08-002580PL Department Of Agriculture And Consumer Services vs. Keith B. Lewis Status: Closed Recommended Order on Tuesday, August 19, 2008.

Summary: Respondent, as operator in charge, did not work full time for pest control business.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 08-2580PL

)

KEITH B. LEWIS, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on August 1, 2008, in DeFuniak Springs, Florida, before

Susan B. Harrell, a designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: David W. Young, Esquire

Department of Agriculture and

Consumer Services

Mayo Building, Suite 520

407 South Calhoun Street

Tallahassee, Florida 32399-0800

For Respondent: (No appearance)

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated

Subsections 482.121(1)(a) and 482.121(1)(b), Florida Statutes

(2007), 1 and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On February 12, 2008, Petitioner, Department of Agriculture

and Consumer Services, issued an Administrative Complaint

against Respondent, Keith Lewis (Mr. Lewis), alleging that Mr.

Florida Statutes, by allowing his certificate to be used by a

licensee to secure or keep a license, when he was not in charge

of the pest control activities in the category or categories

covered by his certificate and was not a full-time employee.

Mr. Lewis requested an administrative hearing.

The case was forwarded to the Division of Administrative

Hearings on May 27, 2008, for assignment to an Administrative

Law Judge. The case was originally assigned to Administrative

Law Judge Charles C. Adams, but was transferred to

Administrative Law Judge Susan B. Harrell to conduct the final

hearing.

The final hearing was scheduled to commence at 10:00 a.m.

Central Time, and Mr. Lewis was provided notice of the final

hearing. At 10:00 a.m., Mr. Lewis had not appeared for the

final hearing. The commencement of the hearing was delayed

until 10:20 a.m. to allow Mr. Lewis an opportunity to appear,

but neither Mr. Lewis nor a representative for Mr. Lewis

appeared for the final hearing.

At the final hearing, Petitioner called Michael Page and

Michael Walters as its witnesses. Petitioner’s Exhibits 1, 2,

3, 5, and 6 were admitted in evidence.

No transcript of the final hearing was filed. Petitioner

filed its Proposed Recommended Order on August 8, 2008.

Mr. Lewis did not file any post-hearing submittal.

FINDINGS OF FACT

1. PFSG, Inc., d/b/a US Lawns of Destin (US Lawns), 2

submitted a Pest Control Business License Application to the

Petitioner, listing Mr. Lewis as its certified operator in

charge for lawn and ornamental pest control, effective August 9,

2007. Mr. Lewis’ certificate number is Jf 13685.

2. US Lawns had been operating on an emergency certificate

from June 6, 2007, until Mr. Lewis’ employment on August 8,

2007. In its application for a business license, US Lawns

requested that its emergency certificate be canceled as of

August 8, 2007.

3. In order for a pest control company to operate, the

company has to have a certified pest control operator in charge

of the pest control activities at the licensed business

location. If a company does not have a certified operator to

serve as the certified operator in charge, an emergency

certificate can be issued and renewed monthly up to a year,

allowing an employee who did not have a certified operator’s

certificate to serve as the certified operator in charge.

4. As the certified operator in charge for US Lawns,

Mr. Lewis applied to Petitioner for a pest control employee

identification card, effective August 9, 2007. He listed the

commencement of his employment with US Lawns as August 9, 2007.

He also stated that his last employment with a pest control

company had ended on June 11, 2007. A pest control employee

identification card was issued to Mr. Lewis by Petitioner.

5. Mr. Lewis’ wife died on July 4, 2007.

6. Petitioner received a complaint that Mr. Lewis was not

working full time for US Lawns and was allowing US Lawns to use

his certificate to maintain its business license. Based on the

complaint, Michael Walters, who is employed by Petitioner as an

environmental specialist II, began an investigation.

7. Mr. Walters went to US Lawns' office and made an

inspection. On October 31, 2007, Mr. Walters went to see

Mr. Lewis at Mr. Lewis’ home for the purpose of interviewing

Mr. Lewis. Mr. Lewis gave Mr. Walters a signed affidavit, which

stated:

I work full time with U.S. Lawns of Santa

Rosa Beach. I have been part time since the

loss of my wife, but I do go to work at

least once a week and check on things. I do

all the training for card holders and such.

