The Issue The central issue in these cases is whether the Department of Environmental Regulation (Department) should approve the dredge and fill permit and the stormwater discharge facility construction permit which were requested by Indian River County (County).
Findings Of Fact The introduction to the exceptions filed by the petitioners sets forth one of the two critical issues in this proceeding. It corrects a technically inaccurate statement in the Recommended Order characterizing the petitioners as "adjacent property owners." Rec. Order at 2. The petitioners point out that, as recognized in paragraph 5 of the findings of fact, they own some of the very land that the project will require either for the road extension or the mitigation. The petitioners urge that because the County does not own any of the land needed for the project, it has no right to apply for a permit to use the land. The petitioners take exception to the alleged failure of the Recommended Order to resolve the issue whether the County must own the land before it can even apply for a permit. In light of the Hearing Officer's own findings in paragraph 5, I must accept this exception to the characterization of the petitioners as merely adjacent property owners. They are owners of some of the property to be occupied by the road project, including its mitigation areas. As for the issue of the County's standing to apply for a permit, the petitioners' third exception to the conclusions of law of the Recommended Order again addresses that point. This Order therefore will address that issue in resolving the third exception to conclusions of law, below. In the first exception to the findings of fact, the petitioners attack the finding that "the County has approved the acquisition of right of way to construct a road project." Instead, they argue, the County has approved only the initiation of proceedings to condemn the property in circuit court. It is true that, as they point out, merely starting the action does not ensure that the County will prevail. Yet the finding in question does not prejudge the question. Read together with the finding in paragraph 5 of the findings that before construction "the County would have to acquire the subject parcels in order to comply with the proposed permit terms," the statement that the County has approved the acquisition simply means that the County decisionmakers have approved the proposed acquisition. In context, the language clearly implies the word proposed so interpreted, the finding is impeccable, fully supported by competent substantial evidence in the record. I therefore reject this exception. Contrary to the claim of the petitioners, competent substantial evidence likewise supports the finding in paragraph 4 of the findings that "[t]he area within the impoundment contains wetland indicator species which suggest that prior to the construction of the dikes, . . . the tract was a wetlands area," to which the petitioners take their second exception. I therefore reject this exception. In their third exception, the petitioners do not clearly take exception to any particular finding of fact. They state that the Hearing Officer found that the Department based its jurisdictional determination on "a new interpretation" of section 403.817(2) of the Florida Statutes. Exceptions at 5, par. 3. In fact, in the paragraph cited by the petitioners, the Hearing Officer made no finding that the interpretation was new. Rec. Order at 6, par. 7. The petitioners do not object to the finding at issue. Instead, they quarrel with the County's acquiescence in the Department's interpretation of its jurisdiction. They also raise various legal issues that the Hearing Officer allegedly failed to resolve. These seem to duplicate the issues raised in the exceptions to conclusions of law, especially the first two such exceptions. The Order will address those issues in the section on conclusions of law, below. The petitioners' only disagreement with the finding at issue appears to derive from the Department's alleged failure to defend its interpretation of the jurisdictional statute. Yet the petitioners do not make any specific attack on that interpretation in this exception. They do not explain what the Department allegedly did wrong. They cite nothing in the record to support their apposition to the finding. I reject this exception. Exception No. 4 to the findings of fact asserts that the Hearing Officer should not have found that without mitigation, the project would have "negative impacts" on the environment, causing "a loss of habitat and ... adversely affect[ing] the conservation of fish and wildlife." Rec. Order, par. 12 (findings of fact). The petitioners urge that because the wetlands in question are ecologically stressed, less mitigation should be required. But the finding to which the petitioners object does not reach the question of how much mitigation is required. Moreover, the balance of paragraph 12 of the findings of fact expressly takes into account that the wetlands in the impoundment have been disturbed by man. Paragraph 13 then notes that the Department assigns a higher value to undisturbed wetlands than to disturbed wetlands. I reject this exception. Exception No. 5 challenges two findings of fact. The petitioners state that the Hearing Officer erred in finding that the amount of mitigation acreage "is not unreasonable given the benefits . . . from the County's proposal," in paragraph 14 of the findings, and that the mitigation "adequately offsets the loss of wetlands that will occur," in paragraph 15. The petitioners then repeat their disagreement with the Department's determination of its jurisdiction, "[a]s noted In Exception No. 4." Not adding anything of substance in support, this exception must fall with Exception No. 4. I reject Exception No. 5. The petitioners' sixth exception takes issue with the finding in Paragraph 16 that the County has complied with the permitting and design requirements of various regulatory and review agencies. Although the petitioners cite no record support for their exception, I am unable to find any competent substantial evidence in the record to support the finding in question. I therefore accept this exception and correct the findings by deleting paragraph 16 from them. Nevertheless, I rule that the error in making this finding was harmless. Exception No. 6 is immaterial, because the requirements of the other agencies are not at issue in this proceeding. Exception No. 7 asserts error in the finding in paragraph 18 that the petitioners presented no facts to "establish that their environmental interest will be affected adversely by the project." In explanation, the petitioners state that their challenge to the accuracy of the