Findings Of Fact Respondent Turner is engaged in the business of pest control, including the application of termiticide to the soil of pre-construction sites for the prevention of subterranean termites. Respondent is licensed by the Petitioner under Chapter 482, Florida Statutes, as a pest control business and maintains its primary place of business in Jacksonville, Florida. Respondent Kincade is employed by Turner as a pesticide applicator technician. The Petitioner is the state agency with jurisdiction to regulate and license pest control businesses and technicians. On June 12, 1993, Mr. Phil Helseth and Mr. Montgomery, employees of the Petitioner, were returning from lunch and observed one of Respondent Turner's trucks turning onto the Blodgett construction area in Jacksonville, Florida. Helseth surmised the Respondent's truck was there to do a pretreatment for termites. Helseth then observed activities by a Turner Pest employee, later identified as Mr. Kincade, who was spraying a substance on the soil on foundation areas at sites one and two. Mr. Helseth concluded the Respondent's agent was engaged in termite pretreatment. When the Turner employer concluded his activities, he drove his truck to the construction trailer on the building site where he was confronted by Mr. Helseth and Mr. Montgomery. At that time a third employee of the Department, Mr. Parker, had arrived, bringing calibration equipment to measure the rate of discharge from the Turner Pest pumper truck. Petitioner's inspectors introduced themselves to Kincade and identified themselves. Petitioner's representative requested Kincade to produce the identification card issued to him by Petitioner. Mr. Kincade did not do so. Petitioner's representative asked Kincade questions about what he was doing, and Kincade demurred, stating it was Turner's policy for him to call a supervisor who would answer their questions. Kincade called his office, and shortly thereafter Joe Turner arrived on site. The spraying equipment utilized by Kincade was then calibrated to determine the amount of pesticide mixture being emitted. Joe Turner, President of Turner Pest Control, Inc., denied that they were performing a pre-construction treatment for termites. Mr. Turner testified that the purpose of spraying the Dursban 2E on the site in question was to empty the tank and that this was proper disposal of the chemical in accordance with the label instructions. A local pest control operator testifying for Respondents stated that the disposal of the pesticide Dursban 2E in this manner was perfectly in accordance with the label and that he has emptied tanks of Dursban 2E on construction sites twenty to thirty times in the last two or three years. Petitioner did not offer any testimony that this method of disposal was contrary to the label. Petitioner concluded that Turner Pest was conducting a termite pretreatment, although informed by Joe Turner at the time such was not the case, and filed the initial Administrative complaint. The Blodgett site contractor's job superintendent, Joe Wilson, testified. Sites prepared for construction at Blodgett Homes would receive termite pretreatment and pest control. Joe Turner had consulted with Wilson about spraying the Dursban 2E to dispose of the chemical. The job superintendent knew the operator, Kincade, was not performing a pretreatment for termites. Dursban 2E is a general insecticide. It, according to its label, can be used in a variety of concentrations, for a variety of insects, but termites are not one of those insects. Disposal, according to the labels, is by spraying the chemical on soil such as to lawn or a building site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services dismiss the charges against Turner Pest Control, Inc. and impose an administrative fine in the amount of $100.00 against Respondent, William D. Kincade. DONE AND ENTERED this 14th day of April, 1994, in Tallahassee, Florida. STEPHEN F. DEAN 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 14th day of April, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 93-6624 Both parties filed Proposed Recommended Orders which were read and considered. The following states which of these proposed findings were adopted and which were rejected and why. Petitioner's PFOF: Paragraph 1 and 2 Adopted. Paragraph 3 True, but irrelevant. Paragraph 4 Respondent's paragraph 3 et seq. better states the facts. Last part adopted as paragraph 5. Paragraph 5 Adopted RO paragraph 5. Paragraph 6 Adopted RO paragraph 6. Paragraph 7 Adopted RO paragraph 7. Paragraph 8 Rejected as argument. Paragraph 9 Contrary to better evidence. Mr. Helseth conclusions were based upon his conclusion that Dursban 2E was being used as a termite pre- treatment, not being disposed of. Paragraphs 10, 11 RO paragraph 8. Last sentence is