Findings Of Fact At all times pertinent hereto, Joey Collins Pest Control of America, Inc. (Collins Pest Control) was subject to the regulatory provisions of Chapter 482, Florida Statutes, and the pertinent rules adopted by Petitioner, as a business entity licensed by Petitioner to engage in pest control in the State of Florida. At all times pertinent hereto, Eric C. Van De Ven was employed by Collins Pest Control as a pest control operator and was subject to the regulatory provisions of Chapter 482, Florida Statutes, and the pertinent rules adopted by Petitioner. On May 15, 1990, Mr. Van De Ven performed a termite inspection at the residence located at 8411 S.W. 84th Terrace, Miami, Florida, at the request of J. Raul Cosio and Maria F. Trabanco, in connection with their intended purchase of that residence. This work was performed in his capacity as an employee of Collins Pest Control. Mr. Van De Ven prepared, signed, and caused to be delivered to Mr. Cosio and Ms. Trabanco, a written inspection report pursuant to Section 482.226, Florida Statutes. This report was prepared on behalf of his employer, Collins Pest Control, on Collins Pest Control's letterhead. This report, states that visible evidence of Formosan termites was observed on the main beam above the pool deck, that live Formosan termites were observed on the main beam above the pool deck, and that there was visible evidence of damage by Formosan termites. The report also estimates that treating the premises by "tent and soil poisoning" would cost $1,525.00. The report did not include observable damage that had been caused by drywood termites. Mr. Van De Ven had observed this damage, but he did not note this damage in his report because the owner of the premises had been aware of the damage, the damaged area had been treated, and the area had been patched. Mr. Van De Ven recommended to Mr. Cosio and Ms. Trabanco that the owners of the premises should contact Truly Nolen, the company that had treated the premises for drywood termites, to determine whether Truly Nolen would pay for any additional treatment that may be necessary. Mr. Van De Ven erroneously identified a drywood termite as being a Formosan termite. There were no Formosan termites on the premises, and there was no condition that would have warranted the treatment recommended by Mr. Van De Ven. All damage that had been observed by Mr. Van De Ven had been caused by drywood termites. Mr. Van De Ven should have been able to distinguish between evidence of Formosan termites and evidence of drywood termites because of the physical differences between the two types of termites and because of the differences between the damage each type does to an infested area. Mr. Van De Ven was negligent in failing to distinguish between the two types of termites and in recommending the unnecessary treatment. There was no evidence that Mr. Van De Ven deliberately misled his customers or that he was trying to sell unnecessary services. There was no evidence that Mr. Cosio or Ms. Trabanco suffered any damages as a result of their dealings with Respondents. There was no evidence that either Respondent had been previously disciplined by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which: finds that Respondents Eric C. Van De Ven and Joey Collins Pest Control of America, Inc. have violated the provisions of Section 482.226(1), Florida Statutes, by performing the subject inspection in a negligent manner; further finds that said Respondents have violated the provisions of Rule 10D-55.1046(6), Florida Administrative Code, by recommending treatment for Formosan termites where there was no evidence of such infestation; and imposes an administrative fine in the amount of $250 against each Respondent. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of February, 1991. CLAUDE B. ARRINGTON 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 20th day of February, 1991. APPENDIX TO RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1, 2, and 10 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 3-9 are rejected as being subordinate to the findings made. The only post-hearing submittal submitted by Respondents was in the form of a letter addressed to the Hearing Officer filed January 28, 1991. This letter contained no proposed findings of fact. COPIES FURNISHED: Karen Miller, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401 Joey Collins Pest Control of America, Inc. 243 N.E. 5th Avenue Delray Beach, Florida 33483 Joseph A. Collins, III Owner Joey Collins Pest Control of America, Inc. 243 N.E. 5th Avenue Delray Beach, Florida 33483 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent, Elite Inspectors, LLC, d/b/a EliteInspectors.com, engaged in the unlicensed practice of pest control, in violation of sections 482.071, 482.161, and 482.165, Florida Statutes (2015)1/; whether Respondents, Tamer Kekec and Stephen Franco, engaged in pest control services in violation of sections 482.071, 482.165, and 482.191; and, if so, what penalties should be imposed against Respondents.
Findings Of Fact The Parties Petitioner, Department of Agriculture and Consumer Services (Petitioner or Department), is the state agency charged with administering the Structural Pest Control Act, chapter 482, Florida Statutes (the Act). Respondent, Elite Inspectors, LLC, d/b/a EliteInspectors.com (Elite), is a Florida Limited Liability Company, whose principal place of business is 9951 Atlantic Avenue in Jacksonville, Florida. Elite is a residential structural inspection company offering home inspections in northeast Florida and southeast Georgia. Elite has never been licensed by the Department to engage in the business of pest control, pursuant to section 482.071. Respondents, Tamar Kekec and Stephen Franco (the Individual Respondents), are the managers, and only members, of Elite, which was formed in 2004. Pest Control Activities Petitioner is authorized to issue licenses to qualified businesses to engage in the business of pest control in this state. See § 482.071(1), Fla. Stat. Petitioner is likewise authorized to issue employee identification cards to persons employed by licensees to perform pest control services. See § 482.091, 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). See § 482.165(1), Fla. Stat. "Pest control" is broadly defined in section 482.021(22) to include: (b) The identification of or inspection for infestations or infections in, on, or under a structure, lawn, or ornamental; * * * (e) 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. Thus, both the conduct of wood-destroying organism (WDO) inspections, and advertising for the conduct of WDO inspections, are “pest control” activities regulated by the Act. 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 is further authorized to take disciplinary action against licensees and identification cardholders, pursuant to section 482.161, and to issue fines against persons who engage in the unlicensed practice of pest control, pursuant to section 482.165. WDO Inspections by Elite Prior to April 10, 2014 Between January 3 and April 10, 2014, Elite, through its member Mr. Franco, performed 99 WDO inspections, in addition to residential structural inspections, for its customers. During that timeframe, Elite billed its customers $6,850.00 for WDO inspections performed by Mr. Franco. During that same timeframe, Mr. Kekec performed 49 WDO inspections, in addition to residential structural inspections for Elite customers, billing them a total of $6,290.00. All customer payments for WDO inspections conducted by the Individual Respondents were deposited into Elite’s business banking account with BBVA Compass Bank. DL and the Individual Respondents Florida Quality Services, Inc., d/b/a DL (DL), is a Florida corporation licensed to engage in the business of pest control, and whose business address is 7008 Bayard Road, Ft. Pierce, Florida. William R. Miles is DL’s president and holds a pest control operator’s certificate, pursuant to section 482.111. In the language of the licensing statute, Mr. Miles is the Certified Operator in Charge (COIC) at DL. Every employee who performs pest control for a licensee must have an identification card. See § 482.091(1)(a), Fla. Stat. On April 5, 2014, Mr. Miles applied to Respondent for pest control employee identification cards for Respondents Kekec and Franco. In the application, Mr. Miles stated that the Individual Respondents would begin conducting WDO inspections for DL on April 22, 2014. The Individual Respondents signed a portion of the application certifying that they were not “currently employed by any other pest control licensee.” They also certified that they were previously employed by another unnamed licensee with a termination date of April 21, 2014. Mr. Kekec was “employed” by a number of pest control companies concurrent with his operation and management of Elite, including FK Pest Control from January to March 2014, DL Pest Control from June 2011 to December 2013, CS Pest Control from April 2009 to May 2011, TI Pest Control for an unspecified period, and A1 Pest Control from May 2005 to October 2006. Curiously, all these companies had the same business address as DL--7008 Bayard Road, Ft. Pierce, Florida.2/ The Individual Respondents were issued pest control employee-identification cards by the Department on April 10, 2014, identifying them as employees of DL. In August 2014, DL applied to renew its license for the 2014-2015 license year, listing the Individual Respondents as employees to be issued identification cards as WDO inspectors for DL. DL and Respondent Elite Following issuance of employee-identification cards to the Individual Respondents, Elite continued to conduct WDO inspections, as well as residential inspections, for its clients, and bill those clients for WDO inspections. All payments received by Elite from its customers for whom it conducted WDO inspections were deposited into Elite’s business bank account. Between January 3 and December 31, 2014, Elite conducted over 300 WDO inspections for its customers, billing them in excess of $48,000 for said inspections. Elite continued to conduct WDO inspections for its customers, bill its customers for those WDO inspections, and accept payment for those WDO inspections, in 2015 as it had in 2014. Elite obtained customers through its website, and through referrals from both previous customers and real estate agents. Elite’s customers scheduled their home and WDO inspections directly with Elite through Mr. Kekec or Mr. Franco. Elite set the price per inspection based upon the size, age, and the type of construction of the customer’s property. Elite provided the ladders, flashlights, screwdrivers, extension probes, and, with the exception of a short period in 2015, the vehicle, used by the Individual Respondents to conduct WDO inspections. When Elite did not provide the vehicle for a brief period in 2015, Elite used a vehicle personally owned by Mr. Kekec. Elite also paid the fuel cost to travel to and from inspections of customer properties, which is Elite’s only operating expense. After issuance of employee-identification cards to the Individual Respondents, Elite entered into an arrangement with DL by which Elite would pay DL $38 for each WDO inspection conducted by the Individual Respondents. In turn, DL paid the Individual Respondents $10 for each WDO inspection they conducted. For the 2014 tax year, DL paid Mr. Kekec $1,160 and issued him a W-2 wage and tax statement. That same year, DL paid Mr. Franco $1,130 and issued him a W-2 wage and tax statement. For each WDO inspection conducted, the Individual Respondents prepared and signed a WDO inspection report on a form required by the state. Each inspection report listed DL as the inspection company. Each report was reviewed by Mr. Miles after-the-fact in his office in Ft. Pierce. Mr. Miles testified that he provided constructive criticism via email once a month to his WDO inspectors regarding completion of the reports. However, if an inspector had completed inspection reports for three consecutive months, Mr. Miles suspended monthly review of their reports and only conducted “spot checks.” Respondents introduced no document to evince review and criticism of any report completed by either Mr. Kekec or Mr. Franco. Whether DL provided ongoing training in WDO inspections to the Individual Respondents was a contested issue at hearing. Respondents attempted to introduce a composite exhibit consisting of two manuals, two posters of termites, and a “flip-book” produced by University of Florida. When asked whether DL provided the manuals to Mr. Kekec, he testified, “[W]ell, the last version of the manuals, I believe it was provided in 2013, but I think there was four or five different versions of it. It’s been updated over the years.” The evidence was not clear whether DL provided the manuals to the Individual Respondents or they were obtained by other means. Even if the manuals were provided by DL to the Individual Respondents, there is insufficient evidence to find that DL provided any ongoing relevant training to the Individual Respondents. The parties stipulated that the Individual Respondents met the training requirements to qualify to be identification cardholders. The only equipment issued to the Individual Respondents by DL for their use in conducting WDO inspections was a magnifying glass. Elite Website During all times relevant hereto, Elite maintained a website whose address was www.eliteinspectors.com. Elite noted “WDO Inspections” as one of its services and areas of expertise. Under “About Us” on its website, Elite stated, “In addition to home inspections, we do . . . wood destroying organism (termite) inspections (performed by DL employees).” With regard to WDO inspections, the website included the following: Our inspectors are State Certified WDO inspectors with several years of experience and meet all of the Florida continuing education requirements. We perform the WDO inspection while performing the home inspection so one additional step can be eliminated, which saves time and money. WDO inspections are performed by DL employees. In the “Inspector Biographies” section, the website reported that Mr. Franco was a “Certified Pest Operator- Termite” and that Mr. Kekec was “a licensed WDO inspector under DL pest services.” At final hearing, Mr. Kekec was unable to identify any reason why Elite would want to identify Mr. Franco to its customers as a licensed pest control operator. The website did not identify what DL was or its relationship with either Elite or its managers, Mr. Franco and Mr. Kekec.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order finding: Respondents, Elite Inspectors, LLC, d/b/a EliteInspectors.com, Tamer Kekec, and Stephen Franco, violated sections 482.071(1) and 482.165(1), by engaging in the business of pest control in 2014 and 2015 without a license from the Department, and impose an administrative fine of $4,500 against the Respondents, jointly; Respondent, Elite Inspectors, LLC, d/b/a EliteInspectors.com violated section 482.161(1)(h), by engaging in misleading advertising relating to pest control, and issue a warning letter thereto; and, Respondents, Tamer Kekec and Stephen Franco, violated section 482.091(2)(a), by conducting WDO inspections in 2014 and 2015 as independent contractors to DL, and revoking the Individual Respondents’ identification cards, pursuant to section 482.161. DONE AND ENTERED this 22nd day of March, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 22nd day of March, 2016.
