Findings Of Fact Evidence adduced by the Petitioner in the form of the testimony of F. Robert DuChanois, an entomologist and supervisor in charge of commercial pest control, Office of Entomology, Department of Health and Rehabilitative Services, as well as Exhibit 2, established that on July 1, 1979, the Respondent made an inspection of an apartment house in Hallandale, Florida, to determine whether suspicions by the occupants of drywood termite infestations were well-founded. As delineated in Exhibit 2, the Respondent's report of his inspection, positive evidence was found in a number of places of termite infestation, which findings revealed that indeed the Respondent made a detailed professional investigation of the premises for such infestations. The evidence in the record also reveals (Exhibit 4) that the Respondent is not operating a pest control business, but is only performing consulting work for those property owners who request that he make inspections for termite and other wood-destroying pests. In any event, the Respondent, in the posthearing pleading he filed, has agreed to cease the activity objected to and which forms the basis of the Petitioner's charges. He has agreed to cease practicing consulting work in entomology henceforth.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law and the evidence in the record, it is, therefore, RECOMMENDED that the Petition in this cause filed by the Department of Health and Rehabilitative Services against Dr. A.C. Banerjee be DISMISSED and Case No. 80-2160 be hereby closed. DONE AND ENTERED this 10th day of August, 1981, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1981. COPIES FURNISHED: Harold L. Braynon, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Ft. Lauderdale, Florida 33301 Dr. A. C. Banerjee 10891 N.W. 17th Manor Coral Springs Branch Pompano Beach, Florida 33065 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, vs. CASE NO. 80-2160 DR. A. C. BANERJEE, Respondent. /
Findings Of Fact 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 Respondent Charles T. Noegel has been in the pest control business for some sixteen years. In February of 1976, the petitioner Office of Entomology sent all licensees a license renewal application for a license to be effective on March 31, 1976. Petitioner received a check from respondent, but the proceeds thereof were applied to review respondent's pest control operator's certificates. A check sent by respondent during 1975 had been returned for insufficient funds. A pest control business license cannot be issued unless there is evidence of a current operator's certificate in existence. Petitioner did not receive respondent's application or a check for the license which was to be effective on March 31, 1976. In June of 1976, petitioner notified respondent that they needed his application and a check for the renewed license. They also sent him an application form. According to respondent, he did not receive the entire application form. Respondent testified that he telephoned the petitioner's office in Jacksonville on two or three occasions and told a secretary there that he did not have a complete application form. In March of 1977, Mr. Page from petitioner's office called respondent. Respondent was not available and Mr. Page left the message with respondent's answering service that respondent was operating illegally without a license and asked Mr. Noegel to call him. Mr. Page received no reply from this message. According to Mr. Noegel, he received the message but did not receive the name or telephone number of the person who left the message. In April of 1977, petitioner did receive from respondent an application for the renewal of his operator's certificate and a check. Respondent has been delinquent in the past in applying for his license, and various checks have been returned for insufficient funds. Had respondent timely applied and paid for the renewal of his March 31, 1976, license, petitioner would have issued the license to him. By certified letter dated August 10, 1978, petitioner notified respondent that his pest control operator's certificate number 519 was being revoked for failure to comply with Chapter 482 of the Florida Statutes and Chapter 10D-55 of the Florida Administrative Code. Generally, respondent was charged with conducting his pest control business, known as the Seminole-Gator Exterminator, without a license. While more specific charges are contained in the August 10, 1978, letter, petitioner offered no evidence at the administrative hearing to substantiate such specific allegations.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner find that respondent violated Section 482.071(1) by operating his business without a valid license. It is further recommended that respondent's operator's certificate number 519 be suspended for a period of sixty (60) days from August 10, 1978, and that upon the payment of all back license renewal fees, respondent's certificate be reinstated, and respondent be placed on probation for a period of eighteen months. The terms of probation should include the timely renewal and payment of all permits required by petitioner's laws and regulations. Respectfully submitted and entered this 6th day of October, 1978, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1978. COPIES FURNISHED: Charles T. Noegel Entomologist - Manager Seminole Gator Exterminator 1409 Pichard Drive Tallahassee, Florida 32304 Donna Stinson, Esq. Department of HRS 2639 N Monroe Street Suite 200-A Tallahassee, Florida 32304 William J. Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Andrew J. Rogers Director, Office of Entomology Department of HRS Post Office Box 210 Jacksonville, Florida 32231 =================================================================
The Issue 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.
