Findings Of Fact Respondent Charles T. Noegel has been in the pest control business for some sixteen years. In February of 1976, the petitioner Office of Entomology sent all licensees a license renewal application for a license to be effective on March 31, 1976. Petitioner received a check from respondent, but the proceeds thereof were applied to review respondent's pest control operator's certificates. A check sent by respondent during 1975 had been returned for insufficient funds. A pest control business license cannot be issued unless there is evidence of a current operator's certificate in existence. Petitioner did not receive respondent's application or a check for the license which was to be effective on March 31, 1976. In June of 1976, petitioner notified respondent that they needed his application and a check for the renewed license. They also sent him an application form. According to respondent, he did not receive the entire application form. Respondent testified that he telephoned the petitioner's office in Jacksonville on two or three occasions and told a secretary there that he did not have a complete application form. In March of 1977, Mr. Page from petitioner's office called respondent. Respondent was not available and Mr. Page left the message with respondent's answering service that respondent was operating illegally without a license and asked Mr. Noegel to call him. Mr. Page received no reply from this message. According to Mr. Noegel, he received the message but did not receive the name or telephone number of the person who left the message. In April of 1977, petitioner did receive from respondent an application for the renewal of his operator's certificate and a check. Respondent has been delinquent in the past in applying for his license, and various checks have been returned for insufficient funds. Had respondent timely applied and paid for the renewal of his March 31, 1976, license, petitioner would have issued the license to him. By certified letter dated August 10, 1978, petitioner notified respondent that his pest control operator's certificate number 519 was being revoked for failure to comply with Chapter 482 of the Florida Statutes and Chapter 10D-55 of the Florida Administrative Code. Generally, respondent was charged with conducting his pest control business, known as the Seminole-Gator Exterminator, without a license. While more specific charges are contained in the August 10, 1978, letter, petitioner offered no evidence at the administrative hearing to substantiate such specific allegations.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner find that respondent violated Section 482.071(1) by operating his business without a valid license. It is further recommended that respondent's operator's certificate number 519 be suspended for a period of sixty (60) days from August 10, 1978, and that upon the payment of all back license renewal fees, respondent's certificate be reinstated, and respondent be placed on probation for a period of eighteen months. The terms of probation should include the timely renewal and payment of all permits required by petitioner's laws and regulations. Respectfully submitted and entered this 6th day of October, 1978, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1978. COPIES FURNISHED: Charles T. Noegel Entomologist - Manager Seminole Gator Exterminator 1409 Pichard Drive Tallahassee, Florida 32304 Donna Stinson, Esq. Department of HRS 2639 N Monroe Street Suite 200-A Tallahassee, Florida 32304 William J. Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Andrew J. Rogers Director, Office of Entomology Department of HRS Post Office Box 210 Jacksonville, Florida 32231 =================================================================
The Issue As stipulated by the parties (prehearing stipulation filed 9/8/93), this proceeding involves a challenge by Petitioners, James Paul and Frank Hulse, IV, to the Respondent agency's proposed denial of applications to dredge and fill jurisdictional wetlands adjacent to the Banana River in Brevard County in order to construct two house pads with driveways. The issues are whether the applications should be granted and if so, under what conditions.
Findings Of Fact The agency affected by this cause is the State of Florida Department of Environmental Protection, (DEP, or department) 2600 Blair Stone Road, Tallahassee, Florida 32399-2400. The department's file numbers for this matter are 05-187334-4 and 05-187329-4. (Stipulation) Petitioners are James Paul and Frank Hulse, IV. Their addresses are 139 Clearlake Road, Cocoa, Florida 32922 and River Capital, Two Midtown Plaza, 1360 Peachtree Street, Suite 1430, Atlanta, Georgia 30309, respectively. Petitioners own adjoining five acre parcels on Merritt Island, between State Road 3 (Courtenay Parkway) and the Banana River in Brevard County. (Stipulation) Description of Project Site The project site is located at the south end of the southern cell of Mosquito Control Impoundment No. 5 that was constructed in 1958 by the Brevard County Mosquito Control District (BMCD). This cell consists of approximately 60 acres. The impoundment is surrounded by a berm. A ditch (ditch #1) runs in a north-south direction along the west boundary of the impoundment and drains into a canal which runs in an east-west direction along the south boundary of the impoundment. This ditch was excavated to obtain fill to build the berm which is the western dike of the impoundment. The ditch serves as a drainage conveyance for water draining off of the State Road 3. This ditch does not connect into the impoundment. A second ditch runs in a north-south direction inside the impoundment (ditch #2). This ditch dead- ends at the berm that forms the southern boundary of the impoundment and does not flow from the impoundment. Spoil piles line the sides of both of these ditches. A twenty-five-to thirty-foot-wide berm forms the eastern, southern, and northern boundaries of the impoundment and a rim ditch lies inside the impoundment just to the west of the eastern berm. The project site has been severely impacted by the encroachment of upland, exotic and nuisance vegetation. The area between State Road 3 and ditch #1 is vegetated with slash pines, cabbage palms and wax myrtles. The area between ditch #1 and ditch #2, as well as the area immediately east of ditch #2, is dominated by a canopy of wax myrtle and Brazilian pepper. Between the wax myrtle/Brazilian pepper canopy and the rim ditch is an area vegetated by herbaceous wetland vegetation. The berm along the Banana River is heavily vegetated with noxious Brazilian pepper trees. The project site has also been invaded by cattails, primrose willow and Australian pines - all of which are nuisance species. Over the western portion of the project site, the top stratum of vegetation is a canopy of wax myrtle trees and Brazilian peppers. Brazilian peppers also line the spoil piles along the sides of ditch #1 and ditch #2. The Project On October 3, 1990, Petitioners submitted their applications for wetland resource permits to excavate and fill certain areas on their properties for the purpose of constructing a residence on each parcel. The original applications, both under the name of Jimmy Paul, proposed similar activities on Tract 1, which is the Hulse property, and Tract 2, which is the Paul property. After initial preapplication consultation with Don Medellin of the department, Petitioners' agent prepared the first of several permit application proposals. The initial proposed project was to excavate an access channel approximately 1200 feet long by 50 feet wide by 3 feet deep to connect the two properties to the Banana River and to an existing canal. The project included the excavation of a "mitigation" pond overlapping the two properties. The proposed access channel and pond would have involved the excavation of 3.88 acres of wetlands. In addition, it was proposed that 2.23 acres of wetlands would be filled for two house pads and two driveways. Additional proposed mitigation included the removal of the berm which separated the properties from the Banana River. In response to comments from department staff that this original proposal would likely be denied, a revised project proposal was submitted by Petitioners' agent on December 14, 1990. The revised project eliminated the access channel and the pond but retained the two house pads and driveways. The revised project also eliminated the removal of the berm but provided for the planting of 0.12 acres of mangrove trees along the waterward edge of the berm. The revised project reduced the direct wetland impacts to 1.16 acres of filling. After further review and comment by department staff suggesting that the house pads be moved further to the west to be located along the eastern side of ditch #2, Petitioners again revised the project on May 17, 1991 to relocate the two house pads. The more westerly location allowed for a shorter driveway. However, the two house pads were slightly enlarged so that the total area of filling remained at 1.16 acres. At this time Application No. 05-187329-4 was transferred to Frank Hulse as the owner of Tract 1. Upon submittal of this revision, Petitioners' agent was advised by department staff that further reduction and minimization of impacts would be required. Staff suggested that the house pads be relocated between the first and second ditches near State Road 3. This suggestion was unacceptable to Petitioners due to the increased distance from the water and the proximity to State Road 3, with the higher noise levels at that location. On October 22, 1991 another revision to the applications was made to construct the houses on pilings and with filling only for the two driveways and parking areas. The total area of fill for both properties was thereby reduced to only two 500 ft. long by 20 ft. wide driveways and two parking fill pads 75 ft. long by 20 ft. wide. The total area of wetlands to be filled was therefore reduced to only approximately 0.28 acres. On November 16, 1991, Petitioners received the department's Notices of Permit Denial, advising them that the applications would be denied. In a further effort to design a project that would be acceptable, on June 26, 1992, Petitioners proposed a final revision. This proposal eliminates one of the driveways by utilizing the existing berm along the south side of Tract 2 and relocates the two house pads so that they would overlap the existing ditch and berm, thereby minimizing the area of wetlands fill. The total area of wetlands to be filled is 0.57 acres. The mitigation proposed for these impacts is to remove the remaining berm, back-fill the easternmost ditch, and then plant this area of 0.8 acres with appropriate herbaceous wetland vegetation. Petitioners also propose to remove all nuisance and exotic vegetation from the project site. This proposal was modeled after projects recently permitted by the department in an area immediately to the south of the project site. It is this version of the project that is the subject of this proceeding. (Stipulation) Jurisdiction Under department policy, the department has wetlands jurisdiction within an isolated mosquito impoundment if the wetlands within the impoundment were jurisdictional prior to the construction of the berm. There is competent substantial evidence that the area within the impoundment was, in fact, a jurisdictional wetland prior to the construction of the berm. The project site was enclosed within BMCD's impoundment in 1958. Based on the character of the site and historic aerial photographs and records of the BMCD, credible competent witnesses, Barbara Bess and Scott Taylor, opined that the pre-1958 area was a viable grassy saltmarsh wetland. Although the ten acre combined parcels include substantial upland, transitional and nuisance species, the site, particularly the easterly portion, still functions as a wetland. Water Quality The waters in the project vicinity are Class III waters. While the waters of the Banana River at the project area are part of the Banana River Aquatic Preserve and, therefore, an Outstanding Florida Water, no work is proposed in the Banana River. (Stipulation) The project will not cause any violations of state water quality standards. (Stipulation) Public Interest Public Health, Safety, and Welfare and Property of Others There is no issue or contention that the project will adversely affect the property of others. Mosquitos, particularly fresh water species of mosquitos, are a threat to human health. The mosquito impoundments were created in the 1950's and 1960's to aid in control of mosquito populations. The berms were built, and free-flowing wells were dug to