Findings Of Fact At all times pertinent hereto, Joey Collins Pest Control of America, Inc. (Collins Pest Control) was subject to the regulatory provisions of Chapter 482, Florida Statutes, and the pertinent rules adopted by Petitioner, as a business entity licensed by Petitioner to engage in pest control in the State of Florida. At all times pertinent hereto, Eric C. Van De Ven was employed by Collins Pest Control as a pest control operator and was subject to the regulatory provisions of Chapter 482, Florida Statutes, and the pertinent rules adopted by Petitioner. On May 15, 1990, Mr. Van De Ven performed a termite inspection at the residence located at 8411 S.W. 84th Terrace, Miami, Florida, at the request of J. Raul Cosio and Maria F. Trabanco, in connection with their intended purchase of that residence. This work was performed in his capacity as an employee of Collins Pest Control. Mr. Van De Ven prepared, signed, and caused to be delivered to Mr. Cosio and Ms. Trabanco, a written inspection report pursuant to Section 482.226, Florida Statutes. This report was prepared on behalf of his employer, Collins Pest Control, on Collins Pest Control's letterhead. This report, states that visible evidence of Formosan termites was observed on the main beam above the pool deck, that live Formosan termites were observed on the main beam above the pool deck, and that there was visible evidence of damage by Formosan termites. The report also estimates that treating the premises by "tent and soil poisoning" would cost $1,525.00. The report did not include observable damage that had been caused by drywood termites. Mr. Van De Ven had observed this damage, but he did not note this damage in his report because the owner of the premises had been aware of the damage, the damaged area had been treated, and the area had been patched. Mr. Van De Ven recommended to Mr. Cosio and Ms. Trabanco that the owners of the premises should contact Truly Nolen, the company that had treated the premises for drywood termites, to determine whether Truly Nolen would pay for any additional treatment that may be necessary. Mr. Van De Ven erroneously identified a drywood termite as being a Formosan termite. There were no Formosan termites on the premises, and there was no condition that would have warranted the treatment recommended by Mr. Van De Ven. All damage that had been observed by Mr. Van De Ven had been caused by drywood termites. Mr. Van De Ven should have been able to distinguish between evidence of Formosan termites and evidence of drywood termites because of the physical differences between the two types of termites and because of the differences between the damage each type does to an infested area. Mr. Van De Ven was negligent in failing to distinguish between the two types of termites and in recommending the unnecessary treatment. There was no evidence that Mr. Van De Ven deliberately misled his customers or that he was trying to sell unnecessary services. There was no evidence that Mr. Cosio or Ms. Trabanco suffered any damages as a result of their dealings with Respondents. There was no evidence that either Respondent had been previously disciplined by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which: finds that Respondents Eric C. Van De Ven and Joey Collins Pest Control of America, Inc. have violated the provisions of Section 482.226(1), Florida Statutes, by performing the subject inspection in a negligent manner; further finds that said Respondents have violated the provisions of Rule 10D-55.1046(6), Florida Administrative Code, by recommending treatment for Formosan termites where there was no evidence of such infestation; and imposes an administrative fine in the amount of $250 against each Respondent. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of February, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1991. APPENDIX TO RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1, 2, and 10 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 3-9 are rejected as being subordinate to the findings made. The only post-hearing submittal submitted by Respondents was in the form of a letter addressed to the Hearing Officer filed January 28, 1991. This letter contained no proposed findings of fact. COPIES FURNISHED: Karen Miller, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401 Joey Collins Pest Control of America, Inc. 243 N.E. 5th Avenue Delray Beach, Florida 33483 Joseph A. Collins, III Owner Joey Collins Pest Control of America, Inc. 243 N.E. 5th Avenue Delray Beach, Florida 33483 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue for consideration in this matter is whether the Department should issue a Warning Letter to the Respondent because of his application of a pesticide in a client's home on September 16, 1994.
Findings Of Fact At all times pertinent to the issues herein, the Department of Agriculture was responsible for the registration, licensing and regulation of pest control applicators in Florida. In September, 1994, Crystal S. Tipton contacted the Respondent, Michael A. Kaeler, as the representative for Terminix International, and requested that he come to her home, located at 6253 Old Trail in New Port Richey, to spray for bugs and fleas. Mrs. Tipton had a contract with Terminix, dated July 19, 1994, which called for periodic applications, and this was the second visit under the plan. On September 16, 1994, Respondent came to the home in response to the call, arriving about 9:00 AM. At that time, Mrs. Tipton advised him that she had had a bad reaction from the July spraying. On September 16, 1994, Mrs. Tipton was in the house alone. Respondent started treating the house shortly after he arrived. Mrs. Tipton had told him not to spray her daughter's bedroom because of the reaction the child had had from the prior treatment. Mrs. Tipton remained in the house, cleaning, while Respondent applied the substance. At no time, she asserts, did Respondent instruct her to leave the house or give her any instructions except to tell her to wear shoes when she walked on the carpet. He did not tell her to stay off the carpet until it dried. According to Mrs. Tipton, while Respondent was applying the pesticide, on occasion she was in the same room with him, and she could smell the spray. At no time did he advise her to leave the room while he sprayed. Respondent also got behind the baseboards to spray, and put pesticide on the ground outside the house. He then left. According to Mrs. Tipton, the smell was worse this time than after the first spraying. Though she opened all the windows, even while Respondent was spraying, the smell remained for hours, and at 11:30 PM, the carpet was still damp, she claims. As she recalls it, the smell stayed in the house until the following day. After Mrs. Tipton realized there was a problem, she contacted several experts to come out and see what could be done. Her husband contacted Mr. Bowen, the Department's local representative, and told him what had happened, but no other complaint was filed. Mrs. Tipton called Terminix the Monday after the spraying to tell them that all the people in the house were sick. They did not respond promptly, so she had the carpets cleaned and a maid service in to clean the house, but even after that the smell was still present. Mrs. Tipton does not know what chemical was applied in her home by Respondent either in July or in September. She recalls only that in July Mr. Kaeler also told her to wear shoes on the damp carpet. On that occasion, the carpet was damp for three to four hours after spraying, but she does not know how much chemical was applied. During the September application, Mrs. Tipton remained in the family room and the kitchen while Mr. Kaeler was applying the substance throughout the house, and even when he was applying in the kitchen, which is tiled. Though he used a broadcast spray in those areas which were carpeted, including the living room, the dining room, the family room, the master bedroom, the halls, and the entrances to the children's bedrooms, he used a pin spray in the kitchen. Whereas the broadcast spray gives a wide application, the pin spray is exact and puts the pesticide in a very limited area. She had told him not to spray in the children's rooms, and claims she asked him not to use the same spray he had used in the earlier visit. Mrs. Tipton claims Mr. Kaeler did not tell her he had used the same spray but in a diluted strength or in a lesser volume. She claims he said he would not use the same spray and would not spray the daughter's bedroom. It