The Issue The primary issue for determination is whether Emerald Shores Heath Care Associates, LLC, d/b/a Emerald Health Care Associates (Respondent) committed the deficiencies as alleged in the Administrative Complaint dated September 17, 2004. Secondary issues include whether Petitioner should have changed the status of Respondent's license from Standard to Conditional for the time period of July 16, 2004 until August 13, 2004; and whether Petitioner should impose administrative fines for alleged deficiencies that are proven to be supported by the evidence.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes. Respondent is licensed to operate a nursing home located at 626 North Tyndall Parkway, Panama City, Florida 32404 (the facility). Petitioner conducted a survey of Respondent's facility on July 16, 2004. Upon completion of that survey, Petitioner prepared a report that charged Respondent with violations of various nursing home regulations. This report organized each of the charged violations under “Tags,” which are shorthand references to the regulatory standards that Petitioner alleges were violated. Additionally, Petitioner assigned, as required by law, Class I severity ratings and widespread scope ratings to the two deficiencies or Tags (F224, and F469) at issue in this proceeding. On July 8, 2004, one of Petitioner’s surveyors observed that a patient in Respondent’s facility had approximately 60 ant bite pustules on her face, arms, neck, and chest. Investigation revealed that the patient had been discovered with fire ants in her bed at about 4 p.m. on July 7, 2004. Personnel of the facility had, at that time, taken appropriate steps to care for the injured patient. That care and treatment is not at issue in this proceeding. Petitioner initiated another survey of Respondent’s facility on July 16, 2004. A primary objective of that survey team was to ascertain the extent of the ant bite situation in the facility. There had been other incidents in the past involving ants. One incident involved harmless, non-biting “sugar” ants, covering a patient’s sandwich left by the patient on a nightstand. The sandwich was removed, the room sprayed and the patient admonished about leaving food in the room. Later, ants were again discovered in the room, requiring further spraying and maintenance. In the course of the July 16th survey, dead ants were found in the room of the patient who had been bitten. Additionally, a couple of ant beds were found in the lawn outside the facility. As a consequence of the findings of ant nests outside the facility and dead ants inside the facility, coupled with the previous incidents involving the sandwich attacking ants and other ant incidents, Petitioner cited Respondent for “immediate jeopardy” on July 16. The surveyor report found Respondent had not dealt adequately with its pest problem and cited Respondent for violation of Tag F224, abuse and neglect, and Tag F469, pest management. Before Respondent erected the facility, a contract was executed with A to Z Pest Control to provide a termite barrier effective against termites, as well as other all arthropods, including ants. A to Z Pest Control is a certified, licensed pest control company with certifications in entomology and pest control. Respondent’s continuing contract with the pest control company required that the pest control barrier be renewed in December of every year. After opening the facility, Respondent entered into a regular pest control contract with A to Z. The contract was for integrated pest control management. Under the integrated pest management approach, the pest control company continually changed its approach to eliminating and preventing insect problems depending on the nature of the problem and its location within the facility. Monthly routine service and “call-backs” as needed were provided under the contract. The pest control company used EPA approved and laboratory-tested chemicals at the facility. No adverse incidents occurred at the facility as the result of ants or other insects from 1999 through 2003. From time to time, ant mounds were discovered in the yard to the facility, but were treated by maintenance personnel or the pest control company. Typical of insects in Florida, activity of insects increased in the spring and summer months. In addition to monthly treatment and Friday drop-bys, the pest control company personnel would treat pests at the facility whenever they were called. The first adverse incident related to ants at the facility occurred in August 2003, concluding a summer of an unusual amount of insect activity. In August, a patient was discovered in her bed with ant bites and pustules. Respondent then asked A to Z for a solution to the problem. The pest control company recommended a “barrier” treatment which involved placing insecticide in all openings in the facility, digging a trench around the building and placing granular insecticide in the trench, and finally spraying the lawn area in a band five to ten feet around the entire building. Despite the extra cost of such a treatment, Respondent approved the treatment and the additional payment. Notably, Respondent conducted a complaint survey in response to the August 2003 ant bite incident and determined that no deficient practices had occurred to cause the incident. Respondent assumed its pest control practices were adequate and continued to use the same pest control company, A to Z until the conclusion of July 2004. The barrier treatment, or grounds treatment, provided after the 2003 ant bite incident remained effective, in conjunction with the annual termite treatment, through the fall of 2003 and into the winter and spring of 2004. After that, it might have started breaking down due to rain and exposure to the elements. As previously noted, the afternoon of July 7, 2004, presented the patient with fire ants in her bed and approximately 60 ant bites on her head and upper body. The patient was removed from the room and thorough treatment for ants applied to the room while the patient was being treated. A survey was made of all of the rooms in the facility to determine if there were ants