by one person, other than the state, provided there is no connection to Waters of Special Concern. * * * (c) In all waters, except aquatic preserves designated in Chapter 258, F.S., where riparian owners physically or mechanically remove aquatic plants to create an access corridor of sufficient length waterward from the shore to allow access for a boat or swimmer to reach open water. This access corridor shall not exceed a total of 25 feet in width. All unvegetated areas shall be cumulatively considered when determining the exempt access corridor . . . * * * (e) In waters of ten surface acres or less provided there is no connection to Waters of Special Concern. The acreage of waters in systems with any connections shall be calculated for each individual water rather than collectively as a system. Natural connections between non-exempt waters shall be considered part of those waters. * * * (2) Although certain waters are exempt from the department's permit requirements, all aquatic plant management activities shall be conducted in a manner so as to protect human health, safety, recreational use, and to prevent injury to non-target plant and animal life, and property, to the greatest degree practicable. When applying a herbicide in exempt waters, all persons shall comply with label rates, instructions, cautions, and directions, and shall follow the public notice requirements of paragraph 16C- 20.0055(2)(c), F.A.C. No aquatic plant management activity using herbicides or mechanical harvesting equipment shall be conducted when manatees are in the control area in exempt waters. Copper-based herbicides shall not be used in any exempt waterbody connected to any natural waterbody designated as a manatee aggregation site without a permit from the department. As to paragraph (1)(a), petitioners complain that it is illogical and without reason to exempt only "waters owned by one person" and not waters owned by more than one person. Since the record does not contain any evidence to support a finding that this distinction is reasonable or logical, the rule is deemed to be arbitrary and capricious. As to the cited portion of paragraph (1)(c), petitioners first point out that in the second sentence the access corridor to the riparian owner's property is only twenty-five feet in width and is unreasonably small. They suggest that a larger corridor is necessary for an owner wishing to build a dock and park his boat. As to this requirement, DNR's witness Caton acknowledged at hearing that a reasonably sized access corridor would be more like fifty feet. Since the proposed access corridor is not supported by facts or logic, the second sentence in section (1)(c) which reads: "This access corridor shall not exceed 25 feet in width" is deemed to be arbitrary. Petitioners also suggest that the first and third sentences in section (1)(c) are invalid on the grounds they are vague or impermissibly imprecise in standards or criteria. Since reasonably intelligent persons should be able to understand the requirements of the rule, the two sentences are not vague. Further, they are not so imprecise as to be invalid. Finally, paragraph (1)(e) exempts from DNR permitting requirements all waterbodies smaller than ten acres in size that do not connect to Waters of Special Concern. This exemption is logical and reasonable given the fact that most waterbodies of this size are artifically created and do not connect to other waterbodies. In section (2), DNR proposes to require applicators to adhere to label instructions and public notification requirements even when spraying herbicides in exempt waters. It also proposes to prohibit activities in exempt waters involving herbicides or mechanical harvesting equipment when manatees are observed. These requirements are consistent with the enabling statute which requires DNR to protect human health, recreational uses, animal life and property in all waters of the state, whether such waters are classified exempt or not. Therefore, the rule is not arbitrary or capricious, and it does not modify the law implemented. The allegation that the last sentence in section is invalid is discussed in other findings of fact and need not be repeated here. The use of copper-based herbicides As a part of their case, petitioners presented extensive testimony on the issue of whether copper-based products are safe for use in waterbodies of this state. They contend that these products should not be subject to any additional restrictions over and beyond those already imposed by the EPA. They point out that EPA product registrations for copper-based herbicides do not restrict water use in any way, and they are labeled for use in drinking water reserviors, fish hatcheries, and crop and non-crop irrigation. Indeed, copper has been in use as a fungicide for at least 5,000 years. Also, no alternative products for the control of algae exist that do not have water use restrictions. In the opinion of one of petitioners' experts, the copper ion used in aquatic herbicides which causes the toxicity to the treated plants is very short-lived and very rapidly complexes with other elements of the aquatic environment so that it is immobilized and no longer toxic. In addition, petitioners rely on the fact that the application rate for copper-based herbicides is less than the tolerance level set by the Food and Drug Administration for finished drinking water. Finally, petitioners cite to studies performed on sheep and apple snails which support their position that there should be no restrictions on the use of copper-based products. In 1990, DNR instituted a policy of limiting the use of copper-based herbicides in natural waterbodies and in areas frequented by manatees. Besides reserving the right to select the least harmful herbicide [rule 16C- 20.0055(1)(a)], and establishing potable water setbacks (rule 16C- 20.0055(1)(a)2.