rejected because it was accepted that use and disposal was controlled by the instructions on the label. The label indicates disposal by spraying on soil was appropriate. Respondent's PFOF: Paragraph 1 RO paragraph 3. Paragraph 2 RO paragraph 4 and RO paragraph 9. Paragraph 3 Irrelevant. Paragraph 4 Restated in RO paragraph 5 and 6. Paragraph 5 RO paragraph 11. Paragraph 6 RO paragraph 11. Paragraph 7 RO paragraph 12. COPIES FURNISHED: Bob Crawford, Commissioner Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, Esquire Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Robert G. Worley, Esquire Department of Agriculture Room 515, Mayo Building Tallahassee, FL 32399-0800 William G. Cooper, Esquire COOKER MYERS 136 East Bay Street Post Office Box 1860 Jacksonville, FL 32201
Findings Of Fact On September 25, 1989, Fredrick Hassut, Jr., an entomologist-inspector in the Department's Winter Park office, received a telephone call from Mary Ellen Jenkins complaining about fumigation services which had been rendered by Petitioner. In response to that telephone call, Hassut forwarded to her the Department's official form for complaints against pest control companies. Hassut received Jenkins' completed form, together with her five-page handwritten letter of complaint, on October 6, 1989. On October 9, 1989, Hassut sent to Petitioner the Department's official form for pest control companies to use in responding to consumer complaints made against them. Hassut received Petitioner's completed form on October 16, 1989. Between September 27, 1989, and November 13, 1989, when Hassut completed his investigation, he had numerous telephone conversations with Petitioner concerning Jenkins' allegations, had visited the Jenkins' residence, and had reviewed the contract entered into between Mike and Susan Gillen and Petitioner for tent fumigation of the subject residence. By the conclusion of his investigation, Hassut knew the following facts. Petitioner had been contacted by a real estate brokerage company to do an inspection for termites and wood destroying organisms at a residence, attendant to a contract for the purchase and sale of that residence. The residence was owned by Mike and Susan Gillen. Petitioner's employee performed the inspection, located drywood termites, and recommended tent fumigation for eradication. On June 9, 1989, a contract was entered into between Petitioner and Mike and Susan Gillen for fumigation services, and the contract established July 7, 1989, as the date on which such services would be performed. Although the contract called for cash upon completion of service, subsequent arrangements had been made, and Petitioner had agreed that he would be paid for the fumigation services from monies to be escrowed at the closing, a routine business arrangement in the industry. A fumigation crew went to the residence on July 7 as agreed by contract, but the services were postponed to Friday, September 8, 1989. On Saturday, September 9, the residence was tented, and a certified operator employed by Petitioner injected Vikane, the fumigant specified in the contract. On Sunday, the tarps were removed, and Petitioner "cleared" the residence, using an Interscan to test for the presence of Vikane. One of the complaints made by Jenkins and by her husband who works in the pest control industry and had done so for the previous six years was that Petitioner had failed to furnish them with a printed list of items to be removed from the structure, prior to fumigation. Mrs. Jenkins told Hassut that she was the new owner of the residence which she had purchased from Mike and Susan Gillen, that the closing on the sale had taken place on July 5, and that the Jenkins had moved into the structure prior to the structure being treated for termites. Mrs. Jenkins never represented to Hassut that she had advised Petitioner, prior to fumigation, that the ownership of the property had changed. Petitioner advised Hassut that he had never heard of Mrs. Jenkins or her husband until the day after the fumigation services were completed when Mr. Jenkins called to complain about the services. Petitioner advised Hassut that he did not know that a closing had in fact taken place and that a new owner was occupying the structure when the fumigation services were performed. Petitioner believed at all times through the completion of the fumigation work that he was dealing with the Gillens. Petitioner advised Hassut that Mike Gillen had been given a Customer Duty List, which included the written list of items to be removed from the structure, on June 9, 1989, when Mike Gillen signed the contract with Petitioner for fumigation services, and that Gillen had signed a copy of that list to show that it had been provided to him. Petitioner had assumed the closing had been postponed because the fumigation