Findings Of Fact Petitioner has a degree in pest control technology. On June 18, 1981, Respondent renewed Petitioner's Pest Control operator's Certificate No. 2303 until June 1, 1982, in the categories of general household pests and rodent control, termite and other wood-destroying organism control, and lawn and ornamental pest control. On May 6, 1982, Petitioner filed his annual Application for Renewal of his certificate in the same categories. On that application, Petitioner answered "yes" to the question: "Have you been convicted by any court of a felony or of a crime involving moral turpitude within the past year?" and he answered "no" to the question: "[H]ave your civil rights been restored?" By letter dated June 15, 1982, Respondent denied Petitioner's Application for Renewal based upon Petitioner's answers to those questions, and Petitioner timely requested a formal hearing on that denial. On December 16, 1982, Respondent wrote to the Division of Administrative Hearings advising that a Hearing Officer had not yet been assigned to hear this matter and attaching only a copy of a July 6, 1982, letter from Respondent requesting the Division to conduct a formal hearing in this cause. Since the July 6 letter had never been received by the Division of Administrative Hearings, and since the December 16 letter failed to transmit Petitioner's request for hearing or any other pleadings or papers setting forth the substance of the cause, the Staff Assistant of the Division telephoned Mrs. Cheryl Ganley of Respondent's Clerk's Office on December 23, 1982, and requested the documents required to open a case before the Division of Administrative Hearings. That telephonic request was followed up with a letter to Mrs. Ganley on January 4, 1983. No response to either the telephonic or written inquiry was made by Respondent until March 24, 1983, when Respondent again wrote to the Division of Administrative Hearings asking why the matter was not scheduled for hearing and attaching only a copy of its December 16, 1982, letter. On March 31, 1983, the Director of the Division wrote Respondent outlining the chronology of the letters to and from Respondent and again advising Respondent that the case could not be heard until Respondent transmitted the pleadings required to open a case file. On April 11, 1983, Respondent finally did so. Petitioner relies upon his licensure by Respondent as a Certified Pest Control Operator for his livelihood and has no other training or means for earning a living. Other than Petitioner's testimony that his involvement in the incident was minimal, the only evidence introduced regarding the circumstances surrounding his arrest and conviction is a letter from Petitioner's Probation Officer, which letter constitutes uncorroborated hearsay and, therefore, cannot support a finding of fact. Petitioner's probation should be terminated in approximately six months, at which time he will be able to seek restoration of his civil rights. He anticipates no problem in having his civil rights restored. At the formal hearing in this cause, the parties stipulated that the only bar to renewal of Petitioner's licensure is his conviction of a felony or of a crime involving moral turpitude without his civil rights being restored.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered approving Petitioner's Application for Renewal of his Pest Control Operator's Certificate No. 2303 for the annual period commencing June 1, 1983. DONE and RECOMMENDED this 17th day of June, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1983. COPIES FURNISHED: Harold L. Braynon, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301 Mr. Christopher M. Hagerty 1141 South West Sixth Avenue Fort Lauderdale, Florida 33315 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Respondents, during all times here involved, were licensed by Petitioner as alleged and operated three separate pest control offices in Jacksonville, New Smyrna Beach and Palatka. During the period between May 1976 and April 1977 no certified operator was registered with Petitioner at the Jacksonville or New Smyrna Beach offices. During this period numerous fumigation contracts were entered into by Respondents. When these contracts were carried out all fumigation was performed under the supervision of a currently registered certified operator who was attached to the Palatka office owned by Respondents. Between June 1976 and October 1977 24-hour advance written notice of fumigation was not provided by Respondents to the health authorities in Duval County on five occasions and to the health authorities of Volusia County on six occasions. However, the health inspectors of each county apparently received telephone notice because they inspected the fumigations for which the written notice was not provided a higher percentage of times than the average inspection for fumigation for which 24-hour written advance notice was provided. Several violations involved the certified operator notifying HRS by letter that he would be certified operator for a specific office commencing on a given date and thereafter failing to submit the proper forms to obtain a current pest control identification card for the office at which he worked. Proper registration of pest control salesmen and certified operators requires the issuance of a pest control identification card for a specific location. On some occasions the charges resulted from Respondent, United Pest Control, acquiring another pest control company and continuing operations under United Pest Control without having changed the pest control identification cards of these employees. Two charges involved agents of Respondent who entered into contracts with customers. One resulted from a complaint that the agent inaccurately advised the customer that there was termite infestation and one involved a complaint of improper treatment for subterranean termites. After the customers complained to governmental authorities Respondents refunded their money. When Respondent Powell attempted to inspect the premises to verify the complaint of these two customers he was denied access to the premises by the customers. The certified operator in the Palatka office was used to supervise a fumigation contract obtained in the Jacksonville office and the New Smyrna Beach office during the period here involved. He told Respondent several times that it was a violation of the regulation for him to perform the fumigation on contracts in these other offices, but only after he reported this to HRS was the practice stopped. At the time of the hearing the Jacksonville pest control operation had been sold by Respondent United Pest Control.