-4.), DNR also intends to codify at least a part of its existing policy as section (2) of proposed rule 16C-20.0035. That section reads as follows: (2) Although certain waters are exempt from the department's permit requirements, all aquatic plant management activities shall be conducted in a manner so as to protect human health, safety, recreational use, and to prevent injury to non-target plant and animal life, and property, to the greatest degree practicable. When applying a herbicide in exempt waters, all persons shall comply with label rates, instructions, cautions, and directions, and shall follow the public notice requirements of paragraph 16C- 20.0055(2)(c), F.A.C. No aquatic plant management activity using herbicides or mechanical harvesting equipment shall be conducted when manatees are in the control area in exempt waters. Copper-based herbicides shall not be used in any exempt waterbody connected to any natural waterbody designated as a manatee aggregation site without a permit from the department. The above policy does not prohibit the use of copper in natural and non-degraded waters. Indeed, the evidence reveals that DNR has occasionally allowed the use of such products when the circumstances permitted. The underlying reason for DNR's policy, as expressed in the rules, is that copper is a very toxic metal and can migrate to areas where its level is lower, and its effect on organisms in a lake can range from death to sublethal and long term effects. Some organisms are more sensitive to copper than others and the normal levels of copper vary from organism to organism. There are many factors which affect the tissue concentration of copper in any organism, and copper may become available to organisms and aquatic plants by various mechanisms. Bioavailability means that the element is readily available to the biological organisms within a system. Since scientists have not yet determined whether copper is bioavailable, DNR has chosen to take a more cautious approach toward the use of copper until more data is available. The restrictions on copper imposed by the rule do not affect the use of copper-based herbicides in waterbodies where these herbicides have historically been used or in highly degraded artificial waters. This is borne out by the fact that each year chapter 16C-20 licensees apply approximately 21,000 pounds of copper-based products to control aquatic plants. Given the uncertainty of the scientific community as to the long-term effects of copper-based products on manatees and other species, it is not unreasonable for DNR to place restrictions on the use of copper herbicides, particularly when manatees are present, potable water sources are close by, or less restrictive herbicides are available. Moreover, because the EPA registration process does not consider Florida-specific issues, it is reasonable for the state to impose more stringent restrictions than does the EPA on the use of copper products. Accordingly, the rule is not arbitrary or capricious. j. Penalties The final revisions being challenged are found in proposed rule 16C- 20.0075, which authorizes DNR to take disciplinary action against a licensee, assess penalties for violations of the chapter, and require violators to revegetate an affected area pursuant to an approved plan. It also authorizes all law enforcement officers of the state to enforce this chapter. The relevant portions of the rule are set forth below: Following proper notice, the department is authorized to modify, revoke, suspend, annul, or withdraw any permit granted by it, or deny or modify any permit request, if the department determines that the following actions were committed by the permittee or applicant: (grounds omitted) A person violating this chapter may be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, or 775.083, F. S. The department is authorized to require any person who violates the provisions of this chapter, by controlling plants without a permit, or controlling more plants than permitted (such as a person controlling plants in non-exempt waters without a permit), to reestablish vegetation in the affected area pursuant to a revegetation plan developed and approved by the department. * * * (5) All law enforcement officers of this state and its agencies with power to make arrests for violations of state law are authorized to enforce the provisions of this chapter. As to section (1), there is no authority in the implementing statutes [ss. 369.20, 369.22, 369.251 and 403.088] for DNR to discipline a licensee. As to section (2), it essentially tracks the language found in Subsection 369.25(5)(a), Florida Statutes, which pertains to aquatic plants. However, that statute is not cited as a source of authority, and none of the cited statutes authorizes DNR to impose by rule the same penal provisions as are found in the general law. Likewise, there is no authority in the statutes for DNR to require by rule that a violator reestablish vegetation pursuant to a plan. Finally, the statutes do not authorize DNR to adopt a rule allowing all law enforcement officers in the state to enforce this chapter. Therefore, sections (2), (3), and (5) are invalid. However, for the reason stated in the conclusions of law, section (1) is not invalid.