anywhere else. The grounds were inspected and all ant beds were treated. A to Z Pest Control was called, but couldn’t get out to the facility until the next day. On the following day, A to Z treated the entire inside of the building, but could not treat the grounds because it was raining. Personnel of A to Z returned and treated the outside of the facility on the following day, July 9. Thereafter, the “sugar” ant sandwich attack occurred. The room was immediately sprayed with pesticide. Several days later, the ants were again found in the same room and the room was cleaned and sprayed again. At this point, Respondent sought more aggressive treatment of ants to ensure that everything possible was being done to keep patients safe. Further, facility management created an “Action Plan” on July 7 to deal with this issue. This plan included daily rounds of the grounds; inspections of every resident’s room for signs of ants three times per shift (nine times per day); educating residents and staff of the necessity of keeping all food items tightly sealed; and implementation of a pest control log. Respondent also began the process of reevaluating its contract with A to Z after this incident. Several other local pest control operators were contacted and asked for a plan of treatment. The proposal to include an annual barrier treatment as a part of regular pest control services was made to Respondent for the first time. Shortly thereafter, Respondent terminated its routine pest control contract with A to Z (although A to Z retains the termite contract), and hired Panama Pest Control to provide both interior and exterior treatment with regular barrier treatment. Patients of Respondent’s facility were not at risk or in “immediate jeopardy” from insects on July 16, 2004. Petitioner requires nursing home facilities to adopt specific policies and procedures. Fla. Admin. Code R. 59A-4.106. Although pest control is not one of the required policies and procedures, Respondent has had since 2002, a policy and procedure on pest control. Respondent followed those policies and procedures. Among the pest control activities of Respondent before either ant bite incident were daily checks of every room, so-called “Angel Rounds," and regular monitoring of the grounds. Pest control is not part of the curriculum for Nursing Home Administrators. Neither Petitioner nor the Centers for Medicare and Medicaid Services have issued any regulations, guidance, or advisories with regard to pest control. The term “effective” as is used in the regulation requiring “effective pest control” isn’t defined anywhere. It is impossible to be certain that fire ants will not enter any building. The owner of A to Z Pest Control Company, bearing certifications in entomology and pest control, opined that no matter what you are doing to prevent ant bites, you can still do more. Even then, you cannot be sure of success “because you are trying to control something that is based in nature.” You can only provide pest “control” as opposed to pest “elimination.”
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a final order dismissing the Administrative Complaint and issuing a standard rating to Respondent’s facility, and further finding that no deficiencies stemming from the survey of July 16, 2004, as described under the tags and regulations cited and discussed above, have occurred. DONE AND ENTERED this 16th day of May, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 16th day of May, 2005.
The Issue DOAH Case No. 04-4061: Whether the Petitioner's application for renewal of his pest control operator's certificate JF9079 for 2004 should be granted or denied. DOAH Case No. 06-0132: Whether the Petitioner's application for renewal of his pest control operator's certificate JF9079 for 2005 should be granted or denied. DOAH Case No. 06-0414: Whether the 2005 application of Petitioner's employer for a pest control identification card for the Petitioner should have been granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: At the times material to his proceeding, the Department was the state agency responsible for regulating the pest control industry in Florida and is specifically responsible for licensing and regulating pest control operators and for issuing pest control employee identification cards. See §§ 482.032(1); 482.091; 482.111; and 482.161, Fla. Stat. (2004). On or about May 4, 2001, Mr. Kravitsky pleaded guilty in the United States District Court for the Eastern District of New York to income tax evasion and was sentenced to four months of home confinement and five years' probation. This crime is a felony under federal law. As of the date of the final hearing, Mr. Kravitsky's civil rights had not been restored. Vikane gas is a fumigant that was commonly used in 2004 to treat structures for termites. Pest control operators were required to follow the instructions on the label to ensure that the Vikane gas is used appropriately. The structure to be fumigated must be enclosed in a tent, and the Vikane gas is injected, or "shot," into the tent through a hose that is attached to the tent in a way that prevents significant leakage of the gas. After a structure is fumigated, two aeration procedures must be completed. The first aeration procedure requires that the tent be partially taken down, and the windows and doors of the structure are opened to allow the Vikane gas to leave the structure. This first aeration procedure could take less than one hour. For the second aeration procedure, the tent surrounding the structure is totally removed. The windows of the structure are locked, and the doors are locked with the regular door locks and with secondary locks to which only the pest control operator has the keys. Warning signs are posted on the doors indicating that the structure should not be entered for a minimum of six hours to ensure that the Vikane has been safely cleared from the structure. The warning signs, which are to be put up by the pest control operator-in-charge who actually performed the fumigation, include the name, address, and phone number of the company doing the fumigation; the date and time the Vikane