The Issue Whether Respondent, Elite Inspectors, LLC, d/b/a EliteInspectors.com, engaged in the unlicensed practice of pest control, in violation of sections 482.071, 482.161, and 482.165, Florida Statutes (2015)1/; whether Respondents, Tamer Kekec and Stephen Franco, engaged in pest control services in violation of sections 482.071, 482.165, and 482.191; and, if so, what penalties should be imposed against Respondents.
Findings Of Fact The Parties Petitioner, Department of Agriculture and Consumer Services (Petitioner or Department), is the state agency charged with administering the Structural Pest Control Act, chapter 482, Florida Statutes (the Act). Respondent, Elite Inspectors, LLC, d/b/a EliteInspectors.com (Elite), is a Florida Limited Liability Company, whose principal place of business is 9951 Atlantic Avenue in Jacksonville, Florida. Elite is a residential structural inspection company offering home inspections in northeast Florida and southeast Georgia. Elite has never been licensed by the Department to engage in the business of pest control, pursuant to section 482.071. Respondents, Tamar Kekec and Stephen Franco (the Individual Respondents), are the managers, and only members, of Elite, which was formed in 2004. Pest Control Activities Petitioner is authorized to issue licenses to qualified businesses to engage in the business of pest control in this state. See § 482.071(1), Fla. Stat. Petitioner is likewise authorized to issue employee identification cards to persons employed by licensees to perform pest control services. See § 482.091, Fla. Stat. It is unlawful for any person, partnership, firm, corporation, or other business entity to engage in the unlicensed practice of pest control as that term is defined in section 482.021(22). See § 482.165(1), Fla. Stat. "Pest control" is broadly defined in section 482.021(22) to include: (b) The identification of or inspection for infestations or infections in, on, or under a structure, lawn, or ornamental; * * * (e) The advertisement of, the solicitation of, or the acceptance of remuneration for any work described in this subsection, but does not include the solicitation of a bid from a licensee to be incorporated in an overall bid by an unlicensed primary contractor to supply services to another. Thus, both the conduct of wood-destroying organism (WDO) inspections, and advertising for the conduct of WDO inspections, are “pest control” activities regulated by the Act. Section 482.191(1) makes unlawful the advertisement of pest control services except as authorized under chapter 482. Absent limited circumstances not applicable here, persons or entities engaging in such advertisement must be licensed by Petitioner to practice pest control. Petitioner is further authorized to take disciplinary action against licensees and identification cardholders, pursuant to section 482.161, and to issue fines against persons who engage in the unlicensed practice of pest control, pursuant to section 482.165. WDO Inspections by Elite Prior to April 10, 2014 Between January 3 and April 10, 2014, Elite, through its member Mr. Franco, performed 99 WDO inspections, in addition to residential structural inspections, for its customers. During that timeframe, Elite billed its customers $6,850.00 for WDO inspections performed by Mr. Franco. During that same timeframe, Mr. Kekec performed 49 WDO inspections, in addition to residential structural inspections for Elite customers, billing them a total of $6,290.00. All customer payments for WDO inspections conducted by the Individual Respondents were deposited into Elite’s business banking account with BBVA Compass Bank. DL and the Individual Respondents Florida Quality Services, Inc., d/b/a DL (DL), is a Florida corporation licensed to engage in the business of pest control, and whose business address is 7008 Bayard Road, Ft. Pierce, Florida. William R. Miles is DL’s president and holds a pest control operator’s certificate, pursuant to section 482.111. In the language of the licensing statute, Mr. Miles is the Certified Operator in Charge (COIC) at DL. Every employee who performs pest control for a licensee must have an identification card. See § 482.091(1)(a), Fla. Stat. On April 5, 2014, Mr. Miles applied to Respondent for pest control employee identification cards for Respondents Kekec and Franco. In the application, Mr. Miles stated that the Individual Respondents would begin conducting WDO inspections for DL on April 22, 2014. The Individual Respondents signed a portion of the application certifying that they were not “currently employed by any other pest control licensee.” They also certified that they were previously employed by another unnamed licensee with a termination date of April 21, 2014. Mr. Kekec was “employed” by a number of pest control companies concurrent with his operation and management of Elite, including FK Pest Control from January to March 2014, DL Pest Control from June 2011 to December 2013, CS Pest Control from April 2009 to May 2011, TI Pest Control for an unspecified period, and A1 Pest Control from May 2005 to October 2006. Curiously, all these companies had the same business address as DL--7008 Bayard Road, Ft. Pierce, Florida.2/ The Individual Respondents were issued pest control employee-identification cards by the Department on April 10, 2014, identifying them as employees of DL. In August 2014, DL applied to renew its license for the 2014-2015 license year, listing the Individual Respondents as employees to be issued identification cards as WDO inspectors for DL. DL and Respondent Elite Following issuance of employee-identification cards to the Individual Respondents, Elite continued to conduct WDO inspections, as well as residential inspections, for its clients, and bill those clients for WDO inspections. All payments received by Elite from its customers for whom it conducted WDO inspections were deposited into Elite’s business bank account. Between January 3 and December 31, 2014, Elite conducted over 300 WDO inspections for its customers, billing them in excess of $48,000 for said inspections. Elite continued to conduct WDO inspections for its customers, bill its customers for those WDO inspections, and accept payment for those WDO inspections, in 2015 as it had in 2014. Elite obtained customers through its website, and through referrals from both previous customers and real estate agents. Elite’s customers scheduled their home and WDO inspections directly with Elite through Mr. Kekec or Mr. Franco. Elite set the price per inspection based upon the size, age, and the type of construction of the customer’s property. Elite provided the ladders, flashlights, screwdrivers, extension probes, and, with the exception of a short period in 2015, the vehicle, used by the Individual Respondents to conduct WDO inspections. When Elite did not provide the vehicle for a brief period in 2015, Elite used a vehicle personally owned by Mr. Kekec. Elite also paid the fuel cost to travel to and from inspections of customer properties, which is Elite’s only operating expense. After issuance of employee-identification cards to the Individual Respondents, Elite entered into an arrangement with DL by which Elite would pay DL $38 for each WDO inspection conducted by the Individual Respondents. In turn, DL paid the Individual Respondents $10 for each WDO inspection they conducted. For the 2014 tax year, DL paid Mr. Kekec $1,160 and issued him a W-2 wage and tax statement. That same year, DL paid Mr. Franco $1,130 and issued him a W-2 wage and tax statement. For each WDO inspection conducted, the Individual Respondents prepared and signed a WDO inspection report on a form required by the state. Each inspection report listed DL as the inspection company. Each report was reviewed by Mr. Miles after-the-fact in his office in Ft. Pierce. Mr. Miles testified that he provided constructive criticism via email once a month to his WDO inspectors regarding completion of the reports. However, if an inspector had completed inspection reports for three consecutive months, Mr. Miles suspended monthly review of their reports and only conducted “spot checks.” Respondents introduced no document to evince review and criticism of any report completed