04-003052 Department Of Agriculture And Consumer Services vs. Killingsworth Environmental, Inc., A/K/A Kefl, Inc. Status: Closed Recommended Order on Wednesday, May 25, 2005.

Summary: Petitioner proved two violations. The telephone number did not terminate at the licensed business location and the location where pesticides were stored was not disclosed on the application. The other alleged violations were not proven.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3052

)

KILLINGSWORTH ENVIRONMENTAL, )

INC., a/k/a KEFL, INC., AND )

CLIFFORD KILLINGSWORTH, )

Certified Operator in Charge, )

)

Respondents. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice on January 13 and 14,

2005, before Barbara J. Staros, duly - designated Administrative

Law Judge of the Division of Administrative Hearings, via video

teleconferencing in Pensacola and Tallahassee, Florida.

APPEARANCES

For Petitioner: David W. Young, Esquire

Department of Agriculture and

Consumer Services

407 South Calhoun Street

Mayo Building, Room 520

Tallahassee, Florida 32399 - 0800

For Respondents: Robert O. Beasley, Esquire

Litvak & Beasley, LLP

220 West Garden Street, Suite 205

Post Office Box 13503

Pensacola, Florida 32591 - 3503

STATEMENT OF THE ISSUES

Whether Respondent com mitted the violations set forth in

the Administrative Complaint, as amended, and, if so, what

penalty should be imposed.

PRELIMINARY STATEMENT

On July 7, 2004, the Department of Agriculture and Consumer

Services (the Department) issued an Administrative Co mplaint

consisting of 16 counts. The Administrative Complaint charged

Respondents with violations of pertinent provisions of Chapter

482, Florida Statutes, and Florida Administrative Code Chapter

5E - 14.

The Administrative Complaint was addressed to Mr. C lifford

Killingsworth, certified operator - in - charge of Killingsworth

Environmental, Inc.

Respondents disputed the allegations in the Administrative

Complaint and requested a formal administrative hearing. The

case was referred to the Division of Admi nistrative Hearings on

or about August 30, 2004. A formal hearing was set for

November 3, 2004. Respondents filed a Motion for Continuance of

the hearing, which was granted. The hearing was rescheduled for

January 13 and 14, 2005.

On January 10, 2005, Petitioner filed a Motion to Amend

Administrative Complaint seeking to amend Count 10. The motion

was granted.

Prior to hearing, the parties resolved the issues in

several of the counts of the Administrative Complaint leaving

four counts remaining which alleged violations of Subsections

482.071(1) and (2)(a), Florida Statutes, 1/ and Florida

Administrative Code Rules 5E - 14.142(3)(b), (5)(f) and (g) and

5E - 14.106(4).

At the commencement of the second day of the hearing,

Petitioner made a second motion to a mend the Administrative

Complaint. The motion was denied.

This case was consolidated for purposes of hearing only

with case Nos. 04 - 3053 and 04 - 3054. At hearing, Petitioner

presented the testimony of Charles Wood, Clinton Killingsworth,

Clifford Killing sworth, Joe Parker, Gary Stanford, Bruce Nicely,

Michael Page, and Steven Dwinell. Petitioner's Exhibits K - 1

through K - 9 were admitted into evidence. Respondents presented

the testimony of Steven Dwinell and Clifford Killingsworth.

Joint Exhibit 1 was a dmitted into evidence.

A transcript consisting of three volumes was filed on

April 20, 2005. The parties timely submitted Proposed

Recommended Order s, which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petition er 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.

2. At all times material to this case, Clifford

Killingsworth was the owner and Certified Operator in Charge

(COIC) of Killingsworth Environmental, Inc., d/b/a Environmental

Security, a/k/a KEFL, Inc., a licensed pest control company in

Cantonment, Florida.

Counts 9 and 11

3. Counts 9 and 11 of the Administrative Complaint allege

as follows:

Count 9 Dur ing an inspection on July 11,

2003, the Department found that

Killingsworth Environmental, Incorporated

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 11 During an inspection on July 11,

2003 the Department found that Killingsworth

Environmental, Incorporated phone numbers

terminated in an unlicensed location at 9100

Hamman Avenue. This is a violation of

Chapter 5E - 14.142(3)(b).

4. Killingsworth Environmental, Inc., d/b/a Environmental

Security, a/k/a KEFL (hereinafter KEFL), is physically located

at 4141 Pine Forest Road in Cantonment, Florida, and is listed

at this address on its app lication for business license filed

with the Department. Cantonment is located in Escambia County

near Pensacola, Florida. Two other pest control companies,

Environmental Security of Okaloosa, Inc., and Atlas Termite and

Pest Control of Cantonment, Inc., are located at the same

address.

5. 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 Killi ngsworth and

Clinton Killingsworth 2/ are the managers of Home Services.