Department's determination of its jurisdiction and the amount of mitigation required reflects their environmental interest. But the common understanding of the phrase "environmental interest" is an interest in protecting the environment. Although the petitioners have raised issues that are ostensibly "environmental," involving the extent of the Department's jurisdiction to protect the environment and the extent of the protection needed, the issues are not the same as the interests. The interests are the reasons for raising the issues. The petitioners have not raised these issues to protect the environment. On the contrary, they seek to restrict the Department from protecting the environment to the extent that the Department has proposed. The petitioners have sought that restriction to protect their property from "a substantial adverse impact" caused by the project, "specifically including the excessive mitigation plan." Petitioners' Proposed Rec. Order at 9, par. 20 (proposed findings of fact). The only adverse impact on their property would be a possible reduction in its value during the condemnation Proceeding. No other adverse impact could result from a mitigation plan that offsets all the adverse environmental impacts of the project and then some (according to the petitioners). The interest asserted by the petitioners is not environmental but economic, as the Hearing Officer found, based on competent substantial evidence. Accordingly, I reject Exception No. 7. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW Exception No. 1 to the conclusions of law challenges a conclusion allegedly to be found in paragraphs 7-9 of the conclusions. The conclusion attacked is "that the application would not adversely affect the welfare or property of Petitioners." In vain have I searched for this conclusion. It is not found in paragraphs 7-9 of the conclusions. It does not appear in paragraphs 1-6 or 10-12, the only other conclusions. I therefore reject this portion of the exception. The petitioners then go on to argue that the Hearing Officer failed to require the Department to meet its burden of proving jurisdiction and failed to evaluate the wetlands in the entire project area correctly. Contrary to the petitioners' assertions, however, it is not true that the Hearing Officer failed "to address the environmental issues raised by Petitioners." The Hearing Officer made findings supported by competent substantial evidence that the project would affect jurisdictional wetlands and require mitigation and that the mitigation proposed by the County would adequately offset the adverse impacts on the wetlands. She also made well-supported findings that the Department had evaluated the disturbed wetlands differently from undisturbed wetlands. The petitioners have not shown any error in the conclusions of law in this exception, which I therefore reject in toto. Exception No. 2 to the conclusions reaches the dispositive procedural issue in this case. The exception takes issue with paragraph 12 of the conclusions, which states that the petitioners failed to establish a substantial environmental interest that the project would adversely affect and that the economic interests of the petitioners are inadequate to demonstrate their standing in this proceeding on an environmental permit, under the decision in Agrico Chemical Co. v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981). Significantly, the petitioners do not question the principle established in Agrico that because a proceeding on an environmental permit under chapter 403 of the Florida Statutes is not intended to redress or prevent injuries to the economic interests of a third party, such a party lacks standing unless he establishes that the proceeding may affect his substantial environmental interests. Economic interests do not suffice to establish the standing of third parties in an environmental proceeding. Apparently accepting that principle, the petitioners insist that their asserted interests are environmental. That claim flies in the face of both fact and logic, as explained above in the discussion of Exception No. 7 to the findings of fact. The petitioners concede that they are third parties. Under Agrico, then, I have no choice but to reject this exception and uphold the Hearing Officer's conclusion that the petitioners failed to establish their standing in this proceeding. In reaching this conclusion, I recognize that the petitioners own some of the land that the County must acquire for this project. Besides lacking the authority to carve out an exception to the judicial decision in Agrico, however, I view the various policy considerations as reinforcing the conclusion that the petitioners have no standing to promote their economic interests in this proceeding. Had the petitioners established any substantial environmental interests that the project would affect, this proceeding would have protected those interests. Had the petitioners sought a permit or a declaratory statement from the Department to establish the jurisdictional line and realize whatever their plans are for using their land, they would not have been subject to the Agrico restriction on the standing of third parties. They would have been applicants rather than petitioners. They would have automatic standing as the main parties in interest. Their election of other remedies must not be allowed to impair the proper working of the administrative process, in which the Department focuses its expertise and efforts on regulation to protect the environment. The petitioners concede that they "are actively pursuing their remedies in [other] forums." Exception No. 2 (conclusions of law). Those other forums doubtless include the circuit court, in which the condemnation proceeding authorized by statute will presumably protect the economic interests of the petitioners at issue. This agency is not free to question the legislative judgment that the condemnation proceeding is the appropriate and adequate forum for the protection of such economic interests. For an administrative agency, carrying out the tasks delegated by the legislature is the sole mission, and mission enough. I reject Exception No. 2 as without merit in either policy or law. Exception No. 3 fares no better. In this exception, the petitioners argue that the Hearing Officer should have concluded that rule 17-312.330(6) of the Florida Administrative Code "requires the County to secure title or permission from the owners to profer [sic] the area intended for mitigation of its roadway project." The rule requires documentation of the applicant's interest in the land before the applicant may obtain the permit. It does not require such documentation at the time of the application or the initial