Findings Of Fact Billy F. Killingsworth is a licensed pest control operator in the State of Florida. He has been so licensed since 1967. He holds a degree in entomology and agriculture with minors in toxicology and soils. He is a highly qualified expert in the field of pest control. Mr. Killingsworth is the owner and operator of Killingsworth Pest Control Company, Inc., located in Pensacola, Florida. Killingsworth Pest Control engages in the business of the control and eradication of insects and rodents. Mr. Killingsworth and Killingsworth Pest Control employ Respondent, Richard L. Grimmel. Mr. Grimmel is a Pest Control Special Identification cardholder. The cardholder status enables Mr. Grimmel to administer chemicals and other pest control agents and otherwise conduct inspections of property to determine whether a structure is infested with pests. Mr. Grimmel performs his duties under the supervision of Mr. Killingsworth and Killingsworth Pest Control Co., Inc. About two years ago, Mr. Killingsworth purchased an Insecta-scope II Detector (Insecta-scope). An Insecta-scope is a device which enables an operator to listen to various types of insects while the insects are inside the wood of a structure. The main use of an Insecta-scope is to detect wood boring pests while they are still in a structure's wood, but before any evidence of the infestation appears on the outside of the wood. Different types of wood boring insects make different noises and, therefore, an Insecta-scope operator can determine what type of insect may be present in the wood. The Insecta-scope is on the forefront of technology in the detection of wood-destroying pests. If the operator is properly trained, the machine does what it is advertised to do, i.e., serve as a listening device for the detection of wood boring insects. Other than the Insecta-scope, current methods of detection involve a hammer, a flashlight, and a metal probe. Current methods of detection are limited to determining the presence of wood-boring pests after the insects begin to emerge from the wood. With certain types of insects, considerable damage can occur to the wood of a structure before any damage is noticeable on the exterior of the wood. Powder post beetles/old house wood borers have a life cycle of 10 to 15 years. In general, these insects lay their eggs in the pores of wood. The insects eventually hatch and begin eating the wood in which they live from the inside out. The insects do not reach adulthood for about 10 to 15 years. Once they reach adulthood, they chew their way to the outside of the wood, forming an exit hole. The hole generally has a sawdust-like material associated with it known as frass. Old exit holes are dark, and fresh exit holes are of a lighter color. Once the adult insects have exited the wood, it is highly probable that they will lay their eggs in the pores of the wood they have exited and reinfest the same wood. If left untreated, the insects would continuously be exiting the wood. If treated, the exiting would stop, however, the eggs inside the wood would not be affected. The infestation would appear when new exit holes begin to form 10 to 15 years later. In the meantime, the immature insects would be dieting on the wood in which they live. On February 13, 1989, Mr. Grimmel was called by Scott Mudge to inspect a house located at 3812 West Cervantes Street, Pensacola, Florida. The inspection was required in order to sell the house. The house to be inspected was at least 20 to 25 years old and was located close to the water. The house appeared to have a moisture problem. The conditions in the house were very good for powder post beetles/old house wood borers to infest the house, eating the wooden parts from the inside out. In the attic area of the house there was evidence of an old infestation of powder post beetles/old house wood borers. Reinfestation from the old infestation was highly probable. Mr. Grimmel arrived at the house and conducted an inspection of the premises. In the attic, he saw a few fresh exit holes with frass coming out of the holes. When he placed the Insecta-scope on the area of the frass and fresh exit holes, he knocked what little frass there was off of the beam or impacted the frass into the exit holes. Through the Insecta- scope, Mr. Grimmel could hear powder post beetles/old house wood borers inside the beam. Other than the few fresh exit holes and frass Mr. Grimmel saw, there was very little exterior evidence that the infestation was currently exiting the wood. The infestation was reported to Mr. Mudge and an inspection report was given to Mr. Mudge. Mr. Grimmel also posted a notice of inspection adjacent to the crawl space of the house. Mr. Mudge requested that Mr. Grimmel give him an estimate for treatment of the infestation. The estimate was around $975. Due to the treatment's cost, Mr. Mudge desired to get a second estimate for treatment of the infestation found by Mr. Grimmel. He obtained a second inspection of his house from Fireman's Termite & Pest Control (Fireman's). Fireman's inspector inspected the property either the same day as Mr. Grimmel or the next day. The inspector used the current method of inspecting by looking at the wood with a flashlight and tapping on the wood. Insufficient time had elapsed for new exit holes or frass to have formed; therefore, Fireman's found no evidence of an active infestation of wood borers or power post beetles in the structure. Mr. Mudge then filed a complaint with HRS against Respondents. Upon Mr. Mudge's complaint, HRS initiated an investigation and requested Mr. Killingsworth to file HRS Form 1145, Wood Destroying Organisms inspection report. The report includes information on evidence of whether an infestation was discovered and whether notice of the inspection was posted. Mr. Killingsworth reported that evidence of a live infestation had been observed, but inadvertently failed to properly fill in the information regarding the posting of the notice. 1/ The form submitted by Mr. Killingsworth indicated that a notice of inspection had been posted "in person", but failed to indicate where the notice had been posted. None of the information on either HRS Form 1145 or the inspection report to Mr. Mudge was false or incorrect. The failure of Mr. Killingsworth to fill in the information about the notice of inspection was at best a miniscule violation of Chapter 482, Florida Statutes, since the notice was actually posted and the notice information was not relevant to the complaint of Mr. Mudge. Respondents cooperated in every respect with the Department's investigator. The Department's investigator, using the same techniques as Fireman's, did not find any evidence of an active live infestation i.e. he did not see any fresh exit holes or frass. However, as with Fireman's inspection, the Department's inspection occurred too close to the inspection by Mr. Grimmel for new exit holes or frass to form. 1/ Later, on June 13, 1990, Mr. Killingsworth along with Mr. Grimmel, re- inspected the property. Mr. Killingsworth viewed the area of the attic where Mr. Grimmel had reported the infestation. He saw a few fresh exit holes and some frass. Mr. Killingsworth had Mr. Grimmel place the Insecta-scope on the wood. They heard and simultaneously recorded wood borers/powder post beetles chewing inside the wood. The tape recording was presented at the hearing. It is very unlikely that the infestation or the evidence of the infestation had substantially changed in the time period from the initial February inspection to the present inspection. Based on the above facts, neither Respondent made a false report to Mr. Mudge or the Department. While Respondents' methodology may be in dispute, there was clear evidence on which a reasonable person could rely that Mr. Mudge's house was infested with wood borers/powder post beetles. Neither Respondents relied solely on the sounds from the Insecta-scope to make their determination. The evidence demonstrated that the Respondents' methodology comported with the standard practice in the Pensacola area. Therefore, neither Respondents is guilty of filing a false report.
