04-003054 Department Of Agriculture And Consumer Services vs. Environmental Security Of Okaloosa And Clinton Killingsworth 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 were not disclosed on the application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3054

)

ENVIRONMENTAL SECURITY OF )

OKALOOSA, INC. , AND CLINTON )

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 Administra tive 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

Tallah assee, 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 committed the vi olations 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 Complaint

consis ting of 11 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 sent to Mr. Clinton

Killingswort h, certified operator - in - charge (COIC) of

Environmental Security of Okaloosa, Inc., d/b/a Environmental

Security of Okaloosa.

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 reschedul ed for January 13 and 14, 2005.

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

Administrative Complaint seeking to amend Count 5. The motion

was granted.

Prior to hearing, the parties resolved the issues in

several of the counts of the Admin istrative Complaint leaving

three counts remaining which alleged violations of Section

482.0 71(1) and (2), Florida Statutes, 1/ and Florida

Administrative Code Rule 5E - 14.142(3)(b)and (5)(f) and (g).

At the commencement of the second day of the hearing,

Pe titioner made a second motion to amend the Administrative

Complaint. The motion was denied.

This case was consolidated with Case Nos. 04 - 3052 and

04 - 3053. At hearing, Petitioner presented the testimony of

Charles Wood, Clinton Killingsworth, Clifford Killingsworth,

Joe Parker, Gary Stanford, Bruce Nicely, Michael Page, and

Steven Dwinell. Petitioner's Exhibits E - 1 through E - 8 were

admitted into evidence. The Respondents presented the testimony

of Steven Dwinell.

A transcript consisting of three vo lumes 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. Petitioner is an agency of the State of Florida charged

with regul ating the operation of the pest contro l industry

pursuant to Section 482.032, Florida Statutes.

2. 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 opera ted

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 t he 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).

4. Environmental Security of Okaloosa, Inc., d/b/a

Environmental Securi ty, 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 c ontrol companies,

Killingsworth Environmental, 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

Manag ement, 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. On March 26, 2002, entered into a Management and

Marketing Agreement wit h Home Services, executed by Clinton

Killingsworth on behalf of E nvironmental Security of Okaloosa

and by Clifford Killingsworth on behalf of Home Services.

7. 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.

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

customers. They receive cal ls 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.

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 ser vices. 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.

11. 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.

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

Clinton Killingsworth took steps to get Home Services licensed

as a pest control company. Mr. Kill ingsworth 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 char ge, 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

13. 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 busines s 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 pest icide 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 vi olation of Section

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

14. 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 Enviro nmental park trucks there overnight. They

entered the property when the pest control employees arrived.

15. 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.

16. Clinton Killingsworth acknowledges that at the time of

the inspection, company trucks parked at the Galvez Drive

location overnight and pesticides were in th e 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 which the l icensee 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."

19. 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.

20. The yellow pages for the Pe nsacola 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/

21. 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 fa x 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.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdict ion over the parties to and the subject matter of this

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

23. Because the Department seeks the imposition of

administrative fines, the agency has the burden of proving the

charged violations by clear and convinc ing evidence. Department

of Banking and Finance, Division of Securities and Investor

Protection v. Osborne Stern and Company , 670 So. 2d 932 (Fla.

1996).

24. 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

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; . . . .

25. 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 b usiness locations. Applications must

be made on forms prescribed and furnished by

the department.

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

read as follows:

(2) "Business location" means an advertised

permanent location in or from whic h 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 wor k 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.

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

(5)(f) and (g) reads as follows:

(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 l icensed

business location address and telephone

numbers. 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

appli cation form, DACS 13605, Rev. 3/02,

incorporated by reference.

* * *

(f) The exact location address where the

licensee’s records, including contracts, for

pest control work are kept and the exact

locati on address of storage of chemicals.

(g) A statement signed by the certified

operator(s) in charge that all information

given in Department business 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.

28. As to Count 4, there was no evidence presented that

9100 Hamman Avenue was an advertised permanent location of

E nvironmental Security of Okaloosa, Inc., 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.

29. As to Count 6, the Department has met its burden

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

14.142(3)(b) occurred in that Environmental Security's telephone

number used in the acceptance of pest control business does not

terminate in the licensed business location of Environmental

Security of Okaloosa. It does, however, terminate i n a licensed

business location, i.e. , that of Home Services.

30. As to Count 5, the Department met its burden of

proving that a violation of Florida Administra tive Code Rule 5E -

14.142(3)(f) and (g) occurred in that Environmental Security of

Okaloosa, Inc., routinely parked trucks with chemicals inside at

1830 Galvez Drive, which address was not referenced on

Environmental Security of O kaloosa's application for l icense.

31. However, 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 Environmental Security of

Okaloosa 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 us ed internally for work assignments and is not a

telephone number which the public uses to call for pest control

services.

32. 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 te lephone number of Respondent

Environmental Security of Okaloosa terminating at a location

other than the licensed business location.

33. 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

application of Respondent Environmental Security that 1830

Galvez Drive is an address where pest control chemicals were

stored.

34. 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.

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

failure to list 1830 Galvez Drive as a location where pest icides

are stored is reasonable.

36. However, in calculating the suggested fine for the

telephone number terminating in the licensed business location,

the actions taken by the licensee and the COIC to correct the

violation were not considered by the Depa rtment as required by

Section 482.161(7)(b), Florida Statutes. Mr. Killingsworth went

to great lengths to get Home Services licensed. As there is

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

Section 482.161(7)(a), Florida Statutes, and Respondent made

great effort to remedy the violation, this amounts to a

technical violation and a de minimus penalty of $100 is more

appropriate.

RECOMMENDATION

Having considered the foregoing Findings of Fact and

Conclusions of Law, the evidence of r ecord, the candor and

demeanor of the witnesses, and pleadings and arguments of the

parties, it is, therefore,

RECOMMENDED :

T hat a final order be entered assessing a fine against

Respondent Environmental Security of Okaloosa, Inc., in the

amount o f $2,600.00.

DONE AND ENTERED this 2 5 th 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 2 5 th day of May, 2005.

ENDNOTES

1/ All reference to Florida Statutes are to 2004 unless

otherwise indicated.

2/ Clifford Killingsworth is the owner and COIC of

Killingsworth Environmental, Inc., Respondents in Case No.

04 - 3052 heard simultaneously wi th the instant case. Clifford

and Clinton Killings worth are brothers.

3/ The correct address is 1830 Galvez Drive.

4/ Both Environmental Security of Okaloosa and Killingsworth

Environmental, Inc., do business under the name "Enviro nmental

Se curity."

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, 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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the da te 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.