insure that standing water would flood the eggs and create a habitat for mosquito larvae-eating fishes. Although no witness actually found a well on the Petitioners' parcel, historic records indicate the presence of at least one free flowing well at the northern end, and an odor associated with such artesian wells has been detected in the area. The St. Johns River Water Management District has a goal of plugging the wells to protect against loss of the ground water resource and to prevent saltwater intrusion and interaquifer contamination. If the well on this parcel is found and plugged, it could contribute to the destruction of the marsh that now exists, as that source of inundation would be eliminated and the impoundment would have only rainfall to rely upon. However, although the impoundment is not actively managed now by the BMCD, it plans to restore the area to a salt marsh through a system of pumps and culverts connecting to the Banana River, a source of salt water. At least one property owner to the north of Petitioners' property has entered into an agreement to retain the impounded state and to allow seasonal flooding for mosquito control purposes in return for a preferential tax assessment. Another mosquito control technique is aerial spraying to kill the larva and the adult flying mosquitos. Effective larvicidal spraying is frustrated by the existence of residences as the low-flying planes present a hazard and irritating noise levels. The Petitioners had proposed the scraping of a portion of the berm and establishing marsh grass to provide a nursery habitat in mitigation for the impact of filling the easternmost ditch. The BMCD objects to any removal of the berm, as it would threaten the integrity of the entire impoundment and destroy its function. Petitioners are willing to leave the berm intact, and their consultant has suggested the alternative of providing a system of culverting and pumping that would enable the impoundment to receive more salt water, thereby enhancing the establishment of a salt marsh and improving fish and wildlife functioning for the natural control of mosquitos. (transcript, p. 70) With the proposed modification to the mitigation plan, the project will not adversely affect public health, safety or welfare with regard to the ability of the BMCD to control mosquito populations in the area. No other public health, safety or welfare issues have been raised. Conservation of Fish and Wildlife The project site provides limited habitat for small minnow-like fish and serves as a foraging area for a variety of wading birds. Although only .57 out of 10 acres will be filled, the activity associated with the proposed use of the property will affect more than the limited footprint of the house pads and driveways. However, the surrounding area will still be used for foraging for the bird species, the small mammals, reptiles, fish and invertebrates; and the mitigation discussed below will offset the anticipated negative impacts. Brazilian pepper pervades the site now and will continue to destroy other vegetation if allowed to remain. Brazilian pepper trees are allotrophic, meaning that they release toxins that prevent the growth of other vegetation beneath their canopy. The increasing proliferation of wax myrtles and Australian pines, if not arrested, will reduce or eliminate the wildlife functions currently being performed in the wetlands. Navigation, Flow, Erosion and Shoaling As stipulated, the project will not adversely affect navigation or cause harmful erosions or shoaling. The flow of water will not be adversely affected, but rather will be enhanced by the proposed mitigation, as modified here. Fishing, Recreation and Marine Productivity Marine productivity will likewise be enhanced by the introduction of water from the Banana River, as proposed. The project is not now being used for fishing or recreational purposes. The nature of the project and its effect on Historical and Archeological Resources The parties have stipulated that the project is of a permanent nature and will not affect any significant historical or archeological resources. Condition and Value of Functions of the Wetlands Wetlands in general perform a series of functions, including groundwater discharge, groundwater recharge, flood storage, sediment stabilization, toxicant retention, nutrient assimilation, export of organic matter, and providing wildlife habitat and recreation. The wetlands at the project site in their current impounded state perform very little of these functions. They provide no function as to groundwater discharge or recharge. Because of their isolated nature, they provide no function for flood control, sediment stabilization, toxicant retention, nutrient assimilation or organic export. As noted above, the area does provide limited function as wildlife habitat and it serves as a mosquito impoundment. Besides rainwater falling directly on the impoundment, the only source of water to the wetlands within the impoundment is the free-flowing artesian well. If this well is located and plugged, the wetlands will likely dry out and the wetland vegetation will be replaced with upland species resulting in the further loss of the limited habitat provided by this area. The mitigation proposed and as modified here will aid flushing, and will restore some functions performed prior to impoundment without threatening the mosquito control function of the impoundment. Cumulative Impacts There are no projects existing or for which department permits or jurisdictional determinations are presently being sought within the impoundment, and there are no projects which are under review, approved, or vested pursuant to section 380.06, F.S. which are within the impoundment. (Stipulation) There are five other property owners who own property within the impoundment. Of those five, one has entered into an agreement with the Brevard County Board of County Commissioners to not build on or alter his property for a period of ten years. If each of the other four owners were to be allowed to construct a project similar to those being proposed by Petitioners, there would be only 1.71 acres of filling (0.285 acres per parcel x 4 parcels + 0.57 acres at the project site) in the entire 60 acre impoundment. This would have an insignificant impact on the fish and wildlife habitat value of the