Recommendation That the Department enter a Final Order dismissing the administrative complaint against Respondent, Grimmel, and finding Respondent, Killingsworth, guilty of violating Section 482.161(1)(a), Florida Statutes, and issuing a letter of guidance to Respondent Killingsworth. DONE and ENTERED this 17th day of January, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1991.
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.
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.
The Issue Whether Respondents Lee Ann Kennedy ("Kennedy") and Kenco Industries, L.L.C. ("Kenco"), engaged in various activities constituting pest control under chapter 482 without having obtained the required licenses from Petitioner Department of Agriculture and Consumer Services, in violation of sections 482.161(1)(j), 482.165(1), and 465.191(1), Florida Statutes.
Findings Of Fact The Parties Petitioner is the state agency charged with administering the Structural Pest Control Act, chapter 482. Respondent Kennedy is a resident of Wellington, Florida. Respondent Kenco Industries, L.L.C., is a registered Florida Limited Liability Company. Kennedy is the manager and sole member of, and the registered agent for, Kenco. Pest Control Regulation under Chapter 482, Florida Statutes Chapter 482 authorizes Petitioner to regulate activities constituting "pest control" and to impose sanctions for violations of that chapter. "Pest control" is broadly defined in section 483.021(22) as: The use of any method or device or the application of any substance to prevent, destroy, repel, mitigate, curb, control, or eradicate any pest in, on, or under a structure, lawn, or ornamental; The identification of or inspection for infestations or infections in, on, or under a structure, lawn, or ornamental; The use of any pesticide, economic poison, or mechanical device for preventing, controlling, eradicating, identifying, inspecting for, mitigating, diminishing, or curtailing insects, vermin, rodents, pest birds, bats, or other pests in, on, or under a structure, lawn, or ornamental; All phases of fumigation, including: The treatment of products by vault fumigation; and The fumigation of boxcars, trucks, ships, airplanes, docks, warehouses, and common carriers; and The advertisement of, the solicitation of, or the acceptance of remuneration for any work described in this subsection, but does not include the solicitation of a bid from a licensee to be incorporated in an overall bid by an unlicensed primary contractor to supply services to another. Petitioner is authorized to issue licenses to qualified businesses to engage in the business of pest control in this state. § 482.165(1), Fla. Stat. It is unlawful for any person, partnership, firm, corporation, or other business entity to engage in the unlicensed practice of pest control as that term is defined in section 482.021(22). Id. Section 482.191(1) makes unlawful the advertisement of pest control services except as authorized under chapter 482. Absent limited circumstances not applicable here, persons or entities engaging in such advertisement must be licensed by Petitioner to practice pest control. Petitioner also is authorized to fine persons who impersonate an employee of Petitioner. § 482.161(1)(j), Fla. Stat. Respondents' Acts Alleged to Violate Chapter 482 Respondent Kennedy did not hold a pest control business license or other license to practice pest control at any time relevant to this proceeding.2/ Respondent Kenco also did not hold a pest control business license or other license to practice pest control at any time relevant to this proceeding. On or about April 1, 2011, Kennedy entered Saigon Oriental Market in Lake Park, Florida. According to its owner, Hung The Thach, Kennedy walked around the store inspecting it, then told him that she was employed by Petitioner, that some of his produce was infested by insects, and that he would have to have pest control services performed or she would return in a week to conduct another compliance inspection. Kennedy gave Mr. Thach the telephone number for Outside In, a pest control company, and the business card of its owner, Dennis O'Rourke. Concerned that Kennedy would shut down his store or fine him, Mr. Thach called Outside In; the following day, an employee of that company performed pest control services at the store. Outside In performed additional pest control services at the store on or around May 26, 2011. Mr. Thach paid Outside In for these services. In mid-May 2011, Kennedy inspected Fajita's Super Market in Lake Worth, Florida, and told its owner, Ali Jaber, that she was employed by Petitioner as an inspector, and that he had a fly problem in his store. She recommended that he contact Outside In to correct the problem. Mr. Jaber told her he used another pest control company, but thereafter, a representative from Outside In visited the store, left a business card with Mr. Jaber, and offered to provide pest control services for the store for $150.00 per month with no contract. Kennedy returned to the store approximately a week later and wanted to know why nothing had been done to correct the fly problem; she also asked an employee of Fajita's who was going to pay for her time to inspect the store; when she was referred to Mr. Jaber, she left the store and did not return. On or around May 24, 2011, Kennedy entered the Fortune Cookie oriental supermarket in West Palm Beach, Florida, and told its president, David Chang, that she was with an inspector with Petitioner. She inspected the store, told him that there was a fly problem, and stated she would return in two weeks. Mr. Chang testified that Kennedy did not provide him the name of any pest control businesses, but that approximately a week before Kennedy inspected the store, a representative of Outside In had come to the store and tried to sell him pest control services, but that he had declined to purchase the services at that time. Dennis O'Rourke, President of Outside In, testified that Kennedy was not on his company's