The Issue Whether Respondents 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, Joyce Beard was the Certified Operator in Charge (COIC) of Atlas Termite and Pest Control Of Cantonment, Inc. Counts 1 and 2 Counts 1 and 2 of the Administrative Complaint allege as follows: Count 1 During an inspection on July 11, 2003, the Department found that Atlas Termite and Pest Control of Cantonment 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 2 During an inspection on July 11, 2003 the Department found that Atlas Termite and Pest Control of Cantonment phone numbers terminated in an unlicensed location as 9100 Hamman Avenue. This is a violation of Chapter 5E-14.142(3)(b). Atlas Termite and Pest Control of Cantonment, (hereinafter Atlas) 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, Environmental Security of Okaloosa, Inc., and Killingsworth Environmental, Inc., a/k/a KEFL, 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. The record is unclear as to whether Atlas ever entered into any written agreement with Home Services. However, Home Services did perform certain services for Atlas. Atlas has a full-time employee, Angie Foster, who answers the phones and performs administrative tasks at 4141 Pine Forest Road. When Ms. Foster has to leave the office, the calls to Atlas may be forwarded to Home Services. When the phone call is forwarded, the telephone number for Atlas listed in the local telephone directory terminates at Home Services. Home Services also answers calls for Environmental Security of Okaloosa, Inc. and Killingsworth Environmental, Inc. Home Services employees do not make "cold calls" to new 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, including Atlas when appropriate. No evidence was presented that 9100 Hamman Avenue is an advertised permanent location of Atlas from which business was solicited, accepted, or conducted. After the July 11, 2003, inspection of Home Services, Clinton Killingsworth, a manager of Home Services, took steps to get Home Services licensed as a pest control company. He 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 in 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 4 Count 4 of the Administrative Complaint reads as follows: During inspections conducted on July 11, 2003 and July 16, 2003, the Department found that service vehicles are marked with unregistered fictitious name-Atlas Environmental Pest and Termite Control. This is a violation of Chapter 5E- 14.142(3)(a), Florida Administrative Code. During inspections, Department investigators saw trucks with the logo, "Atlas Environmental Pest and Termite Control" on the side of the trucks. When shown a photograph of those trucks, Ms. Beard believed the trucks to be Alabama trucks, not Florida trucks. Ms. Beard is also licensed in Alabama although the name of the company in Alabama is not clear from the record. The word "Environmental" is not in the name of the company, Atlas Termite and Pest Control of Cantonment, licensed to do business in Florida. Many of the trucks used by Atlas at the time of the inspection had defective brakes and transmission problems. Both Florida trucks and Alabama trucks had these problems. Many of the trucks were recalled and were taken off the road. According to Ms. Beard, the trucks shown parked in one of the photographs were parked waiting until they would be repaired. Alabama trucks were parked in the same area as the Florida trucks that were being recalled. However, when asked why a truck with Atlas Environmental Pest and Termite Control was parked at 1830 Galvez Road in Gulf Breeze, she responded that it was being used to transport chemicals to a man in that area. One photograph taken by an investigator clearly shows a man inside one of the trucks standing next to a large barrel inside the truck. The word "Environmental" is clearly written on the truck as part of the company logo. Atlas has sold some of their trucks. When asked at her deposition taken on December 9, 2004, whether Atlas still owned any trucks, Ms. Beard responded, "I believe we have a couple of smaller ones. I don't know that we have any of the larger ones left that are not up for sale." Unnumbered Count of Amended Administrative Complaint The Amended Administrative Complaint contains one additional count which reads in pertinent part as follows: Joyce Beard does not perform the duties of a certified operator as set forth in Section 482.152, Florida Statutes. There is only one other employee of Atlas and her duties are limited to clerical duties in the office. Virtually all of the actual pest control treatments done in the name of Atlas are performed by the company by which they are employed, not Ms. Beard. Atlas is in fact a shell company consisting of Ms. Beard who does not work full time and a clerical employee. She is not in charge of the pest control activities of the licensee, Atlas in the categories covered by her certificate. This constitutes a misuse of her certificate by Ms. Beard and also by Atlas, which is a violation [sic] Section 482.121, Florida Statutes. The Amended Administrative Complaint also references Section 482.152, Florida Statutes. Atlas has only two employees: Joyce Beard and Angie Foster. In addition to being Atlas' COIC, she is Atlas' only corporate officer, serving as president, secretary, and treasurer. Ms. Beard has been in the pest control business for over 30 years. Atlas does not employ any pest control technicians. Atlas subcontracts with Killingsworth Environmental, Inc., a/k/a KEFL, to perform the actual pest control services. The employees of KEFL actually go out into the field to perform the jobs that are subcontracted by Atlas to KEFL. The last time Ms. Beard performed pest control treatment was approximately 1999 or early 2000. However, she "goes behind them a lot" to check to see that the work has been done. Ms. Beard has a physical disability that interferes with or prevents her from doing pest control work. Her disability impedes her ability to climb stairs, work all day without a nap, and maintain her equilibrium. She acknowledges that she is "not as sharp as she used to be." Subcontractors for Atlas primarily provide treatment for residential customers, and some commercial customers. Atlas presently does not accept new customers, but services current customers under contract. Ms. Beard lives across the street from the business location of 4141 Pine Forest Road. She has the ability to keep in communication with technicians out in the field through a computer, fax machine, and by using mobile phones which are equipped with radios and cameras. Technicians of the subcontracting company carry