The Issue The issue for consideration in this matter is whether the Department should issue a Warning Letter to the Respondent because of his application of a pesticide in a client's home on September 16, 1994.
Findings Of Fact At all times pertinent to the issues herein, the Department of Agriculture was responsible for the registration, licensing and regulation of pest control applicators in Florida. In September, 1994, Crystal S. Tipton contacted the Respondent, Michael A. Kaeler, as the representative for Terminix International, and requested that he come to her home, located at 6253 Old Trail in New Port Richey, to spray for bugs and fleas. Mrs. Tipton had a contract with Terminix, dated July 19, 1994, which called for periodic applications, and this was the second visit under the plan. On September 16, 1994, Respondent came to the home in response to the call, arriving about 9:00 AM. At that time, Mrs. Tipton advised him that she had had a bad reaction from the July spraying. On September 16, 1994, Mrs. Tipton was in the house alone. Respondent started treating the house shortly after he arrived. Mrs. Tipton had told him not to spray her daughter's bedroom because of the reaction the child had had from the prior treatment. Mrs. Tipton remained in the house, cleaning, while Respondent applied the substance. At no time, she asserts, did Respondent instruct her to leave the house or give her any instructions except to tell her to wear shoes when she walked on the carpet. He did not tell her to stay off the carpet until it dried. According to Mrs. Tipton, while Respondent was applying the pesticide, on occasion she was in the same room with him, and she could smell the spray. At no time did he advise her to leave the room while he sprayed. Respondent also got behind the baseboards to spray, and put pesticide on the ground outside the house. He then left. According to Mrs. Tipton, the smell was worse this time than after the first spraying. Though she opened all the windows, even while Respondent was spraying, the smell remained for hours, and at 11:30 PM, the carpet was still damp, she claims. As she recalls it, the smell stayed in the house until the following day. After Mrs. Tipton realized there was a problem, she contacted several experts to come out and see what could be done. Her husband contacted Mr. Bowen, the Department's local representative, and told him what had happened, but no other complaint was filed. Mrs. Tipton called Terminix the Monday after the spraying to tell them that all the people in the house were sick. They did not respond promptly, so she had the carpets cleaned and a maid service in to clean the house, but even after that the smell was still present. Mrs. Tipton does not know what chemical was applied in her home by Respondent either in July or in September. She recalls only that in July Mr. Kaeler also told her to wear shoes on the damp carpet. On that occasion, the carpet was damp for three to four hours after spraying, but she does not know how much chemical was applied. During the September application, Mrs. Tipton remained in the family room and the kitchen while Mr. Kaeler was applying the substance throughout the house, and even when he was applying in the kitchen, which is tiled. Though he used a broadcast spray in those areas which were carpeted, including the living room, the dining room, the family room, the master bedroom, the halls, and the entrances to the children's bedrooms, he used a pin spray in the kitchen. Whereas the broadcast spray gives a wide application, the pin spray is exact and puts the pesticide in a very limited area. She had told him not to spray in the children's rooms, and claims she asked him not to use the same spray he had used in the earlier visit. Mrs. Tipton claims Mr. Kaeler did not tell her he had used the same spray but in a diluted strength or in a lesser volume. She claims he said he would not use the same spray and would not spray the daughter's bedroom. It would appear he did not spray the children's rooms, but there is no indication he used a different spray in September than in July. Mrs. Tipton claims the carpet remained damp far longer than it did during the July spraying and she thought this was unusual. When Mr. Bowen, the Department's entomologist inspector, was contacted by Mr. Tipton, he gave Mr. Tipton some advice on how to deal with the problem. The children's doctor also called Bowen about what Bowen had told Mr. Tipton. When Mr. Tipton finally suggested that the pesticide had been applied improperly, Bowen opened his investigation. He took Mrs. Tipton's statement and got the doctor's comments. He also took a statement from Mr. Kaeler and his records for the July and September applications, as well as copies of the labels from the containers of the pesticide applied. The Department requires that all products be used consistent with the labeling instructions and the standards of the Department and the Environmental Protection Agency, (EPA). From his investigation, Mr. Bowen determined that the Respondent used Dursban L.O. Mr. Bowen is familiar with that product and determined that the Respondent applied the product at a concentrated rate in a broadcast pattern over the carpets. This was appropriate, but if it were done while people other than the applicator were in the structure, he contend this was specifically prohibited by the label. In his opinion, Mr. Kaeler's actions constitute a violation of the statute and the Department's rule. None of the information received by Mr. Bowen from the family doctor or the Health Department related to the propriety of Respondent's application of the product. These contacts related only to the health of the children. The only reference to possibly improper application is found in Mrs. Tipton's undated statement. The label on the Dursban L.O. product indicates, "Other than the applicator, treated areas should be vacated during application. Do not permit humans or pets to contact treated surfaces until the spray has dried." Mr. Bowen did not contact the manufacturer to see what "areas" being treated meant. He feels that the interpretation is up to his agency, and he agrees with the agency determination that the entire residence must be vacated. No direct evidence was presented to show the agency determination, however, and it appears the determination of propriety of application was left up to Mr. Bowen. A broadcast spray is used for large areas. A pin stream is used for cracks and crevices. A pin stream application does not, in Mr. Bowen's opinion, require vacation of the structure. The broadcast spray for flea control does, however, as he sees it. If the manufacturer were to hold that application did not require evacuation of the entire structure, but only the room being treated, then in that case, Mr. Bowen would conclude that the application by Mr. Kaeler was appropriate. As he recalls, Mr. Kaeler used one half gallon of 1/4 percent solution for an 1800 square foot application. This was a fairly light treatment. Mr. Bowen has, himself, applied Dursban L.O. at this rate. Mr. Kaeler has been employed by Terminix since November, 1993 as a service technician. He underwent 30 days of a training program in identification of insects and application techniques and requirements of pesticides, including Dursban, with the company. He is not licensed. Terminix holds the license under which he operates. Mr. Kaeler admits that when he treated the Tipton house on September 16, 1994, Mrs. Tipton complained of her daughter's head aches resulting from the prior application and asked him not to spray the child's bedroom, but she did not object to the use of this pesticide. He broadcast sprayed all the carpeted area up to the entry to the girls' bedrooms. In all the girls' rooms there were clothes, books and toys on the floor so he did not spray inside. In the kitchen, which, he claims, was the only location where Mrs. Tipton was present while he sprayed, he used the pin stream technique. The entire spraying took about 30 minutes. Mr. Kaeler also sprayed the windows and doors from the outside and the garage, using the pin stream spray in all those locations. The one half gallon of solution was used to do all the spraying at the Tipton's house that day, both inside and out. Mr. Kaeler believes that the solution he sprayed on the carpeted areas on September 16, 1994 should have dried in no more than an hour. He confirms that Mrs. Tipton opened the windows and turned on the fans while he was still spraying. He had told her to do this the first time. As Mr. Kaeler understands it, Terminix's policy is that occupants of property being broadcast sprayed for insects should stay off the carpet being sprayed but need not vacate the structure. Dr. Ellen Thoms, an entomologist working for the manufacturer of the chemical in issue, indicates that the label instructions on containers of Dursban L.O. were intended by the company to mean that the term "area" where the chemical is being applied by broadcast spray includes not the entire structure but the immediate area of the application because of the possibility of spraying the chemical on someone. The danger is in contact with the substance through the skin or through oral ingestion, not in the odor or the fumes. In Dr. Thoms' opinion, Mr. Kaeler's application was consistent with the terms of the label, which uses the term "should" rather than the term "must". The drying time for carpet sprayed with Dursban L.O. by broadcast spray is effected by the thickness of the carpet and the relative humidity in the sprayed area. Since a greater amount of applied substance dried more quickly in the high humidity of July, in Dr. Thoms' opinion it is unlikely a smaller amount applied in September would take more than 14 hours to dry. She does not know what the climate factors were that day, however. Dr. Mangold, a technical specialist for Terminix, and an entomologist certified in all four categories of pest control, reviewed all the material evidence in this case and heard the testimony given at hearing. He has concluded that what Mr. Kaeler did was conservatively to apply a very diluted spray, usually applied at a rate of one gallon per 1,600 square feet. His one half gallon application for an 1,800 square foot house, plus outside, is an appropriate maintenance application. In Dr. Mangold's opinion, Mr. Kaeler's application in September, 1994 was consistent with the label requirements in amount, concentration and percent, and with the requirement that all other persons be out of the area being treated. He does not believe, in light of what was shown, it could have taken in excess of fourteen hours for this application to dry. In his opinion, drying should have taken between twenty minutes and an hour, and he can see no possible explanation for it having taken as long as Mrs. Tipton claims. Dr. Mangold defines the term "area treated" as being the immediate area being treated - an eighteen inch swath and some adjacent area, to-wit: the area being contacted by the spray. Mr. Lemont, a fully certified entomologist-consultant reviewed the file on this case and heard the testimony given at hearing. In his opinion, the term, "area treated" includes the contact area, not the entire structure. He believes Mr. Kaeler performed consistently with the label instructions and there was no violation. The words, "should" and "may", are interpreted in the trade as permissive and non-enforceable. Stronger words, such as "shall" and "must", are directive and enforceable. Mr. Lemont agrees that the application by Mr. Kaeler was a light application. Drying depends on humidity, but often an application dries before the operator leaves. He cannot believe this application would have taken more than two to three hours, even under the most adverse atmospheric conditions. Certainly, it would not have taken more than fourteen hours. In Lemont's opinion, the issue of how close an applicator can come to others while applying Dursban L.O. by broadcast spray is a judgement call. The issue is contact. Mrs. Tipton was not positive on the issue of Mr. Kaeler's being in the room with her, other than the kitchen, while applying the substance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT a Warning Letter not be issued to either Michael A. Kaeler or Terminix International Co., LP., as a result of Mr. Kaeler's application of Dursban L.O. at the Tipton residence in New Port Richey, Florida on September 16, 1994. RECOMMENDED this 24th day of July, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1995. COPIES FURNISHED: Robert G. Worley, Esquire Department of Agriculture Room 515, Mayo Building Tallahassee, Florida 32399-0800 James M. Nicholas, Esquire P.O. Box 814 Melbourne, Florida 32902 The Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level Tallahassee, Florida 32399-0350 Harry Hooper General Counsel Department of Agriculture Room 1302, The Capitol Tallahassee, Florida 32399-0800
The Issue The issues are whether Petitioner has proved that he is entitled to two exemptions from statewide environmental resource permitting: the mosquito control activities exemption set forth in Florida Administrative Code Rule 62-340.750 and the seawall construction exemption set forth in section 403.813(1)(i), Florida Statutes (2013).
