12-001055 Department Of Agriculture And Consumer Services vs. Lee Ann Kennedy And Kenco Industries, Llc Status: Closed Recommended Order on Wednesday, June 27, 2012.

Summary: Petitioner proved, by clear and convincing evidence, that Respondents engaged in unlicensed practice of pest control and one of the Respondents impersonated an employee of Petitioner in violation of provisions of chapter 482, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES , )

)

Petitioner, )

)

vs. ) Case No. 12 - 1055

)

LEE ANN KENNEDY AND )

KENCO INDUSTRIES, L.L.C . , )

)

Respondent s . )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to sections 120.569 and 120.57(1), Florida Statutes, 1 /

b efore Cathy M. Sellers, an Administrative Law Judge of the

Division of Administrative Hearings ( " DOAH " ), on May 29, 2012,

by video teleconference at sites in Miami and Tallahassee,

Florida.

APPEARANCES

For Petitioner: David W. Young, Esquire

Alyssa Cameron, Esquire

Office of the General Counsel

Depa rtment of Agriculture

and Consumer Services

Mayo Building, Suite 520

407 South Calhoun Street

Tallahassee, Florida 32399 - 0800

For Respondent: Lee Ann Kennedy, pro se

Kenco Industries, L.L.C.

2 4 7 1 Country Golf Drive

Wellington, Florida 33414

STATEMENT OF THE ISSUE

Whether Respondent s Lee Ann Kennedy ( " Kennedy " ) and Kenco

Industries, L.L.C. ( " Kenco " ), engaged in various activities

constituting pest control under chapter 482 without having

obtained the required licenses from Petitioner Department of

Agriculture and Consumer Services , in violation of sections

482.161(1)(j), 482.165(1), a nd 465.191(1), Florida Statutes.

PRELIMINARY STATEMENT

On November 17, 2011, Petitioner filed an Amended

Administrative Complaint against Respondents, charging them with

violating seve ral provisions of chapter 482. Specifically, in

Count 1 , Petitioner cha rge d Kennedy with impersonating a pest

control inspector employed by Petitioner , conducting inspections

of food establishments, making corrective recommendations, and

representing to those establishments that she would conduct

follow - up inspections to dete rmine compliance , in violation of

section 482.161(1)(j) . Count 2 charge d that both Kennedy and

Kenco advertised that they provided pest control services

without obtaining a pest control business l icense , in violation

of sections 482.165(1) and 482.191(1) . Count 3 charge d that

Kennedy , both individually and on behalf of Kenco , solicited

business on behalf of a pest control business (Outside In Pest

Control, Inc.) without having been licensed by Petitioner to

perform pest control, in violation of sections 4 82.165(1) and

482.191(1). Respondents timely requested an administrative

hearing under sections 120.569 and 120.57(1), and the case was

referred to DOAH for assignment of an administrative law judge

and conduct of a hearing.

The final hearing was held on May 29, 2012. Petitioner

presented the testimony of Hung The Thach, Ali Jaber,

David Chang, Dennis O ' Rourke, Robert Brockway, and

John Berquist, and offered Exhibits 3, 5, 6, 8, 9, 10, 12, 13,

14, 15, and 16 for admission into evidence. All but Exhibi t 16

were admitted without objection; Exhibit 16 was not admitted on

the basis of redundancy. Respondent Kennedy testified on her

own behalf and on behalf of Respondent Kenco, and offered

Exhibits A, B, C, E - 1 and E - 2 into evidence. Exhibits A, E - 1,

and E - 2 were admitted without objection; Exhibit C was admitted

over a relevancy objection; and Exhibit B was not admitted as

irrelevant.

The parties did not order a transcript of the final

hearing. They were given until June 8, 2012 , to file their

proposed recommended ord ers. The parties timely filed P roposed

R ecommended O rders, which were considered in preparing this

Recommended Order.

FINDINGS OF FACT

The Parties

1. Petitioner is the state agency charged with

administering the Structural Pest Control Act, chapter 482.

2. Respondent Kennedy is a r esident of Wellington,

Florida.

3. Respondent Kenco Industries, L.L.C., is a registered

Florida Limited Liability Company. Kennedy is the manager and

sole member of , and the registered agent for , Kenco.

Pest Control Regulation under Chapter 482, Florida Statutes

4. Chapter 482 authorizes Petitioner to regulate

activities constituting " pest control " and to impose sanctions

for violations of that chapter .