radios and phones with cameras on them on which a picture can be transmitted to her on her mobile phone or via the Internet. Ms. Beard's level of participation and supervision can best be described in her words: Q: Are you currently in charge of all of the business activities of Atlas Termite and Pest Control of Cantonment, Inc.? A: Yes. Q: Are you currently a full-time employee of Atlas Termite and Pest Control of Cantonment, Inc.? A: Yes. Q: Have you been a full-time employee of Atlas since you've become a CPO? A: Yes. Q: Is your employment with Atlas your primary occupation? A: Yes, absolutely. Q: Since your certification of Atlas CPO, has your employment with Atlas always been your primary occupation? A: Yes, absolutely. Q: Have you always or do you now personally supervise and participate in the pest control activities of Atlas regarding the selection of the proper chemicals for particular pest control work performed? A: I did do all of that when there was nobody doing the work except strictly Atlas employees. Now that it is subcontracted out, I supervise, but I'm not always the primary one to make that determination. I can do it, but I have no need to do it. Q: If Atlas had subcontracted the job to another company, who is the CPO then that would be in charge of the chemical side of the whole thing? A: Whoever is the CPO with that company. And I might add that, you know, I don't deal with anybody that's---except CPO's with expertise in a lot of different fields including building construction and biology and chemistry. And they're not just simply CPO's. They are degreed professionals with the expertise to do it. Q: Let me ask you: Have you always and do you now personally supervise and participate in the pest control activities of Atlas regarding the safe and proper use of pesticides? A: Well, there again, I have in the past entirely. I could in the future, but I do not presently do that because that is passed on to the subcontractor. Q: Atlas has employees, doesn't it? A: Yes. Q: But presently it doesn't have any employees that apply pesticide? A: No. Q: During the time that Atlas had employees that applied pesticide, did you supervise and participate in the training regarding the correct concentration in the formulation of those pesticides? A: Yes, I did absolutely every day. Q: And secondly, the same question-- A similar question is: Do you now and did you then supervise and participate in the pest control activities of Atlas regarding the training of personnel in the proper and acceptable methods of pest control? A: I did then to the extent of seeing that it was done. It was a lot of times done in a group format with other companies, so I was not always the one who was doing the presentation. Although, the presentation was done by people who were sanctioned by the Department, and then I do it entirely for Atlas myself. Although they can't get their CPU's [sic] from me, but we held training sessions and so forth. At the present time, I do not because I'm not over those employees. Q: What are some of the ways that an employee of yours at Atlas could get their appropriate, proper and acceptable training, I guess you would call then the CEU's? A: If they were an employee of Atlas? Q: Yes. A: You can get them over the Internet easily now.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That a final order be entered revoking the certificate of Ms. Beard and the license of Atlas. 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.
Findings Of Fact Respondent Charles T. Noegel operates Seminole-Gator Exterminator, Tallahassee, Florida. Inspection reports made by Respondent with respect to the residences of the four owners named in the Administrative Complaint show that he held business license number 519 and ID Card No. 7750, issued by the Petitioner, at the time of the four inspections. (Petitioner's Exhibits 1-3, 5-8). On August 13, 1981, Respondent inspected the property of Gene Gandy, 2504 Hartsfield, Tallahassee, Florida, and issued a "wood-destroying organism inspection report," HRS Form 1145. He also entered into a termite control contract and warranty guarantee with Mr. Gandy on the same date, which included protection against powder-post beetles. Respondent's inspection report apparently was made in connection with the sale of the house to Mr. Gandy. Respondent's report reflected that active infestation and visible damage by powder-post bettles had been observed under the house. Gandy then authorized Respondent to treat the house for the control of powder-post beetles, and Respondent proceeded to provide such treatment. (Testimony of Respondent, Petitioner's Exhibit 6). On September 10, 1981, Mr. Gandy filed a written request with Petitioner's Office of Entomology to inspect his property because he had found evidence of powder-post beetle damage inside the house and in the garage. Pursuant to the request, William E. Page, entomologist-inspector for Petitioner, inspected the Gandy property on September 18, 1981, and rendered a report of his investigation on October 12, 1981. He found that there was active powder-post beetle infestation in the wall studs of a bedroom and in the walls of the garage, old beetle and termite damage under the house, and in the wall studs of another bedroom, and water and fungus damage in kitchen and bathroom walls. Respondent conceded at the hearing that he had re-treated the house for powder-post beetles after being informed of Page's inspection and had had no further complaints from Mr. Gandy since that time. (Testimony of Page, Respondent, Petitioner's Exhibit 6) Prior to purchasing a home at 1937 Sageway Drive, Tallahassee, Florida, Dennis G. Fagen observed some "wrinkled" wood on the wall of the spa room. He requested the real estate salesman to arrange for a termite inspection. Respondent performed an inspection of the property on June 24, 1982, and rendered a negative report as to the presence of wood destroying organisms. The inspection occurred on the date that the Fagens closed the transaction for the purchase of the property. Mrs. Fagen accompanied Respondent during part of his "walk through" of the premises. During the course of his inspection, Respondent noted that the wood in the spa room was suspicious, and, in fact, poked his finger through the pine wood on the wall. Although the evidence is conflicting as to whether Mrs. Fagen was present in the room at that time, it is apparent that both the Fagens and Respondents were aware of the potential problem prior to the completed purchase of the home. The Fagens were of the opinion that it probably consisted of wood rot, and relied on Respondent's