Findings Of Fact The Request, the Property, and Canal Dredging The Request After filing the Request on September 10, 2013, Petitioner paid the filing fee on October 4, 2013. At this time, Respondent deemed the Request to be complete.3/ In addition to briefly describing the maintenance dredging of the ICW, the Request4/ describes the proposed activities as: Construction of approximately 950 feet of batter pile concrete seawall along [ICW] easement line. See drawing for location. Filling of property to approximate elevation 8.0 with offsite fill. Petitioner has since reduced the length of the proposed seawall from 950 feet to about 656 feet. He also testified that the seawall would require 20-30 feet of supportive fill equal in height to, and landward of, the seawall. The record lacks a drawing locating the proposed seawall, but it contains a diagram of a typical profile of the proposed seawall, which is Respondent Exhibit 23. The cap elevation would be six feet "NGVD." Text accompanying the diagram promises the use of turbidity barriers and best management practices during construction. Finally, the Request describes the following activities in wetlands or other surface waters: Because the wetlands are a result of the Mosquito Control District's previous activities and do not affect any other wetlands or surface waters, would make the entire property effectively upland. Dredging. The spoil material is to be removed and deposited on a self-contained, upland spoil site which will prevent the escape of the spoil material into the waters of the state. Seawall. Construction of seawall will not violate any existing water quality standards, impede navigation, or affect flood control. The Property Petitioner does not own the property to which the Request relates, but has entered into a contract to purchase the property. Among the conditions of the contract is the issuance of permits from various governmental agencies, including Respondent. The property consists of unimproved land on the west bank of the ICW south of Boynton Beach in Palm Beach County. As described in the contract, the property is "Palm Beach County Property Control Numbers 08-43-45-34-01-0030, 08-43-45-34-01- 0040, and 08-43-45-33-00-000-1390. Described as all of lots 3 and 4 of Rousseau's Subdivision, . . . [c]ontaining approximately 7.58 acres."5/ The plat map of Rousseau's Subdivision, which is Respondent Exhibit 21, was originally recorded on June 22, 1901 (1901 plat map),6/ and further describes the eight platted lots on the map as located within the west half of the northwest quarter of Section 34, Township 45 South, Range 43 East, and situated west of the Florida Coast Line Canal and Transportation Company (FCLCTC) canal. Property Control Numbers 08-43-45-34-01-0030 and 08-43- 45-34-01-0040 are lots 3 and 4 on the 1901 plat map, less the easterly 202 feet of both lots, which is encumbered by a right- of-way easement owned by FIND for the ICW.7/ References to the "Property" will include all of lots 3 and 4, not merely the portions of these lots west of the FIND right-of-way easement, even though, for reasons explained in the preceding endnote, the sales contract is for the conveyance of only the unencumbered portion of the Property. References to the Property will also include the site prior to platting in 1901. Property Control Number 08-43-45-33-00-000-1390 is an "access parcel" measuring 30-feet by 180-feet that connects the Property with U.S. Route 1 to the west. References to the Property will not include this access parcel. The eight lots depicted on the 1901 plat map feature roughly equal frontage on the canal. The northern lot line of each lot is longer than the southern lot line of each lot. The northwest corner of the northernmost lot is the northwest corner of the above-mentioned Section 34. As shown on the plat map,8/ the Property's north lot line runs 552.7 feet, and its south lot line runs 450.5 feet, for a total of about 7.1 acres. The north and south lot lines of each of the eight lots terminate 35 feet west of the centerline of the FCLCTC canal, which is depicted as 70 feet wide. Conveyances by reference to the 1901 plat map would thus not grant any interest, by instrument, to the 35 feet west of the centerline of the FCLCTC canal. Canal Dredging The FCLCTC canal was excavated in the 1890s. Consistent with its depiction on the 1901 plat, the design width of the FCLCTC canal was 70 feet, at least in Palm Beach County, according to the legal description of the land acquired for the FCLCTC canal, which is Petitioner Exhibit 3. However, at least in the vicinity of the Property, the FCLCTC canal did not generally achieve its design width. According to Petitioner's geologist and wetlands delineator, Michael Czerwinski, the FCLCTC canal was dredged to form the ICW in the 1940s. This may be true. Pre-dredging surveying and engineering materials, which are discussed immediately below, were prepared in the early 1930s, so the dredging did not occur earlier than the mid 1930s. Other evidence suggests that the initial dredging had taken place by May 1941.9/ Mr. Czerwinski testified that the initial dredging of the ICW out of the FCLCTC canal resulted in a waterway that was 125 feet wide. He also testified that a second dredging of the ICW, also in the 1940s, widened the waterway to 300 feet. This testimony is credited in part. As discussed below, the ICW was initially dredged a little wider than 125 feet, at least at the Property. Later dredging of the ICW produced a 300-foot width in the vicinity of the Property, but not until sometime between 1964 and 2008.10/ At least in the vicinity of the Property, at some point between 1947 and 1964, the ICW was dredged to 200 feet wide. Mr. Czerwinski's testimony can be credited that this intermediate widening took place in the 1940s, although it would have had to have taken place after 1947 due to an aerial photograph described below.11/ A January 1931 survey prepared for FIND, which is Respondent Exhibit 22, shows that the FCLCTC canal was about 40-50 feet wide along the northern three-quarters of the Property, but equaled or slightly exceeded its design width of 70 feet along the southern one-quarter of the Property. The survey indicates that this additional width along the southern one- quarter of the Property was achieved by additional dredging along the east bank of the canal.12/ The 1931 FIND survey locates FIND's 300-foot right-of- way easement,13/ including the above-described 202 feet of this easement encumbering about three acres of the eastern end of the Property. The remaining 28 feet of the 300-foot right-of-way easement14/ encumbers the western end of property along the east bank of the ICW. The east property line of the Property has remained about 656 feet, regardless of whether it was measured along the water's edge prior to the dredging of the ICW or along FIND's right-of-way easement. Obviously, the 202-foot easement reduced the depth of the unencumbered Property to about 350 feet along the north lot line and 248 feet along the south lot line. The record does not contain any as-built drawings of the initial dredging of the ICW. However, in preparation for the excavation, the U.S. Engineer Office prepared and revised typical cross-sections on January 19, 1932, and May 25, 1933, respectively (1932/1933 Proposed ICW Cross-Sections), which is Petitioner Exhibit 9. The 1932/1933 Proposed ICW Cross-Sections details conditions at widely spaced profiles. Profile 1500 is about 1000 feet south of the Property and, as discussed below, characteristic of the conditions at the Property.15/ This profile shows a design width at maximum water depth of about 100 feet and a design width at water's surface of about 160 feet.16/ After accounting for the 70 feet of FCLCTC canal, about 90 feet would have had to have been dredged to achieve a total width of 160 feet. Subsequent aerial photography, as discussed immediately below, shows that all later dredging was located on the west bank of the ICW, so the initial dredging took up the 28 feet of the east bank subject to the FIND right-of-way easement,17/ leaving the remaining 62 feet of width to be dredged out of the Property.18/ This initial dredging of the ICW had taken place by the time of the above-mentioned 1947 aerial photograph, which is Respondent Exhibit 13.l, that shows the width of the ICW at the Property as approximately 150-160 feet. Between 1947 and 1964, FIND widened the ICW at the Property to 200 feet, as reflected by a 1964 aerial photograph, which is Respondent Exhibit 13.p.19/ A comparison of the 1947 and 1964 aerial photographs confirms that the widening to 200 feet was achieved by dredging the ICW's west bank, not east bank. Harmonizing the aerial photographs with Mr. Czerwinski's testimony places the widening to 200 feet in the late 1940s. After the removal of a total of 100 feet of the Property in two widening projects over ten to fifteen years ending in the late 1940s, a final widening project, between 1964 and 2008, removed another 100 feet of the Property, as reflected in 2011 aerial photography, such as Respondent Exhibit 13.r. The cumulative effect of these three widening projects, which removed 200 feet of the Property, reduced the depth of the Property by almost half and brought the canal waters 200 feet closer to what remained of the Property. Depictions of the Property and Surrounding Area A. 1800s The Property has been depicted on maps, charts, surveys, aerial photographs, and hand-drawn diagrams over a period of nearly 170 years. Certain of these depictions facilitate determinations, over time, of the extent to which the Property may have been wetlands or uplands. However, the weight to be assigned to particular depictions depends on a number of factors, including the scale of the depiction and its purpose. The earliest depiction of the Property is a quad sheet prepared in 1845 and revised in 1872 by the U.S. Surveyor General's Office (1845/1872 map), which is Respondent Exhibit 5. Covering all of Township 45 South, Range 43 East, west of the Atlantic Ocean, this map captures 24 sections--or 24 square miles. The scale of the map is quite small; the Property is no larger on this map than the size of one of the letters in "Atlantic Ocean." However, the main purpose of this map is to facilitate surveying, and the map documents the meandering of major waterbodies, the location of uplands in the form of "spruce pine scrub," and the location of wetlands in the forms of "inundated marsh" and "marsh." The 1845/1872 map depicts the southern terminus of Lake Worth about one and one-half miles north of the Property. The three vegetative communities identified in the preceding paragraph are generally depicted in long, north-south bands: the western band is "inundated marsh" (encompassing a small peninsula of "pineland and palmetto" in the southwest corner of the map), the central band is "spruce pine scrub," and the eastern band is "marsh." As reflected better in a blowup of this map, which is Respondent Exhibit 13.d, the boundary between the "spruce pine scrub" and "marsh" bisects the Property, so that the eastern part of the Property is depicted as wetlands, and the western part of the Property