04-003053 Department Of Agriculture And Consumer Services vs. Atlas Termite And Pest Control Of Cantonment And Joyce Beard Status: Closed Recommended Order on Wednesday, May 25, 2005.

Summary: The Respondent, who was the certified operator in charge, did not personally supervise and participate in pest control activities. Recommend that Respondent`s license be revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3053

)

ATLAS TERMITE AND PEST )

CONTROL OF CANTONMENT, INC., )

AND JOYCE BEARD, Certified )

Operator in Charge, )

)

Respondents. )

)

RECOMMENDED ORDER

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

2005, and March 23, 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 Buildi ng, 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 Respo ndents committed 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 issued an Administrative Complaint consisting of four

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 Ms. Joyce

Beard, certified operator - in - charge (COIC) of Atlas Termite and

Pest Control of Cantonment.

Respondents disputed the allegations in the Administrative

Complaint and, through counsel, requested a formal

administrative hearing. The case was referred to the Division

of Administrative 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 add additional allegations

to the Complaint. The motion was granted. However, the new

allegations of the Amended Administrative Complaint were not be

addressed u ntil a continuation of the hearing which took place

on March 23, 2005.

Including the allegations in the Amended Administrative

Complaint, the Department alleged violations of Sections

482.071(1) and (2)(a), 482.121(1), and 482.151, Florida

Statutes , 1/ and Florida Administrative Code Rule 5E - 14.142(3)(a)

and (b).

At the commencement of the second day of hearing,

Petitioner made a second motion to amend the Administrative

Complaint. The motion was denied.

This case was consolidated for purposes of hearin g only

with Case Nos. 04 - 3052 and 04 - 3054. At hearing, Petitioner

withdrew Count 3 of the Administrative Complaint. Petitioner

presented the testimony of Clinton Killingsworth, Clifford

Killingsworth, Joe Parker, and Steven Dwinell. Petitioner's

Exhibit s A - 1 through A - 4 were admitted into evidence. The

Respondents presented the testimony of Joyce Beard.

A transcript consisting of four volumes was filed on

April 20, 2005. The parties timely submitted Proposed

Recommended Order s, which have been conside red in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. 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.

2. At all times mate rial to this case, Joyce Beard was the

Certified Operator in Charge (COIC) of Atlas Termite and Pest

Control Of Cantonment, Inc.

Counts 1 and 2

3. Counts 1 and 2 of the Administrative Complaint allege

as follows:

Count 1 During an inspection on July 11,

2003, the Department found that Atlas

Termite and Pest Control of Cantonment

operated an unlicensed business location at

9100 Hamman Avenue, Pensacola, at which

sales solicitations were made and

remuneration received. This is a violation

of Chapters 482.0 71(1) and (2), Florida

Statutes.

Count 2 During an inspection on July 11,

2003 the Department found that Atlas Termite

and Pest Control of Cantonment phone numbers

terminated in an unlicensed location as 9100

Hamman Avenue. This is a violation of

Chapte r 5E - 14.142(3)(b).

4. Atlas Termite and Pest Control of Cantonment,

(hereinafter Atlas) is physically located at 4141 Pine Forest

Road in Cantonment, Florida, and is listed at this address on

its application for business license filed with the Department .

Cantonment is located in Escambia County near Pensacola,

Florida. Two other pest control companies, Environmental

Security of Okaloosa, Inc., and Killingsworth Environmental,

Inc., a/k/a KEFL, Inc., are located at the same address.

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 Killingsworth and

Clinton Killingsworth 2/ are the managers of Home Services.

6. The record is unclear as to whether Atlas ever entered

into any written agreement with Home Services. However, H ome

Services did perform certain services for Atlas.

7. Atlas has a full - time employee, Angie Foster, who

answers the ph ones and performs administrative tasks at 4141

Pine Forest Road. When Ms. Foster has to leave the office, the

calls to Atlas may be forwarded to Home Services. When the

phone call is forwarded, the telephone number for Atlas listed

in the local telephone directory terminates at Home Services.

Home Services also answers calls for Environmental Security of

Okaloosa, Inc. and Killingsworth Environmental, Inc.

8. Home Services employees do not make "cold calls" to new

customers. They contact customers wi th 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 co ntact 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 pest

control company, not to Home Services. Payments from customers

for pest control services are deposited into the account of the

appropriate pest control company, including Atlas when

appropriate.

11. No evidence was presented that 9100 Hamman Avenue is

an advertised permanent location of Atlas from which bu siness

was solicited, accepted, or conducted.