payroll, but that she had solicited pest control business for his company for approximately four months prior to September 2011. She successfully solicited four accounts and he paid her 30% of the profits made on those accounts. At the time she solicited the accounts, she did not possess a valid identification card to perform pest control services on behalf of Outside In.3/ Mr. O'Rourke subsequently obtained a valid identification card for Kennedy so that she could perform pest control, including business solicitation, for his company. Petitioner initiated an investigation of Kennedy in June 2011, after being notified by several small food markets in Palm Beach County that she was holding herself out as a food inspector with Petitioner, inspecting the stores, notifying the store operators that there was a pest problem, and recommending that Outside In be contacted to correct the problem. In the course of the investigation, on September 7, 2011, John Berquist, an inspector with Petitioner's Bureau of Entomology and Pest Control, took photographs of Kennedy's motor vehicle4/ bearing magnetic signs on the front passenger and driver side doors labeled "Kenco Industries," which depicted a photograph of Kennedy and advertised the provision of pest control services. Berquist checked Petitioner's pest control licensing records and determined that Petitioner had not issued a pest control business license or other pest control license to Kennedy or to Kenco. At the hearing, Kennedy acknowledged that she conducted food store inspections, pointed out pest problems to store operators, and recommended that they contact Outside In for pest control service. However, she denied holding herself out as an employee of Petitioner. She testified that she is certified in food safety by the Department of Health and that if she observed a pest problem while shopping, she would show her food safety certification card to the store operator and point out the problem. She claimed she did this because she is Vietnamese, so often shops at Asian food markets and wants the stores where she purchases her family's food to be pest-free. She also claimed that she only wanted the stores "to get what they needed" in the way of pest control service and that it did not matter whether she was compensated for soliciting business for Outside In. However, she acknowledged that she had been compensated by Outside In for the pest control business she had successfully solicited on their behalf. Kennedy testified that she did not intend to do anything that was against the law, and was not aware that she was engaging in conduct that violated the law. The evidence established that neither Kennedy nor Kenco previously violated chapter 482 or Petitioner's rules. Ultimate Findings of Fact Regarding Alleged Violations Based on the foregoing, Petitioner established, by clear and convincing evidence, that Kennedy impersonated an employee of Petitioner, as alleged in Count 1 of the Amended Administrative Complaint, in violation of section 482.161(1)(j). Kennedy's testimony that she did not hold herself out as an employee of Petitioner was contradicted by all other witnesses and was not credible. Petitioner also established, by clear and convincing evidence, that Kennedy and Kenco advertised pest control services without obtaining a pest control business license in violation of sections 482.165(1) and 482.191(1). There was no dispute that Kennedy advertised the provision of pest control services by herself and by Kenco by placing signs on her vehicle depicting her image and Kenco's business name. Further, Kennedy is Kenco's manager, sole member, and agent, so her actions in advertising the provision of pest control services by Kenco are imputed to Kenco.5/ Petitioner also proved, by clear and convincing evidence, that Kennedy solicited pest control business for Outside In for compensation, in violation of sections 482.165(1) and 482.191(1). Kennedy's testimony that she was motivated by altruism and personal interest in food safety at markets where she shopped, rather than by being compensated for soliciting business for Outside In, was not credible. The undisputed evidence establishes that she was compensated by Outside In for soliciting pest control business on its behalf. However, Petitioner did not establish, by clear and convincing evidence, that Kenco solicited business on behalf of Outside In. The evidence does not show that Kennedy represented to the food store operators that she was acting on behalf of Kenco when she solicited business for Outside In. To the contrary, the evidence established that Kennedy represented that she was an inspector employed by Petitioner. Accordingly, it is determined that Kenco did not solicit pest control business for Outside In, in violation of sections 482.165(1) and 482.191(1). As further addressed below, Petitioner's Enforcement and Penalties rule, Florida Administrative Code Rule 5E-14.149, makes the deliberate commission of an act that constitutes a violation of chapter 482 an aggravating factor in determining the applicable fine. Here, the evidence shows that Kennedy intentionally misrepresented that she was employed by Petitioner specifically to solicit and induce food store operators to purchase pest control services for which she would be compensated. Accordingly, it is determined that Kennedy acted deliberately in impersonating an employee of Petitioner and in soliciting business on behalf of Outside In for compensation. Furthermore, the evidence shows that Kennedy——and by operation of the law of agency, Kenco——deliberately engaged in advertising the provision of pest control services without having obtained the required license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner Department of Agriculture and Consumer Services impose a fine of $2,600.00 on Respondent Lee Ann Kennedy, and impose a fine of $1,000.00 on Respondent Kenco Industries, L.L.C. DONE AND ENTERED this 27th day of June, 2012, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 2012.
