05-000145RU Ronald Cirrincione vs. Department Of Agriculture And Consumer Services Status: Closed DOAH Final Order on Tuesday, January 3, 2006.

Summary: Petitioner failed to establish that the sending of an "opportunity letter" to persons under investigation and the process used to draft and review administrative complaints were rules.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD CIRRINCIONE, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0145RU

)

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, )

)

Respondent. )

)

FINAL ORD ER

Pursuant to notice, a final hearing was held in this case

on March 4, 2005, in Orlando, Florida, before Susan B. Harrell,

a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Howard J. Hochman , Esquire

Law Offices of Howard J. Hochman

7695 Southwest 104th Street

Suite 210

Miami, Florida 33156

For Respondent: David W. Young, Esquire

Department of Agriculture and

Consumer Services

Mayo Building, Suite 520

407 South Calhoun Street

Tallahassee, Florida 32399 - 0800

STATEMENT OF THE ISSUE

Whether the practices or procedures set forth in Par agraphs

6a and 6b of Petitioner's 2nd Amended Challenge to Agency

Statements constitute rules in violation of Subsection

120.54(4), Florida Statutes (2004). 1

PRELIMINARY STATEMENT

On January 18, 2005, Petitioner, Ronald Cirrincione

(Cirrincione), filed wit h the Division of Administrative

Hearings a Challenge to Agency Statements and an Amended

Challenge to Agency Statements, asserting that certain practices

or procedures of Respondent, Department of Agriculture and

Consumer Services (Department), constitute d rules within the

meaning of Subsection 120.52(1 5 ), Florida Statutes (2004), 2 and

violated the provisions of Subsection 120.54(1)(a), Florida

Statutes.

On February 24, 2005, Petitioner filed a Motion for Leave

to File 2nd Amended Challenge to Agency Sta tements. The motion

was granted.

At the final hearing, the parties did not present live

testimony. The following exhibits presented by Petitioner were

admitted in evidence:

1. Petitioner's Exhibit 1, the deposition of Steven

Dwinell, except for Exhibit C to the deposition, which was three

pages from the transcript of a deposition of Gary Stanford.

2. Petitioner's Exhibit 2, the deposition of Joseph

Parker.

3. Petitioner's Exhibit 3, the deposition of Michael Page.

4. Petitioner's Exhibit 4, the deposi tion of Steven J.

Rutz.

5. Petitioner's Exhibit 5, the deposition of Aliska Akers.

6. Petitioner's Exhibit 6, the deposition of Eric Reese.

7. Petitioner's Exhibit 7, the deposition of Gary

Stanford.

8. Petitioner's Exhibit 8, pages three through seven and

pages 83 through 85 of the deposition of Philip Helseth.

9. Petitioner's Exhibit 9, the deposition of Ronald

Cirrincione.

10. Petitioner's Composite Exhibit 10, the Administrative

Complaints filed by the Department of Agriculture and Consumer

Servic es against Ronald Cirrincione, DOAH Case Nos. 04 - 4317PL

and 04 - 4318PL.

11. Petitioner's Exhibit 11, the Administrative Complaint

filed by the Department of Agriculture and Consumer Services

against Ronald Cirrincione in Agency Case No. 31576, which was

vo luntarily dismissed.

The parties agreed to file their proposed orders within 20

days of the filing of the Transcript, which was filed on

April 14, 2005. On April 29, 2005, Petitioner filed a Motion

for Extension of Time to file proposed orders. The motio n was

granted, extending the time for filing proposed order s to May 9,

2005. The parties timely filed their proposed orders, which

have been considered in the rendition of this Final Order.

FINDINGS OF FACT

1. The Department is the state agency respons ible for

enforcing the provisions of Chapter 482, Florida Statutes, the

"Structural Pest Control Act." The Director of the Division of

Agricultural Environmental Services (Division) is appointed by

the Commissioner of Agriculture to serve at his pleasure and is

given the responsibility by Section 570.45, Florida Statutes, to

enforce the provisions of Chapter 482, Florida Statutes. The

Bureau of Entomology and Pest Control (Bureau), under the

Division Director's supervision and the supervision of the

Assis tant Director of the Division, Steven Dwinell, investigates

violations of Chapter 482.

2. The Department filed two Administrative Complaints

against Cirrincione, alleging that he violated Florida

Administrative Code Rule 5E - 14.016(1) by failing to wear

ne cessary protective equipment as stated on the label for the

pesticide he was applying and Florida Administrative Code Rule

5E - 14.106(6) by applying a deficient concentration of pesticide

for preconstruction soil treatments for prevention of

subterranean te rmites.