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 The issue for consideration in this case is whether Respondents, Hugh H. Warnock and Terminix International Company, L.P. (Terminix), should be administratively disciplined by the Department Of Agriculture and Consumer Services, (Department), because of the matters alleged in the Notice to Impose Fine dated September 10, 1996.
Findings Of Fact At all times pertinent to the issues herein, the Department of Agriculture and Consumer Services was the state agency responsible for the licensing of pest control companies and applicators in Florida. Respondent, Terminix, was licensed as a pest control company and Respondent, Warnock, was licensed as a pest control applicator in Florida, and was employed by Terminix International Company, L.P. On January 22, 1996, Mr. Warnock conducted a termite inspection at property owned by Gordon C. Williamson located at 704 Court Street in Clearwater, at Mr. Williamson’s request. The property was a single story commercial building. Upon completion of his inspection, Mr. Warnock prepared and issued to the owner a wood-destroying organisms inspection report on which he certified he had inspected the premises, except for the attic which was inaccessible. Mr. Warnock noted that he found no visible evidence of wood destroying organisms, no evidence of visible damage and no visible evidence of previous treatment. He noted, however, that in January 1988, the premises previously had been treated for dry wood termites. As a matter of record, the January 1988 inspection and treatment was conducted by ARAB Pest control which, since that time, had been taken over by Terminix. Mr. Warnock qualified his inspection report by the comment, “This report is based on what was visible to me at the time of inspection.” The purpose of a wood destroying organism report is to note existing or present activity of wood destroying organisms, or damage done as a result of that activity. Most frequently, the inspection is done for buyers of property or those who are lenders to those who buy, though quite often owners of property have it done as a part of or in preparation for a treatment program to protect against the organisms. On the visit in issue, Mr. Warnock did the inspection by himself. Having seen vents in the lower portion of the outer wall on his way up to the property, he thought there might be an air space, not necessarily a crawl space, under the floor. After speaking with the owner, and telling him what was intended, Warnock started his inspection at the north end of the building where he found sheet rock against the walls and a dropped ceiling. This particular area was one where old furniture was stored. Mr. Warnock went from area to area in the building, and was able to do his inspection better in some places than in others because of the clutter inside. He also inspected around the outside of the building, after which he went to ask Mr. Williamson how he could get to the space beneath the floor in the center of the building. In response, according to Respondent, Mr. Williamson said he didn’t know of any access to that area and suggested Warnock ask someone else. With that, Warnock inquired of the other individual working in the building, who, Warnock asserts, also said he didn’t know of an access. Though Warnock claims he looked as best he could throughout those portions of the building accessible to him, because of sawdust and lumber on the floor, and the wood working machinery there, he could not see any access ports. It was subsequently determined that there are three crawl spaces located under the north part of the building which are separated by concrete footings. These spaces are accessible through access ports in the floor above them. Mr. Warnock definitively states that had he known of any access ports to the crawl space, he would have gone down into it to look for damage or organisms. It is so found. Mr. Warnock takes exception to the photographs introduced by the Department, taken by Mr. Caudill several months after his initial visit, contending they do not accurately reflect the conditions he encountered during his January 1996 visit. The major difference is that at that time, sawdust and machinery covered the floor access panels that appear unencumbered in the pictures, and they were not visible to him when he looked. Admittedly, he did not ask that any of the equipment or wood be moved or that the sawdust be swept away. Subsequent to Warnock’s inspection, Mr. Williamson called the Terminix office and advised he had discovered damage at the north end of the building. This damage was found by Warnock on a return visit to be behind the drywall previously mentioned, and was determined to have been caused by drywall as opposed to subterranean termites. The treatment done under the contract with ARAB in 1988 was for drywall termites, and there was no contract to treat for subterranean termites. On the second visit Warnock again asked Mr. Williamson about any access ports, and, according to Respondent, Williamson again denied knowing of any. A second inquiry of the other gentleman on the premises met with the same response again, but on this occasion, when he looked down at the floor, Warnock saw an access hole in the floor, and when asked directly about it, the man admitted he had cut it into the floor about two years previously. Warnock claims that when he asked if there were other holes, the man said there were not, but this individual did not appear or present testimony at hearing. The hole was no more than a series of cuts across the floor boards between the floor joists which, since there was no handle, were removed one at a time by being pried up. When Respondent and his assistant manager, who was present with him on this visit, got down into the crawl space, they found no evidence of infestation. At that time, the other access holes subsequently found to exist were not known to be there. Respondent steadfastly contends that none of the access holes were visible to him or pointed out to him on inquiry of the occupants at the time of his January 1996 visit. As such, he claims, they were not accessible to him at that time. It was only after the second visit my Mr. Warnock that on June 4, 1996, Williamson submitted his complaint to the Department. In response, on June 7, 1996, Todd Caudill, a pest control environmentalist with the Department, went to the site and re-inspected it. During his inspection, done some six months after Warnock’s initial visit, Mr. Caudill found termite tubes and other evidence of infestation in the crawl space under the building when he went into it. He took photographs of what he saw. Mr. Caudill is 5’11’ tall and weighs about 260 pounds. Notwithstanding, he had no trouble getting down into the crawl space through the existing access holes. Mr. Caudill could easily see the termite tubes, and in his opinion, they were there before Warnock’s January 1996 inspection of the property. He bases this opinion on the dryness of the tubes, the lack of active termites there, and the extent of the damage existing. He could look up into the rafter area because the ceiling had been removed due to renovation, but could see no termite activity there. Mr. Caudill returned to the property for a second visit on June 25, 1996, at which time he took additional photographs. This second series of pictures included the second crawl space, on the East side of the building, and several additional access holes in the floor of the building. Mr. Caudill indicates that when he asked about additional access holes, he was directed to a portion of the building where, when he went there, he was able easily to find the portals without having them pointed out to him. He could not see where any of the access portals had been covered by machinery nor did it appear to him that any of the machinery recently had been moved. The machinery was not so big that it would cause a major obstruction. It was on this second that Mr. Caudill procured an affidavit from Mr. Williamson which indicates that when Mr. Warnock was there for his inspection, the access ports were not obstructed and had not been obstructed for the six years the tenant has occupied the space. Mr. Williamson was not present at the hearing to testify in person nor was his absence explained by counsel for the Department. No explanation was given by the Department as to why Williamson could not be present or his testimony preserved by deposition. Therefore, it is found that Mr. Williamson’s affidavit is inadmissible as hearsay evidence and is not considered. In Mr. Caudill’s opinion, Warnock’s report of his inspection of the Williamson property in January 1996 is not a complete report since it did not cover the area of the crawl space. Based on his investigation of the situation, Mr. Caudill recommended a fine of $500.00, after which, on September 10, 1996, the Department issued its Notice of Intent on which the alleged violations found are listed. At the time Mr. Caudill did his investigation of Mr. Warnock’s inspection, he had been employed by the Department less than a year. He is not licensed as a pest control operator, but had been trained in the classroom and in on the job training with other operators, and had done three inspections on his own. According to Mr. Chandler, the Terminix branch manager who went with Mr. Warnock to the Williamson property in May 1996 as a result of Mr. Williamson’s call, termite damage was discovered in the walls of the building when the covering was removed for repairs and renovation. Williamson seemed to feel that this area had been missed by Respondent when he was there in January. In response, Mr. Chandler supported Respondent, indicating the damage, as it existed and where it was, could not have been found by Respondent’s inspection. He offered to put in place a new treatment plan. Whether Mr. Chandler also spoke with Mr. Williamson about access holes is questionable. On one hand, Chandler said he did speak with him about them, yet at another point in his testimony, he could not recall asking Williamson about access ports. When the ports were discovered and opened, and Chandler went down into the crawl space, he found no evidence of infestation in that crawl space. The only evidence of termite damage observed by Chandler did not extend up from the crawl space, but existed in a beam which rested on a concrete slab in the area opened for renovation. Dr. John Mangold has worked in the pest control industry for seventeen years and is familiar with the laws and rules relating to wood destroying organism reports. To his understanding, equipment on the floor of a building renders the area underneath it inaccessible, and an inspector cannot deface an area in order to do an inspection. The inspection report done in 1988 reflects that a crawl space was not inspected at that time because it was N/A. Counsel agree this means “not accessible.” The second report, done by Mr. Warnock, is consistent with the former in that it also reflects the crawl space was not inspected because it was inaccessible. Since the vents on the side of the exterior wall, near the ground give rise to a presumption there is a crawl space there, if the inspector cannot find access ports, he should note that fact in the report and indicate why he could not get to it. Though Respondent did not do this, it does not invalidate a finding that at the time of his inspection, the crawl space was not reasonably accessible to him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Agriculture and Consumer Services enter a final order dismissing its Notice of Intent to Impose Fine. DONE and ENTERED this 23rd day of May, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1997. COPIES FURNISHED: Linton B. Eason, Esquire Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 James M. Nicholas, Esquire 1815 South Patrick Drive Indian Harbour Beach, Florida 32937 Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level Ten Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level Ten Tallahassee, Florida 32399-0810
The Issue The issues to be resolved are as follows: With regard to Count Four of the Amended Petition, whether the Petitioners have sufficiently alleged a rule challenge and more particularly whether sufficient facts have been alleged to identify the challenged rule, whether existing, proposed, or unpromulgated; and whether, through an unpromulgated rule, the Department (Respondent) has prohibited the installation of "pest control insulation" or borate containing insulation by anyone other than a card-carrying employee of a certified pest control operator or licensee. If so, it must be determined whether such action is outside the Respondent's rulemaking authority, whether it is contrary to statute, whether it disregards the exceptions proved in Section 482.211(9), Florida Statutes, and whether it violates Section 482.051, Florida Statutes. With regard to Count Five of the Amended Petition, whether the Petitioners have sufficiently alleged a rule challenge to a proposed or existing rule or have offered evidence legally sufficient to establish a rule, proposed, or existing, which the Petitioners are challenging relating to the Respondent allegedly having selectively investigated pest control operators performing 100 or more pre-construction termite treatments annually, and whether such action is an invalid exercise of delegated legislative authority. With regard to Count Six of the Amended Petition, whether the Petitioners have sufficiently alleged a rule challenge to a proposed or existing rule or have offered evidence legally sufficient to establish a rule, proposed, existing, or unpromulgated, which the Petitioners are challenging relating to the Respondent's alleged enforced application of termiticide arbitrarily and capriciously by not requiring the best available technology and not regulating according to acceptable standards in the manner in which it conducts field investigations. With regard to Count Seven of the Amended Petition, whether the Petitioners have sufficiently alleged a rule challenge based on a proposed or existing rule or have offered legally sufficient evidence to establish a rule, proposed, existing, or unpromulgated, which the Petitioners are challenging relating to the Respondent's enforcement of Chapter 482, Florida Statutes, as it relates to preventive soil treatments for new construction and its alleged failure to protect the public. With regard to Counts Two, Three, and Eight of the Amended Petition, whether the Petitioners have alleged any facts or presented any evidence to establish a proposed, existing, or unpromulgated rule substantially affecting the interests of the Petitioners. Whether either the Petitioners or the Respondent are entitled to recovery of attorney's fees and costs.