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
Findings Of Fact Respondent is licensed by the State of Florida, Department of Health and Rehabilitative Service as a pest control service authorized to perform all functions for which such organizations may be licensed. Gilbert Bellino was certified operator for Respondent from prior to the earliest charge in the Administrative Complaint until mid-1977. He was certified in the four types of treatment authorized by pest control companies, viz. fumigation, general household pest control, including rodent control, termite or other wood infesting organisms control, and lawn and ornamental pest control. A certified operator is required to supervise and direct the activities of all employees engaged in pest control. Many of the complaining witnesses made their first contact with Respondent when answering an advertisement for a onetime household pest treatment and a free termite inspection. Lloyd Green responded to an ad in which Respondent offered a spray treatment of the yard and house for $15. Folsom and Jones appeared and after an inspection of his house advised Green that he had dry wood and subterranean termites and induced him to sign a contract to treat them at a price of $286. After reflection and before any work was done Green called and cancelled the contract. He had the house inspected by Mr. Chapman of Chapman Pest Control who found no evidence of active infestation. All evidence Chapman found of wood damage was done prior to the timber having been processed. The house was later inspected by David Jones, District V Entomologist and he too found no evidence of active infestation. A second inspection of Green's home was made by Jones in company with Casale, the President of Respondent. The only evidence found was one hole in a bed slat which had occurred before the lumber was processed. Turpentine beetles and pine sawyer beetles are wood borers that attack trees but not processed lumber. Once lumber is processed any further damage from these beetles is highly improbable if not impossible. Evidence of the damage they have caused will remain in the wood but is readily distinguishable from an active infestation by one with almost any training in pest control. Wood borers make round holes and any eliptical hole found in timber is indicative that the hole was made before the wood was processed. The oblique angle to the borer's tunnel cut by the saw when the lumber was processed causes an eliptical hole. Charles Casale visited Robert Rankin's house for a free termite inspection and identified himself as an employee of Respondent. He was accompanied by another man who inspected the crawl space under the house. Upon completion of the inspection Casale advised Rankin he had an infestation and needed treatment which would cost $300. After getting an opinion from another pest control company that he did not have termites Rankin called HRS and David Jones inspected the entire house. At this inspection Jones found no evidence of active infestation but a colony of fleas from Rankin's two dogs. At the time of Casale's inspection application for an identification card had not been submitted for Casale. Thelma P. Wray contracted with Respondent for fumigation of her house. No written instructions were given her by Respondent, nor was she advised to remove medicines. She was advised to remove only milk cartons, cheese and open food. The only warning sign placed on front and rear of house during fumigation (Exhibit 4) on November 10, 1974 did not show type of fumigant used and stated house is safe for reentry at 10:30 a.m. December 11, 1974. This sign appeared on the house the evening of December 10, 1974 and was placed only at the front and rear. No notice of this fumigation was provided to the County Industrial Hygienist who maintains records of notices of all fumigations. Neither Mr. nor Mrs. Chaney testified. No one having personal knowledge was called to identify Exhibit 6 and no evidence was offered that Larry A. Donald, Jr. was employed by Respondent and visited the Cheney home without a valid identification card. Mrs. Ruby Moser did not testify. No witness was produced to testify regarding Phillip Jones' visit to the Moser home on June 10, 1975 or identify Exhibit 7. Neither Mr. nor Mrs. Donald R. Seldes testified. No evidence was presented regarding the alleged visit of Bill Gillian, while an employee of Respondent, to the home of the Seldes. Judith Bashline was contacted by Respondent through telephone solicitation for special pest cleanout and termite inspection. One man sprayed for the pest cleanout and he was followed by Phillip Jones and Ken Ely, Jr. who, after inspecting the attic, advised her she had an infestation in the attic in a dormant state which needed immediate treatment. She entered into a contract for spot treatment for $190. After Jones and Ely left Mrs. Bashline began having misgivings and called another pest control company for information. She was referred to HRS and there contacted David Jones who inspected the property. Upon inspection Jones found no evidence of active