wetlands in the impoundment, and that impact would, by necessity, be mitigated or the project would not be approved. The wetlands in the rest of the impoundment are of a higher quality than those at the project site, just as, according to department staff, the Petitioners' wetlands are a higher quality than those to the south on the parcel where permits were issued to Messrs. Savell, Burgunder, Skowron, Anderson, and Stewart for projects similar to that proposed here. There is only conjecture that the issuance of the subject permits to Petitioners will result in the likelihood of the issuance of future permits to the other property owners in the impoundment, or to property owners in other impoundments. Petitioners' project, when considered with other projects which may be reasonably expected to be located within this impoundment or other impoundments, will not result in adverse cumulative impacts to the wetlands. Mitigation As stipulated by the parties, Petitioners proposed, as mitigation for filling .57 acres, to remove a portion of the berm that is not being used by the driveway and house pads, to backfill the easternmost ditch and plant .8 acres with appropriate herbaceous wetland vegetation, and to remove all nuisance and exotic vegetation from the project site. At hearing, Petitioners' consultant agreed to modify the mitigation plan to address the concerns of the BMCD as to the project's negative impact on mosquito control techniques. Those modifications include leaving the berm intact. The consultant also suggested that culverting and pumping over the berm would introduce salt water into the impoundment and would improve the functioning of the wetlands. This suggestion is an appropriate substitute for removal of the berm and would appropriately mitigate negative impacts to the public health, safety and welfare by providing a means to control mosquito breeding in lieu of the larvacidal aerial sprays. The salt water inundation would reduce fresh water mosquito larvae and would provide a habitat for small larvae-eating fish. The department has suggested that Petitioners should move the houses to the uplands on the western portion of the property or construct the houses between the two ditches to the west (ditch #1 and ditch #2). These suggestions are neither practical nor necessary. Noise from State Road 3 and the desirability of waterfront living motivated Petitioners to plan the houses closer to the Banana River. The wetland enhancement described above amply mitigates the impacts of the filling Petitioners now propose. Past Agency Practice From 1987 to 1991, the department issued five permits for the construction of seven house pads and driveways within a mosquito impoundment immediately south of the project area. After a period of negotiations and several permit denials, the department eventually permitted the placement of house pads along the Banana River in projects similar to that proposed by Petitioners. The project to the immediate south of Petitioners' site was permitted to include excavation and filling of the owner's entire 4.5 acres. This was in 1987. Later permits for the parcels further south required more extensive mitigation. The wetlands south of Petitioners' property were much more stressed than those on Petitioners' property. The area was heavily vegetated with cattails, wax myrtle, Australian pines and other like species. There were breaches already in the mosquito impoundment berm, so that impoundment's integrity had already been compromised. Piles of spoil material placed on the sites in some unknown past had contributed to the general trashy appearance of these parcels. In summary, the department adequately distinguished the permits granted in those five cases from the permits sought here, just as the department will be able to distinguish these permits from the conjectured future applications from property owners in the more valuable (function-wise) wetlands to the north of Petitioners' property.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That a final order be entered approving Petitioners' applications as modified above. DONE AND RECOMMENDED this 18th day of March, 1994, in Tallahassee, Leon County, Florida. MARY 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 18th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 92-0525 & 92-0526 The following constitute specific rulings on the findings of fact proposed by the parties: Petitioners' Proposed Findings 1.-10. Adopted in substance in paragraphs 1-10, respectively; however the verbiage in paragraphs 9 & 10 regarding the impacts being limited to the actual acreage being excavated or filled is deleted as misleading. 11.-15. Adopted in substance in paragraphs 11-15, respectively. Rejected as contrary to the greater weight of evidence. Rejected as immaterial and unnecessary. 18.-20. Adopted in paragraphs 18-20, respectively. Adopted in part in paragraphs 24 and 16; otherwise rejected as contrary to the weight of evidence. Adopted in part in paragraph 26, otherwise rejected as contrary to the weight of evidence, which evidence suggests that leaving the berm will not, alone, resolve the BMCD concerns related to proper mosquito control. 23.-24. Rejected as contrary to the weight of evidence; although the conclusory facts proposed are true, with the modifications suggested for Petitioners' mitigation plan. (See paragraph 27) 25.-28. Adopted in part in paragraphs 28 & 29; otherwise rejected as misleading or contrary to the weight of evidence. 29. Rejected as unnecessary. 30.-31. Adopted in paragraph 30. 32.-33. Adopted in substance in paragraph 31. 34.-35. Adopted in substance in paragraph 32. 36.-37. Adopted in substance in paragraphs 33-34, respectively. 38. Adopted in substance in paragraphs 23 and 24. 39.-40. Adopted in paragraph 37. 41.-44. Adopted in substance in paragraphs 37-40, respectively. Rejected as contrary to the weight of evidence and the law (as to the requirement for mitigation). Rejected as unnecessary. Adopted in part in paragraph 44; otherwise rejected as unsupported by the weight of evidence. 48.-59. Rejected as unnecessary. Respondent's Proposed Findings Adopted in expanded form in paragraphs 7-15. Rejected as unnecessary. Adopted in substance in paragraphs 17 and 24. Adopted in substance in paragraphs 25 and 26. Rejected as unnecessary. Adopted in paragraph 2. Adopted in paragraph 1. Adopted in paragraph 14. 