services were postponed, and termite treatment is normally a condition precedent to a closing. Had Petitioner known that there was a new owner of the structure, he would have obtained a contract from the new owner prior to the rendering of services rather than performing services for someone with whom he did not have a contract. At the time, Hassut believed that a pest control operator is under no legal duty to verify that the owner of a structure for which there is a contract for fumigation services is still the owner at the time that the services are performed. Hassut further believed that if Petitioner did not know that the Gillens had completed the sale of their home to Mrs. Jenkins and if Petitioner had given the required printed list of items to be removed to the Gillens, then Petitioner would have complied with the regulations requiring provision of that printed list. Hassut made no attempt to contact either Mike or Susan Gillen to ascertain if they had advised Petitioner that the ownership of the house had changed or to ascertain if they had been provided the required printed list, as Petitioner contended. Further, he made no attempt to contact the real estate agent or the title company involved in the closing to ascertain if they had advised Petitioner that ownership of the property had changed. Hassut specifically determined that Petitioner was not negligent in the performance of fumigation services at the Jenkins residence. When Hassut completed his consumer investigation, he prepared his Notice of Recommended Enforcement Action containing his conclusions as to violations he found during his investigation. He forwarded that document to the Department's Jacksonville office, specifically to James Bond, the enforcement coordinator, for final decision as to whether Petitioner would be charged with violating any of the statutes and rules regulating the pest control business. Hassut recommended that Petitioner be charged with two violations only. Section 482.226(6), Florida Statutes, requires that a Notice of Treatment be posted at premises where fumigation services have been performed and that the location of that Notice be notated on the service contract. Since Hassut was unable to locate the Notice of Treatment, he recommended that Petitioner be charged with violating Section 482.226(6). He also recommended that Petitioner be charged with violating Section 10D-55.110(3), Florida Administrative Code, for failing to furnish to the property owner or agent a printed list of items to be removed prior to fumigation. James Bond reviewed Hassut's investigative report and recommendations, and then forwarded that report together with Bond's own recommendation to Philip R. Helseth, Jr., pest control administrator, who made the decision that an administrative complaint should be filed against Petitioner. Part of the reason that Helseth determined to take action against Petitioner was the fact that on one occasion during Petitioner's ten and one-half years in business, Petitioner had received a warning letter from the Department. Before the Administrative Complaint was prepared and served on Petitioner, no one referred the investigation back to Hassut with instructions that he further investigate by interviewing the Gillens. Further, no one in the Jacksonville office consulted Hassut regarding the numerous violations which were included in the Administrative Complaint to determine if Hassut agreed that his investigation had revealed facts supporting the expanded list of violations. The Administrative Complaint prepared by the Department and served on Petitioner charged Petitioner with violating three statutory provisions and four of the Department's regulations. Interestingly, the one statutory violation which appeared in Hassut's recommendation--failure to post a Notice of Treatment and notate its location on the contract--was not one of the charges included in the Administrative Complaint. The Administrative Complaint charged Petitioner with having violated Sections 482.161(1)(a), 482.161(1)(e), and 482.161(1)(f), Florida Statutes, and Sections 10D-55.105(2), 10D-55.106(1), 10D-55.108(3)(c), and 10D-55.110(3), Florida Administrative Code. After service of the Administrative Complaint on him, Petitioner timely requested a formal hearing regarding the allegations contained within that Administrative Complaint. The matter was subsequently transferred to the Division of Administrative Hearings for the conduct of that formal proceeding and was assigned DOAH Case No. 90-0944. The final hearing was conducted on September 27, 1990, in Stuart, Florida. At the commencement of the final hearing, the Department dismissed several of the allegations contained in the Administrative Complaint filed against Petitioner. The Department announced on the record that the only statutes