would appear he did not spray the children's rooms, but there is no indication he used a different spray in September than in July. Mrs. Tipton claims the carpet remained damp far longer than it did during the July spraying and she thought this was unusual. When Mr. Bowen, the Department's entomologist inspector, was contacted by Mr. Tipton, he gave Mr. Tipton some advice on how to deal with the problem. The children's doctor also called Bowen about what Bowen had told Mr. Tipton. When Mr. Tipton finally suggested that the pesticide had been applied improperly, Bowen opened his investigation. He took Mrs. Tipton's statement and got the doctor's comments. He also took a statement from Mr. Kaeler and his records for the July and September applications, as well as copies of the labels from the containers of the pesticide applied. The Department requires that all products be used consistent with the labeling instructions and the standards of the Department and the Environmental Protection Agency, (EPA). From his investigation, Mr. Bowen determined that the Respondent used Dursban L.O. Mr. Bowen is familiar with that product and determined that the Respondent applied the product at a concentrated rate in a broadcast pattern over the carpets. This was appropriate, but if it were done while people other than the applicator were in the structure, he contend this was specifically prohibited by the label. In his opinion, Mr. Kaeler's actions constitute a violation of the statute and the Department's rule. None of the information received by Mr. Bowen from the family doctor or the Health Department related to the propriety of Respondent's application of the product. These contacts related only to the health of the children. The only reference to possibly improper application is found in Mrs. Tipton's undated statement. The label on the Dursban L.O. product indicates, "Other than the applicator, treated areas should be vacated during application. Do not permit humans or pets to contact treated surfaces until the spray has dried." Mr. Bowen did not contact the manufacturer to see what "areas" being treated meant. He feels that the interpretation is up to his agency, and he agrees with the agency determination that the entire residence must be vacated. No direct evidence was presented to show the agency determination, however, and it appears the determination of propriety of application was left up to Mr. Bowen. A broadcast spray is used for large areas. A pin stream is used for cracks and crevices. A pin stream application does not, in Mr. Bowen's opinion, require vacation of the structure. The broadcast spray for flea control does, however, as he sees it. If the manufacturer were to hold that application did not require evacuation of the entire structure, but only the room being treated, then in that case, Mr. Bowen would conclude that the application by Mr. Kaeler was appropriate. As he recalls, Mr. Kaeler used one half gallon of 1/4 percent solution for an 1800 square foot application. This was a fairly light treatment. Mr. Bowen has, himself, applied Dursban L.O. at this rate. Mr. Kaeler has been employed by Terminix since November, 1993 as a service technician. He underwent 30 days of a training program in identification of insects and application techniques and requirements of pesticides, including Dursban, with the company. He is not licensed. Terminix holds the license under which he operates. Mr. Kaeler admits that when he treated the Tipton house on September 16, 1994, Mrs. Tipton complained of her daughter's head aches resulting from the prior application and asked him not to spray the child's bedroom, but she did not object to the use of this pesticide. He broadcast sprayed all the carpeted area up to the entry to the girls' bedrooms. In all the girls' rooms there were clothes, books and toys on the floor so he did not spray inside. In the kitchen, which, he claims, was the only location where Mrs. Tipton was present while he sprayed, he used the pin stream technique. The entire spraying took about 30 minutes. Mr. Kaeler also sprayed the windows and doors from the outside and the garage, using the pin stream spray in all those locations. The one half gallon of solution was used to do all the spraying at the Tipton's house that day, both inside and out. Mr. Kaeler believes that the solution he sprayed on the carpeted areas on September 16, 1994 should have dried in no more than an hour. He confirms that Mrs. Tipton opened the windows and turned on the fans while he was still spraying. He had told her to do this the first time. As Mr. Kaeler understands it, Terminix's policy is that occupants of property being broadcast sprayed for insects should stay off the carpet being sprayed but need not vacate the structure. Dr. Ellen Thoms, an entomologist working for the manufacturer of the chemical in issue, indicates that the label instructions on containers of Dursban L.O. were intended by the company to mean that the term "area" where the chemical is being applied by broadcast spray includes not the entire structure but the immediate area of the application because of the possibility of spraying the chemical on someone. The danger is in contact with the substance through the skin or through oral ingestion, not in the odor or the fumes. In Dr. Thoms' opinion, Mr. Kaeler's application was consistent with the terms of the label, which uses the term "should" rather than the term "must". The drying time for carpet sprayed with Dursban L.O. by broadcast spray is effected by the thickness of the carpet and the relative humidity in the sprayed area. Since a greater amount of applied substance dried more quickly in the high humidity of July, in Dr. Thoms' opinion it is unlikely a smaller amount applied in September would take more than 14 hours to dry. She does not know what the climate factors were that day, however. Dr. Mangold, a technical specialist for Terminix, and an entomologist certified in all four categories of pest control, reviewed all the material evidence in this case and heard the testimony given at hearing. He has concluded that what Mr. Kaeler did was conservatively to apply a very diluted spray, usually applied at a rate of one gallon per 1,600 square feet. His one half gallon application for an 1,800 square foot house, plus outside, is an appropriate maintenance application. In Dr. Mangold's opinion, Mr. Kaeler's application in September, 1994 was consistent with the label requirements in amount, concentration and percent, and with the requirement that all other persons be out of the area being treated. He does not believe, in light of what was shown, it could have taken in excess of fourteen hours for this application to dry. In his opinion, drying should have taken between twenty minutes and an hour, and he can see no possible explanation for it having taken as long as Mrs. Tipton claims. Dr. Mangold defines the term "area treated" as being the immediate area being treated - an eighteen inch swath and some adjacent area, to-wit: the area being contacted by the spray. Mr. Lemont, a fully certified entomologist-consultant reviewed the file on this case and heard the testimony given at hearing. In his opinion, the term, "area treated" includes the contact area, not the entire structure. He believes Mr. Kaeler performed consistently with the label instructions and there was no violation. The words, "should" and "may", are interpreted in the trade as permissive and non-enforceable. Stronger words, such as "shall" and "must", are directive and enforceable. Mr. Lemont agrees that the application by Mr. Kaeler was a light application. Drying depends on humidity, but often an application dries before the operator leaves. He cannot believe this application would have taken more than two to three hours, even under the most adverse atmospheric conditions. Certainly, it would not have taken more than fourteen hours. In Lemont's opinion, the issue of how close an applicator can come to others while applying Dursban L.O. by broadcast spray is a judgement call. The issue is contact. Mrs. Tipton was not positive on the issue of Mr. Kaeler's being in the room with her, other than the kitchen, while applying the substance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT a Warning Letter not be issued to either Michael A. Kaeler or Terminix International Co., LP., as a result of Mr. Kaeler's application of Dursban L.O. at the Tipton residence in New Port Richey, Florida on September 16, 1994. RECOMMENDED this 24th day of July, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1995. COPIES FURNISHED: Robert G. Worley, Esquire Department of Agriculture Room 515, Mayo Building Tallahassee, Florida 32399-0800 James M. Nicholas, Esquire P.O. Box 814 Melbourne, Florida 32902 The Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level Tallahassee, Florida 32399-0350 Harry Hooper General Counsel Department of Agriculture Room 1302, The Capitol Tallahassee, Florida 32399-0800