Findings Of Fact At all times material hereto, Petitioner was, and is, a Florida certified pest control operator. Petitioner owns and operates Campbell's Pest Control, a firm licensed by the State of Florida for pest control purposes and doing business in Alachua, Florida. In his capacity as owner and operator of that firm, Petitioner supervises two cardholder employees. In the latter part of 1982, Petitioner received two letters from Respondent, one dated August 13, 1982, and the other September 7, 1982. Both of these letters contained notification to Petitioner of Respondent's contention that he had failed to comply with the requirements of Section 482.152, Florida Statutes, which provides as follows: A certified operator in charge of pest control operations of a licensee shall be a Florida resident whose primary occupation is in the structural pest control business, who is employed on a full-time basis by the licensee, and whose principal duty is the personal supervision of and participation in the pest control operations of the licensee as the same relate to the following: The selection of proper and correct chemicals for the particular pest control work to be performed. The safe and proper use of these pesticides. The correct concentration and formulation of pesticides used in all pest control work performed. The training of personnel in the proper and acceptable methods of pest control. The control measures and procedures used. The notification of the Department of Health and Rehabilitative Services within 24 hours of any knowledge of accidental human poisoning or death connected with pest control work performed on jobs he is supervising. Two memoranda were enclosed with the letter from Respondent dated September 7, 1982. The first of these was a legal memorandum from Respondent's counsel concerning an interpretation of Section 482.152, Florida Statutes, quoted above. This memorandum provided in pertinent part that: It is clear from a careful reading of Chapter 482 that the requirement concerning a fully qualified certified operator exists as a condition precedent to licensure because of the many dangers inherent in pest control activities. The interpretation placed on the language above quoted from Section 482.152, F.S. is that the certified operator's primary job should be that of a certified operator. Because of the many functions which are required to be performed by the certified operator, he should be on the job on a full-time basis or a nearly full-time basis for the licensee. It is obvious that the legislature, by using the language above described, intended to preclude 'certificate selling'. . . The other memorandum was dated February 23, 1978, and furnished to all commercial pest control licensees and certified operators, and concerned the subject of "renting" of pest control certificates. This memorandum provided in part that: It has come to the attention of this office that some licensees and certified operators are not in compliance with the provisions of Chapter 482.121 and 482.152, Florida Statutes, concerning the status and activities of a certified operator in charge of pest control activities of a licensee. * * * The intent and purpose of the provisions of the Pest Control Act . . . are to prevent such practices as certificate 'renting' or 'selling' under the pretense that the certified operator is in the [sic] charge of pest control activities of the licensee, when in fact he or she is not. The Office of Entomology will enforce the referenced provisions of chapter 482 F.S. as interpreted by legal counsel [in the January 25, 1977 memorandum] with regard to certificate 'renting'. Licensees and certified operators should examine their present arrangements with regard to this matter to determine if they are in compliance with the law. Violations could be grounds for suspension or revocation of licenses or certificates. Any licensee adversely affected would be entitled to apply for an emergency certificate upon loss of certified operator. By Administrative Complaint dated October 13, 1982, Petitioner was charged with a violation of Chapter 482, Florida Statutes: . . . in that you are presently employed on a full-time basis by the City of Gainesville as a firefighter and at the same time registered with the Department as an employee--identification cardholder and as a certified operator in charge of the pest control operations of Campbell's Pest Control . . . This constitutes a violation of Section 482.152, F.S., which requires, in part, that the primary occupation of a certified operator in charge of the pest control operations of a licensee shall be in the pest control business and that such certified operator be employed on a full-time basis by the licensee with the principal duty of personal supervision of and participation in the licensee's pest control operations as these operations relate to selection and safe, and correct use of pesticides, control measures and procedures used, and training of personnel; and a violation of section 482.121(1), F.S., which provides that no certified pest control operator shall allow his certificate to be used by any licensee to secure or keep a license unless such certified operator is in charge of the 'pest control activities of the licensee in the category or categories covered by his certificate and is a full-time employee of the licensee.