gas was introduced into the structure; and the name of the certified pest control operator responsible for the job. These precautions are to prevent the owner of the structure from entering before the Vikane gas has dissipated to a safe level and to provide information regarding the pest control company handling the fumigation. Pest control companies are required to notify the local office of the Department's Bureau of Entomology and Pest Control whenever a structure is scheduled for fumigation. The notice is provided on a Department form, and the notice must be received by the local office at least 24 hours in advance of the introduction on the fumigant. In the Broward County office, Department inspectors randomly pull Fumigation Notices after they are received, usually by facsimile transmission, and they investigate fumigation sites when the fumigation tents are put up and when they are taken down. The purpose of the inspections is to ensure that all safety procedures had been followed. In the spring of 2004, Mr. Kravitsky was employed by Ship Shape Pest Control, a company that he had previously owned but had transferred to his brother in February 2004. Mr. Kravitsky was a certified pest control operator and often served as the pest control operator-in-charge when Ship Shape Pest Control fumigated a structure. The pest control operator- in-charge is responsible for introducing the fumigant into the structure and for ensuring that all safety procedures are followed. On April 16, 2004, Eric Reiss, who was, at the time, a field inspector with the Broward County, Florida, office of the Department's Bureau of Entomology and Pest Control, received a call from another inspector, Richard Lucas, who was concerned about a fumigation that had been performed by Ship Shape Pest Control to a structure located at 16745 Southwest 300th Street in Homestead, Florida. Mr. Reiss agreed to go to the fumigation site on April 17, 2004, and complete the fumigation aeration inspection. Mr. Reiss arrived at the site at approximately 7:00 a.m. No one from Ship Shape Pest Control was on site. Mr. Reiss walked around and observed that the structure was a single-family residence with a small building that looked like a shed in the back yard, about 50 feet from the main building. Mr. Reiss walked around the property and observed that a PVC pipe emerged from the back of the main structure and apparently ran through the yard and entered the shed. Mr. Reiss could not, however, be certain that the PVC pipe connected the two structures, since he could not see the entire length of the pipe. It appeared to Mr. Reiss that someone, a relative of the homeowner, was living in the shed, but the shed had not been prepared and cleared for fumigation and there was no warning sign or secondary lock on the shed. Mr. Reiss was concerned that, if the PVC pipe was connected to both of the structures, the Vikane gas that had been used to fumigate the main structure could have moved through the pipe into the shed and endangered the life and health of anyone who happened to be in the shed during the fumigation. During Mr. Reiss's first visit to the site, he did not see anyone on the property. Mr. Reiss left the site at approximately 7:30 a.m. and got a cup of coffee. When he returned to the site, he rode down the street, trying to find a place to park so he could observe the final aeration procedure from a "covert" location.1 He was not able to find a hidden location, so he drove back to the fumigation site. When Mr. Reiss arrived back at the site, at approximately 8:10 a.m., Mr. Kravitsky was getting out of his car. Mr. Kravitsky had not done the fumigation at 16745 Southwest 300th Street in Homestead, Florida; he was not the pest control operator in charge of the fumigation; and he had not been responsible for clearing the two structures in preparation for the fumigation. Rather, Avery Huff, an employee of Ship Shape Pest Control, had done the fumigation. Mr. Kravitsky had taken a call from Mr. Lucas at the Ship Shape Pest Control office on April 16, 2004, and Mr. Lucas told him that he was concerned because there were no warning signs or secondary locks on the structure that had been fumigated. Mr. Kravitsky telephoned Mr. Huff, who told him that the job had been "left completely legal."2 Mr. Kravitsky asked Mr. Huff to return to Homestead and meet with the inspector, but Mr. Huff refused. Mr. Kravitsky, therefore, went to the site on April 17, 2004, to check on the job. When Mr. Reiss walked up to Mr. Kravitsky at approximately 8:00 a.m. on April 17, 2004, Mr. Kravitsky had just gotten out of his car. Mr. Kravitsky and Mr. Reiss walked around to the back of the house, and Mr. Reiss observed that the door to the shed was open and that a man was standing near the shed. It was Mr. Reiss's impression that the man lived in the shed but did not want anyone to know this. Mr. Kravitsky was told by the man, who identified himself as "Mr. Lugo," that the PVC pipe connected the two structures. Mr. Kravitsky was very concerned that the man might have been hurt if he had been in the shed during or shortly after the fumigation, but the man appeared to both Mr. Kravitsky and Mr. Reiss to be in fine health. Mr. Kravitsky turned on his interscan, which is a device used in the pest control industry to measure very small amounts of Vikane gas. In 2003-2004, it was considered safe for people to enter buildings when the level of Vikane gas had decreased to five parts per million, and the interscan was used to measure such small quantities of gas. While Mr. Kravitsky's interscan was warming up, a process that takes about 10 minutes, Mr. Kravitsky spoke with Mr. Lugo, who allowed Mr. Kravitsky to go into the shed to check the amount of Vikane gas with the interscan device. Mr. Reiss noted that a label on Mr. Kravitsky's interscan showed that it had been recalibrated on April 15, 2004, and, before Mr. Kravitsky took the device into the shed, Mr. Reiss observed that the reading on the meter was "zero," which indicated that the device was not detecting any Vikane gas. Mr. Reiss was taking pictures during the entire time he was at the