The Issue Whether Respondent committed the violations set forth in the Administrative Complaint, as amended and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is an agency of the State of Florida charged with regulating the operation of the pest control industry pursuant to Section 482.032, Florida Statutes. At all times material to this case, Clinton Killingsworth was the owner and Certified Operator in Charge (COIC) of Environmental Security of Okaloosa, Inc., a licensed pest control company in Cantonment, Florida. Counts 4 and 6 2. Counts 4 and 6 of the Administrative Complaint allege as follows: Count 4 During an inspection on July 11, 2003, the Department found that Environmental Security of Okaloosa operated an unlicensed business location at 9100 Hamman Avenue, Pensacola, at which sales solicitations were made and remuneration received. This is a violation of Chapters 482.071(1) and (2), Florida Statutes. Count 6 During an inspection on July 11, 2003 the Department found that Environmental Security of Okaloosa phone numbers terminated in an unlicensed location as 9100 Hamman Avenue. This is a violation of Chapter 5E-14.142(3)(b). Environmental Security of Okaloosa, Inc., d/b/a Environmental Security, is physically located at 4141 Pine Forest Road in Cantonment, Florida, and is listed at this address on its application for business license filed with the Department. Cantonment is located in Escambia County near Pensacola, Florida. Two other pest control companies, Killingsworth Environmental, Inc., and Atlas Termite and Pest Control of Cantonment, Inc., are located at the same address. On July 11, 2003, the Department conducted an inspection of a company called Home Services Marketing and Management, LLC, (hereinafter Home Services) which is located at 9100 Hamman Avenue in Pensacola. Clifford Killingsworth and Clinton Killingsworth2/ are the managers of Home Services. On March 26, 2002, entered into a Management and Marketing Agreement with Home Services, executed by Clinton Killingsworth on behalf of Environmental Security of Okaloosa and by Clifford Killingsworth on behalf of Home Services. Since that agreement was signed, the telephone number for Environmental Security of Okaloosa listed in the local telephone directory terminated at Home Services. Home Services also answers calls for Killingsworth Environmental, Inc. and Atlas Exterminating. Home Services employees do not make "cold calls" to new customers. They receive calls from existing customers. They contact customers with active accounts to set up renewals. They also contact homeowners whose homes were treated during construction and whose initial accounts were with the builder of the home. If a new customer calls, a Home Services employee answers the call, gets the contact information from the potential new client, and then calls the appropriate technician who would then call or visit the potential customer. The appropriate technician is generally determined by the geographic location of the caller. While a Home Services employee might send a preprinted contract to the technician to take to the job site or mail a contract to a customer, Home Services does not enter into any contract to perform pest control services. No pest control trucks or chemicals are stored at Home Services. Home Services also has a payment processing component. Home Services sends bills to pest control customers which instruct customers to make out the check to the appropriate pest control company, not to Home Services. Payments from customers for pest control services are deposited into the account of the appropriate pest control company. No evidence was presented that 9100 Hamman Avenue is an advertised permanent location of Environmental Security of Okaloosa from which business was solicited, accepted, or conducted. After the July 11, 2003, inspection of Home Services, Clinton Killingsworth took steps to get Home Services licensed as a pest control company. Mr. Killingsworth did this because it was his understanding that the Department took the position that Home Services was in the business of practicing pest control services. He employed his brother, Daniel Killingsworth, to be the required licensed person in charge, and contacted several insurance companies to obtain the required insurance. He had difficulty obtaining the required insurance since Home Services does not offer pest control services. Despite these difficulties, Home Services was issued a license in December 2003. Count 5 Count 5 of the Administrative Complaint, as amended, reads as follows: During an inspection on July 16, 2003, the Department found that Environmental Security of Okaloosa, Incorporated stored pesticides at an unlicensed business location at 1830 Galvez Road, Gulf Breeze, Florida, which is a violation of Chapter 5E-14.142(5)(f) and (g), Florida Administrative Code. That in addition, the Respondent, Environmental Security of Okaloosa, Inc., regularly parked trucks containing pesticide at that location during nighttime hours, published in the 2002-2003 Bell South Telephone Directory under Pest Control Services in the yellow pages of the telephone directory, a listing for "Environmental Security", a name under which it did business, and its employees received by facsimile daily work assignments that were sent to them at that location. That the Respondent, Environmental Security of Okaloosa, Inc operated an unlicensed business location at 1830 Galvez Road, Gulf Breeze, Florida, in violation of Section 482.071(2)(a), Florida Statutes.[3/] The property located at 1830 Galvez Drive is surrounded by a fence and contains a structure. The structure is not enclosed. Both Environmental Security of Okaloosa and Killingsworth Environmental park trucks there overnight. They entered the property when the pest control employees arrived. The Department conducted an inspection of 1830 Galvez Drive on July 16, 2003. The gate to the property was locked and the trucks were locked. On the day of the inspection, the Department's inspectors found unmixed chemicals in the trucks. Clinton Killingsworth acknowledges that at the time of the inspection, company trucks parked at the Galvez Drive location overnight and pesticides were in the locked trucks. Company records or contracts are not stored at the Galvez Drive location. No customer contact takes place at or from the Galvez Drive location. The Pest Control Business License Application Form contains a space in which the licensee must respond to the following: "Designate location where pest control records and contracts will be kept and the exact location address for storage of chemicals if other than licenses business location." The applications for business license for Environmental Security of Okaloosa do not reference 1830 Galvez Road as a location where storage of chemicals occurs. Environmental Security of Okaloosa does not have a license for operating a business at this location. The yellow pages for the Pensacola area contains a listing in red ink for "Environmental Security, Inc." It lists an address of 4141 Pine Forest Road with the telephone number 473-1060. There is another reference to "Environmental Security" in black ink in smaller type which lists the address 1830 Galvez Drive with the number 916-7731.4/ Clinton Killingsworth brother, Clifford Killingsworth, arranged to have a phone line for a fax machine to be located in a trailer at the Galvez Drive location. The purpose of installing a fax line at Galvez Drive was for employees to receive daily schedule assignments. The 916-7731 number listed in the yellow pages is the number of the fax machine. Clinton Killingsworth did not request a listing for the number of the fax machine. However, the telephone company listed it in the phone book. Clinton Killingsworth has requested the local telephone company to remove the erroneous listing a number of times.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered assessing a fine against Respondent Environmental Security of Okaloosa, Inc., in the amount of $2,600.00. DONE AND ENTERED this 25th day of May, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 2005.
