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.
The Issue The issues presented for decision herein are (a) whether or not Respondent, Charbet Chemical Company a pesticide producing establishment, unlawfully distributed, sold, or offered for sale or transported a pesticide which was not registered with Petitioner; (b) whether Respondent unlawfully distributed pesticides which were mix-branded and (c) whether Respondent unlawfully refused, after notice, to comply with lawful rules and orders of Petitioner applicable to pesticide producing establishments.
Findings Of Fact By its ten (10) count amended administrative complaint filed herein mailed February 19, 1986, Petitioner seeks to impose disciplinary sanctions against Respondent, based on alleged conduct, set forth hereinafter in detail, based on authority granted Petitioner pursuant to Sections 487.091(2) and 487.158(2)(e), Florida Statutes. Respondent, Charbet Chemical Company is a pesticide producing establishment situated at 1360 NW 54th Street in Miami, Florida. Fazal Haq is a pesticide enforcement specialist employed by Petitioner since 1980. His duties include the inspection of pesticide producing establishments, drawing samples of pesticide products to ensure that they are properly registered, labeled and chemically effective for the purposes which they are distributed or sold. In keeping with his duties, Enforcement Specialist Haq made a routine inspection of Respondent's establishment on June 5, 1984. On that date, Haq observed the pesticides "Guard," "Alpine Pine Disinfectant," "Kill-Germ," "Bac Zone," and "Pyro- Kil" at Respondent's establishment. All five products were offered for sale and were not registered as pesticides. During the June 5, 1984 inspection, Enforcement Specialist Haq also obtained samples of the above-referred products. Laboratory analysis revealed that the product "Kill- Germ," when tested by Petitioner using the AOAC /1 use dilution test, failed to kill staphylococcus aureus in fifty of fifty trials. The second product tested was "Pyro-Kil." Laboratory analysis revealed that the quantity of chemically active ingredients in the product "Pyro-Kil" was 66-82 percent deficient in technical piperonyl butoxide. Enforcement Specialist Haq's examination of the products "Bac Zone" and "Pyro-Kil" indicates that Respondent did not have the assigned EPA Accession Number affixed to the product labels. On June 5, 1985, Enforcement Specialist Haq collected samples of Respondent's products "Guard," "Alpine Pine Disinfectant," Kill-Germ," "Bac Zone," and "Pyro-Kil." As of June 5, 1985, Respondent had not registered the referenced products with Petitioner despite Petitioner's notice to Respondent of the registration provisions by letter dated February 16, 1982. Respondent has had the referenced products for sale through calendar years 1982 - 1985 and has refused, after notice, to comply with the registration provisions of Chapter 487, Florida Statutes, to wit Sections 487.158(1)(g), and Section 487.041(1), Florida Statutes. Steven John Rutz, Petitioner's environmental administrator since April, 1983, is in charge of oversight in field operations, case management and implementation of the grant agreements (federal) for Petitioner. Administrator Rutz examined Respondent's registration history for its pesticide products. Respondent's products "Guard," "Alpine Pine Disinfectant," "Kill- Germ," "Bac Zone" and "Pyro-Kil," were not registered when Enforcement Specialist Haq visited Respondent's facility on June 5, 1984. (Petitioner's Composite Exhibit 7).
Conclusions The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes. Petitioner, Department of Agriculture and Consumer, Services is the state agency charged with the responsibility of regulating pesticide producing establishments and for imposing disciplinary action against such establishments when warranted pursuant to the authority of Chapter 487, Florida Statutes. Respondent Charbet Chemical Company is a pesticide producing establishment and, as such, is subject to the disciplinary guides of Chapter 487, Florida Statutes. Florida pesticide laws require that pesticides be annually registered and properly labeled. The requirements include displaying on the products container its EPA Accession Number and the content of active ingredients in the product. Respondent's products "Guard," "Alpine Pine Disinfectant," "Kill-Germ," "Bac Zone" and "Pyro-Kil" are pesticides within the meaning of Section 487.021(45), Florida Statutes. Respondent distributed, sold and offered for sale the above-referenced pesticides during times material and failed to annually register such products as required in violation of Section 487.041(1), Florida Statutes. Competent and substantial evidence was offered herein to establish that the Respondent failed to register its products "Guard," "Alpine Pine Disinfectant," "Kill-Germ," "Bac Zone," and "Pyro-Kil" as was required pursuant to Section 487.041(1), Florida Statutes, and thereby derivatively violated Section 487.031(1)(a), Florida Statutes. Respondent's product "Kill-Germ," based on a laboratory analysis by Petitioner, was ineffective in that it failed the AOAC use dilution test. Respondent thereby misbranded "Kill-Germ" in violation of Section 487.031(1)(f), Florida Statutes. Respondent's product "Pyro-Kil," when tested for the quantity of chemically active ingredients, was found to be deficient in the range from 66 to 82 percent in technical piperonyl butox. Based thereon the active ingredient concentration was found to be less than the quantity stated on the product label and as such was mix-branded in violation of Section 487.031(1)(f), Florida Statutes. Evidence reveals that when Haq inspected Respondent's facility on June 5, 1984, labels from Respondent's product "Bac Zone" and "Pyro Kil" failed to display their assigned EPA Accession Number. Based thereon, the labels did not include all required information and were therefore mix-branded in violation of Section 487.031(1)(f), Florida Statutes. Evidence adduced herein reveals that Respondent's products "Guard," "Alpine Pine Disinfectant," "Bac Zone, N Pyro- Kil," and "Contact" were not properly registered pursuant to Section 487.158(1)(g), Florida Statutes. Despite written notice to Respondent that the products were not properly registered, that refusal to register continued at least through the date of the hearing herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Respondent be fined $200 for each of the ten (10) violations found herein above and as is more particularly set forth in the Amended Administrative Complaint filed herein for a total administrative fine of $2,000. It is further recommended that payment of the $2,000 fine be paid to Petitioner, Department of Agriculture and Consumer Services, within 30 days of the date of Petitioner's rendition of its Final Order. Recommended this 28th day of March, 1986, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1986.
Findings Of Fact Respondent is licensed by the State of Florida, Department of Health and Rehabilitative Service as a pest control service authorized to perform all functions for which such organizations may be licensed. Gilbert Bellino was certified operator for Respondent from prior to the earliest charge in the Administrative Complaint until mid-1977. He was certified in the four types of treatment authorized by pest control companies, viz. fumigation, general household pest control, including rodent control, termite or other wood infesting organisms control, and lawn and ornamental pest control. A certified operator is required to supervise and direct the activities of all employees engaged in pest control. Many of the complaining witnesses made their first contact with Respondent when answering an advertisement for a onetime household pest treatment and a free termite inspection. Lloyd Green responded to an ad in which Respondent offered a spray treatment of the yard and house for $15. Folsom and Jones appeared and after an inspection of his house advised Green that he had dry wood and subterranean termites and induced him to sign a contract to treat them at a price of $286. After reflection and before any work was done Green called and cancelled the contract. He had the house inspected by Mr. Chapman of Chapman Pest Control who found no evidence of active infestation. All evidence Chapman found of wood damage was done prior to the timber having been processed. The house was later inspected by David Jones, District V Entomologist and he too found no evidence of active infestation. A second inspection of Green's home was made by Jones in company with Casale, the President of Respondent. The only evidence found was one hole in a bed slat which had occurred before the lumber was processed. Turpentine beetles and pine sawyer beetles are wood borers that attack trees but not processed lumber. Once lumber is processed any further damage from these beetles is highly improbable if not impossible. Evidence of the damage they have caused will remain in the wood but is readily distinguishable from an active infestation by one with almost any training in pest control. Wood borers make round holes and any eliptical hole found in timber is indicative that the hole was made before the wood was processed. The oblique angle to the borer's tunnel cut by the saw when the lumber was processed causes an eliptical hole. Charles Casale visited Robert Rankin's house for a free termite inspection and identified himself as an employee of Respondent. He was accompanied by another man who inspected the crawl space under the house. Upon completion of the inspection Casale advised Rankin he had an infestation and needed treatment which would cost $300. After getting an opinion from another pest control company that he did not have termites Rankin called HRS and David Jones inspected the entire house. At this inspection Jones found no evidence of active infestation but a colony of fleas from Rankin's two dogs. At the time of Casale's inspection application for an identification card had not been submitted for Casale. Thelma P. Wray contracted with Respondent for fumigation of her house. No written instructions were given her by Respondent, nor was she advised to remove medicines. She was advised to remove only