6. On March 26, 2002, KEFL entered into a Management and

Marketing Agreement with Home Services, executed by Clifford

Killingsworth on behalf of KEFL and by Clinton Killingsworth on

b ehalf of Home Services.

7. Since that agreement was signed, the telephone number

for KEFL listed in the local telephone directory terminated at

Home Services. Home Services also answers calls for

Environmental Security of Okaloosa and Atlas Termite and Pest

Control of Cantonment, Inc. Through their computer system and

caller ID, the Home Services employee knows which company is

being called and answers accordingly.

8. 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 call s, 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.

9. 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.

10. 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 p est

control company, not to Home Services. Payments from customers

for pest control services are deposited into the account of the

appropriate pest control company.

11. No evidence was presented that 9100 Hamman Avenue is

an advertised permanent location of KEFL from which business was

solicited, accepted, or conducted.

12. After the July 11, 2003, inspection of Home Services,

Clinton Killingsworth, Clifford Killingsworth's brother, took

steps to get Home Services licensed as a pest control company.

C lifford 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

pe rson in charge, and contacted several insurance companies to

obtain the required insurance. He had difficulty in obtaining

the required insurance since Home Services does not offer pest

control services. Despite these difficulties, Home Services was

issu ed a license in December 2003.

Count 10

13. Count 10 of the Administrative Complaint, as amended,

reads as follows:

During an inspection on July 16, 2003, the

Department found that Killingsworth

Environmental, Incorporated stored

pesticides at an unlicens ed 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,

Killingsworth Environmental, Inc., regularly

parked trucks containing p esticide 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 busine ss, and its

employees received by facsimile daily work

assignments that were sent to them at that

location. That the Respondent,

Killingsworth Environmental, Inc operated an

unlicensed business location at 1830 Galvez

Road, Gulf Breeze, Florida, in violat ion of

Section 482.071(2)(a), Florida Statutes. [3/]

14. The property located at 1830 Galvez Drive is

surrounded by a locked fence and contains a structure. The

structure is not enclosed. Both KEFL and Environmental Security

of Okaloosa park trucks there overnight.

15. The Department conducted an inspection of 1830 Galvez

Drive on July 16, 2003. When the inspectors arrived, the gate

to the property was locked and the trucks were locked. They

entered the property when pest control employees arriv ed. On

the day of the inspection, the Department's inspectors found

unmixed chemicals in the trucks.

16. Clifford Killingsworth acknowledges that at the time

of the inspection, company trucks parked at the Galvez Drive

location overnight and pesticides we re in the locked trucks.

17. Company records or contracts are not stored at the

Galvez Drive location. No customer contact takes place at or

from the Galvez Drive location.

18. The Pest Control Business License Application Form

contains a space in whi ch 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 licensed business location."

19. The applications for business l icense for KEFL d/b/a

Environmental Security do not reference 1830 Galvez Road as a

location where storage of chemicals occurs. KEFL does not have

a license for operating a business at this location.

20. 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 Galve z Drive with the number 916 - 7731. 4/

21. 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. Clifford 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 remove the erroneous

listing a number of times.

Count 13

22. Count 13 of the Administrative Complaint reads as

follows:

During an inspection on July 11, 2003 the

Department found that pest icide was kept at

4141 Pine Forest Road in a container other

than application equipment and not

accurately identified through the use of

permanent, durable label or tag, showing the

common or chemical name(s) of principal

active ingredients(s), which is a violation

of Chapter 5E - 14.106(4), Florida

Administrative Code.

23. On July 11, 2003, the Department conducted an

inspection of KEFL's business location, 4141 Pine Forest Road.

One of the inspectors that day was Bruce Nicely, a regional

supervisor o f the Department's Bureau of Entomology and Pest

Control. He was accompanied by Paul Matola of the Department,

who did not testify at the hearing. During the inspection,

Clifford Killingsworth opened a storage trailer for inspection.

Mr. Killingsworth d escribed the trailer as a jug disposal

trailer, where empty jugs and drums were stored until they could

be recycled or disposed of properly.

24. At the back of the trailer, Mr. Nicely found a two -

and - one - half gallon unmarked jug inside a five - gallon buc ket.

An unidentified substance was inside the jug.

25. Mr. Nicely took a sample of the substance inside the

jug, pouring it directly into an eight - ounce sample jar. He

labeled the jar "PHY number 07110346060107" and placed the

sample in a sealed sample collection bag which was put in a

cooler of ice. When completing the pesticide collection report,

he wrote "pesticide screen" in a blank after the words, "List

active ingredient(s) and/or compounds to analyze for."