9.-10. Rejected as unnecessary as stated, but addressed in paragraphs 41- 43. Rejected as contrary to the weight of evidence which suggests, instead, that the wetlands in issue are not currently connected to the Banana River. This does not, however, defeat the department's jurisdictional claim. Rejected as unnecessary. Adopted in paragraph 17. Adopted in substance in paragraph 22. Adopted in substance in paragraph 25. Adopted in substance in paragraph 21. 17.-18. Adopted in substance in paragraphs 25 & 26. 19. Rejected as immaterial, in view of the modification to the mitigation plan. 20.-21. Rejected as cumulative and unnecessary. 22.-23. Adopted in summary in paragraph 28. Rejected as generally contrary to the weight of evidence. The wetlands are stressed. Whether they will improve or degrade if left in their present state is a matter of conjecture; but the trend is for the exotics to take over. Adopted in paragraph 28, in summary; but the project, as mitigated, should improve the habitat. 26.-27. Rejected as cumulative. Rejected as an incomplete statement. As mitigated, the project will improve marine productivity. Adopted in paragraph 44. Rejected as contrary to the weight of evidence. Adopted in paragraph 41. Rejected as unnecessary. Rejected as cumulative. Adopted in paragraph 46. Adopted in summary in paragraph 45. COPIES FURNISHED: Richard A. Lotspeich, Esquire L. Bartin, Esquire Post Office Box 271 Tallahassee, Florida 32302 John L. Chaves, Esquire Donna LaPlante, Esquire Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issues are whether Respondent violated regulatory requirements to maintain and to implement a written policy that prohibits the neglect of nursing home residents; whether Petitioner should have changed the status of Respondent's license from Standard to Conditional; and whether Petitioner should fine Respondent $2,500 and recover investigative costs.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes in Florida pursuant to Subsection 400.23(7), Florida Statutes (2003). Respondent is licensed to operate a nursing home located at 710 North Sun Drive, Lake Mary, Florida 32746 (the facility). The facility admitted Resident 1 on November 20, 2000. Resident 1 was immobile and could not communicate verbally. She depended on a feeding tube for nourishment. On August 10, 2003, facility staff found ants in Resident 1's room. The ants had not bitten Resident 1. Staff sprayed the room with bug spray and then called the pest control company responsible for providing pest control at the facility (the pest control company). On August 12, 2003, the pest control company treated all of the rooms on the affected wing of the facility with ant bait gel and noted in the facility's pest control log that the problem in the affected area was "resolved." On the same day, another company treated the grounds outside the facility. During the early morning of August 20, 2003, facility staff found Resident 1 in her bed with ants and ant bites on her body. Staff immediately removed Resident 1 from her bed, showered her, called her doctor, and obtained orders for medications to treat the ant bites. Facility staff also treated the room and removed any ants that staff observed. Resident 1 went to the hospital briefly and then returned to the facility. Respondent notified Petitioner of the incident, and Petitioner sent two surveyors to the facility on August 22, 2003. Thereafter, Petitioner charged that the facility committed a Class II violation of 42 C.F.R. Section 483.13(c)(1). The relevant federal regulatory requirements are also set forth in what is identified in the record as Tag F224. Tag F224 requires the facility to maintain and to implement written policies and procedures that prohibit the neglect, abuse, and mistreatment of residents (an anti-neglect policy). Respondent does not dispute that the ant bites to Resident 1 on August 20, 2003, constituted harm sufficient to support a Class II violation, if Respondent violated the requirements to maintain and to implement an anti-neglect policy. The preponderance of evidence does not show that Respondent violated those requirements. Respondent maintained an anti-neglect policy that satisfied the requirements in Tag F224. In relevant part, the policy sets forth the standards and processes for identifying potential incidents of neglect of residents; investigating those incidents; and reporting them to appropriate agencies. Petitioner was unable to identify any component of Respondent's anti-neglect policy that violated the requirements of Tag F224. Petitioner also was unable to identify any other required policy that Respondent failed to maintain. Respondent implemented its anti-neglect policy. Facility staff identified the potential risk of harm, investigated the risk, implemented professional pest control treatments to all rooms on the same wing of the facility as the affected room, and treated the lawn outside the facility. The facility reported the incident to Petitioner. Petitioner was unable to identify any component of the anti-neglect policy, or that of any other policy, that Respondent did not implement to prevent the incident involving Resident 1. Irrespective of the anti-neglect policy that Respondent maintained and implemented, Petitioner sought to prove at the hearing that Respondent violated quality of care requirements. The Administrative Complaint does not allege that Respondent violated a quality of care requirement. If it were determined that the ALJ has authority to find Respondent guilty of violating a quality of care requirement not alleged in the Administrative Complaint, the preponderance of evidence does not show that the quality of care exercised by facility staff after they discovered ants on August 10, 2003, was deficient. Petitioner sought to prove that Respondent violated quality of care requirements by failing to provide adequate pest control service to the affected room. Petitioner did not identify any additional pest control procedures that applicable law required the facility to provide. Nor did Petitioner identify any pest control treatment or service that the facility could or should have provided to prevent the ant bites to Resident 1 on August 20, 2003. Petitioner also sought to prove that Respondent violated quality of care requirements by failing to increase monitoring of Resident 1. Petitioner failed to cite any legal standard that required facility staff to increase their monitoring of Resident 1 between August 10 and 20, 2003. The standard of practice in nursing homes is to monitor residents every two hours. No standard required a higher level of monitoring after August 10, 2003. There was no evidence that Respondent failed to monitor Resident 1 every two hours between August 10 and 20, 2003. Strict liability is not the appropriate standard for determining whether Respondent is responsible for the harm suffered by Resident 1 on August 20, 2003. The preponderance of evidence does not show that Respondent failed to provide any required goods or services to Resident 1. The ant bites on August 20, 2004, occurred despite the reasonable care undertaken by Respondent to prevent the ant bites.