Findings Of Fact The Petitioners conceded at hearing that the Order on the Motion to Dismiss, prior to the hearing, concerning the mootness caused by the withdrawal of the above-referenced agency memos not only disposed of Count One of the Amended Petition, but had rendered moot Counts Two and Three, as well. No evidence was presented as to the those counts. Neither was any evidence or argument presented regarding Count Eight of the Amended Petition. Thus, Counts Two, Three, and Eight, as well as Count One, should be dismissed. The Petitioners, with regard to Count Four of the Amended Petition, did not allege the text of any statement or description of one which could be construed as an unpromulgated rule by the agency, which prohibited the installation of insulation containing borate by anyone other than a "card- carrying" employee of a certified pest control operator or licensee. There was no evidence to establish the existence of such an unpromulgated statement or rule of general application. Cliff Killingsworth testified that he was an officer and party representative of the Petitioners' companies in this case. "In-cide" is a cellulose fiber with borate or borate- containing materials for fire retardancy and fungal control. The manufacturer had increased the borate content in the material so that it could make claims with the Environmental Protection Agency (EPA) for the product's pest control value. Mr. Killingsworth acknowledged that it was a licensed and registered "pest control product." While Mr. Killingsworth agreed that claims to the public about the pest control value of the product should be done by a pest control operator, he felt that should not prevent him from subcontracting the installation of the insulation material to a professional insulation installer so that the material would be properly installed in a home or other building. Mr. Killingsworth met with Steve Dwinell and Joe Parker, representatives of the Respondent agency, in Jacksonville, Florida, in the summer of 1997. He provided them with a 30-to-40-page report regarding installation of the insulation with its pest control properties. He received no communication from the Respondent following this meeting and sought no written opinion from the Respondent about the use of the material before he began using it. Mr. Killingsworth invited George Owens, a field inspector for the Respondent in the Northwest Florida area, to observe the product being installed in a structure. Mr. Killingsworth testified that Mr. Owens, thereafter, sent him a letter stating that the Respondent was not going to regulate that material. Mr. Killingsworth, however, did not produce that letter or a copy of it. Mr. Owens testified that he had visited a site in Destin, Florida, at Mr. Killingsworth's invitation, where "Green Stone" insulation was being applied by being blown into a small section of a wall. He did not know that a subcontractor was making the application when he visited the site. He thought that an employee of Mr. Killingsworth was performing the installation of the material. Mr. Owens did not recall telling Mr. Killingsworth or any of his representatives that application of the product by an agent other than Mr. Killingsworth's own company would be prohibited. It was not Mr. Owens' belief that he had authority to make those decisions. He did not believe that he had authority to approve or disapprove the application of a pesticide. Mr. Killingsworth invited Mike McDaniels, another field investigator with the Respondent in the Gainesville, Florida, area to observe the installation of the product in the spring of 1998. Mr. McDaniels commented to Mr. Killingsworth that he was glad that they were doing it, but he made no report. After the Petitioners' companies had been operating for two or three months in the Gainesville area, sharing space with Green Stone Industries, the company producing the insulation, Mr. McDaniels returned. He informed Mr. Killingsworth that the Respondent agency had changed its position on the application of the product. Because it was a "labeled material," that is, labeled and promoted as a certified pest control product, for purposes of EPA regulations, it had to be installed and handled only by a pest control operator meeting the definition of an employee under Chapter 482, Florida Statutes. Mr. McDaniel was shown the insulation in question by Mr. Killingsworth and how it was installed at a job site. He never told Mr. Killingsworth whether he could use the product or not, but during a "non-adversarial inspection," he told him that he had to have "ID cardholders" (i.e., employees of a licensed pest control operator) install the insulation, since it had advertised pesticide qualities. Mr. McDaniel was shown a warehouse with two different types of insulation. One had borate advertised as a fire retardant. The other had a higher content of borate which was advertised to have pesticide qualities. Mr. McDaniel determined that employees applying the second type of product were conducting pest control by installing that product and should, therefore, have pest control operator identification cards. He explained that to Mr. Killingsworth and thought he may have written that opinion on an inspection form which he supplied to Mr. Killingsworth. He also believes he notified his supervisor, Phil Helseth. His normal practice, when a new material is reported to him or observed, is to inform his superior of the facts concerning that product. He never told Mr. Killingsworth or his representatives that they could not install the product in question. He informed them that since it was listed as a pesticide that they would have to be have employees of a licensed pest control operator to legally install the product. Mr. McDaniel did not consult with anyone at the Respondent agency about this, but rather relied on his own judgment as to agency policy and the interpretation of the statutes and rules enforced by the Respondent. He testified that he had no central direction from his superiors at the Department on the issue and was unaware what other districts or regions under the Department's regulation were doing to address this question. He simply determined that if the Petitioners' personnel were applying a product that was a registered pesticide insulation that, under his understanding of the broad statutory definition of pesticides as anything that "curbed, mitigated, destroyed, or repelled insects," then the installers would have to be employees of a registered pesticide operator. Mr. Dwinell testified as the bureau chief for the Bureau of Entomology and Pest Control. He met with Mr. Killingsworth along with Mr. Parker, another employee of the bureau. Mr. Killingsworth made a presentation regarding the product in dispute, the borate-impregnated cellulose insulation. He determined that the product was a pesticide because it was advertised as a registered pesticide and performed pesticide functions, in addition to its insulation function. He did not recall that the precise issue of subcontracting with a non- licensed pest control operator or insulation installer was a topic of their conversation. Following that meeting, he may have discussed the question with Mr. Helseth, in a general way, but does not recall discussing it with any other person. He recalls some discussion concerning the Gainesville office of the Killingsworth companies and whether Mr. Killingsworth, or that office of his company, was licensed as a certified operator. He believes he recalls that a cease and desist letter informing the Killingsworth companies of the need to have the application of the product performed by someone licensed to do pest control may have been sent, although he is not certain. Mr. Dwinell established that the Respondent agency had never published anything regarding pest control insulation. He noted that a pesticide was a pesticide under the statutory definition, whether a corn bait, insulation, or mixed in a jug. The same laws applied to it and under Chapter 482, Florida Statutes, a pesticide must be applied by a licensed applicator. Mr. Killingsworth insisted that the insulation product, though a registered pesticide, was exempt from the provisions of Section 482.211(9), Florida Statutes, because it was a derivative wood product. He agreed that the product in question was a wood by-product and not wood. If a product did not meet the statutory definition of being exempt, then it would be appropriate for the Respondent to issue a cease and desist directive until the Petitioners came into compliance with Chapter 482, Florida Statutes. Mr. Dwinell opined that the subject insulation product was not exempt under the provisions of Section 482.211(9), Florida Statutes. Unlike pre-treated lumber, which is exempt, the installation product at issue is a registered pesticide. Pre-treated lumber, though treated with pesticide in the manufacturing process, is not intended to be used as pesticide, nor is it a registered pesticide. The Petitioners have not stated a basis for a rule challenge pursuant to Section 120.56, Florida Statutes, as to Counts Five and Six of the Amended Petition. Although references were made to alleged "actions" by the Respondent agency, the Petitioners have not alleged with particularity, nor adduced any competent, substantial evidence of any rule provisions alleged to be invalid, nor have they shown, in an evidential way, any to be invalid. The evidence does not show that there is a rule, either proposed, existing, or as an unpromulgated agency statement of general applicability, which is actually being challenged by the Petitioners. There has not been a definitive showing by preponderant evidence that such exists concerning the product and operation at issue. The Petitioners in Count Seven of the Amended Petition have not stated any basis for a rule challenge in accordance with Section 120.56, Florida Statutes. There are numerous references to provisions of Chapter 482, Florida Statutes, but it is not alleged with any particularity which rule provisions are purported to be invalid, nor has preponderant evidence been adduced to establish any rule provisions either proposed, existing, or as unpromulgated agency statements, which have imposed a substantial effect on the Petitioners. In this regard, the Petitioners' counsel argued at the hearing: Your Honor, what we have suggested is that the rule that's being challenged is the Department's statutory obligation under the statute as it relates to their promulgated Rule 5E-14.105, and as it relates to their treatment guarantees or warranties that are required by that regulation for a treatment that just doesn't work. The Department rule requires a certain warranty and requires a renewable warranty, placing that upon the pest control operator under the guise of protecting the consumer, but the fact of the matter is, it doesn't protect the consumer, and it just endangers the pest control operator. And so I guess the actual rule is the 5E-14.105. In addition to that we have the statutory obligations of the Department, which is to provide a protection to the public health and the economic benefit of the consumer and evaluate these chemicals that they are requiring warranties for. That's the basis of the rule challenge, and admittedly, this one is a little bit nebulous, but there is a regulatory, I guess, mandate of these preconstruction soil treatments as a method, as the preferred method, and to the extent that the operators, who are the regulated entity in this case are required to--is mandated to require a warranty for a method they know doesn't work . . . . Mr. Killingsworth acknowledged in his testimony that he was not contending that there should not be a warranty requirement for treatments of subterranean termites, as stated in the above-cited Rule 5E-14.105, Florida Administrative Code. He also acknowledged that he was not contending that the Respondent should require warranties from pest control companies for every kind of pest control performed. He thought there were a lot of factors not within a pest control operator's control affecting particular wood fungi, but what was in the pest operator's control was the opportunity to do a preventive treatment for more than just subterranean termites and they, in his view, should not be prevented from doing so. When asked what preventive treatment he had been prevented from doing by the Respondent, his reply was: The effect of memos and other actions prevented us from doing our choice of preventative treatment, the borate application, through the effects of raising questions in building officials' eyes, through the effects of increasing the economic impact to us to get it