is depicted as uplands. The next depiction of the Property is the same 1845 quad sheet overlaid by an 1884 U.S. Coast and Geodetic Survey (USCGS) map (1845/1884 map), which is Respondent Exhibit 29. The scale of this map is the same as the previous one, so it is very small. The main purpose of the 1845/1884 map is the same as the 1845/1872 map; the most visible addition to the older map is the location of the corners and midpoints of surveying sections. But the 1845/1884 map also revises the older map by relocating the boundary between the marsh and the spruce pine scrub in the vicinity of the Property. The newer map moves this boundary several hundred feet to the west, so that the Property now lies entirely within the marsh. It is possible that, in the ensuing 12 years, wetlands spread several hundred feet to the west of where the older map had found them, but the record is silent as to major land alterations or storms during this time period. It is also possible that the older map located the wetlands/uplands boundary too far to the east, and the newer map corrected this error. But it is unlikely that the older map depicted the wetlands/uplands boundary accurately, and the newer map changed the boundary so as to depict it inaccurately. Whether documenting changes on the ground or correcting the work of the older map, the newer map is entitled to greater weight in its depiction of wetlands occupying the entire Property prior to the dredging of the FCLCTC canal. B. 1920s and 1930s The next depiction of the Property derives from aerial photography taken on February 27, 1927, which would be in the dry season. Working from these aerial photographs, in 1930, the USCGS published a vegetative map, which is Petitioner Exhibit 7. Among the purposes of this 1930 map are wetlands/uplands delineations, but this map unfortunately lacks a legend to explain the meaning of the many vegetative communities that it depicts. Additionally, the small scale of the map makes it difficult to read the symbols assigned to the Property.20/ This 1930 map is thus of no use in determining whether wetlands occupied the Property at that time. The next depiction of the Property is the 1932/1933 Proposed ICW Cross-Sections, which has been discussed above in connection with canal dredging. As already noted, the 1932/1933 Proposed ICW Cross-Sections displays numbered profiles of the proposed excavated channel following widening. Less than 200 feet south of the southeast corner of the Property is Profile 1510. As already noted, roughly 1000 feet south of the southeast corner of the Property is Profile 1500. About one-half mile north of the northeast corner of the Property is Profile 1550. Profiles 1500 and 1550 receive more detailed treatments elsewhere in the exhibit. Profile 1500 depicts the material to be excavated on the west side of the ICW as "mud." Profile 1550 depicts the material to be excavated on the west side of the ICW as "mud and sand." Profile 1500 is a better illustration of pre-excavation conditions at the Property's eastern edge partly because Profile 1500 is closer to the Property than Profile 1550. Additionally, another series of 1932 cross-sections, which is the second page of Petitioner Exhibit 9, reveal that the shape of the area to be excavated at Profile 1510, which is immediately south of the southeast corner of the Property, is almost identical to the shape of the area to be excavated at Profile 1500 and substantially different from the shape of the area to be excavated at Profile 1550. This too suggests that Profile 1500 is the better comparable. The notation of mud at Profile 1500 therefore suggests the existence of wet conditions on the eastern end of the Property. A USCGS map published in 1937 depicts the Property based on surveying done in 1930 and 1935. This small-scale map, which is Petitioner Exhibit 11, is a bathymetric chart of interior navigable waters. Referring to the canal by its new designation as the ICW, the 1937 map, which depicts marsh, but not other types of wetlands, does not indicate the presence of marsh on the Property. Because this map is primarily a navigational chart, rather than a map of vegetative communities, it is impossible to assign it much weight in determining whether the Property was occupied by wetlands or uplands at the time. 1940s to Present Maps A USCGS chart published in 1943 of the same area depicted by the 1937 USCGS chart is almost identical to the earlier chart. For the same reasons that applied to the 1937 USCGS chart, the 1943 USCGS chart, which is Petitioner Exhibit 12, is also of little use in determining whether the Property was occupied by wetlands or uplands at the time. The Property is depicted in somewhat larger scale on a USCGS quad map published in 1945, which is Petitioner Exhibit 13. The map, which depicts land cover primarily in terms of whether it is vegetated, indicates that all of the parcels on the west side of the ICW in Section 34 had been cleared of vegetation except for the Property. Although this 1945 quad generally indicates only whether areas are vegetated, it uses two symbols to indicate, in certain areas, the type of vegetation: one symbol indicates marsh and one symbol is unclear, possibly indicating mangrove. The Property bears neither symbol, but this fact is of little importance because the primary purpose of the 1945 quad map was to indicate the vegetated versus cleared areas, not to delineate wetlands.21/ However, the 1945 quad map reliably reports that the Property is entirely below the five-foot contour, which runs in a north-south direction between U.S. Route 1 and the ICW. South of Lake Worth, the ICW occupies a topographic depression between elevations as great as 35 feet west of U.S. Route 1 and spot elevations as great as 10 feet between the ICW and the Atlantic Ocean. Unaffected by dredging, the location of this five-foot contour illustrates the same slough-like feature south of Lake Worth that was depicted on the 1845/1884 map. The Property's location within this long basin is consistent with wet conditions that would support wetlands. 2. Field Notes of County Mosquito Control Department Field notes of the Palm Beach County Mosquito Control Department from the early 1940s to the late 1960s (Field Notes) provide additional information about the Property.22/ Field Notes, which is Respondent Exhibit 8, contains large-scale, hand- drawn diagrams with carefully prepared measurements. The purpose of Field Notes was to document field work done by a crew, but detailed observations were routinely recorded. The oldest notes pertaining to the Property are dated May 6, 1941, which is the end of the dry season. At this time, the parcels abutting the Property to the north and south were plant nurseries and may have been since at least 1930.23/ Respondent Exhibit 8, page 54. (Fifteen years later, Field Notes identifies these nurseries as Held's Nursery to the north and Merkle's Nursery to the south. Id. at 10. For ease of reference, this recommended order will refer to these parcels by these names at this earlier point in time.) As of 1941, Field Notes documents a dike running along the entire canal frontage of Held's Nursery. The dike was four feet tall at the base and six feet tall at the top. Id. at 54- About 470 feet north of the boundary between Held's Nursery and the Property, Field Notes indicates the presence of an existing ditch that was five feet wide and three feet deep; because it had good circulation, no work was done at that time. Id. at 54. Field Notes indicates another ditch with the same dimensions along the boundary between Held's Nursery and the Property; because it had good circulation, no work was done at that time. Id. at 55. The only other notes for Held's Nursery state that workers filled holes throughout the parcel, suggesting that the removal of in-ground nursery stock had left unfilled holes. Id. at 54. For 1941, Field Notes does not indicate any ditches on the Property, but contains two notations: "elderberries & other wild growth" and "fairly high ground." Id. at 55. Elderberries occur on wetlands and uplands, so this observation is not useful. The "fairly high ground" comment is discussed immediately below. Continuing south, for 1941, Field Notes depicts another ditch at the boundary between the Property and Merkle's Nursery. The ditch runs from the canal to a point about 430 feet west of the canal. From west to east, the ditch is three feet wide and one foot deep, then four feet wide and eighteen inches deep, and, in the final 100 feet to the canal edge, four feet wide and three feet deep. The only other note for Merkle's Nursery is that holes were filled. Id. at 56. The diagrams on pages 54-56 are linked by north-south stations located at 100-foot intervals along the canal. These stations are drawn roughly to scale. The diagram on page 56 also contains three east-west stations, each referring to the distance west from the edge of the canal: 125 feet, 367 feet, and 522 feet. These stations are not drawn to scale. The notation of "fairly high ground" spans the stations that are 367 and 522 feet west of the canal; the comment occurs at a point on the diagram that would be about 200 feet south of the north property line. It is not entirely clear whether this comment is placed on the diagram at the location where the high ground was encountered, or whether it was centered in the space on the page on which the comment was written. The lack of east- west scaling is unsettling. However, the notations and observations in Field Notes appear to have been carefully prepared, so it is more likely than not that the "fairly high ground" comment is written where the crew encountered fairly high ground relative to the east-west stations on the adjoining page of Field Notes. Because the east-west stations obviously do not run from the western limit of the FIND right-of-way easement, fixing the location of the "fairly high ground" observation requires knowledge of the width of the canal in May 1941.24/ The diagrams identify the canal as the "East Coast Canal," which is another name for the FCLCTC canal. But this reference does not help determine whether the FCLCTC canal had already been widened into the ICW. This is an obsolete reference; as noted in the 1937 USCGS map four years earlier, the proper name of the canal was the ICW, regardless of whether the initial widening had not yet taken place. There is no doubt that, at all times, proceeding from east to west, an elevation gain occurred at the property line separating the Property from the parcel to the west. The location of the "fairly high ground" comment would be at this property line, if the first 60 feet of the encumbered Property had already been dredged by May 1941.25/ It makes sense for the "fairly high ground" comment to be located where other evidence establishes higher elevations, so it is found that the dredging of the FCLCTC canal into the ICW had taken place by May 1941. In May to July 1956, Field Notes indicates that the County work crew cleared ditches on the Property, Held's Nursery to the north, and Merkle's Nursery to the south. Id. at 10. These notes include a detailed diagram of the network of ditches on the Property and the