negative report as to the presence of wood destroying organisms. About a year later, after the suspicious area had increased in size, Mr. Fagen pulled a board off the wall and discovered that there was active termite infestation. Mr. Fagen contacted Respondent concerning the problem, but he declined to take any remedial action because the Fagens had been aware of the potential damage and Respondent had pointed out the area to the real estate salesman at the time of his inspection. Respondent is of the belief that he was not required to reflect the damaged area on his inspection report because it was damage that had occurred prior to his inspection which he was not required to report on the inspection form, and which would have necessitated removing finished wood to make a determination of the presence of wood-destroying organisms beyond the scope of his inspection, as provided for on HRS form 1145. Mr. Fagen thereafter filed a complaint with Petitioner's Entomology Office and requested a state inspection. William E. Page, the State Entomologist-Inspector investigated the complaint on July 8, 1983, and filed a report reflecting his findings that active infestation of subterranean termites and wood rot were present in the walls and ceiling of the spa room. This finding was confirmed by his observation of termite tubes on the exterior wall of the room, and it was his opinion that termites had been active for several years in that location. Mr. Page's findings were confirmed by a further inspection made on July 14, 1983, by another local pest control firm. Mr. Page was of the opinion that there was obvious damage in the room which should have been listed by Respondent on his inspection report. This opinion is deemed credible. By letter of September 1, 1983, Respondent wrote the Fagens and reiterated his belief that he was not responsible in any respect with regard to the termite damage. (Testimony of D. Fagen, B. Fagen, Page, Respondent, Petitioner's Exhibits 3-4, 7, Respondent's Exhibit 1) On April 12, 1982, Respondent performed a wood destroying organism inspection at 1409 Pichard Drive, Tallahassee, Florida, prior to its purchase by John E. Ellis. His inspection report was rendered on the same date on HRS Form 1145 and was negative as to the presence of any damage or infestation. Mr. Ellis was particularly concerned about this aspect of the house since he had previously cancelled a contract in another state for the purchase of a home when an inspection revealed the presence of termites. Consequently, he had insisted on a clause in his present sales contract which permitted him to void the same if a termite problem existed. Mr. Ellis closed the house purchase in May 1982, lived there a month, and after a trip to North Carolina, came back to the dwelling on July 4. At this time, he found that he had a flea problem in the house and accordingly, called a local pest control firm, Florida Pest Control, to spray for fleas and treat the property for termite control. That firm performed the treatment on July 6 and apparently did not find any problems. On July 7, Mr. Ellis observed what looked to be dry rot at the base of four wooden posts on his front deck. It also appeared that Florida Pest Control had dug around each post slightly to treat the ground. Mr. Ellis then traveled again to North Carolina and returned on September 30. Two days later he examined the posts again and noticed that a piece of wood on one corner of a deck post had fallen off. He called the Florida Pest Control who found that the deck posts were damaged as high as four inches above the deck. Mr. Ellis, one of that firm's representatives, told him that although one post showed termite damage, the treatment in July must have killed the termites since there was none existing at that time. He also indicated that the damage to the other posts was either water damage or dry rot. Mr. Ellis contacted Respondent concerning the problem, but he declined to do anything about it because he considered that the damage was not visible or accessible, and therefore outside the scope of his inspection as provided on HRS Form 1145. Mr. Ellis thereupon filed a written complaint with Petitioner's Office of Entomology and requested a state inspection. William E. Page, the State Entomologist Inspector, investigated the complaint on October 15, 1982, and his report of inspection indicated that there was evidence of termite damage in one post of the front deck and rot damage at the base of all the posts. In the opinion of Mr. Page, a normal inspection should have found signs of termite damage to the posts underground and that the damage had been progressing for at least a period of one year. He was further of the opinion that it would have been necessary to remove the dirt from the first two or three inches below the ground surface in order to find the damage and that such an area would be "accessible." He found damage to the posts at least eight inches above the ground, although he acknowledged that part of the damage could have been done after Respondent had made his inspection. Mr. Ellis later sued Respondent in civil court and recovered a judgment which was subsequently satisfied. Repair damages to the posts were approximately $585. (Testimony of Ellis, Page, Respondent, Petitioner's Exhibit 5, 8) Respondent conducted a wood-destroying organism inspection of the property located at 711 Piedmont Drive, Tallahassee, Florida, on May 5, 1983 incident to the subsequent purchase of the property by Mr. David Jones on June 1, 1983. Respondent's inspection report on HRS Form 1145 was negative in all respects except that it was noted that the property showed evidence of previous treatment. Mr. Jones talked to Respondent prior to closing of the transaction and Respondent assured him that everything was all right with the property. While moving into the home on June 1, 1983, Mr. Jones observed an area of wrinkled paint above a window in the family room. When he touched the area, his finger went through the wood. He proceeded to call another pest control firm, Florida Pest Control, to inspect the house. Their inspection indicated that there was evidence of termites by the presence of termite tubes on the wall of the utility room. They also found that there was wood rot damage to the subfloor under a bathroom. Mr. Jones got in touch with Respondent who again examined the property and agreed to repair the damage in the family room, but was unwilling to do anything about the other problems. Jones filed a complaint with Petitioner's Office of Entomology on June 10, 1983, and requested that a state inspection of the premises be