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.
Findings Of Fact Petitioner, Department of Health and Rehabilitative Services, is the regulatory agency charged with regulating the terminate and pest control industry in Florida. Respondent, Howard R. Kempton, is a certified operator licensed by the Petitioner. During times material, Respondent was a certified pest control operator for Pinellas Termite and Pest Control, Inc., in St. Petersburg. On July 24, 1991, Respondent was the certified operator in charge of fumigation of a residential structure at 3318 Shamrock in Tampa, Florida. In carrying out the fumigation, Respondent used the fumigant product VIKANE (sulfuryl fluoride). Respondent did not provide Petitioner a notice of the intended fumigation at 3318 Shamrock in Tampa within 24 hours in advance of the fumigation as is required by the Petitioner's rules and the labeling provisions for the product VIKANE. In addition, Petitioner's inspector, William Bargen, who has been employed by Petitioner in the office of entomology in excess of 28 years, visited the residence on the day of the fumigation and the tarpaulin that Respondent used was not air tight as practicable in that it contained numerous slits and tears that was not properly sealed at the ground level encompassing the structure. The safety warning signs fastened to the exterior of the tarpaulin were not printed in indelible ink or paint and the emergency phone numbers for the certified operator were not legible. As a result of the improper seals, the fumigant VIKANE was escaping from the tarpaulin while the gas was being pumped into the structure at 3318 Shamrock on July 24, 1991. Inspector Bargen took photos of the fumigation tent as it was in place at 3318 Shamrock on the day in question, July 24, 1991 and it depicts the condition of the tarpaulin and the improper signs that were utilized by Respondent on that jobsite. The owner of the property called Petitioner's office and Inspector Bargen visited the site on July 24, 1991. It is undisputed that Respondent alerted the homeowner to call Petitioner who in turn dispatched Inspector Bargen to the site based on instructions from Respondent that he alert the Department of the on-going problems that he was having with his employer, Pinellas Termite and Pest Control, Inc. Respondent admits that the manner in which the fumigation occurred on July 24, 1991 at 3318 Shamrock in Tampa was improperly performed. However, Respondent offers that he did as much as he could under the circumstances to comply with the Petitioner's rules and regulations and the labelling instructions for the fumigant VIKANE as set forth by the manufacturer. Respondent related numerous occurrences whereby he attempted to convey the importance of carrying out the proper instructions to his employer without success. As a result, Respondent sought other employment and is no longer employed as a certified operator with Pinellas Pest Control. Finally, while Respondent recognized that a certified operator is responsible for the overall operations of the fumigation projects that he is in charge of, he relates that instructions were given to office personnel at Pinellas Pest Control to advise the Petitioner of the 24 hour notice prior to the date of fumigation and he was under the impression that timely notice was forwarded to Petitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order imposing an administrative fine against Respondent in the amount of $250.00 payable to Petitioner within 30 days of the entry of the Petitioner's final order.1/ DONE and ENTERED this 29 day of May, 1992, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29 day of May, 1992.
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 Whether Respondent violated Subsections 482.051(5) and 482.161(1)(e), Florida Statutes (2003),1/ and Florida Administrative Code Rules 5E-14.106(1) and 5E-14.106(6), and, if so, what discipline should be imposed.
Findings Of Fact At the times of the violations alleged in the Administrative Complaints, Cirrincione was an employee of Diligent Environmental Services. His responsibilities included performing preconstruction soil treatments for prevention of subterranean termites. On March 16 and 22, 2004, Cirrincione was applying the pesticide, Dragnet SFR, at a construction site at 2050 Ocoee/Apopka Road, Ocoee, Florida. The label for Dragnet SFR required that the pesticide be applied at a 0.5 percent concentration for preconstruction soil treatment for subterranean termites. An inspector for the Department took a sample each day of the pesticide being applied at the site. The samples were sent to the Department's laboratory for analysis. The active ingredient in the pesticide, Dragnet SFR, is permethrin. The pesticide analysis reports prepared by the Department's laboratory showed that the concentration level of the pesticide in the sample taken on March 16, 2004, was 0.2 percent, which is 60 percent less than the 0.5 percent concentration required by the Dragnet SFR label. The laboratory report showed that the concentration level for the sample taken on March 22, 2004, was 0.3 percent, which is 40 percent less than the label-required concentration. The concentration amounts of the samples reported by the Department's laboratory were corroborated by independent laboratory analyses performed by Analytical Pesticide Technology Laboratories at the request of Cirrincione's counsel. The parties stipulated, and it is found that on March 16 and 22, 2004, when Cirrincione was applying Dragnet SFR at the 2050 Ocoee/Apopka site, he was not wearing all of the protective equipment required by the Dragnet SFR pesticide label, including a long-sleeved shirt, long pants, socks, shoes, and chemical-resistant gloves.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ronald Cirrincione violated Subsections 482.161(1)(a) and (e), Florida Statutes, and Florida Administrative Code Rules 5E-14.106(1) and (6); issuing warning letters for the violations of failing to wear protective equipment as specified by the pesticide label; and imposing an administrative fine of $400 for each violation of applying a deficient concentration of pesticide, for a total of $800. DONE AND ENTERED this 3rd day of January, 2006, 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 3rd day of January, 2006.