by either Mr. Kekec or Mr. Franco. Whether DL provided ongoing training in WDO inspections to the Individual Respondents was a contested issue at hearing. Respondents attempted to introduce a composite exhibit consisting of two manuals, two posters of termites, and a “flip-book” produced by University of Florida. When asked whether DL provided the manuals to Mr. Kekec, he testified, “[W]ell, the last version of the manuals, I believe it was provided in 2013, but I think there was four or five different versions of it. It’s been updated over the years.” The evidence was not clear whether DL provided the manuals to the Individual Respondents or they were obtained by other means. Even if the manuals were provided by DL to the Individual Respondents, there is insufficient evidence to find that DL provided any ongoing relevant training to the Individual Respondents. The parties stipulated that the Individual Respondents met the training requirements to qualify to be identification cardholders. The only equipment issued to the Individual Respondents by DL for their use in conducting WDO inspections was a magnifying glass. Elite Website During all times relevant hereto, Elite maintained a website whose address was www.eliteinspectors.com. Elite noted “WDO Inspections” as one of its services and areas of expertise. Under “About Us” on its website, Elite stated, “In addition to home inspections, we do . . . wood destroying organism (termite) inspections (performed by DL employees).” With regard to WDO inspections, the website included the following: Our inspectors are State Certified WDO inspectors with several years of experience and meet all of the Florida continuing education requirements. We perform the WDO inspection while performing the home inspection so one additional step can be eliminated, which saves time and money. WDO inspections are performed by DL employees. In the “Inspector Biographies” section, the website reported that Mr. Franco was a “Certified Pest Operator- Termite” and that Mr. Kekec was “a licensed WDO inspector under DL pest services.” At final hearing, Mr. Kekec was unable to identify any reason why Elite would want to identify Mr. Franco to its customers as a licensed pest control operator. The website did not identify what DL was or its relationship with either Elite or its managers, Mr. Franco and Mr. Kekec.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order finding: Respondents, Elite Inspectors, LLC, d/b/a EliteInspectors.com, Tamer Kekec, and Stephen Franco, violated sections 482.071(1) and 482.165(1), by engaging in the business of pest control in 2014 and 2015 without a license from the Department, and impose an administrative fine of $4,500 against the Respondents, jointly; Respondent, Elite Inspectors, LLC, d/b/a EliteInspectors.com violated section 482.161(1)(h), by engaging in misleading advertising relating to pest control, and issue a warning letter thereto; and, Respondents, Tamer Kekec and Stephen Franco, violated section 482.091(2)(a), by conducting WDO inspections in 2014 and 2015 as independent contractors to DL, and revoking the Individual Respondents’ identification cards, pursuant to section 482.161. DONE AND ENTERED this 22nd day of March, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 2016.
Findings Of Fact 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 =================================================================
Findings Of Fact After working for other exterminating companies since 1970, respondent Raul O. Gonzalez joined with his wife and a Mr. Zwass to form Nationwide Exterminating Company, a Florida corporation organized originally as a vehicle for Mr. Gonzalez's extermination business but eventually also employing roofers. When respondent and Mr. Zwass came to a parting of the ways, respondent decided to form his own company. On January 20, 1978, he wrote petitioner that he was "resigning all duties with [Nationwide Exterminating Company) as of Jan 30 1978," petitioner's exhibit No. 1, and requested cancellation of his Nationwide Exterminating Company identification card, effective January 30, 1978. On March 8, 1978, petitioner received respondent's application for a pest control business license for Nationwide Professional Enterprises, Inc. (NPE), but returned the application to respondent for his signature. Petitioner received the application a second time on March 14, 1978, and issued a pest control business license for NPE to respondent on March 17, 1978. Between January 31, 1978, and March 16, 1978, inclusive, respondent undertook 12 assignments for Target Pest Control (Target). Charles M. Kirby, Target's proprietor, holds a certified fumigator's license but prefers that somebody else do fumigation for Target, and had regularly subcontracted this work to Nationwide Exterminating Company. After respondent decided to leave Nationwide Exterminating Company, he told Juan Espinoza, an employee of Target, that he could not continue fumigating for Target under the authority of Nationwide Exterminating Company's license. Either Mr. Kirby or Mr. Espinoza was present for the discharge of fumigant at each of the dozen jobs respondent performed for Target during the period January 31, 1978, to March 16, 1978. The Dade County Department of Public Health got no written notice that any of these jobs were to be performed. Signs required to be posted at the fumigation sites bore Target's name. Target made no application for an identification card for respondent and respondent did not suggest that this be done. Except for the work done for Target, respondent did no pest control work from January 31, 1978, to March 16, 1978, with the possible additional exception of a job at 2881 East 9th Avenue on January 31, 1978. Respondent's letter to petitioner of January 20, 1978, was written on stationery whose letterhead reads "Nationwide Termite and Roofing." Petitioner's exhibit No. 1. Petitioner had earlier received correspondence from respondent in an envelope, postmarked October 6, 1977, indicating the sender was "Nationwide, Inc. Termite & Roofing Div." Petitioner's exhibit No. 2. This name has not been registered in petitioner's records. D. B. Lieux saw two of respondent's trucks marked "Nationwide Pest Control" on March 20, 1978. The trucks were originally marked "Nationwide Exterminating Company." Even before organizing NPE, Mr. Gonzalez felt a need to change the name of the original corporation because of the confusion that might arise for customers writing checks to Nationwide Exterminating Company as payment for work on their roofs. As a result, Mr. Gonzalez instructed Nationwide Exterminating Company's bank to cause its records to reflect additional names under which the Company might do business. Mr. Larry J. Lancaster, an employee of the Dade County Department of Public Health familiar with pest control companies in Dade County, is unaware of any other such company with the word "Nationwide" in its name and was not misled by receiving an envelope indicating the sender's name was Nationwide Termite and Roofing, Inc. Mr. Gonzalez never used any name with the intent to mislead. On the afternoon of March 17, 1978, D. B. Lieux, at that time an entomology inspector in petitioner's employ, visited the home of Juan Martinez, which respondent and his employees had covered with a tarpaulin tent. The house was ringed with sand-filled vinyl-skinned cylindrical "snakes" lying atop the tarpaulin so as to prevent the escape of fumigant. Such snakes were also placed on the roof of the house. It was a very windy day. To prevent the edges of the tarpaulin from flapping, the portion outside the circle formed by the snakes was folded houseward over the snakes and weighted down with miscellaneous objects. Mr. Lieux returned to the Martinez residence the following day and found clearance notices posted at the front and rear entrances to the house but not at either side door. The clearance notices indicated that the premises had been found safe for human occupancy at nine o'clock on the morning of March 18, 1978, but forbade entry until five o'clock in the afternoon of the same day. This form of clearance notice is used by 10 or 15 exterminating companies in Dade County alone. While