Findings Of Fact Respondents, during all times here involved, were licensed by Petitioner as alleged and operated three separate pest control offices in Jacksonville, New Smyrna Beach and Palatka. During the period between May 1976 and April 1977 no certified operator was registered with Petitioner at the Jacksonville or New Smyrna Beach offices. During this period numerous fumigation contracts were entered into by Respondents. When these contracts were carried out all fumigation was performed under the supervision of a currently registered certified operator who was attached to the Palatka office owned by Respondents. Between June 1976 and October 1977 24-hour advance written notice of fumigation was not provided by Respondents to the health authorities in Duval County on five occasions and to the health authorities of Volusia County on six occasions. However, the health inspectors of each county apparently received telephone notice because they inspected the fumigations for which the written notice was not provided a higher percentage of times than the average inspection for fumigation for which 24-hour written advance notice was provided. Several violations involved the certified operator notifying HRS by letter that he would be certified operator for a specific office commencing on a given date and thereafter failing to submit the proper forms to obtain a current pest control identification card for the office at which he worked. Proper registration of pest control salesmen and certified operators requires the issuance of a pest control identification card for a specific location. On some occasions the charges resulted from Respondent, United Pest Control, acquiring another pest control company and continuing operations under United Pest Control without having changed the pest control identification cards of these employees. Two charges involved agents of Respondent who entered into contracts with customers. One resulted from a complaint that the agent inaccurately advised the customer that there was termite infestation and one involved a complaint of improper treatment for subterranean termites. After the customers complained to governmental authorities Respondents refunded their money. When Respondent Powell attempted to inspect the premises to verify the complaint of these two customers he was denied access to the premises by the customers. The certified operator in the Palatka office was used to supervise a fumigation contract obtained in the Jacksonville office and the New Smyrna Beach office during the period here involved. He told Respondent several times that it was a violation of the regulation for him to perform the fumigation on contracts in these other offices, but only after he reported this to HRS was the practice stopped. At the time of the hearing the Jacksonville pest control operation had been sold by Respondent United Pest Control.
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.
Findings Of Fact At all times material hereto, Respondent was the holder of Pest Control Business License No. 875, Pest Control Operator's Certificate No. 667, and Identification Card No. 6415. Respondent's business was and is located at 512 South Eighth Street, Fernandina Beach, Florida. The anniversary date for purposes of renewal of Respondent's Pest Control Business License was November 30, 1978. Those persons holding identification cards issued in connection with the operation of H & K Pest Control were Respondent, Dolphus Lee White, Donna Kay Young and George Morrison Young. Respondent was licensed to conduct pest control business only in the category of Lawn and Ornamental pests. On November 28, 1978, two days before Respondent's pest control business license was to expire, HRS received an Application for Pest Control Business License and Identification Cards from Respondent requesting renewal of the aforementioned licenses and identification cards. However, the Certificate of Insurance attached to the renewal application failed to meet the requirements for minimum financial responsibility for property damage contained in Section 482.071, Florida Statutes. The Certificate of Insurance in question indicated that the limits of liability for property damage were $50,000 for each occurrence, and $50,000 in the aggregate. The statutory requirements are $50,000 for each occurrence and $100,000 aggregate. As a result, by notice dated November 29, 1978, HRS returned Respondent's application, indicating that the Certificate of Insurance did not meet the statutory standard. In addition, the November 29, 1978 letter specifically informed Respondent that . . . it is unlawful to operate a pest control business that is not licensed." HRS received a corrected Certificate of Insurance on February 27, 1979. However, this Certificate of Insurance did not indicate the name of the insured pest control business, and was, accordingly, returned to Respondent's insurance agent. Respondent's name was then apparently inserted in the Certificate of Insurance by the agent, and the corrected Certificate of Insurance was received by HRS on March 3, 1979. As a result, Respondent's application for renewal of his licenses and identification cards was not, in fact, complete until March 3, 1979. The renewal licenses and identification cards were thereafter issued on June 4, 1979. The delay between receipt of the completed application and issuance of the licenses and identification cards was apparently due to work load in the HRS Office of Entomology. Notwithstanding the fact that Respondent was licensed only in the area of Lawn and Ornamental Pest Control, H & K Pest Control performed pest control services inside buildings at the Florida Marine Welcome Station in Fernandina Beach, Florida, for the period July 1, 1978 through and including two days prior to the hearing in this cause on September 28, 1979. The State of Florida, Department of Commerce, Office of Administrative Services was billed ten dollars monthly on H & K Pest Control statements for this service, and payment was remitted by the State of Florida for these services to H & K Pest