Findings Of Fact Respondent Charles T. Noegel has been in the pest control business for some sixteen years. In February of 1976, the petitioner Office of Entomology sent all licensees a license renewal application for a license to be effective on March 31, 1976. Petitioner received a check from respondent, but the proceeds thereof were applied to review respondent's pest control operator's certificates. A check sent by respondent during 1975 had been returned for insufficient funds. A pest control business license cannot be issued unless there is evidence of a current operator's certificate in existence. Petitioner did not receive respondent's application or a check for the license which was to be effective on March 31, 1976. In June of 1976, petitioner notified respondent that they needed his application and a check for the renewed license. They also sent him an application form. According to respondent, he did not receive the entire application form. Respondent testified that he telephoned the petitioner's office in Jacksonville on two or three occasions and told a secretary there that he did not have a complete application form. In March of 1977, Mr. Page from petitioner's office called respondent. Respondent was not available and Mr. Page left the message with respondent's answering service that respondent was operating illegally without a license and asked Mr. Noegel to call him. Mr. Page received no reply from this message. According to Mr. Noegel, he received the message but did not receive the name or telephone number of the person who left the message. In April of 1977, petitioner did receive from respondent an application for the renewal of his operator's certificate and a check. Respondent has been delinquent in the past in applying for his license, and various checks have been returned for insufficient funds. Had respondent timely applied and paid for the renewal of his March 31, 1976, license, petitioner would have issued the license to him. By certified letter dated August 10, 1978, petitioner notified respondent that his pest control operator's certificate number 519 was being revoked for failure to comply with Chapter 482 of the Florida Statutes and Chapter 10D-55 of the Florida Administrative Code. Generally, respondent was charged with conducting his pest control business, known as the Seminole-Gator Exterminator, without a license. While more specific charges are contained in the August 10, 1978, letter, petitioner offered no evidence at the administrative hearing to substantiate such specific allegations.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner find that respondent violated Section 482.071(1) by operating his business without a valid license. It is further recommended that respondent's operator's certificate number 519 be suspended for a period of sixty (60) days from August 10, 1978, and that upon the payment of all back license renewal fees, respondent's certificate be reinstated, and respondent be placed on probation for a period of eighteen months. The terms of probation should include the timely renewal and payment of all permits required by petitioner's laws and regulations. Respectfully submitted and entered this 6th day of October, 1978, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1978. COPIES FURNISHED: Charles T. Noegel Entomologist - Manager Seminole Gator Exterminator 1409 Pichard Drive Tallahassee, Florida 32304 Donna Stinson, Esq. Department of HRS 2639 N Monroe Street Suite 200-A Tallahassee, Florida 32304 William J. Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Andrew J. Rogers Director, Office of Entomology Department of HRS Post Office Box 210 Jacksonville, Florida 32231 =================================================================
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 The issues in this case are whether Respondent violated Subsections 482.121(1)(a) and 482.121(1)(b), Florida Statutes (2007),1 and, if so, what discipline should be imposed.
Findings Of Fact PFSG, Inc., d/b/a US Lawns of Destin (US Lawns),2 submitted a Pest Control Business License Application to the Petitioner, listing Mr. Lewis as its certified operator in charge for lawn and ornamental pest control, effective August 9, 2007. Mr. Lewis’ certificate number is Jf 13685. US Lawns had been operating on an emergency certificate from June 6, 2007, until Mr. Lewis’ employment on August 8, 2007. In its application for a business license, US Lawns requested that its emergency certificate be canceled as of August 8, 2007. In order for a pest control company to operate, the company has to have a certified pest control operator in charge of the pest control activities at the licensed business location. If a company does not have a certified operator to serve as the certified operator in charge, an emergency certificate can be issued and renewed monthly up to a year, allowing an employee who did not have a certified operator’s certificate to serve as the certified operator in charge. As the certified operator in charge for US Lawns, Mr. Lewis applied to Petitioner for a pest control employee identification card, effective August 9, 2007. He listed the commencement of his employment with US Lawns as August 9, 2007. He also stated that his last employment with a pest control company had ended on June 11, 2007. A pest control employee identification card was issued to Mr. Lewis by Petitioner. Mr. Lewis’ wife died on July 4, 2007. Petitioner received a complaint that Mr. Lewis was not working full time for US Lawns and was allowing US Lawns to use his certificate to maintain its business license. Based on the complaint, Michael Walters, who is employed by Petitioner as an environmental specialist II, began an investigation. Mr. Walters went to US Lawns' office and made an inspection. On October 31, 2007, Mr. Walters went to see Mr. Lewis at Mr. Lewis’ home for the purpose of interviewing Mr. Lewis. Mr. Lewis gave Mr. Walters a signed affidavit, which stated: I work full time with U.S. Lawns of Santa Rosa Beach. I have been part time since the loss of my wife, but I do go to work at least once a week and check on things. I do all the training for card holders and such. As soon as I feel better I should be back fulltime. I have been there around 5 yrs., minus one year with another company. In his request for an administrative hearing, Mr. Lewis stated: “I was on vacation for 4 weeks, due to the death of my wife,” and I was not working part time ever. The evidence is clear that Mr. Lewis was not working full time for US Lawns from the time of his wife’s death until at least the date of his affidavit, October 31, 2007.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Lewis violated Subsection 482.121(1)(a) and 482.121(1)(b), Florida Statutes, and revoking his certified operator’s certificate. DONE AND ENTERED this 19th day of August, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 19th day of August, 2008.
The Issue Whether the Petitioner is entitled to fees as a prevailing small business party pursuant to Section 57.111, Florida Statutes.