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

Clinton Killingsworth, a manager of Home Services, took steps to

get Home Services licensed as a pest control company. He did

this because it was hi s understanding that the Department took

the position that Home Services was in the business of

practicing pest control services. He employed his brother,

Daniel Killingsworth, to be the required licensed person in

charge, and contacted several insurance companies to obtain the

required insurance. He had difficulty in obtaining the required

insurance since Home Services does not offer pest control

services. Despite these difficulties, Home Services was issued

a license in December 2003.

Count 4

1 3 . Coun t 4 of the Administrative Complaint reads as

follows:

During inspections conducted on July 11,

2003 and July 16, 2003, the Department found

that service vehicles are marked with

unregistered fictitious name - Atlas

Environmental Pest and Termite Control.

Th is is a violation of Chapter 5E -

14.142(3)(a), Florida Administrative Code.

1 4 . During inspections, Department investigators saw

trucks with the logo, "Atlas Environme ntal Pest and T ermite

Control" on the side of the trucks. When shown a photograph of

those trucks, Ms. Beard believed the trucks to be Alabama

trucks, not Florida trucks. Ms. Beard is also licensed in

Alabama although the name of the company in Alabama is not clear

from the record. The word "Environmental" is not in the name of

the compa ny, Atlas Termite and Pest Control of Cantonment,

licensed to do business in Florida.

15 . Many of the trucks used by Atlas at the time of the

inspection had defective brakes and transmission problems. Both

Florida trucks and Alabama trucks had these pr oblems. Many of

the trucks were recalled and were taken off the road. According

to Ms. Beard, the trucks shown parked in one of the photographs

were parke d waiting until they would be r epaired . Alabama

trucks were parked in the same area as the Florida trucks that

were being recalled. However, when asked why a truck with Atlas

Environmental Pest and Termite Control was parked at 1830 Galvez

Road in Gulf Breeze, she responded that it was being used to

transport chemicals to a man in that area. One photo graph taken

by an investigator clearly shows a man inside one of the trucks

standing next to a large barrel inside the truck . The word

"Environmental" is clea rly written on the truck as part of the

company logo .

16 . Atlas has sold some of their trucks. When asked at

her deposition taken on December 9, 2004, whether Atlas still

owned any trucks, Ms. Beard responded , "I believe we have a

couple of smaller ones. I don't know that we have any of the

larger ones left that are not up for sale."

Un numbered Count of Amended Administrative Complaint

17 . The Amended Administrative Complaint contains one

additional count which reads in pertinent part as follows:

Joyce Beard does not perform the duties of a

certified operator as set forth in Section

482 .152, Florida Statutes. There is only

one other employee of Atlas and her duties

are limited to clerical duties in the

office. Virtually all of the actual pest

control treatments done in the name of Atlas

are performed by the company by which they

are em ployed, not Ms. Beard. Atlas is in

fact a shell company consisting of Ms. Beard

who does not work full time and a clerical

employee. She is not in charge of the pest

control activities of the licensee, Atlas in

the categories covered by her certificate.

This constitutes a misuse of her certificate

by Ms. Beard and also by A tlas, which is a

violation [sic] Section 482. 121, Florida

Statutes.

The Amended Administrative Complaint also references Section

482.152, Florida Statutes.

1 8 . Atlas has only two e mployees: Joyce Beard and Angie

Foster. In addition to being Atlas' COIC, she is Atlas' only

corporate officer, serving as p resident, s ecretary, and

t reasurer. Ms. Beard has been in the pest control business for

over 30 years.

19 . Atlas does not employ any pest control technicians.

Atlas subcontracts with Killingsworth Environmental, Inc., a/k/a

KEFL, to perform the actual pest control services. The

employees of KEFL actually go out into the field to perform the

jobs that are subcontracted by Atlas to KEFL.

20 . The last time Ms. Beard performed pest control

treatment was approximately 1999 or early 2000. However, she

"goes behind them a lot" to check to see that the work has been

done. Ms. Beard has a physical disability that interferes with

or pre vents her from doing pest control work. Her disability

impedes her ability to climb stairs, work all day without a nap,

and maintain her equilibrium. She acknowledges that she is "not

as sharp as she used to be."

21 . Subcontractors for Atlas primarily p rovide treat ment

for residential customers, and some commercial customers . Atlas

presently does not accept new customers , but services current

customers under contract.

2 2 . Ms. Beard lives across the street from the business

location of 4141 Pine Fores t Road. She has the ability to keep

in communication with technicians out in the field through a

computer, fax machine, and by using mobile phones w h i c h are

equipped with radios and cameras. Technicians of the

subcontracting company carry radios and phon es with cameras on

them on wh ich a picture can be transmitted to her on her mobile

phone or via the Internet.