The Issue The issues to be resolved are as follows: With regard to Count Four of the Amended Petition, whether the Petitioners have sufficiently alleged a rule challenge and more particularly whether sufficient facts have been alleged to identify the challenged rule, whether existing, proposed, or unpromulgated; and whether, through an unpromulgated rule, the Department (Respondent) has prohibited the installation of "pest control insulation" or borate containing insulation by anyone other than a card-carrying employee of a certified pest control operator or licensee. If so, it must be determined whether such action is outside the Respondent's rulemaking authority, whether it is contrary to statute, whether it disregards the exceptions proved in Section 482.211(9), Florida Statutes, and whether it violates Section 482.051, Florida Statutes. With regard to Count Five of the Amended Petition, whether the Petitioners have sufficiently alleged a rule challenge to a proposed or existing rule or have offered evidence legally sufficient to establish a rule, proposed, or existing, which the Petitioners are challenging relating to the Respondent allegedly having selectively investigated pest control operators performing 100 or more pre-construction termite treatments annually, and whether such action is an invalid exercise of delegated legislative authority. With regard to Count Six of the Amended Petition, whether the Petitioners have sufficiently alleged a rule challenge to a proposed or existing rule or have offered evidence legally sufficient to establish a rule, proposed, existing, or unpromulgated, which the Petitioners are challenging relating to the Respondent's alleged enforced application of termiticide arbitrarily and capriciously by not requiring the best available technology and not regulating according to acceptable standards in the manner in which it conducts field investigations. With regard to Count Seven of the Amended Petition, whether the Petitioners have sufficiently alleged a rule challenge based on a proposed or existing rule or have offered legally sufficient evidence to establish a rule, proposed, existing, or unpromulgated, which the Petitioners are challenging relating to the Respondent's enforcement of Chapter 482, Florida Statutes, as it relates to preventive soil treatments for new construction and its alleged failure to protect the public. With regard to Counts Two, Three, and Eight of the Amended Petition, whether the Petitioners have alleged any facts or presented any evidence to establish a proposed, existing, or unpromulgated rule substantially affecting the interests of the Petitioners. Whether either the Petitioners or the Respondent are entitled to recovery of attorney's fees and costs.
Findings Of Fact The Petitioners conceded at hearing that the Order on the Motion to Dismiss, prior to the hearing, concerning the mootness caused by the withdrawal of the above-referenced agency memos not only disposed of Count One of the Amended Petition, but had rendered moot Counts Two and Three, as well. No evidence was presented as to the those counts. Neither was any evidence or argument presented regarding Count Eight of the Amended Petition. Thus, Counts Two, Three, and Eight, as well as Count One, should be dismissed. The Petitioners, with regard to Count Four of the Amended Petition, did not allege the text of any statement or description of one which could be construed as an unpromulgated rule by the agency, which prohibited the installation of insulation containing borate by anyone other than a "card- carrying" employee of a certified pest control operator or licensee. There was no evidence to establish the existence of such an unpromulgated statement or rule of general application. Cliff Killingsworth testified that he was an officer and party representative of the Petitioners' companies in this case. "In-cide" is a cellulose fiber with borate or borate- containing materials for fire retardancy and fungal control. The manufacturer had increased the borate content in the material so that it could make claims with the Environmental Protection Agency (EPA) for the product's pest control value. Mr. Killingsworth acknowledged that it was a licensed and registered "pest control product." While Mr. Killingsworth agreed that claims to the public about the pest control value of the product should be done by a pest control operator, he felt that should not prevent him from subcontracting the installation of the insulation material to a professional insulation installer so that the material would be properly installed in a home or other building. Mr. Killingsworth met with Steve Dwinell and Joe Parker, representatives of the Respondent agency, in Jacksonville, Florida, in the summer of 1997. He provided them with a 30-to-40-page report regarding installation of the insulation with its pest control properties. He received no communication from the Respondent following this meeting and sought no written opinion from the Respondent about the use of the material before he began using it. Mr. Killingsworth invited George Owens, a field inspector for the Respondent in the Northwest Florida area, to observe the product being installed in a structure. Mr. Killingsworth testified that Mr. Owens, thereafter, sent him a letter stating that the Respondent was not going to regulate that material. Mr. Killingsworth, however, did not produce that letter or a copy of it. Mr. Owens testified that he had visited a site in Destin, Florida, at Mr. Killingsworth's invitation, where "Green Stone" insulation was being applied by being blown into a small section of a wall. He did not know that a subcontractor was making the application when he visited the site. He thought that an employee of Mr. Killingsworth was performing the installation of the material. Mr. Owens did not recall telling Mr. Killingsworth or any of his representatives that application of the product by an agent other than Mr. Killingsworth's own company would be prohibited. It was not Mr. Owens' belief that he had authority to make those decisions. He did not believe that he had authority to approve or disapprove the application of a pesticide. Mr. Killingsworth invited Mike McDaniels, another field investigator with the Respondent in the Gainesville, Florida, area to observe the installation of the product in the spring of 1998. Mr. McDaniels commented to Mr. Killingsworth that he was glad that they were doing it, but he made no report. After the Petitioners' companies had been operating for two or three months in the Gainesville area, sharing space with Green Stone Industries, the company producing the insulation, Mr. McDaniels returned. He informed Mr. Killingsworth that the Respondent agency had changed its position on the application of the product. Because it was a "labeled material," that is, labeled and promoted as a certified pest control product, for purposes of EPA regulations, it had to be installed and handled only by a pest control operator meeting the definition of an employee under Chapter 482, Florida Statutes. Mr. McDaniel was shown the insulation in question by Mr. Killingsworth and how it was installed at a job site. He never told Mr. Killingsworth whether he could use the product or not, but during a "non-adversarial inspection," he told him that he had to have "ID cardholders" (i.e., employees of a licensed pest control operator) install the insulation, since it had advertised pesticide qualities. Mr. McDaniel was shown a warehouse with two different types of insulation. One had borate advertised as a fire retardant. The other had a higher content of borate which was advertised to have pesticide qualities. Mr. McDaniel determined that employees applying the second type of product were conducting pest control by installing that product and should, therefore, have pest control operator identification cards. He explained that to Mr. Killingsworth and thought he may have written that opinion on an inspection form which he supplied to Mr. Killingsworth. He also believes he notified his supervisor, Phil Helseth. His normal practice, when a new material is reported to him or observed, is to inform his superior of the facts concerning that product. He never told Mr. Killingsworth or his representatives that they could not install the product in question. He informed them that since it was listed as a pesticide that they would have to be have employees of a licensed pest control operator to legally install the product. Mr. McDaniel did not consult with anyone at the Respondent agency about this, but rather relied on his own judgment as to agency policy and the interpretation of the statutes and rules enforced by the Respondent. He testified that he had no central direction from his superiors at the