Mr. Nicely then gave the sample to Stev en Dwinnel, at 4:35 p.m.

on July 11, 2003. 5/

26. Mr. Dwinnel relinquished the sample to Mike Page at

8:03 p.m. on July 11, 2003. At the time, Mr. Page was the

director of the Department's pesticide laboratory. Mr. Page has

an undergraduate degre e in chemistry and a graduate degree in

toxicology and pharmacology with over 16 years of experience as

an analytical chemist. When Mr. Page received the pesticide

collection report, the word "Lindane" also appeared on the

report along with the request fo r a pesticide screen. It is not

clear who wrote the word "Lindane" on the collection report or

when the word "Lindane" was written. According to Mr. Page, a

pesticide screen includes testing for Lindane. He therefore

concluded that whether or not the wo rd "Lindane" was included in

the request for analysis made no difference in the lab's

testing.

27. An analysis of the sample was performed revealing that

the sample contained a concentration of 34.2 percent Lindane and

46 parts per million of Chlorophyrif os. Mr. Page described the

amount of Chlorophyrifos compared to the Lindane as a minuscule

amount. Both Lindane and Chlorophyrifos are pesticides.

28. The undersigned is persuaded that the Department

appropriately maintained the chain of custody of th e sample

regardless of whether or not the word "Lindane" appeared on the

collection report. The fact that "Lindane" appeared on the

collection report sometime after Mr. Nicely relinquished it and

the sample is of no consequence as to the validity of the

l aboratory testing of the sample.

29. Clifford Killingsworth is uncertain as to whether his

company ever used Lindane but is certain that they have not used

it in recent years as it has been "off the market" since

approximately 1999.

30. Two other pest co ntrol companies, Environmental

Security of Okaloosa, Inc. and Atlas Termite and Pest Control of

Cantonment, Inc., also use the trailer from which the sample was

taken, to store empty pesticide containers. Clifford

Killingsworth does not know if the jug fr om which the sample was

taken belonged to his company. Although he was aware that his

company stored empty pesticide jugs in the trailer, he was

unaware that a jug in the trailer contained an unidentified

substance. When asked under cross - examination wha t he would

have done had he been aware of a jug containing an unidentified

substance, he answered that he probably would have called the

landfill to see when the next "roundup" would be as that is when

the landfill takes "unidentifieds."

CONCLUSIONS OF LA W

31. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat.

32. Because the Department seeks the imposition of

administrative 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).

33. Section 482.161(7), Florida S tatutes, states:

(7) The department, pursuant to chapter

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 this 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 deat h, 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 operator in charge, or limited

certificateholder, to correct the violation

or to remedy complaints; . . . .

34. Subsections 482.071(1) and (2)(a), Florida Statutes,

read as follows:

(1) The departme nt may issue licenses to

qualified businesses to engage in the

business of pest control in this state. It

is unlawful for any person to operate a pest

control business that is not licensed by the

department.

(2)(a) Before entering business or upon

tran sfer of business ownership, and also

annually thereafter, on or before an

anniversary date set by the department for

each licensed business location, each

person, partnership, firm, corporation, or

other business entity engaged in pest

control must apply t o the department for a

license, or a renewal thereof, for each of

its business locations. Applications must

be made on forms prescribed and furnished by

the department.

35. Subsections 482.021(2) and (21)(e), Florida Statutes,

read as follows:

(2 ) "Business location" means an advertised

permanent location in or from which pest

control business is solicited, accepted, or

conducted.

* * *

(21) "Pest control" includes:

* * *

(e) The advertisement of, the solicitation

of, or the acceptance of remuneration for

any work described in this subsection, but

does not include the solicitation of a bid

from a licensee to be incorporated in an

overall bid by an unlicensed primary

contractor to supply services to another.

36. Florida Administrative Code Rule 5E - 14.106(4)

provides:

(4) Pesticides kept in containers other

than application equipment shall be

accurately identified by permanent, durable

label or tag, showing the common or chemical

name(s) of principal active ingredient(s)

and provid ing information required by EPA

regulations or recommendations. . . .

37. Florida Administrative Code Rule 5E - 14.142(3)(b),

(5)(f) and (g), provides:

(3) Advertising:

* * *

(b) All pest control telephone directory

advertising, including direct - dial long

distance lines shall in all cases show the

licensee’s name or trade name registered

with the Department, complete licensed

business location address and telephone

n umbers. Blind (unidentified) telephone

numbers are prohibited. All telephone

numbers used in the solicitation and

acceptance of pest control shall terminate

in the licensed business location.

* * *

(5) Business license application: In

accordance with Section 482.071(1), F.S.,

the following information shall be submitted

on, attached to and made a part of the

Department’s pest control business license

application form, DACS 13605, Rev. 3/02,

incorporated by reference.

* * *

(f) The exact location ad dress where the

licensee’s records, including contracts, for

pest control work are kept and the exact

location address of storage of chemicals.

(g) A statement signed by the certified

operator(s) in charge that all information

given in Department busines s license

application is true and correct and that he

will promptly notify the Department in

writing of any subsequent changes thereof,

except change of home address and primary

duty of identification card holders other

than certified operators.