5 . " P est control " is broadly defined in sectio n

483.021(22) as :

(a) The use of any method or device or the

application of any substance to prevent,

destroy, repel, mitigate, curb, control, or

eradicate any pest in, on, or under a

structure, lawn, or ornamental;

(b) The identification of or inspection for

infestations or infections in, on, or under

a structure, lawn, or ornamental;

(c) The use of any pesticide, economic

poison, or mechanical device for preventing,

controlling, eradicating, identifying,

inspecting for, mitigating, diminishing , or

curtailing insects, vermin, rodents, pest

birds, bats, or other pests in, on, or under

a structure, lawn, or ornamental;

(d) All phases of fumigation, including:

1. The treatment of products by vault

fumigation; and

2. The fumigation of boxcars, t rucks,

ships, airplanes, docks, warehouses, and

common carriers; and

(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.

6 . Petitioner is authorized to issue licenses to qualified

businesses to engage in the busines s of pest control in this

state . § 482.165(1), Fla. S tat. It is unlawful for any person,

partnership, firm, corporation, or other business entity to

engage in the unlicensed practice of pest control as that term

is defined in section 482.021(22) . Id .

7 . Section 482.191(1) makes unlawful the advertise ment of

pest control services except as authorized under chapter 482 .

Absent limited circumstances not applicable here, person s or

entit ies engaging in such advertisement must be licensed by

Petitioner to practice pest control.

8 . Petitioner also is a uthorized to fine persons who

impersonat e a n employee of Petitioner . § 482.161(1)(j), Fla.

Stat.

Respondents ' Acts Alleged to Violate Chapter 482

9 . Respondent Kennedy did not hold a pest control business

license or other license to practice pest control at any time

relevant to this proceeding . 2 /

1 0 . Respondent Kenco also did not hold a p est c ontrol

b usiness l icense or other license to practice pest control at

any time relevant to this proceeding .

1 1 . On or about April 1, 2011, Kennedy entered Saigon

Oriental Market in Lake Park, Florida. According to its owner,

Hung The Thach, Kennedy walked around the store inspecting it,

then told him that she was employed by Petitioner , that some of

his produce was infested by insects, and that he would have to

have pest control services performed or she would return in a

week to conduct another compliance inspection. Kennedy gave

Mr. Thach the telephone number for Outside In , a pest control

company, and the bu siness card of its owner, Dennis O ' Rourke .

Concerned that Kennedy would shut down his store or fine him,

Mr. Thach called Outside In; the following day, an employee of

that company performed pest control services at the store.

Outside In performed additi onal pest control services at the

store on or around May 26, 2011. Mr. Thach paid Outside In for

these services.

1 2 . In mid - May 2011, Kennedy inspected Fajita ' s Super

Market in Lake Worth, Florida, and told its owner, Ali Jaber,

that she was employed by Petitioner as an inspector, and that he

had a fly problem in his store. She recommended that he contact

Outside In to correct the problem. Mr. Jaber told her he used

another pest control company, but thereafter, a representative

from Outside In visited the store, left a business card with

Mr. Jaber, and offered to provide pest control services for the

store for $150 .00 per month with no contract. Kennedy returned

to the store approximately a week later and wanted to know why

nothing had been done to correct the fly problem ; she also asked

an employee of Fajita ' s who was going to pay fo r her time to

inspect the store; w hen she was referred to Mr. Jaber, she left

the store and did not return.

1 3 . O n or around May 24, 2011, Kennedy entered the Fortune

Cookie oriental supermarket in West Palm Beach, Florida, and

told its president, David Chang, that she was with an inspector

with Petitioner . She inspected the store , told him that there

was a fly problem , and stated she would return in two weeks .

Mr. Chang testified that Kennedy did not provide him the name of

any pest control businesses, but that approximately a week

before Kennedy inspected the store, a representative of Outside

In had come to the store and tried to sell him pest control

servi ces, but that he had declined to purchase the services at

that time .

1 4 . Dennis O ' Rourke, President of Outside In, testified

that Kennedy was not on his company ' s payroll , but that she had

solicited pest control business for his company for

approximately four months prior to September 2011. She

successfully solicited f our accounts and he paid her 30% of the

profits made on those accounts. At the time she solicited the

accounts, she did not possess a valid identification card to

perform pest control services on behalf of Outside In. 3 /

Mr. O ' Rourke subsequently obtained a valid identification card

for Kennedy so that she could perform pest control, including

business solicitation, for his company.