two nursery parcels. From north to south, there is a 628-foot long east-west ditch on Held's Nursery that appears to be the northerly ditch shown in the above-described May 1941 diagram, but the long east- west ditch at the boundary between Held's Nursery and the Property is not shown in the diagram. The 628-foot long ditch runs from the ICW almost to U.S. Route 1, so it spans the platted lot plus nearly all of the parcel adjoining the platted lot to the west. Near the boundary of Held's Nursery and the Property is a 139-foot east-west ditch that runs toward the ICW from the boundary of the Held's Nursery parcel with the adjoining parcel to the west, but stops at about the mid-point of the Held's Nursery parcel. Three 455-foot long north-south ditches connect the two east-west ditches. The western ditch runs along the property line separating Held's Nursery from the parcel to the west. The central ditch runs about 40 feet to the east of this ditch, and the eastern ditch runs about 105 feet to the east of the center ditch.26/ The eastern ditch is about 300 feet west of the ICW. The sole connection to the ICW is thus provided by the long east-west ditch that appears to have been in place for at least 15 years. Although the diagram does not so indicate, this ditch likely drains west to east into the ICW. This parcel had been used as a plant nursery since at least 1941, and it had been used as a plant nursery or citrus grove since 1930.27/ The land behind the dike was evidently dry enough to grow in-ground nursery stock, which presumably could not survive inundation by tidal waters. Fifteen years later, although the dike is omitted from the diagram and thus may no longer be present, the parcel was still used as a plant nursery, and this use presumably still required drainage into the ICW, rather than flooding from the ICW. The diagram likewise fails to indicate the direction of flow of the three north-south ditches. The only other features on the diagram for Held's Nursery are at the property line dividing Held's Nursery from the Property. From U.S. Route 1 almost to the ICW is a shell road, which likely interrupts drainage, but, at a point just east of the property line dividing Held's Nursery from the parcel to the west, a symbol indicates a culvert, which would have permitted stormwater to pass under the shell road. As confirmed by subsequent aerial photography discussed below,28/ the culvert passed stormwater from Held's Nursery to the Property, which has been vacant since its platting in 1901. The northern half of the Property has an elaborate network of ditches. The only significant east-west ditch runs about 500 feet through the center of the Property, linking the ICW to a point about in the middle of the parcel to the west of the Property; about 186 feet of this ditch is in the parcel to the west. Four north-south ditches drain into this long central ditch. The longest is about 207 feet and runs from the above- mentioned culvert. Eighty-one feet east of this ditch is a 100-foot ditch that terminates south of the shell road dividing Held's Nursery from the Property. Twenty-two feet east of this ditch is a 170-foot ditch that terminates at the shell road, and 22 feet east of this ditch is another 170-foot ditch that also terminates at the shell road. The only ditch in the southern half of the Property is slightly offset from the 207-foot north- south ditch and runs 100 feet along the property line dividing the Property from the parcel to the west. At the property line dividing the Property from Merkle's Nursery is another shell road. Along this boundary, about in the middle, is a pump station on the Property, but it is unconnected to the ditch network, and it is impossible to determine the purpose of the pump. The diagram does not show a culvert in this shell road. The diagram indicates one major east-west ditch on Merkle's Nursery totaling about 450 feet, connecting to the ICW, and terminating near U.S. Route 1. This ditch is in the middle of Merkle's Nursery. Along the north side of Merkle's Nursery is a 190-foot ditch running from the ICW to a point just east of the west property line of the platted lot. Two ditches averaging 110 feet run into the longer east-west ditch; the east ditch terminates at the 190-foot ditch. Field Notes does not reveal who constructed the ditches on the Property between 1941 and 1956. But, as Petitioner contends, it is a fair inference that they were dug by the County work crew. The Property was undeveloped wetlands, so there is little reason for the owner to try to drain the Property. Nor is there any reason for the owner of Held's Nursery to install on the Property a network of ditches downstream of the culvert. The only party with any interest in the drainage in the area was the County in its effort to control mosquitoes by overdraining wet land. But two other contentions of Respondent connected to Field Notes fail. First, as discussed above, Field Notes fails to prove that any portion of the Property was uplands. Second, Field Notes fails to prove that the ditches on the Property converted uplands to wetlands, or that the County constructed and maintained the ditches on the Property to control mosquitoes through flooding or impoundment, rather than drainage of standing water into the ICW. 3. Aerial Photography: 1940s-1960s From the 1940s, aerial photography of the Property became more routine, but problems in resolution sometimes prevent using the aerial photographs to determine the vegetative communities on the Property. Aerial photographs taken in 1940 suggest the presence of herbaceous vegetation throughout the Property with some woody vegetation at the western end of the Property. But the poor resolution of this photography prevents any finding of whether the depicted vegetation was indicative of wetlands or uplands on the Property. In March 1947, an aerial photograph, which is Petitioner Exhibit 18 and Respondent Exhibit 14, provides much better resolution. To the west of the Property is scrubby habitat, which features sandy soil. This area drains across the Property and into the ICW. An herbaceous salt marsh is more clearly visible on the Property. This photograph reveals wetlands on the Property where the Held's Nursery ditch flows through the culvert. The 1947 aerial photograph thus confirms that the Property was receiving runoff from at least two directions: the north and the west. Mr. Czerwinski testified that he found evidence of mangroves starting to take hold of the eastern end of the Property. This testimony is credited, although there is some dispute on this point. There is no dispute that two aerial photographs taken in 1953 reveal that mangroves have established themselves on the eastern half of the Property. The mangroves are dense and appear to be flourishing. By 1964, an aerial photograph shows that the mangroves have extended over the eastern two-thirds of the Property. Current Conditions The Property currently hosts a robust mangrove forest with red mangroves transitioning to black mangroves, progressing from east to west. At low tide, seagrasses emerge, interspersed among the mangroves. Some elderberry occur at the western end of the Property, which is free of nuisance exotic vegetation. The predominant soil is Kesson mucky sand, tidal classification. At low tide, the groundwater, which, rising and falling with the tide, maintains an elevation at least equal to the tidal waters of the nearby ICW and is within 6-8 inches of grade at the western end of the Property and at or above grade over the remainder of the Property. At high tide, the Property is inundated. The ICW is a class III water. According to LIDAR data from 2007-08, the average elevation of the Property is one foot NAVD88. The LIDAR data confirms a vestige of the old central ditch running from near the west property line to the ICW, evidently capturing stormwater from a depression, possibly a small stormwater retention facility, alongside U.S. Route 1. At present, this depression hydrates the mangroves by conveying freshwater from west to east and tidal water from east to west, depending, of course, on the tides and stormwater flows. The LIDAR data also confirms an abrupt loss of elevation just inside the north, west, and south property lines of the Property. Over relatively short distances, elevations drop as much as seven feet as one enters the Property from these adjoining parcels. The historic elevation of the Property is implicitly addressed in a letter sent to Petitioner dated November 20, 2013, from Rod A. Maddox, Chief, Bureau of Survey and Mapping, Division of State Lands. The letter states: "Our records indicate that the [ICW] was dredged from uplands at the subject site. Therefore, we recommend the proprietary requirements that would normally apply to state owned lands not apply to this site." By email dated November 26, 2013, to Petitioner, Chief Maddox clarified that the meaning of "uplands" in his letter is not the meaning assigned to uplands by the regulatory requirements of SWERP. As Chief Maddox used the term, "uplands" means only that the dredged site was above mean high water. Respondent's Geographer IV of its Survey and Mapping Section, Robert Schaffer, testified that the 1932/1933 Proposed ICW Cross-Sections identifies seven elevations for the Property along the west bank.29/ These elevations range from 3.3 feet to 5.3 feet above mean low water. According to the 1945 USCGS quad map, the average tidal range in the area was approximately three feet, so Chief Maddox was right, by the smallest of margins: none of the seven elevations was below mean high water, although the minimum freeboard at the canal's edge at mean high tide was less than four inches. Mr. Schaffer also determined that the average of these seven elevations along the west bank is about the same as the average 2007-08 LIDAR elevation of 1.0 foot NAVD88. Mr. Schaffer roughly averaged the seven elevations at 4.0 feet above mean low water. The actual average calculated by adding the seven values and dividing by 7 is 4.3 feet above mean low water. Mean low water was -1.2 feet NGVD29, so an elevation of 4.0 feet above mean low water would be 2.8 feet NGVD29, and an elevation of 4.3 feet above mean low water would be 3.1 feet NGVD29. In Palm Beach County, NAVD88 is about 1.5 feet lower than NGVD29, so the average of the west bank elevations was about 1.3 feet, according to Mr. Shaffer's average, or 1.6 feet NAVD88, according to the actual average. Thus, in the early 1930s, the west bank was about six inches higher than the average elevation of the entire unencumbered Property in 2007-08. Analysis Mosquito Control Activities Exemption Property Was Not Uplands Prior to Ditching The greater weight of the evidence establishes that the Property was wetlands from the earliest records. Originally a freshwater marsh, probably consisting of sawgrass, the Property evolved into a saltwater marsh due to the dredging of the FCLCTC canal and perhaps the opening of the Boynton Inlet. The opening of the inlet definitely facilitated the transport of the necessary seed material to allow the saltwater marsh to evolve into a mangrove forest. The major sources of hydration before the dredging of the FCLCTC canal were the slough-like depression south of Lake Worth that the Property occupied and stormwater runoff from the west. In the 1940s, the major sources of hydration included stormwater runoff from the west, but also tidal waters diverted by the dike on Held's Nursery and groundwater effects from the removal of 100 feet of the Property and the relocation of now 200-foot wide ICW 100 feet closer to what remained of the Property. By the mid 1950s, but possibly also as of the late 1940s, the major drivers of hydrology included all of those set forth in the preceding sentence, except possibly the dike, and two more: stormwater runoff through the culvert separating Held's Nursery from the Property and the central ditch. Although, as noted above, the effect of the central ditch at present is to convey stormwater from the west and tidal waters from the east, its effect 60 years ago presumably served its intended purpose: overdrain the Property and effectively tend to make it drier. At the very least, though, these supplemental drivers of hydrology dispel any likelihood that, originally wetlands, the Property may have reverted to uplands at some point after the dredging of the FCLCTC canal and prior to the digging of the central ditch. 