Department on the issue and was unaware what other districts or regions under the Department's regulation were doing to address this question. He simply determined that if the Petitioners' personnel were applying a product that was a registered pesticide insulation that, under his understanding of the broad statutory definition of pesticides as anything that "curbed, mitigated, destroyed, or repelled insects," then the installers would have to be employees of a registered pesticide operator. Mr. Dwinell testified as the bureau chief for the Bureau of Entomology and Pest Control. He met with Mr. Killingsworth along with Mr. Parker, another employee of the bureau. Mr. Killingsworth made a presentation regarding the product in dispute, the borate-impregnated cellulose insulation. He determined that the product was a pesticide because it was advertised as a registered pesticide and performed pesticide functions, in addition to its insulation function. He did not recall that the precise issue of subcontracting with a non- licensed pest control operator or insulation installer was a topic of their conversation. Following that meeting, he may have discussed the question with Mr. Helseth, in a general way, but does not recall discussing it with any other person. He recalls some discussion concerning the Gainesville office of the Killingsworth companies and whether Mr. Killingsworth, or that office of his company, was licensed as a certified operator. He believes he recalls that a cease and desist letter informing the Killingsworth companies of the need to have the application of the product performed by someone licensed to do pest control may have been sent, although he is not certain. Mr. Dwinell established that the Respondent agency had never published anything regarding pest control insulation. He noted that a pesticide was a pesticide under the statutory definition, whether a corn bait, insulation, or mixed in a jug. The same laws applied to it and under Chapter 482, Florida Statutes, a pesticide must be applied by a licensed applicator. Mr. Killingsworth insisted that the insulation product, though a registered pesticide, was exempt from the provisions of Section 482.211(9), Florida Statutes, because it was a derivative wood product. He agreed that the product in question was a wood by-product and not wood. If a product did not meet the statutory definition of being exempt, then it would be appropriate for the Respondent to issue a cease and desist directive until the Petitioners came into compliance with Chapter 482, Florida Statutes. Mr. Dwinell opined that the subject insulation product was not exempt under the provisions of Section 482.211(9), Florida Statutes. Unlike pre-treated lumber, which is exempt, the installation product at issue is a registered pesticide. Pre-treated lumber, though treated with pesticide in the manufacturing process, is not intended to be used as pesticide, nor is it a registered pesticide. The Petitioners have not stated a basis for a rule challenge pursuant to Section 120.56, Florida Statutes, as to Counts Five and Six of the Amended Petition. Although references were made to alleged "actions" by the Respondent agency, the Petitioners have not alleged with particularity, nor adduced any competent, substantial evidence of any rule provisions alleged to be invalid, nor have they shown, in an evidential way, any to be invalid. The evidence does not show that there is a rule, either proposed, existing, or as an unpromulgated agency statement of general applicability, which is actually being challenged by the Petitioners. There has not been a definitive showing by preponderant evidence that such exists concerning the product and operation at issue. The Petitioners in Count Seven of the Amended Petition have not stated any basis for a rule challenge in accordance with Section 120.56, Florida Statutes. There are numerous references to provisions of Chapter 482, Florida Statutes, but it is not alleged with any particularity which rule provisions are purported to be invalid, nor has preponderant evidence been adduced to establish any rule provisions either proposed, existing, or as unpromulgated agency statements, which have imposed a substantial effect on the Petitioners. In this regard, the Petitioners' counsel argued at the hearing: Your Honor, what we have suggested is that the rule that's being challenged is the Department's statutory obligation under the statute as it relates to their promulgated Rule 5E-14.105, and as it relates to their treatment guarantees or warranties that are required by that regulation for a treatment that just doesn't work. The Department rule requires a certain warranty and requires a renewable warranty, placing that upon the pest control operator under the guise of protecting the consumer, but the fact of the matter is, it doesn't protect the consumer, and it just endangers the pest control operator. And so I guess the actual rule is the 5E-14.105. In addition to that we have the statutory obligations of the Department, which is to provide a protection to the public health and the economic benefit of the consumer and evaluate these chemicals that they are requiring warranties for. That's the basis of the rule challenge, and admittedly, this one is a little bit nebulous, but there is a regulatory, I guess, mandate of these preconstruction soil treatments as a method, as the preferred method, and to the extent that the operators, who are the regulated entity in this case are required to--is mandated to require a warranty for a method they know doesn't work . . . . Mr. Killingsworth acknowledged in his testimony that he was not contending that there should not be a warranty requirement for treatments of subterranean termites, as stated in the above-cited Rule 5E-14.105, Florida Administrative Code. He also acknowledged that he was not contending that the Respondent should require warranties from pest control companies for every kind of pest control performed. He thought there were a lot of factors not within a pest control operator's control affecting particular wood fungi, but what was in the pest operator's control was the opportunity to do a preventive treatment for more than just subterranean termites and they, in his view, should not be prevented from doing so. When asked what preventive treatment he had been prevented from doing by the Respondent, his reply was: The effect of memos and other actions prevented us from doing our choice of preventative treatment, the borate application, through the effects of raising questions in building officials' eyes, through the effects of increasing the economic impact to us to get it done. Builders will not pay enough to do both soil treatment and bait and borate. The memoranda referred to as preventing Mr. Killingsworth from doing his choice of preventive treatment were not actually identified in the record, however. Mr. Dwinell testified that the EPA guidelines require an efficacy standard for soil treatments which states: "Data derived from such testing should provide complete resistance to termite attack for a period of five years." The EPA also provides guidelines for preventive treatment/wood impregnation: "When acceptable data derived from testing for at least two years, or less than five years, shows complete resistance to termite attack, the product may be registered." The efficacy standard for borate, thus, was not five years, but two years. Mr. Dwinell had concerns about the type of data that had been relied upon by the EPA for registration and how that data related to the situation in Florida. That was the basis for the negotiated rulemaking process that the Respondent was engaged in at the time of the hearing in this case. The purpose of the negotiated rulemaking process was to comply with the statute that required a rule, but ultimately the purpose was to have a mechanism in the State of Florida where the product was registered for use under construction and a reliable set of data that could show whether the product would actually protect against termites when applied. The ultimate goal of the statute at issue is to protect the consumer, which is the Respondent's statutory duty. Borate pesticides are registered for use, with label directions for use during construction. They are one of three categories of materials for use in construction, including soil- applied pesticide materials, baiting products, and wood treatments, the last being the borates. There are no directives issued by the Respondent that specifically preclude the use of either borate as a stand-alone treatment or a baiting system as a stand-alone treatment. The Respondent does not require soil treatments only. Mr. Dwinell has never told any licensee that he could not use borate products if he were licensed.