Findings Of Fact The Respondent is the state agency charged with the authority to oversee and govern the Medicaid Program in Florida. To that end the Agency has established a Medicaid Program Integrity Bureau that seeks to detect and prevent fraud and abuse by Medicaid providers. The Petitioner is a pharmacy provider within the purview of the Florida Medicaid Program. As such, it is accountable to the Agency for its accounting practices and records. At all times material to the underlying case in this matter (DOAH Case No. 00-4708) the Agency employed auditors who routinely review the records of Medicaid providers being reimbursed through the Medicaid Program. In DOAH Case No. 00-4708 such auditors determined that the records maintained by the Petitioner did not accurately reflect information needed to verify and support the billings for which the Medicaid Program had reimbursed the Petitioner. In one instance, the Petitioner did not produce authorizations for a substitution of a prescribed drug. In a separate claim, the Agency maintained that the records indicated an invoice shortage for a prescribed medication. In other words, the provider had allegedly billed for a certain amount of drugs but the acquisition records and invoice records did not establish that quantities in a corresponding amount had been purchased for dispensing. The Agency hired Heritage Information Systems to perform an independent audit of the Petitioner. That audit supported findings unfavorable to the Petitioner in that it identified a substitution problem. The substitution of a more expensive drug for a less expensive prescribed drug is not permissible under the Medicaid Program guidelines without authority from the prescribing physician. As it relates to this case, the prescribing physician was Dr. Sachs. Coincidentally, Dr. Sachs owns the Petitioner. At all times material to the auditing period, the Agency interviewed Dr. Sachs, reviewed all records provided to it at the Petitioner's office, and believed that Dr. Sachs had not authorized the substitution of the more expensive drug for the drug prescribed. Thus, when the records indicated the Petitioner had substituted and billed Medicaid for the more expensive drug, a substitution issue was documented. This claim formed the basis for DOAH Case No. 00-4708. Dr. Sachs appeared before the auditors on more than one occasion and did not indicate that he had authorized any substitution for the prescribed item. At all meetings with Dr. Sachs the Agency believed that the doctor had written prescriptions for IVIg. In fact, Dr. Sachs wrote prescriptions for IVIg, Dr. Sachs did not write prescriptions for CytoGam. As to all prescriptions written for IVIg, the Medicaid Program was billed for a drug known as CytoGam. The substitution of CytoGam for IVIg formed the crux of the auditing dispute. Based upon the substitution issue, the Agency elected to attempt recovery against the Petitioner for the unauthorized substitution of the more expensive drug. Not once during the auditing process did the Petitioner or Dr. Sachs allege that the substitution had been authorized. No records were produced during the audit to support the substitution. Nevertheless, in anticipation of trial and within a short time before hearing on the underlying case, the Petitioner produced documents that supported the Petitioner's claim that Dr. Sachs had authorized the substitution. This assertion was directly opposite of the position formerly held by the doctor. Moreover, given the short time remaining until hearing, the Agency had no opportunity to verify the authenticity of the exculpatory documents. Rather than proceed to hearing on the unauthorized substitution claim, the Agency filed a Motion to Relinquish Jurisdiction based upon its decision to rescind the action against the Petitioner. Such motion was treated as a voluntary dismissal. Subsequently, the hearing was canceled and the Division of Administrative Hearings relinquished jurisdiction to the Agency. A final order was entered by the Agency on July 19, 2001. The Agency has not contested the timeliness of the Petitioner's claim for fees and costs pursuant to Section 57.111, Florida Statutes. The Agency does not dispute that the Petitioner is a small business as defined by Section 57.111, Florida Statutes. The Agency maintains its actions were substantially justified in the underlying case and that the Petitioner is not a prevailing party as a matter of law. The Petitioner argues that had the Agency done its job of auditing more thoroughly the actions against the Petitioner would have been avoided. As such, the Petitioner maintains it is entitled to recover fees and costs in the amount of $15,000. The Agency does not dispute that the Petitioner incurred fees and costs in excess of the statutory cap in defense of the underlying case. One of the complicating factors in the case was the issue of whether CytoGam was a permissible substitution to fill a prescription written for IVIg. The issue of permissible substitution then was clouded by the fact that until preparations for hearing were being finalized the Agency did not know that Dr. Sachs had authorized the substitution. Presumably, had there been no authorizations, the question of permissible substitution of the drugs would have been the focus for trial. Once the exculpatory documents were produced by the Petitioner, the Agency's theory of the case was left questionable. Permissible or not, the doctor had authorized the substitution. Because the Petitioner had dispensed the drug billed to the Medicaid Program, the billing of the substituted more expensive drug would have been authorized. Additionally, had Dr. Sachs written prescriptions for CytoGam, the auditing process would have supported the records initially produced by the Petitioner.
Findings Of Fact Evidence adduced by the Petitioner in the form of the testimony of F. Robert DuChanois, an entomologist and supervisor in charge of commercial pest control, Office of Entomology, Department of Health and Rehabilitative Services, as well as Exhibit 2, established that on July 1, 1979, the Respondent made an inspection of an apartment house in Hallandale, Florida, to determine whether suspicions by the occupants of drywood termite infestations were well-founded. As delineated in Exhibit 2, the Respondent's report of his inspection, positive evidence was found in a number of places of termite infestation, which findings revealed that indeed the Respondent made a detailed professional investigation of the premises for such infestations. The evidence in the record also reveals (Exhibit 4) that the Respondent is not operating a pest control business, but is only performing consulting work for those property owners who request that he make inspections for termite and other wood-destroying pests. In any event, the Respondent, in the posthearing pleading he filed, has agreed to cease the activity objected to and which forms the basis of the Petitioner's charges. He has agreed to cease practicing consulting work in entomology henceforth.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law and the evidence in the record, it is, therefore, RECOMMENDED that the Petition in this cause filed by the Department of Health and Rehabilitative Services against Dr. A.C. Banerjee be DISMISSED and Case No. 80-2160 be hereby closed. DONE AND ENTERED this 10th day of August, 1981, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1981. COPIES FURNISHED: Harold L. Braynon, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Ft. Lauderdale, Florida 33301 Dr. A. C. Banerjee 10891 N.W. 17th Manor Coral Springs Branch Pompano Beach, Florida 33065 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, vs. CASE NO. 80-2160 DR. A. C. BANERJEE, Respondent. /
Findings Of Fact Respondents, during all times here involved, were licensed by Petitioner as alleged and operated three separate pest control offices in Jacksonville, New Smyrna Beach and Palatka. During the period between May 1976 and April 1977 no certified operator was registered with Petitioner at the Jacksonville or New Smyrna Beach offices. During this period numerous fumigation contracts were entered into by Respondents. When these contracts were carried out all fumigation was performed under the supervision of a currently registered certified operator who was attached to the Palatka office owned by Respondents. Between June 1976 and October 1977 24-hour advance written notice of fumigation was not provided by Respondents to the health authorities in Duval County on five occasions and to the health authorities of Volusia County on six occasions. However, the health inspectors of each county apparently received telephone notice because they inspected the fumigations for which the written notice was not provided a higher percentage of times than the average inspection for fumigation for which 24-hour written advance notice was provided. Several violations involved the certified operator notifying HRS by letter that he would be certified operator for a specific office commencing on a given date and thereafter failing to submit the proper forms to obtain a current pest control identification card for the office at which he worked. Proper registration of pest control salesmen and certified operators requires the issuance of a pest control identification card for a specific location. On some occasions the charges resulted from Respondent, United Pest Control, acquiring another pest control company and continuing operations under United Pest Control without having changed the pest control identification cards of these employees. Two charges involved agents of Respondent who entered into contracts with customers. One resulted from a complaint that the agent inaccurately advised the customer that there was termite infestation and one involved a complaint of improper treatment for subterranean termites. After the customers complained to governmental authorities Respondents refunded their money. When Respondent Powell attempted to inspect the premises to verify the complaint of these two customers he was denied access to the premises by the customers. The certified operator in the Palatka office was used to supervise a fumigation contract obtained in the Jacksonville office and the New Smyrna Beach office during the period here involved. He told Respondent several times that it was a violation of the regulation for him to perform the fumigation on contracts in these other offices, but only after he reported this to HRS was the practice stopped. At the time of the hearing the Jacksonville pest control operation had been sold by Respondent United Pest Control.
