Findings Of Fact The Parties Lan-Mac Pest Control-Englewood, Inc. and Lan-Mac Pest Control-Fort Myers, Inc. (Lan-Mac) are pest control operators conducting business in the general area of each individual respondent regarding whom they have requested a formal hearing. Larry McKinney owns these companies and has over 4,000 customers, nine pest control routes, six lawn care routes and a termite crew, all servicing the west coast from Collier County up through Sarasota County. Certified Operators of SW Florida, Inc. and Florida Pest Control Association, Inc. (FPCA) are trade associations with members who are pest control operators conducting business in the geographical area of each individual respondent regarding whom they have petitioned for a formal hearing. The members of these associations are substantially affected by the issues raised in this proceeding. As stipulated by the parties, the petitioners described above have standing to petition and participate as parties in this proceeding. (Prehearing Stipulation, page 12) Each of the individual respondents has submitted to the Department of Agriculture and Consumer Services (DACS) an application for registration as an especially pesticide-sensitive person, together with the statutory fee and a purported physician's certificate. Each individual respondent's claim is addressed more specifically below. The DACS is the state agency responsible for administering and maintaining the pesticide-sensitive persons' registry as provided in section 482.2265(3), F.S. The Registry Upon payment of a fee and submittal of an appropriate physician's certificate, pesticide-sensitive persons are placed on a list of persons who are entitled to 24-hour advance notice when a pest control operator is going to make an exterior application on property adjacent or contiguous to the pesticide- sensitive person's primary residence. The certificate must be from a physician qualified in a category established by department rule. The department has adopted rule 5E-14.146, F.A.C. specifying the categories. The DACS may designate a person "especially pesticide-sensitive" if, in addition to the submittal described above, the person provides "clear and convincing proof" that he or she is so sensitive to pesticides that the standard notice is not enough, and notification of applications at greater distance is necessary to protect the person's health. The notification distance requirement may not exceed one-half mile from the boundaries of the property where the hypersensitive person resides. The required notice is limited to use of a pesticide or pesticide class to which sensitivity is documented or for which the department determines sensitivity is scientifically probable. The department may limit notice requirements in applications in excess of a stipulated quantity and may not require notice of applications at a distance beyond the minimum distance required to prevent endangerment of the health of the individual. Section 482.2265, F.S. requires the individual registrant (pesticide- sensitive person) to notify the department of the properties or residences falling within the notice parameters (either adjacent or extra distance) so that the department can supply this necessary information to the pest control operators. Without this information, the operators cannot know whether a specific application is subject to notice. Pest control operators who fail to provide the notice required by section 482.2265, F.S. are subject to administrative sanctions by DACS, including fines and license suspension or revocation. Violations of the Pest Control Act are third degree misdemeanors. John Mulrennan, Ph.D. is the Bureau Chief of DACS' Bureau of Entomology and Pest Control, which bureau administers the requirements of Chapter 482, F.S. Dr. Mulrennan has a Ph.D. in entomology from Oklahoma State University. Dr. Mulrennan has delegated the day-to-day administration of the registry to Philip Helseth, Administrator of the Pest Control Section; and to Cherie Decker, Philip Helseth's secretary. Mr. Helseth, and more often, Cherie Decker, review applications from persons seeking to be placed on the registry. They determine whether the application is complete, the fee is attached or waived, and the physician signing the certification is properly qualified under the rule. The department has no medical personnel on staff to review medical records and it relies entirely on the physician's certification for the determination of eligibility for the registry. Dr. Mulrennan considers that a physician who is licensed and board-certified should be able to make the necessary diagnosis and the department is in no position to question that diagnosis. There are several versions of the application form/physician's certification that have been used by the agency, DACS, and its predecessor agency, the Department of Health and Rehabilitative Services (HRS), but the current version is a one-page form with blanks to be completed on the front and printed guidelines on the back. The form elicits the person's name and primary residence address, with day and night telephone numbers. The form includes this "Physician's Certification:" I certify that the individual named above is a patient of mine and should be placed on the list of pesticide-sensitive persons. This individual has a documented sensitivity to a particular pesticide or class of pest- icides. The specific pesticide or class of pesticides to which registrant is sensitive: [blanks provided] The individual named above is currently under my care for a diagnosed condition or ailment for which I have proof that the normal appli- cation of a pesticide would aggravate the condition or ailment to such an extent that placement on the registry for prior notification is necessary to protect that person's health. Diagnosed condition or ailment: [blanks provided] (FPCA Exhibit #17) For persons registering as especially pesticide- sensitive, the form requests the special distance required: one block, two blocks, 1/4 mile, up to 1/2 mile limit. The certifying physician's signature, address, telephone number and the signature of a witness follows this statement: I further certify that I am a qualified physician, board certified and recognized by the American Board of Medical Specialties in the specialty of toxicology, allergy or occupational medicine. I have diagnosed this patient's sensitivity based on the guidelines set forth by the department (see reverse side). Board certification will be verified by this Bureau. (FPCA Exhibit #17) The guidelines on the reverse of the form were developed with the assistance of the State Health Director, Dr. Mahan, and the Florida Medical Association. The guidelines are: GUIDELINES FOR DIAGNOSING PESTICIDE SENSITIVITY The department recommends the following basic steps be considered in diagnosing an individual as pesticide sensitive: good evidence of exposure history clinical manifestations from a particular exposure body testing related to an exposure, such as x-ray, blood test, urine test, etc., necessary to make a diagnosis environment [sic] examination of the site where the exposure occurs, such as a person's place of work, to determine the existence of exposure in the environment (FPCA Exhibit #17) According to FPCA expert, Dr. Ronald Gots, these guidelines, with minor modifications, are appropriate in determining whether or not someone has sustained a pesticide exposure and reaction and whether there is a causal relationship between a more distant application and endangerment to health. In Dr. Gots' view, the clinical manifestations ought to be the kind that have been specifically associated with the particular substance at issue. Dr. Gots also