Control. In addition, on at least two occasions H & K Pest Control performed pest control services inside buildings at the Florida Welcome Station on Interstate Highway 95 in Yulee, Florida. One of these occasions occurred in November, 1978 for which H & K Pest Control billed the Florida Welcome Station in Yulee, Florida, thirty dollars on its statement dated January, 1979. At no time during the performance of pest control services inside the Florida Marine Welcome Station in Fernandina Beach, Florida, and the Florida Welcome Station on Interstate Highway 95 in Yulee, Florida, was Kinsey C. Haddock or any other employee of H & K Pest Control licensed in the category of General Household Pests and Rodents, or in any other category that would have allowed them to treat the inside of buildings for pests. Although Respondent was never observed to have personally sprayed the insides of buildings at either Welcome Station, persons identifying themselves as employees of H & K Pest Control did perform those services, the State of Florida was billed on statement forms of H & K Pest Control for these services, and payment was remitted by check to H & K Pest Control. On December 27, 1978 an inspector from HRS visited the business location of H & K Pest Control at 512 South Eighth Street, Fernandina Beach, Florida. The business office was open and being operated by a person claiming to be an employee of H & K Pest Control who identified herself as Joyce French. Ms. French advised the inspector that she had been trained in the category of General Household Pest Control, and had performed these services inside the Florida Welcome Station on Interstate Highway 95 in Yulee, Florida. Records maintained by the Office of Entomology indicate that no identification card or other license had ever been issued to a "Joyce French" in the area of General Household Pest Control. Respondent denied that he had ever employed a "Joyce French", nor was Miss French called as a witness in this proceeding. Further, other than the statement attributed by the inspector to Ms. French, there is no evidence in this proceeding to corroborate that Ms. French did, in fact, perform pest control services of any description. Further, on December 27, 1978, Respondent did not have displayed in his business office a certified operator's certificate renewal or a current business license, as required Chapter 482, Florida Statutes. Finally, the record in this proceeding establishes, and Respondent has, in fact, admitted, that he is not a full- time employee of H & K Pest Control. In fact, the record clearly establishes that Respondent has been a full-time employee of Container Corporation of America as an engineer in the Power Department of that company since December 9, 1937. Respondent works rotating shifts in his employment at Container Corporation of America, but usually works the 8:00 a.m. to 4:00 p.m. shift an average of only five days per month. When not working the 8:00 a.m. to 4:00 p.m. shift at Container Corporation of America, Respondent operates his pest control business at the address above mentioned.
The Issue Whether or not the Petitioner, Kenneth F. Feathers, d/b/a Feathers Exterminating Company, is entitled to the renewal of an emergency pest control certificate in accordance with the terms and conditions of Subsection 482.111(10), Florida Statutes.
Findings Of Fact This cause comes on for consideration based upon the Respondent, State of Florida, Department of Health and Rehabilitative Services' refusal to renew the emergency pest control certificate of Kenneth F. Feathers, d/b/a Feathers Exterminating Company. On November 6, 1978, a representative of the Respondent wrote to the Petitioner and indicated the basis for denying the renewal request, after which the Petitioner requested a formal hearing pursuant to Section 120.57, Florida Statutes. The testimony in the course of the hearing revealed that the Petitioner, Kenneth F. Feathers, d/b/a Feathers Exterminating Company, is involved with the structural pest control business. Kenneth F. Feathers, the licensee, is the holder of a special identification card under the authority of Section 482.151, Florida Statutes. He does not hold a pest control operator's certificate as described in Section 482.111, Florida Statutes. In the years 1977 and 1978 the Petitioner had listed at various times, the names of Wayne Neal Pearce and Michael D. Brennan as being the certified pest control operators in charge of all categories of pest control being carried out by Feathers Exterminating Company. In fact, Pearce and Brennan, though certified as pest control operators and listed by the Petitioner as being the certified operator in charge of the Feathers Exterminating Company, were in fact employed in Gainesville, Florida, in other primary occupations which they worked contemporaneously with the work day of the Feathers Exterminating Company. Under the arrangement they were merely on call and never actually performed supervisory duties for the Petitioner. Mr. Pearce was a police officer with the Gainesville, Florida, Police Department and subsequently opened up his own pest control business in Gainesville. Mr. Brennan was and is primarily employed by Clay Electric Company. When these discoveries were made by employees of the Respondent, the Petitioner was advised that neither Mr. Pearce nor Mr. Brennan could serve in the capacity as certified pest control operators for the Feathers Exterminating Company, in view of the fact that these individuals were not employed on a full-time basis by Feathers Exterminating Company, in the sense of being in charge of all categories of pest control. After these discoveries on the part of the Respondent, the Petitioner requested an emergency pest control certificate under authority of Subsection 482.111(10), Florida Statutes, and this emergency certificate was granted. That initial request occurred sometime in October, 1978. On October 28, 1978, the Petitioner requested a renewal of the emergency pest control certificate which brought about the denial which is the issue in this hearing. At present