23 . Ms. Beard's level of participation and supervision can

best be described in her words:

Q: Are you currently in charge of all of

the busine ss activities of Atlas Termite and

Pest Control of Cantonment, Inc.?

A: Yes.

Q: Are you currently a full - time employee

of Atlas Termite and Pest Control of

Cantonment, Inc.?

A: Yes.

Q: Have you been a full - time employee of

Atlas s ince you've beco me a CPO?

A: Yes.

Q: Is your employment with Atlas your

primary o ccupation?

A: Yes, absolutely.

Q: Since your certification of Atlas CPO,

has your employment with Atlas always been

your primary occupation?

A: Yes, absolutely.

Q: Have you always or do you now personally

supervise and participate in the pest

control activities of Atlas regarding the

selection of the proper chemicals for

particular pest control work performed?

A: I did do all of that when there was

nobody doing the work except st rictly Atlas

employees. Now that it is subcontracted

out, I supervise, but I'm not always the

primary one to make that determination. I

can do it, but I have no need to do it.

Q: If Atlas had subcontracted the job to

another company, who is the CPO the n that

would be in charge of the chemical side of

the whole thing?

A: Whoever is the CPO with that company.

And I might add that, you know, I don't deal

with anybody that's --- except CPO's with

expertise in a lot of different fields

including building co nstruction and biology

and chemistry. And they're not just simply

CPO's. They are degreed professionals with

the expertise to do it.

Q: Let me ask you: Have you always and do

you now personally supervise and participate

in the pest control activities of Atlas

regarding the safe and proper use of

pesticides?

A: Well, there again, I have in the past

entirely. I could in the future, but I do

not presently do that because that is passed

on to the subcontractor.

Q: Atlas has employees, doesn't it?

A: Yes.

Q: But presently it doesn't have any

employees that apply pesticide?

A: No.

Q: During the time that Atlas had employees

that applied pesticide, did you supervise

and participate in the training regarding

the correct concentration in the formul ation

of those pesticides?

A: Yes, I did absolutely every day.

Q: A nd secondly, the same question -- A

similar question is: Do you now and did you

then supervise and participate in the pest

control activities of Atlas regarding the

training of person nel in the proper and

acceptable methods of pest control?

A: I did then to the extent of seeing that

it was don e. It was a lot of times done in

a group format with other companies, so I

was not always the one who was doing the

presentation. Although, t he presentation

was done by people who were sanctioned by

the Department, and then I do it entirely

for Atlas myself. Although they can't get

their CP U's [sic] from me, but we held

training sessions and so forth. At the

present time, I do not because I'm not over

th o se employees.

Q: What are some of the ways that an

employee of yours at Atlas could get their

appropriate, proper and acceptable training,

I guess you would call then the C E U's?

A: If they were an employee of Atlas?

Q: Yes.

A: You ca n get them over the Internet

easily now.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fl a. Stat.

25. Because the Department seek s the imposition of

administrative fines and license revocation, 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 Ste rn and Company ,

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

26. Section 482.161(7), Florida Statutes, 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 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

thi s 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; . . . .

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

read as follows:

(1) The department 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

transfer 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 to 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.

28. Subs ections 482.121(1) and (2), Florida Statutes, read

as follows:

(1) A certified operator may not allow her

or his certificate to be used by a licensee

to secure or keep a license unless:

(a) She or he is in charge of the pest

control activities of the li censee in the

category or categories covered by her or his

certificate;

(b) She or he is a full - time employee of

the licensee; and

(c) Her or his primary occupation is with

the licensee.

(2) A licensee may not use the certificate

of any certified ope rator to secure or keep

a license unless the holder of the

certificate is in charge of the pest control

activities in the category or categories of

the licensee covered by the certificate.

29 . Section 482.152, Florida Statutes , reads as follows:

Dutie s of certified operator in charge of

pest control activities of licensee. -- A

certified operator in charge of the pest

control activities of a licensee shall have

her or his primary occupation with the

licensee and shall be a full - time employee

of the licen see, and her or his principal

duty shall include the responsibility for

the personal supervision of an participation

in the pest control activities at the

business location of the license as the same

relate to:

(1) The selection of proper and correct

c hemicals for the particular pest control

work performed.

(2) The s afe and proper use of the

pesticides used.

(3) The correct concentration and

formulation of pesticides used in all pest

control work performed.

(4) The training of personnel i n the proper

and acceptable methods of pest control.

(5) The control measures and procedures

used.

(6) The notification of the department of

any accidental human poisoning or death

connected with pest control work performed

on a job she or he is su pervising, within 24

hours after she or he has knowledge of the

poisoning or death.

30. 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 solicitat ion of a bid

from a licensee to be incorporated in an

overall bid by an unlicensed primary

contractor to supply services to another.