1 5 . Petitioner initiated an investigatio n of Kennedy in

June 2011, after being notified by several small food markets in

Palm Beach County that she was holding herself out as a food

inspector with Petitioner , inspecting the stores , notifying the

store operators that there was a pest problem, and recommending

that Outside In be contacted to correct the problem.

1 6 . In the course of the investigation, on September 7,

2011, John Berquist, an inspector with Petitioner ' s Bureau of

Entomology and Pest Control, took photographs of Kennedy ' s motor

ve hicle 4 / bearing magnetic signs on the front passenger and

driver side doors labeled " Kenco Industries , " which depict ed a

photograph of Kennedy and advertis ed the provision of pest

control services.

1 7 . Berquist checked Petitioner ' s pest control licens ing

records and determined that Petitioner had not issued a pest

control business license or other pest control license to

Kennedy or to Kenco .

1 8 . At the hearing, Kennedy acknowledged that she

conducted food store inspections , pointed out pest problem s to

store operators , and recommended that they contact Outside In

for pest control service . However, she denied holding herself

out as an employee of Petitioner. She testified that she is

certified in food safety by the Department of Healt h and that if

she observe d a pest problem while shopping , she would show her

food safety certification card to the store operator and point

out the problem. She claimed she did this because she is

Vietnamese , so often shops at Asian food markets and wants the

stores where she purchases her family ' s food to be pest - free.

She also claimed that she only wanted the stores " to get what

they needed " in the way of pest control service and that it did

not matter whether she was compensated for soliciting business

for Outside In . However, s he acknowledged that she had been

compensated by Outside I n for the pest control business she had

successfully solicited on their behalf.

19 . Kennedy t estified that she did not intend to do

anything that was against the law , and was not aware that she

was engaging in conduct that violated the law.

20. The evidence established that n either Kennedy nor

Kenco previously violated chapter 482 or Petitioner ' s rules.

Ultimate Findings of Fact Regarding Alleged Violations

2 1 . Based on the foregoing, Petitioner established, by

clear and convincing evidence, that Kennedy impersonated an

employee of Petitioner, as alleged in Count 1 of the Amended

Administrative Complaint, in violation of section 482.161(1)(j) .

Kennedy ' s testimon y that she did not hold herself out as a n

employee of Petitioner was contradicted by all other witnesses

and was not credible.

2 2 . Petitioner also e stablished, by clear and convincing

evidence, that Kennedy and Kenco advertis ed pest control

services without obtaining a pest control business license in

violation of sections 482.165(1) and 482.191 (1) . There was no

d ispute that Kennedy advertised the provision of pest control

services by herself and by Kenco by placing signs on her vehicle

depict ing her image and Kenco ' s business name. Further, Kennedy

is Kenco ' s manager, sole member, and agent , so her actions in

advertising the provision of pest control services by Kenco are

imputed to Kenco. 5 /

2 3 . Petitioner also proved, by clear and convincing

evidence, that Kennedy solicited pest control business f or

Outside In for compensation, in violation of sections 482.165(1)

and 482.191(1) . Kennedy ' s testimony that she was motivated by

altruism and personal interest in food safety at markets where

she sh opped, rather than by being compensated for soliciting

business for Outside In, was not credible. T he undisputed

evidence establishes that she was compensated by Outside In for

soliciting pest control business on its behalf.

24. However, Petitioner did not establish, by clear and

convincing evidence, that Kenco solicited business on behalf of

Outside In. The evidence does not show that Kennedy represented

to the food store operators that she was acting on behalf of

Kenco when she solicited business for Outside In . To the

contrary, the evidence established that Kennedy represented that

she was an inspector employed by Petitioner. Accordingly, it is

determined that Kenco did not solicit pest control business for

Outside In , in violation of sections 4 82.165 (1) and 482.191 (1) .

2 5 . As further addressed below, Petitioner ' s Enforcement

and Penalties rule, Florida Administrative Code Rule 5E - 14.149,

makes the deliberate commission of an act that constitutes a

violation of chapter 482 an aggravating factor in determining

the applicable fine. Here, t he evidence shows that Kennedy

intentionally misrepresented that she was employed by Petitioner

specifically to solicit and induce food store operators to

purchase pest control services for which she would be

compensated. Accordingly, it is determined that Kennedy acted

deliberately in impersonating an employee of Petitioner and in

soliciting business on behalf of Outside In for compensation .

Furthermore, t he evidence shows that Kennedy ÏÏ and by operation

of t he law of agency, Kenco ÏÏ deliberately engaged in advertising

the provision of pest control services without having obtained

the required license.