fumigation site, and Mr. Lugo told Mr. Reiss he did not want any pictures taken of the inside of the shed. Mr. Lugo, therefore, refused to allow Mr. Reiss into the shed, and Mr. Reiss was not able to observe the reading on Mr. Kravitsky's interscan while he was in the structure. When Mr. Kravitsky emerged from the shed, he told Mr. Reiss that the interscan showed there was no Vikane gas in the shed. Mr. Reiss glanced at the meter when Mr. Kravitsky emerged from the shed, and it appeared to him that the meter reading was close to "zero." Mr. Kravitsky also did an interscan reading in the main structure, and he told Mr. Reiss that the reading also showed no Vikane gas. In actuality, Mr. Kravitsky's interscan showed that the level of Vikane gas in the shed was three parts per million, which indicated that the pipe did connect the two structures and that the person preparing the site for fumigation failed to include the shed. After Mr. Kravitsky and Mr. Reiss finished at the fumigation site, Mr. Kravitsky offered to buy Mr. Reiss lunch. Mr. Reiss refused lunch but told Mr. Kravitsky he could buy him an iced tea at a nearby Dunkin' Donut shop. Mr. Kravitsky ordered coffee, and he and Mr. Reiss talked about Mr. Reiss's vacation. Mr. Kravitsky excused himself and went to the men's room. When he came back and sat down, he pushed a matchbook across the table to Mr. Reiss, telling Mr. Reiss that he had some matches for him. The matchbook actually contained five $100 bills that Mr. Kravitsky had folded inside the matchbook. Mr. Reiss did not open the matchbook, but he was able to see that there was money inside. He pushed the matchbook back to Mr. Kravitsky and told him that he could not accept money. Mr. Kravitsky offered the money to Mr. Reiss on April 17, 2004, to "make him happy."3 According to Mr. Kravitsky, Mr. Reiss had been threatening for the previous year to send him to prison if he committed even the smallest violation of the pest control laws and regulations.4 Mr. Kravitsky, who was on probation at the time, was very worried about Mr. Reiss's threats. On April 18, 2004, Ship Shape Pest Control sent a Fumigation Notice to the Department's Bureau of Entomology and Pest Control in Boynton Beach, Florida, indicating that, at 11:00 a.m. on April 19, 2004, it intended to fumigate a structure located at 279 Southeast 8th Terrace in Deerfield Beach, Florida; that Vikane gas would be used; that Lori Kelley was the certified operator-in-charge of the fumigation, and that the length of the fumigation would be 36 hours. The Fumigation Notice was sent by facsimile transmission, and it was picked up by Mr. Reiss. Mr. Reiss intended to go to the fumigation site early on April 20, 2004, and to initiate covert surveillance of the first aeration. On the afternoon of April 19, 2004, Mr. Kravitsky went to 279 Southeast 8th Terrace to check on the progress of the job. When he arrived, the crew had the structure almost completely wrapped, and almost the entire the tent had been erected. Mr. Kravitsky entered the structure to clear it for fumigation. As he was opening cabinets and checking the building, Mr. Kravitsky discovered a sticker on the water heater that showed that the structure had been fumigated about seven months earlier by a company called Dead Bug Edwards. Mr. Kravitsky decided that he should not fumigate the structure with Vikane gas since it had been fumigated seven months previously. Also, he had not found any live termites on site and believed that it would be sufficient to treat the structure with borate. He told the crew that the structure was not to be fumigated. However, Mr. Kravitsky thought the tent looked good and, with the Ship Shape Pest Control banner in front of the structure, would be good advertising for the company, so, before he left the site, he told the crew finish erecting the tent and to close it up. Mr. Kravitsky intended to leave the tent up until the following day. Mr. Kravitsky went to the Ship Shape Pest Control office the following day, April 20, 2004, which was a Saturday. He wrote in long-hand on the Fumigation Notice that had been sent to the local office of the Department's Bureau of Entomology and Pest Control that the job was to be cancelled and changed to Borate. He added a note: "Advise realtor - fumed 7 months ago Dead Bug Edwards adjust price." Mr. Kravitsky dated the hand-written note "4/20/04," and sent the cancellation notice to the local office of the Department's Bureau of Entomology and Pest Control by facsimile transmittal on the morning of April 20, 2004.5 Mr. Kravitsky called Diane Brito, the realtor who had engaged Ship Shape Pest Control to do the fumigation, from the fumigation site and told her that the structure had previously been fumigated and was still under warranty and that Ship Shape Pest Control would do a treatment with Borate and pick up the Dead Bug Edwards' warranty on the termite fumigation. Mr. Kravitsky also told Ms. Brito that the price would be reduced because fumigation with Vikane gas was more expensive than a Borate treatment.6 Mr. Reiss arrived at 279 Southeast 8th Terrace at approximately 11:20 a.m. on April 20, 2004, and noted that it was a three-unit multi-family structure located in a residential neighborhood. He was unable to find a location from which to conduct covert surveillance, so he pulled up in front of the structure. He took out his Tiff meter, which is an instrument that measures the presence of gas in quantities exceeding 50 parts per million. His intent was to determine if there were any major leaks of Vikane gas from the tent, so he walked around the tent taking readings with the Tiff meter and videotaping the site. Mr. Reiss noted that there was a warning sign on the tent that reflected that the Vikane gas had been injected into the structure at 7:00 p.m. on April 19, 2004. Ms. Kelley and Mr. Kravitsky were both identified on the warning sign as pest control operators in charge. Although Mr. Reiss found holes in the tent and inserted the Tiff meter into the holes to obtain readings, the Tiff meter did not register any Vikane gas, which Mr. Reiss considered unusual. Mr. Reiss also noted that