2. Even if Property Had Been Uplands Prior to Ditching, Petitioner Failed to Prove that Ditching Converted Property to Wetlands Claiming that the Property was uplands, Petitioner argued that the County's mosquito control activities--in the form of building ditches on the Property--converted the uplands to wetlands. The findings that the Property was originally and continuously wetlands dispose of this contention, but, even if Petitioner had proved that the Property was uplands immediately before the construction of the central ditch, he failed to prove that the central ditch, which was the sole connection to the ICW, resulted in the inundation of the Property by tidal waters and the conversion of the Property from uplands to wetlands. In contrast to the wetlands determinations, for which ample data is available and little analysis is necessary, the complexity of hydrological functions and the inattention to these functions in the record preclude any finding as to exactly how the Property may have become wetter over the years. The Property is very wet today, possibly wetter than it has been in the past, but Petitioner has failed to prove that the central ditch is the predominant driver of the hydrology of the Property today or was in the period immediately preceding the arrival of the mangroves on the Property in the late 1940s. Petitioner proved the County dug the ditches on the Property between 1941 and 1956. The mangroves colonized the Property in the late 1940s and early 1950s. Ignoring the possibility that the mangroves preceded the central ditch, Petitioner's proof pretty much stops right here. Petitioner never offered any analysis of how the central ditch could have raised water levels on the Property or extended the periods of relatively high waters on the Property. This would have been a complicated undertaking due to the presence of other drivers of hydrology. Among other things, Petitioner would have had to explain how the central ditch, immediately upon its construction, failed of its intended purpose, which was to overdrain the Property. Originally, the Property was wet due to its location in the long slough south of Lake Worth and stormwater flows from the west. After the dredging of the ICW to a 200-foot width, by the late 1940s, the Property was wet due to the groundwater effect of the removal of 100 feet of the Property and relocation of the canal waters 100 feet closer to the remainder of the unencumbered Property, stormwater flows from the west, and tidal waters diverted by the Held's Nursery dike. By the mid 1950s, the dike may have been removed, but stormwater flows from the west and the groundwater effect of the twice-widened canal continued to hydrate the Property. By this point, and possibly as far back as the late 1940s, two more factors needed to be accounted for: stormwater flows from the north through the culvert and--Petitioner's driver of choice--the central ditch. Today, the vestige of the central ditch appears to perform one of the functions suggested by Petitioner: conveying tidal water onto the Property at high tide. But it appears still capable of conveying stormwater from the north and west across the Property and into the ICW, canal water levels permitting. In doing so, the ditch now may flush the mangroves with cycles of freshwater and saltwater and transport nutrients to the mangroves. But, even today, other major drivers of hydrology are at work. These include stormwater contributions from the west, which now includes great expanses of impervious surface replacing the nurseries that were present decades earlier and an apparent retention facility along U.S. Route 1; the above-described groundwater effects, reinforced further by the widening of the ICW by another 100 feet, all out of the Property; and even the construction of surrounding seawalls, effectively replacing the dike along Held's Nursery 70 years ago. It would have been a daunting task to assign values to these various drivers of hydrology over various points in time; perhaps this is why Petitioner did not undertake it. But ultimately Petitioner fails for two reasons: 1) even if the central ditch were present when the mangroves appeared in the late 1940s and early 1950s, so were many other drivers of hydrology, and there is absolutely no reason to doubt that, initially at least, the central ditch tended to make the Property drier, not wetter; and 2) even today, the central ditch is not the sole or even predominant driver of the hydrology of the Property. 3. Even if Property Had Been Uplands Prior to Ditching and Ditching Had Converted Property to Wetlands, Petitioner Failed to Prove that Ditching Converted Entire Property to Wetlands Petitioner's proof falls short in another important respect. Even if the Property had been uplands up to the point when the County constructed the central ditch and even if the central ditch, alone, introduced tidal waters onto the Property, Petitioner never proved that the tidal waters overtopped the central ditch and other ditches connected to the central ditch by sufficient volumes and for sufficient periods, if not permanently, to convert the entire Property from uplands to wetlands. Absent such proof, the mosquito control activities exemption would extend no farther than the footprint of the ditches--an exemption that would be of no practical use. Petitioner failed to provide detailed evidence concerning the central ditch, such as historic slopes and profiles; tidal flows at the Property; or the relationship between the central ditch and tidal flows. Thus, Petitioner failed to explain the process by which the canal water supposedly escaped the central ditch to inundate the entire Property. The role that Petitioner assigns to the central ditch would necessitate major erosion of the Property. But the evidence of such erosion is completely missing from the record.30/ During a timeframe in which aerial photographs of the Property were becoming more common, no photograph documents the scarification of the Property or the movement of substantial volumes of soil off the Property and into the ICW, both of which would have accompanied the process that Petitioner contends took place. Given the force necessary to transport soil particles in the water column--even the much stronger tidal forces at the Boynton Inlet are unable to move the sediment out of the inlet-- if Petitioner's contention were correct, large deposits of eroded sediments would have piled up in the ICW alongside the Property, eventually shoaling the channel. Yet, no such event ever took place. Seawall Construction Exemption Artificially Created Waterway As stated above, the Property was wetlands prior to the dredging of the FCLCTC canal. Although the eastern end of the Property was above mean high water at the time of the 1932/1933 Proposed ICW Cross-Sections, its lowest frontage elevation was above mean high water by less than four inches, and neither the range of frontage elevations nor the average elevation of the Property precludes the existence of wetlands. As discussed in the Conclusions of Law, because the ICW was dredged from wetlands on the encumbered Property, the ICW at this location is not an "artificially created waterway." If an "artificially created waterway" were more broadly defined to include waterways artificially created out of uplands and artificially created--or altered--out of wetlands, Petitioner still would not qualify for the seawall construction exemption because the greater weight of the evidence establishes that Petitioner has proposed to construct the seawall outside of the ICW. Most likely, Petitioner's proposed seawall would join the ends of the existing seawalls to the north and south of the Property. If so, the seawall would be mostly within the unencumbered Property and, at most, at the southern terminus, on the line dividing the unencumbered Property from the encumbered Property. In the absence of proof that FIND overdredged the ICW past the western limit of its 300-foot right-of-way easement, the proposed seawall would not be "in" the "artificially created waterway" of the ICW.31/ Seeming to endorse this location of the proposed seawall, Petitioner's proposed recommended order states that the proposed seawall would be constructed "along" the ICW. For reasons that are unclear, Respondent has assumed that the construction of the proposed seawall would be "in" the ICW, as revealed by Respondent's October 2013 letter and Respondent's proposed recommended order, which refers to construction of the proposed seawall "in" the ICW. This assumption ignores the fact that a conveyance of the property described in the sales contract would be limited to the unencumbered Property (plus the access parcel). Any proposal to construct the seawall in the ICW would thus require the permission of FIND32/ and the third-party owner of the encumbered Property--a highly contingent prospect that defeats Respondent's assumption that the proposed construction of the seawall would be in the ICW. 2. Water Quality and Flood Control The record is undeveloped as to water quality and flooding impacts. Even if the proposed seawall were located in an artificially created waterway, Petitioner has not provided reasonable assurance that the construction of the seawall would not violate existing water quality standards--specifically, turbidity and dissolved oxygen. Controlling turbidity by trapping sediments and maintaining dissolved oxygen in the water column, the mangroves require tidal flushing, but the seawall would impede tidal waters from inundating the Property. It is Petitioner's responsibility to show how, under these circumstances, the proposed construction of the seawall would not violate existing water quality standards. Consistent with Respondent's refusal to verify a de minimis exemption, it is impossible to infer an insubstantial effect on the mangroves and, thus, water quality by the construction of the seawall and addition of 20-30 feet of supportive fill behind the seawall. Likewise, Petitioner has not provided reasonable assurance that the construction of the seawall would not affect flood control. Probably after the adjoining nurseries were redeveloped to support more intense uses, both parcels received several feet of fill. The record does not reveal the extent to which these adjoining parcels retain their stormwater onsite. The construction of the proposed seawall with 20-30 feet of supportive fill would likely impound any surface waters entering the Property from the north, west, and south, raising a sufficient risk of offsite flooding to require analysis. Again, it is Petitioner's responsibility to show how, under these circumstances, the proposed construction of the seawall would not affect flood control.