Findings Of Fact Acting on an anonymous tip, Michael L. Thomas, a Wildlife Officer with the Florida Game and Fresh Water Fish Commission, examined property in the Turnbull-Hammock area of Volusia County at a location between Edgewater and Oakhill and immediately adjacent to U.S. Route 1. This is a rural area which is unfenced and entirely open to the public. The particular property in question is reached by a substantial shell road running at a right angle from U.S. 1 and deadending in a borrow pit. A canal also is at right angles to the unnamed shell road at its borrow-pit end. The borrow pit is owned by Doug Cole. A smaller dirt road or jeep trail branches off from the shell road and passes between some thick trees and underbrush. Beyond the trees and underbrush, the jeep trail curves off slightly to the left where a pole barn or construction shack owned by Tom Foster is located. Instead of curving left, one can proceed on foot several more yards on a cleared pathway until one reaches a growth of vines which crosses the pathway and forms a sort of barricade across it. If one goes through the vines, one sees several narrower, winding, overgrown footpaths meandering back through the overgrowth quite some distance. The area beyond the vines is completely overgrown with tall weeds and brush except for these footpaths. Officer Thomas followed the route aforedescribed and followed one of the overgrown footpaths where he discovered approximately twenty-eight marijuana plants growing in plastic tubs deep in the underbrush. The plants were 8-10 feet tall and needed water. Officer Thomas' observation of the plants convinced him that the person who had cultivated them would have to water them soon. On the ground eight or ten feet before he reached the growing marijuana, Officer Thomas observed a pink plastic watering can, a metal can, some potting materials, and an empty box of "Miracle Grow" plant food. Officer Thomas and Sergeant Hightower "staked out" the area during the afternoon of September 16, 1989. More than three hours into their "stake out," the officers observed Petitioner park his truck at the pole barn and meander through the underbrush in the direction of the marijuana. He occasionally stopped and looked around him as he did so. Once Petitioner was beyond the vines, the officers could not "eyeball" him any longer. They did not see him touch any marijuana. They heard the sound of water cans being moved, and when Petitioner reappeared through the underbrush, he was carrying two empty containers he had picked up from those originally observed by Officer Thomas eight to ten feet in front of the marijuana crop. The officers interpreted Petitioner's looking around to have been checking to be sure he had not been followed or seen and interpreted his selecting the particular containers as evidence that he knew where and how to water the marijuana. The Petitioner then walked toward the canal with the containers and hunkered down on its bank. When he did so, Officers Thomas and Hightower sprang from their hiding place and placed Petitioner under arrest. They never saw him draw or scoop up any water into the containers, and the most credible evidence is that he stayed on the high side of the bank and did not approach the edge of the water in the canal below. Petitioner is a cement worker by trade. He stores his equipment, including his form boards, in the pole barn. The owner of the pole barn, Tom Foster, does not charge Petitioner any rent for this use. Petitioner was familiar with the area as far inward as the pole barn. On the day in question, the area immediately surrounding the pole barn was strewn with debris evidencing that teenagers had used it as a "partying area." It also was littered with discarded furniture and old boards that Petitioner identified as belonging to Tom Foster. On September 3, 1989 Petitioner's girlfriend had given him a used shotgun for deer hunting. On the day in question, a weekend, Petitioner had chosen Tom Foster's property to "tryout" that shotgun and see what type of pattern it shot. Petitioner explained that he had walked past all the other debris at the pole barn without selecting any of it as a target because it probably belonged to Tom Foster, the man who let him store his equipment without fee, and Petitioner did not want to lose Tom Foster's goodwill. Petitioner testified that he looked around himself as he walked and selected the containers far away from the pole barn because they did not seem to be Tom Foster's, that he had not even seen the marijuana let along recognized what it was, and that he was carrying the containers back to his truck to fetch his gun when a burrowing animal in the bank of the canal/ditch caught his attention and he hunkered down to watch it. Based on DOR's photographic exhibits and Officer Thomas' testimony, it is found that the tubs in which the marijuana was growing were obscured by underbrush from the view of anyone standing at the location of the watering and potting materials, although the marijuana tops could be seen from that point if one were looking in that direction. Officer Thomas readily agreed that many untrained people cannot recognize marijuana growing in the field. The officers did not note whether any burrowing was going on in the canal bank, but their subsequent search of Petitioner's truck turned up the shotgun and some birdshot. Officer Thomas testified that a better "pattern" effect could be obtained by aiming the shotgun at a larger object than the water containers and that some of the birdshot found with the gun might be lost on the smaller objects. He therefore ascribed no credibility to Petitioner's choice of the watercans as targets. No drug paraphernalia or materials for cultivation were found on Petitioner's person or in his truck. Petitioner was charged, tried before a jury, and acquitted of the criminal charge "manufacture of cannabis." A final judgment was entered to that effect. In deference to DOR's concerns expressed at formal hearing, it is noted that the judicial outcome of the criminal charge is not res judicata nor "law of the case" in the instant administrative proceeding which embraces different issues and burdens of proof. It does, however, support Petitioner's assertions that he has never used drugs or been convicted in connection with them. The original September 1989 DOR assessment used as a component base an estimated 24.25 weight of the 28 marijuana plants. The "estimate" was made by Mr. Wattercutter, who prepared the original assessment. Mr. Wattercutter telephoned the Volusia County State Attorney's Office, copied the arrest warrant, and interviewed Officer Thomas. He accepted what was told him without DOR calculating a chain of custody, calibration of scales, or finding out what parts of the marijuana had been weighed, or the quality or gender of the marijuana. The original DOR assessment used as a component multiplier a value assigned by the Florida Department of Law Enforcement price list in effect at that time. That list assigned a value of $600 per pound of marijuana. Mr. Wattercutter also applied a fraud penalty in accord with DOR policy. The original assessment amounted to $16,368.75. On August 20, 1990, Mr. Wattercutter and others who did not testify weighed some marijuana in two boxes in the evidence room of the Sheriff's Office in DeLand, Florida. After subtracting the weight of the empty boxes, Mr. Wattercutter applied the FDLE price list figure of $600 per pound and reassessed Petitioner's tax liability (excluding the inapplicable fraud penalty) at $5,850. The chain of custody of the marijuana was not presented. No evidence of calibration of the scale used was presented. The predicate for the $600 per pound valuation made by FDLE was presented through the deposition of Sherry Gomez, which is not persuasive that the charted figure is probative of the value of the marijuana in this case.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a Final Order dismissing the assessment/amended assessment against Petitioner. DONE and ENTERED this 29th day of October, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 29th day of October, 1990. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1-10 Except as modified to exclude subordinate material, accepted. Respondent's PFOF: 1 Rejected as not probative. Undoubtedly, the fact that Ms. Gomez' deposition was taken by telephone contributed to its disjointed nature, but the predicate for the accuracy of the chart/graph was insufficient as set out in FOF 15. 2-4, 9 Accepted except for subordinate and cumulative material. Not adopted because the facts as found more accurately reflect the record as a whole. 5-8 Except for the last sentence, accepted except where subordinate or unnecessary. The last sentence of 8 is rejected as not supported by the more credible record evidence as a whole. 10 Subordinate as stated. Accepted that the plants were marijuana. Copies furnished to: Mark T. Aliff Assistant Attorney General Department of Legal Affairs Tax Section, The Capitol Tallahassee, Florida 32399-1050 David C. Robinson, Esquire Suite 6 1326 South Ridgewood Avenue Daytona Beach, Florida 32114 J. Thomas Herndon Executive Director Department of Revenue The Capitol Tallahassee, Florida 32399-0100 William D. Moore General Counsel Department of Revenue 203 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact The Parties Lan-Mac Pest Control-Englewood, Inc. and Lan-Mac Pest Control-Fort Myers, Inc. (Lan-Mac) are pest control operators conducting business in the general area of each individual respondent regarding whom they have requested a formal hearing. Larry McKinney owns these companies and has over 4,000 customers, nine pest control routes, six lawn care routes and a termite crew, all servicing the west coast from Collier County up through Sarasota County. Certified Operators of SW Florida, Inc. and Florida Pest Control Association, Inc. (FPCA) are trade associations with members who are pest control operators conducting business in the geographical area of each individual respondent regarding whom they have petitioned for a formal hearing. The members of these associations are substantially affected by the issues raised in this proceeding. As stipulated by the parties, the petitioners described above have standing to petition and participate as parties in this proceeding. (Prehearing Stipulation, page 12) Each of the individual respondents has submitted to the Department of Agriculture and Consumer Services (DACS) an application for registration as an especially pesticide-sensitive person, together with the statutory fee and a purported physician's certificate. Each individual respondent's claim is addressed more specifically below. The DACS is the state agency responsible for administering and maintaining the pesticide-sensitive persons' registry as provided in section 482.2265(3), F.S. The Registry Upon payment of a fee and submittal of an appropriate physician's certificate, pesticide-sensitive persons are placed on a list of persons who are entitled to 24-hour advance notice when a pest control operator is going to make an exterior application on property adjacent or contiguous to the pesticide- sensitive person's primary residence. The certificate must be from a physician qualified in a category established by department rule. The department has adopted rule 5E-14.146, F.A.C. specifying the categories. The DACS may designate a person "especially pesticide-sensitive" if, in addition to the submittal described above, the person provides "clear and convincing proof" that he or she is so sensitive to pesticides that the standard notice is not enough, and notification of applications at greater distance is necessary to protect the person's health. The notification distance requirement may not exceed one-half mile from the boundaries of the property where the hypersensitive person resides. The required notice is limited to use of a pesticide or pesticide class to which sensitivity is documented or for which the department determines sensitivity is scientifically probable. The department may limit notice requirements in applications in excess of a stipulated quantity and may not require notice of applications at a distance beyond the minimum distance required to prevent endangerment of the health of the individual. Section 482.2265, F.S. requires the individual registrant (pesticide- sensitive person) to notify the department of the properties or residences falling within the notice parameters (either adjacent or extra distance) so that the department can supply this necessary information to the pest control operators. Without this information, the operators cannot know whether a specific application is subject to notice. Pest control operators who fail to provide the notice required by section 482.2265, F.S. are subject to administrative sanctions by DACS, including fines and license suspension or revocation. Violations of the Pest Control Act are third degree misdemeanors. John Mulrennan, Ph.D. is the Bureau Chief of DACS' Bureau of Entomology and Pest Control, which bureau administers the requirements of Chapter 482, F.S. Dr. Mulrennan has a Ph.D. in entomology from Oklahoma State University. Dr. Mulrennan has delegated the day-to-day administration of the registry to Philip Helseth, Administrator of the Pest Control Section; and to Cherie Decker, Philip Helseth's secretary. Mr. Helseth, and more often, Cherie Decker, review applications from persons seeking to be placed on the registry. They determine whether the application is complete, the fee is attached or waived, and the physician signing the certification is properly qualified under the rule. The department has no medical personnel on staff to review medical records and it relies entirely on the physician's certification for the determination of eligibility for the registry. Dr. Mulrennan considers that a physician who is licensed and board-certified should be able to make the necessary diagnosis and the department is in no position to question that diagnosis. There are several versions of the application form/physician's certification that have been used by the agency, DACS, and its predecessor agency, the Department of Health and Rehabilitative Services (HRS), but the current version is a one-page form with blanks to be completed on the front and printed guidelines on the back. The form elicits the person's name and primary residence address, with day and night telephone numbers. The form includes this "Physician's Certification:" I certify that the individual named above is a patient of mine and should be placed on the list of pesticide-sensitive persons. This individual has a documented sensitivity to a particular pesticide or class of pest- icides. The specific pesticide or class of pesticides to which registrant is sensitive: [blanks provided] The individual named above is currently under my care for a diagnosed condition or ailment for which I have proof that the normal appli- cation of a pesticide would aggravate the condition or ailment to such an extent that placement on the registry for prior notification is necessary to protect that person's health. Diagnosed condition or ailment: [blanks provided] (FPCA Exhibit #17) For persons registering as especially pesticide- sensitive, the form requests the special distance required: one block, two blocks, 1/4 mile, up to 1/2 mile limit. The certifying physician's signature, address, telephone number and the signature of a witness follows this statement: I further certify that I am a qualified physician, board certified and recognized by the American Board of Medical Specialties in the specialty of toxicology, allergy or occupational medicine. I have diagnosed this patient's sensitivity based on the guidelines set forth by the department (see reverse side). Board certification will be verified by this Bureau. (FPCA Exhibit #17) The guidelines on the reverse of the form were developed with the assistance of the State Health Director, Dr. Mahan, and the Florida Medical Association. The guidelines are: GUIDELINES FOR DIAGNOSING PESTICIDE SENSITIVITY The department recommends the following basic steps be considered in diagnosing an individual as pesticide sensitive: good evidence of exposure history clinical manifestations from a particular exposure body testing related to an exposure, such as x-ray, blood test, urine test, etc., necessary to make a diagnosis environment [sic] examination of the site where the exposure occurs, such as a person's place of work, to determine the existence of exposure in the environment (FPCA Exhibit #17) According to FPCA expert, Dr. Ronald Gots, these guidelines, with minor modifications, are appropriate in determining whether or not someone has sustained a pesticide exposure and reaction and whether there is a causal relationship between a more distant application and endangerment to health. In Dr. Gots' view, the clinical manifestations ought to be the kind that have been specifically associated with the particular substance at issue. Dr. Gots also contends that specific laboratory evidence is not always required to determine pesticide toxicity. Guideline number four is particularly important in dealing with symptoms from remote applications. DACS does not require that the certifying physician use the guidelines provided on the form, as they are only intended as an aid. The agency only intends that the physicians make a diagnosis and reflect that fact in the certificates by their signature. DACS also does not require that the applicant provide actual addresses within the notification area. Instead, if there is a complaint that an operator made a pesticide application without the required notice, the agency will have to determine in that case whether the operator should be held accountable. Placement on the registry for extra distance notice is based solely on the physician's certificate, and whether the individual provides specific addresses or simply distances for the notice is immaterial, according to Dr. Mulrennan, until the agency is confronted with an enforcement issue. DACS checks the qualifications of the doctors who are making the certification. The secretary who checks the applications, Cherie Decker, has a phone number for the American Board of Medical Specialties (ABMS) to call to check on physicians. Examples of qualifications that have been rejected include academic doctorates. The agency has specifically accepted certificates from osteopathic physicians who are certified by the American Osteopathic Association but are not certified by the ABMS. That acceptance was based, in part, on correspondence from the ABMS, American Osteopathic Association, and Albert F. Robbins, D.O. (Department's Exhibits #3-8). Nothing in that correspondence establishes that one board certification is considered equivalent to another by the ABMS or is "recognized" by the ABMS. The Certifying Physicians The individuals at issue in this consolidated proceeding were all certified by one of the following: Albert F. Robbins, D.O.; Michael J. Waickman, M.D.; Neil Ahner, M.D.; Rory P. Doyle; S. J. Klemsawesch M.D.; Hana T. Chaim, D.O.; Paul F. Wubbena, Jr., M.D.; Linda A. Marraccini, M.D.; and Caren B. Singer, M.D. Dr. Robbins practices at the Robbins Environmental Medical Center, 400 South Dixie Highway, Boca Raton, Florida. He has a doctorate of Osteopathic Medicine from Chicago College of Osteopathic Medicine; he is board-certified by the American Osteopathic Board of Preventative Medicine, with a sub-specialty in Occupational and Environmental Medicine; he has a Master of Science in Public Health from the University of Miami. He is not board-certified by the ABMS but he strongly avers that his board certification is equivalent to the specific requirement of the DACS rule referenced in paragraph 7, above. Dr. Waickman practices in Akron, Ohio. A medical doctor, he is board- certified in pediatrics, in allergy and clinical immunology and in environmental medicine. He practices with his son, who is also a medical doctor and who is board-certified in internal medicine and in allergy and clinical immunology. Dr. Ahner is a medical doctor who practices in Jupiter, Florida. The only evidence of his qualifications is his certificate on a patient's application for registration as a pesticide-sensitive person. The certificate, dated February 16, 1993, has all of the language regarding board-certification crossed out. Rory P. Doyle is the name appearing on a certificate for Carol Arrighi's application for registration. Nothing on that certificate indicates whether R. Doyle is a physician. The signature appears beneath the printed statement described in paragraph 16, above. Dr. Klemsawesch is a medical doctor who is board-certified in internal medicine and in allergy and immunology. Dr. Chaim is an osteopathic physician practicing primarily in the areas of family practice and environmental medicine. She is board-certified under the ABMS in family practice. She is a member of several professional organizations, including the American Academy of Occupational and Environmental Medicine and the American Academy of Environmental Medicine. She is not board- certified in any areas other than family practice. Dr. Wubbena is a medical doctor practicing in Jacksonville, Florida. He is board-certified in pediatrics and in allergy and immunology and he practices primarily in the specialty of allergy. The only evidence of qualifications of Drs. Marraccini and Singer is what purports to be their signatures beneath the certificate statement on the DACS application form. Both indicate they are medical doctors. Dr. Singer's signature has the handwritten notation, "Board certified internal medicine only"; Dr. Marraccini's signature has the handwritten notation, "family practice 1989." (Department Exhibit #1) The Individual Applicants Cheryl Mansker's application for registration was certified by Dr. Robbins on March 24, 1993. According to the certificate, she is sensitive to the following: organophosphates, carbamates and pyrethrum. The certification states that notification of 1/2 mile radius is required. Ms. Mansker has been a patient of Dr. Robbins since 1987. He considers her one of the most highly allergic individuals he has seen in his practice. He attributes the onset of her sensitivity to an occasion when she was employed in a bank when, in the process of repairing an air conditioner, a worker ripped the lining of a fiberglass duct and sent fiberglass throughout the entire building. This occasion, according to Dr. Robbins, subjected the patient to mold, formaldehyde and fiberglass. He has no record of any incidents of pesticide exposure, but believes her extreme chemical sensitivity qualifies her as eligible for certification. Dr. Robbins concedes that the amount of dosage is a factor in deciding whether a person is going to react, and whether it is necessary to protect that person. Thomas Milo has been a patient of Dr. Robbins since at least 1986. The certification by Dr. Robbins states that this patient "becomes very ill when exposed to pesticides and other chemicals - Pt. has been advised to avoid exposure to any and all pesticides." (Department exhibit #1) Mr. Milo used to have a florist shop but had to let his son take over because he could not continue to be exposed to pesticides or the flowers in the shop. Although he is functioning better, he must avoid fragrance products, pesticides or automobile exhaust fumes. Generally, when Mr. Milo visited Dr. Robbins with a reaction, the patient gave an exposure history. Sometimes the physician surmised the reaction was to cumulative exposures. Dr. Robbins recalls only one outdoor exposure incident, when a lawn was sprayed, but has no notes to evidence the date or specifics, including distance. According to Dr. Robbins, Mr. Milo needs at least a quarter mile notice to protect his health. This distance is based on the history, apparently given to the doctor by Mr. Milo, that he had reactions to pesticides that affected his health within a quarter of a mile. Joyce Charney has been a patient of Dr. Robbins since approximately 1982. On his certification on her application he listed these classes of pesticides to which she is sensitive: "Organophosphates, chlorinated [sic] and pyrethrum." Someone else apparently added the words "pesticides" and "Dursban" to the certification form. Dr. Robbins has tested Ms. Charney extensively for her multiple severe allergies to pollen, dust and mold. He does not test for allergies to pesticides, but for this and other patients he relies on their history with regard to exposures. In his words: ...