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order deleting the disputed deficiencies from the Survey Report for August 20, 2003; replacing the Conditional rating from August 22, 2003, until October 15, 2003, with a Standard rating; finding Respondent not guilty of the remaining allegations in the Administrative Complaint; and denying the proposed fine and recovery of investigative costs. DONE AND ENTERED this 8th day of June, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 8th day of June, 2004. COPIES FURNISHED: Gerald L. Pickett, Esquire Agency for Health Care Administration Sebring Building, Suite 330K 525 Mirror Lake Drive, North St. Petersburg, Florida 33701 Donna Holshouser Stinson, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302-1300 R. Davis Thomas, Jr. Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302-1300 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
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 Whether Respondent 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, Clinton Killingsworth was the owner and Certified Operator in Charge (COIC) of Environmental Security of Okaloosa, Inc., a licensed pest control company in Cantonment, Florida. Counts 4 and 6 2. Counts 4 and 6 of the Administrative Complaint allege as follows: Count 4 During an inspection on July 11, 2003, the Department found that Environmental Security of Okaloosa 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 6 During an inspection on July 11, 2003 the Department found that Environmental Security of Okaloosa phone numbers terminated in an unlicensed location as 9100 Hamman Avenue. This is a violation of Chapter 5E-14.142(3)(b). Environmental Security of Okaloosa, Inc., d/b/a Environmental Security, 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, Killingsworth Environmental, Inc., and Atlas Termite and Pest Control of Cantonment, 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. On March 26, 2002, entered into a Management and Marketing Agreement with Home Services, executed by Clinton Killingsworth on behalf of Environmental Security of Okaloosa and by Clifford Killingsworth on behalf of Home Services. Since that agreement was signed, the telephone number for Environmental Security of Okaloosa listed in the local telephone directory terminated at Home Services. Home Services also answers calls for Killingsworth Environmental, Inc. and Atlas Exterminating. Home Services employees do not make "cold calls" to new customers. They receive calls from existing 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. No evidence was presented that 9100 Hamman Avenue is an advertised permanent location of Environmental Security of Okaloosa from which business was solicited, accepted, or conducted. After the July 11, 2003, inspection of Home Services, Clinton Killingsworth took steps to get Home Services licensed as a pest control company. Mr. Killingsworth 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 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 5 Count 5 of the Administrative Complaint, as amended, reads as follows: During an inspection on July 16, 2003, the Department found that Environmental Security of Okaloosa, Incorporated stored pesticides at an unlicensed business location at 1830 Galvez Road, Gulf Breeze, Florida, which is a violation of Chapter 5E-14.142(5)(f) and (g), Florida Administrative Code. That in addition, the Respondent, Environmental Security of Okaloosa, Inc., regularly parked trucks containing pesticide at that location during nighttime hours, published in the 2002-2003 Bell South Telephone Directory under Pest Control Services in the yellow pages of the telephone directory, a listing for "Environmental Security", a name under which it did business, and its employees received by facsimile daily work assignments that were sent to them at that location. That the Respondent, Environmental Security of Okaloosa, Inc operated an unlicensed business location at 1830 Galvez Road, Gulf Breeze, Florida, in violation of Section 482.071(2)(a), Florida Statutes.[3/] The property located at 1830 Galvez Drive is surrounded by a fence and contains a structure. The structure is not enclosed. Both Environmental Security of Okaloosa and Killingsworth Environmental park trucks there overnight. They entered the property when the pest control employees arrived. The Department conducted an inspection of 1830 Galvez Drive on July 16, 2003. The gate to the property was locked and the trucks were locked. On the day of the inspection, the Department's inspectors found unmixed chemicals in the trucks. Clinton Killingsworth acknowledges that at the time of the inspection, company trucks parked at the Galvez Drive location overnight and pesticides were in the locked trucks. Company records or contracts are not stored at the Galvez Drive location. No customer contact takes place at or from the Galvez Drive location. The Pest Control Business License Application Form contains a space in which the licensee must respond to the following: "Designate location where pest control records and contracts will be kept and the exact location address for storage of chemicals if other than licenses business location." The applications for business license for Environmental Security of Okaloosa do not reference 1830 Galvez Road as a location where storage of chemicals occurs. Environmental Security of Okaloosa does not have a license for operating a business at this location. The yellow pages for the Pensacola area contains a listing in red ink for "Environmental Security, Inc." It lists an address of 4141 Pine Forest Road with the telephone number 473-1060. There is another reference to "Environmental Security" in black ink in smaller type which lists the address 1830 Galvez Drive with the number 916-7731.4/ Clinton Killingsworth brother, Clifford Killingsworth, arranged to have a phone line for a fax machine to be located in a trailer at the Galvez Drive location. The purpose of installing a fax line at Galvez Drive was for employees to receive daily schedule assignments. The 916-7731 number listed in the yellow pages is the number of the fax machine. Clinton Killingsworth did not request a listing for the number of the fax machine. However, the telephone company listed it in the phone book. Clinton Killingsworth has requested the local telephone company to remove the erroneous listing a number of times.