on his way to work, on April 12, 1978, Mr. Lancaster noticed one of respondent's tents over a building near Mr. Lancaster's own residence. He noticed three holes in the tarpaulin on the west side of the building and undated warning signs posted on the premises. When Mr. Lancaster arrived at his office at the Dade County Department of Public Health, he checked to see whether the Department had received a "fumigation notification" with respect to the building over which respondent's tent had been draped, but found none. Towards the middle of the day, Raymond J. Brooks, vice-resident of NPE, received a telephone call from the Dade County Department of Public Health. As a result Mr. Brooks went to the site and taped up the holes in the tarpaulin. Later in the afternoon, Mr. Brooks returned with Mr. Gonzalez who also inspected the tarpaulin, before releasing fumigant into the building. At that time, Mr. Brooks filled out the warning notices that had already been posted. Tarpaulin tents like those respondent uses may cost $475.00 and fumigators commonly use masking tape to repair tears in the fabric. Richard Wayne Strait and Edward J. Stys, like Mr. Lancaster, had responsibility for handling "fumigation notifications" received by the Dade County Department of Public Health. Fumigators are supposed to furnish the Department written notice of their intention to fumigate a building the day before the job is done, allowing Department employees opportunity to make spot checks to enforce compliance with safety regulations. In practice, a notice received the same day as the job was to be done was not marked late, and fumigators commonly telephoned notice, only submitting a written "fumigation notification" after the job was done. Although Messrs. Lancaster, Strait and Stys did not remember getting such telephone calls from anybody on behalf of NPE or Nationwide Exterminating Company, other employees of the Dade County Department of Health sometimes take these telephone messages from fumigators. Mr. Brooks could not remember a single time that he had been in respondent's office and learned of plans to fumigate that he had failed to notify the Department of Health by telephone, but conceded that he was not always in respondent's office. In February of 1978, the Dade County Department of Health received a group of respondent Gonzalez's "fumigation notifications" for January jobs in an envelope that was not postmarked. After discharging a secretary in January of 1978, respondent discovered "fumigation notifications" for jobs that had already been done sealed in envelopes which had never been sent.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent Gonzalez's pest control operator's certificate and his special identification card for five (5) days. DONE and ENTERED this 1st day of December, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Morton Laitner, Esquire 1350 N.W. 15th Street Miami, Florida 33125 William J. Swink, Esquire 2915 S.W. 13th Street Miami, Florida 33145
The Issue Whether or not the Petitioner, Kenneth F. Feathers, d/b/a Feathers Exterminating Company, is entitled to the renewal of an emergency pest control certificate in accordance with the terms and conditions of Subsection 482.111(10), Florida Statutes.
Findings Of Fact This cause comes on for consideration based upon the Respondent, State of Florida, Department of Health and Rehabilitative Services' refusal to renew the emergency pest control certificate of Kenneth F. Feathers, d/b/a Feathers Exterminating Company. On November 6, 1978, a representative of the Respondent wrote to the Petitioner and indicated the basis for denying the renewal request, after which the Petitioner requested a formal hearing pursuant to Section 120.57, Florida Statutes. The testimony in the course of the hearing revealed that the Petitioner, Kenneth F. Feathers, d/b/a Feathers Exterminating Company, is involved with the structural pest control business. Kenneth F. Feathers, the licensee, is the holder of a special identification card under the authority of Section 482.151, Florida Statutes. He does not hold a pest control operator's certificate as described in Section 482.111, Florida Statutes. In the years 1977 and 1978 the Petitioner had listed at various times, the names of Wayne Neal Pearce and Michael D. Brennan as being the certified pest control operators in charge of all categories of pest control being carried out by Feathers Exterminating Company. In fact, Pearce and Brennan, though certified as pest control operators and listed by the Petitioner as being the certified operator in charge of the Feathers Exterminating Company, were in fact employed in Gainesville, Florida, in other primary occupations which they worked contemporaneously with the work day of the Feathers Exterminating Company. Under the arrangement they were merely on call and never actually performed supervisory duties for the Petitioner. Mr. Pearce was a police officer with the Gainesville, Florida, Police Department and subsequently opened up his own pest control business in Gainesville. Mr. Brennan was and is primarily employed by Clay Electric Company. When these discoveries were made by employees of the Respondent, the Petitioner was advised that neither Mr. Pearce nor Mr. Brennan could serve in the capacity as certified pest control operators for the Feathers Exterminating Company, in view of the fact that these individuals were not employed on a full-time basis by Feathers Exterminating Company, in the sense of being in charge of all categories of pest control. After these discoveries on the part of the Respondent, the Petitioner requested an emergency pest control certificate under authority of Subsection 482.111(10), Florida Statutes, and this emergency certificate was granted. That initial request occurred sometime in October, 1978. On October 28, 1978, the Petitioner requested a renewal of the emergency pest control certificate which brought about the denial which is the issue in this hearing. At present and during the time for which the original emergency certificate had been granted and a renewal requested, the Petitioner does not and did not have a certified pest control operator in charge of the categories of pest control conducted by Feathers Exterminating Company. Both Pearce and Brennan have terminated their involvement with the Feathers Exterminating Company, even in an advisory capacity, and the Petitioner's efforts at arranging for a replacement certified pest control operator have not been successful. This has been the outcome notwithstanding the long-term efforts on the part of the Respondent, beginning in 1975, to assist the Petitioner in complying with the requirements for having a certified pest control operator in charge of the Petitioner/licensee's business activities conducted under Chapter 482, Florida Statutes. In view of these facts, the Petitioner is not entitled to a renewal of the emergency pest control certificate. Subsection 482.111(3), Florida Statutes, states: "Each category of each licensee shall be in the charge of a certified operator who is certified for the particular category..." Under the current statement of the law found in Section 482.152, Florida Statutes (1978), whose effective date was October 1, 1978; for the business activity of the licensee to be in the charge of a certified operator, it is necessary for that certified pest control operator to fulfill the duties set forth in this section. Section 482.152, Florida Statutes (1978), contained the following language: "Duties of certified pest control operator in charge of pest control activities of licensee.