done. Builders will not pay enough to do both soil treatment and bait and borate. The memoranda referred to as preventing Mr. Killingsworth from doing his choice of preventive treatment were not actually identified in the record, however. Mr. Dwinell testified that the EPA guidelines require an efficacy standard for soil treatments which states: "Data derived from such testing should provide complete resistance to termite attack for a period of five years." The EPA also provides guidelines for preventive treatment/wood impregnation: "When acceptable data derived from testing for at least two years, or less than five years, shows complete resistance to termite attack, the product may be registered." The efficacy standard for borate, thus, was not five years, but two years. Mr. Dwinell had concerns about the type of data that had been relied upon by the EPA for registration and how that data related to the situation in Florida. That was the basis for the negotiated rulemaking process that the Respondent was engaged in at the time of the hearing in this case. The purpose of the negotiated rulemaking process was to comply with the statute that required a rule, but ultimately the purpose was to have a mechanism in the State of Florida where the product was registered for use under construction and a reliable set of data that could show whether the product would actually protect against termites when applied. The ultimate goal of the statute at issue is to protect the consumer, which is the Respondent's statutory duty. Borate pesticides are registered for use, with label directions for use during construction. They are one of three categories of materials for use in construction, including soil- applied pesticide materials, baiting products, and wood treatments, the last being the borates. There are no directives issued by the Respondent that specifically preclude the use of either borate as a stand-alone treatment or a baiting system as a stand-alone treatment. The Respondent does not require soil treatments only. Mr. Dwinell has never told any licensee that he could not use borate products if he were licensed.
The Issue The issue presented is whether Respondent, S.M.G., Inc. (SMG), has provided reasonable assurance that its existing air curtain incinerator will be operated in accordance with applicable statutory and rule provisions.
Findings Of Fact The Parties The Department is the state agency responsible for receiving applications for, and the issuance of, permits for the construction and operation of air curtain incinerators in the State of Florida. SMG is a contracting company, with residential, trucking, agricultural, and commercial driver's license divisions. SMG is the applicant for a permit to operate an air curtain incinerator. Petitioners reside in Citrus County, Florida, in the vicinity of the constructed and operational air curtain incinerator. For the most part, Petitioners reside northeast, east, or southeast of the site. The Petitioners demonstrated their standing in this proceeding. SMG's Construction Permit On May 23, 2001, SMG submitted an application for an air construction permit to the Department's Southwest District Office. The application sought authorization to construct an air curtain incinerator "[o]n the east or west side of 6844 N. Citrus Avenue, Crystal River," Citrus County, Florida. 1 The general purpose of pursuing this permit was to burn wood waste. On July 9, 2001, the Department issued SMG a Notice of Intent to Issue the Proposed Air Construction Permit (Permit No. 0170360-001-AC). A copy of the Notice of Intent was published in the Citrus Times in Citrus County on July 19, 2001. On August 6, 2001, the Department issued SMG an air construction permit for the proposed air curtain incinerator. The construction permit authorized the construction of a McPherson Systems, Inc. - Model M30E air curtain destructor (incinerator) with under fire air at a natural non-Title V facility. Pursuant to the terms of the construction permit, in November 2001, SMG constructed an air curtain incinerator on approximately 500 acres of land on the east side of State Route 495 north of Crystal River in Citrus County, Florida, on property owned by the Gerrits family. See Endnote 1. Pursuant to the construction permit, SMG installed a McPherson Systems, Inc. - Model M30E air curtain incinerator with under fire air, a refractory lined burning pit, three upper chamber refractory lined walls (ten feet high), and a stainless steel spark arrester screen. The manifold blower and under fire air fans are powered by an electric engine. The manufacture designs and specifications for the McPherson model were submitted with the application for the air construction permit and admitted in evidence. Construction of a portable air curtain incinerator with a blower/fan system powered by a diesel-fired engine was contemplated by the air construction permit. Although cheaper, SMG instead chose to install the McPherson model that would produce the cleanest burn, i.e., one with fewer emissions, that was operated by electricity. The McPherson model used by SMG is recognized as an efficient, reliable model of air curtain incinerator. The diesel-fired blower/fan/engine system contemplated by the construction permit is considered exempt from permitting. An engine operated by electricity has no emissions and therefore does not require an air permit from the Department. The Department could not require a permit for the blower/fan system alone. The operating permit supercedes the construction permit, except as amended. Testing after Construction of the Incinerator On November 23, 2001, SMG began operating the air curtain incinerator. Pursuant to Special Condition 22 of the air construction permit, an initial visible emissions (VE) (opacity test) compliance test was performed on November 23, 2001, by Bernard A. Ball, Jr., an environmental engineer with Southern Environmental Services, Inc. The results of the initial VE compliance test were within the opacity limits contained in the construction permit. Specific Condition 19 of the construction permit requires SMG to maintain daily operating logs of the air curtain incinerator's daily operations. In order to obtain an air operating permit, a permit applicant is required to demonstrate compliance with the Department's rules and with the conditions of the construction permit. The Department requires an applicant for an operating permit to submit copies of recent daily operating records for the facility and copies of the emissions test required by the construction permit. These operating records are submitted in order for the Department to determine whether the applicant is complying with the applicable emissions standards and that the applicant is, in fact, maintaining the required operating logs as required by the construction permit. In order for SMG to obtain the operating permit for the incinerator, Specific Condition 28 of the construction permit required SMG to file an application for an air operating permit with the Department within 45 days of testing and required the application to include a copy of the VE test report and copies of at least two recent weeks of daily operating logs. On March 14, 2002, a second VE test was conducted by Mr. Ball, which also indicated that emissions were within the construction permit's opacity limits. On April 1, 2002, SMG submitted its application for the air operation permit to the Department. The application was signed by Sean Gerrits, and contained copies of the VE test reports for the November 2001 and March 2002 tests, as well as three and one-half months of daily operating logs, certificates showing that the incinerator operators were trained, and photographs of the incinerator in operation. SMG submitted the documentation required under the construction permit. On April 19, 2002, Robert E. Soich, Jr., air compliance inspector for the Department's Southwest District Office, performed an unannounced inspection and conducted a VE test in response to a complaint by Mr. Leonard Kaplan (a Petitioner), complaining of odors present. Excessive visible emissions were observed by Mr. Soich on April 19, 2002. The incinerator did not pass the VE test because of the improper alignment of the blade angle on the manifold of the blower system and because of green leaves and inadequate drying of the materials to be burned in the incinerator. Mr. Soich also observed, in part, that "materials need to be prepared better for burning." As a result of this unannounced inspection and the negative VE test, the Department requested SMG to provide an explanation of the VE test results and of the type of changes SMG planned to implement to correct the problem. On learning of the problem, SMG shut down the incinerator and called a McPherson mechanical contractor to come out and adjust the blade angle. Southern Environmental Services conducted another VE test to ensure the problem had been corrected. On April 22, 2002, a VE test was conducted by Southern Environmental Services on-site which showed compliance with the construction permit. On April 30, 2002, SMG advised the Department that adjustments were made to the baffles to correct the angles. SMG provided the Department with the April 22, 2002, VE test results. SMG also implemented better operational procedures. On May 30, 2002, with Mr. Soich present, SMG, by Byron E. Nelson, performed another VE test. The test results showed compliance with the opacity limits in the construction permit and the results were submitted to the Department.2 Mr. Nelson, an environmental engineer with Southern Environmental Sciences, testified that he has been involved in preparing approximately two dozen applications for air curtain incinerators and has conducted probably "thousands" of visible emissions tests. Mr. Nelson is certified by the State of Florida to conduct VE tests. He has seen "two or three dozen" air curtain incinerators in operation and has conducted VE tests on about 20 of them. Based on his experience, Mr. Nelson testified that SMG employed the same practices and controls to control odor, smoke, and fugitive emissions as other such incinerators he is familiar with. He testified that the amount of smoke and odors from the SMG incinerator is similar to that emitted from other air curtain incinerators, and that the fugitive emissions from the SMG incinerator were probably less than others he is familiar with. Based on his experience, Mr. Nelson opined that SMG has taken reasonable measures to minimize odor, smoke and dust/particulates from the operation of the incinerator. Mr. Nelson likewise opined that the SMG incinerator is well run, perhaps better run than other incinerators. (Mr. Nelson had been on the SMG site twice when the incinerator was operating and burning wood products.) Based on his experience, Mr. Nelson opined that SMG meets the requirements necessary to obtain an air operating permit from the Department and has demonstrated that it has complied with the conditions of its construction permit. Mr. Soich is the air compliance inspector for the Department's Southwest District Office. He testified that he has inspected the operations of other air curtain incinerators over the last 15 years. Mr. Soich testified that SMG is one of the "better operators" of air curtain incinerators he is familiar with. (Mr. Soich visited the SMG site approximately nine times from March 13, 2002, to October 15, 2002.) Mr. McDonald is the Air Permitting Engineer for the Southwest District Office of the Department. He is responsible for reviewing all applications for air curtain incinerators in the Southwest District and has reviewed applications for between 25 and 30 incinerators. Mr. McDonald reviewed the SMG permit applications. Based on the latest VE test results, copies of the records attached to the operating permit application, and his experience, Mr. McDonald, for the Department, determined that SMG had demonstrated compliance with the conditions of the construction permit and recommended issuance of the operating permit for the incinerator. He maintained the same position at hearing. SMG provided assurance that the DeRosa Fire Department would respond in the event of a fire at the incinerator. On June 19, 2002, the Department issued the proposed air operating permit. Operation of the Air Curtain Incinerator Emissions from the incinerator are controlled by a curtain of forced air at a very high static pressure over and around the burning pit. The air curtain traps smoke and small particles and recirculates them to enhance combustion and reduce smoke. The underfire air introduces air underneath the air curtain to ensure complete combustion and minimize opacity