38. As to Count 9, there was no evidence presented that

9100 Hamman Avenue was an advertised permanent location of KEFL

from which business was solicited, accepted, or conducted.

Accordingly, the Department has not met its burden of

establishing that a violatio n of Section 482.071(1) and (2)(a),

Florida Statutes, occurred.

39. As to Count 11, the Department has met its burden of

proving that a violation of Florida Administrative Code Rule 5E -

14.142(3)(b) occurred in that the KEFL's telephone number used

in the acceptance of pest control business does not terminate in

the licensed business location of KEFL. It does, however,

terminate in a licensed business location; i.e. , that of Home

Services.

40. As to Count 10, the Department met its burden of

proving tha t a violation of Florida Administrative Code Rule 5E -

14.142(3)(f) and (g) occurred in that KEFL routinely stored

chemicals in trucks parked at 1830 Galvez Drive, which address

was not referenced on KEFL's application for license.

41. However, as to the remaining allegations of Count 10,

as amended, the undersigned is not persuaded that the failure to

list the 1830 Galvez Drive location on the application also

constitutes a violation of Section 482.071(1) and (2)(a),

Florida Statutes, in that KEFL did not advertise the Galvez Road

location as a place of business. The evidence established that

the yellow pages listing was made in error, not by any action of

Respondents. Further, the phone number which appears in the

yellow pages is of a fax line used inte rnally for work

assignments and is not a telephone number which the public uses

to call for pest control services.

42. As for Count 13, the Department has not met its burden

of proving that a violation of Florida Administrative Code Rule

5E - 14.106(3) occu rred. While the there was clear and convincing

evidence that the Department's chain of custody of the chemical

sample was handled appropriately, it did not prove that

Respondents herein failed to accurately identify a pesticide in

an unlabeled container. Other pest control companies and other

COIC's used the trailer. There was no proof that the container

belonged to KEFL or Clifford Killingsworth. Therefore, the

evidence does not prove that Respondents herein are responsible

for the container not being appropriately labeled.

43. The Department seeks to impose a fine of $2,500 for

the violation of Florida Administrative Code Rule 5E -

14.142(3)(b) for the telephone number of Respondent KEFL

terminating at a location other than the licensed business

locatio n.

44. The Department also seeks to impose a fine of $2,500

for the violation of Florida Administrative Code Rule 5E -

14.142(5)(f) and (g), for failing to disclose on the business

license application of Respondent KEFL that 1830 Galvez Drive is

an address where pest control chemicals were stored.

45. The Department offered testimony as to how the

suggested amounts of fine were determined based upon Section

482.161, Florida Statutes, and enforcement guidelines of the

Bureau of Entomology and Pest Control.

46. The suggested administrative fine of $2,500 for the

failure to list 1830 Galvez Drive as a location where pesticides

are stored is reasonable.

47. However, in calculating the suggested fine for the

telephone number not terminating in the licensed bu siness

location, the actions taken by the licensee to correct the

violation were not considered by the Department as required by

Section 482.161(7)(b), Florida Statutes. As there is virtually

no risk of harm to the public's health or safety, see Section

4 82.161(7)(a), Florida Statutes, and great efforts were made to

remedy the situation, this amounts to a technical violation and

a de minimus penalty of $100 is more appropriate.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of La w set forth herein, it is

RECOMMENDED that a final order be entered assessing a fine

against Respondents in the amount of $2,600.

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.

ENDNOTES

1/ All references to Florida Statutes are to 2004 unless

otherwise indicated.

2/ Clinton Killingsworth is the owner and COIC of Environmental

Se rvices of Okaloosa, Inc., Respondents in Case No. 04 - 3054

heard simultaneously with the instant case. Clifford and

Clinton Killingsworth are brothers.

3/ The correct address is 1830 Galvez Drive.

4/ Both KEFL and Environmental Security o f Okaloosa do business

under the name "Environmental Security."

5/ Mr. Dwinnel is Assistant Director of the Department's

Division of Agriculture and Consumer Services. He Previously

held the title of Chief of the Bureau of Entomology and Pest

Control. The record is unclear which title he held at the time

of the inspection.

COPIES FURNISHED :

Robert O. Beasley, Esquire

Litvak & Beasley, LLP

220 West Garden Street, Suite 205

Post Office Box 13503

Pensacola, Florida 32591 - 3503

David W. Young, Esq uire

Department of Agriculture and

Consumer Services

407 South Calhoun Street

Room 520, Mayo Building

Tallahassee, Florida 32399 - 0800

Honorable Charles H. Bronson

Commissioner of Agriculture

Department of Agriculture and

Consumer Services

The C apitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

Richard Ditschler, General Counsel

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parti es 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.