02-000415 Department Of Agriculture And Consumer Services vs. Stephen W. Daniels, Earl G. Pettijohn, And Environmental Security Of Panama City Status: Closed Recommended Order on Friday, January 3, 2003.

Summary: Petitioner failed to prove pesticide applied in insufficient volume. Petitioner showed concentration of chemical in one truck violated rule because concentration below label requirement due, likely, to being mixed night before application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0415

)

STEPHEN W. DANIELS, EARL G. )

PETTIJOHN, AND ENVIRONMENTAL )

SECURITY OF PANAMA CITY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing

before P. Michael Ruff, duly - designated Administrative Law Judge

of the Division of Administrative Hearings, in Panama Cit y,

Florida, on August 23, 2002.

APPEARANCES

For Petitioner: Jack W. Crooks, Esquire

Department of Agriculture and

Consumer Services

407 South Calhoun Street

Mayo Building, Room 520

Tallahassee, Florida 32399 - 0800

For Respondents: Ro bert O. Beasley, Esquire

Litvak & Beasley, LLP

220 West Garden Street, Suite 205

Post Office Box 13503

Pensacola, Florida 32591 - 3503

STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns

whether the above - named Respond ents applied pesticide chemicals

to a pre - construction application site for pre - treatment for

termites and wood - destroying organisms, which was contrary to

label instructions, by not applying the specific amount (volume)

and concentration designated by the label in alleged violation

of Section 482.051(5), Florida Statutes, and Rule 5E - 14.106(6),

Florida Administrative Code.

PRELIMINARY STATEMENT

This cause arose subsequent to a field investigation by the

Department's ( Petitioner) field inspector , George Owe ns. He

conducted an investigation on October 16, 2001, to determine

whether the Respondents, Stephen W. Daniels and Earl G.

Pettijohn, were applying pesticides improperly in a

pre - construction, soil, subterranean, termite treatment at

1360 Bri ckyard Road, Chipley, Florida (job site). As a result

of the investigation, an Administrative Complaint was filed and

served, charging the Respondents with failure to apply a

termiticide in an amount and concentration specified by the

product label, an al leged violation of Section 482.051(5),

Florida Statutes, and Rule 5E - 14.106(6), Florida Statutes.

The Administrative Complaint was addressed to Mr. Daniels,

certified operator - in - charge (COIC) and applicator;

Mr. Pettijohn, applicator; and Envir onmental Security of Panama

City. No charges were actually alleged against Environmental

Security of Panama City, Inc., however. On January 18, 2002,

the Respondents, through counsel, requested a formal hearing.

The cause came on for hearing, as noticed , on August 23,

2002. The Petitioner presented the testimony of its field

investigator or inspector, George Owens, and introduced five

exhibits into evidence. The Respondents presented the testimony

of Stephen W. Daniels and Cliff Killingsworth.

Upon c onclusion of the hearing, a transcript thereof was

ordered and the parties submitted Proposed Recommended Order s,

which have been considered in the rendition of this Recommended

Order. Subsequent to the hearing, a Motion to Conform the

Charges of the Admi nistrative Complaint to the Evidence was

filed. It was opposed on due process grounds related to notice

and the opportunity to defend a new charge.

FINDINGS OF FACT

1. The Respondents are certified operators and applicators

employed by pest control compa nies in the Panama City area.

Stephen W. Daniels holds License No. 43026. Earl G. Pettijohn

holds License No. 92006. Mr. Pettijohn is an applicator at

Killingsworth Environmental, Inc., and Mr. Daniels is a

certified operator for Environmental Security of Panama City.

The Petitioner is an agency of the State of Florida charged with

regulating the licensure, operations, and practices of pest

control operators, applicators, and licensed pest control

businesses in the State of Florida.

2. The pre - construc tion termite treatment in question

occurred on October 16, 2001. The treatment or job site was at

the new construction of the Northwest Florida Community Hospital

at 1360 Brickyard Road, in Chipley, Florida. Two trucks were

used on the October 16, 2001, job: one was a truck marked

"Killingsworth Environmental," driven by Mr. Pettijohn; the

other truck was marked "Atlas" and was driven by Mr. Daniels.