3. The evidence at final hearing did not establish that

Cirrincione was a licensee, certified operator , or special

identification cardholder as those terms are defined in Section

482.021, Florida Statutes. At the time of the alleged

violations, Cirrincione was an employee of Diligent

Environmental Services. As an employee of Diligent

Environmental Services, Cirrincione applied pesticides during

preconstruction pest control treatments and would be subject to

disciplinary actions pursuant to Sect ion 482.161, Florida

Statutes.

4. Cirrincione filed a challenge to certain practices and

procedures of the Bureau relating to the investigative

activities of the Bureau and its staff, alleging that the

practices and procedures were unpromulgated rule s. These

practices and procedures are described in Paragraphs 6a and 6b

of Petitioner's 2nd Amended Challenge to Agency Statements.

Paragraph 6a provides:

The practice of selectively advising pest

control licensees in writing, that they are

under investi gation for possible violations

of Florida Statute 482 and/or its associated

administrative rules and requesting their

licensees to respond to subject allegations

with information, records, or documentation.

This procedure is utilized when the

Department e ither needs additional

information in connection with their

investigation or if they anticipate a

substantial penalty, consisting of a

$5,000.00 administrative fine, suspension,

or revocation.

5. Paragraph 6b of Petitioner's 2d Amended Challenge to

Agen cy Statements provides:

There is a regularly employed multiple step

procedure pursuant to which the Department

makes the determination of whether or not to

take disciplinary action against its

licensees based inter alia upon the field

inspector's investiga tive report. This

procedure includes a preliminary

determination that there is a sufficient

factual and legal basis for disciplinary

action which is characterized by the

Department as the showing of "sufficient

documentation." This preliminary

disciplina ry decision is made by a case

reviewer who is then charged with the

responsibility of drafting an administrative

complaint consistent with his or her

findings. The case reviewer's findings are

then reviewed by the Environmental

Manager/Enforcement Coordin ator who, subject

to any corrections , forwards the

administrative complaint and associated

documentation to the Assistant Division

Director and Chief Officer of the Office of

Entomology for final review. Ultimately,

the Chief will execute the administrati ve

complaint. The administrative complaints

also include an addendum with a description

of administrative penalties sought by the

Department based upon policy guidelines.

6. The Pest Control Enforcement Advisory Council (Council)

is created within the D epartment of Agriculture and Consumer

Services "to advise the Commissioner of Agriculture regarding

the regulation of pest control practices." § 482.243(1), Fla.

Stat. At its November 20, 2003, meeting, the Council adopted

unanimously Enforcement Respons e Guidelines, which included the

following policy:

When the disciplinary action to be sought as

a result of this process is a monetary fine

in excess of $5,000, or the suspension or

revocation of a license, the Department will

send a certified letter to th e address of

record notifying the responsible party that

the Department intends to issue an

administrative complaint. The responsible

party will be given 14 working days to

contact the Department to provide facts and

arguments to the Department to conside r to

either modify the proposed administrative

complaint, mitigate the proposed enforcement

action, or to conclude that the proposed

action should not be taken. If the

certified mail is refused, the Department

may proceed with the proposed action without

further delay.

If the responsible party responds to the

notification that an administrative action

is being considered, the Department will

evaluate the additional information provided

and either conduct additional investigation

as warranted, modify the c omplaint as

needed, or proceed with the complaint.

7. The guidelines adopted by the Council are advisory, and

the Department is not required to follow the guidelines;

however, the Department has followed the guidelines pertaining

to providing those who a re subject to disciplinary actions an

opportunity to provide additional information when the

Department is considering taking disciplinary action in the form

of an administrative fine in excess of $5,000, revocation, or

suspension. The Department has also used the procedure when the

Department's investigation reveals that additional information

is necessary. The procedure has been described as the

"opportunity letter" procedure. The opportunity letter is not

sent to all persons who are under investigatio n for possible

statutory or rule violations.

8. When asked if the guidelines were being followed

strictly by the Department, Steven Dwinell described the

Bureau's adherence to the guidelines as follows:

Well, I don't know if it was strictly. I

mean, we 're attempting to follow it, you

know, I'm not going to testify that

something slipped through, but as far as I

know, we're following it.

9. The opportunity letter is part of the investigatory

process and does not require the person or entity that is t he

subject of the disciplinary investigation to respond to the

request for additional information or to provide arguments for

the modification, mitigation, or dismissal of the proposed

action. There is no penalty for failure to respond.

