15-004461 Department Of Agriculture And Consumer Services vs. Elite Inspectors, Llc, D/B/A Elite Inspectors.Com; Tamer Kekec; And Stephen Franco Status: Closed Recommended Order on Tuesday, March 22, 2016.

Summary: Petitioner proved by clear and convincing evidence that Respondents engaged in the practice of pest control without a license and that the Individual Respondents used their pest control identification cards as independent contractors.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND

CONSUMER SERVICES,

Petitioner,

vs. Case No. 15 - 4461

ELITE INSPECTORS, LLC, d/b/a

ELITE INSPECTORS.COM; TAMER

KEKEC; AND STEPHEN FRANCO,

Respondents.

________________________ _______/

RECOMMENDED ORDER

A duly - noticed final hearing was conducted in this case

before Suzanne Van Wyk, an Administrative Law Judge of the

Division of Administrative Hearings ("DOAH"), on December 17,

2015, by video teleconfer ence at sites in Jacksonville and

Tallahassee, Florida.

APPEARANCES

For Petitioner: David W. Young, Esquire

Department of Agriculture

and Consumer Services

Mayo Bu ilding, Suite 520

407 South Calhoun Street

Tallahassee, Florida 32399 - 0800

For Respondent: Howard J. Hochman, Esquire

Law Offices of Howard J. Hochman

Suite 210

7695 So uthwest 104th Street

M ia mi, Florida 33156

STATEMENT OF THE ISSUE S

Whether Respondent, Elite Inspectors, LLC , d/b/a

EliteInspectors.com, engaged in the unlicensed practice of pest

control, in violation of sections 482.071, 482.161, and 482.165,

Florida Statutes (2015) 1/ ; whether Respondents, Tamer Kekec and

Stephen Franco, engaged in pest control services in violation of

sections 482.071, 482.165, and 482.191; and, if so, what

penalties should be imposed against Respondents.

PRELIMINAR Y STATEMENT

On July 13, 2015, Petitioner filed a Third Amended

Administrative Complaint against Respondents and other persons,

charging them with violating several provisions of chapter 482,

Florida Statutes. Respondents timely requested a disputed fact

h earing, which was forwarded to the Division of Administrative

Hearing s on August 12, 2015, for assignment of an Administrative

Law Judge. The final hearing was scheduled for October 30,

2015, but was later rescheduled to December 17, 2015.

During discov ery, Petitioner voluntarily dismissed charges

against certain other persons, and the case proceeded on a

Fourth Amended Complaint filed October 20, 2015, naming the

Respondents herein. Specifically, in Counts 1, 2, and 3,

Petitioner charged Respondent, El ite Inspectors, LLC , d/b/a

EliteInspectors.com, of conducting pest control, and advertising

pest control services without a license, in violation of

sections 482.161, 482.165, and 482.071; and in Counts 4

throug h 7, Respondents, Tamer Kekec and Stephen Fra nco, with

violating sections 482.091, 482.165, 482.071, and 482.191, for

conducting pest control services without a license.

The final hearing commenced as scheduled on December 17,

2015, via video teleconference at sites in Tallahassee and

Jacksonville, Florida. Petitioner presented the testimony of

Respondent Tamer Kekec, and introduced PetitionerÓs Exhibits P1

through P11. Respondent presented the testimony of Mr. Kekec

and William Miles, and introduced Resp ondentsÓ Exhibits R9

and R10. Respondent p roffered Exhibit R2. The partiesÓ

Joint Exhibit J1 was admitted in evidence.

The record was held open for five days following the

hearing for Respondents to submit late - filed exhibits.

Respondents timely filed Exhibits R11 and R12. The parties

requested , and were granted, leave to file proposed recommended

orders 30 days from the date the transcript was filed.

A one - volume Transcript of the proceedings was filed on

January 15, 2016. On February 15, 2016, the undersigned granted

RespondentsÓ request for a two - day extension of time to file a

proposed recommended order, which was unopposed. The parties

timely filed Proposed Recommended Orders, which were considered

in preparing this Recommended Order.

FINDING S OF FACT

The Parties

1. Petitioner, Departm ent of Agriculture and Consumer

Services (Petitioner or Department), is the state agency charged

with administering the Structural Pest Control Act, chapter 482,

Florida Statutes (the Act).