infestation - only the preprocessed type damage found in the other homes. When Helen M. Hopper purchased her home at 1037 - 12th Street North, St. Petersburg, Florida she acquired a subterranean termite policy from Respondent. She then started monthly sprayings with Respondent. After the first spraying on September 16, 1975, Ken Ely, Jr., an employee of Respondent, went into Hopper's attic and told Mrs. Hopper she had borers in the roof and needed immediate treatment to save the roof. After he left she called another pest control company for verification. When that company inspected the attic they reported no problem with borers. She then called HRS and David Jones inspected the premises October 24, 1975 and in the attic he found only old damage which had occurred before the wood was processed. There was no infestation for which treatment was indicated. When Donald R. Bond II and his wife purchased a home his mother recommended they use Gulf Coast Pest Control. In January, 1977 Robert R. Plowman, an employee of Respondent, advised the Bonds that they had powder post beetles and dry wood termites and the attic needed to be treated. He came back that evening when Mr. Bond was home and a contract for the work was signed. The following day Mrs. Bond had two other pest control companies inspect the house. Whey they advised her there was no evidence of active infestation she cancelled her contract and called HRS. On February 10, 1977 David Jones inspected her property. He found no evidence of borer or termite infestation; however Jones did find evidence of rat infestation. On June 26, 1976 Robert R. Plowman, an employee of Respondent, inspected the home of Rita M. Spera at 9783 - 52nd Avenue North, St. Petersburg, Florida and reported to her that there was an infestation of wood borers in the attic and she needed to have fumigation. The previous year the Speras had replaced the shingles on the roof and had found the wood in good condition. Accordingly Mrs. Spera really didn't believe Plowman and called HRS for verification. When David Jones Inspected the house on July 2, 1976 he found only evidence of old damage that had occurred before the wood was processed. No evidence of active infestation was observed. Mrs. Ellen M. Hameroff received a telephone solicitation from Respondent for a cleanout and termite inspection. She accepted the offer and on September 2, 1976 Robert R. Plowman, an employee of Respondent, inspected her attic and reported that powder post beetles were present and treatment was needed which would cost $200 to $400. Plowman returned that evening to talk with Dr. Hameroff but they didn't sign a contract. The following day another pest control company was contacted for an inspection. They reported no infestation. She then called HRS and on November 22, 1976 David Jones inspected the property and found only evidence of old damage. On September 1, 1977 William C. Bargren, Scott Askins and F. R. DuChanois, Entomologists with HRS inspected the Hameroff property. They found evidence that pine sawyer beetles had been in the tree from which some sheathing boards in the attic had been processed. There was no evidence of infestation in the Hameroff home. In December, 1976 Robert L. Dill had a spray and free inspection by Respondent on his home at 1551 Citrus Street Clearwater, Florida. Following an inspection of the home, Robert R. Plocnan and John D. Lucas, employees of Respondent, advised Dill that he had powder post beetles in the attic, ceiling and floor under the house and needed treatment. Before agreeing to the treatment for the powder post beetles and preventive treatment for termites for which Respondent wanted $500, Dill had two other pest control companies inspect the property. Both of these companies advised Dill he had no infestation. Jimmy Robinson of Exterminator Terminix, International, a certified operator, inspected the Dill property on November 22, 1976 and found no evidence of powder post beetles or termites for which treatment was indicated. He noticed no damage to floor but did see some evidence of borers before the wood was processed. When Dill reported the incident to HRS, David Jones inspected the property on January 20 and 26, 1977, the second time in company with the Casales, Plowman and Donald. Damage to wood in the floor was done before the lumber was processed and no infestation was present for which treatment was indicated. Lawrence A. Donald, an employee of Respondent, holds a certified operator's license and he found evidence of "tremendous damage due to boring animals" under Dill's house. He opined that there were live larvae in the wood, however, his credibility and expertise left a great deal to be desired. During a monthly contract spraying Robert R. Plowman, an employee of Respondent, told Mrs. Shirley I. Bond that she had powder post wood borer beetles in the attic of her home at 6701 - 19th Street North, St. Petersburg, Florida and needed to have the attic power dusted. Mrs. Bond gave Plowman a check for $295 but after her daughter-in-law's experience, stopped the work. She called HRS and David Jones