proffer of the area for mitigation. The petitioners have cited no case and offered no analysis of the language of the rule in support of their interpretation. When the applicant is a public entity with condemnation authority, as is the County, it makes more sense for the applicant to apply for the permit and make the proffer of the mitigation area before starting the condemnation, to learn first how much (and which) property the project will require. I therefore reject this exception. The fourth exception raised by the petitioners is a broad objection to the Hearing Officer's alleged failure to include various findings of fact and conclusions of law proposed by the petitioners, as well as their recommendation, in the Recommended Order. The petitioners do not point to any particular finding or conclusion omitted. The appendix to the Recommended Order addresses all twenty-one paragraphs of the petitioners' proposed findings. The Hearing Officer rejected some of those proposed findings as irrelevant or contrary to the weight of the evidence. The petitioners have not shown any error in those determinations. Moreover, the Hearing Officer had no obligation to accept or even comment on any particular conclusion of law, including the recommendation proposed by the petitioners. I likewise reject this exception as lacking merit. RULING ON REQUEST FOR ORAL ARGUMENT The petitioners have also requested oral argument before me in support of their exceptions. The petitioners have not explained the need for such oral argument or offered any argument or other support for the request. They have, however, presented ample argument before the Hearing Officer and in their exceptions, to make their position clear on the issues discussed above. In these circumstances, oral argument would be redundant. The request for oral argument is denied.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order approving the applications of Indian River County for the permits to construct the proposed roadway. DONE and ENTERED this 22nd day of August, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed this 22nd day of August, 1990 with the Clerk of the Division of Administrative Hearings. APPENDIX TO CASE NOS. 90-0862 and 90-0863 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONERS: Paragraphs 1 and 2 are accepted. With regard to paragraph 3, it is accepted that the interior areas of impoundment 22 are currently isolated from waters; however, there are indicia of jurisdiction based upon the plants verified and undisputedly present within the impoundment. Paragraph 4 is accepted but is irrelevant. Paragraph 5 is rejected as contrary to the weight of the credible evidence. With regard to paragraph 6 it is accepted that Mr. Ady was the only Department employee to visit the site prior to the issuance of the Intent to Issue and that he observed the invader species listed; the balance of the paragraph is rejected as irrelevant, argument, or contrary to the weight of the evidence. While the exact acreage figures of paragraph 7 are not accepted (conflicting evidence as to the exact calculations), that there are wetlands both within and outside the impoundment is accepted. See findings as the acreage calculated and accepted. The first sentence of paragraph 8 is accepted. The remainder of the paragraph is rejected as irrelevant. With the exception of the last sentence which is rejected as argument or unsupported by the record, paragraph 9 is accepted. The second paragraph within paragraph 9 is rejected as irrelevant. Paragraph 10 is rejected as repetitive. Paragraph 11 is accepted but is irrelevant. Paragraph 12 is accepted. Paragraph 13 is accepted but is irrelevant since the exotics are considered "invisible" for purposes of determining the characteristics of the wetlands. The first sentence of paragraph 14 is accepted. The balance of the paragraph is rejected as argument, irrelevant, or contrary to the weight of the evidence. Paragraph 15 is rejected as contrary to the weight of the evidence. Paragraph 16 is rejected as contrary to the weight of the evidence. Paragraph 17 is rejected as contrary to the weight of the evidence, unsupported by the record, or irrelevant. Paragraphs 18 and 19 are rejected as irrelevant. Paragraph 20 is rejected as unsupported by the record as to adverse environmental impacts on Petitioners' properties. Paragraph 21 is accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE COUNTY: Paragraphs 1 and 2 are accepted. Paragraph 3 is rejected as irrelevant. Paragraph 4 is accepted. Paragraph 5 is accepted but is irrelevant. Paragraph 6 is accepted but is, in part, irrelevant. Paragraph 7 is accepted. Paragraph 8 is accepted. Paragraph 9 is accepted. Paragraph 10 is accepted. Paragraphs 11 through 16 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraph 1 is accepted. Paragraph 2 is rejected as irrelevant except as to the findings of plant types documented within the impoundment. Paragraph 3 is accepted. Paragraph 4 is accepted. Paragraphs 5 through 13 are accepted. Paragraph 14 is rejected as recitation of testimony. Paragraphs 15 through 25 are accepted. The first sentence of paragraph 26 is accepted. The remainder of the paragraph is rejected as unsupported by the record. With regard to paragraph 27, it is accepted that the area within the impoundment must have been wetlands prior to the construction of the diked perimeter. In addition to the testimony of the experts, common sense would suggest that the area must have been conducive to wetlands indicator plant species since those types are still found within the impoundment. Paragraphs 28 through 35 are accepted. Paragraph 36 is rejected as repetitive. Paragraphs 37 through 40 are accepted. Paragraphs 41 and 42 are rejected as contrary to the weight of the evidence or argument. It is accepted that the mitigation proposed adequately offsets the loss of wetlands that will occur. COPIES FURNISHED: Douglas H. MacLaughlin Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 J. Alan Cox 105 West 5th Avenue Tallahassee, Florida 32302 Michael O'Haire Smith, O'Haire, Quinn & Garris P.O. Box 4375 Vero Beach, Florida 32964 David M. Rogero Blackwell & Walker, P.A. One Southeast Third Avenue Miami, Florida 33131 Dale H. Twachtmann,Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 =================================================================