the hose that would have been used to introduce the Vikane gas into the tent was lying outside the tent. It appeared to Mr. Reiss, from all indications at the site, that the structure had been fumigated; the only indication that it had not been fumigated was the failure of the Tiff meter to register Vikane gas at a level of 50 parts per million or more. Mr. Reiss called the telephone number shown on the warning sign, and Mr. Kravitsky answered the call. Mr. Reiss told Mr. Kravitsky that there did not seem to be any gas in the building, and he told Mr. Kravitsky to meet him at the fumigation site as soon as possible. Mr. Kravitsky arrived at the site at approximately 12:25 p.m. Mr. Kravitsky did not see Mr. Reiss, but he did see the warning sign that indicated that the structure had been fumigated the previous evening and that he had done the fumigation. Mr. Kravitsky did not fumigate the structure, even though his name was on the warning sign, and he had no idea who put the sign up. Mr. Kravitsky immediately began warming up his interscan so he could measure the amount of Vikane gas at the site. Mr. Reiss had waited for Mr. Kravitsky in his car, but he did not see Mr. Kravitsky arrive. When Mr. Reiss saw Mr. Kravitsky's car parked in the driveway, Mr. Reiss got out of his car and walked up to Mr. Kravitsky. He noticed that Mr. Kravitsky was already warming up his interscan, and Mr. Reiss took care to note that the reading on the interscan, as it was warming up, was "zero." Mr. Kravitsky and Mr. Reiss engaged in a light conversation as Mr. Kravitsky searched for a place to take a reading of the Vikane gas level. Mr. Kravitsky found an opening in the tent and stuck the interscan probe into the hole. The reading on the interscan was "zero," indicating that no Vikane gas had been detected. Mr. Kravitsky checked several other openings in the tent, and the interscan continued to register "zero." After first telling Mr. Reiss that he intended to leave the tent up until the next morning, April 21, 2004, which was a Sunday. Mr. Kravitsky did not want to remove the tent in Mr. Reiss's presence because he was afraid that the inside of the structure had not been properly prepared for fumigation and that Mr. Reiss would cite him for a violation of pest control regulations. Mr. Reiss told Mr. Kravitsky that he would be at the site the next morning because he intended to be present when the tent was taken down, Mr. Kravitsky admitted to Mr. Reiss that he had told the residents that they could return to the structure that night. Mr. Reiss arranged to meet Mr. Kravitsky at the structure at 2:00 p.m. so Mr. Reiss could observe Mr. Kravitsky go through the aeration procedure. Even though Mr. Kravitsky knew that the structure had not been fumigated, he went through the active aeration procedure at approximately 2:00 p.m. on April 20, 2004. According to Mr. Reiss's Fumigation Inspection Report, Mr. Kravitsky opened the tent in Mr. Reiss's presence; entered the structure wearing a self-contained breathing apparatus and opened the doors and windows. Mr. Reiss observed that warning signs were on the exterior doors and that the doors also had secondary locks. Mr. Kravitsky completed the one-hour active aeration and replaced the warning signs and secondary locks on the exterior doors. These precautions were not necessary, however, because no Vikane gas had been introduced into the structure. Mr. Kravitsky was extremely worried that Mr. Reiss would cite him for a violation of pest control laws or regulations and that the citation would interfere with the sale of Ship Shape Pest Control, which he was trying to negotiate at the time, or would result in the revocation of his probation. Mr. Kravitsky described himself as confused and uncertain about how to handle the situation; he just wanted to avoid having Mr. Reiss cite him for a violation. Mr. Kravitsky, therefore, tried to "dance through without getting a violation" and wanted to "feel out" Mr. Reiss to find out how much he knew about the fumigation.7 Mr. Kravitsky avoided telling Mr. Reiss that the structure had not been fumigated, and he told Mr. Reiss that he would have to check with the certified pest control operator-in- charge to find out why there was no Vikane gas inside the tent. By his own admission, Mr. Kravitsky behaved as though he believed the structure had been fumigated with Vikane gas. At some point, however, Mr. Kravitsky did tell Mr. Reiss that he had found a sticker in the structure showing that the structure had been fumigated approximately seven months prior to April 2004 and that no Vikane gas had been used to fumigate the structure.8 Although not mentioned in the report Mr. Reiss prepared of the fumigation aeration inspection, Mr. Reiss and Mr. Kravitsky had a conversation at the fumigation site on April 20, 2004, that Mr. Reiss inadvertently recorded on the audio of his video camera.9 During this conversation, Mr. Kravitsky admitted to Mr. Reiss that he had lied to him on April 17, 2004, when he told Mr. Reiss that the reading Mr. Kravitsky took in the shed showed no Vikane gas. Mr. Kravitsky admitted that the interscan registered Vikane gas in the shed at three parts per million, a quantity that does not pose a risk to humans. Mr. Kravitsky also offered to give Mr. Reiss "an envelope" during this April 20, 2004, conversation. According to Mr. Kravitsky, his reference to "an envelope" was a direct reference to the incident that took place in April 2003. In any event, Mr. Kravitsky offered Mr. Reiss "an envelope" on April 20, 2004, in hopes that Mr. Reiss would not cite him for a violation of pest control laws or regulations with respect to the fumigation that was to have taken place at 279 Southeast 8th Terrace. Mr. Reiss, however, did not respond to Mr. Kravitsky's offer during that conversation.10 On June 16, 2004, Mr. Kravitsky pleaded guilty to one count of "failing to refrain from the law," and his probation was revoked by the United States District Court for the Southern District of Florida. The charge related to having offered Mr. Reiss unlawful compensation. Mr. Kravitsky was sentenced to 10 months' in prison.