inspected her property on April 14, 1977. He found no evidence of infestation and in Jones' opinion the power spray of Dridie (a trade name for silica gel) would not be appropriate to treat dry wood termites or powder post beetles. Raymond L. Jackson employed Respondent for the advertised "clean-out" and free inspection. On January 6 and 7, 1977 Robert R. Plowman, an employee of Respondent, inspected Jackson's property at 6243 - 6th Avenue South, St. Petersburg, Florida and advised Jackson that he had active termites and powder post beetles and needed treatment. Jackson signed a contract and paid Plowman $300 for the work. About two weeks later two men power dusted Jackson's attic. After reading an article in the newspaper about powder post beetles Jackson called HRS and his property was inspected by Askins on July 26, 1977 and by Askins and Bargren on August 10, 1977. The only evidence of damage they found was that caused by turpentine beetles prior to the wood being processed. In their opinion no treatment was indicated before the power dusting was done. Mrs. Helen Stambaugh had a "clean-out" and free termite inspection in July, 1977 at her home at 2518 - 67th Avenue South, St. Petersburg, Florida by Respondent. Larry D. Brown, an employee of Respondent, to whom an application for identification card had not been submitted, told Mrs. Stambaugh that dry wood termites were infesting her garage and treatment was necessary. Spot treatment was offered for $130. She contacted another pest control company who, after inspection, advised that no treatment was indicated. She then called HRS and on July 20, 1977, Bargren and Askins inspected her property and found only evidence of old turpentine beetle damage in the garage which had occurred before the wood was processed. No infestation for which treatment was indicated was observed. In October, 1975 representatives from Gulf Coast Pest Control, Louis Casale, the company manager, Carmine Casale the owner and Gilbert Bellino, the certified operator, met with HRS representatives in Jacksonville to discuss the numerous complaints HRS had received about Respondent and to formulate remedial action. At this meeting the need for additional training of their salesman was discussed in connection with the complaints filed by Green, Rankin, Wray, and others with particular emphasis on the need to train their operators to distinguish old damage in the preprocessed tree from damage requiring correction. Respondent agreed to increase their training to improve the quality of their inspectors. Respondent has discharged all of the salesmen who made the misrepresentations noted above. Plowman was finally discharged because "he was too dumb" to learn to distinguish between old damage not requiring treatment and new damage which did require treatment. However, Plowman was continued as an employee even after criminal charges involving fraudulent misrepresentation had been filed against him.
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint dated January 9, 1992; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witness and the documentary evidence received at the hearing, the following findings of fact are made: The Respondent performed an inspection for wood-destroying organisms for property located at 907 Magnolia Avenue, Sanford, Florida (907 Magnolia). That inspection was completed on or about May 23, 1991. The inspection form utilized by Respondent was valid in 1983 but has not been in use since 1989. The inspection form reported there were no visible evidences of wood- destroying organisms; that there were no live wood-destroying organisms; that there was no visible damage; and that there was no visible evidence of previous treatment. The report completed by Respondent for 907 Magnolia was false, incomplete and erroneous. When 907 Magnolia was inspected by Mr. Lemont on October 3, 1991, numerous evidences of wood-destroying organisms (both live and remnant) were observed. Such organisms or the evidences of their presence would have been present when Respondent inspected the property. Some of the damage observed by Mr. Lemont would have taken months or years to have developed. Respondent failed to detect and disclose the following information on the inspection he performed: drywood termite damage; wood-decay fungus; subterranean termite and powder post beetle damage.
Recommendation Based on the foregoing, it is recommended that the Department of Health and Rehabilitative Services enter a final order finding the Respondent guilty of violating Sections 482.161 and 482.226, Florida Statutes, and imposing an administrative fine in the amount of $1500.00. RECOMMENDED this 6th day of July, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 1992. COPIES FURNISHED: Sonia Nieves Burton District 7 Legal Office Department of Health and Rehabilitative Services South Tower, Suite S827 400 West Robinson Street Orlando, Florida 32801 Gregory W. Lea 252 S. Country Club Drive Lake Mary, Florida 32746 John Slye General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
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