Findings Of Fact 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 Petitioner has challenged a series of emergency rules promulgated by the Respondent to address the discovery of Mediterranean fruit flies (medflies) in parts of central Florida. Specifically, Petitioner contends that 5BER 97-3, 5BER 97-4, 5BER 97-6, and 5BER 97-7 are invalid to the extent that they make any geographical area subject to emergency rule for more than 90 days. The issue for determination, therefore, is whether the emergency rules are invalid as claimed.
Findings Of Fact Petitioner Rick Martinez resides and operates an organic farming business in Tampa, Hillsborough County, Florida. As stipulated, Mr. Martinez is substantially affected by the emergency rules at issue. The Mediterranean fruit fly (medfly) is considered one of the world's most serious pests affecting fruits and vegetables. It has a host range of over 260 different fruits and vegetables, 80 of which are grown in the state of Florida. It is an exotic pest of grave concern to commercial agricultural interests as well as to home gardeners. In the adult stage, the female medfly deposits or lays eggs in ripe fruit. The eggs develop into larva or maggots that feed on pulp of the interior portion of fruit, causing damage and secondary pathogens to enter the fruit and causing the fruit to rot and fall from the tree. The medfly reproduces very rapidly. It can complete a life-cycle in as little as 18 days under optimum conditions; in Florida and in recent months, it completed its life-cycle in approximately 23-25 days. As a winged insect the medfly can move several miles from its point of introduction in search of a host to deposit eggs or in search of a food source. Over a lifetime, the female can lay hundreds or thousands of eggs. The medfly enters an area via the traveling public or on commercial fruits and vegetables. Host plants or fruits can include plants or fruits that are not grown in Florida. The Florida Department of Agriculture and Consumer Services (FDACS) maintains a detection program, including 13,000 traps to detect the presence of the medfly. Under certain circumstances for every medfly detected, there can be hundreds of others in the area. Because of the biology of the medfly, mere control is difficult to achieve. Eradication, or complete elimination of the pest from a particular area, is the goal when the medfly is detected. To further this goal, Florida cooperates with the U.S. Department of Agriculture and other states. On or about May 28 or 29, 1997, a medfly was discovered in the Seminole Heights area of Hillsborough County. Very quickly other medflies were discovered in Hillsborough County, with the epicenter determined to be in the Brandon area. Soon other detections occurred in Manatee, Sarasota, Orange, and Polk Counties. This was determined to be the most severe infestation of medflies in Florida in several decades. On May 30, 1997, Commissioner of Agriculture, Bob Crawford, issued a proclamation announcing an immediate danger to the public health, safety, or welfare in the state of Florida on account of the infestation by the Mediterranean fruit fly. The proclamation cited authority and powers conferred by Article IV, Section 4, Florida Constitution and Sections 120.54(4) and 570.07(21), Florida Statutes. The proclamation called for immediate eradication procedures including aerial and ground pesticide applications in infested areas. FDACS also promulgated and filed an emergency rule, 5BER 97-2, Florida Administrative Code, "Mediterranean Fruit Fly Rule and Quarantine." The rule provided definitions, designated a quarantine area and treatment area, identified regulated articles and host plants, and provided for entry of authorized representatives to inspect, confiscate suspect fruit, or apply treatment on property on which the medfly is known or suspected to exist. The rule also declared the medfly a pest and nuisance pursuant to Section 581.031(6), Florida Statutes, and described the rule's purpose: . . . to provide detailed direction for conducting a regulatory and eradication program to prevent spread of the Mediterranean fruit fly, Ceratitis capitata, within the State. This rule is promulgated to provide a quarantine on areas regulated due to the presence of the Mediterranean fruit fly, and to specify conditions under which regulated articles may be certified as free of Mediterranean fruit fly when moved from the quarantined area. This rule also provides for the treatment and eradication of the Mediterranean fruit fly within the State of Florida. (5BER 97-2(2), Florida Administrative Code) The quarantine area within 5BER 97-2 is an area of Hillsborough County described with specificity with references to road boundaries. The treatment area was defined as "[a]ny location including urban and residential areas within a nine- square-mile area around an [sic] Mediterranean fruit fly detection. " Quarantine areas are generally 81 square miles; treatment areas are 9 square miles and may be wholly outside of a quarantine area. In the words of FDACS Director of the Division of Plant Industry, Richard Gaskalla, "[t]his was a very active infestation. For the first 90 days of the program, it was a very fluid and dynamic situation. Each day brought a new challenge, a new area to place traps in or regulate fruit in. So it was giving us quite a challenge." (transcript, 48-49) As new medflies were discovered subsequent to the end of May 1997, FDACS expanded the treatment and quarantine areas. Additional emergency rules on the infestation were filed: 5BER 97-3, on June 20, 1997; 5BER 97-4, on July 3, 1997; 5BER 97-6, on July 28, 1997; and 5BER 97-7, on August 11, 1997. With the exception of the specifically described quarantine area in section (4), each emergency rule is substantially the same. 5BER 97-3 repeats the quarantine area described in 5BER 97-2 and adds a specific portion of Polk County. 5BER 97-4 repeats the quarantine area described in 5BER 97-3 and adds a specific portion of Manatee County. 