--A certified operator in charge of pest control operations of a licensee shall be a Florida resident whose primary occupation is in the structural pest con trol business, who is employed on a full time basis by the licensee, and whose principal duty is the personal supervision of and participation in the pest control operations of the licensee as the same relate to the following: ..." It can be seen by the language set forth in this Section 482.152, Florida Statutes, that neither Pearce nor Brennan would qualify as certified pest control operators for the benefit of the Petitioner, because they either do not have their primary occupation in the structural pest control business, and/or are not employed on a full-time basis by the Petitioner and do not have their principal duties as one of personal supervision and participation in the pest control operations of the Petitioner, even if those individuals consented to continue their prior arrangement with Feathers. Nevertheless, the Petitioner might be entitled to an emergency certified pest control operator's certificate if provisions of Subsection 482.111(10), Florida Statutes, could be satisfied; however, the Petitioner has failed to demonstrate that he has any reasonable expectation of hiring a certified pest control operator who may fulfill the requirements of Section 482.152, Florida Statutes, in terms of the duties incumbent on a certified operator through whom the licensee intends to transact business in accordance with the requirements of Section 482.111, Florida Statutes. In addition, the testimony clearly demonstrated that the Petitioner at one time was using the certificates of Pearce and Brennan to secure or keep his license at a time when Pearce and Brennan were not in charge of the pest control activities, and the Petitioner was thereby in violation of Subsection 482.121(2), Florida Statutes, which violation in turn would constitute a sufficient ground for denying the renewal of the emergency pest control operator's certificate. This ground for denial is authorized by Subsection 482.161(1), Florida Statutes, which states that a license renewal may be denied on the basis that a Provision of Chapter 482, Florida Statutes, has been violated. In summary, the renewal of the emergency certified pest control operator's certificate should be denied because the Petitioner has failed to give sufficient reasons for such renewal and because the Petitioner, by violating Subsection 482.121(2), Florida Statutes, has given the Respondent an affirmative ground for such a denial under provision Subsection 482.161(1), Florida Statutes. (At the conclusion of the hearing the Petitioner indicated his intention to stand for an examination under Chapter 482, Florida Statutes, which would allow him to obtain a pest control operator's certificate that would allow him to operate his business in those categories which he desired to be employed in. On March 22, 1979, the attorney for the Respondent informed the undersigned that Mr. Feathers had successfully passed those portions of the examination which would allow him to obtain a certificate to operate in the areas of lawn and ornamental pest control and general household pest control. On this occasion, Mr. Feathers was not successful in passing the portion of the examination involved in termite pest control. It would therefore appear that the Petitioner is entitled to a certificate to operate in the fields of lawn and ornamental pest control and general household pest control, after the payment of the appropriate fees. Under these circumstances, the Petitioner would not be entitled to operate in the area of termite pest control in the sense of being the holder of such a certificate and in keeping with the undersigned's impression of this case, the affect of this Recommended Order would be a recommendation that the Petitioner not be granted a renewal of his emergency pest control operator's certificate in the termite pest control specialty.)
Recommendation It is recommended that the Petitioner's request for the renewal of his emergency pest control operator's certificate be DENIED. DONE AND ENTERED this 22nd day of March 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1979. COPIES FURNISHED: Mr. Kenneth F. Feathers Feathers Exterminating Company 1527 Northeast 8th Avenue Ocala, Florida 32670 Joseph E. Hodges, Esquire District III Legal Counsel Department of Health and Rehabilitative Services 2002 Northwest 13th Street Gainesville, Florida 32601
The Issue Whether Respondents committed the violations set forth in the Administrative Complaint, as amended, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is an agency of the State of Florida charged with regulating the operation of the pest control industry pursuant to Section 482.032, Florida Statutes. At all times material to this case, Joyce Beard was the Certified Operator in Charge (COIC) of Atlas Termite and Pest Control Of Cantonment, Inc. Counts 1 and 2 Counts 1 and 2 of the Administrative Complaint allege as follows: Count 1 During an inspection on July 11, 2003, the Department found that Atlas Termite and Pest Control of Cantonment operated an unlicensed business location at 9100 Hamman Avenue, Pensacola, at which sales solicitations were made and remuneration received. This is a violation of Chapters 482.071(1) and (2), Florida Statutes. Count 2 During an inspection on July 11, 2003 the Department found that Atlas Termite and Pest Control of Cantonment phone numbers terminated in an unlicensed location as 9100 Hamman Avenue. This is a violation of Chapter 5E-14.142(3)(b). Atlas Termite and Pest Control of Cantonment, (hereinafter Atlas) is physically located at 4141 Pine Forest Road in Cantonment, Florida, and is listed at this address on its application for business license filed with the Department. Cantonment is located in Escambia County near Pensacola, Florida. Two other pest control companies, Environmental Security of Okaloosa, Inc., and Killingsworth Environmental, Inc., a/k/a KEFL, Inc., are located at the same address. On July 11, 2003, the Department conducted an inspection of a company called Home Services Marketing and Management, LLC, (hereinafter Home Services) which is located at 9100 Hamman Avenue in Pensacola. Clifford Killingsworth and Clinton Killingsworth2/ are the managers of Home Services. The record is unclear as to whether Atlas ever entered into any written agreement with Home Services. However, Home Services did perform certain services for Atlas. Atlas has a full-time employee, Angie Foster, who answers the phones and performs administrative tasks at 4141 Pine Forest Road. When Ms. Foster has to leave the office, the calls to Atlas may be forwarded to Home Services. When the phone call is forwarded, the telephone number for Atlas listed in the local telephone directory terminates at Home Services. Home Services also answers calls for Environmental Security of Okaloosa, Inc. and Killingsworth Environmental, Inc. Home Services employees do not make "cold calls" to new customers. They contact customers with active accounts to set up renewals. They also contact homeowners whose homes were treated during construction and whose initial accounts were with the builder of the home. If a new customer calls, a Home Services employee answers the call, gets the contact information from the potential new client, and then calls the appropriate technician who would then call or visit the potential customer. The appropriate technician is generally determined by the geographic location of the caller. While a Home Services employee might send a preprinted contract to the technician to take to the job site or mail a contract to a customer, Home Services does not enter into any contract to perform pest control services. No pest control trucks or chemicals are stored at Home Services. Home Services also has a payment processing component. Home Services sends bills to pest control customers which instruct customers to make out the check to the appropriate pest control company, not to Home Services. Payments from customers for pest control services are deposited into the account of the appropriate pest control company, including Atlas when appropriate. No evidence was presented that 9100 Hamman Avenue is an advertised permanent location of Atlas from which business was solicited, accepted, or conducted. After the July 11, 2003, inspection of Home Services, Clinton Killingsworth, a manager of Home Services, took steps to get Home Services licensed as a pest control company. He did this because it was his understanding that the Department took the position that Home Services was in the business of practicing pest control services. He employed his brother, Daniel Killingsworth, to be the required licensed person in charge, and contacted several insurance companies to