milk cartons, cheese and open food. The only warning sign placed on front and rear of house during fumigation (Exhibit 4) on November 10, 1974 did not show type of fumigant used and stated house is safe for reentry at 10:30 a.m. December 11, 1974. This sign appeared on the house the evening of December 10, 1974 and was placed only at the front and rear. No notice of this fumigation was provided to the County Industrial Hygienist who maintains records of notices of all fumigations. Neither Mr. nor Mrs. Chaney testified. No one having personal knowledge was called to identify Exhibit 6 and no evidence was offered that Larry A. Donald, Jr. was employed by Respondent and visited the Cheney home without a valid identification card. Mrs. Ruby Moser did not testify. No witness was produced to testify regarding Phillip Jones' visit to the Moser home on June 10, 1975 or identify Exhibit 7. Neither Mr. nor Mrs. Donald R. Seldes testified. No evidence was presented regarding the alleged visit of Bill Gillian, while an employee of Respondent, to the home of the Seldes. Judith Bashline was contacted by Respondent through telephone solicitation for special pest cleanout and termite inspection. One man sprayed for the pest cleanout and he was followed by Phillip Jones and Ken Ely, Jr. who, after inspecting the attic, advised her she had an infestation in the attic in a dormant state which needed immediate treatment. She entered into a contract for spot treatment for $190. After Jones and Ely left Mrs. Bashline began having misgivings and called another pest control company for information. She was referred to HRS and there contacted David Jones who inspected the property. Upon inspection Jones found no evidence of active infestation - only the preprocessed type damage found in the other homes. When Helen M. Hopper purchased her home at 1037 - 12th Street North, St. Petersburg, Florida she acquired a subterranean termite policy from Respondent. She then started monthly sprayings with Respondent. After the first spraying on September 16, 1975, Ken Ely, Jr., an employee of Respondent, went into Hopper's attic and told Mrs. Hopper she had borers in the roof and needed immediate treatment to save the roof. After he left she called another pest control company for verification. When that company inspected the attic they reported no problem with borers. She then called HRS and David Jones inspected the premises October 24, 1975 and in the attic he found only old damage which had occurred before the wood was processed. There was no infestation for which treatment was indicated. When Donald R. Bond II and his wife purchased a home his mother recommended they use Gulf Coast Pest Control. In January, 1977 Robert R. Plowman, an employee of Respondent, advised the Bonds that they had powder post beetles and dry wood termites and the attic needed to be treated. He came back that evening when Mr. Bond was home and a contract for the work was signed. The following day Mrs. Bond had two other pest control companies inspect the house. Whey they advised her there was no evidence of active infestation she cancelled her contract and called HRS. On February 10, 1977 David Jones inspected her property. He found no evidence of borer or termite infestation; however Jones did find evidence of rat infestation. On June 26, 1976 Robert R. Plowman, an employee of Respondent, inspected the home of Rita M. Spera at 9783 - 52nd Avenue North, St. Petersburg, Florida and reported to her that there was an infestation of wood borers in the attic and she needed to have fumigation. The previous year the Speras had replaced the shingles on the roof and had found the wood in good condition. Accordingly Mrs. Spera really didn't believe Plowman and called HRS for verification. When David Jones Inspected the house on July 2, 1976 he found only evidence of old damage that had occurred before the wood was processed. No evidence of active infestation was observed. Mrs. Ellen M. Hameroff received a telephone solicitation from Respondent for a cleanout and termite inspection. She accepted the offer and on September 2, 1976 Robert R. Plowman, an employee of Respondent, inspected her attic and reported that powder post beetles were present and treatment was needed which would cost $200 to $400. Plowman returned that evening to talk with Dr. Hameroff but they didn't sign a contract. The following day another pest control company was contacted for an inspection. They reported no infestation. She then called HRS and on November 22, 1976 David Jones inspected the property and found only evidence of old damage. On September 1, 1977 William C. Bargren, Scott Askins and F. R. DuChanois, Entomologists with HRS inspected the Hameroff property. They found evidence that pine sawyer beetles had been in the tree from which some sheathing boards in the attic had been processed. There was no evidence of infestation in the Hameroff home. In December, 1976 Robert L. Dill had a spray and free inspection by Respondent on his home at 1551 Citrus Street Clearwater, Florida. Following an inspection of the home, Robert R. Plocnan and John D. Lucas, employees of Respondent, advised Dill that he had powder post beetles in the attic, ceiling and floor under the house and needed treatment. Before agreeing to the treatment for the powder post beetles and preventive treatment for termites for which Respondent wanted $500, Dill had two other pest control companies inspect the property. Both of these companies advised Dill he had no infestation. Jimmy Robinson of Exterminator Terminix, International, a certified operator, inspected the Dill property on November 22, 1976 and found no evidence of powder post beetles or termites for which treatment was indicated. He noticed no damage to floor but did see some evidence of borers before the wood was processed. When Dill reported the incident to HRS, David Jones inspected the property on January 20 and 26, 1977, the second time in company with the Casales, Plowman and Donald. Damage to wood in the floor was done before the lumber was processed and no infestation was present for which treatment was indicated. Lawrence A. Donald, an employee of Respondent, holds a certified operator's license and he found evidence of "tremendous damage due to boring animals" under Dill's house. He opined that there were live larvae in the wood, however, his credibility and expertise left a great deal to be desired. During a monthly contract spraying Robert R. Plowman, an employee of Respondent, told Mrs. Shirley I. Bond that she had powder post wood borer beetles in the attic of her home at 6701 - 19th Street North, St. Petersburg, Florida and needed to have the attic power dusted. Mrs. Bond gave Plowman a check for $295 but after her daughter-in-law's experience, stopped the work. She called HRS and David Jones inspected her property on April 14, 1977. He found no evidence of infestation and in Jones' opinion the power spray of Dridie (a trade name for silica gel) would not be appropriate to treat dry wood termites or powder post beetles. Raymond L. Jackson employed Respondent for the advertised "clean-out" and free inspection. On January 6 and 7, 1977 Robert R. Plowman, an employee of Respondent, inspected Jackson's property at 6243 - 6th Avenue South, St. Petersburg, Florida and advised Jackson that he had active termites and powder post beetles and needed treatment. Jackson signed a contract and paid Plowman $300 for the work. About two weeks later two men power dusted Jackson's attic. After reading an article in the newspaper about powder post beetles Jackson called HRS and his property was inspected by Askins on July 26, 1977 and by Askins and Bargren on August 10, 1977. The only evidence of damage they found was that caused by turpentine beetles prior to the wood being processed. In their opinion no treatment was indicated before the power dusting was done. Mrs. Helen Stambaugh had a "clean-out" and free termite inspection in July, 1977 at her home at 2518 - 67th Avenue South, St. Petersburg, Florida by Respondent. Larry D. Brown, an employee of Respondent, to whom an application for identification card had not been submitted, told Mrs. Stambaugh that dry wood termites were infesting her garage and treatment was necessary. Spot treatment was offered for $130. She contacted another pest control company who, after inspection, advised that no treatment was indicated. She then called HRS and on July 20, 1977, Bargren and Askins inspected her property and found only evidence of old turpentine beetle damage in the garage which had occurred before the wood was processed. No infestation for which treatment was indicated was observed. In October, 1975 representatives from Gulf Coast Pest Control, Louis Casale, the company manager, Carmine Casale the owner and Gilbert Bellino, the certified operator, met with HRS representatives in Jacksonville to discuss the numerous complaints HRS had received about Respondent and to formulate remedial action. At this meeting the need for additional training of their salesman was discussed in connection with the complaints filed by Green, Rankin, Wray, and others with particular emphasis on the need to train their operators to distinguish old damage in the preprocessed tree from damage requiring correction. Respondent agreed to increase their training to improve the quality of their inspectors. Respondent has discharged all of the salesmen who made the misrepresentations noted above. Plowman was finally discharged because "he was too dumb" to learn to distinguish between old damage not requiring treatment and new damage which did require treatment. However, Plowman was continued as an employee even after criminal charges involving fraudulent misrepresentation had been filed against him.
The Issue The issues in this case are whether Respondent, Larry Kravitsky, as alleged in Petitioner’s Administrative Complaint issued by Petitioner, the Department of Agriculture and Consumer Services, on February 13, 2007, provided pest control services in violation of Section 482.165(1), Florida Statutes (2006), whether he applied a pesticide in a manner inconsistent with its label in violation of Florida Administrative Code Rule 5E- 14.106(1), and, if so, what disciplinary action should be taken against him.