contends that specific laboratory evidence is not always required to determine pesticide toxicity. Guideline number four is particularly important in dealing with symptoms from remote applications. DACS does not require that the certifying physician use the guidelines provided on the form, as they are only intended as an aid. The agency only intends that the physicians make a diagnosis and reflect that fact in the certificates by their signature. DACS also does not require that the applicant provide actual addresses within the notification area. Instead, if there is a complaint that an operator made a pesticide application without the required notice, the agency will have to determine in that case whether the operator should be held accountable. Placement on the registry for extra distance notice is based solely on the physician's certificate, and whether the individual provides specific addresses or simply distances for the notice is immaterial, according to Dr. Mulrennan, until the agency is confronted with an enforcement issue. DACS checks the qualifications of the doctors who are making the certification. The secretary who checks the applications, Cherie Decker, has a phone number for the American Board of Medical Specialties (ABMS) to call to check on physicians. Examples of qualifications that have been rejected include academic doctorates. The agency has specifically accepted certificates from osteopathic physicians who are certified by the American Osteopathic Association but are not certified by the ABMS. That acceptance was based, in part, on correspondence from the ABMS, American Osteopathic Association, and Albert F. Robbins, D.O. (Department's Exhibits #3-8). Nothing in that correspondence establishes that one board certification is considered equivalent to another by the ABMS or is "recognized" by the ABMS. The Certifying Physicians The individuals at issue in this consolidated proceeding were all certified by one of the following: Albert F. Robbins, D.O.; Michael J. Waickman, M.D.; Neil Ahner, M.D.; Rory P. Doyle; S. J. Klemsawesch M.D.; Hana T. Chaim, D.O.; Paul F. Wubbena, Jr., M.D.; Linda A. Marraccini, M.D.; and Caren B. Singer, M.D. Dr. Robbins practices at the Robbins Environmental Medical Center, 400 South Dixie Highway, Boca Raton, Florida. He has a doctorate of Osteopathic Medicine from Chicago College of Osteopathic Medicine; he is board-certified by the American Osteopathic Board of Preventative Medicine, with a sub-specialty in Occupational and Environmental Medicine; he has a Master of Science in Public Health from the University of Miami. He is not board-certified by the ABMS but he strongly avers that his board certification is equivalent to the specific requirement of the DACS rule referenced in paragraph 7, above. Dr. Waickman practices in Akron, Ohio. A medical doctor, he is board- certified in pediatrics, in allergy and clinical immunology and in environmental medicine. He practices with his son, who is also a medical doctor and who is board-certified in internal medicine and in allergy and clinical immunology. Dr. Ahner is a medical doctor who practices in Jupiter, Florida. The only evidence of his qualifications is his certificate on a patient's application for registration as a pesticide-sensitive person. The certificate, dated February 16, 1993, has all of the language regarding board-certification crossed out. Rory P. Doyle is the name appearing on a certificate for Carol Arrighi's application for registration. Nothing on that certificate indicates whether R. Doyle is a physician. The signature appears beneath the printed statement described in paragraph 16, above. Dr. Klemsawesch is a medical doctor who is board-certified in internal medicine and in allergy and immunology. Dr. Chaim is an osteopathic physician practicing primarily in the areas of family practice and environmental medicine. She is board-certified under the ABMS in family practice. She is a member of several professional organizations, including the American Academy of Occupational and Environmental Medicine and the American Academy of Environmental Medicine. She is not board- certified in any areas other than family practice. Dr. Wubbena is a medical doctor practicing in Jacksonville, Florida. He is board-certified in pediatrics and in allergy and immunology and he practices primarily in the specialty of allergy. The only evidence of qualifications of Drs. Marraccini and Singer is what purports to be their signatures beneath the certificate statement on the DACS application form. Both indicate they are medical doctors. Dr. Singer's signature has the handwritten notation, "Board certified internal medicine only"; Dr. Marraccini's signature has the handwritten notation, "family practice 1989." (Department Exhibit #1) The Individual Applicants Cheryl Mansker's application for registration was certified by Dr. Robbins on March 24, 1993. According to the certificate, she is sensitive to the following: organophosphates, carbamates and pyrethrum. The certification states that notification of 1/2 mile radius is required. Ms. Mansker has been a patient of Dr. Robbins since 1987. He considers her one of the most highly allergic individuals he has seen in his practice. He attributes the onset of her sensitivity to an occasion when she was employed in a bank when, in the process of repairing an air conditioner, a worker ripped the lining of a fiberglass duct and sent fiberglass throughout the entire building. This occasion, according to Dr. Robbins, subjected the patient to mold, formaldehyde and fiberglass. He has no record of any incidents of pesticide exposure, but believes her extreme chemical sensitivity qualifies her as eligible for certification. Dr. Robbins concedes that the amount of dosage is a factor in deciding whether a person is going to react, and whether it is necessary to protect that person. Thomas Milo has been a patient of Dr. Robbins since at least 1986. The certification by Dr. Robbins states that this patient "becomes very ill when exposed to pesticides and other chemicals - Pt. has been advised to avoid exposure to any and all pesticides." (Department exhibit #1) Mr. Milo used to have a florist shop but had to let his son take over because he could not continue to be exposed to pesticides or the flowers in the shop. Although he is functioning better, he must avoid fragrance products, pesticides or automobile exhaust fumes. Generally, when Mr. Milo visited Dr. Robbins with a reaction, the patient gave an exposure history. Sometimes the physician surmised the reaction was to cumulative exposures. Dr. Robbins recalls only one outdoor exposure incident, when a lawn was sprayed, but has no notes to evidence the date or specifics, including distance. According to Dr. Robbins, Mr. Milo needs at least a quarter mile notice to protect his health. This distance is based on the history, apparently given to the doctor by Mr. Milo, that he had reactions to pesticides that affected his health within a quarter of a mile. Joyce Charney has been a patient of Dr. Robbins since approximately 1982. On his certification on her application he listed these classes of pesticides to which she is sensitive: "Organophosphates, chlorinated [sic] and pyrethrum." Someone else apparently added the words "pesticides" and "Dursban" to the certification form. Dr. Robbins has tested Ms. Charney extensively for her multiple severe allergies to pollen, dust and mold. He does not test for allergies to pesticides, but for this and other patients he relies on their history with regard to exposures. In his words: ...