CO NCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the parties to, and s ubject matter of, this

proceeding pursuant to sections 120.569 and 120.57(1) Florida

Statutes .

2 7 . Petitioner has charged Respondent Kennedy with

violating sections 482.161(1 ) (j), 482.165(1), and 482.191(1),

Florida Statutes.

2 8 . Petitioner has charged Respondent Kenco with violating

sections 482.165(1) and 482.191(1) , Florida Statutes .

2 9 . Section 482.161(1) provides in pertinent part:

(1) The department may issue a written

warning to or impose a fine against, or deny

the application for licensure or licensure

renewal of, a licensee, certified operator,

limited certificate holder , identification

cardholder, or special identification

cardholder or any other person, or may

suspend, revoke, or deny the issuance or

renewal of any license, certificate, limi ted

certificate, identification card, or special

identification card that is within the scope

of this chapter, in accordance with chapter

120, upon any of the following grounds:

(a) Violation of any provision of this

chapter or any rule of the department

adopted pursuant to this chapter.

* * *

(j) Impersonation of a department employee.

30 . Section 482.165(1) provides:

(1) It is unlawful for a person,

partnership, firm, corporation, or other

business entity not licensed by the

department to practice pest control.

3 1 . Section 482.191(1) provides:

(1) It is unlawful to solicit, practice,

perform, or advertise in pest control except

as provided by this chapter.

3 2 . These statutes and rules are penal and , therefore ,

must be strictly construed, with ambiguities resolved in favor

of the licensee. Lester v. Dep ' t of Prof ' l & Occ. Reg. , 348 So.

2d 923, 925 (Fla. 1st DCA 1977). Further, whether Respondent

committed violations of statutory provision is a question of

ulti mate fact to be decided by the trier - of - fact. McKinney v.

Castor , 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v.

Jamerson , 653 So. 2d 489, 491 (Fla. 1st DCA 1995).

3 3 . For Petitioner to sanction Respondents, it must prove

the charges specificall y alleged in the administrative complaint

by clear and convincing evidence. Ferris v. Turlington , 510 So.

2d 292, 294 (Fla. 1987); Cottrill v. Dep ' t of Ins. , 685 So. 2d

1371, 1372 (Fla. 1st DCA 1996); Kinney v. Dep ' t of State , 501

So. 2d 129, 133 (Fla. 5t h DCA 1987).

3 4 . Florida courts have described clear and convincing

evidence as follows:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the t estimony

must be precise and explicit and the

witnesses must be lacking confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact a firm belief or

conviction, without hesitancy, as to the

tru th of the allegations sought to be

established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994); Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

3 5 . As discussed above, with the exception of the

violation by Kenco of sections 482.165(1) and 482.191 alleged in

Count 2, Petitioner proved , by clear and convincing evidence,

that Kennedy and Kenco committed the violations alleged in the

Amended Administrative Complaint.

3 6 . Section 482.161(7) authorizes Petitioner to impose

administrative fines for violations of chapter 482. That

statute provides:

(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, f or 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,

incl uding 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;

(c) Any previous violations of this chapter

or of the rules adopted purs uant to this

chapter; and

(d) The cost to the department of

investigating the violation.

3 7 . Rule 5E - 14.149, 6 / entitled " Enforcement and Penalties, "

authorizes Petitioner to impose penalties for violat ions of

chapter 482 , and sets forth the factors Pet itioner must consider

in determining the penalty. Subsection (1) of the rule also

authorizes Petitioner to impose penalties under section 482.161 ,

in lieu of the rule .

3 8 . Subsection (3) of the rule provides in pertinent part :

" (3) Category of Violations. Minor violations are all

violations other than those classified as major violations.

Major violations are violations where: . . . (k) An individual

or business performs pest control without holding a valid

license from the Department. "

39 . Subsection (8) of the rule provides:

(8) Fines . F or repeat non - major

violations, multiple violations including at

least one major violation, and all major

violations, including those violators who do

not respond to an administrative complaint,

the Department will impose an administrative

fine not to exceed $5,000 per violation plus

any other penalty allowed by law including

suspension or revocation. When imposing a

fine, the Department will consider the

degree and extent of harm, or potential

harm, that was or could have been caused by

the violation, the cost of r ectifying the

damage minus the actions taken by the

licensee or certified operator or applicator

to correct the violation or remedy

complaints, whether the violation was

committed willfully, the compliance record

of the violator, and the costs to the

Depar tment of investigating the violation.