[G]enerally, when I fill out those forms I just - if a patient is very chemically sensitive and very allergic I put all classes. It is hard for me to determine which one of the -- If they have said they have had reactions when they go by lawns, or have been in someplace like a Home Depot and they get around the pesticide and they have reactions, or they were spraying with some- thing and have a reaction, it is hard to tell which ones. * * * So if they have had multiple exposures and multiple reactions I just put the full class. (Deposition of Albert Robbins, page 59-60) Dr. Robbins designated two blocks as the required notice distance for Ms. Charney based on her explanation to him that if she gets in the wind drift of a pesticide that has been sprayed, she gets a reaction. He also considered the fact that Ms. Charney and her husband own and live at a motel a few miles from the doctor's office. The motel is an "allergy-free" motel patronized by some of Dr. Robbins' patients who come from out of town and are very chemically sensitive and allergic. He feels that it is appropriate for these patients to have some protection against significant exposures to that motel. Carrietta Kelly was never a patient of Dr. Robbins and he never met her. He signed the certification on her application for registration as a pesticide-sensitive individual after she and her husband, a physician, called him. Her husband is a medical doctor in Naples, Florida, but not a physician qualified according to the DACS rules. Dr. and Mrs. Kelly sent Dr. Robbins a two-page letter describing her health history and describing the symptoms she experienced after her apartment was treated six years prior to the letter, and her condominium was sprayed with Cynoff and Orthane a year prior to the letter. Dr. Robbins classifies those products as fungicides. Based on the history he received from Dr. and Mrs. Kelly, Dr. Robbins identified on the certification form these groups to which she is sensitive: organophosphates, carbamates and pyrethrum; and he designated a 1/2 mile notification distance. Charlene McClure has been a patient of Dr. Robbins since July of 1993. Skin testing reveals that she is food sensitive, pollen sensitive, dust and mold sensitive; and she is sensitive to terpenes, which are the odors from flowering plants. When she comes to Dr. Robbins' office she is generally in a state of collapse. Because of the general sensitivities, Dr. Robbins certified on Ms. McClure's application that she is sensitive to three classes of pesticides: organophosphates, carbamates and pyrethrum. He further certified that she needs notification within a 1/2 mile radius. As part of the exposure history which Ms. McClure gave Dr. Robbins, she stated that in the summer of 1992 there was an aerial application of Decromal 14 mosquito spray over her house. She told him that as a result she suffered from severe headaches, exhaustion, nausea and stomach cramps. Dr. Robbins does not know whether droplets from the spray landed on his patient; he assumes that the Decromal is an organophosphate. The evidence does not establish that it is. Marilyn Friedman has been a patient of Dr. Robbins since 1989. He signed the certification on her application for registration and stated that she is sensitive to these specific pesticides or pesticide classes: organophosphates, carbamates and chlorinated pesticides. At his deposition he indicated that pyrethrums should also be on the list. As with his other patients, the list is based on her history of being severely allergic and chemically sensitive. Ms. Friedman's allergies include pollens, dust, mites, insects, molds, terpenes and foods. According to Dr. Robbins, she cannot tolerate someone coming in the office with a fabric softener on clothing. Dr. Robbins' determination that Ms. Friedman requires one block distance notification is based on his patient's request. His records, as he testified in deposition, do not document specific exposures and reactions but he believes that his certification probably resulted from her request to him and her desire to be protected. The application for Sally B. Platner, dated October 2, 1992, includes a certificate by Michael Waickman, M.D., the son and partner of Francis Waickman, M.D. The certificate includes this description of the pesticides or class of pesticides to which Ms. Platner is sensitive: Fungicides including "Twosome" Chem-lawn Fertilizer application liquid. (Department exhibit #1) There is some further notation, but the evidence fails to establish who made those notes. Dr. Francis Waickman treated Ms. Platner, and his son saw her in his absence. She had previously been treated and tested by Dr. Bill Rea in Texas and she was determined to have many allergies and sensitivities. Sometime in 1982, she was living in an apartment complex in Ohio and reported that she was exposed to some pesticide application by a company called Chem-lawn. Dr. Francis Waickman surmised she had both dermal and respiratory absorption since she developed a skin rash within two hours of the exposure. He is not certain what chemical was implicated, but he is confident that it was a pesticide because he has personally observed that company's practices in the area. Dr. Francis Waickman's regimen of treatment for Ms. Platner included one thousand milligrams of vitamin C hourly, until she improved or got a loose stool from too much vitamin C. The record does not establish whether this treatment was successful for Ms. Platner. The certification in 1992 was based on Ms. Platner's phone call to the Ohio doctors' office and her description of the exposure. Dr. Waickman believes she was exposed to the fungicide, "Twosome," when it was sprayed on a golf course across the street from her residence in Florida. He surmised that since she had angina and other problems with other chemical exposures, she was also sensitive to "Twosome" as a related chemical and through what he described as a "spreading phenomena." Jesse Naglich has been a patient of Dr. Klemsawesch since 1992. She is allergic to a multitude of medicines, has allergic rhinitis and asthma. Dr. Klemsawesch certified her application for registration on November 16, 1993, stating that she is sensitive to Diazinon and organophosphates. She requires two blocks' notice of any application of those substances. Dr. Klemsawesch's assessment of Ms. Naglich's condition and requirements is based on her history. She reported to the doctor that she had adverse reactions after exposure to various chemicals. Sandra Metzger is also a patient of Dr. Klemsawesch. He has treated this "very complex patient" since 1986. On his most recent certification on Ms. Metzger's application for registration, he notes that she is sensitive to "organophosphates, pyrethrins and petrochemical-based compounds." Her diagnosed condition for purposes of the registration is "respiratory allergies and chemical sensitivity," and she requires a two-block notice, according to her physician. Dr. Klemsawesch prefers the term "sensitivity" instead of "allergy" with regard to his patients' reactions, because there is no specific test to determine an allergy to pesticides. Ms. Metzger had to leave her employment because of her reactions to insecticides sprayed in her workplace. She was exposed in 1991 at the same time that her office was being painted. In order to have an adverse reaction, in Dr. Klemsawesch's view, the patient must actually receive a dermal or respiratory exposure, or contact with the