Findings Of Fact Petitioner, the Florida Department of Agriculture and Consumer Services, Bureau of Entomology and Pest Control (hereinafter referred to as the “Bureau”), is charged with the responsibility of administering and enforcing the provisions of Chapter 482, Florida Statutes, the “Structural Pest Control Act.” At the times relevant to this matter, Respondent Larry Kravitsky was not licensed to perform pest control services. While he had applied for an identification card with the Bureau, that application had been denied. At the times relevant to this matter, Cara Beth Walker resided at 6485-4 Bay Club Drive, Fort Lauderdale, Florida (hereinafter referred to as the “Property”). At the times relevant, Sears Pest Control Incorporated, d/b/a Ship Shape Pest Control (hereinafter referred to as “Ship Shape”), was a licensed pest control business in the State of Florida. Ship Shape, owned by Mr. Kravitsky’s brother, Alan J. Kravitsky, was qualified to conduct pest control at the times relevant through Lori Kelley. The evidence failed to prove that anyone at Ship Shape had authorized Mr. Kravitsky to perform pest control services in June 2006. On June 5, 2006, John McDonough, then in the employ of Ship Shape, arrived at the Property, where he had previously provided treatment for ants. Mr. McDonough, who applied for a Pest Control Employee-Identification Card on June 9, 2006, which was approved as of June 10, 2006, was not a certified operator in charge or even familiar with rodent control, came to the Property because of a problem Ms. Walker was having with what she believed were rodents. When Mr. McDonough arrived, he told Ms. Walker that he had to wait for Mr. Kravitsky and the equipment necessary to perform any treatment to arrive. Ms. Walker was unable to remain at the Property because of her employment, so she left before the treatment was completed. While Ms. Walker testified as to Mr. Kravitsky’s arrival and initial involvement in the treatment, that testimony has been rejected as unconvincing. There were simply too many inconsistencies in Ms. Walker’s testimony concerning what took place on June 5, 2006, and with the more convincing testimony of Carlos Rojas to be given any credence by this finder of fact. What the evidence did prove, however, is that at some time after Mr. McDonough arrived at the Property, Mr. Kravitsky and Mr. Rojas arrived in separate vehicles. Mr. Rojas was also employed by Ship Shape but did not have a Pest Control Employee- Identification Card or pest control license. Mr. Rojas had been directed by Mr. Kravitsky to go to the Property that morning. Mr. Kravitsky brought electrical cords, a drill, and an electric duster to the Property. The electric duster was filled with Ditrac, a powder used to eliminate rodents. Mr. Rojas was not aware of what the powder was and had no experience using an electric duster. Mr. Kravitsky did not try to explain what the electric duster was for or how to use it. Instead, Mr. Kravitsky instructed Mr. Rojas to follow Mr. McDonough’s instructions. Mr. Kravitsky then left the Property, leaving Mr. McDonough in charge. Mr. Rojas was told by Mr. McDonough to drill holes in the walls. Next, Mr. Rojas was told to plug the electric duster into an electric outlet and then place a nozzle from the electric duster in the holes that had been drilled. Mr. Rojas was told to turn the duster on and to leave it on from one to three minutes in each hole. Mr. Rojas followed these instructions. The operation took approximately an hour to complete, at which time Mr. Kravitsky returned. All three men then left the Property. The evidence failed to prove that anyone other than Mr. Kravitsky was involved in authorizing the treatment of the Property on June 5, 2006. Lori Kelly, the certified operator in charge of Ship Shape knew nothing about the job until after it was completed. At no time did Ms. Kelly direct or authorize the use of Ditrac at the Property. Ms. Kelly became aware of the treatment of the Property when Mr. Kravitsky told her that she would be contacted about the job. While she could not recall at hearing whether she had been asked by Kravitsky to say that she had been present during the treatment, she signed a statement on July 7, 2006, indicating that she had been. While she acknowledged that the statement was given when her memory was probably better, she did not testify that the statement refreshed her memory. Mr. Kravitsky’s and Mr. McDonough’s account at hearing of what transpired on June 5, 2006, at the Property is rejected as not credible. The Bureau in proposed findings of fact 11, 12, 14 and 15 of Petitioner’s Proposed Recommended Order explain in detail some of the reasons why Mr. Kravitsky’s testimony has been rejected. Information obtained from David Beswick by the Bureau, however, has not been relied upon in making this or any other finding in this Recommended Order because that information is hearsay. Mr. Kravitsky admitted to Ms. Walker on or about June 16, 2006, that the powder used on June 5, 2006, was Ditrac. He also admitted to her that three pounds of Ditrac had been used. Several weeks after the treatment at the Property, Mr. Kravitsky admitted to Mr. Rojas that the treatment had been a disaster and warned Mr. Rojas that someone from Petitioner would be contacting him about the job. Mr. Kravitsky told Mr. Rojas to decline to talk about the treatment because he would be represented by legal counsel provided by Mr. Kravitsky. The Bureau, following established procedures, took samples from different areas of the Property on June 16, 2006. Additional samples were taken on June 26, 2006, by Mary Cohen, who was accompanied by Richard Lucas. Again, established procedures, described in detail by Ms. Cohen, were followed. The samples taken at the Property were tested by Patty Lucas, Director of the Bureau’s Pesticide laboratory. Ms. Lucas utilized procedures accepted in the scientific community to determine where Diphacinone, the active ingredient in Ditrac was present. Two of the samples taken on June 16, 2006, and two of the samples taken on June 26, 2006, tested positive for Diphacinone. These tests results are consistent with Mr. Kravitsky’s admission to Ms. Walker that Ditrac had been used in the treatment of the Property. The Ditrac label, Petitioner’s exhibit 3, contains the following “PRECAUTIONARY STATEMENTS HAZARDS TO HUMANS AND DOMESTIC ANIMALS WARNING” concerning use of the chemical” May be fatal if swallowed or absorbed through the skin. Do not get in eyes, on skin or on clothing. Wear protective clothing and rubber gloves. Wash arms and face with soap and water after mixing or handling and before eating, drinking, or using tobacco. Remove contaminated clothing and wash before reuse. The label also warns that Ditrac is a “RESTRICTED USE PESTICIDE Due to Acute Oral Toxicity” and that it is “[f]or retail sale to, and use only by, Certified Applicators, or persons under their direct supervision and only for those uses covered by the Certified applicator’s Certification.” Finally, of importance in this case, the Ditrac label includes the following instruction concerning “APPLICATION DIRECTIONS: . . . Do not use power dusting devices ” Mr. Kravitsky, contrary to the warnings and directions for use of Ditrac, without authorization by anyone at Ship Shape, and without any license or other authorization from the Bureau, directed Mr. Rojas to use an electric duster filled with Ditrac in the Property. His actions constituted the practice of pest control and the use of a pesticide in a manner inconsistent with the pesticide’s label.
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 finding that Larry Kravitsky violated Section 482.165, Florida Statutes, and Florida Administrative Code Rule 5E-14.106(6), as alleged in the Administrative Complaint and imposing a fine in the amout of $4,000.00. DONE AND ENTERED this 2nd day of June, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 2009. COPIES FURNISHED: David W. Young, Esquire Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Larry Kravitsky 3300 South Ocean Boulevard, Apartment 917 Highland Beach, Florida 33487 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue The issues in this case are whether Respondent violated Subsections 482.121(1)(a) and 482.121(1)(b), Florida Statutes (2007),1 and, if so, what discipline should be imposed.
Findings Of Fact PFSG, Inc., d/b/a US Lawns of Destin (US Lawns),2 submitted a Pest Control Business License Application to the Petitioner, listing Mr. Lewis as its certified operator in charge for lawn and ornamental pest control, effective August 9, 2007. Mr. Lewis’ certificate number is Jf 13685. US Lawns had been operating on an emergency certificate from June 6, 2007, until Mr. Lewis’ employment on August 8, 2007. In its application for a business license, US Lawns requested that its emergency certificate be canceled as of August 8, 2007. In order for a pest control company to operate, the company has to have a certified pest control operator in charge of the pest control activities at the licensed business location. If a company does not have a certified operator to serve as the certified operator in charge, an emergency certificate can be issued and renewed monthly up to a year, allowing an employee who did not have a certified operator’s certificate to serve as the certified operator in charge. As the certified operator in charge for US Lawns, Mr. Lewis applied to Petitioner for a pest control employee identification card, effective August 9, 2007. He listed the commencement of his employment with US Lawns as August 9, 2007. He also stated that his last employment with a pest control company had ended on June 11, 2007. A pest control employee identification card was issued to Mr. Lewis by Petitioner. Mr. Lewis’ wife died on July 4, 2007. Petitioner received a complaint that Mr. Lewis was not working full time for US Lawns and was allowing US Lawns to use his certificate to maintain its business license. Based on the complaint, Michael Walters, who is employed by Petitioner as an environmental specialist II, began an investigation. Mr. Walters went to US Lawns' office and made an inspection. On October 31, 2007, Mr. Walters went to see Mr. Lewis at Mr. Lewis’ home for the purpose of interviewing Mr. Lewis. Mr. Lewis gave Mr. Walters a signed affidavit, which stated: I work full time with U.S. Lawns of Santa Rosa Beach. I have been part time since the loss of my wife, but I do go to work at least once a week and check on things. I do all the training for card holders and such. As soon as I feel better I should be back fulltime. I have been there around 5 yrs., minus one year with another company. In his request for an administrative hearing, Mr. Lewis stated: “I was on vacation for 4 weeks, due to the death of my wife,” and I was not working part time ever. The evidence is clear that Mr. Lewis was not working full time for US Lawns from the time of his wife’s death until at least the date of his affidavit, October 31, 2007.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Lewis violated Subsection 482.121(1)(a) and 482.121(1)(b), Florida Statutes, and revoking his certified operator’s certificate. DONE AND ENTERED this 19th day of August, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 2008.