10. The ultimate decision of whether to issue an

administrative complaint is made by either the Division Director

or the Assistant Division Director. Prior to the issuance of an

administrative complaint, an investigation is made by a field

inspector, who completes a repor t setting out his findings.

Sometimes the report will include a video tape of the

application of the pesticide treatment at the site of the

treatment. The report may also include a sample of the

pesticide applied at the site. The sample will be sent to the

Department's laboratory for testing, including the concentration

level.

11. The field inspector's report is reviewed by the field

inspector's supervisor, who checks the investigatory file to

make sure that it is complete. The file is then submitted t o a

reviewer, who looks at the video tapes and reviews the file and

laboratory results. The reviewer prepares the first draft of

the administrative complaint and sends the draft administrative

complaint and the complete file to an environmental manager, w ho

is responsible for enforcement coordination and supervising the

reviewers. The environmental manager reviews the draft

administrative report as a quality control measure.

12. After review by the environmental manager, the draft

administrative compla int and file are sent to the Division for

review and consideration by either the Division Director or the

Assistant Division Director. The decision to issue an

administrative complaint is made at the Division level. After

the administrative complaint is approved, it and the file are

returned to the environmental manager for any cosmetic changes

that may be necessary. The final draft of the administrative

complaint is sent to the Bureau Chief for execution.

13. This process of review ing the file and dra fting the

administrative complaint prior to the decision being made to

issue the administrative complaint is an internal process. It

has no application outside the Department, does not affect the

private interests of a person, and is not a plan or procedu re

that is important to the public.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. § 120.56(4), Fla . Stat.

15. S ubs ection 120.56(4), Florida Statutes, p rovides that

"[a]ny person substantially affected by an agency statement may

seek an administrative determination that the statement violates

s. 120.54(1)(a). " Subsection 120.54(1)(a), Florida Statutes,

provides that "[e]ach agency statement defined as a rule by

s. 120.52 shall be adopted by the rulemaking procedure provided

by this section as soon as feasible and practicable."

Subsection 120.52(15), Florida Statutes, defines a rule as

follows:

"Rule" means each agency statement of

general applicability t hat implements,

interprets, or prescribes law or policy or

describes the procedure or practice

requirements of an agency and includes any

form which imposes any requirement or

solicits any information not specifically

required by statute or by an existing rule.

The term does not include:

(a) Internal management memoranda which do

not affect either the private interests of

any person or plan or procedure important to

the public and which have no application

outside the agency issuing the memorandum.

16. Cirrincione has the burden to establish that the

practices and procedures listed in the petition constitute rules

and have not been adopted by the rulemaking procedures provided

in Section 120.54, Florida Statutes. A determination must be

made whether t he practices and procedures are ones of general

applicability, and, if so, whether they are internal memoranda.

Department of Highway Safety and Motor Vehicles v. Schulter , 705

So. 2d 81, 82 (Fla. 1st DCA 1997).

17. In McDonald v. Department of Banking a nd Finance , 346

So. 2d 569, 582 (Fla. 1st DCA 1977), the court stated, "[T]he

Section 120.54 rulemaking procedures are imposed only on policy

statements of general applicability, i.e., those statements

which are intended by their own effect to create right s, or to

require compliance, or otherwise have the direct and consistent

effect of law."

18. The opportunity letter procedure is part of the

investigatory process of the Department, wherein the Department

is attempting to garner more information prior to making a final

decision on disciplinary action. It is not applied to all

persons or entities subject to disciplinary action pursuant to

Section 482.161, Florida Statutes. The practice is to send the

opportunity letters to those responsible persons in situations

in which , based on its preliminary investigation , the Department

determines that the maximum monetary fine, revocation , or

suspension may be the ultimate penalty and in situations in

which the Department feels that additional information would be

necessary to complete its investigation.

1 9 . In Schulter , the court found that the following

policies of the Department of Highway Safety and Motor Vehicles

did not constitute rules because the policies were not

statements of general applicability:

[1.] The Respondent has a policy of

removing law enforcement officers under

investigation, in certain circumstances,

from their normal duties, and assigning them

indefinitely to remain in their own

residences as a duty station, and permitting

them to leav e their residences during duty

hours only with the permission of their

superiors.

[2.] The Respondent has a policy of

ordering law enforcement officers under

investigation, in certain circumstances, to

have no contact with any person who may be a

witne ss in the course of the investigation.

[3.] The Respondent has a policy of

prohibiting law enforcement officers under

investigation, in certain circumstances,

from earning extra compensation by working

in police off - duty employment.