The chemical used in the pre - treatment for termites at the job

site was a soil pesticide known as "Cyren - TC." The label for

Cyren - TC indicates a requirement of 0.50 percent to 1.0 percent

concentration, with an aqueous emulsion used for pre - treatment

for termites.

3. The laboratory report and analysis of the pesticide

sample taken from Mr. Daniels' truc k tank, at the hose end, was

found to contain 0.38 percent chlorphyrifos (active ingredient),

which represents a 24 percent deficiency from the minimal

required rate of 0.50 percent per the Cyren - TC label.

4. The Respondents, Mr. Daniels and Mr. Pettijohn , were

called by the contractor of the job in Chipley on the evening of

October 15, 2001, with his request that they perform a

pre - treatment termite treatment the next morning for a

monolithic slab described as being of an area of 12,000 square

fe et. The Respondents, therefore, filled their trucks, mixing

the pesticide, based upon that measurement on the evening of

October 15, 2001. They arrived at the job site the following

morning at 7:15 a.m. They did not use the two trucks to treat

any othe r sites between the filling of the trucks and their

arrival on the job site in question on the morning of

October 16, 2001. Upon inspecting the job site, Mr. Daniels

measured the slab and determined the actual square footage to be

approximately 9,300 square feet. That figure is not disputed.

5. The truck Mr. Daniels was driving had a tank and spray

capacity of 700 gallons. The 700 gallons was represented by a

500 - gallon tank and by an additional 200 - gallon tank. The truck

was completely filled when it arrived on the job site. The

truck Mr. Pettijohn was driving contained a capacity of 600

gallons in two tanks of 300 gallons each. It was completely

full when it arrived at the job site. Mr. Owens, the

Department's field inspector who testified in s upport of the

Administrative Complaint, did not inspect either truck to

determine or estimate their total capacities. He was not aware

of how much either truck employed on the job in question

actually held in total volume. He also did not observe how muc h

chemical was left over still in the tanks in each truck when the

first treatment application effort had concluded, on or shortly

before 9:00 a.m., on October 16, 2001.

6. The Respondents applied an aqueous emulsion of Cyren - TC

to the 9,300 square foot m onolithic slab by spraying a volume

from each truck. Mr. Daniels' truck pumped five to seven

gallons per minute, and Mr. Pettijohn's truck pumped seven to

nine gallons per minute. Both trucks were fitted with

gravity - fed pumps. The pumps on each truck would pump a higher

volume, closer to seven gallons per minute or nine gallons per

minute respectively, as to Mr. Daniels' and Mr. Pettijohn's

trucks when the tanks were more nearly full because of the

higher pressure feeding the gravity - fed pump. The vo lume per

minute pumping rate would gradually decrease as the level in the

tank became lower.

7. Both Mr. Daniels and Mr. Pettijohn started pumping at

essentially the same time or within one minute of each other.

Mr. Daniels testified that he and Mr. Pett ijohn applied the

pesticide for 73 minutes measured by the digital clock on his

radio. Mr. Daniels determined the amount of time necessary to

pump the pesticide on the site from both trucks by taking an

average of the output volume of the pumps on each tr uck. He

began timing the application when he pulled the hose to the far

end of the slab and turned it on.

8. When the treatment application was complete,

Mr. Daniels had approximately 50 gallons of chemical remaining

in the 500 - gallon tank on his truck. He had not yet used any of

the 200 - gallon tank on his truck. Mr. Pettijohn had

approximately 55 to 60 gallons of chemical left from the two

tanks totaling 600 gallons on his truck when he started the

application. The testimony as to the amount o f chemicals left

in the tanks after this first application is unrefuted and is

accepted.

9. Mr. Daniels established that, although when the tanks

were approaching empty (when the calibration was made by

Mr. Owens), at which time Mr. Daniels' tank w ould only pump at a

rate of five gallons per minute, that the pumps would pump at a

higher rate, approaching seven gallons per minute as to

Mr. Daniels' truck and nine gallons per minute as to

Mr. Pettijohn's truck, when the tanks were ful l. Consequently,

if one takes an average of the output volume for each truck of

slightly over six gallons per minute for Mr. Daniels' truck and

slightly over seven gallons per minute for Mr. Pettijohn's

truck, one arrives at an application volume for Mr. Daniels'

truck of 438 to 450 gallons of chemical applied. One also

arrives at a volume applied for Mr. Pettijohn's truck of

approximately 547 gallons if one uses an average application

rate of 7.5 gallons per minute.