5BER 97-6 and 5BER 97-7 include a much larger quarantine area to include portions of Hillsborough, Polk, Manatee, Orange, and Sarasota Counties. There are portions of Hillsborough County which are found in the quarantine area described in all five emergency rules. Other geographical areas overlap in two or more of the five rules. The "treatment area" remains described in each of the five emergency rules as the nine-square-mile area around a medfly detection. As more medflies were found, this area obviously expanded. Eventually the treatment area became almost as large as the quarantine area in Hillsborough County. FDACS developed its series of emergency rules to address the medfly eradication program as it evolved. The agency consulted a science advisory panel that was put together to review the eradication program, and the agency received public comment and suggestions from public meetings. As new detections were made, the emergency rules were promulgated to cover the areas which the agency considered important for its regulation and control (quarantine). Richard Gaskalla did not consider each new emergency rule to be a renewal but rather a response to the unpredictable expansion of the medfly within existing areas. As soon as FDACS adopted the first emergency rule, it began work on a permanent rule and scheduled a rule development workshop in June to receive public comment. Citizens in Hillsborough County requested another workshop which was held approximately two weeks prior to the hearing in this case. A permanent rule has not been adopted, but the pre-adoption process continued as of the hearing in this case. As of the time of hearing, the last medfly detected in Hillsborough County was mid-July. Medflies were discovered after this in other counties covered by the emergency rules. Eradication is generally not considered complete until traps have been empty for two life cycles after the last treatment. Depending on the length of the life cycle, eradication could be complete from 60 to 100 days after the last fly find.
The Issue Whether Respondent committed the violations set forth in the Administrative Complaint, as amended and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is an agency of the State of Florida charged with regulating the operation of the pest control industry pursuant to Section 482.032, Florida Statutes. At all times material to this case, Clinton Killingsworth was the owner and Certified Operator in Charge (COIC) of Environmental Security of Okaloosa, Inc., a licensed pest control company in Cantonment, Florida. Counts 4 and 6 2. Counts 4 and 6 of the Administrative Complaint allege as follows: Count 4 During an inspection on July 11, 2003, the Department found that Environmental Security of Okaloosa operated an unlicensed business location at 9100 Hamman Avenue, Pensacola, at which sales solicitations were made and remuneration received. This is a violation of Chapters 482.071(1) and (2), Florida Statutes. Count 6 During an inspection on July 11, 2003 the Department found that Environmental Security of Okaloosa phone numbers terminated in an unlicensed location as 9100 Hamman Avenue. This is a violation of Chapter 5E-14.142(3)(b). Environmental Security of Okaloosa, Inc., d/b/a Environmental Security, is physically located at 4141 Pine Forest Road in Cantonment, Florida, and is listed at this address on its application for business license filed with the Department. Cantonment is located in Escambia County near Pensacola, Florida. Two other pest control companies, Killingsworth Environmental, Inc., and Atlas Termite and Pest Control of Cantonment, Inc., are located at the same address. On July 11, 2003, the Department conducted an inspection of a company called Home Services Marketing and Management, LLC, (hereinafter Home Services) which is located at 9100 Hamman Avenue in Pensacola. Clifford Killingsworth and Clinton Killingsworth2/ are the managers of Home Services. On March 26, 2002, entered into a Management and Marketing Agreement with Home Services, executed by Clinton Killingsworth on behalf of Environmental Security of Okaloosa and by Clifford Killingsworth on behalf of Home Services. Since that agreement was signed, the telephone number for Environmental Security of Okaloosa listed in the local telephone directory terminated at Home Services. Home Services also answers calls for Killingsworth Environmental, Inc. and Atlas Exterminating. Home Services employees do not make "cold calls" to new customers. They receive calls from existing customers. They contact customers with active accounts to set up renewals. They also contact homeowners whose homes were treated during construction and whose initial accounts were with the builder of the home. If a new customer calls, a Home Services employee answers the call, gets the contact information from the potential new client, and then calls the appropriate technician who would then call or visit the potential customer. The appropriate technician is generally determined by the geographic location of the caller. While a Home Services employee might send a preprinted contract to the technician to take to the job site or mail a contract to a customer, Home Services does not enter into any contract to perform pest control services. No pest control trucks or chemicals are stored at Home Services. Home Services also has a payment processing component. Home Services sends bills to pest control customers which instruct customers to make out the check to the appropriate pest control company, not to Home Services. Payments from customers for pest control services are deposited into the account of the appropriate pest control company. No evidence was presented that 9100 Hamman Avenue is an advertised permanent location of Environmental Security of Okaloosa from which business was solicited, accepted, or conducted. After the July 11, 2003, inspection of Home Services, Clinton Killingsworth took steps to get Home Services licensed as a pest control company. Mr. Killingsworth did this because it was his understanding that the Department took the position that Home Services was in the business of practicing pest control services. He employed his brother, Daniel Killingsworth, to be the required licensed person in charge, and contacted several insurance companies to obtain the required insurance. He had difficulty obtaining the required insurance since Home Services does not offer pest control services. Despite these difficulties, Home Services was issued a license in December 2003. Count 5 Count 5 of the Administrative Complaint, as amended, reads as follows: During an inspection on July 16, 2003, the Department found that Environmental Security of Okaloosa, Incorporated stored pesticides at an unlicensed business location at 1830 Galvez Road, Gulf Breeze, Florida, which is a violation of Chapter 5E-14.142(5)(f) and (g), Florida Administrative Code. That in addition, the Respondent, Environmental Security of Okaloosa, Inc., regularly parked trucks containing pesticide at that location during nighttime hours, published in the 2002-2003 Bell South Telephone Directory under Pest Control Services in the yellow pages of the telephone directory, a listing for "Environmental Security", a name under which it did business, and its employees received by facsimile daily work assignments that were sent to them at that location. That the Respondent, Environmental Security of Okaloosa, Inc operated an unlicensed business location at 1830 Galvez Road, Gulf Breeze, Florida, in violation of Section 482.071(2)(a), Florida Statutes.