at start-up. The refractory-tiled ceramic concrete burn pit provides a safe combustion chamber, and the refractory panels keep excess heat from escaping. The upper chamber refractory panels, which surround three sides of the burn pit, allow more retention time in the burner to better control opacity and sparks. The stainless screen spark arrestor also controls sparks and debris from leaving the burner. The operating permit application proposed the use of an air curtain blower along with a manifold to provide forced air to the burning pit. According to the manufacturer specifications, the blower can force air into the pit at velocities of between 100 and 120 mph. This ensures that the flames in the burn pit receive enough oxygen to combust completely. The air circulates inside the burn pit to ensure a complete burn, which reduces smoke and odor. The combustion temperature for the burning pit ranges from approximately 1,800 to 2,500 degrees Fahrenheit. The operating permit allows a maximum charging rate of ten tons per hour on a daily average basis and 31,200 tons per any consecutive 12 month period. The incinerator has been operating below the maximum charging rate. The operating permit limits the hours of operation (charging) to 3,120 hours per year, i.e., ten hours/day, six days/week, 52 weeks/year. According to various SMG operating and maintenance logs, the incinerator has been operated below this limit. The operating permit, in accordance with Rule 62- 296.401(7), Florida Administrative Code, allows the burning of only wood waste, yard waste, and clean lumber, and prohibits the burning/incineration of materials such as sawdust, paper, trash, tires, garbage, rubber material, plastics, liquid wastes, Bunker C residual oil, roofing materials, tar, asphalt, railroad cross ties, or other creosoted lumber, chemically treated or painted wood, and other similar materials. Biological waste shall not be burned in the incinerator. During its operation, the incinerator only burned wood and yard waste, and Mr. Gerrits testified that the waste materials are inspected before being burned in order to ensure that no prohibited materials are burned. If any non-authorized materials are observed, they are removed before the waste is burned. See Finding of Fact 24. The operating permit allows visible emissions during start-up periods (not to exceed the first 30 minutes of operation) of an opacity up to 35 percent, averaged over a six- minute period, as provided for in Rule 62-296.401(7)(a)-(b), Florida Administrative Code. The McPherson model is designed to meet the requirements of the above-referenced rule, and the VE tests run during start-up periods (except one performed by Mr. Soich on April 19, 2002) demonstrated compliance with this requirement. Id. The operating permit limits visible emissions outside of start-up periods (the first 30 minutes of daily operation) to no more that five percent opacity, with visible emissions of up to ten percent opacity allowed up to three minutes in any one hour as provided for in Rule 62-296.401(7)(a), Florida Administrative Code, and 40 Code of Federal Regulations Part 60, Subpart CCCC, adopted and incorporated by reference in Rule 62- 204.800(8)(b)74, Florida Administrative Code. (Rule 62- 296.401(7)(a) permits up to 20 percent opacity. The ten percent rate is required by the new federal standard. See SMG Exhibit 13, page 3 of 9.) The opacity limits in the operating permit are more stringent than those contained in the construction permit, which allows visible emissions of up to 20 percent opacity up to three minutes in any one-hour period. (By definition, a "visible emission" is "[a]n emission greater than 5 percent opacity or 1/4 Ringelmann measured by standard methods." Rule 62-296.200(278), Florida Administrative Code.) The VE test results submitted by SMG demonstrate compliance with the opacity limits in the operating permit and with the opacity limits in the construction permit for the days tested. See Findings of Fact 18, 22, 27, and 29. The operating permit requires that the incinerator must be attended at all times while materials are being burned and that public access to the incinerator must be restricted. A certified operator is in attendance whenever the incinerator is operated, i.e., when something is burning in the incinerator. A fence has been constructed around the property. The operating permit prohibits starting the incinerator before sunrise and requires that all charging of the incinerator be completely stopped before sunset as required by Rule 62- 296.401(7)(h), Florida Administrative Code. Mr. Gerrits testified that the incinerator is never started before sunrise and is typically started after 8:00 a.m. Mr. Gerrits testified that the incinerator is never charged after sunset and that charging typically stops at 4:00 or 5:00 p.m. See Endnote 4. These practices are consistent with the Operations and Maintenance Guide for the incinerator. The operating permit limits the height of the ash in the burning pit to one-third of the depth of the pit or to a point where the ash begins to impede combustion, whichever occurs first as provided in Rule 62-296.401(7)(m), Florida Administrative Code. The one-third depth line is marked on the outside of the incinerator. Mr. Gerrits testified that ash is regularly removed from the burning pit every third day to keep the ash level low, which helps ensure better combustion and reduces smoke. The operating permit provides that material shall not be loaded into the incinerator in such a way that it will protrude above the air curtain. Testimony established that the SMG incinerator is properly loaded. The operating permit requires that all operators of the incinerator be trained in the proper operation and maintenance of the incinerator and that an operations and maintenance guide be maintained at the facility at all times. All of the operators of the SMG incinerator have taken a four-hour training course to learn how to operate the incinerator in accordance with Department regulations and good operating practices, and certificates attesting to that training were submitted with the application for the operating permit. An Operations and Maintenance Guide was submitted with the application for the construction permit. The operating permit requires the maintenance of a daily operating log. The daily operating log must be maintained at the facility for at least five years and must be available for inspection by the Department upon request. SMG currently maintains a daily operating log that meets the requirements of the construction permit. SMG submits those daily logs to the Department on a monthly basis after the Department requested that SMG do so. The log includes a date and site location, daily operating hours, total charges, total material charged in tons, average hourly charging rate, any maintenance performed, fuel usage in gallons, and the operator's signature. The logs of record contain this information and have been initialed by SMG's operator for each day when the incinerator has been operated. SMG operators responsible for preparing the logs have no incentive to indicate the incinerator is not operating on days or during hours when it is running, as a deliberate misstatement on the operating logs could result in enforcement action by the Department and being fired by SMG. The operating permit requires that all reasonable precautions be undertaken to prevent and control the generation of unconfined emissions of particulate matter in accordance with Rule 62-296.320(4)(c), Florida Administrative Code. SMG takes reasonable precautions to prevent and control the generation of unconfined emissions of particulate matter, including paving the road that leads to the incinerator to reduce dust, wetting the ashes removed from the burn pit, wetting the ash piles and ramp that addresses the incinerator, approaching the incinerator at a slow rate, and placing a charge into the incinerator slowly and carefully. SMG voluntarily added a sprinkler system on all four corners of the burning pit that was not contemplated by the construction permit. The Department witness Mr. McDonald testified that this provided an additional method to control unconfined emissions. Although the construction permit and proposed permit do not contain conditions prohibiting the burning of green wood or wet wood waste, SMG takes precautions at the request of Mr. Soich to ensure that the wood is properly dried before being burned. See Finding of Fact 24. This helps to reduce smoke and emissions from the incinerator. (Moisture is the primary factor that inhibits burning and causes smoke and potentially odor.) As part of the routine practice in handling the wood waste before it is burned, trucks bringing wood waste to the incinerator are instructed to dump it into a pile. SMG operators then use a loader to flatten out the pile and remove dirt, prohibited materials, and harvestable pieces of wood. Harvestable pieces of wood and dirt are removed to separate staging areas. The remaining wood waste is separated into long windrows, with the oldest row closest to the incinerator. The windrows are flipped or rolled over in the direction of the incinerator, allowing the waste to dry. The waste in the row closest to the incinerator is burned, and subsequent windrows are rolled over in its place. Ash is generally removed from the burn pit every third day; it is wetted on removal to reduce dust, and the ash piles adjacent to the incinerator are also kept wetted by the sprinkler system. The ash is eventually mixed with the dirt in a composter for use as Class-A unrestricted compost. The SMG operator in charge on a particular day decides whether the incinerator will operate that day, in accordance with standard operational practices. The operator checks the weather forecast. If it is raining or if there are high winds (over 20 miles per hour), the incinerator will not be operated that day, and SMG typically waits four days after a rain to begin operating the incinerator again. These procedures are not contained in any permit conditions. The purpose of not operating during or immediately after a rain and taking steps to ensure the wood is dry is to reduce smoke; wet wood smokes more. Rainy weather can also affect odor. The purpose of not operating during windy conditions is to reduce the possibility of fire on SMG's property, but wind can also affect odor and visible emissions. On days when the incinerator is not operating, SMG conducts yard maintenance, maintains the waste windrows, and runs the composter. The composter is a source of noise and is located adjacent to the incinerator and is run when the incinerator is shut down. To ensure that the visible emission limitations are not exceeded and objectionable odors3 not generated, the operating permit requires that the incinerator's fan shall continue to operate after the last charge of the day until all combustion (presence of any flame or smoke) has ceased. Generally, the incinerator keeps burning an hour to an hour and one-half. Mr. Gerrits testified that the fan is kept running until the flames and smoke die out and that a certified operator is present until the fan is switched off. The operating permit requires that the testing of visible emissions must be conducted within 90-100 percent of the maximum allowable charging rate of 10 tons/hour and shall be conducted when the highest emissions can reasonable be expected to occur.4 Testing of the SMG incinerator was conducted at within 90-100 percent of the maximum allowable charging rate of 10 tons per hour, and the May 30, 2002, test results indicated that the incinerator was operating within the opacity limits of its permit even when operating at close to maximum capacity. Evidence established that the May 30, 2002, VE test complied with the specific conditions of both the construction and operating permit. See Finding of Fact 29. The test method for visible emissions required by both the construction permit and the operating permit is EPA Method 9, adopted and incorporated by reference at Rule 62- 204.800(8)(b)74, Florida Administrative Code. (Method 22 is not required pursuant to Department rules for compliance testing of an air curtain incinerator.) Testimony established that Method 9 was the method used for the VE tests conducted on the SMG incinerator. As required by both the construction and operating permits, the incinerator is located in excess of 300 feet from any pre-existing occupied building located off site as required by Rule 62-296.401(7)(j), Florida Administrative Code. The closest residences, that of Mr. Gerrits' father and his tenant, are approximately 1,500 feet away. Petitioners' Challenge