2. Respondent, Elite Inspectors, LLC , d/b/a

EliteInspectors.co m (Elite), is a Florida Limited Liability

Company , whose principal place of business is 9951 Atlantic

Avenue in Jacksonville, Florida. Elite is a residential

structural inspection company offering home inspections in

northeast Florida and southeast Georgi a. Elite has never been

licensed by the Department to engage in the business of pest

control, pursuant to section 482.071.

3. Respondents, Tamar Kekec and Stephen Franco (the

Individual Respondents), are the managers, and only members, of

Elite, which w as formed in 2004.

Pest Control Activities

4. Petitioner is authorized to issue licenses to qualified

businesses to engage in the business of pest control in this

state. See § 482.071(1), Fla. Stat. Petitioner is likewise

authorized to issue employee identification cards to persons

employed by licensees to perform pest control services. See

§ 482.091, Fla. Stat.

5. It is unlawful for any person, partnership, firm,

corporation, or other business entity to engage in the

unlicensed practice of pest con trol as that term is defined in

section 482.021(22). See § 482.165(1), Fla. Stat.

6. "Pest control" is broadly defined in

section 482.021(22) to include:

(b) The identification of or inspection for

infestations or infections in, on, or under

a structu re, lawn, or ornamental;

* * *

(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 bi d by an unlicensed primary

contractor to supply services to another.

Thus, both the conduct of wood - destroying organism (WDO)

inspections, and advertising for the conduct of WDO inspections,

are Ðpest controlÑ activities regulated by the Act.

7. Section 482.191(1) makes unlawful the advertisement of

pest control services except as authorized under chapter 482.

Absent limited circumstances not applicable here, persons or

entities engaging in such advertisement must be licensed by

Petitioner to practice p est control.

8. Petitioner is further authorized to take disciplinary

action against licensees and identification cardholders,

pursuant to section 482.161, and to issue fines against persons

who engage in the unlicensed practice of pest control, pursuant

to section 482.165.

WDO Inspections by Elite P rior to April 10, 2014

9. Between January 3 and April 10, 2014, Elite, through

its member Mr. Franco, performed 99 WDO inspections, in addition

to residential structural inspections, for its customers.

Duri ng that timeframe, Elite billed its customers $6,850.00 for

WDO inspections performed by Mr. Franco.

10. During that same timeframe, Mr. Kekec performed 49 WDO

inspections, in addition to residential structural inspections

for Elite customers, billing th em a total of $6,290.00.

11. All customer payments for WDO inspections conducted by

the Individual Respondents were deposited into EliteÓs business

banking account with BBVA Compass Bank.

DL and the Individual Respondents

12. Florida Quality Services, Inc. , d/b/a DL (DL), is a

Florida corporation licensed to engage in the business of pest

control, and whose business a ddress is 7008 Bayard Road,

Ft. Pierce, Florida.

13. William R. Miles is DLÓs president and holds a pest

control operatorÓs certificat e, pursuant to section 482.111. In

the language of the licensing statute, Mr. Miles is the

Certified Operator in Charge (COIC) at DL.

14. Every employee who performs pest control for a

licensee must have an identification card. See § 482.091(1)(a),

Fla . Stat. On April 5, 2014, Mr. Miles applied to Respondent

for pest control employee identification cards for Respondents

Kekec and Franco.

15. In the application, Mr. Miles stated that t he

Individual Respondents would begin conducting WDO inspections

for DL on April 22, 2014.

16. The Individual Respondents signed a portion of the

application certifying that they were not Ðcurrently employed by

any other pest control licensee.Ñ They also certified that they

were previously employed by another unnamed licensee with a

termination date of April 21, 2014.

17. Mr. Kekec was ÐemployedÑ by a number of pest control

companies concurrent with his operation and management of Elite,

including FK Pest Control from January to March 20 14, DL Pest

Control from June 2011 to December 2013 , CS Pest Control from

April 2009 to May 2011, TI P est C ontrol for an unspecified

period , and A1 Pest Control from May 2005 to October 2006.

Curiously, all these companies had the same business address as

DL -- 7008 Bayard Road, Ft. Pi erce, Florida. 2/

18. The Individual Respondents were issued pest control

employee - identification cards by t he Department on April 10,

2014 , identifying them as employees of DL.

19. In August 2014, DL applied to renew its license for

the 2014 - 2015 li cense year, listing the Individual Respondents

as employees to be issued identification cards as WDO inspectors

for DL.