[3/] The property located at 1830 Galvez Drive is surrounded by a fence and contains a structure. The structure is not enclosed. Both Environmental Security of Okaloosa and Killingsworth Environmental park trucks there overnight. They entered the property when the pest control employees arrived. The Department conducted an inspection of 1830 Galvez Drive on July 16, 2003. The gate to the property was locked and the trucks were locked. On the day of the inspection, the Department's inspectors found unmixed chemicals in the trucks. Clinton Killingsworth acknowledges that at the time of the inspection, company trucks parked at the Galvez Drive location overnight and pesticides were in the locked trucks. Company records or contracts are not stored at the Galvez Drive location. No customer contact takes place at or from the Galvez Drive location. The Pest Control Business License Application Form contains a space in which the licensee must respond to the following: "Designate location where pest control records and contracts will be kept and the exact location address for storage of chemicals if other than licenses business location." The applications for business license for Environmental Security of Okaloosa do not reference 1830 Galvez Road as a location where storage of chemicals occurs. Environmental Security of Okaloosa does not have a license for operating a business at this location. The yellow pages for the Pensacola area contains a listing in red ink for "Environmental Security, Inc." It lists an address of 4141 Pine Forest Road with the telephone number 473-1060. There is another reference to "Environmental Security" in black ink in smaller type which lists the address 1830 Galvez Drive with the number 916-7731.4/ Clinton Killingsworth brother, Clifford Killingsworth, arranged to have a phone line for a fax machine to be located in a trailer at the Galvez Drive location. The purpose of installing a fax line at Galvez Drive was for employees to receive daily schedule assignments. The 916-7731 number listed in the yellow pages is the number of the fax machine. Clinton Killingsworth did not request a listing for the number of the fax machine. However, the telephone company listed it in the phone book. Clinton Killingsworth has requested the local telephone company to remove the erroneous listing a number of times.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered assessing a fine against Respondent Environmental Security of Okaloosa, Inc., in the amount of $2,600.00. DONE AND ENTERED this 25th day of May, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 2005.
The Issue Whether Petitioner should be issued a Pest Control Identification Card pursuant to Chapter 482, Florida Statutes. Petitioner James C. Melvin appeared at the hearing without counsel. After being advised of his rights under Chapter 120, Florida Statutes, he indicated that he understood such rights and did not desire to be represented by counsel.
Findings Of Fact Petitioner made application for a Pest Control Identification Card through Guardian Termite and Pest Control Company of Tampa, Florida, a certified operator, on February 13, 1978. By letter of March 2, 1978, to that organization, the Respondent's Director, Office of Entomology, advised that the application was denied because of Petitioner's previous noncompliance with Chapter 482, Florida Statutes, and Pest Control Regulations of the then Florida State Board of Health. (Exhibits 7, 8) Petitioner was employed by several pest control firms in Tampa during the period 1956 to 1962, and 1964 to 1965, during which periods he held a Pest Control Identification Card issued by Respondent. (Testimony of Bargren) On December 12, 1962, Petitioner was found guilty of violating State Board of Health structural pest control rules in the County Judges Court of Hernando County and sentenced to $15.00 costs and a suspended five-day confinement. On June 21, 1967, Petitioner pleaded guilty to a pest control violation in the Criminal Court of Record in and for Hillsborough County, Florida, and was sentenced to pay a fine of $200.00 or be confined in the county jail at hard labor for a period of sixty (60) days. Again, on September 11, 1967, in the Criminal Court of Record in and for Polk County, Florida, Petitioner pleaded guilty to engaging in structural pest control without a license and, on December 8, 1967, was sentenced to pay a fine of $200.00 or be confined in the county jail for a term of ninety days. (Exhibits 1, 4, 5)
Recommendation That the application of James C. Melvin for a Pest Control Identification Card be denied. DONE and ENTERED this 1st day of June, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: William Park, Esquire W. T. Edwards Facility 4000 West Buffalo Avenue Fourth Floor Tampa, Florida 33614 James C. Melvin 1310 West Rambla Street Tampa, Florida 33612 Steven W. Huss, Esquire Central Operations Services Department of HRS 1317 Winewood Boulevard Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES JAMES C. MELVIN, Petitioner, vs. CASE NO. 78-645 DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, STATE OF FLORIDA, Respondent. / ADMINISTRATIVE ORDER A hearing was held in the above styled administrative cause before a Hearing Officer Thomas C. Oldham, Florida Division of Administrative Hearings, on May 23, 1978, upon the Petition of James C. Melvin which contested the denial of his application for a pest control identification cared through Guardian Termite and Pest Control Company of Tampa, Florida. Present at the hearing were the Petitioner, James C. Melvin and William M. Park, Attorney for the Department of Health and Rehabilitative Services, District VI. The Department of Health and Rehabilitative Services has reviewed the recommended order by Thomas C. Oldham, Hearing Officer, and adopts said order as follows:
