Findings Of Fact The Respondents hold licenses granted by the Petitioner as a pest- control business and Harry Minds and Richard Jenkins hold individual pest- control employees' identification cards granted by the Petitioner. The Respondents individually, and the licensed business they represent, are a well recognized pest-control service in the Dade County area and enjoy a good reputation for competent pest-control operations in their community. On July 10, 1980 and subsequent thereto, the Respondents have, after conducting termite or wood-destroying organism inspections of buildings owned by customers, furnished them inspection reports containing the following language: This is a termite and wood-destroying insect report only, fungi and carpenter ant inspections are available as a separate special inspection. Each time the Respondents performed such inspections for customers they issued the customer such a report pursuant to the requirements of the authority cited below. The report issued by the Respondents, which is at issue herein (Petitioner's Exhibit One), is on the prescribed HRS form set forth in Rule 10D- 55.142(c). It is like it in every way. The only difference is that the above- quoted language is inserted as an addendum at the bottom of the form as a notice to the customer. After commencement of the hearing, the parties entered into a stipulation whereby they agreed that the only issue is whether or not the inspection report customarily issued by the Respondents and depicted in Petitioner's Exhibit One violates Section 482.226, Florida Statutes or Rule 10D- 55.142(c), Florida Administrative Code. As acknowledged by the Petitioner's witness, Mr. Preve, there is no restriction either on the face of the form or in the Petitioner's policy or enforcement interpretation against the ability of a termite or wood-destroying organism inspector to charge separately for each type of wood-destroying organism inspected for. Further, it was acknowledged by the Petitioner that such an individual inspector could even charge separately for each area of a house or building which he inspects; i.e. one price for an attic or beneath the crawl-space of a house, as opposed to an inspection of the interior of the main portion of the house. Nor is it required that an individual inspector inspect an entire house. The Respondents established that an inspection for fungus requires extra time, labor and additional training for inspection personnel. If clients desire that such a fungus inspection be made, the Respondent makes it available at a set, published, per hour charge. The Petitioner acknowledged that an individual inspector can legitimately inspect for only one type of insect or organism according to the statutes, rules and policy the department makes a practice of enforcing. The Respondents herein inspected for all the statutorily defined pests except one, the presence of fungi. The Respondent properly inspected for wood-destroying organisms and properly completed the report form depicted in Exhibit One as required of it by the Petitioner supplying all information required. The Respondent, by inserting its own disclosure that an inspection for fungi had not been made, but could be ordered if desired by that customer, was making a more extensive disclosure of information to the benefit of the customer than the Petitioner's required form does itself. Rather than merely following the prescribed form and reporting within the strict scope of its actual inspection, the Respondent also called the customer's attention to an additional condition which perhaps should be inspected for, the lack of which disclosure by merely adhering to the form may have misled an uninformed customer.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the administrative complaint herein be DISMISSED. DONE AND ENTERED this 14th day of May, 1982 at Tallahassee, Florida. P. MICHAEL RUFF 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 14th day of May, 1982. COPIES FURNISHED: Morton Laitner, Esquire 1350 Northwest 14th Street Miami, Florida 33125 Andrew C. Pavlick, Esquire 2780 Galloway Road, Suite 100 Miami, Florida 33165 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
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
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 or not James D. Cooley, d/b/a Murder, Inc., is entitled to a business license to engage in pest control in Florida, in the category of general household pest control. Whether or not James D. Cooley is entitled to the issuance of an identification card under the licensee James D. Cooley, d/b/a Murder, Inc., and in direction and control of James D. Cooley, certified pest control operator. Whether or not James D. Cooley is entitled to the issuance of a certified pest control operator's license in the general household category.
Findings Of Fact The Petitioner, James D. Cooley, is the holder of pest control operator's certificate no. 2236 held with the Respondent, State of Florida, Department of Health and Rehabilitative Services. This category of pest control operator's certificate qualifies the Petitioner to perform treatment on termites and wood-infesting organisms. By separate action, the Respondent has moved to suspend the aforementioned pest control operator's certificate held by the Petitioner for a period of six (6) months, in accordance with the provisions of Chapter 482, F.S. It has as an aspect of the contention the failure of the Petitioner to make a timely renewal of the pest control operator's certificate. The basis of this separate action by the Respondent is premised upon a letter of August 8th, 1977, addressed to the Petitioner, apprising him of the factual allegations and statutory references upon which its action is predicated. A copy of that letter is attached and made a part of the record herein. The facts reveal that the Petitioner, James D. Cooley, entered into an agreement with the proprietors of the "Romp and Tromp Day Care Center" located at 143 State Road 13, St. Johns County, Florida, for purposes of spraying for roaches. At that time, James D. Cooley was operating under the name "Tropical Pest Control", located at 355 Monument Road, Jacksonville, Florida. He identified himself in the form of a business card, (which is Petitioner's Exhibit 3 admitted into evidence in the Division of Administrative Hearings' Case Number 77-1564), as a termite control and complete pest control service. Cooley did, in fact, spray the "Romp and Troop Day Care Center: for the extermination of roaches. The sprayings took place in April and May, 1977. The substance being sprayed had a peculiar odor which the witnesses, Alice E. Stock and Ellen Perry Church indicated seemed like household bug spray. They also indicated that they noticed a resulting improvement with the roach problem after spraying. James D. Cooley, under the guise of "Tropical Pest Control", also sprayed the residence of Ellen Perry Church, which is at 1975 State Road 13, St. Johns County, Florida. He sprayed this premises for roaches and ants. Again the substance had an odor which was similar to retail bug spray. The ant and roach problem did not go away in her home. In both instances, when dealing with the proprietors of the "Romp and Troop Day Care Center" and the residence of Ellen Perry Church, James D. Cooley had identified himself as the owner of "Tropical Pest Control" and a person qualified to perform complete pest control services. In fact, James D. Cooley was not qualified to perform general household pest control, which is the category of treatment he was performing in spraying for roaches and ants. By that, it is meant that James D. Cooley at the time he performed the functions for the proprietors of the "Romp and Troop Day Care Center" and the residence of Ellen Perry Church, was not the holder of a certified operator's license in the category of general household pest control, as contemplated by Chapter 482, F.S. Moreover, the company he was operating under, to wit "Tropical Pest Control", was not licensed with the State of Florida, Department of Health and Rehabilitative Services and no identification card was on file for James D. Cooley as an employee of "Tropical Pest Control". The only document on record pertaining to James D. Cooley was one pertaining to his certified operator's license for termites and other wood-infesting organisms, license no. 2236, which at the time of the investigation of Mr. Cooley's activities was due for renewal in accordance with the terms of Section 482.071, F.S. By his actions in dealing with the premises known as "Romp and Troop Day Care Center" and the residence of Ellen Perry Church, the Respondent, in performing these tasks as "Tropical Pest Control", was unlawfully operating a pest control business that was not licensed by the Respondent, in violation of Section 482.071, F.S. Cooley was also in charge of the performance of pest control activities of a category in which he was not properly certified, namely general household pest control, thereby violating Section 482.111(4), F.S. In addition, James D. Cooley failed to have a valid pest control identification card as am employee of "Tropical Pest Control", because "Tropical Pest Control" was not licensed and no employee for that organization could have an identification card, thus causing a violation of Section 482.091, F.S. By his activities in dealing with the two premises, the Respondent was unlawfully soliciting, practicing, performing or advertising in pest control in a fashion that was not authorized by Chapter 482, F.S., in violation of Section 482.191(1), F.S. Finally, James D. Cooley, by holding himself out to be a certified operator in general household pest control, was guilty of fraudulent or misleading advertising or advertising in an unauthorized category, in violation of Section 482.161(8), F.S. For these violations, set forth above, sufficient grounds have been established for the Respondent to suspend, revoke or stop the issuance or renewal of any certificate or identification card, under authority of Section 482.161, F.S. The Respondent has taken action to bring about a suspension of certified pest control operator's license no. 2236, in keeping with the provisions of Section 482.171, F.S., and is warranted in suspending, revoking or stopping the issuance or renewal of any certificate or identification card. In consideration of the violations established in the Petitioner's dealings with the "Romp and Troop Day Care Center" and Ellen Church, the Respondent has refused to issue a business license to James Cooley, d/b/a Murder, Inc., which intends to do business in the general household pest control category. If James D. Cooley is not granted his certified operator's license in the category of general household pest control, then he may not serve as a certified operator in that category, in behalf of the proposed licensee James D. Cooley, d/b/a Murder, Inc. If James D. Cooley is unable to serve in the capacity of certified pest control operator, general household category, them the business known as James D. Cooley, d/b/a Murder, Inc., must employ am alternate certified operator in the general household category, before the Respondent shall issue a license to the business to operate in the general household category. That operator must be a resident of the State of Florida. This is in keeping with the license requirements of Section 482.071, F.S. James D. Cooley does not qualify for certification in the category of general household pest control, because through the violations established in his dealings with the "Romp and Tromp Day Care Center" and Ellen Perry Church, he has shown himself not to be of good character and good reputation for fair dealings, as required by Section 482.132, F.S., prior to the issuance of any certificate. Therefore, the only possibility that James D. Cooley, d/b/a Murder, Inc., would have for operating under the general household pest control category and for receiving a license would be to have another duly qualified certified operator in general household pest control to be hired by the licensee. No identification card can be issued to James D. Cooley or any other person who might be employed by James D. Cooley, d/b/a Murder, Inc., to operate in the general household pest control business, unless it will be under the supervision of a certified pest control operator in the specialty of general household pest control, other than James D. Cooley. The results of the examination which James D. Cooley completed in the general household pest control specialty, should stand until he is otherwise qualified or the requirements for certification have changed prior to his obtaining further qualification in the terms of his good character and good reputation for fair dealings. This conclusion is reached upon a reading of Rule 10D-55.177 (5 FAC) which only prohibits those persons from being examined who have been suspended, revoked or on probation. James D. Cooley was not in one of those categories prior to taking the examination which he passed and was notified of the passing grade in September, 1977.
Recommendation Pursuant to the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a business license for James D. Cooley, d/b/a Murder, Inc., only be issued if some person other than James D. Cooley will be serving in the capacity of a certified pest control operator in the category of general household pest control, which is the desired license specialty. That no identification card be issued to James D. Cooley as an employee of James D. Cooley, d/b/a Murder, Inc., in view of the fact that the license is not being issued to that organization and no employee shall receive an identification card without being employed by a licensed pest control business and under the authority of a certified operator. This position of the recommendation shall be in effect until and unless a separate certified operator is employed, which would allow the license to be given to James D. Cooley, d/b/a Murder, Inc. That James D. Cooley's application to be a certified operator in the category of general household pest control be denied, because he has been shown to' be lacking in good character and good reputation for fair dealings. DONE and ENTERED this 28th day of December, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Robert M. Eisenberg, Esquire Department of HRS 5920 Arlington Expressway Jacksonville, Florida Paul M. Harden, Esquire 2601 Gulf Life Tower Jacksonville, Florida 32207 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue Whether Respondent committed the violations set forth in the Administrative Complaint, as amended, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is an agency of the State of Florida charged with regulating the operation of the pest control industry pursuant to Section 482.032, Florida Statutes. At all times material to this case, Clifford Killingsworth was the owner and Certified Operator in Charge (COIC) of Killingsworth Environmental, Inc., d/b/a Environmental Security, a/k/a KEFL, Inc., a licensed pest control company in Cantonment, Florida. Counts 9 and 11 Counts 9 and 11 of the Administrative Complaint allege as follows: Count 9 During an inspection on July 11, 2003, the Department found that Killingsworth Environmental, Incorporated operated an unlicensed business location at 9100 Hamman Avenue, Pensacola, at which sales solicitations were made and remuneration received. This is a violation of Chapters 482.071(1) and (2), Florida Statutes. Count 11 During an inspection on July 11, 2003 the Department found that Killingsworth Environmental, Incorporated phone numbers terminated in an unlicensed location at 9100 Hamman Avenue. This is a violation of Chapter 5E-14.142(3)(b). Killingsworth Environmental, Inc., d/b/a Environmental Security, a/k/a KEFL (hereinafter KEFL), is physically located at 4141 Pine Forest Road in Cantonment, Florida, and is listed at this address on its application for business license filed with the Department. Cantonment is located