[G]enerally, when I fill out those forms I just - if a patient is very chemically sensitive and very allergic I put all classes. It is hard for me to determine which one of the -- If they have said they have had reactions when they go by lawns, or have been in someplace like a Home Depot and they get around the pesticide and they have reactions, or they were spraying with some- thing and have a reaction, it is hard to tell which ones. * * * So if they have had multiple exposures and multiple reactions I just put the full class. (Deposition of Albert Robbins, page 59-60) Dr. Robbins designated two blocks as the required notice distance for Ms. Charney based on her explanation to him that if she gets in the wind drift of a pesticide that has been sprayed, she gets a reaction. He also considered the fact that Ms. Charney and her husband own and live at a motel a few miles from the doctor's office. The motel is an "allergy-free" motel patronized by some of Dr. Robbins' patients who come from out of town and are very chemically sensitive and allergic. He feels that it is appropriate for these patients to have some protection against significant exposures to that motel. Carrietta Kelly was never a patient of Dr. Robbins and he never met her. He signed the certification on her application for registration as a pesticide-sensitive individual after she and her husband, a physician, called him. Her husband is a medical doctor in Naples, Florida, but not a physician qualified according to the DACS rules. Dr. and Mrs. Kelly sent Dr. Robbins a two-page letter describing her health history and describing the symptoms she experienced after her apartment was treated six years prior to the letter, and her condominium was sprayed with Cynoff and Orthane a year prior to the letter. Dr. Robbins classifies those products as fungicides. Based on the history he received from Dr. and Mrs. Kelly, Dr. Robbins identified on the certification form these groups to which she is sensitive: organophosphates, carbamates and pyrethrum; and he designated a 1/2 mile notification distance. Charlene McClure has been a patient of Dr. Robbins since July of 1993. Skin testing reveals that she is food sensitive, pollen sensitive, dust and mold sensitive; and she is sensitive to terpenes, which are the odors from flowering plants. When she comes to Dr. Robbins' office she is generally in a state of collapse. Because of the general sensitivities, Dr. Robbins certified on Ms. McClure's application that she is sensitive to three classes of pesticides: organophosphates, carbamates and pyrethrum. He further certified that she needs notification within a 1/2 mile radius. As part of the exposure history which Ms. McClure gave Dr. Robbins, she stated that in the summer of 1992 there was an aerial application of Decromal 14 mosquito spray over her house. She told him that as a result she suffered from severe headaches, exhaustion, nausea and stomach cramps. Dr. Robbins does not know whether droplets from the spray landed on his patient; he assumes that the Decromal is an organophosphate. The evidence does not establish that it is. Marilyn Friedman has been a patient of Dr. Robbins since 1989. He signed the certification on her application for registration and stated that she is sensitive to these specific pesticides or pesticide classes: organophosphates, carbamates and chlorinated pesticides. At his deposition he indicated that pyrethrums should also be on the list. As with his other patients, the list is based on her history of being severely allergic and chemically sensitive. Ms. Friedman's allergies include pollens, dust, mites, insects, molds, terpenes and foods. According to Dr. Robbins, she cannot tolerate someone coming in the office with a fabric softener on clothing. Dr. Robbins' determination that Ms. Friedman requires one block distance notification is based on his patient's request. His records, as he testified in deposition, do not document specific exposures and reactions but he believes that his certification probably resulted from her request to him and her desire to be protected. The application for Sally B. Platner, dated October 2, 1992, includes a certificate by Michael Waickman, M.D., the son and partner of Francis Waickman, M.D. The certificate includes this description of the pesticides or class of pesticides to which Ms. Platner is sensitive: Fungicides including "Twosome" Chem-lawn Fertilizer application liquid. (Department exhibit #1) There is some further notation, but the evidence fails to establish who made those notes. Dr. Francis Waickman treated Ms. Platner, and his son saw her in his absence. She had previously been treated and tested by Dr. Bill Rea in Texas and she was determined to have many allergies and sensitivities. Sometime in 1982, she was living in an apartment complex in Ohio and reported that she was exposed to some pesticide application by a company called Chem-lawn. Dr. Francis Waickman surmised she had both dermal and respiratory absorption since she developed a skin rash within two hours of the exposure. He is not certain what chemical was implicated, but he is confident that it was a pesticide because he has personally observed that company's practices in the area. Dr. Francis Waickman's regimen of treatment for Ms. Platner included one thousand milligrams of vitamin C hourly, until she improved or got a loose stool from too much vitamin C. The record does not establish whether this treatment was successful for Ms. Platner. The certification in 1992 was based on Ms. Platner's phone call to the Ohio doctors' office and her description of the exposure. Dr. Waickman believes she was exposed to the fungicide, "Twosome," when it was sprayed on a golf course across the street from her residence in Florida. He surmised that since she had angina and other problems with other chemical exposures, she was also sensitive to "Twosome" as a related chemical and through what he described as a "spreading phenomena." Jesse Naglich has been a patient of Dr. Klemsawesch since 1992. She is allergic to a multitude of medicines, has allergic rhinitis and asthma. Dr. Klemsawesch certified her application for registration on November 16, 1993, stating that she is sensitive to Diazinon and organophosphates. She requires two blocks' notice of any application of those substances. Dr. Klemsawesch's assessment of Ms. Naglich's condition and requirements is based on her history. She reported to the doctor that she had adverse reactions after exposure to various chemicals. Sandra Metzger is also a patient of Dr. Klemsawesch. He has treated this "very complex patient" since 1986. On his most recent certification on Ms. Metzger's application for registration, he notes that she is sensitive to "organophosphates, pyrethrins and petrochemical-based compounds." Her diagnosed condition for purposes of the registration is "respiratory allergies and chemical sensitivity," and she requires a two-block notice, according to her physician. Dr. Klemsawesch prefers the term "sensitivity" instead of "allergy" with regard to his patients' reactions, because there is no specific test to determine an allergy to pesticides. Ms. Metzger had to leave her employment because of her reactions to insecticides sprayed in her workplace. She was exposed in 1991 at the same time that her office was being painted. In order to have an adverse reaction, in Dr. Klemsawesch's view, the patient must actually receive a dermal or respiratory exposure, or contact with the mucus membranes of the mouth or eyes. Mere olfactory detection (smell) might be an unpleasant event, but an olfaction reaction is not an allergic or toxic reaction unless the substance is being absorbed into the mucus membranes. Dr. Paul Wubbena has treated Pia Valentine since 1987. She is currently ten years old and suffers from