For the most part, Petitioners reside northeast, east, or southeast of the incinerator. One Petitioner resides approximately three-tenths of a mile southeast of the incinerator; others reside at greater distances, up to approximately a mile and one-half away from the incinerator. Each of the Petitioners who testified have resided in this area for many years, pre-dating the operation of the incinerator. The Petitioners who testified were credible and well- intentioned. Each of these Petitioners maintained daily logs covering several months when the incinerator was authorized to operate. Some kept logs for several months, while others kept logs for several days. They noted their observations and perceptions in the logs. Admittedly, Petitioners are not experts in the detection of odors or noise levels. Nevertheless, they recorded their own experiences as to what they saw, heard, and/or smelled, believing that the odors and noise came from the incinerator. Some recorded that they smelled the strong odor of smoke, an "acrid smell," a "pungent smell," for example; "it makes your eyes burn and throat burn" said another during the hearing. One witness described the experience as being a prisoner in his house. Another does not go outside when the smell is bad. Generally, the level of odor varied with the weather conditions, i.e., a stronger odor was noticed on foggy and wet days or nights and when the wind blows from the west, which Petitioners contend is the prevailing wind. Some witnesses only smelled the odor during the night and not during the day, and not all of the time. Some complained about the odor and noise, or one and not the other. Some believed the noise coming from the incinerator was a major problem. At least two witnesses who live approximately three-tenths of a mile and 3,500 feet, respectively, from the incinerator site, described the noise as being like a jet airplane. One witness shuts her windows to keep out the noise. (SMG also operates a "wood chipper" or "composter" on site which is loud. Mr. Gerrits stated that he did not think the sound was the same as made by the incinerator fan. He also stated that "[i]t doesn't exceed the noise decibels. It doesn't exceed background noise levels at [their] property line.") Petitioners documented their concerns which are described, in part, above, and also documented their complaints to the Department and local government. It appears that each of the logs prepared by the Petitioners (who kept logs) were given to Petitioner Martha Futscher, who summarized and compiled a hand-written master list of the complaints. Then, Mr. Harvey inputted this data on the master list (spread sheet) of complaints, which appears as Petitioners' Exhibit F1. The master list contains recorded observations from May 2002 through January 2003. The master list contains a representation of when the incinerator started and stopped for various days and when it was operational or not, and this information was derived, according to Mr. Harvey, from the logs maintained by SMG. The master list also provides tons per hour of waste burned on particular days, the observer's initials, and the approximate distance each observer lived from the incinerator, and the comments, with time of observation or perception noted. There are discrepancies between the master list and the actual logs maintained by SMG as to when the incinerator was operational. There also appears to be several differences in observations between the Petitioners' master list and other evidence which indicates when Mr. Soich inspected the incinerator and determined that the incinerator was operating satisfactorily. Compare Petitioners' Exhibit 2 with Petitioners' Exhibit F1. For example, the master list records an observation from May 30, 2002, when the incinerator was operating, when there was noise and smoke noted at 8:00 a.m., and flames at the incinerator and odor at 5:30 p.m. Conversely, Mr. Soich was on-site on May 30, 2002, and observed the scheduled VE test. No problems were noted with the operation on this date by Mr. Soich. Mr. Soich also noted that "wood waste was properly dry and free of debris." The VE test on May 30, 2002, was performed from 10:29 a.m. to 11:59 a.m. and showed compliance with opacity limits. The master list indicates that black smoke was observed (no time given) on May 7, 2002, when the incinerator was operational, yet Mr. Soich inspected the incinerator on that day and there is a notation in the record that the incinerator was operating between 0-5 percent visible emissions. (Mr. Soich opined that it should be very rare to smell objectionable odors if the visible emissions run at a 5 percent level.) For October 15, 2002, there is a notation in the master list that a Petitioner commented that the incinerator was running during the day ("AM/PM Running") and that there was a strong smell at approximately 7:05 p.m. A strong smell at the person's house was also noted at approximately 9:30 p.m. on that day. However, Mr. Soich performed an annual inspection of the incinerator on October 15, 2002, and there is a notation on the master list, Petitioners' Exhibit 2, that the incinerator was not operating due to recent rain. As one Petitioner testified, her point was that the inspectors are not there when she hears the noise, sees smoke, and smells the odor. Mr. Soich confirmed that he does not inspect the facility in the evening. Petitioners also provided, as evidence in support of their position, six videotapes of the incinerator for September 19, October 3, October 23, November 25 (2 tapes), 2002, and January 10, 2003. (Mr. Harvey took the videotapes from the same location, across the street and west of the incinerator.) Each tape, except for September 19, 2002, showed smoke emanating from the operational incinerator. On September 19, 2002, the incinerator was not running according to the SMG log. There was a malfunction which was reported to the Department. The SMG log indicates that the pit was cleaned out, site cleared and rows moved. There is also a notation in the SMG log for this date that there was a power failure/malfunction at the incinerator at 9:00 a.m., and that the power was out. According to Mr. Gerrits, the malfunction caused smoke. (One Petitioner observed smoke from ashes on September 19, 2002.) While the Petitioners proved that there was smoke emanating from the operation of the incinerator on the days which were videotaped, with the exception of September 19, 2002, this did not necessarily prove that the emissions exceeded the requirements of the Department rules or that there was an objectionable odor emanating therefrom. Mr. Stoich observed the videotapes played during the hearing. In particular, with respect to the January 10, 2003, videotape, Petitioners' Exhibit 12, Mr. Stoich stated that a level of opacity cannot be determined from photographs and videotapes. He also noted that there was "a lot of white smoke," an atypical situation according to him, emanating from the incinerator and that he, as a compliance inspector, would have investigated further and performed an inspection, including a VE test, to determine if there was a violation, had he seen this smoke. However, he stated that without actually seeing the operation, he could not determine whether a violation had occurred. There was persuasive evidence that compliance with the opacity limits of a permit can only be determined through VE tests conducted using the Department-approved EPA Method 9. The VE test takes into account wind, the angle of the plume, the position of the sun, and other factors, and must use appropriate averaging to ensure that the test is valid. A smoke plume can look quite dense at the wrong angle or if the light is reflecting off the plume in a certain way, when in fact it is in compliance with Department rules. The VE tests for the incinerator have, with one exception, see Finding of Fact 24, demonstrated compliance with the opacity limits in the construction permit. As noted herein, upon receipt of notice that one VE test failed, SMG implemented corrective actions, and two VE tests conducted after the time showed the incinerator was operating in compliance with the opacity limits of the permit. See Findings of Fact 27 and 29. The Department relies on its compliance inspectors, such as Mr. Soich, to make a determination of whether an air emission source is causing an objectionable odor. There does not appear to be an approved Department method for measuring odors from incinerators. (Mr. Nelson stated that odors are difficult to test and that "odor is done collecting samples." No samples were taken or analyzed.) On the other hand, Mr. Soich testified that, based on his years of experience, he has developed certain methods for determining whether a facility is emitting an objectionable odor under the rules. If he receives an odor complaint, which he has in this case, he goes to the site and checks the prevailing winds. He also travels around the facility to determine the source of the odor. An odor can be deemed objectionable if it is very strong and overpowering, such that he cannot stay on- site and breathe in the odors. An odor can also be deemed objectionable if, after being on-site for some extended period of time, he begins to develop symptoms such as runny eyes, a scratchy throat, or a headache as a result of the smell. Finally, he may bring along another Department employee to determine whether the other individual finds the odor objectionable. Enforcement actions can be taken if objectionable odors are detected. Mr. Soich testified that he has inspected the incinerator at least nine times in the past year and never detected an objectionable odor. On some of the visits, the incinerator was not operational. On rebuttal, several residents of the area testified that they had not experienced objectionable odors from the incinerator. David Stevens, the Chief of the DeRosa County Fire Department, testified that an open land-clearing burn emits black smoke, more so than he observed from the incinerator. This fire department only had to respond to false alarms at the incinerator. Mr. Stevens personally inspected the operation of the incinerator and thought it was a very safe operation. Randy Morgan, a wildlife firefighter and certified burner with the Division of Forestry with over 16 years of experience in fire control, testified that approximately 50,000 acres of the state land burns occurred in Citrus County last year. These land burns can be a significant source of smoke and odor. In addition, approximately 50 open burn authorizations are issued each day. He also testified that controlled burns of approximately 15 fires of approximately 50 to 2,000 acres a day occurred in 2002 in proximity of the SMG incinerator which is a source of smoke and odor. The state also conducts open burns of some kind approximately ten months out of the year. Other witnesses testified that, given the rural nature of the community, open burning of trash, wood, and leaves occurs on a regular basis. Ultimate Findings of Fact Credible evidence established that SMG meets or exceeds the requirements in the construction permit to reduce smoke, dust, and odor, and these requirements are carried over to the operating permit. Credible evidence established that SMG employs the same, if not better, practices and permit conditions to control smoke, dust, and odor as other air curtain incinerators in the state. Credible evidence established that the SMG incinerator is operated in accordance with its construction permit. Credible evidence established that the SMG incinerator can be expected to be operated in accordance with its operating permit. Credible evidence established that the SMG incinerator is operated in accordance with Department rules. In light of the foregoing, SMG has demonstrated reasonable assurance that its air curtain incinerator has been operated in compliance with the construction permit and that the incinerator can continue to be operated in accordance with the conditions of the operating permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting SMG's application and issuing Permit No. 0170360-002-AO, as amended, and subject to all conditions, including but not limited to the Specific Conditions set forth in the Department's Notice of Intent to Issue, for the operation of an air curtain incinerator in Citrus County, Florida. It is further recommended that Petitioners' challenge to the amendment to the operating permit be dismissed. See Preliminary Statement. DONE AND ENTERED this 21st day of April, 2003, in Tallahassee, Leon County, Florida.5 CHARLES A. STAMPELOS 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 21st day of April, 2003.