and during the time for which the original emergency certificate had been granted and a renewal requested, the Petitioner does not and did not have a certified pest control operator in charge of the categories of pest control conducted by Feathers Exterminating Company. Both Pearce and Brennan have terminated their involvement with the Feathers Exterminating Company, even in an advisory capacity, and the Petitioner's efforts at arranging for a replacement certified pest control operator have not been successful. This has been the outcome notwithstanding the long-term efforts on the part of the Respondent, beginning in 1975, to assist the Petitioner in complying with the requirements for having a certified pest control operator in charge of the Petitioner/licensee's business activities conducted under Chapter 482, Florida Statutes. In view of these facts, the Petitioner is not entitled to a renewal of the emergency pest control certificate. Subsection 482.111(3), Florida Statutes, states: "Each category of each licensee shall be in the charge of a certified operator who is certified for the particular category..." Under the current statement of the law found in Section 482.152, Florida Statutes (1978), whose effective date was October 1, 1978; for the business activity of the licensee to be in the charge of a certified operator, it is necessary for that certified pest control operator to fulfill the duties set forth in this section. Section 482.152, Florida Statutes (1978), contained the following language: "Duties of certified pest control operator in charge of pest control activities of licensee.--A certified operator in charge of pest control operations of a licensee shall be a Florida resident whose primary occupation is in the structural pest con trol business, who is employed on a full time basis by the licensee, and whose principal duty is the personal supervision of and participation in the pest control operations of the licensee as the same relate to the following: ..." It can be seen by the language set forth in this Section 482.152, Florida Statutes, that neither Pearce nor Brennan would qualify as certified pest control operators for the benefit of the Petitioner, because they either do not have their primary occupation in the structural pest control business, and/or are not employed on a full-time basis by the Petitioner and do not have their principal duties as one of personal supervision and participation in the pest control operations of the Petitioner, even if those individuals consented to continue their prior arrangement with Feathers. Nevertheless, the Petitioner might be entitled to an emergency certified pest control operator's certificate if provisions of Subsection 482.111(10), Florida Statutes, could be satisfied; however, the Petitioner has failed to demonstrate that he has any reasonable expectation of hiring a certified pest control operator who may fulfill the requirements of Section 482.152, Florida Statutes, in terms of the duties incumbent on a certified operator through whom the licensee intends to transact business in accordance with the requirements of Section 482.111, Florida Statutes. In addition, the testimony clearly demonstrated that the Petitioner at one time was using the certificates of Pearce and Brennan to secure or keep his license at a time when Pearce and Brennan were not in charge of the pest control activities, and the Petitioner was thereby in violation of Subsection 482.121(2), Florida Statutes, which violation in turn would constitute a sufficient ground for denying the renewal of the emergency pest control operator's certificate. This ground for denial is authorized by Subsection 482.161(1), Florida Statutes, which states that a license renewal may be denied on the basis that a Provision of Chapter 482, Florida Statutes, has been violated. In summary, the renewal of the emergency certified pest control operator's certificate should be denied because the Petitioner has failed to give sufficient reasons for such renewal and because the Petitioner, by violating Subsection 482.121(2), Florida Statutes, has given the Respondent an affirmative ground for such a denial under provision Subsection 482.161(1), Florida Statutes. (At the conclusion of the hearing the Petitioner indicated his intention to stand for an examination under Chapter 482, Florida Statutes, which would allow him to obtain a pest control operator's certificate that would allow him to operate his business in those categories which he desired to be employed in. On March 22, 1979, the attorney for the Respondent informed the undersigned that Mr. Feathers had successfully passed those portions of the examination which would allow him to obtain a certificate to operate in the areas of lawn and ornamental pest control and general household pest control. On this occasion, Mr. Feathers was not successful in passing the portion of the examination involved in termite pest control. It would therefore appear that the Petitioner is entitled to a certificate to operate in the fields of lawn and ornamental pest control and general household pest control, after the payment of the appropriate fees. Under these circumstances, the Petitioner would not be entitled to operate in the area of termite pest control in the sense of being the holder of such a certificate and in keeping with the undersigned's impression of this case, the affect of this Recommended Order would be a recommendation that the Petitioner not be granted a renewal of his emergency pest control operator's certificate in the termite pest control specialty.)
Recommendation It is recommended that the Petitioner's request for the renewal of his emergency pest control operator's certificate be DENIED. DONE AND ENTERED this 22nd day of March 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1979. COPIES FURNISHED: Mr. Kenneth F. Feathers Feathers Exterminating Company 1527 Northeast 8th Avenue Ocala, Florida 32670 Joseph E. Hodges, Esquire District III Legal Counsel Department of Health and Rehabilitative Services 2002 Northwest 13th Street Gainesville, Florida 32601