performed. Entomologist-Inspector William E. Page conducted an investigation on July 1, 1983, and found that, although there was no active infestation, old termite tubes were present in the utility room and subterranean termite damage and wood rot were located in a beam about the window, and in the window frame in the family room and the wall of the utility room, and that rot damage existed in the sub-flooring of a bathroom. Mr. Page was of the opinion that a light tap on the wall would have revealed the damage in the family room, and that the termite tubes in the utility room were obvious. He was of the further opinion that a thorough inspection would have found most of the damage that he noted. Respondent testified that he did not believe that HRS Form 1145 provided for the entry of information concerning inactive infestation. He acknowledged that he had not noticed the damaged area above the window of the family room because it had been painted over. (Testimony of Jones, Page, Respondent, Petitioner's Exhibit 1-2) HRS Form 1145 limits the scope of a licensee's inspection of property to the "visible and accessible areas of the structure." It does not include areas concealed by wall coverings, or any portion of the structure in which inspection would necessitate removing or defacing finished wood. The form provides for the entry of findings concerning the observation of "active infestation," "other evidence of infestation," and "visible damage," together with locations of such observations, and the organisms observed or which caused the damage. It also provides for findings as to whether the property shows evidence of previous treatment. By requiring that a finding be entered as to "active infestation" and the organism observed, it is intended that the term "other evidence of infestation" refers to situations where organisms are not observed, but there is some other kind of evidence of either active or inactive infestation, such as the presence of termite tubes. It is intended that the term "visible damage" is also applicable to damage caused by active or inactive infestation. The terms used in the form are commonly understood by the industry to have the meaning indicated above which is the agency interpretation. In all instances, suspicious areas which might indicate infestation should be noted on the form as "visible damage," even though the licensee is unable to determine exactly what has caused the problem without removing or defacing finished wood. In such cases, "tapping" of the wood may produce a hollow sound which should be listed as possible hidden damage. Powder-post beetles can be detected by the observation of holes with powder falling out. If wood is damaged, it is possible to trace it to termite infestation with a probe. It is therefore expected that a thorough inspection will reveal signs of past or present infestation. HRS Form 1143 was revised in May 1983 at the request of the industry, but the changes were not substantiated, nor did they essentially change the required findings. The form is utilized in the sale of property and is designed to protect the purchaser. It is therefore important that the inspection be accurate and thorough in all instances since the public relies on the expertise of qualified licensees as to wood-destroying organisms. (Testimony of Page, Bond, Respondent's Exhibit 2)
Recommendation That a final order be entered which suspends the pest control business license, pest control operator's certificate, and pest control employee identification card of Respondent Charles T. Noegel for a period of three months, and that he be placed on probation thereafter for a period of one year for violation of Section 482.161(1)(f), Florida Statutes. DONE AND EXTENDED this 25th day of January, 1984, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 1984. COPIES FURNISHED: John Pearce, Esquire Department of HRS District II Legal Counsel 2639 North Monroe Street Tallahassee, Florida 32303 Charles T. Noegel Seminole Gator Exterminator 1409 Pichard Drive Tallahassee, Florida 32308 David Pingree, Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Petitioner has a degree in pest control technology. On June 18, 1981, Respondent renewed Petitioner's Pest Control operator's Certificate No. 2303 until June 1, 1982, in the categories of general household pests and rodent control, termite and other wood-destroying organism control, and lawn and ornamental pest control. On May 6, 1982, Petitioner filed his annual Application for Renewal of his certificate in the same categories. On that application, Petitioner answered "yes" to the question: "Have you been convicted by any court of a felony or of a crime involving moral turpitude within the past year?" and he answered "no" to the question: "[H]ave your civil rights been restored?" By letter dated June 15, 1982, Respondent denied Petitioner's Application for Renewal based upon Petitioner's answers to those questions, and Petitioner timely requested a formal hearing on that denial. On December 16, 1982, Respondent wrote to the Division of Administrative Hearings advising that a Hearing Officer had not yet been assigned to hear this matter and attaching only a copy of a July 6, 1982, letter from Respondent requesting the Division to conduct a formal hearing in this cause. Since the July 6 letter had never been received by the Division of Administrative Hearings, and since the December 16 letter failed to transmit Petitioner's request for hearing or any other pleadings or papers setting forth the substance of the cause, the Staff Assistant of the Division telephoned Mrs. Cheryl Ganley of Respondent's Clerk's Office on December 23, 1982, and requested the documents required to open a case before the Division of Administrative Hearings. That telephonic request was followed up with a letter to Mrs. Ganley on January 4, 1983. No response to either the telephonic or written inquiry was made by Respondent until March 24, 1983, when Respondent again wrote to the Division of Administrative Hearings asking why the matter was not scheduled for hearing and attaching only a copy of its December 16, 1982, letter. On March 31, 1983, the Director of the Division wrote Respondent outlining the chronology of the letters to and from Respondent and again advising Respondent that the case could not be heard until Respondent transmitted the pleadings required to open a case file. On April 11, 1983, Respondent finally did so. Petitioner relies upon his licensure by Respondent as a Certified Pest Control Operator for his livelihood and has no other training or means for earning a living. Other than Petitioner's testimony that his involvement in the incident was minimal, the only evidence introduced regarding the circumstances surrounding his arrest and conviction is a letter from Petitioner's Probation Officer, which letter constitutes uncorroborated hearsay and, therefore, cannot support a finding of fact. Petitioner's probation should be terminated in approximately six months, at which time he will be able to seek restoration of his civil rights. He anticipates no problem in having his civil rights restored. At the formal hearing in this cause, the parties stipulated that the only bar to renewal of Petitioner's licensure is his conviction of a felony or of a crime involving moral turpitude without his civil rights being restored.