in Escambia County near Pensacola, Florida. Two other pest control companies, Environmental Security of Okaloosa, Inc., and Atlas Termite and Pest Control of Cantonment, Inc., are located at the same address. On July 11, 2003, the Department conducted an inspection of a company called Home Services Marketing and Management, LLC (hereinafter Home Services), which is located at 9100 Hamman Avenue in Pensacola. Clifford Killingsworth and Clinton Killingsworth2/ are the managers of Home Services. On March 26, 2002, KEFL entered into a Management and Marketing Agreement with Home Services, executed by Clifford Killingsworth on behalf of KEFL and by Clinton Killingsworth on behalf of Home Services. Since that agreement was signed, the telephone number for KEFL listed in the local telephone directory terminated at Home Services. Home Services also answers calls for Environmental Security of Okaloosa and Atlas Termite and Pest Control of Cantonment, Inc. Through their computer system and caller ID, the Home Services employee knows which company is being called and answers accordingly. Home Services employees do not make "cold calls" to new customers. They receive calls from existing customers. They contact customers with active accounts to set up renewals. They also contact homeowners whose homes were treated during construction and whose initial accounts were with the builder of the home. If a new customer calls, a Home Services employee answers the call, gets the contact information from the potential new client, and then calls the appropriate technician who would then call or visit the potential customer. The appropriate technician is generally determined by the geographic location of the caller. While a Home Services employee might send a preprinted contract to the technician to take to the job site or mail a contract to a customer, Home Services does not enter into any contract to perform pest control services. No pest control trucks or chemicals are stored at Home Services. Home Services also has a payment processing component. Home Services sends bills to pest control customers which instruct customers to make out the check to the appropriate pest control company, not to Home Services. Payments from customers for pest control services are deposited into the account of the appropriate pest control company. No evidence was presented that 9100 Hamman Avenue is an advertised permanent location of KEFL from which business was solicited, accepted, or conducted. After the July 11, 2003, inspection of Home Services, Clinton Killingsworth, Clifford Killingsworth's brother, took steps to get Home Services licensed as a pest control company. Clifford Killingsworth did this because it was his understanding that the Department took the position that Home Services was in the business of practicing pest control services. He employed his brother, Daniel Killingsworth, to be the required licensed person in charge, and contacted several insurance companies to obtain the required insurance. He had difficulty in obtaining the required insurance since Home Services does not offer pest control services. Despite these difficulties, Home Services was issued a license in December 2003. Count 10 Count 10 of the Administrative Complaint, as amended, reads as follows: During an inspection on July 16, 2003, the Department found that Killingsworth Environmental, Incorporated stored pesticides at an unlicensed business location at 1830 Galvez Road, Gulf Breeze, Florida, which is a violation of Chapter 5E- 14.142(5)(f) and (g), Florida Administrative Code. That in addition, the Respondent, Killingsworth Environmental, Inc., regularly parked trucks containing pesticide at that location during nighttime hours, published in the 2002-2003 Bell South Telephone Directory under Pest Control Services in the yellow pages of the telephone directory, a listing for "Environmental Security", a name under which it did business, and its employees received by facsimile daily work assignments that were sent to them at that location. That the Respondent, Killingsworth Environmental, Inc operated an unlicensed business location at 1830 Galvez Road, Gulf Breeze, Florida, in violation of Section 482.071(2)(a), Florida Statutes.[3/] The property located at 1830 Galvez Drive is surrounded by a locked fence and contains a structure. The structure is not enclosed. Both KEFL and Environmental Security of Okaloosa park trucks there overnight. The Department conducted an inspection of 1830 Galvez Drive on July 16, 2003. When the inspectors arrived, the gate to the property was locked and the trucks were locked. They entered the property when pest control employees arrived. On the day of the inspection, the Department's inspectors found unmixed chemicals in the trucks. Clifford Killingsworth acknowledges that at the time of the inspection, company trucks parked at the Galvez Drive location overnight and pesticides were in the locked trucks. Company records or contracts are not stored at the Galvez Drive location. No customer contact takes place at or from the Galvez Drive location. The Pest Control Business License Application Form contains a space in which the licensee must respond to the following: "Designate location where pest control records and contracts will be kept and the exact location address for storage of chemicals if other than licensed business location." The applications for business license for KEFL d/b/a Environmental Security do not reference 1830 Galvez Road as a location where storage of chemicals occurs. KEFL does not have a license for operating a business at this