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 in DOAH Case No. 04-4061 denying Larry Kravitsky's application for renewal of his pest control operator certificate JF 9079 for 2004; in DOAH Case No. 06-0132 denying Larry Kravitsky's application for renewal of his pest control operator certificate JF 9079 for 2005; and in DOAH Case No. 06-0414 denying the application of Sears Pest Control d/b/a Ship Shape Pest Control for a pest control employee-identification card for Larry Kravitsky. DONE AND ENTERED this 30th day of July, 2009, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 30th day of July, 2009.
Findings Of Fact At all times material hereto, Respondent was the holder of Pest Control Business License No. 875, Pest Control Operator's Certificate No. 667, and Identification Card No. 6415. Respondent's business was and is located at 512 South Eighth Street, Fernandina Beach, Florida. The anniversary date for purposes of renewal of Respondent's Pest Control Business License was November 30, 1978. Those persons holding identification cards issued in connection with the operation of H & K Pest Control were Respondent, Dolphus Lee White, Donna Kay Young and George Morrison Young. Respondent was licensed to conduct pest control business only in the category of Lawn and Ornamental pests. On November 28, 1978, two days before Respondent's pest control business license was to expire, HRS received an Application for Pest Control Business License and Identification Cards from Respondent requesting renewal of the aforementioned licenses and identification cards. However, the Certificate of Insurance attached to the renewal application failed to meet the requirements for minimum financial responsibility for property damage contained in Section 482.071, Florida Statutes. The Certificate of Insurance in question indicated that the limits of liability for property damage were $50,000 for each occurrence, and $50,000 in the aggregate. The statutory requirements are $50,000 for each occurrence and $100,000 aggregate. As a result, by notice dated November 29, 1978, HRS returned Respondent's application, indicating that the Certificate of Insurance did not meet the statutory standard. In addition, the November 29, 1978 letter specifically informed Respondent that . . . it is unlawful to operate a pest control business that is not licensed." HRS received a corrected Certificate of Insurance on February 27, 1979. However, this Certificate of Insurance did not indicate the name of the insured pest control business, and was, accordingly, returned to Respondent's insurance agent. Respondent's name was then apparently inserted in the Certificate of Insurance by the agent, and the corrected Certificate of Insurance was received by HRS on March 3, 1979. As a result, Respondent's application for renewal of his licenses and identification cards was not, in fact, complete until March 3, 1979. The renewal licenses and identification cards were thereafter issued on June 4, 1979. The delay between receipt of the completed application and issuance of the licenses and identification cards was apparently due to work load in the HRS Office of Entomology. Notwithstanding the fact that Respondent was licensed only in the area of Lawn and Ornamental Pest Control, H & K Pest Control performed pest control services inside buildings at the Florida Marine Welcome Station in Fernandina Beach, Florida, for the period July 1, 1978 through and including two days prior to the hearing in this cause on September 28, 1979. The State of Florida, Department of Commerce, Office of Administrative Services was billed ten dollars monthly on H & K Pest Control statements for this service, and payment was remitted by the State of Florida for these services to H & K Pest Control. In addition, on at least two occasions H & K Pest Control performed pest control services inside buildings at the Florida Welcome Station on Interstate Highway 95 in Yulee, Florida. One of these occasions occurred in November, 1978 for which H & K Pest Control billed the Florida Welcome Station in Yulee, Florida, thirty dollars on its statement dated January, 1979. At no time during the performance of pest control services inside the Florida Marine Welcome Station in Fernandina Beach, Florida, and the Florida Welcome Station on Interstate Highway 95 in Yulee, Florida, was Kinsey C. Haddock or any other employee of H & K Pest Control licensed in the category of General Household Pests and Rodents, or in any other category that would have allowed them to treat the inside of buildings for pests. Although Respondent was never observed to have personally sprayed the insides of buildings at either Welcome Station, persons identifying themselves as employees of H & K Pest Control did perform those services, the State of Florida was billed on statement forms of H & K Pest Control for these services, and payment was remitted by check to H & K Pest Control. On December 27, 1978 an inspector from HRS visited the business location of H & K Pest Control at 512 South Eighth Street, Fernandina Beach, Florida. The business office was open and being operated by a person claiming to be an employee of H & K Pest Control who identified herself as Joyce French. Ms. French advised the inspector that she had been trained in the category of General