Recommendation It is RECOMMENDED that the South Florida Water Management District enter a final order declining Petitioner's request to verify the mosquito control activities exemption and the seawall construction exemption. DONE AND ENTERED this 16th day of May, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2014.
The Issue The issues in this case are whether Respondent, James Bartley, violated Section 482.091(1), Florida Statutes (2007), as alleged in Petitioner’s Amended Administrative Complaint issued by Petitioner, the Department of Agriculture and Consumer Services, on October 31, 2007, and, if so, what disciplinary action should be taken against his Florida pest control certified operator’s license.
Findings Of Fact Rudy L. Benvin was employed as a pest control employee by Diligent Environmental Services, Inc. (hereinafter referred to as “DESI”), on February 15, 2007. While DESI was the “licensee” for which Mr. Benvin was employed, the evidence failed to prove who the certified operator in charge (hereinafter referred to as the “Certified Operator”) was upon Mr. Benvin’s employment. Clearly, Mr. Bartley was not the Certified Operator when Mr. Benvin was employed or during the 30-day period thereafter. DESI failed to apply for a pest control identification card for Mr. Benvin upon his employment, during the 30 days after his employment, or at any time that Mr. Benvin was employed by DESI. Respondent, James Bartley, became the Certified Operator of DESI on April 12, 2007. Mr. Bartley was employed as the DESI Certified Operator until May 24, 2007. Mr. Benvin was still in the employee of DESI on April 12, 2007, and continued as an employee of DESI during the period that Mr. Bartley served as the DESI Certified Operator. Because Mr. Benvin was already “employed” by DESI at the time Mr. Bartley became Certified Operator and had been continuously so employed since February 15, 2007, Mr. Bartley could not have, simply by becoming the DESI Certified Operator, “employed” Mr. Benvin. On or about August 14, 2007, an application for an identification card was filed by Mr. Bartley with Petitioner, the Department of Agriculture and Consumer Services (hereinafter referred to as the “Department”). The name of the employing company reported on the application by Mr. Bartley was incorrect. Mr. Benvin continued his employment with DESI until sometime during the week of September 9, 2007. In settlement of DOAH Case No. 07-5417, DESI agreed that it had violated Section 482.091(1), Florida Statutes, by failing to apply for a pest control identification card for Mr. Benvin “within 30 days after employment of [Mr. Benvin] ”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services dismissing the Amended Administrative Complaint against James Bartley. DONE AND ENTERED this 8th day of February, 2008, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2008. COPIES FURNISHED: Howard J. Hochman, Esquire Law Offices of Howard J. Hochman 7695 Southwest 104th Street, Suite 210 Miami, Florida 33156 David W. Young, Esquire Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Findings Of Fact Evidence adduced by the Petitioner in the form of the testimony of F. Robert DuChanois, an entomologist and supervisor in charge of commercial pest control, Office of Entomology, Department of Health and Rehabilitative Services, as well as Exhibit 2, established that on July 1, 1979, the Respondent made an inspection of an apartment house in Hallandale, Florida, to determine whether suspicions by the occupants of drywood termite infestations were well-founded. As delineated in Exhibit 2, the Respondent's report of his inspection, positive evidence was found in a number of places of termite infestation, which findings revealed that indeed the Respondent made a detailed professional investigation of the premises for such infestations. The evidence in the record also reveals (Exhibit 4) that the Respondent is not operating a pest control business, but is only performing consulting work for those property owners who request that he make inspections for termite and other wood-destroying pests. In any event, the Respondent, in the posthearing pleading he filed, has agreed to cease the activity objected to and which forms the basis of the Petitioner's charges. He has agreed to cease practicing consulting work in entomology henceforth.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law and the evidence in the record, it is, therefore, RECOMMENDED that the Petition in this cause filed by the Department of Health and Rehabilitative Services against Dr. A.C. Banerjee be DISMISSED and Case No. 80-2160 be hereby closed. DONE AND ENTERED this 10th day of August, 1981, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1981. COPIES FURNISHED: Harold L. Braynon, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Ft. Lauderdale, Florida 33301 Dr. A. C. Banerjee 10891 N.W. 17th Manor Coral Springs Branch Pompano Beach, Florida 33065 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, vs. CASE NO. 80-2160 DR. A. C. BANERJEE, Respondent. /
Findings Of Fact At all times material hereto, Petitioner was, and is, a Florida certified pest control operator. Petitioner owns and operates Campbell's Pest Control, a firm licensed by the State of Florida for pest control purposes and doing business in Alachua, Florida. In his capacity as owner and operator of that firm, Petitioner supervises two cardholder employees. In the latter part of 1982, Petitioner received two letters from Respondent, one dated August 13, 1982, and the other September 7, 1982. Both of these letters contained notification to Petitioner of Respondent's contention that he had failed to comply with the requirements of Section 482.152, Florida Statutes, which provides as follows: A certified operator in charge of pest control operations of a licensee shall be a Florida resident whose primary occupation is in the structural pest control business, who is employed on a full-time basis by the licensee, and whose principal duty is the personal supervision of and participation in the pest control operations of the licensee as the same relate to the following: The selection of proper and correct chemicals for the particular pest control work to be performed. The safe and proper use of these pesticides. The correct concentration and formulation of pesticides used in all pest control work performed. The training of personnel in the proper and acceptable methods of pest control. The control measures and procedures used. The notification of the Department of Health and Rehabilitative Services within 24 hours of any knowledge of accidental human poisoning or death connected with pest control work performed on jobs he is supervising. Two memoranda were enclosed with the letter from Respondent dated September 7, 1982. The first of these was a legal memorandum from Respondent's counsel concerning an interpretation of Section 482.152, Florida Statutes, quoted above. This memorandum provided in pertinent part that: It is clear from a careful reading of Chapter 482 that the requirement concerning a fully qualified certified operator exists as a condition precedent to licensure because of the many dangers inherent in pest control activities. The interpretation placed on the language above quoted from Section 482.152, F.S. is that the certified operator's primary job should be that of a certified operator. Because of the many functions which are required to be performed by the certified operator, he should be on the job on a full-time basis or a nearly full-time basis for the licensee. It is obvious that the legislature, by using the language above described, intended to preclude 'certificate selling'. . . The other memorandum was dated February 23, 1978, and furnished to all commercial pest control licensees and certified operators, and concerned the subject of "renting" of pest control certificates. This memorandum provided in part that: It has come to the attention of this office that some licensees and certified operators are not in compliance with the provisions of Chapter 482.121 and 482.152, Florida Statutes, concerning the status and activities of a certified operator in charge of pest control activities of a licensee. * * * The intent and purpose of the provisions of the Pest Control Act . . . are to prevent such practices as certificate 'renting' or 'selling' under the pretense that the certified operator is in the [sic] charge of pest control activities of the licensee, when in fact he or she is not. The Office of Entomology will enforce the referenced provisions of chapter 482 F.S. as interpreted by legal counsel [in the January 25, 1977 memorandum] with regard to certificate 'renting'. Licensees and certified operators should examine their present arrangements with regard to this matter to determine if they are in compliance with the law. Violations could be grounds for suspension or revocation of licenses or certificates. Any licensee adversely affected would be entitled to apply for an emergency certificate upon loss of certified operator. By Administrative Complaint dated October 13, 1982, Petitioner was charged with a violation of Chapter 482, Florida Statutes: . . . in that you are presently employed on a full-time basis by the City of Gainesville as a firefighter and at the same time registered with the Department as an employee--identification cardholder and as a certified operator in charge of the pest control operations of Campbell's Pest Control . . . This constitutes a violation of Section 482.152, F.S., which requires, in part, that the primary occupation of a certified operator in charge of the pest control operations of a licensee shall be in the pest control business and that such certified operator be employed on a full-time basis by the licensee with the principal duty of personal supervision of and participation in the licensee's pest control operations as these operations relate to selection and safe, and correct use of pesticides, control measures and procedures used, and training of personnel; and a violation of section 482.121(1), F.S., which provides that no certified pest control operator shall allow his certificate to be used by any licensee to secure or keep a license unless such certified operator is in charge of the 'pest control activities of the licensee in the category or categories covered by his certificate and is a full-time employee of the licensee.