asthma and allergic rhinitis; and, according to Dr. Wubbena's certification dated December 29, 1993, she is sensitive to pyrethrums, Diazinon and Dursban. She had recurring problems when riding her bicycle to the grocery store with her mother, and when pesticides were being sprayed she would start wheezing and coughing and getting sick. Also, based on her history given to the physician, she reacted to pyrethrums in flying insect spray. Dr. Wubbena based his conclusions regarding the specific chemicals on the history given to him by his patient and her mother and on his knowledge that Dursban and Diazinon are commonly used for lawn spraying. Miss Valentine has been tested for reactions to pollens and molds and is allergic to things of that type. Her allergic reactions are similar to her reactions in the presence of the specific pesticides listed by Dr. Wubbena. Jeanne Pellegrino has been treated by Dr. Hana Chaim for multiple chemical sensitivity and pesticide sensitivity since July of 1992. Dr. Chaim signed the certificate on Ms. Pellegrino's application for registration on June 2, 1993, indicating that she is sensitive to "organophosphates, pyrethrums, cypermethrin, especially Dursban" and that she needs 1/2 mile distance notification of application of those pesticides. The determination of what chemicals to put on the certificate was based on discussion with the patient, whom Dr. Chaim understood had established the specific pesticides she had been exposed to in the past. The distance determination was based on Dr. Chaim's understanding that sprays can go from a 900 to 1500-mile radius and the 1/2 mile notice is the maximum required by law. Although she suspected organophosphates were involved in Ms. Pellegrino's first exposure between April and June of 1993, this was not confirmed. Within the files of DACS for Kathryn Kaeding are two physician's certifications, dated February 16, 1993 and June 12, 1992, by Dr. Ahner. On the forms it is noted that she is sensitive to "Hydrocarbons, all pesticides, chlorinated compounds." Her diagnosed condition is "allergy - hypersensitivity - immune dysfunction." There is no other evidence in the record, from the individual or her physician, regarding Ms. Kaeding's condition or eligibility for registration. Nor is there any evidence, other than her application, regarding the eligibility of Carol Arrighi. From the form in the record it is impossible to determine whether the individual or her physician completed the application, or whether the signature on the certification is that of a physician. The certification for Kayleigh Marie Nunez is signed by Dr. Chaim. It states that she is sensitive to "organophosphates, all pesticides and herbicides, one-half mile limit requested." The certification for Estelle Greene, dated July 2, 1993, is signed by Linda Marraccini, M.D. The class of pesticides to which the individual is sensitive is noted as "All." Dr. Robbins appears to have signed certifications for Betty Jane Napier and for Susan and Donald Maxwell (both Maxwells are included on a single application form). The notation typed on Ms. Napier's form states: "Known to react to ethylene oxide." The pesticides or class of pesticides listed on Mr. and Mrs. Maxwell's form are "organophosphates, organochlorines, pyrethroids." The certification by Dr. Chaim on Barbara Rauker's application states that she is sensitive to "all classes of pesticides." The certification by Caren B. Singer, M.D. on Judith Lessne's application states that she is sensitive to "Pesticides in general, Petroleum based products." Pesticide Industry Practice A reliable pest control operator will determine the nature and extent of a problem before attempting a treatment. The operator must consider the surroundings of the area to be treated and the environmental factors such as rain, wind and sun. Treatment is tailored to reduce drift, which not only can cause harm but also causes needless expense due to waste. Good industry practice includes training technicians and carefully following the manufacturer's instructions regarding the most safe and effective use of the product. While careful use can control drift, unexpected wind gusts can disperse the product beyond its target, and even Petitioners' expert concedes that a post-application vapor of pesticide could drift for a half mile. Pesticide Sensitivity According to the Department's expert, Dr. Teaf, pesticide sensitivity by definition relates only to the substance that was the subject of an initial exposure and subsequent exposure that causes a reaction in an individual. The medical and toxicological link for pesticide sensitivity is much tighter than for the condition referred to as "multiple chemical sensitivities" or "MCS". There is no generally accepted definition in the scientific community of what constitutes pesticide sensitivity and there is no simple blood test to establish pesticide sensitivity. While there is commonly a psychological or psychogenic factor in pesticide sensitivity just as there is with other health conditions like heart problems, pesticide sensitivity is not solely a psychogenic or psychological condition. Pesticide sensitivity can be reasonably determined, even through the mechanism by which an individual acquires that condition is not clearly understood. A reaction to a specific chemical or pesticide class can be documented and quantified by a physical change in the body. Exposure histories are significant so long as the pesticide or pesticide class is identified. However, exposure histories alone are insufficient unless other causes are reasonably ruled out. Specifically, many individuals in the cases here were determined to be sensitive to many different agents: molds and pollens, food, animals, petroleum products and perfumes. It is impossible to deduce that an individual's symptoms are caused by exposure to one, rather than another agent, unless there is some process of elimination or isolation of the suspect agent. Summary of Findings Evidence of the process for diagnosis for the individual respondents in this proceeding is meager. Not one individual applicant testified, and only eleven applicants were addressed through the deposition testimony of their certifying physicians. Not one of the certifying physicians could testify that he or she actually followed the guidelines provided by the department, which guidelines, although non-binding, are accepted by experts for both sides of the dispute as important to good diagnosis. Dr. Klemsawesch, a very credible and competent witness and specialist in allergy and immunology, conceded that in order to respond to questions regarding the connection between exposures to pesticides and subsequent reactions, from a scientific point of view, you would need to test people by exposures in a controlled fashion and determine their physiological response. For Dr. Klemsawesch's patients, Ms. Naglich and Ms. Metzger, the specific events reported to him stood out beyond the background of their other common allergies to lead him to his conclusion that the chemicals he listed on their certificates were having an effect. That conclusion falls short of the finding required by law for the extra distance notice. Dr. Klemsawesch's conclusion, like that of the other certifying physicians, was based primarily on the individual's history. While that is an appropriate and accepted method of diagnosis, the histories described in the record of this proceeding are wholly lacking in the detail necessary for the determination required by law. No individual in the multiple cases consolidated presented adequate proof of the need for notification at greater distance than that specified for pesticide-sensitive persons.