The Issue Whether information Petitioner provided on pages 36-39 of its SOQ should be considered by the Respondent and, if considered, whether Petitioner should be included in the group of firms within the competitive range?
Findings Of Fact Background On September 11, 1987, Respondent issued Solicitation 8804 for the purpose of selecting a group of contractors which could potentially be awarded contracts to clean up petroleum contamination sites. On September 29, 1987, Respondent held a mandatory contractor's meeting to answer questions from potential contractors regarding the work being procured and the instructions for completing the SOQ. Mr. Paul Gruber attended this meeting on behalf of Petitioner. On October 13, 1987, Respondent cancelled Solicitation 8804 in order to make changes in the solicitation package and to correct an error in the published notice of the contractor's meeting. The notice did not indicate that the meeting was mandatory. Petitioner did not receive timely notice of the cancellation and submitted a SOQ. Respondent returned the SOQ to Petitioner unopened. On October 23, 1987, Respondent issued Solicitation 8809, which was essentially similar to Solicitation 8804. On November 9, 1987, Respondent held a contractors' meeting to answer questions regarding the work being procured and the preparation of the SOQ. In contrast with the contractors' meeting on Solicitation 8804, attendance at this meeting was not mandatory. Petitioner chose not to attend the meeting. Solicitation 8809. Solicitation 8809 consisted of a package which included the following: a pink cover sheet indicating where the SOQ should be submitted and containing the general conditions of the Solicitation; a transmittal letter; Attachment A, General Instructions; Attachment B, Instructions for Preparation of a SOQ; Attachment C, Conflict of Interest; Attachment D, Insurance; Attachment E, Minority Business Certificate; Attachment F, Evaluation Scoresheet; Attachment G, Standard Form 255, Attachment H, Chapter 17-70, F.A.C., Draft Petroleum Contamination Site Cleanup Criteria; Attachment I, Chapter 17-71, F.A.C., Petroleum Contamination Site Priority- Ranking Rule; and Attachment J, Air Stripping Guidelines. Attachment B contained the instructions for preparation of a SOQ, which was to consist of two parts: (1) a transmittal letter, limited to a length of one page, and (2) the SOQ, limited to 35 pages in length. The instructions stated that "the SOQ shall contain the following seven sections:" 1. Introduction, 2. Company Background, 3. Qualifications, 4. Project Management, 5. Personnel Assigned and Availability, 6. Past Performance, and 7. Minority Business Utilization. The instructions for Section 6, Past Performance, required that the contractor list a minimum of ten former clients other than Respondent and provided the format for presenting the required information about former clients. Also, the instructions provided that "All FDER (Respondent) contract work shall be listed separately along with the ten clients described above." The instructions for Section 7, Minority Business Utilization, provided, in part, that "Contractors submitting SOQs under this solicitation must identify intended minority subcontractors and estimated percentage of total contract amount to be awarded to minority firms (Attachment E)." Attachment E is a two-page document titled "Minority Business Certificate." The document first cites the statutory and rule provisions dealing with and defining minority business, and sets forth that "certification information may be obtained by contracting the ... Department of General Services..." The document then continues with the following: Responders shall indicate on the following form if they or proposed subcontractors are small minority businesses as described in Chapter 13- 8.005, F.A.C. and determined by the Department of General Services Office of Minority Business Enterprise Assistance. Copies of certifications should be attached, not to be included in the page count of the response package. Pending certifications should be so-noted. I HEREBY CERTIFY that this business meets the criteria for small, minority business, category ( ) (Signature) (Business Name) (Address) (Address) ATTACHMENT E MINORITY BUSINESS CERTIFICATE Page 2 of 2 I CERTIFY, to the best of my knowledge, the following proposed subcontractor(s) are small minority businesses domiciled in the State of Florida. Subcontractor(s) Subcontract Name and Address business estimate percent of total contract percent of total contract Pages 8 and 9 of Attachment A to Solicitation 8809 set forth the evaluation criteria which Respondent intended to use to select the group of firms which would become eligible to receive contracts. The evaluation criteria were: A.16 Evaluation Criteria General The [Respondent] reserves the right to accept or reject any or all SOQs received and reserves the right to make an award without further dis- cussion. Therefore, the SOQs should be submitted initially in the most favorable form. Nonresponsive SOQs include, but are not limited to, those that: (1) are irregular or not in conformance with the solicitation requirements and instructions; (2) fail to utilize or complete prescribed forms; (3) are conditional, incomplete, indefinite or ambiguous; (4) are intended to accomplish only a portion or por- tions of the overall work; or (5) have improper or undated signa- tures. A nonresponsive SOQ will not be considered. The [Respondent] may waive informa- lities or irregularities in the SOQs received where such are merely a matter of form and not substance, and the corrections of which are not prejudicial to other contractors. Ranking Each SOQ will be reviewed by a technical committee of at least three persons with technical knowledge about petroleum con- tamination site cleanup. Each of the reviewers will work independently using the outline shown in Attachment F. Past performance will be scored based on answers to a standard group of questions received from at least two of the con- tractor's former clients and the [Respondent] if applicable. Only one reviewer will contact any given reference. The [Respondent's] project to be evaluated will be the most recent comprehensive project which is most closely related to petroleum contamination site cleanup. Satisfactory performance for the [Respon- dent] will score no points; but unsatis- factory performance will score negative points. In this way, contractors which have not worked for [Respondent] or which have had satisfactory performance are not penalized. Minority Business Utilization will be evaluated on the percentage of the total contract amount estimated to be awarded to minority business as noted in the contractor's Minority Business Certifi- cate (Attachment E). Each reviewer will use the total point scores to rank the contractors and a mean rank for each contractor will be calculated. The mean rank scores, without accompanying contractor names, will be presented to the chairman of the selection committee who will deter- mine the competitive range. Those contractors in the competitive range will be invited to participate in discussions with the selection committee. Following the discussions the committee will recommend approxi- mately