location. The yellow pages for the Pensacola area contains a listing in red ink for "Environmental Security, Inc." It lists an address of 4141 Pine Forest Road with the telephone number 473-1060. There is another reference to "Environmental Security" in black ink in smaller type which lists the address 1830 Galvez Drive with the number 916-7731.4/ Clifford Killingsworth arranged to have a phone line for a fax machine to be located in a trailer at the Galvez Drive location. The purpose of installing a fax line at Galvez Drive was for employees to receive daily schedule assignments. The 916-7731 number listed in the yellow pages is the number of the fax machine. Clifford Killingsworth did not request a listing for the number of the fax machine. However, the telephone company listed it in the phone book. Clinton Killingsworth has requested the local telephone company remove the erroneous listing a number of times. Count 13 Count 13 of the Administrative Complaint reads as follows: During an inspection on July 11, 2003 the Department found that pesticide was kept at 4141 Pine Forest Road in a container other than application equipment and not accurately identified through the use of permanent, durable label or tag, showing the common or chemical name(s) of principal active ingredients(s), which is a violation of Chapter 5E-14.106(4), Florida Administrative Code. On July 11, 2003, the Department conducted an inspection of KEFL's business location, 4141 Pine Forest Road. One of the inspectors that day was Bruce Nicely, a regional supervisor of the Department's Bureau of Entomology and Pest Control. He was accompanied by Paul Matola of the Department, who did not testify at the hearing. During the inspection, Clifford Killingsworth opened a storage trailer for inspection. Mr. Killingsworth described the trailer as a jug disposal trailer, where empty jugs and drums were stored until they could be recycled or disposed of properly. At the back of the trailer, Mr. Nicely found a two- and-one-half gallon unmarked jug inside a five-gallon bucket. An unidentified substance was inside the jug. Mr. Nicely took a sample of the substance inside the jug, pouring it directly into an eight-ounce sample jar. He labeled the jar "PHY number 07110346060107" and placed the sample in a sealed sample collection bag which was put in a cooler of ice. When completing the pesticide collection report, he wrote "pesticide screen" in a blank after the words, "List active ingredient(s) and/or compounds to analyze for." Mr. Nicely then gave the sample to Steven Dwinnel, at 4:35 p.m. on July 11, 2003.5/ Mr. Dwinnel relinquished the sample to Mike Page at 8:03 p.m. on July 11, 2003. At the time, Mr. Page was the director of the Department's pesticide laboratory. Mr. Page has an undergraduate degree in chemistry and a graduate degree in toxicology and pharmacology with over 16 years of experience as an analytical chemist. When Mr. Page received the pesticide collection report, the word "Lindane" also appeared on the report along with the request for a pesticide screen. It is not clear who wrote the word "Lindane" on the collection report or when the word "Lindane" was written. According to Mr. Page, a pesticide screen includes testing for Lindane. He therefore concluded that whether or not the word "Lindane" was included in the request for analysis made no difference in the lab's testing. An analysis of the sample was performed revealing that the sample contained a concentration of 34.2 percent Lindane and 46 parts per million of Chlorophyrifos. Mr. Page described the amount of Chlorophyrifos compared to the Lindane as a minuscule amount. Both Lindane and Chlorophyrifos are pesticides. The undersigned is persuaded that the Department appropriately maintained the chain of custody of the sample regardless of whether or not the word "Lindane" appeared on the collection report. The fact that "Lindane" appeared on the collection report sometime after Mr. Nicely relinquished it and the sample is of no consequence as to the validity of the laboratory testing of the sample. Clifford Killingsworth is uncertain as to whether his company ever used Lindane but is certain that they have not used it in recent years as it has been "off the market" since approximately 1999. Two other pest control companies, Environmental Security of Okaloosa, Inc. and Atlas Termite and Pest Control of Cantonment, Inc., also use the trailer from which the sample was taken, to store empty pesticide containers. Clifford Killingsworth does not know if the jug from which the sample was taken belonged to his company. Although he was aware that his company stored empty pesticide jugs in the trailer, he was unaware that a jug in the trailer contained an unidentified substance. When asked under cross-examination what he would have done had he been aware of a jug containing an unidentified substance, he answered that he probably would have called the landfill to see when the next "roundup" would be as that is when the landfill takes "unidentifieds."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that a final order be entered assessing a fine against Respondents in the amount of $2,600. DONE AND ENTERED this 25th day of May, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 2005.
The Issue The issue for consideration in this case is whether Respondents, Hugh H. Warnock and Terminix International Company, L.P. (Terminix), should be administratively disciplined by the Department Of Agriculture and Consumer Services, (Department), because of the matters alleged in the Notice to Impose Fine dated September 10, 1996.