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 issue for consideration in this case is whether the Respondent's license as a certified general contractor in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations contained herein, the Petitioner, Construction Industry Licensing Board was the state agency responsible for the licensing and regulation of construction contractors in this state. Respondent, Frank W. Miller, was licensed as a certified general contractor in Florida under License No. CG C036176. On June 2, 1988, Lots of Casey Key, Inc., a group of investors and contractors, including the Respondent, purchased the land in question located in Sarasota County, Florida. On June 26, 1988, the group hired an environmentalist from a list provided by the county, who evaluated the property with a view toward development. The developers also hired a surveyor and an engineer to get the proper permits for the development. They also published all required notices and acquired at least some of the required permits for the initial stage of the development. This consisted of the construction of a fishing pier extending from the property into Sarasota Bay. This permit was taken out by the Respondent. The Respondent and his associates also contacted Robert B. Patten, an environmental consultant, with a view toward having the eight acres in question rezoned so that houses could be built on it. After examining the property, however, Mr. Patten advised Respondent there were so many protected mangroves on the property, both state and local permits would be required and he, Patten, was not interested in the job. He suggested that Respondent hire an attorney to insure the proper permits were obtained. Respondent claims that in January of 1989, he took his site drawing for the proposed development to the county natural resources office headed by Mr. McCarthy, told him what was planned at the property, and secured his approval. Mr. McCarthy was not called as a witness, and all the appropriate permits were not offered, so at most it can be found that McCarthy approved the concept of the activity in principle. At approximately this same time, the environmentalist the group hired to insure compliance with the environmental requirements purportedly also assured them that the proposal was environmentally sound and properly permitted. It is accepted that he did. As a result, the group acquired the state and county permit for the pier and, in addition, a permit to clear the uplands. They also procured a permit from the Southwest Florida Water Management District and the appropriate agency governing the construction and installation of utilities. In addition, the Respondent procured a permit allowing construction of a boardwalk and a seawall. He did not, however, procure the appropriate permit to allow him to cut, trim, or top mangroves in the numbers shown here. The group hired Southern Landscaping to do all the land work under a contract which called for all mangrove trimming to be done in accordance with the Division of Natural Resources rules This company, which was the low bidder in the procurement process, was relied on to trim the mangroves in accordance with the law and before beginning work, showed how the trees would be trimmed. It appeared to Respondent at this time that the work was being and would be done properly. On March 10, 1989, Belinda S. Perry, an employee of the county's Natural Resources Department, was out on Casey Key and observed that at the Respondent's work site clearing work was being done. She questioned the permitability of this work. She also observed that the mangroves on the north side of the property had been improperly cut, and she asked her associate, Mr. McCarthy, to check it out. He did and thereafter, on March 14, 1989, Respondent came to the office with a copy of his state-issued permit. After analyzing the permit and comparing the work done with the terms thereof, Ms. Perry and Mr. McCarthy advised Respondent it appeared his work was in excess of the limits imposed by his permit and that they would have to notify state authorities and get back to him. At that time, Respondent was cooperative and indicated he wanted to get the proper authorization. As a result, Ms. Perry contacted Ms. Toledo, of the Department of Environmental Regulation, discussed the possible violation with her, and arranged to visit the site with her on March 20, 1989. When they did, Ms. Perry again observed the cutting on the North side of the property in addition to which there was a corridor which had been cut to the east (water) side of the property heading toward the bay. At that point, they contacted Mr. McClintock, the forester, who examined the Respondent's permit. When he saw it permitted only the relocation of 20 palm trees and made no mention of or gave no approval of cutting or trimming of mangroves, he authorized the issuance of a stop work order on March 20, 1989. Ms. Perry and Ms. Toledo, pursuant to the terms of that order, served a copy on Mr. Miller and advised him he was in violation of both state and county regulations and should discontinue the work at the site. Ms. Toledo recalls that when she visited the site on March 20, 1989, she observed much the same situation as described by Ms. Perry. She also recognizes that one of Respondent's permits allowed the moving of palms, and he also had one for the construction of a fishing pier. As a part of this second permit, Respondent was allowed to cut mangroves. Nonetheless, she noted on her visit that in the area to the left of the pathway, many more mangroves had been cut than were allowed by the permit. This cutting was in the form of trimming in excess of any exemption criteria outlined in Rule 17-27.060, F.A.C., (17- 321.060), which allows trimming by a property owner without a permit, but of no more than 25 % of the lateral branches. The red mangroves on the property had been topped which is totally prohibited, and the trimming of the remaining white and black mangroves was to an extent in excess of the permitted 25%. At that time, Mr. Miller indicated to Ms. Toledo that he was the general contractor in charge of the site, and the workers doing the actual trimming were operating under his direction. This is corroborated by the testimony of Mr. Boatright, one of the trimmers, who indicates much the same. At that time, in Ms. Toledo's opinion, Mr. Miller was uncooperative and aggressive and as a result, on March 31, 1989, she drafted a warning notice which was issued on April 3, 1989. On that latter date, Ms. Toledo again went to the site and saw that additional and different mangroves had been trimmed in excess of the exemption criteria mentioned above. Thereafter, on April 7, 1989, she had a telephone conversation with the Respondent during which she advised him that the Department of Environmental Regulation intended to file criminal and civil charges against Lots of Casey Key, Inc. because of the violations described. At that time, Respondent expressed his regret that the situation had happened. As a result of the visits by Ms. Toledo and Ms. Perry, in late March