Household Pest Control, and had performed these services inside the Florida Welcome Station on Interstate Highway 95 in Yulee, Florida. Records maintained by the Office of Entomology indicate that no identification card or other license had ever been issued to a "Joyce French" in the area of General Household Pest Control. Respondent denied that he had ever employed a "Joyce French", nor was Miss French called as a witness in this proceeding. Further, other than the statement attributed by the inspector to Ms. French, there is no evidence in this proceeding to corroborate that Ms. French did, in fact, perform pest control services of any description. Further, on December 27, 1978, Respondent did not have displayed in his business office a certified operator's certificate renewal or a current business license, as required Chapter 482, Florida Statutes. Finally, the record in this proceeding establishes, and Respondent has, in fact, admitted, that he is not a full- time employee of H & K Pest Control. In fact, the record clearly establishes that Respondent has been a full-time employee of Container Corporation of America as an engineer in the Power Department of that company since December 9, 1937. Respondent works rotating shifts in his employment at Container Corporation of America, but usually works the 8:00 a.m. to 4:00 p.m. shift an average of only five days per month. When not working the 8:00 a.m. to 4:00 p.m. shift at Container Corporation of America, Respondent operates his pest control business at the address above mentioned.
Findings Of Fact Petitioner, Department of Health and Rehabilitative Services, is the regulatory agency charged with regulating the terminate and pest control industry in Florida. Respondent, Howard R. Kempton, is a certified operator licensed by the Petitioner. During times material, Respondent was a certified pest control operator for Pinellas Termite and Pest Control, Inc., in St. Petersburg. On July 24, 1991, Respondent was the certified operator in charge of fumigation of a residential structure at 3318 Shamrock in Tampa, Florida. In carrying out the fumigation, Respondent used the fumigant product VIKANE (sulfuryl fluoride). Respondent did not provide Petitioner a notice of the intended fumigation at 3318 Shamrock in Tampa within 24 hours in advance of the fumigation as is required by the Petitioner's rules and the labeling provisions for the product VIKANE. In addition, Petitioner's inspector, William Bargen, who has been employed by Petitioner in the office of entomology in excess of 28 years, visited the residence on the day of the fumigation and the tarpaulin that Respondent used was not air tight as practicable in that it contained numerous slits and tears that was not properly sealed at the ground level encompassing the structure. The safety warning signs fastened to the exterior of the tarpaulin were not printed in indelible ink or paint and the emergency phone numbers for the certified operator were not legible. As a result of the improper seals, the fumigant VIKANE was escaping from the tarpaulin while the gas was being pumped into the structure at 3318 Shamrock on July 24, 1991. Inspector Bargen took photos of the fumigation tent as it was in place at 3318 Shamrock on the day in question, July 24, 1991 and it depicts the condition of the tarpaulin and the improper signs that were utilized by Respondent on that jobsite. The owner of the property called Petitioner's office and Inspector Bargen visited the site on July 24, 1991. It is undisputed that Respondent alerted the homeowner to call Petitioner who in turn dispatched Inspector Bargen to the site based on instructions from Respondent that he alert the Department of the on-going problems that he was having with his employer, Pinellas Termite and Pest Control, Inc. Respondent admits that the manner in which the fumigation occurred on July 24, 1991 at 3318 Shamrock in Tampa was improperly performed. However, Respondent offers that he did as much as he could under the circumstances to comply with the Petitioner's rules and regulations and the labelling instructions for the fumigant VIKANE as set forth by the manufacturer. Respondent related numerous occurrences whereby he attempted to convey the importance of carrying out the proper instructions to his employer without success. As a result, Respondent sought other employment and is no longer employed as a certified operator with Pinellas Pest Control. Finally, while Respondent recognized that a certified operator is responsible for the overall operations of the fumigation projects that he is in charge of, he relates that instructions were given to office personnel at Pinellas Pest Control to advise the Petitioner of the 24 hour notice prior to the date of fumigation and he was under the impression that timely notice was forwarded to Petitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order imposing an administrative fine against Respondent in the amount of $250.00 payable to Petitioner within 30 days of the entry of the Petitioner's final order.1/ DONE and ENTERED this 29 day of May, 1992, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29 day of May, 1992.
The Issue Whether 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 =================================================================