obtain the required insurance. He had difficulty in obtaining the required insurance since Home Services does not offer pest control services. Despite these difficulties, Home Services was issued a license in December 2003. Count 4 Count 4 of the Administrative Complaint reads as follows: During inspections conducted on July 11, 2003 and July 16, 2003, the Department found that service vehicles are marked with unregistered fictitious name-Atlas Environmental Pest and Termite Control. This is a violation of Chapter 5E- 14.142(3)(a), Florida Administrative Code. During inspections, Department investigators saw trucks with the logo, "Atlas Environmental Pest and Termite Control" on the side of the trucks. When shown a photograph of those trucks, Ms. Beard believed the trucks to be Alabama trucks, not Florida trucks. Ms. Beard is also licensed in Alabama although the name of the company in Alabama is not clear from the record. The word "Environmental" is not in the name of the company, Atlas Termite and Pest Control of Cantonment, licensed to do business in Florida. Many of the trucks used by Atlas at the time of the inspection had defective brakes and transmission problems. Both Florida trucks and Alabama trucks had these problems. Many of the trucks were recalled and were taken off the road. According to Ms. Beard, the trucks shown parked in one of the photographs were parked waiting until they would be repaired. Alabama trucks were parked in the same area as the Florida trucks that were being recalled. However, when asked why a truck with Atlas Environmental Pest and Termite Control was parked at 1830 Galvez Road in Gulf Breeze, she responded that it was being used to transport chemicals to a man in that area. One photograph taken by an investigator clearly shows a man inside one of the trucks standing next to a large barrel inside the truck. The word "Environmental" is clearly written on the truck as part of the company logo. Atlas has sold some of their trucks. When asked at her deposition taken on December 9, 2004, whether Atlas still owned any trucks, Ms. Beard responded, "I believe we have a couple of smaller ones. I don't know that we have any of the larger ones left that are not up for sale." Unnumbered Count of Amended Administrative Complaint The Amended Administrative Complaint contains one additional count which reads in pertinent part as follows: Joyce Beard does not perform the duties of a certified operator as set forth in Section 482.152, Florida Statutes. There is only one other employee of Atlas and her duties are limited to clerical duties in the office. Virtually all of the actual pest control treatments done in the name of Atlas are performed by the company by which they are employed, not Ms. Beard. Atlas is in fact a shell company consisting of Ms. Beard who does not work full time and a clerical employee. She is not in charge of the pest control activities of the licensee, Atlas in the categories covered by her certificate. This constitutes a misuse of her certificate by Ms. Beard and also by Atlas, which is a violation [sic] Section 482.121, Florida Statutes. The Amended Administrative Complaint also references Section 482.152, Florida Statutes. Atlas has only two employees: Joyce Beard and Angie Foster. In addition to being Atlas' COIC, she is Atlas' only corporate officer, serving as president, secretary, and treasurer. Ms. Beard has been in the pest control business for over 30 years. Atlas does not employ any pest control technicians. Atlas subcontracts with Killingsworth Environmental, Inc., a/k/a KEFL, to perform the actual pest control services. The employees of KEFL actually go out into the field to perform the jobs that are subcontracted by Atlas to KEFL. The last time Ms. Beard performed pest control treatment was approximately 1999 or early 2000. However, she "goes behind them a lot" to check to see that the work has been done. Ms. Beard has a physical disability that interferes with or prevents her from doing pest control work. Her disability impedes her ability to climb stairs, work all day without a nap, and maintain her equilibrium. She acknowledges that she is "not as sharp as she used to be." Subcontractors for Atlas primarily provide treatment for residential customers, and some commercial customers. Atlas presently does not accept new customers, but services current customers under contract. Ms. Beard lives across the street from the business location of 4141 Pine Forest Road. She has the ability to keep in communication with technicians out in the field through a computer, fax machine, and by using mobile phones which are equipped with radios and cameras. Technicians of the subcontracting company carry radios and phones with cameras on them on which a picture can be transmitted to her on her mobile phone or via the Internet. Ms. Beard's level of participation and supervision can best be described in her words: Q: Are you currently in charge of all of the business activities of Atlas Termite and Pest Control of Cantonment, Inc.? A: Yes. Q: Are you currently a full-time employee of Atlas Termite and Pest Control of Cantonment, Inc.? A: Yes. Q: Have you been a full-time employee of Atlas since you've become a CPO? A: Yes. Q: Is your employment with Atlas your primary occupation? A: Yes, absolutely. Q: Since your certification of Atlas CPO, has your employment with Atlas always been your primary occupation? A: Yes, absolutely. Q: Have you always or do you now personally supervise and participate in the pest control activities of Atlas regarding the selection of the proper chemicals for particular pest control work performed? A: I did do all of that when there was nobody doing the work except strictly Atlas employees. Now that it is subcontracted out, I supervise, but I'm not always the primary one to make that determination. I can do it, but I have no need to do it. Q: If Atlas had subcontracted the job to another company, who is the CPO then that would be in charge of the chemical side of the whole thing? A: Whoever is the CPO with that company. And I might add that, you know, I don't deal with anybody that's---except CPO's with expertise in a lot of different fields including building construction and biology and chemistry. And they're not just simply CPO's. They are degreed professionals with the expertise to do it. Q: Let me ask you: Have you always and do you now personally supervise and participate in the pest control activities of Atlas regarding the safe and proper use of pesticides? A: Well, there again, I have in the past entirely. I could in the future, but I do not presently do that because that is passed on to the subcontractor. Q: Atlas has employees, doesn't it? A: Yes. Q: But presently it doesn't have any employees that apply pesticide? A: No. Q: During the time that Atlas had employees that applied pesticide, did you supervise and participate in the training regarding the correct concentration in the formulation of those pesticides? A: Yes, I did absolutely every day. Q: And secondly, the same question-- A similar question is: Do you now and did you then supervise and participate in the pest control activities of Atlas regarding the training of personnel in the proper and acceptable methods of pest control? A: I did then to the extent of seeing that it was done. It was a lot of times done in a group format with other companies, so I was not always the one who was doing the presentation. Although, the presentation was done by people who were sanctioned by the Department, and then I do it entirely for Atlas myself. Although they can't get their CPU's [sic] from me, but we held training sessions and so forth. At the present time, I do not because I'm not over those employees. Q: What are some of the ways that an employee of yours at Atlas could get their appropriate, proper and acceptable training, I guess you would call then the CEU's? A: If they were an employee of Atlas? Q: Yes. A: You can get them over the Internet easily now.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That a final order be entered revoking the certificate of Ms. Beard and the license of Atlas. DONE AND ENTERED this 25th day of May, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 2005.