or early April, 1989, Steven T. Cooley, environmental prosecutor for the 15th Judicial Circuit of Florida, was notified through the Sarasota County Sheriff's Department and Division of Natural Resources that there was significant damage to a mangrove forest at Lots of Casey Key. Mr. Cooley conducted an extensive investigation into the matter and caused a collateral criminal investigation to be conducted as well, and as a result of these inquiries, decided to file criminal charges against Mr. Miller and a co-defendant, Mr. Burke. This decision was based on the investigation which revealed that the county's tree protection ordinance, Ordinance 83-44, which included mangroves among the protected species, had been violated. It appeared that Respondent and Mr. Burke had hired subcontractors who committed a significant cutting, (trimming, topping and stumping) of more than 2000 mature trees. The Respondent and Burke were contacted by code enforcement people, (Perry and Toledo), and advised to stop. Nonetheless, additional damage was done after the notice to stop and a Stop Order was thereafter issued. Respondent had a permit to cut mangroves in a corridor area out to the fishing pier, but the actual cutting far exceeded the terms of the permit. The first cutting was a thinning out of mangroves around Casey Key, which, in itself, was a violation, and even after the Respondent was informed he was in violation, he improperly cut more trees. Not all trees were cut down to the ground, but many of those which were illegally trimmed were trimmed to a point where the tree would ultimately die. This was verified by county tree experts. Mr. Cooley filed criminal charges against the Respondent rather than the actual workers who did the cutting because, in his opinion and as a result of his investigation, the workers were merely agents working under the direction of the Respondent. Mr. Miller originally pleaded Not Guilty to the charges against him but subsequently, on June 25, 1990, changed his plea to Guilty. At a sentencing hearing held in December, 1990, adjudication of guilt was withheld, and Mr. Miller was fined a total of $15,000.00; ordered to perform 500 hours of public service, and ordered to spend 10 weekends on the road gang. In addition to the criminal charges, a civil suit was filed by the county against Lots of Casey Key, Inc., to prevent additional cutting of mangroves. By stipulation, a temporary injunction was entered. Trial on the permanent injunction had not been held at time of hearing. According to Mr. McClintock, a sampling taken on March 22, 1989, after the stop work order was approved, showed approximately 2175 mangrove trees had been severely cut on the northern side of the property and between 75 and 100 cut down to the ground in the corridor on which the pathway to the fishing pier was to be constructed. This accounted for a total of 2275 trees. When he went back to the property on March 30, 1989, after the stop work order had been issued, McClintock observed that while cutting was no longer in progress, an additional cutting had taken place, and he counted approximately 78 additional trees which had been destroyed. He later verified that additional trees were cut in the corridor area as well. Taken together, a total of approximately 2350 trees were improperly cut in violation of the state and county codes protecting mangroves. This destruction is the largest in the recollection of Norman C. Easey, the Director of the county's forestry division, and it constituted a serious impact on what was then the largest single mangrove stand in the southern part of Sarasota County. Respondent does not deny that the trees were cut. He notes, however, that after Ms. Perry first came out and advised him of the possibility he was in violation, he agreed not to cut further and in fact, tried to cooperate. He met with his associates who encouraged him to nonetheless continue the cutting even though he advised against it. Ultimately he was able to convince them. An associate, Norman Sharrit, the architect for the project, recalls that Respondent spontaneously exclaimed to him that Burke and Jaffe, the other partners, directed the additional cutting after the stop work order was issued. Nonetheless, after securing his associates' agreement to suspend any cutting, Respondent attempted to contact the trimmers, Southern Landscaping, to advise them to stop work but claims he could never find anyone on site. In this claim, he is supported by Davis Baker, an adjacent retired homeowner, who, in observing the clearing process on a daily basis, noticed that the cutters kept very irregular hours and were gone as often as not. Respondent also claims he left word for the cutters to stop on the company's answering machine but the work continued. It is this additional work, after Respondent's efforts to get the work stopped, that constituted the additional cutting charged. Respondent also claims that the additional trees near the walkway were cut as activity beyond the scope of the contract which he had entered into with the landscape company. Mr. Miller also contends that the work was not done under his license because he was not an owner of Casey Key Estates. The owners of that company, the parent company for development, were Mr. Burke and Mr. Jaffe. He was, however, the Secretary of the corporation, but claims he did not have complete control as to who did what and where. He claims he was not a stockholder in the company and had no ownership in the operation. Under the terms of his agreement with the owners, he was to get a percentage of the profits when the development was completed. As of the date of the hearing, he has received nothing in the way of remuneration. Except for the claim that the work was not done under his license, it is so found. He also claims that in the instant case he was not acting as a contractor for the project. His reasoning here is not supported by the facts. His relationship with the other developers was based on the fact that he obtained the option to purchase the land; he was to put in the utilities; and he was to build the homes and construct the walk over to the beach and the seawall. He also was the one who obtained all permits and who entered into the contract for trimming with Southern Landscaping. It is found, therefore, that he was, in fact, the general contractor for this project and ultimately responsible for all actions taken under his certificate. Mr. Miller cites in his defense that as he understands the law, mangroves can be trimmed without a permit between October and March, up to 25% of the lateral growth, and in his opinion, the trimming did not constitute more than that allowable 25%. This is clearly not so, as evaluation of the