The Issue Petitioners seek attorney's fees and costs from Respondent, Department of Agriculture and Consumer Services, pursuant to Section 57.111, Florida Statutes. The parties have stipulated that Petitioners are "small business parties" under that section, and that the fees and costs being sought are "reasonable." The issues remaining for disposition, therefore, are: Whether Petitioners "prevailed" in all four underlying cases, including the two that were settled prior to final hearing; Whether the Department "initiated" the procedures, or was merely a "nominal party"; Whether the Department had a "reasonable basis in law and fact" at the time that it initiated the proceedings; Whether special circumstances exist which would make an award unjust; and Whether the statutory $15,000 cap should be applied collectively or separately to the four underlying cases.
Findings Of Fact (The facts are substantially uncontroverted and the facts established in the underlying cases nos. 94-2801, et al are incorporated by reference. The following facts are recounted to establish a background for the contested issues of law.) As stipulated, the Petitioners are small business parties within the meaning of Section 57.111, Florida Statutes. They are Florida corporations, with their principal offices in Florida, with less than 25 full-time employees and net worth of less than $2 million. The Department of Agriculture and Consumer Services (department) is the state agency responsible for administering and maintaining the pesticide- sensitive and especially pesticide-sensitive person registries as provided in Section 482.2265(3), Florida Statutes (1993). Carol Ann Rodriguez, Jacqueline V. Dilworth, Susan L. Maxwell and Carrietta Kelly are four individuals, among approximately twenty-seven individuals, who applied to the department for designation as "especially pesticide-sensitive" pursuant to subsection 482.2265(3), Florida Statutes, (1993). The pesticide-sensitive and especially pesticide-sensitive registries are described in the department's final order entered August 4, 1995, adopting all but two findings of fact in the Hearing Officer's recommended order in Case No. 94-2801, et al. These findings, and the findings related to the department's review of applications, need not be repeated here. In summary, however, the department did not investigate the merits of the applications but merely determined whether the certifying physicians were qualified according to the department's liberal interpretation of its own rule. That review function was delegated primarily to the secretary for the administrator of the department's pest control section. After review, the department published quarterly notices in the Florida Administrative Weekly of its intent to grant applications of especially pesticide-sensitive persons. The notices listed the names and addresses of the applicants and described the process for pest control operators to request hearings pursuant to Section 120.57, Florida Statutes. These were clear points of entry. Petitioners here, and the Florida Pest Control Association, Inc. filed their requests for hearings, challenging the department's proposed action. The underlying consolidated cases resulted. Prior to the formal hearing, several individual applicants, including Carol Ann Rodriguez and Jacqueline Dilworth, settled their cases by withdrawing their applications and agreeing to be placed on the less restrictive pesticide- sensitive registry. This outcome was favorable to Petitioners because they were thereby relieved of the more onerous notification requirements which attach when an individual is designated "especially pesticide-sensitive." This was the relief Petitioners sought. After vigorous prehearing motion and discovery activity, approximately twenty consolidated cases proceeded to formal hearing. Among those were the individual cases of Susan L. Maxwell and Carrietta Kelly. The department, through counsel, participated in the formal hearing. It presented evidence through exhibits and witnesses, and cross-examined witnesses presented by other parties. Evidence to support Susan Maxwell's application was limited to a certification signed by Dr. Albert Robbins, an osteopathic physician. The certification was not supported by any non-hearsay evidence. Evidence to support Carrietta Kelly's application was limited to Dr. Robbins' testimony that he signed her certificate after she and her physician husband called him and wrote him a letter. Mrs. Kelly was never Dr. Robbins' patient and he never met her. The outcome of the formal hearing was a recommended order which found that no individual in the multiple cases presented adequate proof of the need for notification at greater distance than that specified for pesticide-sensitive persons. In other words, the applicants failed to prove entitlement to designation as "especially pesticide-sensitive." The department entered its final order on August 4, 1995, and adopted all but two findings by the hearing officer. The first rejected finding was that nothing in evidence indicated that one of the certifying individuals, "Roy P. Doyle," was a physician. The second finding rejected by the department was that the department had failed to justify or explicate its policy for qualifying physicians other than those specified in its own rule. The department's final order removed all of the individual parties from the registry as "especially pesticide-sensitive" and left them on the pesticide-sensitive list. Petitioners thus prevailed on the central issue in dispute: whether the individuals were entitled to designation as "especially pesticide- sensitive." The fees and costs incurred by Petitioners in their successful defense, as well as fees incurred in pursuing the instant claims, are appropriately described in affidavits filed with the petitions and amended petitions. The department accedes to the reasonableness of the fees and costs, except where they are duplicated in more than one case. The affidavits establish that the Petitioners incurred $22,348.70 in attorney's fees and $4,085.26 in costs related to the four underlying cases. In addition, and not included in the above total, are minor fees incurred in individual cases: Rodriguez $374.00 Dilworth $368.50 Maxwell $115.50 $858.00 Petitioners also claim $2,530.00 (23 hours x $110/hour) for fees incurred in their Section 57.111 cases here. These costs and fees are reasonable, and amount to a total of $29,821.96. The calculation which leads to that total avoids duplication (charges for the same work computed more than once). The calculation also reflects that the three Petitioners joined together, two Petitioners each, in the four underlying cases, hired a single attorney and avoided duplication of effort by separate attorneys for each Petitioner.
The Issue The issues are whether Petitioner has proved that he is entitled to two exemptions from statewide environmental resource permitting: the mosquito control activities exemption set forth in Florida Administrative Code Rule 62-340.750 and the seawall construction exemption set forth in section 403.813(1)(i), Florida Statutes (2013).