The Issue The issue posed herein is whether or not the Department of Health and Rehabilitative Services' revocation of Respondent's pest control business license, operator's certificate and employee's identification is warranted based on conduct set forth hereinafter in detail as set forth in the Petitioner's revocation notice dated June 4, 1979. 1/
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the arguments and briefs of counsel and the entire record compiled herein, the following relevant facts are found. Pursuant to Petitioner's Notice of Violation dated June 4, 1979, the administrative proceeding herein commenced on December 6, 1979, on twenty-six of the thirty-nine specific violations alleged to have been committed by Respondent. The specific alleged violations are as set forth below based on a separation by complainant or victim with the alleged date of violation: On February 28, 1977, it is alleged that Respondent and/or its agents, performed pest control services for Ms. Ethel Atkinson and Ms. Loree Atkinson, 1903 East Leonard Street, Pensacola, Florida, and violated the following Administrative Code sections and/or statutes: Treated the Atkinsons' residence with fumigant gas, methyl bromide, without notifying in advance, the Escambia County Health Department, in violation of Chapter 10D-55.110(1), Florida Administrative Code. Failed to perform the fumigation of the Atkinson residence in strict accordance with the registered label directions for methyl bromide, in violation of Chapter 10D-55.111(4), Florida Administrative Code. On March 17, 1977, Respondent failed to perform subterranean termite control treat- ment for the Atkinsons, in violation of Chapter 10D-55.142(1)(b), Florida Administra- tive Code. During July, 1978, Respondent's agents and/or employees, Steven R. Foster and Gerald A. Caudill, inspected the Atkinson residence and told them that the home was infested with powder-post beetles and proposed a treatment when no such infestation existed, and thus no treatment was required, which acts constitute violations of Chapter 10D-55.104(4), Florida Administrative Code. Respondent, during times material, failed to apply for and obtain an I.D. card for Steven R. Foster, in violation of Chapter 10D-55.143(1), (2) and (3), Florida Adminis- trative Code. Respondent performed Phostoxin fumi- gation on residences when Phostoxin is not labeled or registered for residential fumi- gation, in violation of Chapters 10D-55.106(1); 10D-55.111(4) and 10D-55.144(1), Florida Administrative Code. Respondent and/or its agents, during times material but particularly during July, 1978, illegally used Phostoxin for fumigation purposes in a residential structure, in vio- lation of Chapter 10D-55.116(2), Florida Administrative Code. During July, 1978, Respondent per- formed Phostoxin fumigation without notifying the Escambia County Health Department, in violation of Chapter 10D-55.110(1), Florida Administrative Code. During July, 1978, Respondent performed Phostoxin fumigation without the knowledge and personal supervision of its certified registered operator in charge of fumigation for Killingsworth, Inc., Elmer Logan, in violation of Chapter 10D-55.108(1) and (2), Florida Administrative Code. Shumpert/Graham Case On April 22, 1977, Respondent performed services for Robert Shumpert and/or R. A. Graham of 109 Harris Street, Pensacola, Florida, by fumigation of their residence at 109 Harris Street, without informing the Escambia County Health Depart- ment, in violation of Chapter 10D-55.110(1), Florida Administrative Code. On or about April 22, 1977, Respondent fumigated the Shumpert/Graham residence with "Vikane" gas in a manner not in accordance with the label instructions, nor were occupants of the residence properly warned of the hazards, in violation of Chapters 10D-55.106(1); 10D-55.110(3); 10D-55.111(4) and 10D-55.144(1), Florida Adminis- trative Code. On or about April 22, 1977, Respondent used Phostoxin for residential fumigation for the Graham/Shumpert residence, in violation of Chapters 10D-55.106(1); 10D-55.111(4) and 10D-55.144(1), Florida Administrative Code. On or about April 22, 1977, Respondent fumigated the Graham/Shumpert Residence with Phostoxin without informing the occupants of the hazards, in violation of Chapter 10D-55.110(3), Florida Administrative Code. During approximately April 22, 1977, Respondent performed a fumigation with Phostoxin without advance notification to the Escambia County Health Department, in violation of Chapter 10D-55.110(1), Florida Administrative Code. During April 22, 1977, Respondent performed a Phostoxin fumigation without the knowledge and personal supervision of its certified operator in charge of fumigation, Elmer Logan, in violation of Chapter10D-55.108(1) and (2), Florida Administrative Code. During May 22, 1978, Respondent per- formed pest control services for Mrs. Ann Boyett of 706 North Lynch Street, Pensacola, Florida, and during the course of such treatment, through its agent and employee, Steven R. `Foster, placed Phostoxin pellets under the Boyett residence for control of powder-post beetles, in violation of Chapter 10D-55.108(1) and (2), Florida Administrative Code. Respondent used Phostoxin in resi- dential fumigation in violation of Chapter 10D-55.106(1); 10D-55.111(4) and 10D-55.144(1), Florida Administrative Code. Respondent, during May 23, 1978, released Phosphine gas during use of Phostoxin. which is highly inflammable and its use in resi- dential structures is illegal pursuant to Chapter 10D-55.116(2), Florida Administrative Code. During May 23, 1978, Respondent performed a fumigation with Phostoxin without informing the Escambia County Health Department, in violation of Chapter 10D-55.110(1), Florida Administrative Code. Respondent, during May 23, 1978, per- formed a fumigation with Phostoxin without informing the homeowner of the hazards, in violation of Chapter 10D-55.110(3), Florida Administrative Code. Respondent, during May 23, 1978, failed to apply for and obtain an employee I.D. card for Steven R. Foster, in violation of Section 482.091(1), (2) and (4), Florida Statutes, and Chapter 10D-55.143(1),(2) and (3), Florida Administrative Code. Based on the foregoing activities, it is alleged that Respondent violated his duties as a certified operator in charge of the pest control activities of a licensee, in violation of Section 482.152(1), (2),, (4), and (5), Florida Statutes. During July 12, 1978, Respondent performed pest control work for John A. Sanders, Jr. , at his residences located at 912, 914 and 916 North 63rd Avenue, Pensacola, Florida. During the course of this treatment it is alleged that Respondent failed to per- form the work in accordance with the label directions of any registered termiticide or by the use of methods and equipment generally suitable and accepted as good industry practice, in violation of Chapters 10D-55.106(1); 10D-55.135(2) and 10D-55.144(1), Florida Adminis- trative Code. Based on the conduct set forth in the paragraph next above, it is alleged that the Respondent violated the duties of a certified operator in charge of pest control activities of a licensee, in violation of Section 482.152(1), (4), and (5), Florida Statutes. The Hinote Case During December 21, 1978, it is alleged that Respondent's agent Wayne Thompson, repre- sented to Ms. Lee Hinote of 1405 East Gonzales Street, Pensacola, Florida, that wood borers were infesting her residence and that treatment was needed, when no such infestation existed and no treatment was required, in violation of Chapter 10D-55.104(4), Florida Administrative Code. Based on the alleged conduct set forth in the paragraph next above, it is alleged that the Respondent engaged in conduct violative of Section 482.152(1), (2), (4), and (5), Florida Statutes. William E. Grimsley, Supervisor, Environmental Health Unit of the Escambia County Health Department, is the person in charge of inspecting and ensuring that within the county no violations of Chapter 10D-55.110(1), Florida Administrative Code, occur. All pest control companies operating in the county, including Respondent, are required to notify the County Health Department when a fumigation is to take place and the approximate time that the "gas" will be released. Fumigation notices are required to be submitted to the Health Department twenty-four hours in advance of the fumigation. Thee Health Department inspects the premises to be certain that the tent is properly sealed, that there is first aid equipment readily available and to generally ensure that the operator is qualified to perform the fumigation Mr. Grimsley recalled having received no fumigation notices from Respondent. Specifically, Mr. Grimsley testified that his office, the County Health Department, received no fumigation notice from Respondent for the Atkinson residence during April of 1977, for the Sumpert residence during times material, or for Ann Boyett's residence during the period of May, 1978. During May of 1978, Mr. Grimsley, through the Escambia County Health Department, received a complaint from the Atkinsons regarding the pest control services performed by Respondent. Mr. Grimsley referred Ms. Atkinson to Mr. William E. Page, Petitioner's agent in the Office of Entomology, Department of Health and Rehabilitative Services. During October of 1978, Mr. William Page and Mr. William Grimsley removed a sample of a white powdery substance found in the Atkinsons' attic. The sample was analyzed by Chris Bush, a chemist employed by Petitioner, who determined that the substance was a residue of Phostoxin. (Petitioner's Exhibits 32 and 40.) The Atkinson residence was treated by Respondent during, April of 1977. As stated, the Atkinsons complained to the Health Department during May of 1978, approximately fifteen months after the treatment. Samples of a white powdery residue found in the attic were analyzed by Petitioner's chemist during. October, 1978, and were determined to be a Phostoxin residue. Respondent and its agents and employees denied treating the Atkinson residence with anything other than Lindane and Methyl Bromide. During late 1978, Messrs. Grimsley and Page visited the residence of Mrs. Ann Boyett of 704 North Lynch Street, Pensacola, Florida. Mr. Page removed two prepac Phostoxin strips from underneath the Boyett residence. Steven Roy Foster (Moneyhun) also known as Steven Roy Foster was employed by Respondent from March of 1978 through July of 1978. Foster was hired by Respondent to perform mechanical work, although he assisted in tapings for fumigations and assisted Respondent's pest control operators. Foster placed two prepac Phostoxin strips under the Boyett residence. Foster was assigned to do the work by Respondent's agent, Frank Ancarrow, and was paid by the Boyetts for the work. (Petitioner's Exhibit 13.) Respondent and its agents, Frank Ancarrow and former employee, Elmer Logan, denied any knowledge, authorization or other assistance in the use of the treatment of residential structures with Phostoxin. Phostoxin is not authorized for the use in residential construction according to its label use restrictions. (Petitioner's Exhibit 12.) Respondent treated the Graham-Shumpert residence at 109 Harris Street, Pensacola, Florida, for subterranean termites and old house wood borers during late April, 1977. The old house wood borers were located in the attic and, according to Respondent, were treated by him using a "spot" fumigation treatment of Methyl Bromide. 3/ Approximately two years later, Mr. Shumpert detected traces of termites again swarming in the kitchen of his home and called Frank Roberts of Roberts Pest Control Company to check on the termites. Mr. Roberts inspected the Shumpert residence and noted what he found in the attic, a residue of suspected Phostoxin. Mr. Roberts engaged the services of a private laboratory in Pensacola, Florida, to analyze the residue of the substance he found in the Shumpert residence. The sample was analyzed and, according to the lab analysis, the residue of the sample was Phostoxin. Gail Thompson, a former employee of the Respondent, testified that he treated the Shumpert residence for termites and that he assisted in taping the house in preparation for the fumigation which was performed by Respondent Billy F. Killingsworth. Respondent testified that he treated the Shumpert house by a "spot" fumigation using Methyl Bromide as a localized treatment to eradicate the infestation which was concentrated on a few joists. Respondent's testimony to the effect that the infestation was localized to a few joists conflicts with the testimony of witnesses William Page, Carlton Layne and John Boitnott, who testified that the damage and infestation was severe and widespread. Based on the extended hiatus between the treatment by Respondent and the inspections by Messrs, Page, Layne and Boitnott, it cannot be concluded that the condition of the premises as found by Respondent, continued unchanged until the subsequent and, of course, more recent visit by the investigating officials. (Petitioner's Exhibit 3.) When the Shumpert residence was treated, it was under contract to be sold by Mims-Snow Realty of Pensacola, Florida. Prior to sale, it was necessary to receive an FHA wood infestation report which admittedly, as testified to by Respondent's secretary and assistant, Joyce Beard, was filed incorrectly using information from another wood infestation report for another property. (Petitioner's Exhibits 6 and 9.) According to that report, Vikane gas was used as a fumigant, which, if used according to the petitioner's licensing administrator, Warren T. Frazier, was not applied in accordance with the label instructions of that fumigant. 4/ On or about July 12, 1978, Mr. John A. Sanders entered into a contract with Respondent for pest control treatment of three houses that he owned on North 63rd Avenue, Pensacola, Florida. (Petitioner's Exhibits 17, 15 and 19.) Respondent contracted to control household pests, fleas, etc. in the Sanders' residences for a total price of $520.00. According to 14r. Sanders, the treatment period lasted approximately twenty minutes and no trenches were dug, no drilling took place and there was no treatment for powder-post beetles contrary to his payment and contract for these services. Mr. Sanders filed a complaint with local and state officials and executed a complaint form. (Petitioner's Exhibits 20 and 21.) Respondent's former employee, Steven Foster, was assigned the task of treating the Sanders' residences. Foster acknowledged that he inadequately and incompletely treated the Sanders' residences for termites and powder-post beetles. Testimony of Warren Frazier, John Sanders and William Page corroborate Foster's testimony to the effect that the treatment was substandard and was not in accordance with the label directions of any registered termiticide. Additionally, the treatment fell below what is generally accepted as good industry Practice. Respondent testified that the Sanders' residences were treated by Carl Heichel. Heichel was unavailable and did not testify in this proceeding. Opal Lee Hinote of 1405 East Gonzalez Street contacted Respondent during December, 1978, for an annual renewal inspection of her residence. Respondent's agent, Wayne Thompson, performed the annual inspection. (Petitioner's Exhibit 27.) Additionally, Respondent's agent, Thompson, represented to Ms. Hinote that old house wood borers were affecting her residence and that treatment was needed. Thompson discussed a treatment price of $175.00, which was reduced, after some negotiation, to $125.00. Ms. Hinote, being suspicious, called Elmer Logan, Respondent's former employee who presently operates Fireman Pest Control, to inspect her premises. Mr. Logan advised Ms. Hinote that there were no wood borers in her house but merely old traces of wood borer activity. Ms. Hinote, still concerned, contacted Petitioner's agent, William Page, who inspected the house and confirmed Logan's report that there was no present wood horer activity to her residence. (Petitioner's Exhibits 28, 29 and 30.) Respondent's position on Ms. Hinote's complaint is that it is difficult to discern whether or not there is active or inactive wood borer activity and that Thompson, being a sales representative only for a short time when he made the inspection, was unable to discern whether or not the activity signs were evidences from old damage by powder-post beetles and wood borers. 