Petitioner's photographs, taken near the time in question, which Respondent agrees fairly represents the site at the time, clearly indicates that more than 25% of the lateral growth of the trees' foliage was taken off. It should be noted, however, that a photograph taken some substantial time after the cutting shows that the trimmed area is filling in again and the trees are not dead. This does not mean there was no damage, however. Mr. Easely, the Director of Forestry, whose expertise indicates a reliable opinion, opined that the mangroves are not as healthy as they should be. Once cut, they are going through a period of shock and are branching out from reserve buds developed by the tree for emergency situations such as fire and damage. The tree, once in this condition, has a much shorter life span. Though new trees may, and probably will come in, there is a loss of habitat in the a rea as a result of the trimming, of some 30 to 40 years. In any case, minimization of damage does not excuse or justify prohibited trimming.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Frank W. Miller's certification as a General contractor be suspended for three years, with the execution of the last two years of the suspension stayed under such terms and conditions as prescribed by the Construction Industry Licensing Board, and that he pay an administrative fine of $5,000.00. RECOMMENDED this 8th day of April, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1991. COPIES FURNISHED: Robert B. Jurand, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Frank W. Miller 20 Dover Drive Englewood, Florida 34223 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact Petitioner, Department of Health and Rehabilitative Services, is the regulatory agency charged with regulating the terminate and pest control industry in Florida. Respondent, Howard R. Kempton, is a certified operator licensed by the Petitioner. During times material, Respondent was a certified pest control operator for Pinellas Termite and Pest Control, Inc., in St. Petersburg. On July 24, 1991, Respondent was the certified operator in charge of fumigation of a residential structure at 3318 Shamrock in Tampa, Florida. In carrying out the fumigation, Respondent used the fumigant product VIKANE (sulfuryl fluoride). Respondent did not provide Petitioner a notice of the intended fumigation at 3318 Shamrock in Tampa within 24 hours in advance of the fumigation as is required by the Petitioner's rules and the labeling provisions for the product VIKANE. In addition, Petitioner's inspector, William Bargen, who has been employed by Petitioner in the office of entomology in excess of 28 years, visited the residence on the day of the fumigation and the tarpaulin that Respondent used was not air tight as practicable in that it contained numerous slits and tears that was not properly sealed at the ground level encompassing the structure. The safety warning signs fastened to the exterior of the tarpaulin were not printed in indelible ink or paint and the emergency phone numbers for the certified operator were not legible. As a result of the improper seals, the fumigant VIKANE was escaping from the tarpaulin while the gas was being pumped into the structure at 3318 Shamrock on July 24, 1991. Inspector Bargen took photos of the fumigation tent as it was in place at 3318 Shamrock on the day in question, July 24, 1991 and it depicts the condition of the tarpaulin and the improper signs that were utilized by Respondent on that jobsite. The owner of the property called Petitioner's office and Inspector Bargen visited the site on July 24, 1991. It is undisputed that Respondent alerted the homeowner to call Petitioner who in turn dispatched Inspector Bargen to the site based on instructions from Respondent that he alert the Department of the on-going problems that he was having with his employer, Pinellas Termite and Pest Control, Inc. Respondent admits that the manner in which the fumigation occurred on July 24, 1991 at 3318 Shamrock in Tampa was improperly performed. However, Respondent offers that he did as much as he could under the circumstances to comply with the Petitioner's rules and regulations and the labelling instructions for the fumigant VIKANE as set forth by the manufacturer. Respondent related numerous occurrences whereby he attempted to convey the importance of carrying out the proper instructions to his employer without success. As a result, Respondent sought other employment and is no longer employed as a certified operator with Pinellas Pest Control. Finally, while Respondent recognized that a certified operator is responsible for the overall operations of the fumigation projects that he is in charge of, he relates that instructions were given to office personnel at Pinellas Pest Control to advise the Petitioner of the 24 hour notice prior to the date of fumigation and he was under the impression that timely notice was forwarded to Petitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order imposing an administrative fine against Respondent in the amount of $250.00 payable to Petitioner within 30 days of the entry of the Petitioner's final order.1/ DONE and ENTERED this 29 day of May, 1992, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29 day of May, 1992.
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.
The Issue The Issue in this matter is whether ditching activities of the Palm Peach County Mosquito Control Authority were the sole cause of the introduction of mangroves onto the Petitioner's property. If they were, her property is excluded from the dredge and fill jurisdiction of the Department of Environmental Regulation under section 403.817(2), Florida Statutes (1985). The petition for formal proceedings not only disputed the Department's jurisdiction but also alleged the Petitioner was entitled to a dredge and fill permit because the application met statutory and rule requirements. The contention that the application meets the substantial requirements of the statutes and rules was withdrawn by the Petitioner during the final hearing.