10. Since the testimony as to the r emaining product in the

tanks is unrefuted because Mr. Owens did not observe the amount

of product left in the tanks on the two trucks, and if one uses

an average application rate of 7.5 gallons per minute for

Mr. Pettijohn's truck and six gallons per minute or slightly

more for Mr. Daniels' truck, one arrives at a figure of between

50 and 60 gallons of product remaining in Mr. Pettijohn's truck,

and approximately 50 to 60 gallons remaining in Mr. Daniels'

truck if one uses Mr. Daniels' factor of 73 mi nutes to multiply

times that average application per minute rate. Thus, the

approximate amount of product remaining in the tanks of both

trucks being unrefuted, it is thus established that Mr. Daniels'

figure of 73 minutes as the application time is most nearly

correct.

11. While the pre - treatment application was being

performed, Investigator Owens was parked at a nearby parking

area observing the application procedure and timing it with a

stopwatch. Mr. Owens determined that Mr. Daniels had pumped for

45 minutes and 30 seconds and Mr. Pettijohn pumped for 45

minutes. Using Mr. Owens' figure of seven gallons per minute

for Mr. Pettijohn's truck and five gallons per minute for

Mr. Daniels' truck (the lowest pumping rates) for the entire

pumping operati on (which for the reasons found above is not

accurate), Mr. Owens came up with an approximate application

volume for Mr. Daniels' truck of 228 gallons and approximately

315 gallons for Mr. Pettijohn's truck. This figure is not

realistic when one considers the amount of product left in the

tanks of the two trucks at the end of the first application

operation. There certainly was not an excess of 250 gallons of

product left in the 500 - gallon tank of Mr. Daniels' truck and

285 gallons of product left in the tank of Mr. Pettijohn's truck

at the end of that first pumping operation on or before

9:00 a.m., on October 16, 2001. It cannot be determined from

the testimony and evidence why there is such a great disparity

in the time period Mr. Owens postulated for the treatment

operation he observed, versus the most accurate 73 - minute period

established from Mr. Daniels' testimony.

12. After confirming that the Respondents had completed

their application effort, Mr. Owens conducted an inspection with

regard to both trucks, obtaining information, and filling out

necessary paperwork. Mr. Owens then took a sample from

Mr. Daniels' truck only when he completed the calibrations of

the trucks. That calibration, as found above, noted an

application rate of fiv e gallons per minute for Mr. Daniels'

truck at a point when there was only approximately 50 gallons of

product left in the 500 - gallon tank to feed the gravity - supplied

pump on Mr. Daniels' truck.

13. Mr. Owens took a sample of the pesticide from the

hose - e nd of the pump on Mr. Daniels' truck and placed it in a

32 - ounce jar covered with a lid. The jar was not pre - labeled

with a sample number. Mr. Owens taped the lid of the jar, and

initialed it, so that the tape seal could not be broken without

disturbing his initials and put the jar in the trunk of his car

in an ice chest with ice. As a matter of practice, Mr. Owens

does not offer a duplicate sample to an operator unless he asked

for one and he did not ask Mr. Daniels to sign the tape on the

jar. Mr. Owe ns did not take a chemical sample from

Mr. Pettijohn's truck and there is no evidence as to what

concentration of pesticide was in the tank on Mr. Pettijohn's

truck. In the two pesticide applications on the morning of

October 16, 2001, Mr. Petti john's truck pumped a total of 600

gallons of product on the site. It is not possible to make a

factual determination as to the chemical concentration of the

volume of product in Mr. Pettijohn's truck.

14. The water used to mix the chemical for applicatio n at

the job site was obtained from the water plant in Panama City.

It had been, at some point, chemically treated with chlorine.