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 issue posed herein is whether or not the Department of Health and Rehabilitative Services' revocation of Respondent's pest control business license, operator's certificate and employee's identification is warranted based on conduct set forth hereinafter in detail as set forth in the Petitioner's revocation notice dated June 4, 1979. 1/
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the arguments and briefs of counsel and the entire record compiled herein, the following relevant facts are found. Pursuant to Petitioner's Notice of Violation dated June 4, 1979, the administrative proceeding herein commenced on December 6, 1979, on twenty-six of the thirty-nine specific violations alleged to have been committed by Respondent. The specific alleged violations are as set forth below based on a separation by complainant or victim with the alleged date of violation: On February 28, 1977, it is alleged that Respondent and/or its agents, performed pest control services for Ms. Ethel Atkinson and Ms. Loree Atkinson, 1903 East Leonard Street, Pensacola, Florida, and violated the following Administrative Code sections and/or statutes: Treated the Atkinsons' residence with fumigant gas, methyl bromide, without notifying in advance, the Escambia County Health Department, in violation of Chapter 10D-55.110(1), Florida Administrative Code. Failed to perform the fumigation of the Atkinson residence in strict accordance with the registered label directions for methyl bromide, in violation of Chapter 10D-55.111(4), Florida Administrative Code. On March 17, 1977, Respondent failed to perform subterranean termite control treat- ment for the Atkinsons, in violation of Chapter 10D-55.142(1)(b), Florida Administra- tive Code. During July, 1978, Respondent's agents and/or employees, Steven R. Foster and Gerald A. Caudill, inspected the Atkinson residence and told them that the home was infested with powder-post beetles and proposed a treatment when no such infestation existed, and thus no treatment was required, which acts constitute violations of Chapter 10D-55.104(4), Florida Administrative Code. Respondent, during times material, failed to apply for and obtain an I.D. card for Steven R. Foster, in violation of Chapter 10D-55.143(1), (2) and (3), Florida Adminis- trative Code. Respondent performed Phostoxin fumi- gation on residences when Phostoxin is not labeled or registered for residential fumi- gation, in violation of Chapters 10D-55.106(1); 10D-55.111(4) and 10D-55.144(1), Florida Administrative Code. Respondent and/or its agents, during times material but particularly during July, 1978, illegally used Phostoxin for fumigation purposes in a residential structure, in vio- lation of Chapter 10D-55.116(2), Florida Administrative Code. During July, 1978, Respondent per- formed Phostoxin fumigation without notifying the Escambia County Health Department, in violation of Chapter 10D-55.110(1), Florida Administrative Code. During July, 1978, Respondent performed Phostoxin fumigation without the knowledge and personal supervision of its certified registered operator in charge of fumigation for Killingsworth, Inc., Elmer Logan, in violation of Chapter 10D-55.108(1) and (2), Florida Administrative Code. Shumpert/Graham Case On April 22, 1977, Respondent performed services for Robert Shumpert and/or R. A. Graham of 109 Harris Street, Pensacola, Florida, by fumigation of their residence at 109 Harris Street, without informing the Escambia County Health Depart- ment, in violation of Chapter 10D-55.110(1), Florida Administrative Code. On or about April 22, 1977, Respondent fumigated the Shumpert/Graham residence with "Vikane" gas in a manner not in accordance with the label instructions, nor were occupants of the residence properly warned of the hazards, in violation of Chapters 10D-55.106(1); 10D-55.110(3); 10D-55.111(4) and 10D-55.144(1), Florida Adminis- trative Code. On or about April 22, 1977, Respondent used Phostoxin for residential fumigation for the Graham/Shumpert residence, in violation of Chapters 10D-55.106(1); 10D-55.111(4) and 10D-55.144(1), Florida Administrative Code. On or about April 22, 1977, Respondent fumigated the Graham/Shumpert Residence with Phostoxin without informing the occupants of the hazards, in violation of Chapter 10D-55.110(3), Florida Administrative Code. During approximately April 22, 1977, Respondent performed a fumigation with Phostoxin without advance notification to the Escambia County Health Department, in violation of Chapter 10D-55.110(1), Florida Administrative Code. During April 22, 1977, Respondent performed a Phostoxin fumigation without the knowledge and personal supervision of its certified operator in charge of fumigation, Elmer Logan, in violation of Chapter10D-55.108(1) and (2), Florida Administrative Code. During May 22, 1978, Respondent per- formed pest control services for Mrs. Ann Boyett of 706 North Lynch Street, Pensacola, Florida, and during the course of such treatment, through its agent and employee, Steven R. `Foster, placed Phostoxin pellets under the Boyett residence for control of powder-post beetles, in violation of Chapter 10D-55.108(1) and (2), Florida Administrative Code. Respondent used Phostoxin in resi- dential fumigation in violation of Chapter 10D-55.106(1); 10D-55.111(4) and 10D-55.144(1), Florida Administrative Code. Respondent, during May 23, 1978, released Phosphine gas during use of Phostoxin. which is highly inflammable and its use in resi- dential structures is illegal pursuant to Chapter 10D-55.116(2), Florida Administrative Code. During May 23, 1978, Respondent performed a fumigation with Phostoxin without informing the Escambia County Health Department, in violation of Chapter 10D-55.110(1), Florida Administrative Code. Respondent, during May 23, 1978, per- formed a fumigation with Phostoxin without informing the homeowner of the hazards, in violation of Chapter 10D-55.110(3), Florida Administrative Code. Respondent, during May 23, 1978, failed to apply for and obtain an employee I.D. card for Steven R. Foster, in violation of Section 482.091(1), (2) and (4), Florida Statutes, and Chapter 10D-55.143(1),(2) and (3), Florida Administrative Code. Based on the foregoing activities, it is alleged that Respondent violated his duties as a certified operator in charge of the pest control activities of a licensee, in violation of Section 482.152(1), (2),, (4), and (5), Florida Statutes. During July 12, 1978, Respondent performed pest control work for John A. Sanders, Jr. , at his residences located at 912, 914 and 916 North 63rd Avenue, Pensacola, Florida. During the course of this treatment it is alleged that Respondent failed to per- form the work in accordance with the label directions of any registered termiticide or by the use of methods and equipment generally suitable and accepted as good industry practice, in violation of Chapters 10D-55.106(1); 10D-55.135(2) and 10D-55.144(1), Florida Adminis- trative Code. Based on the conduct set forth in the paragraph next above, it is alleged that the Respondent violated the duties of a certified operator in charge of pest control activities of a licensee, in violation of Section 482.152(1), (4), and (5), Florida Statutes. The Hinote Case During December 21, 1978, it is alleged that Respondent's agent Wayne Thompson, repre- sented to Ms. Lee Hinote of 1405 East Gonzales Street, Pensacola, Florida, that wood borers were infesting her residence and that treatment was needed, when no such infestation existed and no treatment was required, in violation of Chapter 10D-55.104(4), Florida Administrative Code. Based on the alleged conduct set forth in the paragraph next above, it is alleged that the Respondent engaged in conduct violative of Section 482.152(1), (2), (4), and (5), Florida Statutes. William E. Grimsley, Supervisor, Environmental Health Unit of the Escambia County Health Department, is the person in charge of inspecting and ensuring that within the county no violations of Chapter 10D-55.110(1), Florida Administrative Code, occur. All pest control companies operating in the county, including Respondent, are required to notify the County Health Department when a fumigation is to take place and the approximate time that the "gas" will be released. Fumigation notices are required to be submitted to the Health Department twenty-four hours in advance of the fumigation. Thee Health Department inspects the premises to be certain that the tent is properly sealed, that there is first aid equipment readily available and to generally ensure that the operator is qualified to perform the fumigation Mr. Grimsley recalled having received no fumigation notices from Respondent. Specifically, Mr. Grimsley testified that his office, the County Health Department, received no fumigation notice from Respondent for the Atkinson residence during April of 1977, for the Sumpert residence during times material, or for Ann Boyett's residence during the period of May, 1978. During May of 1978, Mr. Grimsley, through the Escambia County Health Department, received a complaint from the Atkinsons regarding the pest control services performed by Respondent. Mr. Grimsley referred Ms. Atkinson to Mr. William E. Page, Petitioner's agent in the Office of Entomology, Department of Health and Rehabilitative Services. During October of 1978, Mr. William Page and Mr. William Grimsley removed a sample of a white powdery substance found in the Atkinsons' attic. The sample was analyzed by Chris Bush, a chemist employed by Petitioner, who determined that the substance was a residue of Phostoxin. (Petitioner's Exhibits 32 and 40.) The Atkinson residence was treated by Respondent during, April of 1977. As stated, the Atkinsons complained to the Health Department during May of 1978, approximately fifteen months after the treatment. Samples of a white powdery residue found in the attic were analyzed by Petitioner's chemist during. October, 1978, and were determined to be a Phostoxin residue. Respondent and its agents and employees denied treating the Atkinson residence with anything other than Lindane and Methyl Bromide. During late 1978, Messrs. Grimsley and Page visited the residence of Mrs. Ann Boyett of 704 North Lynch Street, Pensacola, Florida. Mr. Page removed two prepac Phostoxin strips from underneath the Boyett residence. Steven Roy Foster (Moneyhun) also known as Steven Roy Foster was employed by Respondent from March of 1978 through July of 1978. Foster was hired by Respondent to perform mechanical work, although he assisted in tapings for fumigations and assisted Respondent's pest control operators. Foster placed two prepac Phostoxin strips under the Boyett residence. Foster was assigned to do the work by Respondent's agent, Frank Ancarrow, and was paid by the Boyetts for the work. (Petitioner's Exhibit 13.) Respondent and its agents, Frank Ancarrow and former employee, Elmer Logan, denied any knowledge, authorization or other assistance in the use of the treatment of residential structures with Phostoxin. Phostoxin is not authorized for the use in residential construction according to its label use restrictions. (Petitioner's Exhibit 12.) Respondent treated the Graham-Shumpert residence at 109 Harris Street, Pensacola, Florida, for subterranean termites and old house wood borers during late April, 1977. The old house wood borers were located in the attic and, according to Respondent, were treated by him using a "spot" fumigation treatment of Methyl Bromide. 