mucus membranes of the mouth or eyes. Mere olfactory detection (smell) might be an unpleasant event, but an olfaction reaction is not an allergic or toxic reaction unless the substance is being absorbed into the mucus membranes. Dr. Paul Wubbena has treated Pia Valentine since 1987. She is currently ten years old and suffers from asthma and allergic rhinitis; and, according to Dr. Wubbena's certification dated December 29, 1993, she is sensitive to pyrethrums, Diazinon and Dursban. She had recurring problems when riding her bicycle to the grocery store with her mother, and when pesticides were being sprayed she would start wheezing and coughing and getting sick. Also, based on her history given to the physician, she reacted to pyrethrums in flying insect spray. Dr. Wubbena based his conclusions regarding the specific chemicals on the history given to him by his patient and her mother and on his knowledge that Dursban and Diazinon are commonly used for lawn spraying. Miss Valentine has been tested for reactions to pollens and molds and is allergic to things of that type. Her allergic reactions are similar to her reactions in the presence of the specific pesticides listed by Dr. Wubbena. Jeanne Pellegrino has been treated by Dr. Hana Chaim for multiple chemical sensitivity and pesticide sensitivity since July of 1992. Dr. Chaim signed the certificate on Ms. Pellegrino's application for registration on June 2, 1993, indicating that she is sensitive to "organophosphates, pyrethrums, cypermethrin, especially Dursban" and that she needs 1/2 mile distance notification of application of those pesticides. The determination of what chemicals to put on the certificate was based on discussion with the patient, whom Dr. Chaim understood had established the specific pesticides she had been exposed to in the past. The distance determination was based on Dr. Chaim's understanding that sprays can go from a 900 to 1500-mile radius and the 1/2 mile notice is the maximum required by law. Although she suspected organophosphates were involved in Ms. Pellegrino's first exposure between April and June of 1993, this was not confirmed. Within the files of DACS for Kathryn Kaeding are two physician's certifications, dated February 16, 1993 and June 12, 1992, by Dr. Ahner. On the forms it is noted that she is sensitive to "Hydrocarbons, all pesticides, chlorinated compounds." Her diagnosed condition is "allergy - hypersensitivity - immune dysfunction." There is no other evidence in the record, from the individual or her physician, regarding Ms. Kaeding's condition or eligibility for registration. Nor is there any evidence, other than her application, regarding the eligibility of Carol Arrighi. From the form in the record it is impossible to determine whether the individual or her physician completed the application, or whether the signature on the certification is that of a physician. The certification for Kayleigh Marie Nunez is signed by Dr. Chaim. It states that she is sensitive to "organophosphates, all pesticides and herbicides, one-half mile limit requested." The certification for Estelle Greene, dated July 2, 1993, is signed by Linda Marraccini, M.D. The class of pesticides to which the individual is sensitive is noted as "All." Dr. Robbins appears to have signed certifications for Betty Jane Napier and for Susan and Donald Maxwell (both Maxwells are included on a single application form). The notation typed on Ms. Napier's form states: "Known to react to ethylene oxide." The pesticides or class of pesticides listed on Mr. and Mrs. Maxwell's form are "organophosphates, organochlorines, pyrethroids." The certification by Dr. Chaim on Barbara Rauker's application states that she is sensitive to "all classes of pesticides." The certification by Caren B. Singer, M.D. on Judith Lessne's application states that she is sensitive to "Pesticides in general, Petroleum based products." Pesticide Industry Practice A reliable pest control operator will determine the nature and extent of a problem before attempting a treatment. The operator must consider the surroundings of the area to be treated and the environmental factors such as rain, wind and sun. Treatment is tailored to reduce drift, which not only can cause harm but also causes needless expense due to waste. Good industry practice includes training technicians and carefully following the manufacturer's instructions regarding the most safe and effective use of the product. While careful use can control drift, unexpected wind gusts can disperse the product beyond its target, and even Petitioners' expert concedes that a post-application vapor of pesticide could drift for a half mile. Pesticide Sensitivity According to the Department's expert, Dr. Teaf, pesticide sensitivity by definition relates only to the substance that was the subject of an initial exposure and subsequent exposure that causes a reaction in an individual. The medical and toxicological link for pesticide sensitivity is much tighter than for the condition referred to as "multiple chemical sensitivities" or "MCS". There is no generally accepted definition in the scientific community of what constitutes pesticide sensitivity and there is no simple blood test to establish pesticide sensitivity. While there is commonly a psychological or psychogenic factor in pesticide sensitivity just as there is with other health conditions like heart problems, pesticide sensitivity is not solely a psychogenic or psychological condition. Pesticide sensitivity can be reasonably determined, even through the mechanism by which an individual acquires that condition is not clearly understood. A reaction to a specific chemical or pesticide class can be documented and quantified by a physical change in the body. Exposure histories are significant so long as the pesticide or pesticide class is identified. However, exposure histories alone are insufficient unless other causes are reasonably ruled out. Specifically, many individuals in the cases here were determined to be sensitive to many different agents: molds and pollens, food, animals, petroleum products and perfumes. It is impossible to deduce that an individual's symptoms are caused by exposure to one, rather than another agent, unless there is some process of elimination or isolation of the suspect agent. Summary of Findings Evidence of the process for diagnosis for the individual respondents in this proceeding is meager. Not one individual applicant testified, and only eleven applicants were addressed through the deposition testimony of their certifying physicians. Not one of the certifying physicians could testify that he or she actually followed the guidelines provided by the department, which guidelines, although non-binding, are accepted by experts for both sides of the dispute as important to good diagnosis. Dr. Klemsawesch, a very credible and competent witness and specialist in allergy and immunology, conceded that in order to respond to questions regarding the connection between exposures to pesticides and subsequent reactions, from a scientific point of view, you would need to test people by exposures in a controlled fashion and determine their physiological response. For Dr. Klemsawesch's patients, Ms. Naglich and Ms. Metzger, the specific events reported to him stood out beyond the background of their other common allergies to lead him to his conclusion that the chemicals he listed on their certificates were having an effect. That conclusion falls short of the finding required by law for the extra distance notice. Dr. Klemsawesch's conclusion, like that of the other certifying physicians, was based primarily on the individual's history. While that is an appropriate and accepted method of diagnosis, the histories described in the record of this proceeding are wholly lacking in the detail necessary for the determination required by law. No individual in the multiple cases consolidated presented adequate proof of the need for notification at greater distance than that specified for pesticide-sensitive persons.