Findings Of Fact The Request, the Property, and Canal Dredging The Request After filing the Request on September 10, 2013, Petitioner paid the filing fee on October 4, 2013. At this time, Respondent deemed the Request to be complete.3/ In addition to briefly describing the maintenance dredging of the ICW, the Request4/ describes the proposed activities as: Construction of approximately 950 feet of batter pile concrete seawall along [ICW] easement line. See drawing for location. Filling of property to approximate elevation 8.0 with offsite fill. Petitioner has since reduced the length of the proposed seawall from 950 feet to about 656 feet. He also testified that the seawall would require 20-30 feet of supportive fill equal in height to, and landward of, the seawall. The record lacks a drawing locating the proposed seawall, but it contains a diagram of a typical profile of the proposed seawall, which is Respondent Exhibit 23. The cap elevation would be six feet "NGVD." Text accompanying the diagram promises the use of turbidity barriers and best management practices during construction. Finally, the Request describes the following activities in wetlands or other surface waters: Because the wetlands are a result of the Mosquito Control District's previous activities and do not affect any other wetlands or surface waters, would make the entire property effectively upland. Dredging. The spoil material is to be removed and deposited on a self-contained, upland spoil site which will prevent the escape of the spoil material into the waters of the state. Seawall. Construction of seawall will not violate any existing water quality standards, impede navigation, or affect flood control. The Property Petitioner does not own the property to which the Request relates, but has entered into a contract to purchase the property. Among the conditions of the contract is the issuance of permits from various governmental agencies, including Respondent. The property consists of unimproved land on the west bank of the ICW south of Boynton Beach in Palm Beach County. As described in the contract, the property is "Palm Beach County Property Control Numbers 08-43-45-34-01-0030, 08-43-45-34-01- 0040, and 08-43-45-33-00-000-1390. Described as all of lots 3 and 4 of Rousseau's Subdivision, . . . [c]ontaining approximately 7.58 acres."5/ The plat map of Rousseau's Subdivision, which is Respondent Exhibit 21, was originally recorded on June 22, 1901 (1901 plat map),6/ and further describes the eight platted lots on the map as located within the west half of the northwest quarter of Section 34, Township 45 South, Range 43 East, and situated west of the Florida Coast Line Canal and Transportation Company (FCLCTC) canal. Property Control Numbers 08-43-45-34-01-0030 and 08-43- 45-34-01-0040 are lots 3 and 4 on the 1901 plat map, less the easterly 202 feet of both lots, which is encumbered by a right- of-way easement owned by FIND for the ICW.7/ References to the "Property" will include all of lots 3 and 4, not merely the portions of these lots west of the FIND right-of-way easement, even though, for reasons explained in the preceding endnote, the sales contract is for the conveyance of only the unencumbered portion of the Property. References to the Property will also include the site prior to platting in 1901. Property Control Number 08-43-45-33-00-000-1390 is an "access parcel" measuring 30-feet by 180-feet that connects the Property with U.S. Route 1 to the west. References to the Property will not include this access parcel. The eight lots depicted on the 1901 plat map feature roughly equal frontage on the canal. The northern lot line of each lot is longer than the southern lot line of each lot. The northwest corner of the northernmost lot is the northwest corner of the above-mentioned Section 34. As shown on the plat map,8/ the Property's north lot line runs 552.7 feet, and its south lot line runs 450.5 feet, for a total of about 7.1 acres. The north and south lot lines of each of the eight lots terminate 35 feet west of the centerline of the FCLCTC canal, which is depicted as 70 feet wide. Conveyances by reference to the 1901 plat map would thus not grant any interest, by instrument, to the 35 feet west of the centerline of the FCLCTC canal. Canal Dredging The FCLCTC canal was excavated in the 1890s. Consistent with its depiction on the 1901 plat, the design width of the FCLCTC canal was 70 feet, at least in Palm Beach County, according to the legal description of the land acquired for the FCLCTC canal, which is Petitioner Exhibit 3. However, at least in the vicinity of the Property, the FCLCTC canal did not generally achieve its design width. According to Petitioner's geologist and wetlands delineator, Michael Czerwinski, the FCLCTC canal was dredged to form the ICW in the 1940s. This may be true. Pre-dredging surveying and engineering materials, which are discussed immediately below, were prepared in the early 1930s, so the dredging did not occur earlier than the mid 1930s. Other evidence suggests that the initial dredging had taken place by May 1941.9/ Mr. Czerwinski testified that the initial dredging of the ICW out of the FCLCTC canal resulted in a waterway that was 125 feet wide. He also testified that a second dredging of the ICW, also in the 1940s, widened the waterway to 300 feet. This testimony is credited in part. As discussed below, the ICW was initially dredged a little wider than 125 feet, at least at the Property. Later dredging of the ICW produced a 300-foot width in the vicinity of the Property, but not until sometime between 1964 and 2008.10/ At least in the vicinity of the Property, at some point between 1947 and 1964, the ICW was dredged to 200 feet wide. Mr. Czerwinski's testimony can be credited that this intermediate widening took place in the 1940s, although it would have had to have taken place after 1947 due to an aerial photograph described below.11/ A January 1931 survey prepared for FIND, which is Respondent Exhibit 22, shows that the FCLCTC canal was about 40-50 feet wide along the northern three-quarters of the Property, but equaled or slightly exceeded its design width of 70 feet along the southern one-quarter of the Property. The survey indicates that this additional width along the southern one- quarter of the Property was achieved by additional dredging along the east bank of the canal.12/ The 1931 FIND survey locates FIND's 300-foot right-of- way easement,13/ including the above-described 202 feet of this easement encumbering about three acres of the eastern end of the Property. The remaining 28 feet of the 300-foot right-of-way easement14/ encumbers the western end of property along the east bank of the ICW. The east property line of the Property has remained about 656 feet, regardless of whether it was measured along the water's edge prior to the dredging of the ICW or along FIND's right-of-way easement. Obviously, the 202-foot easement reduced the depth of the unencumbered Property to about 350 feet along the north lot line and 248 feet along the south lot line. The record does not contain any as-built drawings of the initial dredging of the ICW. However, in preparation for the excavation, the U.S. Engineer Office prepared and revised typical cross-sections on January 19, 1932, and May 25, 1933, respectively (1932/1933 Proposed ICW Cross-Sections), which is Petitioner Exhibit 9. The 1932/1933 Proposed ICW Cross-Sections details conditions at widely spaced profiles. Profile 1500 is about 1000 feet south of the Property and, as discussed below, characteristic of the conditions at the Property.15/ This profile shows a design width at maximum water depth of about 100 feet and a design width at water's surface of about 160 feet.16/ After accounting for the 70 feet of FCLCTC canal, about 90 feet would have had to have been dredged to achieve a total width of 160 feet. Subsequent aerial photography, as discussed immediately below, shows that all later dredging was located on the west bank of the ICW, so the initial dredging took up the 28 feet of the east bank subject to the FIND right-of-way easement,17/ leaving the remaining 62 feet of width to be dredged out of the Property.18/ This initial dredging of the ICW had taken place by the time of the above-mentioned 1947 aerial photograph, which is Respondent Exhibit 13.l, that shows the width of the ICW at the Property as approximately 150-160 feet. Between 1947 and 1964, FIND widened the ICW at the Property to 200 feet, as reflected by a 1964 aerial photograph, which is Respondent Exhibit 13.p.19/ A comparison of the 1947 and 1964 aerial photographs confirms that the widening to 200 feet was achieved by dredging the ICW's west bank, not east bank. Harmonizing the aerial photographs with Mr. Czerwinski's testimony places the widening to 200 feet in the late 1940s. After the removal of a total of 100 feet of the Property in two widening projects over ten to fifteen years ending in the late 1940s, a final widening project, between 1964 and 2008, removed another 100 feet of the Property, as reflected in 2011 aerial photography, such as Respondent Exhibit 13.r. The cumulative effect of these three widening projects, which removed 200 feet of the Property, reduced the depth of the Property by almost half and brought the canal waters 200 feet closer to what remained of the Property. Depictions of the Property and Surrounding Area A. 1800s The Property has been depicted on maps, charts, surveys, aerial photographs, and hand-drawn diagrams over a period of nearly 170 years. Certain of these depictions facilitate determinations, over time, of the extent to which the Property may have been wetlands or uplands. However, the weight to be assigned to particular depictions depends on a number of factors, including the scale of the depiction and its purpose. The earliest depiction of the Property is a quad sheet prepared in 1845 and revised in 1872 by the U.S. Surveyor General's Office (1845/1872 map), which is Respondent Exhibit 5. Covering all of Township 45 South, Range 43 East, west of the Atlantic Ocean, this map captures 24 sections--or 24 square miles. The scale of the map is quite small; the Property is no larger on this map than the size of one of the letters in "Atlantic Ocean." However, the main purpose of this map is to facilitate surveying, and the map documents the meandering of major waterbodies, the location of uplands in the form of "spruce pine scrub," and the location of wetlands in the forms of "inundated marsh" and "marsh." The 1845/1872 map depicts the southern terminus of Lake Worth about one and one-half miles north of the Property. The three vegetative communities identified in the preceding paragraph are generally depicted in long, north-south bands: the western band is "inundated marsh" (encompassing a small peninsula of "pineland and palmetto" in the southwest corner of the map), the central band is "spruce pine scrub," and the eastern band is "marsh." As reflected better in a blowup of this map, which is Respondent Exhibit 13.d, the boundary between the "spruce pine scrub" and "marsh" bisects the Property, so that the eastern part of the Property is depicted as wetlands, and the western part of the Property is depicted as uplands. The next depiction of the Property is the same 1845 quad sheet overlaid by an 1884 U.S. Coast and Geodetic Survey (USCGS) map (1845/1884 map), which is Respondent Exhibit 29. The scale of this map is the same as the previous one, so it is very small. The main purpose of the 