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered approving Petitioner's Application for Renewal of his Pest Control Operator's Certificate No. 2303 for the annual period commencing June 1, 1983. DONE and RECOMMENDED this 17th day of June, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1983. COPIES FURNISHED: Harold L. Braynon, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301 Mr. Christopher M. Hagerty 1141 South West Sixth Avenue Fort Lauderdale, Florida 33315 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
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 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.
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:
The Issue Whether or not an Administrative fine may be imposed upon proof of allegations contained in the Administrative Complaint dated June 6, 1986, wherein Respondent is charged with violations of Section 482.226(1), (2)(f) and (g), and 482.161(1)(a),(e) and/or (f) Florida Statutes. Petitioner presented the oral testimony of Roger Gagnon and Frederick Hassut, Jr., and had 3 exhibits admitted in evidence (P-1, P-2, and P-4). Respondent presented her own oral testimony and that of Susan Rickenbach and had admitted 1 exhibit (R-1). At the close of Petitioner's case in chief, and at the conclusion of her own case. Respondent moved to dismiss for failure to prove the allegations of the Administrative Complaint. Ruling on same was reserved for disposition in this recommended order. No transcript was filed. Both parties have filed post-hearing proposals. To the extent they contain proposed findings of fact, these proposals are ruled on pursuant to Section 120.59(2), F.S., in the appendix hereto. Respondent's post-hearing Motion for Dismissal is ruled on in the course of this recommended order.
Findings Of Fact On October 16, 1985, Diane M. Jellen, representing Terminix International, Inc., Cocoa, inspected the property consisting of 12 units which is located at 141 Bluff Terrace, Melbourne, Florida. The inspection was for purposes connected with a real estate transfer. Ms. Jellen issued a report of findings on a Wood-Destroying Organisms Inspection Report (HRS Form 1145, May 1983) dated October 16, 1985. At the time of making the inspection, Ms. Jellen felt herself to be sexually harassed by an individual representing the seller who obstructed her entry into certain units, and she did not complete the inspection of each and every unit for this reason. The top portion of the report issued by Ms. Jellen indicates that Ms. Jellen is the "inspector" and states: "Specific structures inspected: 12 units; Structures on property NOT inspected: none; Areas of structures NOT inspected: none." Essentially the report goes on to indicate that no wood destroying organisms existed. However, at the bottom on the COMMENTS line, Respondent wrote "not all apts accessable" and "low crawl." She made the latter comments in reliance on instructions from her Terminex supervisor that this was sufficient. 1/ Thereafter, partly in reliance on Ms. Jellan's report, Mr. Roger Gagnon purchased the 12 units previously inspected. On May 14, 1986 Mr. Roger Gagnon, owner of the property, filed a written complaint alleging that the inspection performed by Ms. Jellen on October 16, 1985, had failed to detect evidence of wood destroying organisms which were present within the structure at the time of the October 16, 1985 inspection, and which wood destroying organisms Mr. Gagnon had subsequently discovered. On May 15, 1986 Frederick Hassut, Jr., Entomologist-Inspector for the State of Florida Department of Health and Rehabilitative Services performed a wood-destroying organism inspection of the premises which revealed wood-decaying fungus damage present in wood braces and overhang located above apartments No. 3. and No. 4; in several wood members of the stairway and railing adjacent to apartments No. 3 and No. 4; in several floor joists located within the storage room of building No. 2; in the baseboard located in the bathroom of apartment No. 10; and in several wood members of the stairway adjacent to apartment No. Further, he found drywood termite fecal pellets and damage in the east window frame located in the living room of apartment No. 3. Mr. Hassut determined, within his expert education, training and experience, that the old wood decay, fungus damage and the dry-wood termite evidence and damage had to have been present and visible on October 16, 1985, when Ms. Jellen issued the inspection report indicating an infestation. Terminex International subsequently repaired all losses incurred by Roger Gagnon at its own expense. Prior to the time of the inspection, October 16, 1985, Respondent had filed an application to become a pest control employee identification cardholder. Petitioner did not affirmatively show that the card was issued prior to the October 16, 1985 inspection, however Ms. Jellan's application, admitted in evidence as P-4, specifies the agency policy that: "The effective date of this ID Card when issued will be the date of receipt of post- mark if mailed, of this application." The application bears two receipt dates: "10-3-85" and "October 07, 1985," both of which pre-date the inspection at issue. The parties agree that an identification card was subsequently issued. Accordingly, Respondent is found to have been an identification cardholder as contemplated by Chapter 482 F.S. 2/ and therefore subject to Petitioner's jurisdiction at all times relevant. Respondent's unrebutted testimony that she was hired by Terminex International as an office salesperson and was insufficiently trained by that employer to do wood-destroying organism inspections is accepted but deemed irrelevant and immaterial. In mitigation, it is noted that Respondent has, at her own initiative, recently completed 5 days training in pest control with an eye to continued competent employment in this field.