DL and Respondent Elite

20. Following issuance of employee - identification cards to

the Individual Respondents, Elite continued to co nduct

WDO inspections, as well as residential inspections, for its

clients, and bill those clients for WDO inspections. All

payments received by Elite from its customers for whom it

conducted WDO inspections were deposited into EliteÓs business

bank accou nt.

21. Between January 3 and December 31, 2014, Elite

conducted over 300 WDO inspections for its customers, billing

them in excess of $48,000 for said inspections.

22. Elite continued to conduct WDO inspections for its

customers, bill its customers fo r those WDO inspections, and

accept payment for those WDO inspections, in 2015 as it had in

2014.

23. Elite obtained customers through its website, and

through referrals from both previous customers and real estate

agents. EliteÓs custome rs scheduled th eir home and

WDO inspections directly with Elite through Mr. Kekec or

Mr. Franco. Elite set the price per inspection based upon the

size, age, and the type of construction of the customerÓs

property. Elite provided the ladders, flashlights,

screwdrivers, extension probes, and, with the exception of a

short period in 2015, the vehicle, used by the Individual

Respondents to conduct WDO inspections. When Elite did not

provide the vehicle for a brief period in 2015, Elite used a

vehicle personally owned by M r. Kekec.

24. Elite also paid the fuel cost to travel to and from

inspections of customer properties, which is EliteÓs only

operating expense.

25. After issuance of employee - identification cards to the

Individual Respondents, Elite entered into an arra ngement with

DL by which Elite would pay DL $38 for each WDO inspection

conducted by the Individual Respondents. In turn, DL paid the

Individual Respondents $10 for each WDO inspection they

conducted.

26. For the 2014 tax year, DL paid Mr. Kekec $1,160 and

issued him a W - 2 wage and tax statement. That same year, DL

paid Mr. Franco $1,130 and issued him a W - 2 wage and tax

statement.

27. For each WDO inspection conducted, the Individual

Respondents prepared and signed a WDO inspection report on a

form r equired by the state. Each inspection report listed DL as

the inspection company. Each report was reviewed by Mr. Miles

after - the - fact in his office in Ft. Pierce.

28. Mr. Miles testified that he provided constructive

criticism via email once a month t o his WDO inspectors regarding

completion of the reports. However, if an inspector had

completed inspection reports fo r three consecutive months,

Mr. Miles suspended monthly review of their reports and only

conducted Ðspot checks.Ñ

29. Respondents intro duced no document to evince review

and criticism of any report compl eted by either Mr. Kekec or

Mr. Franco.

30. Whether DL p rovided ongoing training in

WDO inspections to the Individual Respondents was a contested

issue at hearing. Respondents attempted to introduce a

composite exhibit consisting of two manuals, two posters of

termites, and a Ðflip - bookÑ produced by University of Florida.

31. When asked whether DL provided the manuals to

Mr. Kekec, he testified, Ð[W]ell, the last version of the

manua ls, I believe it was provided in 2013, but I think there

was four or five different versions of it. ItÓs been updated

over the years.Ñ The evidence was not clear whether DL

provided the manuals to the Individual Respondents or they were

obtained by othe r means. Even if the manuals were provided by

DL to the Individual Respondents, there is insufficient evidence

to find that DL provided any ongoing relevant training to the

Individual Respondents.

32. The parties stipulated that the Individual Respond ents

met the training requirements to qualify to be identification

cardholders.

33. The only equipment issued to the Individual

Respondents by DL for their use in conducting WDO inspections

was a magnifying glass.

Elite Website

34. During all times rel evant hereto, Elite maintained a

website whose address was www.eliteinspectors.com . Elite noted

ÐWDO InspectionsÑ as one of its services and areas of expertise.

Under ÐAbout UsÑ on its website, Elite stated, ÐIn addition to

home inspections, we do . . . wood destroying organism (termite)

inspections (performed by DL employees).Ñ

35. With regard to WDO inspections, the website included

the following:

Our inspectors are Stat e Certified

WDO inspectors with s everal years of

experience and meet all of the Florida

continuing education requirements. We

perform the WDO inspection while performing

the home inspection so one additional step

can be eliminated, which saves time and

money.

WDO inspections are perform ed by DL

employees.

36. In the ÐInspector BiographiesÑ section, the website

reported that Mr. Franco was a ÐCertified Pest Operator -

TermiteÑ and that Mr. Kekec was Ða licensed WDO inspector under

DL pest services.Ñ

37. At final hearing, Mr. Kekec was unable to identify any

reason why Elite would want to identify Mr. Franco to its

customers as a licensed pest control operator.