Findings Of Fact At all times pertinent to the issues herein, the Department of Agriculture and Consumer Services was the state agency responsible for the licensing of pest control companies and applicators in Florida. Respondent, Terminix, was licensed as a pest control company and Respondent, Warnock, was licensed as a pest control applicator in Florida, and was employed by Terminix International Company, L.P. On January 22, 1996, Mr. Warnock conducted a termite inspection at property owned by Gordon C. Williamson located at 704 Court Street in Clearwater, at Mr. Williamson’s request. The property was a single story commercial building. Upon completion of his inspection, Mr. Warnock prepared and issued to the owner a wood-destroying organisms inspection report on which he certified he had inspected the premises, except for the attic which was inaccessible. Mr. Warnock noted that he found no visible evidence of wood destroying organisms, no evidence of visible damage and no visible evidence of previous treatment. He noted, however, that in January 1988, the premises previously had been treated for dry wood termites. As a matter of record, the January 1988 inspection and treatment was conducted by ARAB Pest control which, since that time, had been taken over by Terminix. Mr. Warnock qualified his inspection report by the comment, “This report is based on what was visible to me at the time of inspection.” The purpose of a wood destroying organism report is to note existing or present activity of wood destroying organisms, or damage done as a result of that activity. Most frequently, the inspection is done for buyers of property or those who are lenders to those who buy, though quite often owners of property have it done as a part of or in preparation for a treatment program to protect against the organisms. On the visit in issue, Mr. Warnock did the inspection by himself. Having seen vents in the lower portion of the outer wall on his way up to the property, he thought there might be an air space, not necessarily a crawl space, under the floor. After speaking with the owner, and telling him what was intended, Warnock started his inspection at the north end of the building where he found sheet rock against the walls and a dropped ceiling. This particular area was one where old furniture was stored. Mr. Warnock went from area to area in the building, and was able to do his inspection better in some places than in others because of the clutter inside. He also inspected around the outside of the building, after which he went to ask Mr. Williamson how he could get to the space beneath the floor in the center of the building. In response, according to Respondent, Mr. Williamson said he didn’t know of any access to that area and suggested Warnock ask someone else. With that, Warnock inquired of the other individual working in the building, who, Warnock asserts, also said he didn’t know of an access. Though Warnock claims he looked as best he could throughout those portions of the building accessible to him, because of sawdust and lumber on the floor, and the wood working machinery there, he could not see any access ports. It was subsequently determined that there are three crawl spaces located under the north part of the building which are separated by concrete footings. These spaces are accessible through access ports in the floor above them. Mr. Warnock definitively states that had he known of any access ports to the crawl space, he would have gone down into it to look for damage or organisms. It is so found. Mr. Warnock takes exception to the photographs introduced by the Department, taken by Mr. Caudill several months after his initial visit, contending they do not accurately reflect the conditions he encountered during his January 1996 visit. The major difference is that at that time, sawdust and machinery covered the floor access panels that appear unencumbered in the pictures, and they were not visible to him when he looked. Admittedly, he did not ask that any of the equipment or wood be moved or that the sawdust be swept away. Subsequent to Warnock’s inspection, Mr. Williamson called the Terminix office and advised he had discovered damage at the north end of the building. This damage was found by Warnock on a return visit to be behind the drywall previously mentioned, and was determined to have been caused by drywall as opposed to subterranean termites. The treatment done under the contract with ARAB in 1988 was for drywall termites, and there was no contract to treat for subterranean termites. On the second visit Warnock again asked Mr. Williamson about any access ports, and, according to Respondent, Williamson again denied knowing of any. A second inquiry of the other gentleman on the premises met with the same response again, but on this occasion, when he looked down at the floor, Warnock saw an access hole in the floor, and when asked directly about it, the man admitted he had cut it into the floor about two years previously. Warnock claims that when he asked if there were other holes, the man said there were not, but this individual did not appear or present testimony at hearing. The hole was no more than a series of cuts across the floor boards between the floor joists which, since there was no handle, were removed one at a time by being pried up. When Respondent and his assistant manager, who was present with him on this visit, got down into the crawl space, they found no evidence of infestation. At that time, the other access holes subsequently found to exist were not known to be there. Respondent steadfastly contends that none of the access holes were visible to him or pointed out to him on inquiry of the occupants at the time of his January 1996 visit. As such, he claims, they were not accessible to him at that time. It was only after the second visit my Mr. Warnock that on June 4, 1996, Williamson