and rules Petitioner was still alleged to have violated were Sections 482.161(1)(a) (violating the Department's statutes or rules), 482.161(1)(f) (performing pest control in a negligent manner), Section 10D-55.108(3)(c) (using an improper fumigant and/or using a proper fumigant improperly), and Section 10D-55.110(3) (failing to furnish the property owner or agent a printed list of items to be removed from the structure prior to fumigation). The Recommended Order entered after the conclusion of the final hearing found that the Department offered no evidence that Petitioner used an improper fumigant or used the fumigant improperly; that the evidence was uncontroverted that Petitioner supplied Gillen, the property owner, with a Customer Duty List, the accepted common name of the fumigant to be used, notification of which materials may be contaminated or damaged by the fumigant, as well as other precautions to be taken by the property holder; that the Department offered no evidence that Petitioner was guilty of performing pest control in a negligent manner; and that Petitioner had not violated any of the Department's statutes or rules with which he was charged. That Recommended Order, entered on January 7, 1991, recommended that a final order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint and dismissing the Administrative Complaint filed against him. On February 15, 1991, the Department entered its Final Order adopting the findings of fact and conclusions of law set forth in the Recommended Order, finding Petitioner not guilty of the violations with which he was charged, and dismissing the Administrative Complaint. The Department had no reasonable basis in law and fact at the time that it issued its Administrative Complaint against Petitioner. Petitioner expended the sum of $6,923.50 in attorney's fees and $698.30 in costs, for a total of $7,621.80, in successfully defending himself and his company in the administrative action resulting from the Department's Administrative Complaint.
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 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. /
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.
Findings Of Fact At all times material hereto, Petitioner was, and is, a Florida certified pest control operator. Petitioner owns and operates Campbell's Pest Control, a firm licensed by the State of Florida for pest control purposes and doing business in Alachua, Florida. In his capacity as owner and operator of that firm, Petitioner supervises two cardholder employees. In the latter part of 1982, Petitioner received two letters from Respondent, one dated August 13, 1982, and the other September 7, 1982. Both of these letters contained notification to Petitioner of Respondent's contention that he had failed to comply with the requirements of Section 482.152, Florida Statutes, which provides as follows: A certified operator in charge of pest control operations of a licensee shall be a Florida resident whose primary occupation is in the structural pest control business, who is employed on a full-time basis by the licensee, and whose principal duty is the personal supervision of and participation in the pest control operations of the licensee as the same relate to the following: The selection of proper and correct chemicals for the particular pest control work to be performed. The safe and proper use of these pesticides. The correct concentration and formulation of pesticides used in all pest control work performed. The training of personnel in the proper and acceptable methods of pest control. The control measures and procedures used. The notification of the Department of Health and Rehabilitative Services within 24 hours of any knowledge of accidental human poisoning or death connected with pest control work performed on jobs he is supervising. Two memoranda were enclosed with the letter from Respondent dated September 7, 1982. The first of these was a legal memorandum from Respondent's counsel concerning an interpretation of Section 482.152, Florida Statutes, quoted above. This memorandum provided in pertinent part that: It is clear from a careful reading of Chapter 482 that the requirement concerning a fully qualified certified operator exists as a condition precedent to licensure because of the many dangers inherent in pest control activities. The interpretation placed on the language above quoted from Section 482.152, F.S. is that the certified operator's primary job should be that of a certified operator. Because of the many functions which are required to be performed by the certified operator, he should be on the job on a full-time basis or a nearly full-time basis for the licensee. It is obvious that the legislature, by using the language above described, intended to preclude 'certificate selling'. . . The