5/ Mr. F. R. Du Chanois is Petitioner's supervisor for pest control records and has in excess of twenty-six years experience as an Entomologist. Mr. Du Chanois, who is Petitioner's records custodian, also receives and assigns complaints for investigation. Based on the complaints received about Respondent, Mr. Du Chanois directed an Inquiry to the manufacturer respecting the application of Phostoxin for residential application. Mr. Du Chanois determined and received confirmation that there are presently no registered uses for residential application for Phostoxin fumigations to control wood destroying insects. (Petitioner's Exhibit 42.) According to Du Chanois, the responsibility for obtaining an I.D. card is jointly placed on the operator and the employee. See Section 482.091(1) and (2), Florida Statutes. Billy F. Killingsworth, the certified operator and owner of Killingsworth pest control business, has been in business for approximately eleven years in Escambia County. Respondent has a B.S. degree in Entomology from Auburn University and is certified in all areas of pest control, i.e,. general household pest and rodent control, subterranean termites, lawn and ornamental, and fumigation. According to Respondent, it is very difficult to determine whether powder-post beetles are in an active or inactive status. Respondent uses Lindane as a residual treatment for the eradication of beetles and Methyl Bromide as a fumigant to control beetles, dry wood termites and rodent control. Respondent only uses Phostoxin as a commodity fumigant since it is only labeled for such uses and since it is one-half to two-thirds more expensive than other registered fumigants. Respondent, Billy F. Killingsworth, is the only certified operator within his employ in Escambia County who is registered to use Phostoxin. (Testimony of Billy F. Killingsworth.) According to the worksheets, Tommy Phelps was the card holder assigned to perform the work for the Atkinson job. Respondent performed the fumigation, using oil based Lindane in the attic. Respondent acknowledged that he erroneously issued a termite contract for the Atkinsons. Respondent considers a "spot" fumigation as being superior to a complete or tent fumigation, in that it permits a larger concentration of gas to be infused to the exposed area and is least expensive. Respondent has performed less than ten structural fumigations since he has been in business. (Respondent's Exhibits 4, 5 and 6.) Respondent employed Steven Roy Foster (Moneyhun) to help in repairing hydraulic pumps, refrigeration equipment and to do mechanical and other minor maintenance tasks based on his (Foster's) prior experience. Respondent denied that Foster was assigned to assist or perform fumigations within the short period that Foster was employed by Respondent. Respondent acknowledged that the FHA Wood Infestation Report given to Ms. Graham of Mims-Snow Realty was erroneously issued based on the realtor's rush to sell the property. (Respondent's Exhibit 8.) Respondent performed the fumigation for the Shumpert residence and placed a warning sign on the front and back doors of the house. At the time of the fumigation, the house was unoccupied. Respondent used Methyl Bromide to fumigate the Shumpert residence and had no explanation as to the presence of Phostoxin in the attic of the Shumpert residence. Respondent assigned Carl Heichel to do the termite and beetle treatment for the Boyett residence. (Respondent's Exhibit 9.) Lindane and Heptachloride were used for the treatment. Heichel left Respondent's employ approximately October of 1978. According to Respondent, Heichel was also assigned to perform the work for the Sanders' houses on 63rd Avenue. (Respondent's Exhibit 10.) Respondent testified that he attempted to correct the problems in connection with the Sanders residence but was unable to arrange a mutually convenient schedule to resolve the matter. Wayne Thompson was assigned to perform the pest control treatment for the Hinote residence. Thompson had only been employed approximately six months when he was assigned to inspect the Hinote residence. Respondent noted that it was a mistake not to apply for an I.D. card for Steven R. Foster. He acknowledged that there was no reason not to apply for an I.D. card for Foster; however, the fact that Foster was hired to do mechanical work delayed his decision to apply for or to obtain an I.D. card for Foster. Respondent treated the Shumpert residence using Methyl Bromide which was registered and labeled "Dowfume MC-2". 6/ Respondent acknowledged that it is unlawful to use a registered pesticide in a way which is inconsistent with the label. He also acknowledged that certified operators are charged with the duty of using fumigants in accordance with the registered labels consonant with the structure to be fumigated. (Testimony of Billy F. Killingsworth.) Several of Respondent's former employees who were employed during times material herein testified that they were unaware of any illegal uses of Phostoxin by Respondent and/or its employees. These employees included J. D. White, Sr., of Sterling, Illinois; Gerald Caudill of Evansville, Indiana; Frank Ancarrow; Elmer Logan and Gail Thompson. J. D. White, Sr. , of Sterling, Illinois, was formerly employed by Respondent from June, 1973, through the end of 1974. Mr. White worked for Frank Roberts, a competitor of Respondent during the period July, 1976, through August of 1977. Mr. White was party to conversations between Frank Roberts to the effect that he was; "out to get" Respondent and was privy to conversations with Mr. Roberts to the effect that Roberts had communicated with various Federal regulatory and state agencies to register complaints about Respondent and other competitors in the area. White testified that he was offered money to spray the yards of customers who were on annual contract with Respondent using the wrong chemicals to destroy the grass. Gerald Caudill presently is employed by Economy Pest Control of Evansville, Indiana. He was formerly employed by Respondent from approximately March, 1978, through approximately April of 1979. Caudill did a localized treatment for powder-post beetles for the Atkinson residence on Leonard Street in Pensacola, Florida. Caudill was shown by the Atkinsons, signs of what he viewed to be an active infestation in the attic of the Atkinson residence and advised them that they needed treatment in their attic. Frank Ancarrow, Respondent's sales manager, has been employed in that capacity for approximately four years and has approximately eight years' experience with another pest control company. Mr. Ancarrow is certified in all categories except fumigation. Messrs, Ancarrow and Thompson prepared the Shumpert residence for fumigation. The Shumpert residence was treated by Gail Thompson for subterranean termites and the Respondent fumigated the attic for old house wood borers. Frank Ancarrow was shown the statement given in an affidavit taken by Carlton Layne of the Environmental Protection Agency (EPA) to the effect that Gail Thompson was in charge of the fumigation of the Shumpert residence. Mr. Ancarrow testified that that was a mistake and that Thompson only prepared the house for fumigation. (Petitioner's Exhibits 5 and 26.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, Recommended: That the Respondent's Pest Control Operator's Certificate Number 1306; Respondent's Pest Control Employee Identification Card Numbers 5832 and 5843 and Respondent's Pest Control Business License Number 78 be SUSPENDED for a period of two (2) years. In all other respects, the June 10, 1980 Recommended Order previously entered herein remains unchanged. RECOMMENDED this 7th day of July, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jon W. Searcy, Vsquire Department of IIIS 160 Governmenta] Center Pensacola, Florida 32522 Larry Parks, Esquire Murphy, Beroset and Parks 216 Government Street Pensacola, Florida 32501 Alvin J. Taylor, Secretary Department of IRS 1323 Winewood Boulevard Tallahassee, Florida 32301 ================================================================= STIPULATION TO CONSENT FINAL ORDER =================================================================
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.