Recommendation Based on the foregoing, it is RECOMMENDED: That the agency enter its final order denying the petition in Case #94-3237 (Carol Ann Rodriguez) as moot (see preliminary statement); and granting the remaining petitions by denying the applications for designation as "especially pesticide-sensitive." RECOMMENDED in Tallahassee, Leon County, Florida, this 31st day of May, 1995. MARY W. CLARK, 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 31st day of May, 1995. APPENDIX A INDIVIDUAL CERTIFYING DOAH CASE# RESPONDENT PHYSICIAN 94-2801 Cheryl Mansker Robbins 94-2802 Sally Platner Waickman 94-2803 Thomas Milo Robbins 94-2805 Kathryn Kaeding Ahner 94-2852 Carol Arrighi Doyle 94-2853 Jessie Naglich Klemsawesch 94-2855 Joyce Charney Robbins 94-2858 Carietta Kelly Robbins 94-2859 Kayleigh Nunez Chaim 94-2862 Pia Valentine Wubbena 94-2864 Sandra Metzger Klemsawesch 94-2865 Charlene McClure Robbins 94-2866 Estelle Greene Marraccini 94-2867 Jeanne Pellegrino Chaim 94-2869 Marilyn Friedman Robbins 94-2871 Betty Jane Napier Robbins 94-2872 Susan Maxwell Robbins 94-3235 Carietta Kelly (see 94-2858) 94-3236 Susan Maxwell (see 94-2872) 94-3237 Carol Ann Rodriguez (moot) 94-4243 Barbara Rauker Chaim 94-6376 Judith Lessne Singer APPENDIX B The following constitute specific rulings on the findings of fact proposed by the parties. Florida Pest Control Association, Inc. Adopted, or adopted in substance or in summary form: #1-7, 11-18, 22-28, 38, 41, 48-49, 62-82, 88-90, 93-105, 107-109, 115-121, 124-126, 129-133, 137, 140-147, 158. Accepted, but not incorporated, as unnecessary or immaterial: #8-10, 19- 21, 29-37, 39-40, 42-47, 50-61, 83-87, 91, 106, 110-114, 122-123, 127-128, 134- 136, 138-139, 148-157. Rejected, as inconsistent with or unsupported by the weight of evidence: #92. Certified Operators of Southwest Florida, Inc., Lan-Mac Pest Control-Englewood,Inc. Lan-Mac Pest Control-Ft. Myers, Inc. Adopted, or adopted in substance or in summary form: #1-5, 8-11, 13-15, 18-22, 24-25. Rejected, as inconsistent with, or unsupported by the weight of evidence: #27. (The remaining numbered paragraphs are designated as conclusions of law.) The Department of Agriculture and Consumer Services Adopted, or adopted in substance or in summary form: #1-4, first sentence of #5, 6, 8-10. Accepted, but not incorporated, as unnecessary or immaterial: #7. Rejected, as inconsistent with or unsupported by the weight of evidence: Second sentence of #5. Individual Respondents Adopted, or adopted in substance or in summary form: #2-7, 10, 12-14, 22, 24-33, 40, 42, 47-56, 58-63, 66, 69-71, 80, 82-86, 90-95, 101, 106-109, 111-113. Accepted, but not incorporated, as unnecessary or immaterial: #8-9, 11, 15-21, 23, 34-38 [the issue is not the patient's sensitivity, but the extra distance notice requirement], 43, 46, 67 (not the required Board), 68, 72, 74- 77, 81, 88, 98, 99, 100, 115. Rejected, as inconsistent with or unsupported by the weight of evidence: #1, 39, 41, 44-45, 57, 64, 65, 73, 78-79, 87, 89, 96-97, 102-105, 110, 114, 116- 117. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel The Capitol, PL-10 Tallahassee, Florida 32399-0810 Robert G. Worley, Esquire Dept. of Agriculture & Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Jonathan A. Glogau, Esquire Assistant Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 Lance McKinney, Esquire O. Box 88 Cape Coral, Florida 33910-0088 Howard J. Hochman, Esquire 1320 S. Dixie Highway Suite 1180 Coral Gables, Florida 33146
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the final hearing, the following facts are found: At all time material to these proceedings, Respondent DiFalco, was employed by Sears Termite and Pest Control (Sears) of Tallahassee, Florida, a licensee as defined in Section 482.021(12), Florida Statues. Although Respondent was an employee of a licensee, Sears, there was no evidence that Respondent was a "certified operator", or an "identification cardholder" or a "special identification cardholder" as defined by Section 482.021(5)(9), Florida Statutes, and Section 482.151, Florida Statutes, respectively. On or about May 31, 1988, Respondent, representing Sears and responding to a request by Dixie Lee Mims (Mims), inspected the residential property of Mims and represented to Mims that her home was infested with subterranean termites and powder post beetles and that control treatment was needed. Subsequently, though Sears, Respondent entered into a contract, number 96232, with Mims for the control of termites at a cost of $875.00 to be paid through Mims' Sears charge account. Respondent advised Mims that the cost for control of the beetles was included in the contract even though such control was omitted in the contract. Subsequent inspection of the Mims' home by an independent pest control firm and by Petitioner's entomologist revealed no visible signs of present or recent infestation of termites or beetles. Roger White, Manager, Sears, based on an additional inspection by Sears worked out a settlement with Mims whereby Mims would be given $500 credit on her Sears charge account and retain her contract with Sears.