The Issue DOAH Case No. 04-4061: Whether the Petitioner's application for renewal of his pest control operator's certificate JF9079 for 2004 should be granted or denied. DOAH Case No. 06-0132: Whether the Petitioner's application for renewal of his pest control operator's certificate JF9079 for 2005 should be granted or denied. DOAH Case No. 06-0414: Whether the 2005 application of Petitioner's employer for a pest control identification card for the Petitioner should have been granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: At the times material to his proceeding, the Department was the state agency responsible for regulating the pest control industry in Florida and is specifically responsible for licensing and regulating pest control operators and for issuing pest control employee identification cards. See §§ 482.032(1); 482.091; 482.111; and 482.161, Fla. Stat. (2004). On or about May 4, 2001, Mr. Kravitsky pleaded guilty in the United States District Court for the Eastern District of New York to income tax evasion and was sentenced to four months of home confinement and five years' probation. This crime is a felony under federal law. As of the date of the final hearing, Mr. Kravitsky's civil rights had not been restored. Vikane gas is a fumigant that was commonly used in 2004 to treat structures for termites. Pest control operators were required to follow the instructions on the label to ensure that the Vikane gas is used appropriately. The structure to be fumigated must be enclosed in a tent, and the Vikane gas is injected, or "shot," into the tent through a hose that is attached to the tent in a way that prevents significant leakage of the gas. After a structure is fumigated, two aeration procedures must be completed. The first aeration procedure requires that the tent be partially taken down, and the windows and doors of the structure are opened to allow the Vikane gas to leave the structure. This first aeration procedure could take less than one hour. For the second aeration procedure, the tent surrounding the structure is totally removed. The windows of the structure are locked, and the doors are locked with the regular door locks and with secondary locks to which only the pest control operator has the keys. Warning signs are posted on the doors indicating that the structure should not be entered for a minimum of six hours to ensure that the Vikane has been safely cleared from the structure. The warning signs, which are to be put up by the pest control operator-in-charge who actually performed the fumigation, include the name, address, and phone number of the company doing the fumigation; the date and time the Vikane gas was introduced into the structure; and the name of the certified pest control operator responsible for the job. These precautions are to prevent the owner of the structure from entering before the Vikane gas has dissipated to a safe level and to provide information regarding the pest control company handling the fumigation. Pest control companies are required to notify the local office of the Department's Bureau of Entomology and Pest Control whenever a structure is scheduled for fumigation. The notice is provided on a Department form, and the notice must be received by the local office at least 24 hours in advance of the introduction on the fumigant. In the Broward County office, Department inspectors randomly pull Fumigation Notices after they are received, usually by facsimile transmission, and they investigate fumigation sites when the fumigation tents are put up and when they are taken down. The purpose of the inspections is to ensure that all safety procedures had been followed. In the spring of 2004, Mr. Kravitsky was employed by Ship Shape Pest Control, a company that he had previously owned but had transferred to his brother in February 2004. Mr. Kravitsky was a certified pest control operator and often served as the pest control operator-in-charge when Ship Shape Pest Control fumigated a structure. The pest control operator- in-charge is responsible for introducing the fumigant into the structure and for ensuring that all safety procedures are followed. On April 16, 2004, Eric Reiss, who was, at the time, a field inspector with the Broward County, Florida, office of the Department's Bureau of Entomology and Pest Control, received a call from another inspector, Richard Lucas, who was concerned about a fumigation that had been performed by Ship Shape Pest Control to a structure located at 16745 Southwest 300th Street in Homestead, Florida. Mr. Reiss agreed to go to the fumigation site on April 17, 2004, and complete the fumigation aeration inspection. Mr. Reiss arrived at the site at approximately 7:00 a.m. No one from Ship Shape Pest Control was on site. Mr. Reiss walked around and observed that the structure was a single-family residence with a small building that looked like a shed in the back yard, about 50 feet from the main building. Mr. Reiss walked around the property and observed that a PVC pipe emerged from the back of the main structure and apparently ran through the yard and entered the shed. Mr. Reiss could not, however, be certain that the PVC pipe connected the two structures, since he could not see the entire length of the pipe. It appeared to Mr. Reiss that someone, a relative of the homeowner, was living in the shed, but the shed had not been prepared and cleared for fumigation and there was no warning sign or secondary lock on the shed. Mr. Reiss was concerned that, if the PVC pipe was connected to both of the structures, the Vikane gas that had been used to fumigate the main structure could have moved through the pipe into the shed and endangered the life and health of anyone who happened to be in the shed during the fumigation. During Mr. Reiss's first visit to the site, he did not see anyone on the property. Mr. Reiss left the site at approximately 7:30 a.m. and got a cup of coffee. When he returned to the site, he rode down the street, trying to find a place to park so he could observe the final aeration procedure from a "covert" location.1 He was not able to find a hidden location, so he drove back to the fumigation site. When Mr. Reiss arrived back at the site, at approximately 8:10 a.m., Mr. Kravitsky was getting out of his car. Mr. Kravitsky had not done the fumigation at 16745 Southwest 300th Street in Homestead, Florida; he was not the pest control operator in charge of the fumigation; and he had not been responsible for clearing the two structures in preparation for the fumigation. Rather, Avery Huff, an employee of Ship Shape Pest Control, had done the fumigation. Mr. Kravitsky had taken a call from Mr. Lucas at the Ship Shape Pest Control office on April 16, 2004, and Mr. Lucas told him that he was concerned because there were no warning signs or secondary locks on the structure that had been fumigated. Mr. Kravitsky telephoned Mr. Huff, who told him that the job had been "left completely legal."2 Mr. Kravitsky asked Mr. Huff to return to Homestead and meet with the inspector, but Mr. Huff refused. Mr. Kravitsky, therefore, went to the site on April 17, 2004, to check on the job. When Mr. Reiss walked up to Mr. Kravitsky at approximately 8:00 a.m. on April 17, 2004, Mr. Kravitsky had just gotten out of his car. Mr. Kravitsky and Mr. Reiss walked around to the back of the house, and Mr. Reiss observed that the door to the shed was open and that a man was standing near the shed. It was Mr. Reiss's impression that the man lived in the shed but did not want anyone to know this. Mr. Kravitsky was told by the man, who identified himself as "Mr. Lugo," that the PVC pipe connected the two structures. Mr. Kravitsky was very concerned that the man might have been hurt if he had been in the shed during or shortly after the fumigation, but the man appeared to both Mr. Kravitsky and Mr. Reiss to be in fine health. Mr. Kravitsky turned on his interscan, which is a device used in the pest control industry to measure very small amounts of Vikane gas. In 2003-2004, it was considered safe for people to enter buildings when the level of Vikane gas had decreased to five parts per million, and the interscan was used to measure such small quantities of gas. While Mr. Kravitsky's interscan was warming up, a process that takes about 10 minutes, Mr. Kravitsky spoke with Mr. Lugo, who allowed Mr. Kravitsky to go into the shed to check the amount of Vikane gas with the interscan device. Mr. Reiss noted that a label on Mr. Kravitsky's interscan showed that it had been recalibrated on April 15, 2004, and, before Mr. Kravitsky took the device into the shed, Mr. Reiss observed that the reading on the meter was "zero," which indicated that the device was not detecting any Vikane gas. Mr. Reiss was taking pictures during the entire time he was at the fumigation site, and Mr. Lugo told Mr. Reiss he did not want any pictures taken of the inside of the shed. Mr. Lugo, therefore, refused to allow Mr. Reiss into the shed, and Mr. Reiss was not able to observe the reading on Mr. Kravitsky's interscan while he was in the structure. When Mr. Kravitsky emerged from the shed, he told Mr. Reiss that the interscan showed there was no Vikane gas in the shed. Mr. Reiss glanced at the meter when Mr. Kravitsky emerged from the shed, and it appeared to him that the meter reading was close to "zero." Mr. Kravitsky also did an interscan reading in the main structure, and he told Mr. Reiss that the reading also showed no Vikane gas. In actuality, Mr. Kravitsky's interscan showed that the level of Vikane gas in the shed was three parts per million, which indicated that the pipe did connect the two structures and that the person preparing the site for fumigation failed to include the shed. After Mr. Kravitsky and Mr. Reiss finished at the fumigation site, Mr. Kravitsky offered to buy Mr. Reiss lunch. Mr. Reiss refused lunch but told Mr. Kravitsky he could buy him an iced tea at a nearby Dunkin' Donut shop. Mr. Kravitsky ordered coffee, and he and Mr. Reiss talked about Mr. Reiss's vacation. Mr. Kravitsky excused himself and went to the men's room. When he came back and sat down, he pushed a matchbook across the table to Mr. Reiss, telling Mr. Reiss that he had some matches for him. The matchbook actually contained five $100 bills that Mr. Kravitsky had folded inside the matchbook. Mr. Reiss did not open the matchbook, but he was able to see that there was money inside. He pushed the matchbook back to Mr. Kravitsky and told him that he could not accept money. Mr. Kravitsky offered the money to Mr. Reiss on April 17, 2004, to "make him happy."3 According to Mr. Kravitsky, Mr. Reiss had been threatening for the previous year to send him to prison if he committed even the smallest violation of the pest control laws and regulations.4 Mr. Kravitsky, who was on probation at the time, was very worried about