There is no evidence as to any chlorine content in the water,

which is chemically treated with chlorine, at least in the

pot able water stage and possibly in the waste water treatment

stage. The sample was collected, as noted above, on October 16,

2001, but was not delivered to the laboratory to be analyzed as

to the pesticide concentration until October 26, 2001. There is

no indication on the laboratory report of the actual date of

processing by the lab, but the final report was issued on

November 14, 2001. There was at least a lapse of ten days from

collection to analyzation by the laboratory. Testimony was

presented concer ning a study done by a Clemson University

scientist which indicated that chlorine in municipal tap water

was enough to degrade pesticides like that involved in this case

by a factor of 32 percent in three hours. It has not been

established that that occur red here, although logically some

chlorine content may have been in the water that was used to mix

the chemical. It is also well - known in the pesticide industry

that an appropriate reaction and safeguard for a chemical spill

of Chlorpyrofos is the applica tion of bleach or chlorine to

neutralize or degrade the chemical.

15. It is not clear whether the deficient concentration

pumped from the Daniels' - operated truck resulted from only

chlorine content in the mix water or by the lapse of time caused

by mixin g the chemical the evening before it was to be used the

following morning (in the interest of arriving at the job site

early that morning per the instructions of the contractor). It

may have been simply operator error in the proportions of water

to chemic al which were mixed when the tanks were filled or a

combination of these three factors.

16. Moreover, it cannot be determined precisely what

concentration was actually deposited on the surface at the job

site because Mr. Pettijohn's truck pumped approxim ately 600

gallons of total volume on the site in two applications and

Mr. Daniels' truck pumped approximately 438 to 450 gallons in

the first application and approximately 220 gallons in the

second application, and the concentration of the chemicals

pum ped from Mr. Pettijohn's truck is unknown in so far as the

evidential record in the case is concerned. Thus, it cannot be

definitively determined what concentration of chemical actually

was deposited on the surface of the job site.

17. In any event, after Mr. Owens had calibrated the pump

on Mr. Daniels' truck and taken his sample, both Mr. Daniels and

Mr. Pettijohn rolled up their hoses, got in their trucks, and

left the job site. After they left the job site, Mr. Owens

notified the builder that the pre - treatment had been inadequate

in terms of the volume of pesticide applied and so the builder

requested that Mr. Daniels and Mr. Pettijohn return and apply

more chemical. They arrived at the job site some 15 to 20

minutes after they had initially left and began spraying the

additional chemical in the second application that morning.

When Mr. Daniels and Mr. Pettijohn returned to the site,

Mr. Daniels told Mr. Owens that he disagreed with Mr. Owens'

volume calculations.

18. In any event, Mr. Owens dire cted both Mr. Daniels and

Mr. Pettijohn to pump additional volume onto the site. Thus, at

Mr. Owens' direction, they pumped the volumes remaining in their

trucks onto the site (with the exception of approximately 30

gallons, which was finally remaining in Mr. Daniels' truck), for

a total of approximately 1,280 to 1,300 gallons being pumped on

the job site. Thus, in light of the above calculations and

findings, the site actually received approximately 280 to 300

gallons more than the prescribed labeled rat e.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120.569 and 120.57, Florida Statutes.

20. Section 482.051(5), Florida Statutes, in pertinent

part, confers on the Petitioner agency the authority to adopt

rules requiring "[t]hat any pesticide used for pre - construction

treatments for the prevention of subterranean termites be

applied in the amount, concentration and treatment area in

accordance with the label, . . . ." Rule 5E - 14.106(6), Florida

Administrative Code, provides, in pertinent part:

Pesticides used for pre - construction soil

treatments for prevention of subterranean

termites shall be applied in the specific

amounts, concentration, and treat ment areas

designated by the label. The pesticide, in

its original formulation, shall be mixed at

the pre - construction site immediately prior

to application . . . .

21. Section 482.161(7), Florida Statutes, states:

(7) The department, pursuant to cha pter

120, in addition to or in lieu of any other

remedy provided by state or local law, may

impose an administrative fine, in an amount

not exceeding $5,000, for the violation of

any of the provisions of this chapter or of

the rules adopted pursuant to thi s chapter.