3/ Approximately two years later, Mr. Shumpert detected traces of termites again swarming in the kitchen of his home and called Frank Roberts of Roberts Pest Control Company to check on the termites. Mr. Roberts inspected the Shumpert residence and noted what he found in the attic, a residue of suspected Phostoxin. Mr. Roberts engaged the services of a private laboratory in Pensacola, Florida, to analyze the residue of the substance he found in the Shumpert residence. The sample was analyzed and, according to the lab analysis, the residue of the sample was Phostoxin. Gail Thompson, a former employee of the Respondent, testified that he treated the Shumpert residence for termites and that he assisted in taping the house in preparation for the fumigation which was performed by Respondent Billy F. Killingsworth. Respondent testified that he treated the Shumpert house by a "spot" fumigation using Methyl Bromide as a localized treatment to eradicate the infestation which was concentrated on a few joists. Respondent's testimony to the effect that the infestation was localized to a few joists conflicts with the testimony of witnesses William Page, Carlton Layne and John Boitnott, who testified that the damage and infestation was severe and widespread. Based on the extended hiatus between the treatment by Respondent and the inspections by Messrs, Page, Layne and Boitnott, it cannot be concluded that the condition of the premises as found by Respondent, continued unchanged until the subsequent and, of course, more recent visit by the investigating officials. (Petitioner's Exhibit 3.) When the Shumpert residence was treated, it was under contract to be sold by Mims-Snow Realty of Pensacola, Florida. Prior to sale, it was necessary to receive an FHA wood infestation report which admittedly, as testified to by Respondent's secretary and assistant, Joyce Beard, was filed incorrectly using information from another wood infestation report for another property. (Petitioner's Exhibits 6 and 9.) According to that report, Vikane gas was used as a fumigant, which, if used according to the petitioner's licensing administrator, Warren T. Frazier, was not applied in accordance with the label instructions of that fumigant. 4/ On or about July 12, 1978, Mr. John A. Sanders entered into a contract with Respondent for pest control treatment of three houses that he owned on North 63rd Avenue, Pensacola, Florida. (Petitioner's Exhibits 17, 15 and 19.) Respondent contracted to control household pests, fleas, etc. in the Sanders' residences for a total price of $520.00. According to 14r. Sanders, the treatment period lasted approximately twenty minutes and no trenches were dug, no drilling took place and there was no treatment for powder-post beetles contrary to his payment and contract for these services. Mr. Sanders filed a complaint with local and state officials and executed a complaint form. (Petitioner's Exhibits 20 and 21.) Respondent's former employee, Steven Foster, was assigned the task of treating the Sanders' residences. Foster acknowledged that he inadequately and incompletely treated the Sanders' residences for termites and powder-post beetles. Testimony of Warren Frazier, John Sanders and William Page corroborate Foster's testimony to the effect that the treatment was substandard and was not in accordance with the label directions of any registered termiticide. Additionally, the treatment fell below what is generally accepted as good industry Practice. Respondent testified that the Sanders' residences were treated by Carl Heichel. Heichel was unavailable and did not testify in this proceeding. Opal Lee Hinote of 1405 East Gonzalez Street contacted Respondent during December, 1978, for an annual renewal inspection of her residence. Respondent's agent, Wayne Thompson, performed the annual inspection. (Petitioner's Exhibit 27.) Additionally, Respondent's agent, Thompson, represented to Ms. Hinote that old house wood borers were affecting her residence and that treatment was needed. Thompson discussed a treatment price of $175.00, which was reduced, after some negotiation, to $125.00. Ms. Hinote, being suspicious, called Elmer Logan, Respondent's former employee who presently operates Fireman Pest Control, to inspect her premises. Mr. Logan advised Ms. Hinote that there were no wood borers in her house but merely old traces of wood borer activity. Ms. Hinote, still concerned, contacted Petitioner's agent, William Page, who inspected the house and confirmed Logan's report that there was no present wood horer activity to her residence. (Petitioner's Exhibits 28, 29 and 30.) Respondent's position on Ms. Hinote's complaint is that it is difficult to discern whether or not there is active or inactive wood borer activity and that Thompson, being a sales representative only for a short time when he made the inspection, was unable to discern whether or not the activity signs were evidences from old damage by powder-post beetles and wood borers. 5/ Mr. F. R. Du Chanois is Petitioner's supervisor for pest control records and has in excess of twenty-six years experience as an Entomologist. Mr. Du Chanois, who is Petitioner's records custodian, also receives and assigns complaints for investigation. Based on the complaints received about Respondent, Mr. Du Chanois directed an Inquiry to the manufacturer respecting the application of Phostoxin for residential application. Mr. Du Chanois determined and received confirmation that there are presently no registered uses for residential application for Phostoxin fumigations to control wood destroying insects. (Petitioner's Exhibit 42.) According to Du Chanois, the responsibility for obtaining an I.D. card is jointly placed on the operator and the employee. See Section 482.091(1) and (2), Florida Statutes. Billy F. Killingsworth, the certified operator and owner of Killingsworth pest control business, has been in business for approximately eleven years in Escambia County. Respondent has a B.S. degree in Entomology from Auburn University and is certified in all areas of pest control, i.e,. general household pest and rodent control, subterranean termites, lawn and ornamental, and fumigation. According to Respondent, it is very difficult to determine whether powder-post beetles are in an active or inactive status. Respondent uses Lindane as a residual treatment for the eradication of beetles and Methyl Bromide as a fumigant to control beetles, dry wood termites and rodent control. Respondent only uses Phostoxin as a commodity fumigant since it is only labeled for such uses and since it is one-half to two-thirds more expensive than other registered fumigants. Respondent, Billy F. Killingsworth, is the only certified operator within his employ in Escambia County who is registered to use Phostoxin. (Testimony of Billy F. Killingsworth.) According to the worksheets, Tommy Phelps was the card holder assigned to perform the work for the Atkinson job. Respondent performed the fumigation, using oil based Lindane in the attic. Respondent acknowledged that he erroneously issued a termite contract for the Atkinsons. Respondent considers a "spot" fumigation as being superior to a complete or tent fumigation, in that it permits a larger concentration of gas to be infused to the exposed area and is least expensive. Respondent has performed less than ten structural fumigations since he has been in business. (Respondent's Exhibits 4, 5 and 6.) Respondent employed Steven Roy Foster (Moneyhun) to help in repairing hydraulic pumps, refrigeration equipment and to do mechanical and other minor maintenance tasks based on his (Foster's) prior experience. Respondent denied that Foster was assigned to assist or perform fumigations within the short period that Foster was employed by Respondent. Respondent acknowledged that the FHA Wood Infestation Report given to Ms. Graham of Mims-Snow Realty was erroneously issued based on the realtor's rush to sell the property. (Respondent's Exhibit 8.) Respondent performed the fumigation for the Shumpert residence and placed a warning sign on the front and back doors of the house. At the time of the fumigation, the house was unoccupied. Respondent used Methyl Bromide to fumigate the Shumpert residence and had no explanation as to the presence of Phostoxin in the attic of the Shumpert residence. Respondent assigned Carl Heichel to do the termite and beetle treatment for the Boyett residence. (Respondent's Exhibit 9.) Lindane and Heptachloride were used for the treatment. Heichel left Respondent's employ approximately October of 1978. According to Respondent, Heichel was also assigned to perform the work for the Sanders' houses on 63rd Avenue. (Respondent's Exhibit 10.) Respondent testified that he attempted to correct the problems in connection with the Sanders residence but was unable to arrange a mutually convenient schedule to resolve the matter. Wayne Thompson was assigned to perform the pest control treatment for the Hinote residence. Thompson had only been employed approximately six months when he was assigned to inspect the Hinote residence. Respondent noted that it was a mistake not to apply for an I.D. card for Steven R. Foster. He acknowledged that there was no reason not to apply for an I.D. card for Foster; however, the fact that Foster was hired to do mechanical work delayed his decision to apply for or to obtain an I.D. card for Foster. Respondent treated the Shumpert residence using Methyl Bromide which was registered and labeled "Dowfume MC-2". 6/ Respondent acknowledged that it is unlawful to use a registered pesticide in a way which is inconsistent with the label. He also acknowledged that certified operators are charged with the duty of using fumigants in accordance with the registered labels consonant with the structure to be fumigated. (Testimony of Billy F. Killingsworth.) Several of Respondent's former employees who were employed during times material herein testified that they were unaware of any illegal uses of Phostoxin by Respondent and/or its employees. These employees included J. D. White, Sr., of Sterling, Illinois; Gerald Caudill of Evansville, Indiana; Frank Ancarrow; Elmer Logan and Gail Thompson. J. D. White, Sr. , of Sterling, Illinois, was formerly employed by Respondent from June, 1973, through the end of 1974. Mr. White worked for Frank Roberts, a competitor of Respondent during the period July, 1976, through August of 1977. Mr. White was party to conversations between Frank Roberts to the effect that he was; "out to get" Respondent and was privy to conversations with Mr. Roberts to the effect that Roberts had communicated with various Federal regulatory and state agencies to register complaints about Respondent and other competitors in the area. White testified that he was offered money to spray the yards of customers who were on annual contract with Respondent using the wrong chemicals to destroy the grass. Gerald Caudill presently is employed by Economy Pest Control of Evansville, Indiana. He was formerly employed by Respondent from approximately March, 1978, through approximately April of 1979. Caudill did a localized treatment for powder-post beetles for the Atkinson residence on Leonard Street in Pensacola, Florida. Caudill was shown by the Atkinsons, signs of what he viewed to be an active infestation in the attic of the Atkinson residence and advised them that they needed treatment in their attic. Frank Ancarrow, Respondent's sales manager, has been employed in that capacity for approximately four years and has approximately eight years' experience with another pest control company. Mr. Ancarrow is certified in all categories except fumigation. Messrs, Ancarrow and Thompson prepared the Shumpert residence for fumigation. The Shumpert residence was treated by Gail Thompson for subterranean termites and the Respondent fumigated the attic for old house wood borers. Frank Ancarrow was shown the statement given in an affidavit taken by Carlton Layne of the Environmental Protection Agency (EPA) to the effect that Gail Thompson was in charge of the fumigation of the Shumpert residence. Mr. Ancarrow testified that that was a mistake and that Thompson only prepared the house for fumigation. (Petitioner's Exhibits 5 and 26.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, Recommended: That the Respondent's Pest Control Operator's Certificate Number 1306; Respondent's Pest Control Employee Identification Card Numbers 5832 and 5843 and Respondent's Pest Control Business License Number 78 be SUSPENDED for a period of two (2) years. In all other respects, the June 10, 1980 Recommended Order previously entered herein remains unchanged. RECOMMENDED this 7th day of July, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jon W. Searcy, Vsquire Department of IIIS 160 Governmenta] Center Pensacola, Florida 32522 Larry Parks, Esquire Murphy, Beroset and Parks 216 Government Street Pensacola, Florida 32501 Alvin J. Taylor, Secretary Department of IRS 1323 Winewood Boulevard Tallahassee, Florida 32301 ================================================================= STIPULATION TO CONSENT FINAL ORDER =================================================================