Recommendation That DHRS issue a final order of private reprimand to Respondent for negligent performance of a pest control inspection. DONE and ORDERED this 24th day of October 1986, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 24th day of October 1986.
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 James Dale Cooley, Respondent herein, is a certified pest control operator doing business as Tropical Pest Control and Closing Inspection Services Company. On December 6, 1990, Respondent inspected a residential property located at 1222 Stimson Street, Jacksonville, Florida, and issued a Wood- Destroying Organisms Inspection Report, HRS Form 1145. That report indicated that wood fungi was present in the subfloor and was caused by a moisture condition in the crawl space. The block under "Report of Findings" on that report for "visible evidence of wood-destroying organisms observed" was marked, "Yes." Under "comments," Respondent stated "Mature home; minor deterioration bottom of siding and trim of detached utility." Subsequently, Respondent issued a second Wood-Destroying Organisms Inspection Report for the same residence, bearing an inspection date of December 7, 1990. The second report indicated that no visible evidence of wood destroying organisms was observed. The "comments" portion was modified to read, "mature home has moisture condition in crawl space, common problem may be considered minor." The issuance of the second report clearly contradicted the first report as to existence of damage from wood-destroying organisms. The property was subsequently purchased based on the report of findings dated December 7, 1990. Mrs. Robinson, the realtor who commissioned the Respondent's inspection and report, testified that this second report was seen by the buyers and co-signer, and probably by the mortgagor, but that the earlier one was not. Eleven months later and after an above-average period of rainfall, on November 25, 1991, an HRS inspector visited the subject property and determined that evidence of damage caused by wood decay fungi was present in the substructure area. The primary cause of wood-destroying fungus growth is moisture. During this on-site investigation, Respondent was cooperative with the HRS inspector and provided him with a copy of his December 6, 1990 report. Receipt of a copy of the earlier report signalled to the department that there had been possible fraud in the sale of the house. Departmental personnel reached that conclusion because the first report had stated that there were wood-decaying organisms present, one day later the second report indicated that there were not such organisms present, and eleven months later wood- decaying organisms were found to be present. According to Respondent, when he made his inspection on December 6, 1990, he had observed only mold, mildew, and moisture stains, but no wood destroying organisms. Respondent's explanation for issuing two reports totally contrary to each other was that he intentionally made out a "very objectionable report" on December 6, 1990 showing that "wood fungi" and "wood destroying organisms" were present because he wanted the buyers to be fully informed about what was really wrong with the house and because he felt the "very objectinable report" would induce the buyers or the realtor to phone him, personally. His explanation for why he wrote in "wood fungi" on the first inspection report was that he was trying to signify only "wood fungi" but not "wood destroying fungi" or "wood destroying organisms." Respondent's testimony on this score is contradicted by the first inspection report itself whereon he had checked the box indicating that he had observed "wood destroying organisms." Respondent also had no plausible explanation for why he did not simply make a full and accurate explanation in the "comments" section of the first report. Also, according to Respondent, he filled out the new report not on December 7, 1990 but sometime thereafter around December 10 after receiving assurances from Mrs. Robinson that the buyers had been informed by somebody else of the true condition of the house. Respondent testified that he made out the second inspection report to reflect the truth of what he had seen on December 6th, not to defraud anyone by substituting a "good" report for the previous "bad" report. Nonetheless, Respondent charged $55.00 for the inspection and what he called a false report on December 6 and $25.00 for the "update" which he called a true report bearing the December 7 date. He admittedly did not re-inspect the premises. According Respondent every benefit of the doubt, it is clear from his own testimony that he intentionally falsified one report which ultimately resulted in an unnecessary fee of $25.00 which someone had to bear when the sale of the property was closed. Competent expert and lay testimony are in accord that mildew and mold are not fungi; neither organism is a wood decay fungus; neither organism metamorphoses into a wood decay fungus when exposed to prolonged moisture, and neither organism is an algae. Mr. Phillip Helseth testified competently and credibility that it is commonly understood that if one cites "wood fungi" as the Respondent did on the first wood-destroying organisms report it is commonly understood within the inspection industry to mean "wood decaying fungi." Mr. Helseth's testimony is also credible to the effect that there would be no reason to report "wood fungi" which is not decaying/destroying on such a report. Moreover, the HRS form utilized for both reports explicitly defines "wood-destroying organism" as, "arthropod or plant life which damages a structure, namely termites, powder-post beetles, wood-boring beetles, wood-boring wasps, carpenter bees and wood- decaying fungi." Mr. Helspeth also testified competently and credibly that "wood decaying fungi" constitutes a "wood destroying organism" and that to call mildew and mold "wood fungi" is inaccurate and falls below the standards of the profession. The competent credible evidence as a whole supports a finding that Respondent issued a false report which was not in accordance with good industry practice and standards. Having made that finding of fact, the undersigned may consider his prior disciplinary record (three cases) and has done so for purposes of penalty, only.