other memorandum was dated February 23, 1978, and furnished to all commercial pest control licensees and certified operators, and concerned the subject of "renting" of pest control certificates. This memorandum provided in part that: It has come to the attention of this office that some licensees and certified operators are not in compliance with the provisions of Chapter 482.121 and 482.152, Florida Statutes, concerning the status and activities of a certified operator in charge of pest control activities of a licensee. * * * The intent and purpose of the provisions of the Pest Control Act . . . are to prevent such practices as certificate 'renting' or 'selling' under the pretense that the certified operator is in the [sic] charge of pest control activities of the licensee, when in fact he or she is not. The Office of Entomology will enforce the referenced provisions of chapter 482 F.S. as interpreted by legal counsel [in the January 25, 1977 memorandum] with regard to certificate 'renting'. Licensees and certified operators should examine their present arrangements with regard to this matter to determine if they are in compliance with the law. Violations could be grounds for suspension or revocation of licenses or certificates. Any licensee adversely affected would be entitled to apply for an emergency certificate upon loss of certified operator. By Administrative Complaint dated October 13, 1982, Petitioner was charged with a violation of Chapter 482, Florida Statutes: . . . in that you are presently employed on a full-time basis by the City of Gainesville as a firefighter and at the same time registered with the Department as an employee--identification cardholder and as a certified operator in charge of the pest control operations of Campbell's Pest Control . . . This constitutes a violation of Section 482.152, F.S., which requires, in part, that the primary occupation of a certified operator in charge of the pest control operations of a licensee shall be in the pest control business and that such certified operator be employed on a full-time basis by the licensee with the principal duty of personal supervision of and participation in the licensee's pest control operations as these operations relate to selection and safe, and correct use of pesticides, control measures and procedures used, and training of personnel; and a violation of section 482.121(1), F.S., which provides that no certified pest control operator shall allow his certificate to be used by any licensee to secure or keep a license unless such certified operator is in charge of the 'pest control activities of the licensee in the category or categories covered by his certificate and is a full-time employee of the licensee.
The Issue Whether Petitioner should be issued a Pest Control Identification Card pursuant to Chapter 482, Florida Statutes. Petitioner James C. Melvin appeared at the hearing without counsel. After being advised of his rights under Chapter 120, Florida Statutes, he indicated that he understood such rights and did not desire to be represented by counsel.
Findings Of Fact Petitioner made application for a Pest Control Identification Card through Guardian Termite and Pest Control Company of Tampa, Florida, a certified operator, on February 13, 1978. By letter of March 2, 1978, to that organization, the Respondent's Director, Office of Entomology, advised that the application was denied because of Petitioner's previous noncompliance with Chapter 482, Florida Statutes, and Pest Control Regulations of the then Florida State Board of Health. (Exhibits 7, 8) Petitioner was employed by several pest control firms in Tampa during the period 1956 to 1962, and 1964 to 1965, during which periods he held a Pest Control Identification Card issued by Respondent. (Testimony of Bargren) On December 12, 1962, Petitioner was found guilty of violating State Board of Health structural pest control rules in the County Judges Court of Hernando County and sentenced to $15.00 costs and a suspended five-day confinement. On June 21, 1967, Petitioner pleaded guilty to a pest control violation in the Criminal Court of Record in and for Hillsborough County, Florida, and was sentenced to pay a fine of $200.00 or be confined in the county jail at hard labor for a period of sixty (60) days. Again, on September 11, 1967, in the Criminal Court of Record in and for Polk County, Florida, Petitioner pleaded guilty to engaging in structural pest control without a license and, on December 8, 1967, was sentenced to pay a fine of $200.00 or be confined in the county jail for a term of ninety days. (Exhibits 1, 4, 5)
