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.
Findings Of Fact At all times pertinent hereto, Joey Collins Pest Control of America, Inc. (Collins Pest Control) was subject to the regulatory provisions of Chapter 482, Florida Statutes, and the pertinent rules adopted by Petitioner, as a business entity licensed by Petitioner to engage in pest control in the State of Florida. At all times pertinent hereto, Eric C. Van De Ven was employed by Collins Pest Control as a pest control operator and was subject to the regulatory provisions of Chapter 482, Florida Statutes, and the pertinent rules adopted by Petitioner. On May 15, 1990, Mr. Van De Ven performed a termite inspection at the residence located at 8411 S.W. 84th Terrace, Miami, Florida, at the request of J. Raul Cosio and Maria F. Trabanco, in connection with their intended purchase of that residence. This work was performed in his capacity as an employee of Collins Pest Control. Mr. Van De Ven prepared, signed, and caused to be delivered to Mr. Cosio and Ms. Trabanco, a written inspection report pursuant to Section 482.226, Florida Statutes. This report was prepared on behalf of his employer, Collins Pest Control, on Collins Pest Control's letterhead. This report, states that visible evidence of Formosan termites was observed on the main beam above the pool deck, that live Formosan termites were observed on the main beam above the pool deck, and that there was visible evidence of damage by Formosan termites. The report also estimates that treating the premises by "tent and soil poisoning" would cost $1,525.00. The report did not include observable damage that had been caused by drywood termites. Mr. Van De Ven had observed this damage, but he did not note this damage in his report because the owner of the premises had been aware of the damage, the damaged area had been treated, and the area had been patched. Mr. Van De Ven recommended to Mr. Cosio and Ms. Trabanco that the owners of the premises should contact Truly Nolen, the company that had treated the premises for drywood termites, to determine whether Truly Nolen would pay for any additional treatment that may be necessary. Mr. Van De Ven erroneously identified a drywood termite as being a Formosan termite. There were no Formosan termites on the premises, and there was no condition that would have warranted the treatment recommended by Mr. Van De Ven. All damage that had been observed by Mr. Van De Ven had been caused by drywood termites. Mr. Van De Ven should have been able to distinguish between evidence of Formosan termites and evidence of drywood termites because of the physical differences between the two types of termites and because of the differences between the damage each type does to an infested area. Mr. Van De Ven was negligent in failing to distinguish between the two types of termites and in recommending the unnecessary treatment. There was no evidence that Mr. Van De Ven deliberately misled his customers or that he was trying to sell unnecessary services. There was no evidence that Mr. Cosio or Ms. Trabanco suffered any damages as a result of their dealings with Respondents. There was no evidence that either Respondent had been previously disciplined by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which: finds that Respondents Eric C. Van De Ven and Joey Collins Pest Control of America, Inc. have violated the provisions of Section 482.226(1), Florida Statutes, by performing the subject inspection in a negligent manner; further finds that said Respondents have violated the provisions of Rule 10D-55.1046(6), Florida Administrative Code, by recommending treatment for Formosan termites where there was no evidence of such infestation; and imposes an administrative fine in the amount of $250 against each Respondent. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of February, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1991. APPENDIX TO RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1, 2, and 10 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 3-9 are rejected as being subordinate to the findings made. The only post-hearing submittal submitted by Respondents was in the form of a letter addressed to the Hearing Officer filed January 28, 1991. This letter contained no proposed findings of fact. COPIES FURNISHED: Karen Miller, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401 Joey Collins Pest Control of America, Inc. 243 N.E. 5th Avenue Delray Beach, Florida 33483 Joseph A. Collins, III Owner Joey Collins Pest Control of America, Inc. 243 N.E. 5th Avenue Delray Beach, Florida 33483 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
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.
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 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