1845/1884 map is the same as the 1845/1872 map; the most visible addition to the older map is the location of the corners and midpoints of surveying sections. But the 1845/1884 map also revises the older map by relocating the boundary between the marsh and the spruce pine scrub in the vicinity of the Property. The newer map moves this boundary several hundred feet to the west, so that the Property now lies entirely within the marsh. It is possible that, in the ensuing 12 years, wetlands spread several hundred feet to the west of where the older map had found them, but the record is silent as to major land alterations or storms during this time period. It is also possible that the older map located the wetlands/uplands boundary too far to the east, and the newer map corrected this error. But it is unlikely that the older map depicted the wetlands/uplands boundary accurately, and the newer map changed the boundary so as to depict it inaccurately. Whether documenting changes on the ground or correcting the work of the older map, the newer map is entitled to greater weight in its depiction of wetlands occupying the entire Property prior to the dredging of the FCLCTC canal. B. 1920s and 1930s The next depiction of the Property derives from aerial photography taken on February 27, 1927, which would be in the dry season. Working from these aerial photographs, in 1930, the USCGS published a vegetative map, which is Petitioner Exhibit 7. Among the purposes of this 1930 map are wetlands/uplands delineations, but this map unfortunately lacks a legend to explain the meaning of the many vegetative communities that it depicts. Additionally, the small scale of the map makes it difficult to read the symbols assigned to the Property.20/ This 1930 map is thus of no use in determining whether wetlands occupied the Property at that time. The next depiction of the Property is the 1932/1933 Proposed ICW Cross-Sections, which has been discussed above in connection with canal dredging. As already noted, the 1932/1933 Proposed ICW Cross-Sections displays numbered profiles of the proposed excavated channel following widening. Less than 200 feet south of the southeast corner of the Property is Profile 1510. As already noted, roughly 1000 feet south of the southeast corner of the Property is Profile 1500. About one-half mile north of the northeast corner of the Property is Profile 1550. Profiles 1500 and 1550 receive more detailed treatments elsewhere in the exhibit. Profile 1500 depicts the material to be excavated on the west side of the ICW as "mud." Profile 1550 depicts the material to be excavated on the west side of the ICW as "mud and sand." Profile 1500 is a better illustration of pre-excavation conditions at the Property's eastern edge partly because Profile 1500 is closer to the Property than Profile 1550. Additionally, another series of 1932 cross-sections, which is the second page of Petitioner Exhibit 9, reveal that the shape of the area to be excavated at Profile 1510, which is immediately south of the southeast corner of the Property, is almost identical to the shape of the area to be excavated at Profile 1500 and substantially different from the shape of the area to be excavated at Profile 1550. This too suggests that Profile 1500 is the better comparable. The notation of mud at Profile 1500 therefore suggests the existence of wet conditions on the eastern end of the Property. A USCGS map published in 1937 depicts the Property based on surveying done in 1930 and 1935. This small-scale map, which is Petitioner Exhibit 11, is a bathymetric chart of interior navigable waters. Referring to the canal by its new designation as the ICW, the 1937 map, which depicts marsh, but not other types of wetlands, does not indicate the presence of marsh on the Property. Because this map is primarily a navigational chart, rather than a map of vegetative communities, it is impossible to assign it much weight in determining whether the Property was occupied by wetlands or uplands at the time. 1940s to Present Maps A USCGS chart published in 1943 of the same area depicted by the 1937 USCGS chart is almost identical to the earlier chart. For the same reasons that applied to the 1937 USCGS chart, the 1943 USCGS chart, which is Petitioner Exhibit 12, is also of little use in determining whether the Property was occupied by wetlands or uplands at the time. The Property is depicted in somewhat larger scale on a USCGS quad map published in 1945, which is Petitioner Exhibit 13. The map, which depicts land cover primarily in terms of whether it is vegetated, indicates that all of the parcels on the west side of the ICW in Section 34 had been cleared of vegetation except for the Property. Although this 1945 quad generally indicates only whether areas are vegetated, it uses two symbols to indicate, in certain areas, the type of vegetation: one symbol indicates marsh and one symbol is unclear, possibly indicating mangrove. The Property bears neither symbol, but this fact is of little importance because the primary purpose of the 1945 quad map was to indicate the vegetated versus cleared areas, not to delineate wetlands.21/ However, the 1945 quad map reliably reports that the Property is entirely below the five-foot contour, which runs in a north-south direction between U.S. Route 1 and the ICW. South of Lake Worth, the ICW occupies a topographic depression between elevations as great as 35 feet west of U.S. Route 1 and spot elevations as great as 10 feet between the ICW and the Atlantic Ocean. Unaffected by dredging, the location of this five-foot contour illustrates the same slough-like feature south of Lake Worth that was depicted on the 1845/1884 map. The Property's location within this long basin is consistent with wet conditions that would support wetlands. 2. Field Notes of County Mosquito Control Department Field notes of the Palm Beach County Mosquito Control Department from the early 1940s to the late 1960s (Field Notes) provide additional information about the Property.22/ Field Notes, which is Respondent Exhibit 8, contains large-scale, hand- drawn diagrams with carefully prepared measurements. The purpose of Field Notes was to document field work done by a crew, but detailed observations were routinely recorded. The oldest notes pertaining to the Property are dated May 6, 1941, which is the end of the dry season. At this time, the parcels abutting the Property to the north and south were plant nurseries and may have been since at least 1930.23/ Respondent Exhibit 8, page 54. (Fifteen years later, Field Notes identifies these nurseries as Held's Nursery to the north and Merkle's Nursery to the south. Id. at 10. For ease of reference, this recommended order will refer to these parcels by these names at this earlier point in time.) As of 1941, Field Notes documents a dike running along the entire canal frontage of Held's Nursery. The dike was four feet tall at the base and six feet tall at the top. Id. at 54- About 470 feet north of the boundary between Held's Nursery and the Property, Field Notes indicates the presence of an existing ditch that was five feet wide and three feet deep; because it had good circulation, no work was done at that time. Id. at 54. Field Notes indicates another ditch with the same dimensions along the boundary between Held's Nursery and the Property; because it had good circulation, no work was done at that time. Id. at 55. The only other notes for Held's Nursery state that workers filled holes throughout the parcel, suggesting that the removal of in-ground nursery stock had left unfilled holes. Id. at 54. For 1941, Field Notes does not indicate any ditches on the Property, but contains two notations: "elderberries & other wild growth" and "fairly high ground." Id. at 55. Elderberries occur on wetlands and uplands, so this observation is not useful. The "fairly high ground" comment is discussed immediately below. Continuing south, for 1941, Field Notes depicts another ditch at the boundary between the Property and Merkle's Nursery. The ditch runs from the canal to a point about 430 feet west of the canal. From west to east, the ditch is three feet wide and one foot deep, then four feet wide and eighteen inches deep, and, in the final 100 feet to the canal edge, four feet wide and three feet deep. The only other note for Merkle's Nursery is that holes were filled. Id. at 56. The diagrams on pages 54-56 are linked by north-south stations located at 100-foot intervals along the canal. These stations are drawn roughly to scale. The diagram on page 56 also contains three east-west stations, each referring to the distance west from the edge of the canal: 125 feet, 367 feet, and 522 feet. These stations are not drawn to scale. The notation of "fairly high ground" spans the stations that are 367 and 522 feet west of the canal; the comment occurs at a point on the diagram that would be about 200 feet south of the north property line. It is not entirely clear whether this comment is placed on the diagram at the location where the high ground was encountered, or whether it was centered in the space on the page on which the comment was written. The lack of east- west scaling is unsettling. However, the notations and observations in Field Notes appear to have been carefully prepared, so it is more likely than not that the "fairly high ground" comment is written where the crew encountered fairly high ground relative to the east-west stations on the adjoining page of Field Notes. Because the east-west stations obviously do not run from the western limit of the FIND right-of-way easement, fixing the location of the "fairly high ground" observation requires knowledge of the width of the canal in May 1941.24/ The diagrams identify the canal as the "East Coast Canal," which is another name for the FCLCTC canal. But this reference does not help determine whether the FCLCTC canal had already been widened into the ICW. This is an obsolete reference; as noted in the 1937 USCGS map four years earlier, the proper name of the canal was the ICW, regardless of whether the initial widening had not yet taken place. There is no doubt that, at all times, proceeding from east to west, an elevation gain occurred at the property line separating the Property from the parcel to the west. The location of the "fairly high ground" comment would be at this property line, if the first 60 feet of the encumbered Property had already been dredged by May 1941.25/ It makes sense for the "fairly high ground" comment to be located where other evidence establishes higher elevations, so it is found that the dredging of the FCLCTC canal into the ICW had taken place by May 1941. In May to July 1956, Field Notes indicates that the County work crew cleared ditches on the Property, Held's Nursery to the north, and Merkle's Nursery to the south. Id. at 10. These notes include a detailed diagram of the network of ditches on the Property and the two nursery parcels. From north to south, there is a 628-foot long east-west ditch on Held's Nursery that appears to be the northerly ditch shown in the above-described May 1941 diagram, but the long east- west ditch at the boundary between Held's Nursery and the Property is not shown in the diagram. The 628-foot long ditch runs from the ICW almost to U.S. Route 1, so it spans the platted lot plus nearly all of the parcel adjoining the platted lot to the west. Near the boundary of Held's Nursery and the Property is a 139-foot east-west ditch that runs toward the ICW from the boundary of