Mr. Reiss's threats. On April 18, 2004, Ship Shape Pest Control sent a Fumigation Notice to the Department's Bureau of Entomology and Pest Control in Boynton Beach, Florida, indicating that, at 11:00 a.m. on April 19, 2004, it intended to fumigate a structure located at 279 Southeast 8th Terrace in Deerfield Beach, Florida; that Vikane gas would be used; that Lori Kelley was the certified operator-in-charge of the fumigation, and that the length of the fumigation would be 36 hours. The Fumigation Notice was sent by facsimile transmission, and it was picked up by Mr. Reiss. Mr. Reiss intended to go to the fumigation site early on April 20, 2004, and to initiate covert surveillance of the first aeration. On the afternoon of April 19, 2004, Mr. Kravitsky went to 279 Southeast 8th Terrace to check on the progress of the job. When he arrived, the crew had the structure almost completely wrapped, and almost the entire the tent had been erected. Mr. Kravitsky entered the structure to clear it for fumigation. As he was opening cabinets and checking the building, Mr. Kravitsky discovered a sticker on the water heater that showed that the structure had been fumigated about seven months earlier by a company called Dead Bug Edwards. Mr. Kravitsky decided that he should not fumigate the structure with Vikane gas since it had been fumigated seven months previously. Also, he had not found any live termites on site and believed that it would be sufficient to treat the structure with borate. He told the crew that the structure was not to be fumigated. However, Mr. Kravitsky thought the tent looked good and, with the Ship Shape Pest Control banner in front of the structure, would be good advertising for the company, so, before he left the site, he told the crew finish erecting the tent and to close it up. Mr. Kravitsky intended to leave the tent up until the following day. Mr. Kravitsky went to the Ship Shape Pest Control office the following day, April 20, 2004, which was a Saturday. He wrote in long-hand on the Fumigation Notice that had been sent to the local office of the Department's Bureau of Entomology and Pest Control that the job was to be cancelled and changed to Borate. He added a note: "Advise realtor - fumed 7 months ago Dead Bug Edwards adjust price." Mr. Kravitsky dated the hand-written note "4/20/04," and sent the cancellation notice to the local office of the Department's Bureau of Entomology and Pest Control by facsimile transmittal on the morning of April 20, 2004.5 Mr. Kravitsky called Diane Brito, the realtor who had engaged Ship Shape Pest Control to do the fumigation, from the fumigation site and told her that the structure had previously been fumigated and was still under warranty and that Ship Shape Pest Control would do a treatment with Borate and pick up the Dead Bug Edwards' warranty on the termite fumigation. Mr. Kravitsky also told Ms. Brito that the price would be reduced because fumigation with Vikane gas was more expensive than a Borate treatment.6 Mr. Reiss arrived at 279 Southeast 8th Terrace at approximately 11:20 a.m. on April 20, 2004, and noted that it was a three-unit multi-family structure located in a residential neighborhood. He was unable to find a location from which to conduct covert surveillance, so he pulled up in front of the structure. He took out his Tiff meter, which is an instrument that measures the presence of gas in quantities exceeding 50 parts per million. His intent was to determine if there were any major leaks of Vikane gas from the tent, so he walked around the tent taking readings with the Tiff meter and videotaping the site. Mr. Reiss noted that there was a warning sign on the tent that reflected that the Vikane gas had been injected into the structure at 7:00 p.m. on April 19, 2004. Ms. Kelley and Mr. Kravitsky were both identified on the warning sign as pest control operators in charge. Although Mr. Reiss found holes in the tent and inserted the Tiff meter into the holes to obtain readings, the Tiff meter did not register any Vikane gas, which Mr. Reiss considered unusual. Mr. Reiss also noted that the hose that would have been used to introduce the Vikane gas into the tent was lying outside the tent. It appeared to Mr. Reiss, from all indications at the site, that the structure had been fumigated; the only indication that it had not been fumigated was the failure of the Tiff meter to register Vikane gas at a level of 50 parts per million or more. Mr. Reiss called the telephone number shown on the warning sign, and Mr. Kravitsky answered the call. Mr. Reiss told Mr. Kravitsky that there did not seem to be any gas in the building, and he told Mr. Kravitsky to meet him at the fumigation site as soon as possible. Mr. Kravitsky arrived at the site at approximately 12:25 p.m. Mr. Kravitsky did not see Mr. Reiss, but he did see the warning sign that indicated that the structure had been fumigated the previous evening and that he had done the fumigation. Mr. Kravitsky did not fumigate the structure, even though his name was on the warning sign, and he had no idea who put the sign up. Mr. Kravitsky immediately began warming up his interscan so he could measure the amount of Vikane gas at the site. Mr. Reiss had waited for Mr. Kravitsky in his car, but he did not see Mr. Kravitsky arrive. When Mr. Reiss saw Mr. Kravitsky's car parked in the driveway, Mr. Reiss got out of his car and walked up to Mr. Kravitsky. He noticed that Mr. Kravitsky was already warming up his interscan, and Mr. Reiss took care to note that the reading on the interscan, as it was warming up, was "zero." Mr. Kravitsky and Mr. Reiss engaged in a light conversation as Mr. Kravitsky searched for a place to take a reading of the Vikane gas level. Mr. Kravitsky found an opening in the tent and stuck the interscan probe into the hole. The reading on the interscan was "zero," indicating that no Vikane gas had been detected. Mr. Kravitsky checked several other openings in the tent, and the interscan continued to register "zero." After first telling Mr. Reiss that he intended to leave the tent up until the next morning, April 21, 2004, which was a Sunday. Mr. Kravitsky did not want to remove the tent in Mr. Reiss's presence because he was afraid that the inside of the structure had not been properly prepared for fumigation and that Mr. Reiss would cite him for a violation of pest control regulations. Mr. Reiss told Mr. Kravitsky that he would be at the site the next morning because he intended to be present when the tent was taken down, Mr. Kravitsky admitted to Mr. Reiss that he had told the residents that they could return to the structure that night. Mr. Reiss arranged to meet Mr. Kravitsky at the structure at 2:00 p.m. so Mr. Reiss could observe Mr. Kravitsky go through the aeration procedure. Even though Mr. Kravitsky knew that the structure had not been fumigated, he went through the active aeration procedure at approximately 2:00 p.m. on April 20, 2004. According to Mr. Reiss's Fumigation Inspection Report, Mr. Kravitsky opened the tent in Mr. Reiss's presence; entered the structure wearing a self-contained breathing apparatus and opened the doors and windows. Mr. Reiss observed that warning signs were on the exterior doors and that the doors also had secondary locks. Mr. Kravitsky completed the one-hour active aeration and replaced the warning signs and secondary locks on the exterior doors. These precautions were not necessary, however, because no Vikane gas had been introduced into the structure. Mr. Kravitsky was extremely worried that Mr. Reiss would cite him for a violation of pest control laws or regulations and that the citation would interfere with the sale of Ship Shape Pest Control, which he was trying to negotiate at the time, or would result in the revocation of his probation. Mr. Kravitsky described himself as confused and uncertain about how to handle the situation; he just wanted to avoid having Mr. Reiss cite him for a violation. Mr. Kravitsky, therefore, tried to "dance through without getting a violation" and wanted to "feel out" Mr. Reiss to find out how much he knew about the fumigation.7 Mr. Kravitsky avoided telling Mr. Reiss that the structure had not been fumigated, and he told Mr. Reiss that he would have to check with the certified pest control operator-in- charge to find out why there was no Vikane gas inside the tent. By his own admission, Mr. Kravitsky behaved as though he believed the structure had been fumigated with Vikane gas. At some point, however, Mr. Kravitsky did tell Mr. Reiss that he had found a sticker in the structure showing that the structure had been fumigated approximately seven months prior to April 2004 and that no Vikane gas had been used to fumigate the structure.8 Although not mentioned in the report Mr. Reiss prepared of the fumigation aeration inspection, Mr. Reiss and Mr. Kravitsky had a conversation at the fumigation site on April 20, 2004, that Mr. Reiss inadvertently recorded on the audio of his video camera.9 During this conversation, Mr. Kravitsky admitted to Mr. Reiss that he had lied to him on April 17, 2004, when he told Mr. Reiss that the reading Mr. Kravitsky took in the shed showed no Vikane gas. Mr. Kravitsky admitted that the interscan registered Vikane gas in the shed at three parts per million, a quantity that does not pose a risk to humans. Mr. Kravitsky also offered to give Mr. Reiss "an envelope" during this April 20, 2004, conversation. According to Mr. Kravitsky, his reference to "an envelope" was a direct reference to the incident that took place in April 2003. In any event, Mr. Kravitsky offered Mr. Reiss "an envelope" on April 20, 2004, in hopes that Mr. Reiss would not cite him for a violation of pest control laws or regulations with respect to the fumigation that was to have taken place at 279 Southeast 8th Terrace. Mr. Reiss, however, did not respond to Mr. Kravitsky's offer during that conversation.10 On June 16, 2004, Mr. Kravitsky pleaded guilty to one count of "failing to refrain from the law," and his probation was revoked by the United States District Court for the Southern District of Florida. The charge related to having offered Mr. Reiss unlawful compensation. Mr. Kravitsky was sentenced to 10 months' in prison.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order in DOAH Case No. 04-4061 denying Larry Kravitsky's application for renewal of his pest control operator certificate JF 9079 for 2004; in DOAH Case No. 06-0132 denying Larry Kravitsky's application for renewal of his pest control operator certificate JF 9079 for 2005; and in DOAH Case No. 06-0414 denying the application of Sears Pest Control d/b/a Ship Shape Pest Control for a pest control employee-identification card for Larry Kravitsky. DONE AND ENTERED this 30th day of July, 2009, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 30th day of July, 2009.