31 . Florida Administrative Code Rule 5E - 14.142(3)(a) and

(b), reads as follows:

(3) Advertising:

(a) Pest contr ol advertising on service

vehicles, in telephone directories or other

advertising media shall in all cases be

factual and shall be set forth only under

the license’s name or trade name registered

with the Department. Unregistered

fictitious names are proh ibited.

(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

nu mbers. 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.

3 2 . As to Count 1, there was no evidence presented that

9100 Hamman Avenue was an advertised permanent location of Atlas

from which business was solicited, accepted, or conducted.

Accordingly, the Department has not met its burden of

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

Florida Statutes, occurred.

33 . As to Count 2, the Department has met its burden

proving that a violation of Florida Administrative Code Rule

5E - 14.142(3)(b) occurr ed in that the telephone number used in

the acceptance of pest control business does not terminate in

the l icensed business location of Atlas. It does, however,

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

Services.

34 . As to Count 4, the Department has met its burden that

Atlas included on its service vehicle parked at 1830 Galvez

Drive, a n unregistered fictitious name , i.e., Atlas

Environmental Pest and Termite Control.

35 . As to the allegations in the Amended Administrative

Complaint, Respondents argue that the statutes do not require a

pest control company to have a certain number of em ployees and,

further, that neither the statutes nor rules prohibit

subcontracting.

36 . While subcontracting is not expressly prohibited, this

is not a situation wherein a COIC subcontracts out a particular

job. Under the circumstances of this case, Atla s subcontracts

all of its pest control work. There are no employees to

supervise.

37 . Section 482.152, Florida Statutes, sets forth

requirements that must be met by the certified operator in

charge. Ms. Beard meets the initial requirements i.e., her

p rimary occupation is with Atlas as a full - time employee.

However, while she can and does observe certain work done by

employees of other companies through electronic communication,

the statute clearly requires the "personal supervision of and

participatio n in the pest control activities at the business

location of the licensee." Ms. Beard's activities as described

by her do not meet this fundamental statutory requirement.

Accordingly, the Department met its burden that a violation of

Section 482.152, Flo rida Statutes, occurred.

38 . Similarly, the Department has met its burden that a

violation of Section 482.121, Florida Statutes, has occurred, in

that Atlas is using the certificate of a certified operator to

keep a license when the holder is not in charg e of the pest

control activities of Atlas.

39 . Section 482.121(3), Florida Statutes , further states

that if a certificate is used in violation of the law, the

Department may revoke the license of the pest control business

or the certified operator's cer tificate, or both.

40 . 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 Atlas

terminating at a location other than the licensed business

location.

41 . The Department seeks to impose a fine of $2,000 for

the violation of Florida Administrative Code Rule 5E -

14.142(3)(a) for using an unregistered fictitious name in a logo

on service vehicles.

42 . The Department seeks revocation of Ms. Beard's COIC

lic ense and Atlas' license.

43 . 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. The Departmen t also

offered testimony as to its recommendation of revocation of

Respondents' licenses.

44 . Based upon the express wording of Section s 482.212 and

482.152, Florida Statutes, revocation is, while harsh, an

appropriate penalty.

45 . Due to the disposition of Respondents' license and

certificate , any further administrative fine is excessive and

not necessary, in particular since there is virtually no risk of

harm to the public's health or safety for the other violations.

RECOMMENDATION

Based upon the for egoing Findings of Fact and Conclusions

of Law set forth herein, it is,

RECOMMENDED :

T hat a final order be entered revoking the ce rtificate of

Ms. Beard and the l icense of Atlas.

DONE AND ENTERED this 25 th day of May, 2005, in

Tallahassee, Leon Coun ty, 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 2 5 th day of May, 2005.

ENDNOTE S

1 / All references to Florida Statutes are to 2004 unless

otherwise indicated .

2/ Clinton Killingsworth is the owner and COIC of Environmental

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

Clifford Killingsworth is the owner and COIC of Killingsworth

Environmental, Inc., Respondents i n Case No. 04 - 3052.

COPIES FURNISHED :

Robert O. Beasley, Esquire

Lit vak & Beasley, LLP

220 West Garden Street, Suite 205

Post Office Box 13503

Pensacola, Florida 32591 - 3503

David W. Young, Esquire

Department of Agriculture and

Consumer Services

407 South Calhoun Street

Room 520, Mayo Building

Tallahassee, Florida 3239 9 - 0800

Honorable Charles H. Bronson

Commissioner of Agriculture

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

Richard Ditschler, General Counsel

Department of Agriculture and

Consume r Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

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 Recommen ded Order should be filed with the agency that

will issue the final order in this case.