the Held's Nursery parcel with the adjoining parcel to the west, but stops at about the mid-point of the Held's Nursery parcel. Three 455-foot long north-south ditches connect the two east-west ditches. The western ditch runs along the property line separating Held's Nursery from the parcel to the west. The central ditch runs about 40 feet to the east of this ditch, and the eastern ditch runs about 105 feet to the east of the center ditch.26/ The eastern ditch is about 300 feet west of the ICW. The sole connection to the ICW is thus provided by the long east-west ditch that appears to have been in place for at least 15 years. Although the diagram does not so indicate, this ditch likely drains west to east into the ICW. This parcel had been used as a plant nursery since at least 1941, and it had been used as a plant nursery or citrus grove since 1930.27/ The land behind the dike was evidently dry enough to grow in-ground nursery stock, which presumably could not survive inundation by tidal waters. Fifteen years later, although the dike is omitted from the diagram and thus may no longer be present, the parcel was still used as a plant nursery, and this use presumably still required drainage into the ICW, rather than flooding from the ICW. The diagram likewise fails to indicate the direction of flow of the three north-south ditches. The only other features on the diagram for Held's Nursery are at the property line dividing Held's Nursery from the Property. From U.S. Route 1 almost to the ICW is a shell road, which likely interrupts drainage, but, at a point just east of the property line dividing Held's Nursery from the parcel to the west, a symbol indicates a culvert, which would have permitted stormwater to pass under the shell road. As confirmed by subsequent aerial photography discussed below,28/ the culvert passed stormwater from Held's Nursery to the Property, which has been vacant since its platting in 1901. The northern half of the Property has an elaborate network of ditches. The only significant east-west ditch runs about 500 feet through the center of the Property, linking the ICW to a point about in the middle of the parcel to the west of the Property; about 186 feet of this ditch is in the parcel to the west. Four north-south ditches drain into this long central ditch. The longest is about 207 feet and runs from the above- mentioned culvert. Eighty-one feet east of this ditch is a 100-foot ditch that terminates south of the shell road dividing Held's Nursery from the Property. Twenty-two feet east of this ditch is a 170-foot ditch that terminates at the shell road, and 22 feet east of this ditch is another 170-foot ditch that also terminates at the shell road. The only ditch in the southern half of the Property is slightly offset from the 207-foot north- south ditch and runs 100 feet along the property line dividing the Property from the parcel to the west. At the property line dividing the Property from Merkle's Nursery is another shell road. Along this boundary, about in the middle, is a pump station on the Property, but it is unconnected to the ditch network, and it is impossible to determine the purpose of the pump. The diagram does not show a culvert in this shell road. The diagram indicates one major east-west ditch on Merkle's Nursery totaling about 450 feet, connecting to the ICW, and terminating near U.S. Route 1. This ditch is in the middle of Merkle's Nursery. Along the north side of Merkle's Nursery is a 190-foot ditch running from the ICW to a point just east of the west property line of the platted lot. Two ditches averaging 110 feet run into the longer east-west ditch; the east ditch terminates at the 190-foot ditch. Field Notes does not reveal who constructed the ditches on the Property between 1941 and 1956. But, as Petitioner contends, it is a fair inference that they were dug by the County work crew. The Property was undeveloped wetlands, so there is little reason for the owner to try to drain the Property. Nor is there any reason for the owner of Held's Nursery to install on the Property a network of ditches downstream of the culvert. The only party with any interest in the drainage in the area was the County in its effort to control mosquitoes by overdraining wet land. But two other contentions of Respondent connected to Field Notes fail. First, as discussed above, Field Notes fails to prove that any portion of the Property was uplands. Second, Field Notes fails to prove that the ditches on the Property converted uplands to wetlands, or that the County constructed and maintained the ditches on the Property to control mosquitoes through flooding or impoundment, rather than drainage of standing water into the ICW. 3. Aerial Photography: 1940s-1960s From the 1940s, aerial photography of the Property became more routine, but problems in resolution sometimes prevent using the aerial photographs to determine the vegetative communities on the Property. Aerial photographs taken in 1940 suggest the presence of herbaceous vegetation throughout the Property with some woody vegetation at the western end of the Property. But the poor resolution of this photography prevents any finding of whether the depicted vegetation was indicative of wetlands or uplands on the Property. In March 1947, an aerial photograph, which is Petitioner Exhibit 18 and Respondent Exhibit 14, provides much better resolution. To the west of the Property is scrubby habitat, which features sandy soil. This area drains across the Property and into the ICW. An herbaceous salt marsh is more clearly visible on the Property. This photograph reveals wetlands on the Property where the Held's Nursery ditch flows through the culvert. The 1947 aerial photograph thus confirms that the Property was receiving runoff from at least two directions: the north and the west. Mr. Czerwinski testified that he found evidence of mangroves starting to take hold of the eastern end of the Property. This testimony is credited, although there is some dispute on this point. There is no dispute that two aerial photographs taken in 1953 reveal that mangroves have established themselves on the eastern half of the Property. The mangroves are dense and appear to be flourishing. By 1964, an aerial photograph shows that the mangroves have extended over the eastern two-thirds of the Property. Current Conditions The Property currently hosts a robust mangrove forest with red mangroves transitioning to black mangroves, progressing from east to west. At low tide, seagrasses emerge, interspersed among the mangroves. Some elderberry occur at the western end of the Property, which is free of nuisance exotic vegetation. The predominant soil is Kesson mucky sand, tidal classification. At low tide, the groundwater, which, rising and falling with the tide, maintains an elevation at least equal to the tidal waters of the nearby ICW and is within 6-8 inches of grade at the western end of the Property and at or above grade over the remainder of the Property. At high tide, the Property is inundated. The ICW is a class III water. According to LIDAR data from 2007-08, the average elevation of the Property is one foot NAVD88. The LIDAR data confirms a vestige of the old central ditch running from near the west property line to the ICW, evidently capturing stormwater from a depression, possibly a small stormwater retention facility, alongside U.S. Route 1. At present, this depression hydrates the mangroves by conveying freshwater from west to east and tidal water from east to west, depending, of course, on the tides and stormwater flows. The LIDAR data also confirms an abrupt loss of elevation just inside the north, west, and south property lines of the Property. Over relatively short distances, elevations drop as much as seven feet as one enters the Property from these adjoining parcels. The historic elevation of the Property is implicitly addressed in a letter sent to Petitioner dated November 20, 2013, from Rod A. Maddox, Chief, Bureau of Survey and Mapping, Division of State Lands. The letter states: "Our records indicate that the [ICW] was dredged from uplands at the subject site. Therefore, we recommend the proprietary requirements that would normally apply to state owned lands not apply to this site." By email dated November 26, 2013, to Petitioner, Chief Maddox clarified that the meaning of "uplands" in his letter is not the meaning assigned to uplands by the regulatory requirements of SWERP. As Chief Maddox used the term, "uplands" means only that the dredged site was above mean high water. Respondent's Geographer IV of its Survey and Mapping Section, Robert Schaffer, testified that the 1932/1933 Proposed ICW Cross-Sections identifies seven elevations for the Property along the west bank.29/ These elevations range from 3.3 feet to 5.3 feet above mean low water. According to the 1945 USCGS quad map, the average tidal range in the area was approximately three feet, so Chief Maddox was right, by the smallest of margins: none of the seven elevations was below mean high water, although the minimum freeboard at the canal's edge at mean high tide was less than four inches. Mr. Schaffer also determined that the average of these seven elevations along the west bank is about the same as the average 2007-08 LIDAR elevation of 1.0 foot NAVD88. Mr. Schaffer roughly averaged the seven elevations at 4.0 feet above mean low water. The actual average calculated by adding the seven values and dividing by 7 is 4.3 feet above mean low water. Mean low water was -1.2 feet NGVD29, so an elevation of 4.0 feet above mean low water would be 2.8 feet NGVD29, and an elevation of 4.3 feet above mean low water would be 3.1 feet NGVD29. In Palm Beach County, NAVD88 is about 1.5 feet lower than NGVD29, so the average of the west bank elevations was about 1.3 feet, according to Mr. Shaffer's average, or 1.6 feet NAVD88, according to the actual average. Thus, in the early 1930s, the west bank was about six inches higher than the average elevation of the entire unencumbered Property in 2007-08. Analysis Mosquito Control Activities Exemption Property Was Not Uplands Prior to Ditching The greater weight of the evidence establishes that the Property was wetlands from the earliest records. Originally a freshwater marsh, probably consisting of sawgrass, the Property evolved into a saltwater marsh due to the dredging of the FCLCTC canal and perhaps the opening of the Boynton Inlet. The opening of the inlet definitely facilitated the transport of the necessary seed material to allow the saltwater marsh to evolve into a mangrove forest. The major sources of hydration before the dredging of the FCLCTC canal were the slough-like depression south of Lake Worth that the Property occupied and stormwater runoff from the west. In the 1940s, the major sources of hydration included stormwater runoff from the west, but also tidal waters diverted by the dike on Held's Nursery and groundwater effects from the removal of 100 feet of the Property and the relocation of now 200-foot wide ICW 100 feet closer to what remained of the Property. By the mid 1950s, but possibly also as of the late 1940s, the major drivers of hydrology included all of those set forth in the preceding sentence, except possibly the dike, and two more: stormwater runoff through the culvert separating Held's Nursery from the Property and the central ditch. Although, as noted above, the effect of the central ditch at present is to convey stormwater from the west and tidal waters from the east, its effect 60 years ago presumably served its intended purpose: overdrain the Property and effectively tend to make it drier. At the very least, though, these supplemental drivers of hydrology dispel any likelihood that, originally wetlands, the Property may have reverted to uplands at some point after the dredging of the FCLCTC canal and prior to the digging of the central ditch. 