The Department will use the attached Fine

Guide to assist it in determining the

appropriate amount of the fine.

40 . Subsection (14) of the rule provides:

(14) Fine Guide. FINE GUIDE =

A(B௠︓)G. This guide shall apply for

each violation for which a fine is imposed.

The maximum fine is $5,000 per violation.

The terms and values used in the fine guide

calculation shall be:

A = Degree & Extent of Harm Î Human, animal

and environmental hazards occur as a result

of pesticide misuse or mismanagement of

another pest control method:

1 Human, animal or environmental harm not

identified

5 Death of animals or injury to humans or

animals requiring hospitalization, or

serious harm to an ecological system, or

contamination of water or soil requiring

corrective action or monitoring to protect

human health or the environment

7 Human death

B = T oxicity of the pesticide for which a

pesticide misuse or violation, of label

directions which could result in human or

animal hazards:

0 No pesticide involved in complaint

1 Category III or IV Î Signal Word

" Caution "

2 Category II Î Signal Word " Warning "

3 Category I Î Signal Word " Danger "

C = Estimated cost of rectifying the damage

to consumer minus any mitigation provided by

the violator

1 Unknown or under $1,000

2 Over $1,000 and under $5,000

3 Over $5,000 and under $10,000

4 Over $10,000

D = Whether the violation was committed

deliberately

1 No evidence violation was committed

deliberately

5 Evidence violation was committed

deliberately

E = Compliance record of the violator

0 No prior violations

1 One prior violation for a dissimilar

viola tion

2 Two or more prior violations dissimilar

to current violation

3 One prior violation for a similar

violation

4 Two or more prior violations for similar

violations

F = Investigative Costs

0 Routine investigation or Payment of all

investigative costs

2 Violation documented as a result of more

than one inspection or requiring

investigation by multiple inspectors, or by

department personnel outside of the division

of Agricultural Environmental Services

G = Entity Category

500 Business licensee re sponsible for

violation, or person operating a pest

control business without a valid business

license

250 Certified Operator or Special

Identification Cardholder responsible for

violation

100 All others

Compliance record. The compliance record is

establi shed by prior disciplined violations,

within the three (3) years preceding the

date of the current violation, of Chapter

482, F.S., or of Chapter 5E - 14, F.A.C., or

of federal or other Florida law addressing

pest control or pesticide use or disposal.

Violat ions will be considered final on

acceptance of the applicable penalty, or the

date of final agency action or the

conclusion of any appeals thereof.

Violati on of Section 482.161(1)(j)

41. P ursuant to subsection (3) of the rule, Kennedy ' s

impersonation of a pest control inspector employed by Petitioner

is a non - major (i.e., minor) violation ; therefore, a fine is not

mandated, and a w arning l etter may be issued to the violator.

However, Petitioner is authorized by subsection (8) to impose a

fine under t he Fine Guide in subsection ( 14) if , a s here , t he

violation was willful ly committed. Petitioner urges, and the

undersigned concurs, that under the circumstances present in

this case, a fine of $600.00 is warranted.

Violati ons of Sections 482.165(1) and 482.191(1)

42. Petitioner urges that Kennedy and Kenco be fined

pursuant to section 482.161(7) for violating sections 482.165(1)

and 482.191(1) , as alleged in Counts 2 and 3 of the Amended

Administrative Complaint. Section 482.161(7) authorizes

Petitioner to impose a fine, not to exceed $5000.00, based on

the severity of the violation, including probability of death or

serious harm; severity of actual or pot ential harm; extent to

which chapter 482 and Petitioner ' s rules chapter were violated;

any previous violations of chapter or rule; and investigation

costs to Petitioner must be considered. Taking these factors

into account, the recommended fines for the v iolations proven

pursuant to Counts 2 and 3 are as follows:

(a) Count 2: Petiti oner urges that Kennedy and Kenco each

be fined $3 , 000.00 for advertising pest control services without

having a pest control business license. The undersigned agrees

that t he violations are extensive because they constitute the

unlicensed practice of pest control. However, there was

essentially no likelihood that the actual violations themselves

(i.e., advertising) would caus e death or serious harm, and they

did not cause actual harm. Furthermore , neither Kennedy nor

Kenco had previous ly violated chapter 482 or Petitioner ' s rules.

Under these circumstances, the undersigned determines that

imposing a fine of $1 , 000.00 each on Kennedy and Kenco is

warranted .