The Issue Whether Respondents Lee Ann Kennedy ("Kennedy") and Kenco Industries, L.L.C. ("Kenco"), engaged in various activities constituting pest control under chapter 482 without having obtained the required licenses from Petitioner Department of Agriculture and Consumer Services, in violation of sections 482.161(1)(j), 482.165(1), and 465.191(1), Florida Statutes.
Findings Of Fact The Parties Petitioner is the state agency charged with administering the Structural Pest Control Act, chapter 482. Respondent Kennedy is a resident of Wellington, Florida. Respondent Kenco Industries, L.L.C., is a registered Florida Limited Liability Company. Kennedy is the manager and sole member of, and the registered agent for, Kenco. Pest Control Regulation under Chapter 482, Florida Statutes Chapter 482 authorizes Petitioner to regulate activities constituting "pest control" and to impose sanctions for violations of that chapter. "Pest control" is broadly defined in section 483.021(22) as: The use of any method or device or the application of any substance to prevent, destroy, repel, mitigate, curb, control, or eradicate any pest in, on, or under a structure, lawn, or ornamental; The identification of or inspection for infestations or infections in, on, or under a structure, lawn, or ornamental; The use of any pesticide, economic poison, or mechanical device for preventing, controlling, eradicating, identifying, inspecting for, mitigating, diminishing, or curtailing insects, vermin, rodents, pest birds, bats, or other pests in, on, or under a structure, lawn, or ornamental; All phases of fumigation, including: The treatment of products by vault fumigation; and The fumigation of boxcars, trucks, ships, airplanes, docks, warehouses, and common carriers; and The advertisement of, the solicitation of, or the acceptance of remuneration for any work described in this subsection, but does not include the solicitation of a bid from a licensee to be incorporated in an overall bid by an unlicensed primary contractor to supply services to another. Petitioner is authorized to issue licenses to qualified businesses to engage in the business of pest control in this state. § 482.165(1), Fla. Stat. It is unlawful for any person, partnership, firm, corporation, or other business entity to engage in the unlicensed practice of pest control as that term is defined in section 482.021(22). Id. Section 482.191(1) makes unlawful the advertisement of pest control services except as authorized under chapter 482. Absent limited circumstances not applicable here, persons or entities engaging in such advertisement must be licensed by Petitioner to practice pest control. Petitioner also is authorized to fine persons who impersonate an employee of Petitioner. § 482.161(1)(j), Fla. Stat. Respondents' Acts Alleged to Violate Chapter 482 Respondent Kennedy did not hold a pest control business license or other license to practice pest control at any time relevant to this proceeding.2/ Respondent Kenco also did not hold a pest control business license or other license to practice pest control at any time relevant to this proceeding. On or about April 1, 2011, Kennedy entered Saigon Oriental Market in Lake Park, Florida. According to its owner, Hung The Thach, Kennedy walked around the store inspecting it, then told him that she was employed by Petitioner, that some of his produce was infested by insects, and that he would have to have pest control services performed or she would return in a week to conduct another compliance inspection. Kennedy gave Mr. Thach the telephone number for Outside In, a pest control company, and the business card of its owner, Dennis O'Rourke. Concerned that Kennedy would shut down his store or fine him, Mr. Thach called Outside In; the following day, an employee of that company performed pest control services at the store. Outside In performed additional pest control services at the store on or around May 26, 2011. Mr. Thach paid Outside In for these services. In mid-May 2011, Kennedy inspected Fajita's Super Market in Lake Worth, Florida, and told its owner, Ali Jaber, that she was employed by Petitioner as an inspector, and that he had a fly problem in his store. She recommended that he contact Outside In to correct the problem. Mr. Jaber told her he used another pest control company, but thereafter, a representative from Outside In visited the store, left a business card with Mr. Jaber, and offered to provide pest control services for the store for $150.00 per month with no contract. Kennedy returned to the store approximately a week later and wanted to know why nothing had been done to correct the fly problem; she also asked an employee of Fajita's who was going to pay for her time to inspect the store; when she was referred to Mr. Jaber, she left the store and did not return. On or around May 24, 2011, Kennedy entered the Fortune Cookie oriental supermarket in West Palm Beach, Florida, and told its president, David Chang, that she was with an inspector with Petitioner. She inspected the store, told him that there was a fly problem, and stated she would return in two weeks. Mr. Chang testified that Kennedy did not provide him the name of any pest control businesses, but that approximately a week before Kennedy inspected the store, a representative of Outside In had come to the store and tried to sell him pest control services, but that he had declined to purchase the services at that time. Dennis O'Rourke, President of Outside In, testified that Kennedy was not on his company's payroll, but that she had solicited pest control business for his company for approximately four months prior to September 2011. She successfully solicited four accounts and he paid her 30% of the profits made on those accounts. At the time she solicited the accounts, she did not possess a valid identification card to perform pest control services on behalf of Outside In.3/ Mr. O'Rourke subsequently obtained a valid identification card for Kennedy so that she could perform pest control, including business solicitation, for his company. Petitioner initiated an investigation of Kennedy in June 2011, after being notified by several small food markets in Palm Beach County that she was holding herself out as a food inspector with Petitioner, inspecting the stores, notifying the store operators that there was a pest problem, and recommending that Outside In be contacted to correct the problem. In the course of the investigation, on September 7, 2011, John Berquist, an inspector with Petitioner's Bureau of Entomology and Pest Control, took photographs of Kennedy's motor vehicle4/ bearing magnetic signs on the front passenger and driver side doors labeled "Kenco Industries," which depicted a photograph of Kennedy and advertised the provision of pest control services. Berquist checked Petitioner's pest control licensing records and determined that Petitioner had not issued a pest control business license or other pest control license to Kennedy or to Kenco. At the hearing, Kennedy acknowledged that she conducted food store inspections, pointed out pest problems to store operators, and recommended that they contact Outside In for pest control service. However, she denied holding herself out as an employee of Petitioner. She testified that she is certified in food safety by the Department of Health and that if she observed a pest problem while shopping, she would show her food safety certification card to the store operator and point out the problem. She claimed she did this because she is Vietnamese, so often shops at Asian food markets and wants the stores where she purchases her family's food to be pest-free. She also claimed that she only wanted the stores "to get what they needed" in the way of pest control service and that it