Recommendation Upon consideration of the fcregong Findings of Fact and Conclusions of Law, the evidence of record and the demeanor of the witnesses, it is, therefore, RECOMMENDED that Petitioner enter a Final Order dismissing the Administrative Complaint filed herein. Respectfully submitted and entered this 16th day of May, 1989 in Tallahassee, Florida. WILLIAM R. CAVE 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 16th day of May, 1989. COPIES FURNISHED: Anthony T. DiFalco Route 5, Box 215, #3 Tallahassee, Florida 32301 John L. Pearce, Esquire District 2 Legal Office 2639 North Monroe Street Suite 200-A Tallahassee, 32303-4082 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact At all times material hereto, Respondent was the holder of Pest Control Business License No. 875, Pest Control Operator's Certificate No. 667, and Identification Card No. 6415. Respondent's business was and is located at 512 South Eighth Street, Fernandina Beach, Florida. The anniversary date for purposes of renewal of Respondent's Pest Control Business License was November 30, 1978. Those persons holding identification cards issued in connection with the operation of H & K Pest Control were Respondent, Dolphus Lee White, Donna Kay Young and George Morrison Young. Respondent was licensed to conduct pest control business only in the category of Lawn and Ornamental pests. On November 28, 1978, two days before Respondent's pest control business license was to expire, HRS received an Application for Pest Control Business License and Identification Cards from Respondent requesting renewal of the aforementioned licenses and identification cards. However, the Certificate of Insurance attached to the renewal application failed to meet the requirements for minimum financial responsibility for property damage contained in Section 482.071, Florida Statutes. The Certificate of Insurance in question indicated that the limits of liability for property damage were $50,000 for each occurrence, and $50,000 in the aggregate. The statutory requirements are $50,000 for each occurrence and $100,000 aggregate. As a result, by notice dated November 29, 1978, HRS returned Respondent's application, indicating that the Certificate of Insurance did not meet the statutory standard. In addition, the November 29, 1978 letter specifically informed Respondent that . . . it is unlawful to operate a pest control business that is not licensed." HRS received a corrected Certificate of Insurance on February 27, 1979. However, this Certificate of Insurance did not indicate the name of the insured pest control business, and was, accordingly, returned to Respondent's insurance agent. Respondent's name was then apparently inserted in the Certificate of Insurance by the agent, and the corrected Certificate of Insurance was received by HRS on March 3, 1979. As a result, Respondent's application for renewal of his licenses and identification cards was not, in fact, complete until March 3, 1979. The renewal licenses and identification cards were thereafter issued on June 4, 1979. The delay between receipt of the completed application and issuance of the licenses and identification cards was apparently due to work load in the HRS Office of Entomology. Notwithstanding the fact that Respondent was licensed only in the area of Lawn and Ornamental Pest Control, H & K Pest Control performed pest control services inside buildings at the Florida Marine Welcome Station in Fernandina Beach, Florida, for the period July 1, 1978 through and including two days prior to the hearing in this cause on September 28, 1979. The State of Florida, Department of Commerce, Office of Administrative Services was billed ten dollars monthly on H & K Pest Control statements for this service, and payment was remitted by the State of Florida for these services to H & K Pest Control. In addition, on at least two occasions H & K Pest Control performed pest control services inside buildings at the Florida Welcome Station on Interstate Highway 95 in Yulee, Florida. One of these occasions occurred in November, 1978 for which H & K Pest Control billed the Florida Welcome Station in Yulee, Florida, thirty dollars on its statement dated January, 1979. At no time during the performance of pest control services inside the Florida Marine Welcome Station in Fernandina Beach, Florida, and the Florida Welcome Station on Interstate Highway 95 in Yulee, Florida, was Kinsey C. Haddock or any other employee of H & K Pest Control licensed in the category of General Household Pests and Rodents, or in any other category that would have allowed them to treat the inside of buildings for pests. Although Respondent was never observed to have personally sprayed the insides of buildings at either Welcome Station, persons identifying themselves as employees of H & K Pest Control did perform those services, the State of Florida was billed on statement forms of H & K Pest Control for these services, and payment was remitted by check to H & K Pest Control. On December 27, 1978 an inspector from HRS visited the business location of H & K Pest Control at 512 South Eighth Street, Fernandina Beach, Florida. The business office was open and being operated by a person claiming to be an employee of H & K Pest Control who identified herself as Joyce French. Ms. French advised the inspector that she had been trained in the category of General Household Pest Control, and had performed these services inside the Florida Welcome Station on Interstate Highway 95 in Yulee, Florida. Records maintained by the Office of Entomology indicate that no identification card or other license had ever been issued to a "Joyce French" in the area of General Household Pest Control. Respondent denied that he had ever employed a "Joyce French", nor was Miss French called as a witness in this proceeding. Further, other than the statement attributed by the inspector to Ms. French, there is no evidence in this proceeding to corroborate that Ms. French did, in fact, perform pest control services of any description. Further, on December 27, 1978, Respondent did not have displayed in his business office a certified operator's certificate renewal or a current business license, as required Chapter 482, Florida Statutes. Finally, the record in this proceeding establishes, and Respondent has, in fact, admitted, that he is not a full- time employee of H & K Pest Control. In fact, the record clearly establishes that Respondent has been a full-time employee of Container Corporation of America as an engineer in the Power Department of that company since December 9, 1937. Respondent works rotating shifts in his employment at Container Corporation of America, but usually works the 8:00 a.m. to 4:00 p.m. shift an average of only five days per month. When not working the 8:00 a.m. to 4:00 p.m. shift at Container Corporation of America, Respondent operates his pest control business at the address above mentioned.