submitted his complaint to the Department. In response, on June 7, 1996, Todd Caudill, a pest control environmentalist with the Department, went to the site and re-inspected it. During his inspection, done some six months after Warnock’s initial visit, Mr. Caudill found termite tubes and other evidence of infestation in the crawl space under the building when he went into it. He took photographs of what he saw. Mr. Caudill is 5’11’ tall and weighs about 260 pounds. Notwithstanding, he had no trouble getting down into the crawl space through the existing access holes. Mr. Caudill could easily see the termite tubes, and in his opinion, they were there before Warnock’s January 1996 inspection of the property. He bases this opinion on the dryness of the tubes, the lack of active termites there, and the extent of the damage existing. He could look up into the rafter area because the ceiling had been removed due to renovation, but could see no termite activity there. Mr. Caudill returned to the property for a second visit on June 25, 1996, at which time he took additional photographs. This second series of pictures included the second crawl space, on the East side of the building, and several additional access holes in the floor of the building. Mr. Caudill indicates that when he asked about additional access holes, he was directed to a portion of the building where, when he went there, he was able easily to find the portals without having them pointed out to him. He could not see where any of the access portals had been covered by machinery nor did it appear to him that any of the machinery recently had been moved. The machinery was not so big that it would cause a major obstruction. It was on this second that Mr. Caudill procured an affidavit from Mr. Williamson which indicates that when Mr. Warnock was there for his inspection, the access ports were not obstructed and had not been obstructed for the six years the tenant has occupied the space. Mr. Williamson was not present at the hearing to testify in person nor was his absence explained by counsel for the Department. No explanation was given by the Department as to why Williamson could not be present or his testimony preserved by deposition. Therefore, it is found that Mr. Williamson’s affidavit is inadmissible as hearsay evidence and is not considered. In Mr. Caudill’s opinion, Warnock’s report of his inspection of the Williamson property in January 1996 is not a complete report since it did not cover the area of the crawl space. Based on his investigation of the situation, Mr. Caudill recommended a fine of $500.00, after which, on September 10, 1996, the Department issued its Notice of Intent on which the alleged violations found are listed. At the time Mr. Caudill did his investigation of Mr. Warnock’s inspection, he had been employed by the Department less than a year. He is not licensed as a pest control operator, but had been trained in the classroom and in on the job training with other operators, and had done three inspections on his own. According to Mr. Chandler, the Terminix branch manager who went with Mr. Warnock to the Williamson property in May 1996 as a result of Mr. Williamson’s call, termite damage was discovered in the walls of the building when the covering was removed for repairs and renovation. Williamson seemed to feel that this area had been missed by Respondent when he was there in January. In response, Mr. Chandler supported Respondent, indicating the damage, as it existed and where it was, could not have been found by Respondent’s inspection. He offered to put in place a new treatment plan. Whether Mr. Chandler also spoke with Mr. Williamson about access holes is questionable. On one hand, Chandler said he did speak with him about them, yet at another point in his testimony, he could not recall asking Williamson about access ports. When the ports were discovered and opened, and Chandler went down into the crawl space, he found no evidence of infestation in that crawl space. The only evidence of termite damage observed by Chandler did not extend up from the crawl space, but existed in a beam which rested on a concrete slab in the area opened for renovation. Dr. John Mangold has worked in the pest control industry for seventeen years and is familiar with the laws and rules relating to wood destroying organism reports. To his understanding, equipment on the floor of a building renders the area underneath it inaccessible, and an inspector cannot deface an area in order to do an inspection. The inspection report done in 1988 reflects that a crawl space was not inspected at that time because it was N/A. Counsel agree this means “not accessible.” The second report, done by Mr. Warnock, is consistent with the former in that it also reflects the crawl space was not inspected because it was inaccessible. Since the vents on the side of the exterior wall, near the ground give rise to a presumption there is a crawl space there, if the inspector cannot find access ports, he should note that fact in the report and indicate why he could not get to it. Though Respondent did not do this, it does not invalidate a finding that at the time of his inspection, the crawl space was not reasonably accessible to him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Agriculture and Consumer Services enter a final order dismissing its Notice of Intent to Impose Fine. DONE and ENTERED this 23rd day of May, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1997. COPIES FURNISHED: Linton B. Eason, Esquire Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 James M. Nicholas, Esquire 1815 South Patrick Drive Indian Harbour Beach, Florida 32937 Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level Ten Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level Ten Tallahassee, Florida 32399-0810
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