did not matter whether she was compensated for soliciting business for Outside In. However, she acknowledged that she had been compensated by Outside In for the pest control business she had successfully solicited on their behalf. Kennedy testified that she did not intend to do anything that was against the law, and was not aware that she was engaging in conduct that violated the law. The evidence established that neither Kennedy nor Kenco previously violated chapter 482 or Petitioner's rules. Ultimate Findings of Fact Regarding Alleged Violations Based on the foregoing, Petitioner established, by clear and convincing evidence, that Kennedy impersonated an employee of Petitioner, as alleged in Count 1 of the Amended Administrative Complaint, in violation of section 482.161(1)(j). Kennedy's testimony that she did not hold herself out as an employee of Petitioner was contradicted by all other witnesses and was not credible. Petitioner also established, by clear and convincing evidence, that Kennedy and Kenco advertised pest control services without obtaining a pest control business license in violation of sections 482.165(1) and 482.191(1). There was no dispute that Kennedy advertised the provision of pest control services by herself and by Kenco by placing signs on her vehicle depicting her image and Kenco's business name. Further, Kennedy is Kenco's manager, sole member, and agent, so her actions in advertising the provision of pest control services by Kenco are imputed to Kenco.5/ Petitioner also proved, by clear and convincing evidence, that Kennedy solicited pest control business for Outside In for compensation, in violation of sections 482.165(1) and 482.191(1). Kennedy's testimony that she was motivated by altruism and personal interest in food safety at markets where she shopped, rather than by being compensated for soliciting business for Outside In, was not credible. The undisputed evidence establishes that she was compensated by Outside In for soliciting pest control business on its behalf. However, Petitioner did not establish, by clear and convincing evidence, that Kenco solicited business on behalf of Outside In. The evidence does not show that Kennedy represented to the food store operators that she was acting on behalf of Kenco when she solicited business for Outside In. To the contrary, the evidence established that Kennedy represented that she was an inspector employed by Petitioner. Accordingly, it is determined that Kenco did not solicit pest control business for Outside In, in violation of sections 482.165(1) and 482.191(1). As further addressed below, Petitioner's Enforcement and Penalties rule, Florida Administrative Code Rule 5E-14.149, makes the deliberate commission of an act that constitutes a violation of chapter 482 an aggravating factor in determining the applicable fine. Here, the evidence shows that Kennedy intentionally misrepresented that she was employed by Petitioner specifically to solicit and induce food store operators to purchase pest control services for which she would be compensated. Accordingly, it is determined that Kennedy acted deliberately in impersonating an employee of Petitioner and in soliciting business on behalf of Outside In for compensation. Furthermore, the evidence shows that Kennedy——and by operation of the law of agency, Kenco——deliberately engaged in advertising the provision of pest control services without having obtained the required license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner Department of Agriculture and Consumer Services impose a fine of $2,600.00 on Respondent Lee Ann Kennedy, and impose a fine of $1,000.00 on Respondent Kenco Industries, L.L.C. DONE AND ENTERED this 27th day of June, 2012, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 2012.
The Issue Whether the practices and procedures set forth in paragraphs 6.1., 6.2, and 6.3 of the Challenge to Agency Statements filed by the Petitioner on December 28, 2005, constitute agency statements defined as rules but not adopted as such, in violation of Section 120.54, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for enforcing the provisions of Chapter 482, Florida Statutes, the "Structural Pest Control Act." The Director of the Division of Agricultural Environmental Services (Division) is appointed by the Commissioner of Agriculture and is given the responsibility by Section 570.45, Florida Statutes, to enforce the provisions of Chapter 482, Florida Statutes. The Bureau is created in the Division and is responsible for, among other duties, investigating violations of Chapter 482, Florida Statutes. The Bureau Chief makes the ultimate decision to file an administrative complaint against a certificate-holder or to preliminarily deny an application for certification as a pest control operator or for an identification card for a pest control employee.3 At one time, Mr. Kravitsky was certified by the Bureau as a pest control operator. When he applied for renewal of his certificate, the Bureau issued a notice in 2004 that it intended to deny the application because of alleged violations of Chapter 482, Florida Statutes, committed by Mr. Kravitsky while he engaged in the business of a certified pest control operator. In 2005, the Bureau issued another notice that it intended to deny a second application for renewal of Mr. Kravitsky's pest control operator's certificate, based on the same allegations of wrong-doing. And, finally, the Bureau issued a notice in 2005 that it intended to deny Mr. Kravitsky's application for a pest control employee's identification card.4 Mr. Kravitsky is, therefore, substantially affected by the agency statements at issue herein. The Bureau Chief's decisions to file an administrative complaint against a certificate-holder for violations of Chapter 482, Florida Statutes, or to deny preliminarily applications for a certificate, a renewal certificate, or an employee identification card are based on information gathered as part of an investigation of a licensee or an applicant. If the investigation is of a certificate- or card-holder, an investigation is initiated either as a routine enforcement action or as the result of a consumer complaint. A field inspector for the Bureau collects information, including statements, affidavits, photographs, videotapes, documents, and any information that pest control operators and employees are required to maintain. Once the information is gathered by the field inspector, the case file is sent to the inspector's supervisor, who reviews the case file for completeness. The supervisor requests additional information, if necessary. Once the supervisor considers the file complete, it is sent to the Bureau's office in Tallahassee, Florida, where the file is given a case number and assigned to a case reviewer who evaluates the evidence contained in the file to determine if there is a possible violation of the provisions of Chapter 482, Florida Statutes. If the case reviewer finds no violation, the case is closed. If it appears to the case reviewer that there is evidence of a violation, an administrative complaint is drafted, and the draft complaint and case file are sent to an enforcement administrator or to a case manager, who independently evaluates the evidence collected in the case. The enforcement administrator or case manager then makes a recommendation to the Bureau Chief regarding whether the draft administrative complaint should be filed. Anyone reviewing the case file can ask that additional information be gathered if he or she finds that the file is not complete. This investigation and review process is an internal process that is not applied outside the Department, it does not affect the private interests of any person, and it is not a procedure that is important to the public.