six contractors to the [Respon- dent's] Secretary for contract award. Attachment F to Solicitation 8809 sets forth the scoresheet used by the Respondent's evaluators. A firm could receive a maximum of 132 points from each evaluator. Attachment F provided that a maximum of 13 points could be received for Minority Business Utilization. As set forth in the evaluation criteria, supra, Attachment F provided a maximum score of 0 for Past Performance on a contract with Respondent. Also, Attachment F indicated that "a score of minus 14 can be given for this item" (past performance on a contract with Respondent). Respondent's Evaluation of SOQs Respondent received SOQs from 43 firms in response to Solicitation 8809. Prior to forwarding the SOQs to the members of the Respondent's technical review committee for their evaluation, Ms. Gwenn Godfrey, a Grant Specialist Supervisor II with Respondent's Contract Office and Mr. Douglas A. Jones, Administrator with Respondent's Bureau of Waste Cleanup and chairman of Respondent's Technical Review Committee for Solicitation 8809, counted the pages of each SOQ to determine compliance with the 35-page limitation. On SOQs which exceeded the 35-page limitation, a large "X" was drawn on page 36. The information provided beyond page 35 was not considered by the Technical Review Committee members. Respondent intended that the instructions for Section 7, Minority Business Utilization, would result in contractors submitting information on minority business utilization on Attachment E and including Attachment E within the 35-page SOQ. Upon receiving the SOQs, it became clear that some of the contractors which submitted minority business information had interpreted the instructions differently than intended. Some contractors submitted SOQs which complied with the instructions like Respondent intended. Others, rather than using Attachment E, simply listed the names of the minority businesses they intended to use and the percentage of proposed utilization within Section 7 of their SOQs. Still others included information on minority business in sections of their SOQs other than Section 7. Finally, some contractors, including Petitioner used Attachment E, but did not include it within the 35-page limit. Faced with this, Respondent decided that the different methods of reporting minority business utilization constituted minor irregularities of form and not substance, so long as the information on minority business utilization was provided within the 35-page limit. Contractors which identified the minority business contractors and the percentage of utilization anywhere within the 35- page SOQ were given the same number of points they would have received if they had used Attachment E to provide the information. The Technical Review Committee consisted of five persons and each reviewed the 43 SOQs. Each reviewer ranked the 43 SOQs from 1 to 43, with the firm receiving the most points being ranked number 1. For each firm, the rankings received from the five evaluators were added together and divided by five to produce an overall "mean rank score." The firm with the lowest mean rank score was ranked number 1. The mean rank score and ranking of the top 16 firms were: Mean Rank Score Ranking 2.6 1 2.8 2 3.2 3 3.4 4 3.6 5 6.6 6 7.6 7 8.8 8 11.1 9 11.9 10 12.8 11 13.0 12 14.0 13 14.6 14 15.0 15 16.2 16 By memorandum dated February 5, 1988, Mr. Douglas Jones provided the Respondent's Assistant Secretary with a graph plotting the mean rank score of each firm which submitted a SOQ. The memorandum stated that: Since approximately six contracts will be awarded and a large point difference exists between the eighth and ninth ranked firms..., we recommend inviting the top eight to participate in oral presentations. If time constraints are not severe and more choice is desired, we would recommend inviting the top twelve Although a larger break exists [between the firms ranked 14 and 15] than [between 12 and 13], we feel inviting fourteen firms would be too cumbersome. This recommendation was followed, and the top eight firms were selected as being within the competitive range. Petitioner's SOQ 8809 Petitioner's SOQs in response to Solicitation 8804 and 8809 were prepared under the direction and supervision of Mr. Paul Gruber. Mr. Gruber attended the contractors' meeting held on Solicitation 8804, but did not attend the meeting held in Solicitation 8809. Within the first couple of days after receiving Solicitation 8809, Mr. Gruber and another employee of Respondent each made a page-by-page comparison of Solicitation 8804 and Solicitation 8809 to make sure they understood the differences between the two Solicitations. Mr. Gruber determined that both Solicitations were essentially the same and noted that Attachment E had been changed. He also believed he understood what all the instructions meant. Mr. Gruber decided not to attend the contractor's meeting held in Solicitation 8809, since Solicitation 8804 and Solicitation 8809 were essentially the same and the Solicitation 8809 meeting was not mandatory. He felt comfortable that Petitioner could respond adequately without attending the meeting. Approximately a week before the SOQs had to be submitted to Respondent, Petitioner had prepared a draft of the SOQ. At this point, Mr. Gruber felt that there was some ambiguity in the instructions for Section 6, Past Performance, and Section 7, Minority Business Utilization, of the SOQ, and he was not sure how to present this information. Mr. Gruber was confused with the instructions for Section 7, Minority Business Utilization, because the instructions appeared to provide that Minority Business Utilization was to be included within the 35-page limit. However, the instructions referenced Attachment E, which was titled "Minority Business Certificate", and-among other things, provided that "Copies of certifications should be attached, not to be included in the page amount of the response package." Therefore, Mr. Gruber did-not know whether Attachment E should have been included within the 35 pages or could have been provided outside the 35 pages. Mr. Gruber's confusion about Section 6, Past Performance, was due to information which had been provided by Respondent at the contractors' meeting on Solicitation 8804. At the contractors' meeting a question came up about how to provide information on prior contracts with Respondent. At that meeting, it had been decided that contractors with prior contracts with Respondent only had to identify the project's title and did not have to provide all the other information required for other contracts. However, the written instructions for Section 6 in Solicitation 8809 were identical to those in Solicitation 8804 and indicated that prior contracts with Respondent should be listed in the same manner as any other contracts. Therefore, Mr. Gruber was unsure as to how to include prior contracts with Respondent in the SOQ. In order to get answers to his questions, Mr. Gruber made a telephone call to (904) 487-4831, the telephone number listed on the front page of Solicitation 8809 as being the number where Ms. Gwenn D. Godfrey could be reached. The telephone call was made at 2:18 p.m., on December 1, 1988. Mr. Gruber believes he spoke with