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered assessing a fine against Respondent Environmental Security of Okaloosa, Inc., in the amount of $2,600.00. 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 Whether Respondents Lee Ann Kennedy ("Kennedy") and Kenco Industries, L.L.C. ("Kenco"), engaged in various activities constituting pest control under chapter 482 without having obtained the required licenses from Petitioner Department of Agriculture and Consumer Services, in violation of sections 482.161(1)(j), 482.165(1), and 465.191(1), Florida Statutes.
Findings Of Fact The Parties Petitioner is the state agency charged with administering the Structural Pest Control Act, chapter 482. Respondent Kennedy is a resident of Wellington, Florida. Respondent Kenco Industries, L.L.C., is a registered Florida Limited Liability Company. Kennedy is the manager and sole member of, and the registered agent for, Kenco. Pest Control Regulation under Chapter 482, Florida Statutes Chapter 482 authorizes Petitioner to regulate activities constituting "pest control" and to impose sanctions for violations of that chapter. "Pest control" is broadly defined in section 483.021(22) as: The use of any method or device or the application of any substance to prevent, destroy, repel, mitigate, curb, control, or eradicate any pest in, on, or under a structure, lawn, or ornamental; The identification of or inspection for infestations or infections in, on, or under a structure, lawn, or ornamental; The use of any pesticide, economic poison, or mechanical device for preventing, controlling, eradicating, identifying, inspecting for, mitigating, diminishing, or curtailing insects, vermin, rodents, pest birds, bats, or other pests in, on, or under a structure, lawn, or ornamental; All phases of fumigation, including: The treatment of products by vault fumigation; and The fumigation of boxcars, trucks, ships, airplanes, docks, warehouses, and common carriers; and The advertisement of, the solicitation of, or the acceptance of remuneration for any work described in this subsection, but does not include the solicitation of a bid from a licensee to be incorporated in an overall bid by an unlicensed primary contractor to supply services to another. Petitioner is authorized to issue licenses to qualified businesses to engage in the business of pest control in this state. § 482.165(1), Fla. Stat. It is unlawful for any person, partnership, firm, corporation, or other business entity to engage in the unlicensed practice of pest control as that term is defined in section 482.021(22). Id. Section 482.191(1) makes unlawful the advertisement of pest control services except as authorized under chapter 482. Absent limited circumstances not applicable here, persons or entities engaging in such advertisement must be licensed by Petitioner to practice pest control. Petitioner also is authorized to fine persons who impersonate an employee of Petitioner. § 482.161(1)(j), Fla. Stat. Respondents' Acts Alleged to Violate Chapter 482 Respondent Kennedy did not hold a pest control business license or other license to practice pest control at any time relevant to this proceeding.2/ Respondent Kenco also did not hold a pest control business license or other license to practice pest control at any time relevant to this proceeding. On or about April 1, 2011, Kennedy entered Saigon Oriental Market in Lake Park, Florida. According to its owner, Hung The Thach, Kennedy walked around the store inspecting it, then told him that she was employed by Petitioner, that some of his produce was infested by insects, and that he would have to have pest control services performed or she would return in a week to conduct another compliance inspection. Kennedy gave Mr. Thach the telephone number for Outside In, a pest control company, and the business card of its owner, Dennis O'Rourke. Concerned that Kennedy would shut down his store or fine him, Mr. Thach called Outside In; the following day, an employee of that company performed pest control services at the store. Outside In performed additional pest control services at the store on or around May 26, 2011. Mr. Thach paid Outside In for these services. In mid-May 2011, Kennedy inspected Fajita's Super Market in Lake Worth, Florida, and told its owner, Ali Jaber, that she was employed by Petitioner as an inspector, and that he had a fly problem in his store. She recommended that he contact Outside In to correct the problem. Mr. Jaber told her he used another pest control company, but thereafter, a representative from Outside In visited the store, left a business card with Mr. Jaber, and offered to provide pest control services for the store for $150.00 per month with no contract. Kennedy returned to the store approximately a week later and wanted to know why nothing had been done to correct the fly problem; she also asked an employee of Fajita's who was going to pay for her time to inspect the store; when she was referred to Mr. Jaber, she left the store and did not return. On or around May 24, 2011, Kennedy entered the Fortune Cookie oriental supermarket in West Palm Beach, Florida, and told its president, David Chang, that she was with an inspector with Petitioner. She inspected the store, told him that there was a fly problem, and stated she would return in two weeks. Mr. Chang testified that Kennedy did not provide him the name of any pest control