Findings Of Fact 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 Whether Respondent committed the violations set forth in the Administrative Complaint, as amended, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is an agency of the State of Florida charged with regulating the operation of the pest control industry pursuant to Section 482.032, Florida Statutes. At all times material to this case, Clifford Killingsworth was the owner and Certified Operator in Charge (COIC) of Killingsworth Environmental, Inc., d/b/a Environmental Security, a/k/a KEFL, Inc., a licensed pest control company in Cantonment, Florida. Counts 9 and 11 Counts 9 and 11 of the Administrative Complaint allege as follows: Count 9 During an inspection on July 11, 2003, the Department found that Killingsworth Environmental, Incorporated 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 11 During an inspection on July 11, 2003 the Department found that Killingsworth Environmental, Incorporated phone numbers terminated in an unlicensed location at 9100 Hamman Avenue. This is a violation of Chapter 5E-14.142(3)(b). Killingsworth Environmental, Inc., d/b/a Environmental Security, a/k/a KEFL (hereinafter KEFL), 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 Atlas Termite and Pest Control of Cantonment, Inc., are located at the same address. On July 11, 2003, the Department conducted an inspection of a company called Home Services Marketing and Management, LLC (hereinafter Home Services), which is located at 9100 Hamman Avenue in Pensacola. Clifford Killingsworth and Clinton Killingsworth2/ are the managers of Home Services. On March 26, 2002, KEFL entered into a Management and Marketing Agreement with Home Services, executed by Clifford Killingsworth on behalf of KEFL and by Clinton Killingsworth on behalf of Home Services. Since that agreement was signed, the telephone number for KEFL listed in the local telephone directory terminated at Home Services. Home Services also answers calls for Environmental Security of Okaloosa and Atlas Termite and Pest Control of Cantonment, Inc. Through their computer system and caller ID, the Home Services employee knows which company is being called and answers accordingly. Home Services employees do not make "cold calls" to new customers. They receive calls from existing customers. They contact customers with active accounts to set up renewals. They also contact homeowners whose homes were treated during construction and whose initial accounts were with the builder of the home. If a new customer calls, a Home Services employee answers the call, gets the contact information from the potential new client, and then calls the appropriate technician who would then call or visit the potential customer. The appropriate technician is generally determined by the geographic location of the caller. While a Home Services employee might send a preprinted contract to the technician to take to the job site or mail a contract to a customer, Home Services does not enter into any contract to perform pest control services. No pest control trucks or chemicals are stored at Home Services. Home Services also has a payment processing component. Home Services sends bills to pest control customers which instruct customers to make out the check to the appropriate pest control company, not to Home Services. Payments from customers for pest control services are deposited into the account of the appropriate pest control company. No evidence was presented that 9100 Hamman Avenue is an advertised permanent location of KEFL from which business was solicited, accepted, or conducted. After the July 11, 2003, inspection of Home Services, Clinton Killingsworth, Clifford Killingsworth's brother, took steps to get Home Services licensed as a pest control company. Clifford Killingsworth did this because it was his understanding that the Department took the position that Home Services was in the business of practicing pest control services. He employed his brother, Daniel Killingsworth, to be the required licensed person in charge, and contacted several insurance companies to obtain the required insurance. He had difficulty 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 10 Count 10 of the Administrative Complaint, as amended, reads as follows: During an inspection on July 16, 2003, the Department found that Killingsworth Environmental, Incorporated stored pesticides at an unlicensed business location at 1830 Galvez Road, Gulf Breeze, Florida, which is a violation of Chapter 5E- 14.142(5)(f) and (g), Florida Administrative Code. That in addition, the Respondent, Killingsworth Environmental, Inc., regularly parked trucks containing pesticide at that location during nighttime hours, published in the 2002-2003 Bell South Telephone Directory under Pest Control Services in the yellow pages of the telephone directory, a listing for "Environmental Security", a name under which it did business, and its employees received by facsimile daily work assignments that were sent to them at that location. That the Respondent, Killingsworth Environmental, Inc operated an unlicensed business location at 1830 Galvez Road, Gulf Breeze, Florida, in violation of Section 482.071(2)(a), Florida Statutes.[3/] The property located at 1830 Galvez Drive is surrounded by a locked fence and contains a structure. The structure is not enclosed. Both KEFL and Environmental Security of Okaloosa park trucks there overnight. The Department conducted an inspection of 1830 Galvez Drive on July 16, 2003. When the inspectors arrived, the gate to the property was locked and the trucks were locked. They entered the property when pest control employees arrived. On the day of the inspection, the Department's inspectors found unmixed chemicals in the trucks. Clifford Killingsworth acknowledges that at the time of the inspection, company trucks parked at the Galvez Drive location overnight and pesticides were in the locked trucks. Company records or contracts are not stored at the Galvez Drive location. No customer contact takes place at or from the Galvez Drive location. The Pest Control Business License Application Form contains a space in which the licensee must respond to the following: "Designate location where pest control records and contracts will be kept and the exact location address for storage of chemicals if other than licensed business location." The applications for business license for KEFL d/b/a Environmental Security do not reference 1830 Galvez Road as a location where storage of chemicals occurs. KEFL does not have a license for operating a business at this location. The yellow pages for the Pensacola area contains a listing in red ink for "Environmental Security, Inc." It lists an address of 4141 Pine Forest Road with the telephone number 473-1060. There is another reference to "Environmental Security" in black ink in smaller type which lists the address 1830 Galvez Drive with the number 916-7731.4/ Clifford Killingsworth arranged to have a phone line for a fax machine to be located in a trailer at the Galvez Drive location. The purpose of installing a fax line at Galvez Drive was for employees to receive daily schedule assignments. The 916-7731 number listed in the yellow pages is the number of the fax machine. Clifford Killingsworth did not request a listing for the number of the fax machine. However, the telephone company listed it in the phone book. Clinton Killingsworth has requested the local telephone company remove the erroneous listing a number of times. Count 13 Count 13 of the Administrative Complaint reads as follows: During an inspection on July 11, 2003 the Department found that pesticide was kept at 4141 Pine Forest Road in a container other than application equipment and not accurately identified through the use of permanent, durable label or tag, showing the common or chemical name(s) of principal active ingredients(s), which is a violation of Chapter 5E-14.106(4), Florida Administrative Code. On July 11, 2003, the Department conducted an inspection of KEFL's business location, 4141 Pine Forest Road. One of the inspectors that day was Bruce Nicely, a regional supervisor of the Department's Bureau of Entomology and Pest Control. He was accompanied by Paul Matola of the Department, who did not testify at the hearing. During the inspection, Clifford Killingsworth opened a storage trailer for inspection. Mr. Killingsworth described the trailer as a jug disposal trailer, where empty jugs and drums were stored until they could be recycled or disposed of properly. At the back of the trailer, Mr. Nicely found a two- and-one-half gallon unmarked jug inside a five-gallon bucket. An unidentified substance was inside the jug. Mr. Nicely took a sample of the substance inside the jug, pouring it directly into an eight-ounce sample jar. He labeled the jar "PHY number 07110346060107" and placed the sample in a sealed sample collection bag which was put in a cooler of ice. When completing the pesticide collection report, he wrote "pesticide screen" in a blank after the words, "List active ingredient(s) and/or compounds to analyze for." Mr. Nicely then gave the sample to Steven Dwinnel, at 4:35 p.m. on July 11, 2003.5/ Mr. Dwinnel relinquished the sample to Mike Page at 8:03 p.m. on July 11, 2003. At the time, Mr. Page was the director of the Department's pesticide laboratory. Mr. Page has an undergraduate degree in chemistry and a graduate degree in toxicology and pharmacology with over 16 years of experience as an analytical chemist. When Mr. Page received the pesticide collection report, the word "Lindane" also appeared on the report along with the request for a pesticide screen. It is not clear who wrote the word "Lindane" on the collection report or when the word "Lindane" was written. According to Mr. Page, a pesticide screen includes testing for Lindane. He therefore concluded that whether or not the word "Lindane" was