(b) Count 3: Petitioner urges that a fine of $3 , 000.00 be

imposed , respectively, on Kennedy and Kenco for soliciting pest

control business for Outside In without having obtained a

license to practice pest control. As previously discussed,

Kenco did not solicit business on behalf of Outside In, so Kenco

cannot be fined for the vio lations alleged in Count 3. However,

Kennedy did violate sections 482.165(1) and 482.191(1) as

alleged in Count 3, so a fine is warranted. She engaged in the

unlicensed practice of pest control, an extensive violation of

chapter 482. However, again, there was essentially no

likelihood that the violation would cause death or serious harm,

and it did not cause actual harm. Moreov er, Kennedy did not

previously violate chapter 482 or Petitioner ' s rules. Under

these circumstances, the undersigned determines that imposing a

fine of $1 , 000.00 on Kennedy is warranted.

43. Based on the foregoing, the undersigned determines

that Kenn edy should be fined $2,600.00 for violating sections

482.161(1)(j), 482.165(1), and 482.191(1) .

44. Based on the foregoing, the undersigned determines

that Kenco should be fined $1 , 000.00 for violating sections

482.165(1) and 482.191(1) .

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that Petitioner Department of Agriculture and

Consumer Services impose a fine of $2,600.00 on Respondent

Lee Ann Kennedy, and impose a fine of $1,000.00 on Respondent

Kenco Industries, L.L.C .

DONE AND ENTERED this 27 th day of June , 20 12 , in

Tallahassee, Leon County, Florida.

S

__________________________________

CATHY M. SELLERS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 7 th day of June , 20 1 2 .

ENDNOTES

1/ All references are to Florida Statutes 2011.

2 / Dennis O ' Rourke, the owner of Outside In Pest Control, Inc.

( " Outside In " ), for whom Respondent Kenned y is alleged to have

solicited business, applied for and obtained a valid

identification card to authorize Kennedy to perform pest control

services, including solicitation, on behalf of Outside In. This

card was obtained in September 2011, after Kennedy h ad engaged

in the acts alleged to constitute solicitation of business on

behalf of Outside In.

3 / Petitioner presented evidence that Kennedy did not hold a

valid pest inspection card authorizing her to solicit business

on behalf of a licensed pest control business, in violation of

section 482.091. However, the Amended Administrative Complaint

does not specifica lly charge her with violating section 482.091.

Accordingly, she cannot be disciplined in this proceeding for

violating that statute. See Cottrill v. Dep ' t of Ins. , 685 So.

2d 1371, 1372 (Fla. 1st DCA 1996); Kinney v. Dep ' t of State , 501

So. 2d 129, 133 ( Fla. 5th DCA 1987)(the grounds for disciplinary

action must be specifically alleged in the administrative

complaint ) .

4 / Using the number of the license tag on the motor vehicle

bearing the Kenco Industries signs, Berquist requested and

obtained from the Department of Highway Safety and Motor

Vehicles a report verifying that the vehicle was registered to

Kennedy. Kennedy acknowledged that she owned the vehicle

depicted in the photographs.

5 / See Sumpolec v. Pruco Life Ins. Co. , 563 So. 2d 778 (Fla. 3d

DCA 1990)(business entity is responsible for violations of the

law committed by its agent while acting on behalf of the entity

in the scope of his or her agency).

6 / The version of rule 5E - 14.149 that bec ame effective on

August 4, 2008, is applicable to this proceeding. The current

version of the rule became effective on May 20, 2012. The

evidence establishes that all of the Respondents ' acts

constituting violations of chapter 482 occurred in 2011, befo re

the current version of the rule became effective. Absent

express statutory language, not present here, rules may not be

applied retroactively to penalize conduct that occurred before

the rule ' s effective date. See § 120.54(1)(f), Fla. Stat. The

under signed notes that the provisions applicable to this

proceeding are identical in the 2008 and current versions of the

rule.

COPIES FURNISHED :

Lee Ann Kennedy, Manager

2471 Country Golf Drive

Wellington, Florida 33414

Alyssa Cameron, Esquire

Department of Agriculture and Consumer Services

407 South Calhoun Street , Suite 520

Tallahassee, Florida 32399

[e-mail]

Ho norable Adam Putnam ,

Commissioner of Agriculture

Department of Agriculture and Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

Lorena Holley, General Counsel

Department of Agriculture and Consumer Services

Suite 520

407 So uth Calhoun Street

Tallahassee, Florida 32399 - 0800

N OTICE OF RIGHT TO SU BMIT 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.