Findings Of Fact On January 29, 1985, Petitioner applied for a dredge and fill permit to fill approximately 1.76 acres of property in the city of Ocean Ridge, Florida, immediately adjacent to the Intracoastal Waterway. On August 18, 1986, the Department of Environmental Regulation issued notice of its intent to deny the permit. Petitioner requested a formal hearing on the intention to deny the permit. The Petitioner, Lucinda MacKinley, owns several lots on a barrier island in southern Palm Beach County within the city of Ocean Ridge, lots 12, 13, 14, 15 and 16 in block 2 of the Boynton Beach Park subdivision as recorded in the public records of Palm Beach County, Florida. These 5 170' x 100' lots are bordered on the north by Coconut Lane, on the west by the Intracoastal Waterway, and on the south by residential lots fronting on Ocean Avenue and on the east by other lots. The 1.76 acres are presently vegetated with red and black mangroves. This vegetation would ordinarily subject the property to the dredge and permitting jurisdiction of the Department of Environmental Regulation. The Palm Beach County Mosquito Control Authority began digging ditches on the Petitioner's property in 1954 and has maintained the ditches since that time. Ditches were re-dug as they filled in with material and eroded over time or as the land changed. The ditches were dug by the Authority in low salt marshes and mangrove swamps along the Intracoastal Waterway. By connecting these to the Intracoastal Waterway low lying land can be drained, or tidal action and the introduction of fish and minnows into the area will control mosquitoes. There is now a mosquito control ditch on the southern end of the property which connects to the Intracoastal Waterway in an east-west direction. At high tide, however, water flows over the entire shoreline of the property, inundating the land. When Petitioner originally purchased the property with her husband in 1958, much of the property was dry and the vegetation included Australian pinetrees in the higher areas, especially along the Intracoastal Waterway. The most persuasive evidence of the historic vegetation on the site was the testimony of John G. Labie, which was based upon stereoscopic interpretation of aerial photographs of the property taken from the Florida Department of Transportation Topographic Office. In 1946, there was a bulkhead running along the Intracoastal Waterway which ended to the north of the MacKinley property. The north end of that bulkhead was not tied into the land, however, and there was a wet area between the bulkhead and the land which then provided a foothold for a small stand of young mangroves. There were mosquito control ditches north of the property running east to west. At that time there were Australian pine trees growing on the western border of the property on the Intracoastal Waterway. Seven years later in 1953, mangroves had encroached eastward along the mosquito control ditches north of the MacKinley property. At the northern terminus of the bulkhead, there was a much larger mangrove encroachment than there had been in 1946 and more water behind the bulkhead. The mangroves had also grown south along the bulkhead to the extent that the predominant vegetation on the MacKinley property was mangroves. The earliest ditching on the property shown by records of the Mosquito Control Authority occurred in 1954. There was photographic evidence of mosquito ditching completed some time before a 1956 aerial photograph, because there were ditches but no visible spoil piles from ditching in the photo. The mangroves on the property were 15-18 feet high in 1956. By 1964, the bulkhead along the Intracoastal Waterway had been removed and the shoreline of the Waterway had eroded. That shoreline had a white, sandy beach, indicating that vegetation had not had time to establish itself since the removal of the bulkhead. There was also indication of mosquito ditching having recently been done on the property, but the ditches were not dug in the same places as they had been dug in 1956. Mangroves were still the predominant vegetation. By 1968, the bulkhead which had been removed had not been replaced, and there was further erosion of the property bordering the Intracoastal Waterway. The beach was no longer white and sandy because the vegetation had taken hold. Mangroves on the property remained the predominant vegetation. The mosquito ditching, which began on the property in 1954, was not the sole cause for the introduction of mangroves onto the property. There were mangroves in 1946 in the area, just north of the MacKinley property, which reached the property by 1953. This photographic evidence is consistent with the more general testimony of Allen Steiner, the assistant director of the Palm Beach County Mosquito Control Authority, that while mosquito control ditches can cause the introduction of mangroves onto property by seeds coming up in the ditches, in most areas, the mangrove swamps were there before the Mosquito Control Authority began its ditching activities (Tr. 189). The property is covered with red and black mangroves today, and is subject to tidal inundation by the Intracoastal Waterway to the extent that there are only a few Australian pine trees left on the highest areas of the property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the application of Ms. Lucinda MacKinley for exemption from the dredge and fill permitting requirements of the Department of Environmental Regulation on the grounds that her land has become subject to regulation by the Department solely due to insect control activities DENIED. DONE AND ORDERED this 20th day of July, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 20th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3619 The following constitute my rulings on the p'oposed findings of the parties are required by Section 120.59(2), Florida Statutes (1985). Rulings on Proposed Findindgs of Fact Submitted by Petitioner Covered in Findings of Fact 1 and 3. Generally covered in Findings of Fact 4 and 12, insofar as they indicate there are mosquito control ditches on the property now. The remainder is rejected as unnecessary. Generally covered in Finding of Fact 4. Rejected as unecessary. The testimony that in 1958 the property was totally vegetated with Australian pinetrees is rejected due to the more persuasive photographic evidence. While there were some Australian pinetrees on the higher points of he property, it was already substantially invaded with mangroves. Rejected because the Palm Beach County Mosquito Control Authority's activities did not introduce mangroves onto the property. They were more likely introduced by the intrusion of mangroves behind the bulkhead to the north of the property. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected because the testimony of Mr Labie concerning he vegetation on the property from 1946, forward, is the more persuasive. The indication that the property was within an area characterized as grasslands in 1927 on a government topographic map is rejected. Those, symbols are meant to characterize much larger areas than Petitioner's 1.7 acres and therefore has little persuasive value. Moreover, the photographic interpretations of Mr. Labie were more persuasive. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary, because at high tide the property is inundated along the entire shoreline, not just because of the mosquito control ditch. Rejected because the testimony of Mr. Labie o vegetation was more persuasive. To the extent necessary, covered in Finding of Fact 4. Rejected as unnecessary. Rejected as unnecessary. Rejected because the testimony of Mr. Labie was more presuasive on the source of the mangoves. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Testimony concerning the bulkhead is covered in Findings of Fact 7-10. Rejected as unnecessary. Covered in Findings of Fact 7-11. Covered in Findings of Fact 7 and 8. Rejected because the mangroves from the north did not arrive at the MacKinley property through mosquito control ditches but through the foothold established because the bulkhead was not tied back to the land, permitting the intrusion of mangroves behind the bulkhead from north to south to the MacKinley property. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as inconsistent with the view of the evioence expressed in the Findings of Fact. Rulings on Proposed Findinos of Fact submitted by Respondent Covered in Findings of Fact 1 and 3. Covered in Finding of Fact 1. Covered in Finding of Fact 4. To the extent necessary, covered in Finding of Fact 3. Rejected as unnecessary. First sentence, rejected as unnecessary. Second sentence, covered in Finding of Fact 4. Rejected as unnecessary. Rejected as unnecessary. Covered in Finding of Fact 3. Rejected as unnecessary. Rejected as unnecessary. Covered in Findings of Fact 1-9. Rejected as unnecessary because the more likely method of transport was encroachment from the north, although floating seeds from the Boynton Beach inlet construction could have been a source of mangroves. Covered in Findings of Fact 7 and 8. Covered in Findings of Fact 9 and 10. The purpose of mosquito ditching is covered in Finding of Fact 4. The remainder of the proposal is rejected as unnecessary. Covered in Finding of Fact 12. COPIES FURNISHED: Terrell K. Arline, Esquire 325 Clematis Street Suite B West Palm Beach, Florida 33401 Karen A. Brodeen, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel E. Thompson, General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact At all times pertinent hereto, Joey Collins Pest Control of America, Inc. (Collins Pest Control) was subject to the regulatory provisions of Chapter 482, Florida Statutes, and the pertinent rules adopted by Petitioner, as a business entity licensed by Petitioner to engage in pest control in the State of Florida. At all times pertinent hereto, Eric C. Van De Ven was employed by Collins Pest Control as a pest control operator and was subject to the regulatory provisions of Chapter 482, Florida Statutes, and the pertinent rules adopted by Petitioner. On May 15, 1990, Mr. Van De Ven performed a termite inspection at the residence located at 8411 S.W. 84th Terrace, Miami, Florida, at the request of J. Raul Cosio and Maria F. Trabanco, in connection with their intended purchase of that residence. This work was performed in his capacity as an employee of Collins Pest Control. Mr. Van De Ven prepared, signed, and caused to be delivered to Mr. Cosio and Ms. Trabanco, a written inspection report pursuant to Section 482.226, Florida Statutes. This report was prepared on behalf of his employer, Collins Pest Control, on Collins Pest Control's letterhead. This report, states that visible evidence of Formosan termites was observed on the main beam above the pool deck, that live Formosan termites were observed on the main beam above the pool deck, and that there was visible evidence of damage by Formosan termites. The report also estimates that treating the premises by "tent and soil poisoning" would cost $1,525.00. The report did not include observable damage that had been caused by drywood termites. Mr. Van De Ven had observed this damage, but he did not note this damage in his report because the owner of the premises had been aware of the damage, the damaged area had been treated, and the area had been patched. Mr. Van De Ven recommended to Mr. Cosio and Ms. Trabanco that the owners of the premises should contact Truly Nolen, the company that had treated the premises for drywood termites, to determine whether Truly Nolen would pay for any additional treatment that may be necessary. Mr. Van De Ven erroneously identified a drywood termite as being a Formosan termite. There were no Formosan termites on the premises, and there was no condition that would have warranted the treatment recommended by Mr. Van De Ven. All damage that had been observed by Mr. Van De Ven had been caused by drywood termites. Mr. Van De Ven should have been able to distinguish between evidence of Formosan termites and evidence of drywood termites because of the physical differences between the two types of termites and because of the differences between the damage each type does to an infested area. Mr. Van De Ven was negligent in failing to distinguish between the two types of termites and in recommending the unnecessary treatment. There was no evidence that Mr. Van De Ven deliberately misled his customers or that he was trying to sell unnecessary services. There was no evidence that Mr. Cosio or Ms. Trabanco suffered any damages as a result of their dealings with Respondents. There was no evidence that either Respondent had been previously disciplined by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which: finds that Respondents Eric C. Van De Ven and Joey Collins Pest Control of America, Inc. have violated the provisions of Section 482.226(1), Florida Statutes, by performing the subject inspection in a negligent manner; further finds that said Respondents have violated the provisions of Rule 10D-55.1046(6), Florida Administrative Code, by recommending treatment for Formosan termites where there was no evidence of such infestation; and imposes an administrative fine in the amount of $250 against each Respondent. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of February, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1991. APPENDIX TO RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1, 2, and 10 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 3-9 are rejected as being subordinate to the findings made. The only post-hearing submittal submitted by Respondents was in the form of a letter addressed to the Hearing Officer filed January 28, 1991. This letter contained no proposed findings of fact. COPIES FURNISHED: Karen Miller, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401 Joey Collins Pest Control of America, Inc. 243 N.E. 5th Avenue Delray Beach, Florida 33483 Joseph A. Collins, III Owner Joey Collins Pest Control of America, Inc. 243 N.E. 5th Avenue Delray Beach, Florida 33483 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