Recommendation Based on the foregoing, it is RECOMMENDED: That the agency enter its final order denying the petition in Case #94-3237 (Carol Ann Rodriguez) as moot (see preliminary statement); and granting the remaining petitions by denying the applications for designation as "especially pesticide-sensitive." RECOMMENDED in Tallahassee, Leon County, Florida, this 31st day of May, 1995. MARY W. CLARK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1995. APPENDIX A INDIVIDUAL CERTIFYING DOAH CASE# RESPONDENT PHYSICIAN 94-2801 Cheryl Mansker Robbins 94-2802 Sally Platner Waickman 94-2803 Thomas Milo Robbins 94-2805 Kathryn Kaeding Ahner 94-2852 Carol Arrighi Doyle 94-2853 Jessie Naglich Klemsawesch 94-2855 Joyce Charney Robbins 94-2858 Carietta Kelly Robbins 94-2859 Kayleigh Nunez Chaim 94-2862 Pia Valentine Wubbena 94-2864 Sandra Metzger Klemsawesch 94-2865 Charlene McClure Robbins 94-2866 Estelle Greene Marraccini 94-2867 Jeanne Pellegrino Chaim 94-2869 Marilyn Friedman Robbins 94-2871 Betty Jane Napier Robbins 94-2872 Susan Maxwell Robbins 94-3235 Carietta Kelly (see 94-2858) 94-3236 Susan Maxwell (see 94-2872) 94-3237 Carol Ann Rodriguez (moot) 94-4243 Barbara Rauker Chaim 94-6376 Judith Lessne Singer APPENDIX B The following constitute specific rulings on the findings of fact proposed by the parties. Florida Pest Control Association, Inc. Adopted, or adopted in substance or in summary form: #1-7, 11-18, 22-28, 38, 41, 48-49, 62-82, 88-90, 93-105, 107-109, 115-121, 124-126, 129-133, 137, 140-147, 158. Accepted, but not incorporated, as unnecessary or immaterial: #8-10, 19- 21, 29-37, 39-40, 42-47, 50-61, 83-87, 91, 106, 110-114, 122-123, 127-128, 134- 136, 138-139, 148-157. Rejected, as inconsistent with or unsupported by the weight of evidence: #92. Certified Operators of Southwest Florida, Inc., Lan-Mac Pest Control-Englewood,Inc. Lan-Mac Pest Control-Ft. Myers, Inc. Adopted, or adopted in substance or in summary form: #1-5, 8-11, 13-15, 18-22, 24-25. Rejected, as inconsistent with, or unsupported by the weight of evidence: #27. (The remaining numbered paragraphs are designated as conclusions of law.) The Department of Agriculture and Consumer Services Adopted, or adopted in substance or in summary form: #1-4, first sentence of #5, 6, 8-10. Accepted, but not incorporated, as unnecessary or immaterial: #7. Rejected, as inconsistent with or unsupported by the weight of evidence: Second sentence of #5. Individual Respondents Adopted, or adopted in substance or in summary form: #2-7, 10, 12-14, 22, 24-33, 40, 42, 47-56, 58-63, 66, 69-71, 80, 82-86, 90-95, 101, 106-109, 111-113. Accepted, but not incorporated, as unnecessary or immaterial: #8-9, 11, 15-21, 23, 34-38 [the issue is not the patient's sensitivity, but the extra distance notice requirement], 43, 46, 67 (not the required Board), 68, 72, 74- 77, 81, 88, 98, 99, 100, 115. Rejected, as inconsistent with or unsupported by the weight of evidence: #1, 39, 41, 44-45, 57, 64, 65, 73, 78-79, 87, 89, 96-97, 102-105, 110, 114, 116- 117. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel The Capitol, PL-10 Tallahassee, Florida 32399-0810 Robert G. Worley, Esquire Dept. of Agriculture & Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Jonathan A. Glogau, Esquire Assistant Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 Lance McKinney, Esquire O. Box 88 Cape Coral, Florida 33910-0088 Howard J. Hochman, Esquire 1320 S. Dixie Highway Suite 1180 Coral Gables, Florida 33146
Findings Of Fact Respondents, during all times here involved, were licensed by Petitioner as alleged and operated three separate pest control offices in Jacksonville, New Smyrna Beach and Palatka. During the period between May 1976 and April 1977 no certified operator was registered with Petitioner at the Jacksonville or New Smyrna Beach offices. During this period numerous fumigation contracts were entered into by Respondents. When these contracts were carried out all fumigation was performed under the supervision of a currently registered certified operator who was attached to the Palatka office owned by Respondents. Between June 1976 and October 1977 24-hour advance written notice of fumigation was not provided by Respondents to the health authorities in Duval County on five occasions and to the health authorities of Volusia County on six occasions. However, the health inspectors of each county apparently received telephone notice because they inspected the fumigations for which the written notice was not provided a higher percentage of times than the average inspection for fumigation for which 24-hour written advance notice was provided. Several violations involved the certified operator notifying HRS by letter that he would be certified operator for a specific office commencing on a given date and thereafter failing to submit the proper forms to obtain a current pest control identification card for the office at which he worked. Proper registration of pest control salesmen and certified operators requires the issuance of a pest control identification card for a specific location. On some occasions the charges resulted from Respondent, United Pest Control, acquiring another pest control company and continuing operations under United Pest Control without having changed the pest control identification cards of these employees. Two charges involved agents of Respondent who entered into contracts with customers. One resulted from a complaint that the agent inaccurately advised the customer that there was termite infestation and one involved a complaint of improper treatment for subterranean termites. After the customers complained to governmental authorities Respondents refunded their money. When Respondent Powell attempted to inspect the premises to verify the complaint of these two customers he was denied access to the premises by the customers. The certified operator in the Palatka office was used to supervise a fumigation contract obtained in the Jacksonville office and the New Smyrna Beach office during the period here involved. He told Respondent several times that it was a violation of the regulation for him to perform the fumigation on contracts in these other offices, but only after he reported this to HRS was the practice stopped. At the time of the hearing the Jacksonville pest control operation had been sold by Respondent United Pest Control.