Findings Of Fact Respondent Turner is engaged in the business of pest control, including the application of termiticide to the soil of pre-construction sites for the prevention of subterranean termites. Respondent is licensed by the Petitioner under Chapter 482, Florida Statutes, as a pest control business and maintains its primary place of business in Jacksonville, Florida. Respondent Kincade is employed by Turner as a pesticide applicator technician. The Petitioner is the state agency with jurisdiction to regulate and license pest control businesses and technicians. On June 12, 1993, Mr. Phil Helseth and Mr. Montgomery, employees of the Petitioner, were returning from lunch and observed one of Respondent Turner's trucks turning onto the Blodgett construction area in Jacksonville, Florida. Helseth surmised the Respondent's truck was there to do a pretreatment for termites. Helseth then observed activities by a Turner Pest employee, later identified as Mr. Kincade, who was spraying a substance on the soil on foundation areas at sites one and two. Mr. Helseth concluded the Respondent's agent was engaged in termite pretreatment. When the Turner employer concluded his activities, he drove his truck to the construction trailer on the building site where he was confronted by Mr. Helseth and Mr. Montgomery. At that time a third employee of the Department, Mr. Parker, had arrived, bringing calibration equipment to measure the rate of discharge from the Turner Pest pumper truck. Petitioner's inspectors introduced themselves to Kincade and identified themselves. Petitioner's representative requested Kincade to produce the identification card issued to him by Petitioner. Mr. Kincade did not do so. Petitioner's representative asked Kincade questions about what he was doing, and Kincade demurred, stating it was Turner's policy for him to call a supervisor who would answer their questions. Kincade called his office, and shortly thereafter Joe Turner arrived on site. The spraying equipment utilized by Kincade was then calibrated to determine the amount of pesticide mixture being emitted. Joe Turner, President of Turner Pest Control, Inc., denied that they were performing a pre-construction treatment for termites. Mr. Turner testified that the purpose of spraying the Dursban 2E on the site in question was to empty the tank and that this was proper disposal of the chemical in accordance with the label instructions. A local pest control operator testifying for Respondents stated that the disposal of the pesticide Dursban 2E in this manner was perfectly in accordance with the label and that he has emptied tanks of Dursban 2E on construction sites twenty to thirty times in the last two or three years. Petitioner did not offer any testimony that this method of disposal was contrary to the label. Petitioner concluded that Turner Pest was conducting a termite pretreatment, although informed by Joe Turner at the time such was not the case, and filed the initial Administrative complaint. The Blodgett site contractor's job superintendent, Joe Wilson, testified. Sites prepared for construction at Blodgett Homes would receive termite pretreatment and pest control. Joe Turner had consulted with Wilson about spraying the Dursban 2E to dispose of the chemical. The job superintendent knew the operator, Kincade, was not performing a pretreatment for termites. Dursban 2E is a general insecticide. It, according to its label, can be used in a variety of concentrations, for a variety of insects, but termites are not one of those insects. Disposal, according to the labels, is by spraying the chemical on soil such as to lawn or a building site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services dismiss the charges against Turner Pest Control, Inc. and impose an administrative fine in the amount of $100.00 against Respondent, William D. Kincade. DONE AND ENTERED this 14th day of April, 1994, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 93-6624 Both parties filed Proposed Recommended Orders which were read and considered. The following states which of these proposed findings were adopted and which were rejected and why. Petitioner's PFOF: Paragraph 1 and 2 Adopted. Paragraph 3 True, but irrelevant. Paragraph 4 Respondent's paragraph 3 et seq. better states the facts. Last part adopted as paragraph 5. Paragraph 5 Adopted RO paragraph 5. Paragraph 6 Adopted RO paragraph 6. Paragraph 7 Adopted RO paragraph 7. Paragraph 8 Rejected as argument. Paragraph 9 Contrary to better evidence. Mr. Helseth conclusions were based upon his conclusion that Dursban 2E was being used as a termite pre- treatment, not being disposed of. Paragraphs 10, 11 RO paragraph 8. Last sentence is rejected because it was accepted that use and disposal was controlled by the instructions on the label. The label indicates disposal by spraying on soil was appropriate. Respondent's PFOF: Paragraph 1 RO paragraph 3. Paragraph 2 RO paragraph 4 and RO paragraph 9. Paragraph 3 Irrelevant. Paragraph 4 Restated in RO paragraph 5 and 6. Paragraph 5 RO paragraph 11. Paragraph 6 RO paragraph 11. Paragraph 7 RO paragraph 12. COPIES FURNISHED: Bob Crawford, Commissioner Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, Esquire Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Robert G. Worley, Esquire Department of Agriculture Room 515, Mayo Building Tallahassee, FL 32399-0800 William G. Cooper, Esquire COOKER MYERS 136 East Bay Street Post Office Box 1860 Jacksonville, FL 32201
The Issue The issues in this case are whether Respondent, James Bartley, violated Section 482.091(1), Florida Statutes (2007), as alleged in Petitioner’s Amended Administrative Complaint issued by Petitioner, the Department of Agriculture and Consumer Services, on October 31, 2007, and, if so, what disciplinary action should be taken against his Florida pest control certified operator’s license.
Findings Of Fact Rudy L. Benvin was employed as a pest control employee by Diligent Environmental Services, Inc. (hereinafter referred to as “DESI”), on February 15, 2007. While DESI was the “licensee” for which Mr. Benvin was employed, the evidence failed to prove who the certified operator in charge (hereinafter referred to as the “Certified Operator”) was upon Mr. Benvin’s employment. Clearly, Mr. Bartley was not the Certified Operator when Mr. Benvin was employed or during the 30-day period thereafter. DESI failed to apply for a pest control identification card for Mr. Benvin upon his employment, during the 30 days after his employment, or at any time that Mr. Benvin was employed by DESI. Respondent, James Bartley, became the Certified Operator of DESI on April 12, 2007. Mr. Bartley was employed as the DESI Certified Operator until May 24, 2007. Mr. Benvin was still in the employee of DESI on April 12, 2007, and continued as an employee of DESI during the period that Mr. Bartley served as the DESI Certified Operator. Because Mr. Benvin was already “employed” by DESI at the time Mr. Bartley became Certified Operator and had been continuously so employed since February 15, 2007, Mr. Bartley could not have, simply by becoming the DESI Certified Operator, “employed” Mr. Benvin. On or about August 14, 2007, an application for an identification card was filed by Mr. Bartley with Petitioner, the Department of Agriculture and Consumer Services (hereinafter referred to as the “Department”). The name of the employing company reported on the application by Mr. Bartley was incorrect. Mr. Benvin continued his employment with DESI until sometime during the week of September 9, 2007. In settlement of DOAH Case No. 07-5417, DESI agreed that it had violated Section 482.091(1), Florida Statutes, by failing to apply for a pest control identification card for Mr. Benvin “within 30 days after employment of [Mr. Benvin] ”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services dismissing the Amended Administrative Complaint against James Bartley. DONE AND ENTERED this 8th day of February, 2008, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2008. COPIES FURNISHED: Howard J. Hochman, Esquire Law Offices of Howard J. Hochman 7695 Southwest 104th Street, Suite 210 Miami, Florida 33156 David W. Young, Esquire Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Findings Of Fact Evidence adduced by the Petitioner in the form of the testimony of F. Robert DuChanois, an entomologist and supervisor in charge of commercial pest control, Office of Entomology, Department of Health and Rehabilitative Services, as well as Exhibit 2, established that on July 1, 1979, the Respondent made an inspection of an apartment house in Hallandale, Florida, to determine whether suspicions by the occupants of drywood termite infestations were well-founded. As delineated in Exhibit 2, the Respondent's report of his inspection, positive evidence was found in a number of places of termite infestation, which findings revealed that indeed the Respondent made a detailed professional investigation of the premises for such infestations. The evidence in the record also reveals (Exhibit 4) that the Respondent is not operating a pest control business, but is only performing consulting work for those property owners who request that he make inspections for termite and other wood-destroying pests. In any event, the Respondent, in the posthearing pleading he filed, has agreed to cease the activity objected to and which forms the basis of the Petitioner's charges. He has agreed to cease practicing consulting work in entomology henceforth.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law and the evidence in the record, it is, therefore, RECOMMENDED that the Petition in this cause filed by the Department of Health and Rehabilitative Services against Dr. A.C. Banerjee be DISMISSED and Case No. 80-2160 be hereby closed. DONE AND ENTERED this 10th day of August, 1981, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1981. COPIES FURNISHED: Harold L. Braynon, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Ft. Lauderdale, Florida 33301 Dr. A. C. Banerjee 10891 N.W. 17th Manor Coral Springs Branch Pompano Beach, Florida 33065 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, vs. CASE NO. 80-2160 DR. A. C. BANERJEE, Respondent. /
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.