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order finding Respondent guilty of the statutory violations charged in the administrative complaint, and suspending Respondent's Pest Control Certificate No. 2236 in the category of "Termite and Other Wood-Destroying Organism Control" for a period of three months. DONE and RECOMMENDED this 11th day of September, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-1055 The following constitute specific rulings, pursuant to S120.59 (2), F.S., upon the parties' respective proposed findings of fact (PFOF) Petitioner's PFOF: 1-8 Accepted 9-10 Accepted as modified to reflect the greater weight of the admissible evidence. Penalty matters are relegated to the conclusions of law. Respondent's PFOF: 1 Rejected as a conclusion of law. 2, 4-12 Accepted except as to unnecessary, subordinate, and cumulative material. 3 Rejected as not suppported by the record. 13-15 Rejected as mere legal argument and not dispositive of the material issues in the case. COPIES FURNISHED: Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Scott D. Leemis Assistant District Legal Counsel P. O. Box 2417 Jacksonville, Florida 32231-0083 Griffin Helwig, Esquire 3030 Harley Road #190 Jacksonville, Florida 32257
The Issue Whether or not James D. Cooley, d/b/a Murder, Inc., is entitled to a business license to engage in pest control in Florida, in the category of general household pest control. Whether or not James D. Cooley is entitled to the issuance of an identification card under the licensee James D. Cooley, d/b/a Murder, Inc., and in direction and control of James D. Cooley, certified pest control operator. Whether or not James D. Cooley is entitled to the issuance of a certified pest control operator's license in the general household category.
Findings Of Fact The Petitioner, James D. Cooley, is the holder of pest control operator's certificate no. 2236 held with the Respondent, State of Florida, Department of Health and Rehabilitative Services. This category of pest control operator's certificate qualifies the Petitioner to perform treatment on termites and wood-infesting organisms. By separate action, the Respondent has moved to suspend the aforementioned pest control operator's certificate held by the Petitioner for a period of six (6) months, in accordance with the provisions of Chapter 482, F.S. It has as an aspect of the contention the failure of the Petitioner to make a timely renewal of the pest control operator's certificate. The basis of this separate action by the Respondent is premised upon a letter of August 8th, 1977, addressed to the Petitioner, apprising him of the factual allegations and statutory references upon which its action is predicated. A copy of that letter is attached and made a part of the record herein. The facts reveal that the Petitioner, James D. Cooley, entered into an agreement with the proprietors of the "Romp and Tromp Day Care Center" located at 143 State Road 13, St. Johns County, Florida, for purposes of spraying for roaches. At that time, James D. Cooley was operating under the name "Tropical Pest Control", located at 355 Monument Road, Jacksonville, Florida. He identified himself in the form of a business card, (which is Petitioner's Exhibit 3 admitted into evidence in the Division of Administrative Hearings' Case Number 77-1564), as a termite control and complete pest control service. Cooley did, in fact, spray the "Romp and Troop Day Care Center: for the extermination of roaches. The sprayings took place in April and May, 1977. The substance being sprayed had a peculiar odor which the witnesses, Alice E. Stock and Ellen Perry Church indicated seemed like household bug spray. They also indicated that they noticed a resulting improvement with the roach problem after spraying. James D. Cooley, under the guise of "Tropical Pest Control", also sprayed the residence of Ellen Perry Church, which is at 1975 State Road 13, St. Johns County, Florida. He sprayed this premises for roaches and ants. Again the substance had an odor which was similar to retail bug spray. The ant and roach problem did not go away in her home. In both instances, when dealing with the proprietors of the "Romp and Troop Day Care Center" and the residence of Ellen Perry Church, James D. Cooley had identified himself as the owner of "Tropical Pest Control" and a person qualified to perform complete pest control services. In fact, James D. Cooley was not qualified to perform general household pest control, which is the category of treatment he was performing in spraying for roaches and ants. By that, it is meant that James D. Cooley at the time he performed the functions for the proprietors of the "Romp and Troop Day Care Center" and the residence of Ellen Perry Church, was not the holder of a certified operator's license in the category of general household pest control, as contemplated by Chapter 482, F.S. Moreover, the company he was operating under, to wit "Tropical Pest Control", was not licensed with the State of Florida, Department of Health and Rehabilitative Services and no identification card was on file for James D. Cooley as an employee of "Tropical Pest Control". The only document on record pertaining to James D. Cooley was one pertaining to his certified operator's license for termites and other wood-infesting organisms, license no. 2236, which at the time of the investigation of Mr. Cooley's activities was due for renewal in accordance with the terms of Section 482.071, F.S. By his actions in dealing with the premises known as "Romp and Troop Day Care Center" and the residence of Ellen Perry Church, the Respondent, in