Department of High way Safety and Motor Vehicles v. Schulter , 705

So. 2d at 82. The court opined that because the policies were

applied only under certain circumstances, which were not

identified, were not applied uniformly to all law enforcement

officers employed by the ag ency without exception, and the

application of the policy was subject to the discretion of the

employees' supervisors, that the policies were not statements of

general applicability. Id.

20 . In the instant case, the opportunity letter does not

apply to all persons who are under investigation by the

Department. It is sent only in certain situations when the

maximum monetary penalty, revocation, or suspension may be the

penalty imposed and when additional information is needed. The

Department has discre tion in determining when the violations

warrant the maximum monetary penalty, revocation, or suspension

and in determining when additional information is needed.

2 1 . The opportunity letter does not create a right for

subjects of Departmental investigation to be advised of an

investigation and to be given an opportunity to provide

additional information. The opportunity letter does require

that the subjects of Departmental investigation respond to the

letter, and no penalty is imposed if no response is pro vided.

Thus, the opportunity letter procedure is not a statement of

general applicability.

2 2 . The procedure that the Department utilizes in

investigating possible violations, review ing the investigation

files, drafting administrative complaints, and rev iew ing draft

administrative complaints are followed for all disciplinary

actions. This procedure falls under the internal memoranda

exception to the definition of a rule. The procedure has no

application outside the Department. It does not affect the

pr ivate interests of persons who are subject to disciplinary

action. At first blush, it would appear that because the

investigatory process could end in a penalty being imposed upon

the person being investigated that the procedure would affect

the private i nterests of a person. However, a person who is

subject to discipline by the Department has no statutory right

in having the disciplinary case investigated in a certain

manner, in having certain persons review the file before the

final determination is mad e to take disciplinary action, or in

having the administrative complaint drafted or reviewed in a

certain manner. The ultimate decision to take the disciplinary

action is made by the Division Director or Assistant Division

Director and not by lower echelo n staff.

2 3 . The investigatory process is not a procedure that is

important to the public. Section 482.061, Florida Statutes,

provides that the Department shall appoint inspectors to do

inspections and perform investigative work. If the inspectors

find a violation, they are required to report it to the

Department. The process that the Department utilizes in

reviewing the report and subsequent investigative file,

preparing an administrative complaint based on the investigative

file, and reviewing the adm inistrative complaint for quality

control prior to the actual determination to take disciplinary

action is of no more importance to the public than what steps an

agency uses in preparing and reviewing other types of documents

that are sent out by the agenc y.

2 4 . The two procedures which Cirrincione has challenged

are not rules within the definition of Subsection 120.52(15),

Florida Statutes, and are not subject to the rulemaking

requirements set forth in Subsection 120.54(1), Florida

Statutes.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that Petitioner's 2d Amended Challenge to Agency

Statements is hereby dismissed.

DONE AND ORDERED this 3rd day of January , 200 6 , in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 3rd day of January , 200 6 .

ENDNOTES

1 / In Petitioner's Proposed Findings of Fact, Conclusions of

Law and Recommended Final Order, Petitioner represented that the

parties had stipulat ed to Petitioner's withdrawal of his

challenge to the agency statement set forth in Paragraph 6(c)

which pertains to the alleged informal amendment to Rule 5E -

14.106(6).

2 / Unless otherwise indicated, all references to Florida

Statutes are to the 2004 ve rsion. Petitioner referenced

Subsection 120.52(14), Florida Statutes, in Petitioner's 2d

Amended Challenge to Agency Statements. The correct citation to

the definition of a rule is Subsection 120.52(15), Florida

Statutes.

COPIES FURNISHED :

Howard J. H ochman, Esquire

Law Offices of Howard J. Hochman

7695 Southwest 104th Street

Suite 210

Miami, Florida 33156

David W. Young, Esquire

Department of Agriculture and

Consumer Services

Mayo Building, Suite 520

407 South Calhoun Street

Tallahassee, Florida 32399 - 0800

Liz Cloud, Program Administrator

Administrative Code

Department of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

Scott Boyd, Executive Director

and General Counsel

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399 - 1300

Honorable Charles H. Bronson

Commission er of Agriculture

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party wh o is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing one copy of a N otice of Appeal with the agency clerk of

the Division of Administrative Hearings and a second copy,

accompanied by filing fees prescribed by law, with the District

Court of Appeal, First District, or with the District Court of

Appeal in the appellate distr ict where the party resides. The

Notice of Appeal must be filed within 30 days of rendition of

the order to be reviewed.