businesses, but that approximately a week before Kennedy inspected the store, a representative of Outside In had come to the store and tried to sell him pest control services, but that he had declined to purchase the services at that time. Dennis O'Rourke, President of Outside In, testified that Kennedy was not on his company's payroll, but that she had solicited pest control business for his company for approximately four months prior to September 2011. She successfully solicited four accounts and he paid her 30% of the profits made on those accounts. At the time she solicited the accounts, she did not possess a valid identification card to perform pest control services on behalf of Outside In.3/ Mr. O'Rourke subsequently obtained a valid identification card for Kennedy so that she could perform pest control, including business solicitation, for his company. Petitioner initiated an investigation of Kennedy in June 2011, after being notified by several small food markets in Palm Beach County that she was holding herself out as a food inspector with Petitioner, inspecting the stores, notifying the store operators that there was a pest problem, and recommending that Outside In be contacted to correct the problem. In the course of the investigation, on September 7, 2011, John Berquist, an inspector with Petitioner's Bureau of Entomology and Pest Control, took photographs of Kennedy's motor vehicle4/ bearing magnetic signs on the front passenger and driver side doors labeled "Kenco Industries," which depicted a photograph of Kennedy and advertised the provision of pest control services. Berquist checked Petitioner's pest control licensing records and determined that Petitioner had not issued a pest control business license or other pest control license to Kennedy or to Kenco. At the hearing, Kennedy acknowledged that she conducted food store inspections, pointed out pest problems to store operators, and recommended that they contact Outside In for pest control service. However, she denied holding herself out as an employee of Petitioner. She testified that she is certified in food safety by the Department of Health and that if she observed a pest problem while shopping, she would show her food safety certification card to the store operator and point out the problem. She claimed she did this because she is Vietnamese, so often shops at Asian food markets and wants the stores where she purchases her family's food to be pest-free. She also claimed that she only wanted the stores "to get what they needed" in the way of pest control service and that it did not matter whether she was compensated for soliciting business for Outside In. However, she acknowledged that she had been compensated by Outside In for the pest control business she had successfully solicited on their behalf. Kennedy testified that she did not intend to do anything that was against the law, and was not aware that she was engaging in conduct that violated the law. The evidence established that neither Kennedy nor Kenco previously violated chapter 482 or Petitioner's rules. Ultimate Findings of Fact Regarding Alleged Violations Based on the foregoing, Petitioner established, by clear and convincing evidence, that Kennedy impersonated an employee of Petitioner, as alleged in Count 1 of the Amended Administrative Complaint, in violation of section 482.161(1)(j). Kennedy's testimony that she did not hold herself out as an employee of Petitioner was contradicted by all other witnesses and was not credible. Petitioner also established, by clear and convincing evidence, that Kennedy and Kenco advertised pest control services without obtaining a pest control business license in violation of sections 482.165(1) and 482.191(1). There was no dispute that Kennedy advertised the provision of pest control services by herself and by Kenco by placing signs on her vehicle depicting her image and Kenco's business name. Further, Kennedy is Kenco's manager, sole member, and agent, so her actions in advertising the provision of pest control services by Kenco are imputed to Kenco.5/ Petitioner also proved, by clear and convincing evidence, that Kennedy solicited pest control business for Outside In for compensation, in violation of sections 482.165(1) and 482.191(1). Kennedy's testimony that she was motivated by altruism and personal interest in food safety at markets where she shopped, rather than by being compensated for soliciting business for Outside In, was not credible. The undisputed evidence establishes that she was compensated by Outside In for soliciting pest control business on its behalf. However, Petitioner did not establish, by clear and convincing evidence, that Kenco solicited business on behalf of Outside In. The evidence does not show that Kennedy represented to the food store operators that she was acting on behalf of Kenco when she solicited business for Outside In. To the contrary, the evidence established that Kennedy represented that she was an inspector employed by Petitioner. Accordingly, it is determined that Kenco did not solicit pest control business for Outside In, in violation of sections 482.165(1) and 482.191(1). As further addressed below, Petitioner's Enforcement and Penalties rule, Florida Administrative Code Rule 5E-14.149, makes the deliberate commission of an act that constitutes a violation of chapter 482 an aggravating factor in determining the applicable fine. Here, the evidence shows that Kennedy intentionally misrepresented that she was employed by Petitioner specifically to solicit and induce food store operators to purchase pest control services for which she would be compensated. Accordingly, it is determined that Kennedy acted deliberately in impersonating an employee of Petitioner and in soliciting business on behalf of Outside In for compensation. Furthermore, the evidence shows that Kennedy——and by operation of the law of agency, Kenco——deliberately engaged in advertising the provision of pest control services without having obtained the required license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner Department of Agriculture and Consumer Services impose a fine of $2,600.00 on Respondent Lee Ann Kennedy, and impose a fine of $1,000.00 on Respondent Kenco Industries, L.L.C. DONE AND ENTERED this 27th day of June, 2012, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 2012.