Findings Of Fact Respondent is and at all material times has been a certified pest control operator in the category of fumigation. He works for Thumb Pest Control, Inc. He was the supervisor present when the company performed the tent fumigation of a residential structure located at 11 West Muriel Street, Orlando, Florida, on May 29, 1987. On May 28, 1987, Respondent gave Petitioner and the Orlando Fire Department written notice of the details of the job, including his night telephone number. The night number was for Respondent's home telephone. Respondent lived in Tampa. His telephone number was in the "813" area code, not the "305" area code of Orlando. The notice did not disclose Respondent's area code. However, the form bore the address of Thumb Pest Control, Inc., which was in Tampa. It was Respondent's understanding-- uncontradicted by Petitioner-- that he was required by law to give this notice only to Respondent; he gave the notice to the Orlando Fire Department as an added precaution. Respondent and Tim Lightner, a certified operator and the Orlando branch manager of Thumb Pest Control Inc., testified that the tent did not have tears when they released the fumigant at around 3:00 p.m. on May 29, 1987. Their testimony is credible and unrebutted. The fumigant that they used was methyl bromide. The fumigant also included chloropicrin, which is a warning odorant accompanying the odorless methyl bromide. The commercial formulation of the fumigant in this case was Brom-O-Gas. This is a highly toxic gas which causes nausea, convulsions, and death to humans exposed to it. The manufacturer states in a booklet accompanying Brom-O-Gas that "two persons trained in the use of this product must be present at all times when worker exposure exceeds 5 PPM. . . ." Petitioner's Exhibit Number 4, page 1. In another document, entitled "Structural Fumigant: A guide for fumigating effectively with Bromo-O-Gas," the manufacturer emphasizes, as the title suggests, methods designed to increase the killing efficiency of the pesticide. The manufacturer suggests frequent monitoring during fumigation when persons are occupying an adjacent building sharing a common wall with the building being fumigated. Petitioner's Exhibit Number 5, page 2. By negative implication, the manufacturer does not suggest monitoring when persons occupy buildings that are nearby but not sharing a common wall. At around 8:30 p.m., the Orlando Fire Department received a telephone call from a neighbor living nearby the tented house. She reported that fumigant was escaping from the tent. Members of the Orlando Fire Department responded to the call and found that the tent had approximately ten tears in it with some as much as one foot long. It took six firemen about two hours to repair the tears with duct tape. Prior to making the repairs, the firemen contacted their dispatcher and directed him to try to reach a representative of Thumb Pest Control, Inc. There was no admissible evidence concerning precisely how the dispatcher or dispatchers, who did not testify, tried to reach Respondent or other representatives of Thumb Pest Control, Inc. In any event, the Orlando Fire Department was unable to reach anyone with Thumb Pest Control, Inc. that evening. Respondent testified that he, his wife, and one-year old child were home all evening on May 29, 1987, and that he received no calls. He also testified that he uses a telephone answering machine when away from home and, even though he was home all night, he had no messages from that evening. There does appear to have been some confusion concerning area codes. There also was no positive testimony that anyone tried to telephone the night number of Respondent, as shown on the fumigation notice that he had delivered the prior day, together with the "813" area code.
The Issue Whether Petitioner should be issued a Pest Control Identification Card pursuant to Chapter 482, Florida Statutes. Petitioner James C. Melvin appeared at the hearing without counsel. After being advised of his rights under Chapter 120, Florida Statutes, he indicated that he understood such rights and did not desire to be represented by counsel.