2. Even if Property Had Been Uplands Prior to Ditching, Petitioner Failed to Prove that Ditching Converted Property to Wetlands Claiming that the Property was uplands, Petitioner argued that the County's mosquito control activities--in the form of building ditches on the Property--converted the uplands to wetlands. The findings that the Property was originally and continuously wetlands dispose of this contention, but, even if Petitioner had proved that the Property was uplands immediately before the construction of the central ditch, he failed to prove that the central ditch, which was the sole connection to the ICW, resulted in the inundation of the Property by tidal waters and the conversion of the Property from uplands to wetlands. In contrast to the wetlands determinations, for which ample data is available and little analysis is necessary, the complexity of hydrological functions and the inattention to these functions in the record preclude any finding as to exactly how the Property may have become wetter over the years. The Property is very wet today, possibly wetter than it has been in the past, but Petitioner has failed to prove that the central ditch is the predominant driver of the hydrology of the Property today or was in the period immediately preceding the arrival of the mangroves on the Property in the late 1940s. Petitioner proved the County dug the ditches on the Property between 1941 and 1956. The mangroves colonized the Property in the late 1940s and early 1950s. Ignoring the possibility that the mangroves preceded the central ditch, Petitioner's proof pretty much stops right here. Petitioner never offered any analysis of how the central ditch could have raised water levels on the Property or extended the periods of relatively high waters on the Property. This would have been a complicated undertaking due to the presence of other drivers of hydrology. Among other things, Petitioner would have had to explain how the central ditch, immediately upon its construction, failed of its intended purpose, which was to overdrain the Property. Originally, the Property was wet due to its location in the long slough south of Lake Worth and stormwater flows from the west. After the dredging of the ICW to a 200-foot width, by the late 1940s, the Property was wet due to the groundwater effect of the removal of 100 feet of the Property and relocation of the canal waters 100 feet closer to the remainder of the unencumbered Property, stormwater flows from the west, and tidal waters diverted by the Held's Nursery dike. By the mid 1950s, the dike may have been removed, but stormwater flows from the west and the groundwater effect of the twice-widened canal continued to hydrate the Property. By this point, and possibly as far back as the late 1940s, two more factors needed to be accounted for: stormwater flows from the north through the culvert and--Petitioner's driver of choice--the central ditch. Today, the vestige of the central ditch appears to perform one of the functions suggested by Petitioner: conveying tidal water onto the Property at high tide. But it appears still capable of conveying stormwater from the north and west across the Property and into the ICW, canal water levels permitting. In doing so, the ditch now may flush the mangroves with cycles of freshwater and saltwater and transport nutrients to the mangroves. But, even today, other major drivers of hydrology are at work. These include stormwater contributions from the west, which now includes great expanses of impervious surface replacing the nurseries that were present decades earlier and an apparent retention facility along U.S. Route 1; the above-described groundwater effects, reinforced further by the widening of the ICW by another 100 feet, all out of the Property; and even the construction of surrounding seawalls, effectively replacing the dike along Held's Nursery 70 years ago. It would have been a daunting task to assign values to these various drivers of hydrology over various points in time; perhaps this is why Petitioner did not undertake it. But ultimately Petitioner fails for two reasons: 1) even if the central ditch were present when the mangroves appeared in the late 1940s and early 1950s, so were many other drivers of hydrology, and there is absolutely no reason to doubt that, initially at least, the central ditch tended to make the Property drier, not wetter; and 2) even today, the central ditch is not the sole or even predominant driver of the hydrology of the Property. 3. Even if Property Had Been Uplands Prior to Ditching and Ditching Had Converted Property to Wetlands, Petitioner Failed to Prove that Ditching Converted Entire Property to Wetlands Petitioner's proof falls short in another important respect. Even if the Property had been uplands up to the point when the County constructed the central ditch and even if the central ditch, alone, introduced tidal waters onto the Property, Petitioner never proved that the tidal waters overtopped the central ditch and other ditches connected to the central ditch by sufficient volumes and for sufficient periods, if not permanently, to convert the entire Property from uplands to wetlands. Absent such proof, the mosquito control activities exemption would extend no farther than the footprint of the ditches--an exemption that would be of no practical use. Petitioner failed to provide detailed evidence concerning the central ditch, such as historic slopes and profiles; tidal flows at the Property; or the relationship between the central ditch and tidal flows. Thus, Petitioner failed to explain the process by which the canal water supposedly escaped the central ditch to inundate the entire Property. The role that Petitioner assigns to the central ditch would necessitate major erosion of the Property. But the evidence of such erosion is completely missing from the record.30/ During a timeframe in which aerial photographs of the Property were becoming more common, no photograph documents the scarification of the Property or the movement of substantial volumes of soil off the Property and into the ICW, both of which would have accompanied the process that Petitioner contends took place. Given the force necessary to transport soil particles in the water column--even the much stronger tidal forces at the Boynton Inlet are unable to move the sediment out of the inlet-- if Petitioner's contention were correct, large deposits of eroded sediments would have piled up in the ICW alongside the Property, eventually shoaling the channel. Yet, no such event ever took place. Seawall Construction Exemption Artificially Created Waterway As stated above, the Property was wetlands prior to the dredging of the FCLCTC canal. Although the eastern end of the Property was above mean high water at the time of the 1932/1933 Proposed ICW Cross-Sections, its lowest frontage elevation was above mean high water by less than four inches, and neither the range of frontage elevations nor the average elevation of the Property precludes the existence of wetlands. As discussed in the Conclusions of Law, because the ICW was dredged from wetlands on the encumbered Property, the ICW at this location is not an "artificially created waterway." If an "artificially created waterway" were more broadly defined to include waterways artificially created out of uplands and artificially created--or altered--out of wetlands, Petitioner still would not qualify for the seawall construction exemption because the greater weight of the evidence establishes that Petitioner has proposed to construct the seawall outside of the ICW. Most likely, Petitioner's proposed seawall would join the ends of the existing seawalls to the north and south of the Property. If so, the seawall would be mostly within the unencumbered Property and, at most, at the southern terminus, on the line dividing the unencumbered Property from the encumbered Property. In the absence of proof that FIND overdredged the ICW past the western limit of its 300-foot right-of-way easement, the proposed seawall would not be "in" the "artificially created waterway" of the ICW.31/ Seeming to endorse this location of the proposed seawall, Petitioner's proposed recommended order states that the proposed seawall would be constructed "along" the ICW. For reasons that are unclear, Respondent has assumed that the construction of the proposed seawall would be "in" the ICW, as revealed by Respondent's October 2013 letter and Respondent's proposed recommended order, which refers to construction of the proposed seawall "in" the ICW. This assumption ignores the fact that a conveyance of the property described in the sales contract would be limited to the unencumbered Property (plus the access parcel). Any proposal to construct the seawall in the ICW would thus require the permission of FIND32/ and the third-party owner of the encumbered Property--a highly contingent prospect that defeats Respondent's assumption that the proposed construction of the seawall would be in the ICW. 2. Water Quality and Flood Control The record is undeveloped as to water quality and flooding impacts. Even if the proposed seawall were located in an artificially created waterway, Petitioner has not provided reasonable assurance that the construction of the seawall would not violate existing water quality standards--specifically, turbidity and dissolved oxygen. Controlling turbidity by trapping sediments and maintaining dissolved oxygen in the water column, the mangroves require tidal flushing, but the seawall would impede tidal waters from inundating the Property. It is Petitioner's responsibility to show how, under these circumstances, the proposed construction of the seawall would not violate existing water quality standards. Consistent with Respondent's refusal to verify a de minimis exemption, it is impossible to infer an insubstantial effect on the mangroves and, thus, water quality by the construction of the seawall and addition of 20-30 feet of supportive fill behind the seawall. Likewise, Petitioner has not provided reasonable assurance that the construction of the seawall would not affect flood control. Probably after the adjoining nurseries were redeveloped to support more intense uses, both parcels received several feet of fill. The record does not reveal the extent to which these adjoining parcels retain their stormwater onsite. The construction of the proposed seawall with 20-30 feet of supportive fill would likely impound any surface waters entering the Property from the north, west, and south, raising a sufficient risk of offsite flooding to require analysis. Again, it is Petitioner's responsibility to show how, under these circumstances, the proposed construction of the seawall would not affect flood control.
Recommendation It is RECOMMENDED that the South Florida Water Management District enter a final order declining Petitioner's request to verify the mosquito control activities exemption and the seawall construction exemption. DONE AND ENTERED this 16th day of May, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 16th day of May, 2014.
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.