As soon as I feel better I should be back

fulltime. I have been there around 5 yrs.,

minus one year with another company.

8. In his request for an administrative hearing, Mr. Lewis

stated: “I was on vacation for 4 weeks, due to the death of my

wife,” and I was not working part time ever.

9. The evidence is clear that Mr. Lewis was not working

full time for US Lawns from the time of his wife’s death until

at least the date of his affidavit, October 31, 2007.

CONCLUSIONS OF LAW

10. 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. (2008).

11. Petitioner has the burden of establishing the

allegations in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996). Petitioner

has alleged that Mr. Lewis violated Subsections 482.121(1)(a)

and 482.121(1)(b), Florida Statutes, which provides:

(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 licensee in the

category or categories covered by her or his

certificate;

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

the licensee . . .

12. Subsection 482.111(6)(a), Florida Statutes, provides:

Each location of each licensed pest control

business must have a certified operator in

charge who is certified for the particular

category of pest control engaged in at that

location. A certified operator in charge

must be registered with the department

pursuant to rules adopted pursuant to this

section. A certified operator in charge may

be in charge of one or more categories if

she or he is certified for those categories.

13. Section 482.152, Florida Statutes, sets forth the

duties of a certified operator in charge and states:

A certified operator in charge of the pest

control activities of a licensee shall have

his or her primary occupation with the

licensee and shall be a full time employee

of the licensee, and her or his principal

duty shall include the responsibility for

the personal supervision of and

participation in the pest control activities

at the business location of the licensee as

the same relate to:

(1) The selection of proper and correct

chemicals for the particular pest control

work performed.

(2) The safe and proper use of pesticides

used.

(3) The correct concentration and

formulation of pesticides used in all pest

control work performed.

(4) The training of personnel in the proper

and acceptable methods of pest control.

(5) The control measures and procedures

used.

(6) The notification of the department of

any accidental poisoning or death connected

with pest control work performed on a job

she or he is supervising, within 24 hours

after she or he has knowledge of the

poisoning or death.

14. Mr. Lewis was the certified operator in charge for US

Lawns, for its lawn and ornamental pest control. US Lawns made

application to Petitioner for a pest control business license,

using Mr. Lewis as its certified operator in charge effective

August 9, 2007, and requesting that its emergency certificate be

canceled effective upon Mr. Lewis’ employment.

15. Petitioner has established by clear and convincing

evidence that Mr. Lewis violated Subsection 482.121(1)(a),

Florida Statutes. By his own admission, Mr. Lewis stated that

he went to US Lawns once a week to check on things. Going to

work once a week to “check on things” does not equate to being

in charge of the pest control activities for the lawn and

ornamental pest control activities of US Lawns.

16. Petitioner has established by clear and convincing

evidence that Mr. Lewis violated Subsection 482.121(1)(b),

Florida Statutes. He was not a full-time employee of US Lawns.

By his own admission on October 31, 2007, he had been working

part time since the death of his wife. His wife died in July

and his employment with US Lawns commenced in August. For at

least three months, Mr. Lewis had not been working full time.

17. Subsection 482.121(3), Florida Statutes, provides that

a certified operator’s certificate may be revoked when it is

used in violation of Section 482. 121, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding

that Mr. Lewis violated Subsection 482.121(1)(a) and

482.121(1)(b), Florida Statutes, and revoking his certified

operator’s certificate.

DONE AND ENTERED this 19th day of August, 2008, 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of August, 2008.

ENDNOTES

1/ Unless otherwise indicated, all references the Florida

Statutes are to the 2007 version.

2/ US Lawns has also used the name US Lawns of Fort Walton Beach

and US Lawns of Santa Rosa Beach as well as US Lawns of Destin.

COPIES FURNISHED :

David W. Young, Esquire

Department of Agriculture and

Consumer Services

Mayo Building, Suite 520

407 South Calhoun Street

Tallahassee, Florida 32399-0800

Keith B. Lewis

c/o GPL Landscape

80 South Geronimo, Suite 7

Miramar, Florida 32550

Richard Ditschler, General Counsel

Department of Agriculture and

Consumer Services

Mayo Building, Suite 520

407 South Calhoun Street

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.