Findings Of Fact Petitioner made application for a Pest Control Identification Card through Guardian Termite and Pest Control Company of Tampa, Florida, a certified operator, on February 13, 1978. By letter of March 2, 1978, to that organization, the Respondent's Director, Office of Entomology, advised that the application was denied because of Petitioner's previous noncompliance with Chapter 482, Florida Statutes, and Pest Control Regulations of the then Florida State Board of Health. (Exhibits 7, 8) Petitioner was employed by several pest control firms in Tampa during the period 1956 to 1962, and 1964 to 1965, during which periods he held a Pest Control Identification Card issued by Respondent. (Testimony of Bargren) On December 12, 1962, Petitioner was found guilty of violating State Board of Health structural pest control rules in the County Judges Court of Hernando County and sentenced to $15.00 costs and a suspended five-day confinement. On June 21, 1967, Petitioner pleaded guilty to a pest control violation in the Criminal Court of Record in and for Hillsborough County, Florida, and was sentenced to pay a fine of $200.00 or be confined in the county jail at hard labor for a period of sixty (60) days. Again, on September 11, 1967, in the Criminal Court of Record in and for Polk County, Florida, Petitioner pleaded guilty to engaging in structural pest control without a license and, on December 8, 1967, was sentenced to pay a fine of $200.00 or be confined in the county jail for a term of ninety days. (Exhibits 1, 4, 5)
Recommendation That the application of James C. Melvin for a Pest Control Identification Card be denied. DONE and ENTERED this 1st day of June, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: William Park, Esquire W. T. Edwards Facility 4000 West Buffalo Avenue Fourth Floor Tampa, Florida 33614 James C. Melvin 1310 West Rambla Street Tampa, Florida 33612 Steven W. Huss, Esquire Central Operations Services Department of HRS 1317 Winewood Boulevard Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES JAMES C. MELVIN, Petitioner, vs. CASE NO. 78-645 DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, STATE OF FLORIDA, Respondent. / ADMINISTRATIVE ORDER A hearing was held in the above styled administrative cause before a Hearing Officer Thomas C. Oldham, Florida Division of Administrative Hearings, on May 23, 1978, upon the Petition of James C. Melvin which contested the denial of his application for a pest control identification cared through Guardian Termite and Pest Control Company of Tampa, Florida. Present at the hearing were the Petitioner, James C. Melvin and William M. Park, Attorney for the Department of Health and Rehabilitative Services, District VI. The Department of Health and Rehabilitative Services has reviewed the recommended order by Thomas C. Oldham, Hearing Officer, and adopts said order as follows:
The Issue Petitioners seek attorney's fees and costs from Respondent, Department of Agriculture and Consumer Services, pursuant to Section 57.111, Florida Statutes. The parties have stipulated that Petitioners are "small business parties" under that section, and that the fees and costs being sought are "reasonable." The issues remaining for disposition, therefore, are: Whether Petitioners "prevailed" in all four underlying cases, including the two that were settled prior to final hearing; Whether the Department "initiated" the procedures, or was merely a "nominal party"; Whether the Department had a "reasonable basis in law and fact" at the time that it initiated the proceedings; Whether special circumstances exist which would make an award unjust; and Whether the statutory $15,000 cap should be applied collectively or separately to the four underlying cases.
Findings Of Fact (The facts are substantially uncontroverted and the facts established in the underlying cases nos. 94-2801, et al are incorporated by reference. The following facts are recounted to establish a background for the contested issues of law.) As stipulated, the Petitioners are small business parties within the meaning of Section 57.111, Florida Statutes. They are Florida corporations, with their principal offices in Florida, with less than 25 full-time employees and net worth of less than $2 million. The Department of Agriculture and Consumer Services (department) is the state agency responsible for administering and maintaining the pesticide- sensitive and especially pesticide-sensitive person registries as provided in Section 482.2265(3), Florida Statutes (1993). Carol Ann Rodriguez, Jacqueline V. Dilworth, Susan L. Maxwell and Carrietta Kelly are four individuals, among approximately twenty-seven individuals, who applied to the department for designation as "especially pesticide-sensitive" pursuant to subsection 482.2265(3), Florida Statutes, (1993). The pesticide-sensitive and especially pesticide-sensitive registries are described in the department's final order entered August 4, 1995, adopting all but two findings of fact in the Hearing Officer's recommended order in Case No. 94-2801, et al. These findings, and the findings related to the department's review of applications, need not be repeated here. In summary, however, the department did not investigate the merits of the applications but merely determined whether the certifying physicians were qualified according to the department's liberal interpretation of its own rule. That review function was delegated primarily to the secretary for the administrator of the department's pest control section. After review, the department published quarterly notices in the Florida Administrative Weekly of its intent to grant applications of especially pesticide-sensitive persons. The notices listed the names and addresses of the applicants and described the process for pest control operators to request hearings pursuant to Section 120.57, Florida Statutes. These were clear points of entry. Petitioners here, and the Florida Pest Control Association, Inc. filed their requests for hearings, challenging the department's proposed action. The underlying consolidated cases resulted. Prior to the formal hearing, several individual applicants, including Carol Ann Rodriguez and Jacqueline Dilworth, settled their cases by withdrawing their applications and agreeing to be placed on the less restrictive pesticide- sensitive registry. This outcome was favorable to Petitioners because they were thereby relieved of the more onerous notification requirements which attach when an individual is designated "especially pesticide-sensitive." This was the relief Petitioners sought. After vigorous prehearing motion and discovery activity, approximately twenty consolidated cases proceeded to formal hearing. Among those were the individual cases of Susan L. Maxwell and Carrietta Kelly. The department, through counsel, participated in the formal hearing. It presented evidence through exhibits and witnesses, and cross-examined witnesses presented by other parties. Evidence to support Susan Maxwell's application was limited to a certification signed by Dr. Albert Robbins, an osteopathic physician. The certification was not supported by any non-hearsay evidence. Evidence to support Carrietta Kelly's application was limited to Dr. Robbins' testimony that he signed her certificate after she and her physician husband called him and wrote him a letter. Mrs. Kelly was never Dr. Robbins' patient and he never met her. The outcome of the formal hearing was a recommended order which found that no individual in the multiple cases presented adequate proof of the need for notification at greater distance than that specified for pesticide-sensitive persons. In other words, the applicants failed to prove entitlement to designation as "especially pesticide-sensitive." The department entered its final order on August 4, 1995, and adopted all but two findings by the hearing officer. The first rejected finding was that nothing in evidence indicated that one of the certifying individuals, "Roy P. Doyle," was a physician. The second finding rejected by the department was that the department had failed to justify or explicate its policy for qualifying physicians other than those specified in its own rule. The department's final order removed all of the individual parties from the registry as "especially pesticide-sensitive" and left them on the pesticide-sensitive list. Petitioners thus prevailed on the central issue in dispute: whether the individuals were entitled to designation as "especially pesticide- sensitive." The fees and costs incurred by Petitioners in their successful defense, as well as fees incurred in pursuing the instant claims, are appropriately described in affidavits filed with the petitions and amended petitions. The department accedes to the reasonableness of the fees and costs, except where they are duplicated in more than one case. The affidavits establish that the Petitioners incurred $22,348.70 in attorney's fees and $4,085.26 in costs related to the four underlying cases. In addition, and not included in the above total, are minor fees incurred in individual cases: Rodriguez $374.00 Dilworth $368.50 Maxwell $115.50 $858.00 Petitioners also claim $2,530.00 (23 hours x $110/hour) for fees incurred in their Section 57.111 cases here. These costs and fees are reasonable, and amount to a total of $29,821.96. The calculation which leads to that total avoids duplication (charges for the same work computed more than once). The calculation also reflects that the three Petitioners joined together, two Petitioners each, in the four underlying cases, hired a single attorney and avoided duplication of effort by separate attorneys for each Petitioner.