included in the request for analysis made no difference in the lab's testing. An analysis of the sample was performed revealing that the sample contained a concentration of 34.2 percent Lindane and 46 parts per million of Chlorophyrifos. Mr. Page described the amount of Chlorophyrifos compared to the Lindane as a minuscule amount. Both Lindane and Chlorophyrifos are pesticides. The undersigned is persuaded that the Department appropriately maintained the chain of custody of the sample regardless of whether or not the word "Lindane" appeared on the collection report. The fact that "Lindane" appeared on the collection report sometime after Mr. Nicely relinquished it and the sample is of no consequence as to the validity of the laboratory testing of the sample. Clifford Killingsworth is uncertain as to whether his company ever used Lindane but is certain that they have not used it in recent years as it has been "off the market" since approximately 1999. Two other pest control companies, Environmental Security of Okaloosa, Inc. and Atlas Termite and Pest Control of Cantonment, Inc., also use the trailer from which the sample was taken, to store empty pesticide containers. Clifford Killingsworth does not know if the jug from which the sample was taken belonged to his company. Although he was aware that his company stored empty pesticide jugs in the trailer, he was unaware that a jug in the trailer contained an unidentified substance. When asked under cross-examination what he would have done had he been aware of a jug containing an unidentified substance, he answered that he probably would have called the landfill to see when the next "roundup" would be as that is when the landfill takes "unidentifieds."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that a final order be entered assessing a fine against Respondents in the amount of $2,600. 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 Petitioner has challenged a series of emergency rules promulgated by the Respondent to address the discovery of Mediterranean fruit flies (medflies) in parts of central Florida. Specifically, Petitioner contends that 5BER 97-3, 5BER 97-4, 5BER 97-6, and 5BER 97-7 are invalid to the extent that they make any geographical area subject to emergency rule for more than 90 days. The issue for determination, therefore, is whether the emergency rules are invalid as claimed.
Findings Of Fact Petitioner Rick Martinez resides and operates an organic farming business in Tampa, Hillsborough County, Florida. As stipulated, Mr. Martinez is substantially affected by the emergency rules at issue. The Mediterranean fruit fly (medfly) is considered one of the world's most serious pests affecting fruits and vegetables. It has a host range of over 260 different fruits and vegetables, 80 of which are grown in the state of Florida. It is an exotic pest of grave concern to commercial agricultural interests as well as to home gardeners. In the adult stage, the female medfly deposits or lays eggs in ripe fruit. The eggs develop into larva or maggots that feed on pulp of the interior portion of fruit, causing damage and secondary pathogens to enter the fruit and causing the fruit to rot and fall from the tree. The medfly reproduces very rapidly. It can complete a life-cycle in as little as 18 days under optimum conditions; in Florida and in recent months, it completed its life-cycle in approximately 23-25 days. As a winged insect the medfly can move several miles from its point of introduction in search of a host to deposit eggs or in search of a food source. Over a lifetime, the female can lay hundreds or thousands of eggs. The medfly enters an area via the traveling public or on commercial fruits and vegetables. Host plants or fruits can include plants or fruits that are not grown in Florida. The Florida Department of Agriculture and Consumer Services (FDACS) maintains a detection program, including 13,000 traps to detect the presence of the medfly. Under certain circumstances for every medfly detected, there can be hundreds of others in the area. Because of the biology of the medfly, mere control is difficult to achieve. Eradication, or complete elimination of the pest from a particular area, is the goal when the medfly is detected. To further this goal, Florida cooperates with the U.S. Department of Agriculture and other states. On or about May 28 or 29, 1997, a medfly was discovered in the Seminole Heights area of Hillsborough County. Very quickly other medflies were discovered in Hillsborough County, with the epicenter determined to be in the Brandon area. Soon other detections occurred in Manatee, Sarasota, Orange, and Polk Counties. This was determined to be the most severe infestation of medflies in Florida in several decades. On May 30, 1997, Commissioner of Agriculture, Bob Crawford, issued a proclamation announcing an immediate danger to the public health, safety, or welfare in the state of Florida on account of the infestation by the Mediterranean fruit fly. The proclamation cited authority and powers conferred by Article IV, Section 4, Florida Constitution and Sections 120.54(4) and 570.07(21), Florida Statutes. The proclamation called for immediate eradication procedures including aerial and ground pesticide applications in infested areas. FDACS also promulgated and filed an emergency rule, 5BER 97-2, Florida Administrative Code, "Mediterranean Fruit Fly Rule and Quarantine." The rule provided definitions, designated a quarantine area and treatment area, identified regulated articles and host plants, and provided for entry of authorized representatives to inspect, confiscate suspect fruit, or apply treatment on property on which the medfly is known or suspected to exist. The rule also declared the medfly a pest and nuisance pursuant to Section 581.031(6), Florida Statutes, and described the rule's purpose: . . . to provide detailed direction for conducting a regulatory and eradication program to prevent spread of the Mediterranean fruit fly, Ceratitis capitata, within the State. This rule is promulgated to provide a quarantine on areas regulated due to the presence of the Mediterranean fruit fly, and to specify conditions under which regulated articles may be certified as free of Mediterranean fruit fly when moved from the quarantined area. This rule also provides for the treatment and eradication of the Mediterranean fruit fly within the State of Florida. (5BER 97-2(2), Florida Administrative Code) The quarantine area within 5BER 97-2 is an area of Hillsborough County described with specificity with references to road boundaries. The treatment area was defined as "[a]ny location including urban and residential areas within a nine- square-mile area around an [sic] Mediterranean fruit fly detection. " Quarantine areas are generally 81 square miles; treatment areas are 9 square miles and may be wholly outside of a quarantine area. In the words of FDACS Director of the Division of Plant Industry, Richard Gaskalla, "[t]his was a very active infestation. For the first 90 days of the program, it was a very fluid and dynamic situation. Each day brought a new challenge, a new area to place traps in or regulate fruit in. So it was giving us quite a challenge." (transcript, 48-49) As new medflies were discovered subsequent to the end of May 1997, FDACS expanded the treatment and quarantine areas. Additional emergency rules on the infestation were filed: 5BER 97-3, on June 20, 1997; 5BER 97-4, on July 3, 1997; 5BER 97-6, on July 28, 1997; and 5BER 97-7, on August 11, 1997. With the exception of the specifically described quarantine area in section (4), each emergency rule is substantially the same. 5BER 97-3 repeats the quarantine area described in 5BER 97-2 and adds a specific portion of Polk County. 5BER 97-4 repeats the quarantine area described in 5BER 97-3 and adds a specific portion of Manatee County. 5BER 97-6 and 5BER 97-7 include a much larger quarantine area to include portions of Hillsborough, Polk, Manatee, Orange, and Sarasota Counties. There are portions of Hillsborough County which are found in the quarantine area described in all five emergency rules. Other geographical areas overlap in two or more of the five rules. The "treatment area" remains described in each of the five emergency rules as the nine-square-mile area around a medfly detection. As more medflies were found, this area obviously expanded. Eventually the treatment area became almost as large as the quarantine area in Hillsborough County. FDACS developed its series of emergency rules to address the medfly eradication program as it evolved. The agency consulted a science advisory panel that was put together to review the eradication program, and the agency received public comment and suggestions from public meetings. As new detections were made, the emergency rules were promulgated to cover the areas which the agency considered important for its regulation and control (quarantine). Richard Gaskalla did not consider each new emergency rule to be a renewal but rather a response to the unpredictable expansion of the medfly within existing areas. As soon as FDACS adopted the first emergency rule, it began work on a permanent rule and scheduled a rule development workshop in June to receive public comment. Citizens in Hillsborough County requested another workshop which was held approximately two weeks prior to the hearing in this case. A permanent rule has not been adopted, but the pre-adoption process continued as of the hearing in this case. As of the time of hearing, the last medfly detected in Hillsborough County was mid-July. Medflies were discovered after this in other counties covered by the emergency rules. Eradication is generally not considered complete until traps have been empty for two life cycles after the last treatment. Depending on the length of the life cycle, eradication could be complete from 60 to 100 days after the last fly find.