Ms. Godfrey, because he asked for her. However, Ms. Godfrey cannot recall speaking with Mr. Gruber or with anyone from Petitioner's company. Mr. Gruber cannot recall if the female person he spoke with identified herself, and it is Ms. Godfrey's practice to identify herself every time she picks up the telephone. Mr. Gruber can remember little of the actual conversation, except for the decisions he made based on the conversation. There is sufficient evidence to support a finding that the telephone conversation took place, but not enough to find that Mr. Gruber spoke with Ms. Godfrey. During the telephone conversation, Mr. Gruber was not specifically told that Attachment E could be outside the 35-page limit; he was told something in the nature of "follow the instructions in the RFSOQ." After further conversation, he came away from the telephone conversation with the general interpretation that placing Attachment E beyond the 35th page was acceptable to Respondent. Mr. Gruber came away from the telephone conversation with less assurance about his questions regarding Section 6, Past Performance, than about the questions regarding Section 7, Minority Business Utilization. While he ended the telephone call without having all his questions answered, he provided his own interpretation of the conversation and prepared the SOQ based on that interpretation. Mr. Gruber's notes from the telephone conversation were as follows: DER Projects - include in page count? List all info separately? Yes MBE Certificate - Follow instructions Attachment "E" not counted. Based on the telephone conversation and his understanding, of the instructions, Mr. Gruber prepared and submitted Petitioner's SOQ listing prior contracts with Respondent on page 36. Page 37 consisted of Attachment E from Solicitation 8804, certifying that one of Petitioner's subcontractors was a small, minority business. Page 38 consisted of page 1 of Attachment E from Solicitation 8809, certifying that another of Petitioner's subcontractors was a small minority business. Page 39 consisted of page 2 of Attachment E to Solicitation 8809 and indicated that each of the two minority business subcontractors would receive 10 percent of the total contract. Respondent's evaluation of Petitioner's SOQ Page 36 of Petitioner's SOQ was marked with a large "x" and with the notation "exceeded page limit." The information on pages 36-39 was not considered. Petitioner was given 1 point for having listed the use of two minority business subcontractors in Section 2 of its SOQ. Petitioner was given minus 14 points for failing to list the prior contracts with Respondent within the SOQ. Respondent ranked Petitioner ninth. If Petitioner's proposed minority business utilization set forth in pages 37-39 of its SOQ had been considered by Respondent, Petitioner would have received an additional 6 points from each evaluator. If Respondent had considered information on minority business utilization provided outside the 35-page limit for all SOQs, the rankings of the top 16 firms would have been as follows: Mean Rank Score Ranking 2.6 1 2.8 2 3.2 3 3.6 4 4.1 5 5.3 6 7.4 7 9.2 8.5 9.2 8.5 12.2 10 12.3 11 13.4 12 13.8 13 15.4 14 16.3 15 16.6 16 The nine firms ranked 1-8.5 are the eight firms, Respondent determined to be within the competitive range, plus Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order finding Petitioner to be within the competitive group. DONE and ORDERED this 29th day of March, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0996BID The parties submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number Reason for Rejection Accepted. RO7 Irrelevant. Accepted. RO2 Accepted. RO4,5 Accepted. RO2,3 Accepted. RO6 Accepted generally. RO6 Accepted generally. RO6 Irrelevant. Accepted generally. RO10 Accepted RO9, 11, except for the last 13 words which are rejected; how this information was to be submitted is the issue in this case. Accepted. RO13 Accepted. RO13 Generally accepted. RO8 Irrelevant. First sentence is irrelevant. Second sentence accepted. RO23 Accepted. RO27 Accepted generally. RO29 Accepted generally, except that use of the word "contradiction" is rejected; this is a conclusion. RO28 Accepted. RO12 Accepted. RO12 Accepted generally, except that finding that Mr. Gruber spoke with Ms. Godfrey is rejected. RO30, 31 Generally accepted as set forth in RO31-34. Accepted. RO17, 35 Accepted. RO35 Irrelevant. Accepted. RO20 Accepted. RO18 29-33. Supported by the evidence but unnecessary for the decision. First sentence irrelevant; second- sentence accepted. RO16, 36. Rejected. Attachment F clearly stated that a score of minus 14 could be received for this item. See RO16 and Conclusions of Law. Accepted. RO16 Generally accepted. RO20 Generally accepted. RO21 Supported by the evidence, but unnecessary for the decision Generally accepted. RO21 Last phrase accepted. RO37. Rest is irrelevant. Supported by the evidence, but unnecessary for the decision. Irrelevant. Irrelevant. Irrelevant and argumentative. Irrelevant. 47-48. Subordinate to RO39. 49-51. Generally accepted. RO39 Irrelevant. Irrelevant. 54-56. Irrelevant. 57-60. Supported by the evidence, but unnecessary. 61-63. Irrelevant. 64-65. Supported by the evidence, but unnecessary. The Respondent's Proposed Findings of Fact 1-3. Rejected, not a Finding of Fact Second and third sentences generally accepted; first and fourth sentences irrelevant. Generally accepted. RO1 and 2 Accepted. RO2-4 Accepted RO5, 10, 11 Generally accepted. Generally accepted. RO25 First and second sentences accepted. RO6. Third and fourth sentences are irrelevant. Accepted. RO17 and 18 12-13. Supported by the evidence, but unncessary. 14-15. Generally accepted. RO14, 20 16. Generally accepted. RO21. Last sentence is rejected as not a fact. 17-27. Rejected as not being findings of fact; they are arguments, conclusions or recitations of testimony. 28. Generally accepted. RO9 and 10. Last sentence rejected as a conclusion. 29-30. Rejected as argument and conclusion. Generally accepted. RO19 Generally accepted. RO12 Addressed in Conclusion of Law portion of RO. 34-41. ; 43-45, 49-60. Rejected as recitation of testimony. 42. Argument and conclusions. Generally accepted Generally accepted. Last sentence is irrelevant. First sentence accepted. Last sentence rejected to extent it states that a telephone conversation did not take place. Rest of paragraph is irrelevant. Rejected as conclusion and argument. COPIES FURNISHED: Terry Cole, Esquire M. Christopher Bryant, Esquire OERTEL & HOFFMAN, P.A. P. O. Box 6507 Tallahassee, Florida 32314-6507 Gary Early, Esquire Assistant General Counsel State of Florida Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Barrett Johnson, Esquire Post Office Box 1308 Tallahassee, Florida 32302 William D. Preston, Esquire Thomas M. DeRose, Esquire Post Office Box 6526 420 First Florida Bank Building Tallahassee, Florida 32314
The Issue Whether Respondents Lee Ann Kennedy ("Kennedy") and Kenco Industries, L.L.C. ("Kenco"), engaged in various activities constituting pest control under chapter 482 without having obtained the required licenses from Petitioner Department of Agriculture and Consumer Services, in violation of sections 482.161(1)(j), 482.165(1), and 465.191(1), Florida Statutes.
Findings Of Fact The Parties Petitioner is the state agency charged with administering the Structural Pest Control Act, chapter 482. Respondent Kennedy is a resident of Wellington, Florida. Respondent Kenco Industries, L.L.C., is a registered Florida Limited Liability Company. Kennedy is the manager and sole member of, and the registered agent for, Kenco. Pest Control Regulation under Chapter 482, Florida Statutes Chapter 482 authorizes Petitioner to regulate activities constituting "pest control" and to impose sanctions for violations of that chapter. "Pest control" is broadly defined in section 483.021(22) as: The use of any method or device or the application of any substance to prevent, destroy, repel, mitigate, curb, control, or eradicate any pest in, on, or under a structure, lawn, or ornamental; The identification of or inspection for infestations or infections in, on, or under a structure, lawn, or ornamental; The use of any pesticide, economic poison, or mechanical device for preventing, controlling, eradicating, identifying, inspecting for, mitigating, diminishing, or curtailing insects, vermin, rodents, pest birds, bats, or other pests in, on, or under a structure, lawn, or ornamental; All phases of fumigation, including: The treatment of products by vault fumigation; and The fumigation of boxcars, trucks, ships, airplanes, docks, warehouses, and common carriers; and The advertisement of, the solicitation of, or the acceptance of remuneration for any work described in this subsection, but does not include the solicitation of a bid from a licensee to be incorporated in an overall bid by an unlicensed primary contractor to supply services to another. Petitioner is authorized to issue licenses to qualified businesses to engage in the business of pest control in this state. § 482.165(1), Fla. Stat. It is unlawful for any person, partnership, firm, corporation, or other business entity to engage in the unlicensed practice of pest control as that term is defined in section 482.021(22). Id. Section 482.191(1) makes unlawful the advertisement of pest control services except as authorized under chapter 482. Absent limited circumstances not applicable here, persons or entities engaging in such advertisement must be licensed by Petitioner to practice pest control. Petitioner also is authorized to fine persons who impersonate an employee of Petitioner. § 482.161(1)(j), Fla. Stat. Respondents' Acts Alleged to Violate Chapter 482 Respondent Kennedy did not hold a pest control business license or other license to practice pest control at any time relevant to this proceeding.2/ Respondent Kenco also did not hold a pest control business license or other license to practice pest control at any time relevant to this proceeding. On or about April 1, 2011, Kennedy entered Saigon Oriental Market in Lake Park, Florida. According to its owner, Hung The Thach, Kennedy walked around the store inspecting it, then told him that she was employed by Petitioner, that some of his produce was infested by insects, and that he would have to have pest control services performed or she would return in a week to conduct another compliance inspection. Kennedy gave Mr. Thach the telephone number for Outside In, a pest control company, and the business card of its owner, Dennis O'Rourke. Concerned that Kennedy would shut down his store or fine him, Mr. Thach called Outside In; the following day, an employee of that company performed pest control services at the store. Outside In performed additional pest control services at the store on or around May 26, 2011. Mr. Thach paid Outside In for these services. In mid-May 2011, Kennedy inspected Fajita's Super Market in Lake Worth, Florida, and told its owner, Ali Jaber, that she was employed by Petitioner as an inspector, and that he had a fly problem in his store. She recommended that he contact Outside In to correct the problem. Mr. Jaber told her he used another pest control company, but thereafter, a representative from Outside In visited the store, left a business card with Mr. Jaber, and offered to provide pest control services for the store for $150.00 per month with no contract. Kennedy returned to the store approximately a week later and wanted to know why nothing had been done to correct the fly problem; she also asked an employee of Fajita's who was going to pay for her time to inspect the store; when she was referred to Mr. Jaber, she left the store and did not return. On or around May 24, 2011, Kennedy entered the Fortune Cookie oriental supermarket in West Palm Beach, Florida, and told its president, David Chang, that she was with an inspector with Petitioner. She inspected the store, told him that there was a fly problem, and stated she would return in two weeks. Mr. Chang testified that Kennedy did not provide him the name of any pest control businesses, but that approximately a week before Kennedy inspected the store, a representative of Outside In had come to the store and tried to sell him pest control services, but that he had declined to purchase the services at that time. Dennis O'Rourke, President of Outside In, testified that Kennedy was not on his company's payroll, but that she had solicited pest control business for his company for approximately four months prior to September 2011. She successfully solicited four accounts and he paid her 30% of the profits made on those accounts. At the time she solicited the accounts, she did not possess a valid identification card to perform pest control services on behalf of Outside In.3/ Mr. O'Rourke subsequently obtained a valid identification card for Kennedy so that she could perform pest control, including business solicitation, for his company. Petitioner initiated an investigation of Kennedy in June 2011, after being notified by several small food markets in Palm Beach County that she was holding herself out as a food inspector with Petitioner, inspecting the stores, notifying the store operators that there was a pest problem, and recommending that Outside In be contacted to correct the problem. In the course of the investigation, on September 7, 2011, John Berquist, an inspector with Petitioner's Bureau of Entomology and Pest Control, took photographs of Kennedy's motor vehicle4/ bearing magnetic signs on the front passenger and driver side doors labeled "Kenco Industries," which depicted a photograph of Kennedy and advertised the provision of pest control services. Berquist checked Petitioner's pest control licensing records and determined that Petitioner had not issued a pest control business license or other pest control license to Kennedy or to Kenco. At the hearing, Kennedy acknowledged that she conducted food store inspections, pointed out pest problems to store operators, and recommended that they contact Outside In for pest control service. However, she denied holding herself out as an employee of Petitioner. She testified that she is certified in food safety by the Department of Health and that if she observed a pest problem while shopping, she would show her food safety certification card to the store operator and point out the problem. She claimed she did this because she is Vietnamese, so often shops at Asian food markets and wants the stores where she purchases her family's food to be pest-free. She also claimed that she only wanted the stores "to get what they needed" in the way of pest control service and that it did not matter whether she was compensated for soliciting business for Outside In. However, she acknowledged that she had been compensated by Outside In for the pest control business she had successfully solicited on their behalf. Kennedy testified that she did not intend to do anything that was against the law, and was not aware that she was engaging in conduct that violated the law. The evidence established that neither Kennedy nor Kenco previously violated chapter 482 or Petitioner's rules. Ultimate Findings of Fact Regarding Alleged Violations Based on the foregoing, Petitioner established, by clear and convincing evidence, that Kennedy impersonated an employee of Petitioner, as alleged in Count 1 of the Amended Administrative Complaint, in violation of section 482.161(1)(j). Kennedy's testimony that she did not hold herself out as an employee of Petitioner was contradicted by all other witnesses and was not credible. Petitioner also established, by clear and convincing evidence, that Kennedy and Kenco advertised pest control services without obtaining a pest control business license in violation of sections 482.165(1) and 482.191(1). There was no dispute that Kennedy advertised the provision of pest control services by herself and by Kenco by placing signs on her vehicle depicting her image and Kenco's business name. Further, Kennedy is Kenco's manager, sole member, and agent, so her actions in advertising the provision of pest control services by Kenco are imputed to Kenco.5/ Petitioner also proved, by clear and convincing evidence, that Kennedy solicited pest control business for Outside In for compensation, in violation of sections 482.165(1) and 482.191(1). Kennedy's testimony that she was motivated by altruism and personal interest in food safety at markets where she shopped, rather than by being compensated for soliciting business for Outside In, was not credible. The undisputed evidence establishes that she was compensated by Outside In for soliciting pest control business on its behalf. However, Petitioner did not establish, by clear and convincing evidence, that Kenco solicited business on behalf of Outside In. The evidence does not show that Kennedy represented to the food store operators that she was acting on behalf of Kenco when she solicited business for Outside In. To the contrary, the evidence established that Kennedy represented that she was an inspector employed by Petitioner. Accordingly, it is determined that Kenco did not solicit pest control business for Outside In, in violation of sections 482.165(1) and 482.191(1). As further addressed below, Petitioner's Enforcement and Penalties rule, Florida Administrative Code Rule 5E-14.149, makes the deliberate commission of an act that constitutes a violation of chapter 482 an aggravating factor in determining the applicable fine. Here, the evidence shows that Kennedy intentionally misrepresented that she was employed by Petitioner specifically to solicit and induce food store operators to purchase pest control services for which she would be compensated. Accordingly, it is determined that Kennedy acted deliberately in impersonating an employee of Petitioner and in soliciting business on behalf of Outside In for compensation. Furthermore, the evidence shows that Kennedy——and by operation of the law of agency, Kenco——deliberately engaged in advertising the provision of pest control services without having obtained the required license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner Department of Agriculture and Consumer Services impose a fine of $2,600.00 on Respondent Lee Ann Kennedy, and impose a fine of $1,000.00 on Respondent Kenco Industries, L.L.C. DONE AND ENTERED this 27th day of June, 2012, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 2012.
The Issue Whether Respondent violated subsection 760.10(1), Florida Statutes by denying Petitioner a promotion on account of his race and color.
Findings Of Fact Henry E. Tate is a forty-nine year old black male who has worked at the Kennedy Space Center (KSC) since April 12, 1965. (tr-10, 11) From 1965 until the present, a series of civilian contractors have had agreements with the National Aeronautics and Space Administration (NASA) to perform logistical and housekeeping duties at KSC. These included Transworld Airline, the Boeing Company and Expedient Services, Inc. (tr-34) In January 1983, EG & G Florida, Inc., (EG&G) assumed the master base contract for logistics and housekeeping, but it was not until July 1983 that it took over operational control of the roads and grounds department. EG & G employs in excess of fifteen persons. (tr-101, 102, Exhibit number 11) Except for three or four months in the early 1970's when he worked in the mechanic shop, Mr. Tate was employed in the roads and grounds department steadily from 1965. As each successor contractor took over he applied for, and was hired for the same job. This included EG & G in July 1983. (tr-11, 13, 34) His current title is lead labor operator- pest control and he makes $10.16, plus $.75 lead pay, per hour. (tr-11) Mr. Tate's duties in the roads and grounds department have included pesticide and herbicide spraying of the grounds and buildings, and all aspects of weed, insect and pest control, both indoors and out. At different times he has driven dump trucks and operated forklifts, locals and trailer trucks. (tr-ll, 12, Exhibit number 15) In 1971, Mr. Tate was made "lead" over pest control, herbiciding and sanitation. In that capacity he worked directly under a supervisor who gave him instructions as to the work to be performed. He would then take his people and get the work done. Afterwards he would report back on the results. (tr-51, 56, 57, Exhibit 115) He has remained a lead worker since that time; even though the formal title was abolished in 1984, the pay differential remains. (tr-152) The rationale for the higher pay is that leads assign work to crews which vary commonly from two to eight people. Leads order material and perform some, administrative tasks in conjunction with the functions of their job classification. (tr-153) At varying times Mr. Tate has served as lead over one to ten persons. He is currently lead over a crew of six. (tr-13, 14, 36, 49, 266, 267) During the period of the TWA contract, Mr. Tate filled in as acting supervisor when his supervisor was on vacation. (tr-47) In November 1983, EG & G posted a job listing for the position of Supervisor, Roads and Grounds Department. The job posting number 1125 required a high school diploma, five years supervisory experience in the assigned area of responsibility and a State of Florida restricted pesticide license. (Exhibit number 1) Mr. Tate applied for the job. He has a high school education and felt that his long experience in the field and his lead experience qualified him. His supervisor vacating the job also thought Mr. Tate was qualified and would be hired. (tr-60) Mr. Tate was not interviewed for job posting number 1125; nor were the two other internal applicants who were also black. (tr-18, 275, 276) Instead a white male was hired. That individual, Ted Bender, had an associate degree in business administration, some supervisory experience and the required pesticide license. (Exhibit number 13) Mr. Tate was informed of the posting result by a form dated November 8, 1983. The basis for his non-selection was checked, "meeting minimum qualifications", with an asterick and the hand-written notation, "Must have a restricted pesticide license in the State of Florida". No other basis was checked or noted. (exhibit number 2) At the time that he applied for job posting number 1125, Henry Tate had applied for his pesticide license but did not receive it until December 1983. He studied on his own, reading anything he could find on pest control, and took vacation time off to go to Gainesville to take the license exam. His current license expires October 31, 1987. (tr-15, 64, Joint Prehearing Stipulation) Ted Bender resigned in May 1938, and the vacancy was again posted. Job posting number 1331 stated a posting date of May 24, 1984 and a closing date of May 28, 1984. It differed from posting number 1125 in the requirement that the successful applicant get a restricted pesticide license within sixty days of position acceptance. The five years supervisory experience in assigned area of responsibility and high school diploma requirements remained the same. (Exhibit number 5) Henry Tate applied again and was interviewed on May 31, 1984, by Raymond Tuttle, who at that time was Manager of Roads and Grounds. At the end of the interview Mr. Tuttle filled out the company Interviewer's Report form with the following appraisal: Job qualifications are met if lead time is classified as supervisory experience. He has worked with pesticides for approximately 15 years on KSC. He has a working knowledge of pesticide application although he has no formal horticulture training. He has attended several extension service sponsored seminars over the past 15 years that covered pest control problems in our local area. He currently holds a valid state of Florida pesticide license. Mr. Tate seems willing to accept the responsibilities involved but would require some management skills training to aid in the performance of this position. (Exhibit number 15) He rated Mr. Tate "good" on a scale which ranged from "top" to "unsuitable"; he checked "Hold-Further Review" for the recommended action. (tr. 157, 164, Exhibit 15) During the interview he did not tell Mr. Tate there was a problem with his supervisory experience. (tr-23, 183) Raymond Tuttle also interviewed another internal candidate, William Deffendall. He noted on the Interviewer's Report that this candidate did not meet minimum qualifications. (Exhibit 14) After the interviews, Raymond Tuttle went to see Nancy King, who at that time was Supervisor of Employment at EG & G. He asked her whether lead time could be considered as supervisory experience and she did not have an answer. They both looked at the files and could not find anyone who had supervisory background or a restricted pesticide license. At that point they discussed advertising for external candidates and drafted the advertisement. (tr-185, 186, 205, 207, 208) Sometime later, after the first week in June, Nancy Ring asked Mr. Erikson in employment relations whether lead time could be used to meet the supervision requirement. He also had to check; and when he got back to Ms. King a few days later the answer was that EG & G had not used lead time in lieu of supervisory experience. (tr-232, 233, 234) Meanwhile, on June 4, 1984, Mr. Tate was given his posting result form: "You were not selected for this position due to:" *Other ". The handwritten explanation of "other" was "Other candidates are being considered." (Exhibit number 16) At that time there were no other candidates available to be considered as Messers. Tate and Deffendall were the only internal applicants; no candidates with applications on file met the minimum qualifications, and the advertisement for external candidates didn't run until June 12, 1984. (tr-191, 211) The advertisement that ran from June 12-June 17, 1984, differed materially from both job posting number 1331 and the position description for Supervisor, Roads and Grounds that was in effect at that time. The newspaper notice required not a high school degree, but a "B.S. in Agriculture", and 3-5 years experience in horticulture, entomology and supervision. The formal education requirement was therefore increased and the experience requirement was reduced from 5 years to "3-5 years". (Exhibit number 22) Ms. King admitted that the advertisement was not a formal upgrading of the job. (tr-237) More significantly, Raymond Tuttle admitted that they were not looking for someone with a Bachelor's degree but rather increased the requirements to keep out a flood of candidates. (tr-190) According to Ms. King, the company has a policy of substituting experience for educational requirements and the B.S. degree would not have excluded Mr. Tate. However, he was not told of this and there was no way that an individual reading the advertisement could surmise that. (tr-214, 238, 239) Four candidates responded to the advertisement and were interviewed; all were white. (tr-203) The first choice among those candidates was Richard Van Epp, rated "high" by Raymond Tuttle. Mr. Van Epp's application reveals solid experience in landscape work, including supervision, but nothing specific in entomology, a deficiency also noted on Raymond Tuttle's Interviewer's Report. (Exhibit number 17) Richard Van Epp was offered the job but turned it down. (tr-172) The second-choice candidate, Larry Gast, was hired effective July 24, 1984, with a salary offer of $13.50 per hour in a salary range of $9.94 (minimum), $12.64 (mid) and $15.34 (maximum). (Exhibit number 5) Mr. Gast was rated "high" by Raymond Tuttle with a notation on the Interviewer's Report that he met all requirements of this position. Mr. Gast's application reveals a B.S. degree from the University of Florida in 1980, with his major field in entomology. Prior to college he was in high school. The only job experiences listed on his resume and application are lab technician with the U.S. Department of Agriculture in Gainesville, from 11/79 to 3/81; and from 4/81- 6/84, production supervisor/entomologist with the U.S. Sugar Corporation in Clewiston, Florida. (Exhibit number 18) At the time that he was hired by EG & G Larry Gast had approximately three years and two months experience supervising others in a related field. This falls within the minimum required by the newspaper advertisement but falls short of the five years required by the job posting and position description. (Exhibit number 5) On July 23, 1584, Henry Tate was sent another posting result form, this time checked "Another candidate was selected." (Exhibit number 20) He was called into Mr. Tuttle's office and was told that a new supervisor was hired. He was told that pesticides were no problem, herbicides were no problem, but that Mr. Tuttle was "not comfortable" with his background in horticulture. Mr. Tuttle also told him that something might come along later. Mr. Tate replied that he had been in roads and grounds for almost 20 years and how much later was he supposed to wait. (tr-274) Henry Tate was never told that there was any problem with his lack of supervisory experience until the fact finding conference held before an investigator from the Florida Commission on Human Relations. (tr-32, 253, 273) Sometime after the fact finding conference, Earle Patrick, who was then EG&G's Equal Employment Opportunity, Supervisor, called Mr. Tate and asked why he had not applied for another Supervisor job posting. This posting also required supervisory experience and Mr. Tate quickly informed him that he had no more experience than when he applied for the first job. (tr-272) Earle Patrick's convoluted testimony explaining why the phone call was made ended with this exchange: Q. [by Mr. Betancourt] Well, did you think he was qualified for this position and had a shot at it? A. No, I didn't. Q. So you were calling him about a job he couldn't possibly get? A. That's right. (tr-261) When Larry Gast was initially hired he was Supervisor of Roads and Grounds in charge of grounds maintenance and pest control. He supervised approximately 29 individuals and had three leads. There was another Supervisor of Roads and Grounds in charge of road maintenance and sanitation services. The Roads and Grounds Department was reorganized in early 1985 to create three supervisors. Larry Gast became responsible for the bridgetenders and pest control and his staff was reduced to fifteen individuals, including one lead, Henry Tate. Nine of the staff are bridgetenders who never leave the bridge and do not require a lead. The remaining workers can be anywhere in an area 28 miles long and 14 miles wide. As lead, in the words of Larry Gast, Henry Tate is the "eyes in the field" for those workers. This organizational structure still exists. (tr-121, 123, 266, 267, 269, Exhibit number 11) The reorganization brought Larry Gast's position closer into line with the industry standard described by EG & G's Manager of Personnel Management, Stephen Mansfield. That standard says that supervisors should be able to handle six to eight people; anything more tends to stretch the supervisor thin; anything less would suggest that you may not need a supervisor. (tr-151,152) With 29 persons, Larry Gast concedes he was stretched very thin. (tr-270) Henry Tate was highly qualified for the position of Supervisor of Roads and Grounds, job posting number 1331. While EG & G had never counted lead time for supervisory experience in the past, the evidence strongly suggests that the issue simply never arose in the past. Various individuals in the employment office couldn't immediately answer when asked if lead time could be considered. Most supervisor positions do not require previous supervisory experience. (tr-136) At one point during another reorganization, approximately 16 leads were reclassified as supervisors. (tr-153, 156) The substantial weight of evidence supports a finding that EG &G did not consider Henry Tate unqualified: For job posting number 1125, he was told only that he lacked the restrictive pesticide license and he was not interviewed. He then got the required license. He was interviewed for job posting number 1331 and was not informed that there was a problem with his failure to meet minimum qualifications until well after the position was filled and the discrimination issue was raised. Neither job posting result forms so informed him, despite the fact that the form includes a line to be checked with regard to meeting minimum qualifications. Raymond Tuttle rated Tate a "good" candidate and put his application "on hold", both of which are inconsistent with a belief that the individual is unqualified. Earle Patrick's intent in calling Henry Tate about the new supervisory position could hardly be so perverse as he has contrived in his testimony. EG & G cannot legitimately claim that Mr. Tate's lack of supervisory experience was the basis for their rejection of his request for promotion. They commenced the solicitation of outside candidates well before the answer on lead time came back. (tr-210, 211, 233)`' While Henry Tate may have benefitted from some training to acquire polish as a supervisor, training is provided routinely by EG & G for all new, as well as old supervisors. (tr-244) The company espouses a policy of promoting from within.