Findings Of Fact 1. On August 25, 1982, petitioner received an application for pest control business license and identification cards, Petitioner's Exhibit 1, signed by Perry Commander, requesting licensure for Donald and Bales Exterminating Company, Inc., at 615 East Chestnut Avenue in Crestview, Florida. Ronnie James McLean was listed among those on whose behalf identification cards were sought. Petitioner granted this application on September 22, 1982, issuing License No. 343. Since approximately 1974, there have been applications for licenses at this location. Based on an application not in evidence signed by Byron Bales sometime before August 17, 1983, petitioner issued an emergency certificate. On August 17, 1983, petitioner received application form signed by Byron Bales, which petitioner returned to Mr. Bales for more information, and received a second time on August 29, 1983. Petitioner's Exhibit 2. The form gave Donald and Bales Exterminating Co., Inc., as the applicant's firm name and 615 East Chestnut Avenue in Crestview as the firm's address. Ronnie James McLean was listed among those on whose behalf identification cards were sought. Perry Commander's name was crossed out, as was his designation as "Certificate Holder." Nobody else was designated certificate holder, and nobody was listed as a certified operator. This application, which was made on a multipurpose form, has not been acted on. Boxes were printed next to various categories including "Initial (New) License," "Change-of-Business Ownership License" and "Renewal License." No box was checked, however. On February 4, 1976, Aggie B. Nelson of Chipley, Florida contracted with Donald and Bales Exterminating Co., Inc., (Donald & Bales) for treatment of the foundation of her two-bedroom frame house for termites and agreed to pay $30 a year thereafter for annual inspections and preventive sprayings. Petitioner's Exhibit No. 3. The contract gave a Crestview address for Donald & Bales. On March 24, 1982, respondent arrived at the Nelson home in a truck emblazoned with the Donald & Bales logo and sprayed underneath Ms. Nelson's house. He emerged with five or six bugs in his hand that he told Ms. Nelson were beetles. He said the house needed to be sprayed for beetles and offered to do it while he was there fob $230. Ms. Nelson allowed as how that would sure put her in a bind, but agreed to have him spray. Mr. McLean and Ms. Nelson each signed a Donald & Bales form contract on which Mr. McLean checked the box beside the word "Prevention" but not the box beside the word "Infested." The contract showed a Crestview address for Donald & Bales. Petitioner's Exhibit No. 4. Ms. Nelson wrote a check for $230 to Ronnie J. McLean personally. Later she began to inquire and eventually arranged for William E. Page, an entomologist in petitioner's employ, to inspect her house. At the hearing, Mr. Page was qualified as an expert in pest control and testified without contradiction that there was no sign of there having been a beetle infestation at Ms. Nelson's home at any time. Mardra Stewart was at home in her three-bedroom log house down below Orange Hill from Chipley when Ronnie J. McLean stopped by on April 19, 1982. "He sent some of the men he had with him under the house, and they c[a]me out with a handful of the sills," wood that appeared to have been eaten into by termites. Respondent told Ms. Stewart she should have her house sprayed because insects "had eat it up under there." (T. 89) She agreed to the spraying and paid respondent $225 for spraying. Mr. McLean and Ms. Stewart each signed a Donald & Bales form contract on which Mr. McLean checked the box beside the word "Prevention" but not the box beside the word "Infested." The contract showed a Crestview address for Donald & Bales. Petitioner's Exhibit No. 8. The next day Ms. Stewart called the sheriff and eventually she telephoned petitioner's Jacksonville offices. Mr. Page inspected her house and found no evidence of an active or recent infestation of insects of any kind, although he did discover evidence of old powder-post beetle damage. In his opinion, the Stewart house probably needed treatment. On September 15, 1982, Mrs. J. C. Phillips telephoned her daughter, Margaret Powell, and asked her to come to the Phillips house on Bayshore Drive in Niceville "to write the check for the exterminator." (T. 94) By the time Ms. Powell arrived, the spraying had been done. Ms. Powell asked respondent and his companion(s) to show her some beetles. When they were unable to do so, she declined to pay, even after respondent referred her to Byron Bales who was at work next door. Mr. McLean and Ms. Phillips each signed a Donald & Bales form contract on which Mr. McLean checked the box beside the word "Prevention," but not the box beside the word "Infested." Petitioner's Exhibit No. 9. The contract indicated prophylactic treatment of the foundation for powder-post beetles for $150, and called for annual inspections and resprayings for $45 per year. Petitioner's Exhibit No. 9. On September 22, 1982, when Mr. Page inspected the Phillips house, he found no sign of any infestation, new or old, by beetles (or termites). When tenting is not resorted to, the treatment for beetles is applying Lindane with a power sprayer in such a concentration that the odor lasts about a month. This odor was not present when Mr. Page inspected, one week after respondent's visit. Although Mr. Bales did not discharge Mr. McLean when he first learned that money had been diverted, "not on the first one. . ." (T. 167), he had fired Ronnie James McLean by the time of the hearing, because "he stole money from me." (T. 165) He accomplished this theft by selling contracts and cashing checks. (T. 167) Except for Petitioner's Exhibit 7, all the Donald & Bales form contracts state, "Please make check to representative." Having customers write checks in favor of the individual exterminator is "company policy." The Hearing Officer has had the benefit of petitioner's proposed recommended order and memorandum of law in preparation of the foregoing Findings of Fact. Proposed findings have been adopted, in substance, for the most part. To the extent they have been rejected, they have been deemed unsupported by the weight of the evidence, immaterial, cumulative or subordinate.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint filed against respondent as moot. DONE AND ENTERED this 15th day of December, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1983.