Recommendation That the application of James C. Melvin for a Pest Control Identification Card be denied. DONE and ENTERED this 1st day of June, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: William Park, Esquire W. T. Edwards Facility 4000 West Buffalo Avenue Fourth Floor Tampa, Florida 33614 James C. Melvin 1310 West Rambla Street Tampa, Florida 33612 Steven W. Huss, Esquire Central Operations Services Department of HRS 1317 Winewood Boulevard Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES JAMES C. MELVIN, Petitioner, vs. CASE NO. 78-645 DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, STATE OF FLORIDA, Respondent. / ADMINISTRATIVE ORDER A hearing was held in the above styled administrative cause before a Hearing Officer Thomas C. Oldham, Florida Division of Administrative Hearings, on May 23, 1978, upon the Petition of James C. Melvin which contested the denial of his application for a pest control identification cared through Guardian Termite and Pest Control Company of Tampa, Florida. Present at the hearing were the Petitioner, James C. Melvin and William M. Park, Attorney for the Department of Health and Rehabilitative Services, District VI. The Department of Health and Rehabilitative Services has reviewed the recommended order by Thomas C. Oldham, Hearing Officer, and adopts said order as follows:
Findings Of Fact Respondent Danny F. Nail owns a parcel of land on the west side of Merritt Island in Brevard County, Florida, at Section 22, Township 23 South, Range 36 East. The land which fronts on the Indian River, a navigable Class III water of the State of Florida, is approximately 1/2 mile north of the town of Courtney. Mr. Nail originally purchased the land in 1977 for a homesite but later decided to develop it for sale. At a cost of $5,000 he hired a contractor in the Spring of 1981 to place fill on his land in a rectangular area beginning 40 to 60 feet east of the mean high water mark of the Indian River. The fill extends 160 feet along a north-south line and 160 feet along an east-west line. The eastern edge of the fill covers a slough which runs north to south beyond the limits of Respondent's property. To the south the slough enters the Indian River. During the years 1959-60 the Brevard Mosquito Control District (District) ditched the slough and placed spoil in piles along the ditch banks. These spoil mounds formed a low berm along the west side of the slough on Respondent's property. There is another higher-berm immediately to the north of Respondent's property which was also the result of District works. None of the activities of the Brevard Mosquito Control District has resulted in a change of the type or distribution of vegetation on Mr. Nail's land in the area of filling. Aerial photography taken prior to 1959 show marine and transitional vegetation species in the fill area. This evidence was supported by witness testimony that the filled area was part of a salt marsh prior to any mosquito control works. The original earth and the spoiling of the District's works are sandy gray soil with an overlay of decayed organic matter. The fill which Respondent placed on his property is a distinctly yellow sand which is readily distinguishable from the original earth. The dominant vegetation in the area 1/ of the fill is white mangroves (Laguncularia racemosa). Numerous white mangroves were knocked down and covered by placement of the fill. The area is also inhabited by Batis (Batis maritima), red mangroves (Rhizophora mangle) and glasswort (Salicornia). All of Respondent's property to the west off and including the now filled slough is within the landward extent of waters of the State of Florida. This is not an "isolated area" as described in Section 17-4.28(2)(g), Florida Administrative Code which has only an infrequent exchange with a water body such as the Indian River. The fill in question here covers a slough which is a contiguous part of the Indian River. Respondent neither applied for nor obtained a permit from the Department of Environmental Regulation to allow placement of fill in waters of the state. The placement of the fill killed white mangroves in the fill area. As a result, the beneficial effect which marine vegetation has on maintaining water quality has been eliminated. This damage to the waters of the state can be remedied only by the removal of the fill and replanting of vegetation of the species recently destroyed. Petitioner has incurred expenses in the amount of $253.65 in investigating the nature of the fill and its resultant damage.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter a Final Order pursuant to Section 403.121(2), Florida Statutes (1981), requiring Respondent, Danny F. Nail, to abate the condition caused by his unauthorized fill as provided for in paragraph 16 of the Notice of Violation entered herein. DONE and RECOMMENDED this 19th day of November, 1982, in Tallahassee, Florida. MICHAEL P. DODSON 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 19th day of November, 1982.