performing these tasks as "Tropical Pest Control", was unlawfully operating a pest control business that was not licensed by the Respondent, in violation of Section 482.071, F.S. Cooley was also in charge of the performance of pest control activities of a category in which he was not properly certified, namely general household pest control, thereby violating Section 482.111(4), F.S. In addition, James D. Cooley failed to have a valid pest control identification card as am employee of "Tropical Pest Control", because "Tropical Pest Control" was not licensed and no employee for that organization could have an identification card, thus causing a violation of Section 482.091, F.S. By his activities in dealing with the two premises, the Respondent was unlawfully soliciting, practicing, performing or advertising in pest control in a fashion that was not authorized by Chapter 482, F.S., in violation of Section 482.191(1), F.S. Finally, James D. Cooley, by holding himself out to be a certified operator in general household pest control, was guilty of fraudulent or misleading advertising or advertising in an unauthorized category, in violation of Section 482.161(8), F.S. For these violations, set forth above, sufficient grounds have been established for the Respondent to suspend, revoke or stop the issuance or renewal of any certificate or identification card, under authority of Section 482.161, F.S. The Respondent has taken action to bring about a suspension of certified pest control operator's license no. 2236, in keeping with the provisions of Section 482.171, F.S., and is warranted in suspending, revoking or stopping the issuance or renewal of any certificate or identification card. In consideration of the violations established in the Petitioner's dealings with the "Romp and Troop Day Care Center" and Ellen Church, the Respondent has refused to issue a business license to James Cooley, d/b/a Murder, Inc., which intends to do business in the general household pest control category. If James D. Cooley is not granted his certified operator's license in the category of general household pest control, then he may not serve as a certified operator in that category, in behalf of the proposed licensee James D. Cooley, d/b/a Murder, Inc. If James D. Cooley is unable to serve in the capacity of certified pest control operator, general household category, them the business known as James D. Cooley, d/b/a Murder, Inc., must employ am alternate certified operator in the general household category, before the Respondent shall issue a license to the business to operate in the general household category. That operator must be a resident of the State of Florida. This is in keeping with the license requirements of Section 482.071, F.S. James D. Cooley does not qualify for certification in the category of general household pest control, because through the violations established in his dealings with the "Romp and Tromp Day Care Center" and Ellen Perry Church, he has shown himself not to be of good character and good reputation for fair dealings, as required by Section 482.132, F.S., prior to the issuance of any certificate. Therefore, the only possibility that James D. Cooley, d/b/a Murder, Inc., would have for operating under the general household pest control category and for receiving a license would be to have another duly qualified certified operator in general household pest control to be hired by the licensee. No identification card can be issued to James D. Cooley or any other person who might be employed by James D. Cooley, d/b/a Murder, Inc., to operate in the general household pest control business, unless it will be under the supervision of a certified pest control operator in the specialty of general household pest control, other than James D. Cooley. The results of the examination which James D. Cooley completed in the general household pest control specialty, should stand until he is otherwise qualified or the requirements for certification have changed prior to his obtaining further qualification in the terms of his good character and good reputation for fair dealings. This conclusion is reached upon a reading of Rule 10D-55.177 (5 FAC) which only prohibits those persons from being examined who have been suspended, revoked or on probation. James D. Cooley was not in one of those categories prior to taking the examination which he passed and was notified of the passing grade in September, 1977.
Recommendation Pursuant to the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a business license for James D. Cooley, d/b/a Murder, Inc., only be issued if some person other than James D. Cooley will be serving in the capacity of a certified pest control operator in the category of general household pest control, which is the desired license specialty. That no identification card be issued to James D. Cooley as an employee of James D. Cooley, d/b/a Murder, Inc., in view of the fact that the license is not being issued to that organization and no employee shall receive an identification card without being employed by a licensed pest control business and under the authority of a certified operator. This position of the recommendation shall be in effect until and unless a separate certified operator is employed, which would allow the license to be given to James D. Cooley, d/b/a Murder, Inc. That James D. Cooley's application to be a certified operator in the category of general household pest control be denied, because he has been shown to' be lacking in good character and good reputation for fair dealings. DONE and ENTERED this 28th day of December, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Robert M. Eisenberg, Esquire Department of HRS 5920 Arlington Expressway Jacksonville, Florida Paul M. Harden, Esquire 2601 Gulf Life Tower Jacksonville, Florida 32207 ================================================================= AGENCY FINAL ORDER =================================================================