In determining the amount of fine to be

levied for a violation, the following

factors shall be considered:

(a) The severity of the violation,

including the probability that the death, or

serious harm to the health or safety, of any

person will result or has resulted; the

severity of the actual or potential harm;

and the extent to which the provisions of

this chapter or of the rules adopted

pursuant to this chapter were violated;

(b) Any actions taken by the licensee or

certified operat or in charge, or limited

certificateholder, to correct the violation

or to remedy complaints; . . . .

22. In a penal proceeding such as this, which implicates

significant property rights such as potential license revocation

or the imposition of administ rative fines, the agency has the

burden of proving the charged violations by clear and convincing

evidence. Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Company ,

670 So. 2d 932 (Fla. 1996).

23. Th e Petitioner has not met its burden of proving by

clear and convincing evidence that Mr. Daniels and Mr. Pettijohn

violated the above - cited and quoted legal authority by failing

to apply the correct volume of chemical pesticide to the site in

accordance wi th label instructions, in light of the above

findings of fact concerning the determination of the volume

applied. Moreover, the question of any violation that may have

occurred, in the view of Mr. Owens' investigation, as a result

of insufficient applicat ion time on the site, was cured when

Mr. Pettijohn and Mr. Daniels returned to the site and applied

more pesticide such that the ultimate application exceeded the

labeled rate somewhat as to volume. Thus, the allegations of

Count One have not been establ ished as to either the Respondents

Mr. Daniels or Mr. Pettijohn.

24. Concerning Count Two, Mr. Owens' sample, when tested,

resulted in a reported concentration less than that designated

by label instructions. The evidence, however, shows that the

time from taking the sample to the processing of the sample was

excessive (at least ten days), and there could have been a

breakdown of the active chemical in the pesticide caused by

chlorine - related agents in the water used by the applicator.

However, it is a lso true that the above rule requires the

pesticide to be mixed at the pre - construction site immediately

prior to application. This was not done, and even if some

chlorine - related agents were present in the mix water to cause

the breakdown of the active c hemical of the pesticide emulsion,

this potential breakdown may have been avoided if Respondent

Daniels had mixed the product at the pre - construction site

immediately prior to application, as the rule requires.

25. Thus, Mr. Daniels, particularly as the C OIC of the

application job, must be determined to be at least partially

responsible for the sample test result which showed an

inadequate concentration of the chemical in that he violated the

above rule by mixing the product the evening before its

applicat ion.

26. The Petitioner has not met its burden of proof by

clear and convincing evidence that Mr. Pettijohn violated the

above rule by applying a mixture of pesticide at a concentration

level less than that designated by the label instructions

because, si mply, no test sample of the product in

Mr. Pettijohn's truck was ever taken to establish a

concentration. It is determined that Mr. Daniels violated

Section 5E - 14.106(6), Florida Administrative Code, by mixing the

subject pesticide emulsion a substantial period of time before

it was taken to the job site, instead of mixing the pesticide at

the pre - construction site immediately prior to application, in

violation of this rule. This could have contributed to the

sample demonstration of less than the required concentration of

the pesticide. In light of the entire circumstances of this

case, depicted in the above findings of fact, a minimal penalty

is warranted. It is also determined that the Petitioner's

Motion to Conform the Administrative Compl aint to the Evidence

is denied for the reasons advanced in the response to the

motion.

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 Stephen W. Daniels in the amount of $350.00,

and it is further recommended that the Administrative Complaint

as to Respondents Ea rl G. Pettijohn and Environmental Security

of Panama City be dismissed.

DONE AND ENTERED this 3rd day of January, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Division of Administr ative 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 3rd day of Janu ary, 2003.

COPIES FURNISHED :

Robert O. Beasley, Esquire

Litvak & Beasley, LLP

220 West Garden Street, Suite 205

Post Office Box 13503

Pensacola, Florida 32591 - 3503

Jack W. Crooks, Esquire

Department of Agriculture and

Consumer Services

407 South Cal houn Street

Room 520, Mayo Building

Tallahassee, Florida 32399 - 0800

Honorable Charles H. Bronson

Commissioner of Agriculture

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

Richard Dits chler, General Counsel

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

Brenda D. Hyatt, Bureau Chief

Bureau of License and Bond

Department of Agriculture and

Consumer Services

407 South Cal houn Street

Mail Stop 38

Tallahassee, Florida 32399 - 0800

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.