38. The website did not identify what DL was or its

relationship with either Elite or its managers, Mr. Franco and

Mr. Kekec.

CONCLUSIONS OF LAW

39. The Division of Administrative Hearings has

jurisdiction over the parties to, and subject matter of, this

proceeding pursuant to sections 120.569 and 120.57(1) , Florida

Statutes.

40. The statutes which Respondents are alleged to have

violated are penal in nature, 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). For Petitioner to sanction Respondents, it must

prove the charges specifically 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 S tate , 501 So. 2d 129, 133 (Fla. 5th DCA 1987).

41. 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

mu st be distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking in 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

convict ion, without hesitancy, as to the

truth 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).

Count 1

42. Petitioner has charged Respondent Elite with vi olating

sections 482.071(1) and 482.165(1), by operating a pest control

business without a license.

43. Section 482.071(1) provides that Ð[i]t is unlawful for

any person to operate a pest control business that is not

licensed by the department.Ñ Section 482.165(1) provides that

Ð[i]t is unlawful for any person . . . or . . . business entity

not licensed by the department to practice pest control.Ñ

44. Petitioner proved that Elite engaged in the business

of pest control when it provided WDO inspections to its

customers in 2014 and 2015 and billed the customers for those

services. Elite was not licensed by the Department to practice

pest control during either 2014 or 2015.

45. Thus, Petitioner proved that Respondent Elite violated

482.071(1) and 482.165 (1).

Count 2

46. Petitioner has charged Respondent Elite with violating

section 482.165(1) by advertising pest control services without

a license.

47. Section 482.021(22) defines the practice of Ðpest

controlÑ to include Ðthe advertisement of, the solic itation of,

or the acceptance of remuneration for any work described in this

section[.]Ñ Section 482.165(1) makes it unlawful for any

business to practice pest control without a license.

48. At all times relevant hereto, Elite advertised on its

website t hat it offered WDO in spection services, and that

WDO inspections was an area of expertise for the company.

Further, Elite advertised, Ð[W]e perform the WDO inspection

while performing the home inspection so an additional step can

be eliminated, which save s time and money.Ñ

49. While the website mentioned that WDO inspections are

Ðperformed by DL employees,Ñ the website did not identify or

describe DL or its relationship with Elite.

50. Petitioner proved that Elite violated 482.165(1) by

advertising its W DO inspection services without a license to

engage in the business of pest control.

Count 3

51. Petitioner next charg es Elite with violating

section 482.161(1) by engaging in misleading advertising by

implying that Elite was licensed to conduct WDO inspec tions.

52. Section 482.161 provides, in pertinent part, that the

Ðdepartment may issue a written warning or impose a fine against

. . . any . . . person . . . upon any of the following grounds:

. . . (h) Fraudulent or misleading advertising relative to pe st

control or advertising in an unauthorized category of pest

control.

53. EliteÓs website advertised Ðwe perform the

WDO inspection while performing the home inspection so an

additional step can be eliminated, which saves time and money,Ñ

and that Mr. F ranco was a Ð certi fied pest operator Ñ and that

Mr. Kekec was a Ð licensed WDO inspector.Ñ The implication that

Elite is licensed to conduct WDO inspections is inherent in the

language. Customers could easily conclude that Elite is both

licensed to conduct WDO inspections and conducts those

inspections with its own certified employees. While the website

mentioned that Mr. KekecÓs license is Ðunder DL pest servicesÑ

and that WDO inspections were performed Ðby DL employees,Ñ that

information serves only to m uddle, rather than clarify, the

matter. The website does not identify who or what DL is, who

its employees are, or its relationship to Elite.

54. Petitioner proved that Elite engaged in fraudulent or

misleading advertising in violation of 482.161.

Counts 4 and 6

55. Petitioner next charges the Individual Respondents

with violations of sections 482.091(2)(a) and 482.191(1) by

unlawfully holding pest control identification cards identifying

them as employees of DL when, in fact, they were independent

contr actors thereto.

56. Section 482.091 (2)(a) provides as follows:

An identification cardholder must be an

employee of the licensee and work under the

direction and supervision of the licenseeÓs

certified operator in charge and shall not

be an independent co ntractor. An

identification cardholder shall operate only

out of, and for customers assigned from, the

licenseeÓs licensed business location. An

identification cardholder shall not perform

any pest control independently of and

without the knowledge of th e licensee and

the licenseeÓs certified operator in charge

and shall perform pest control only for the

licenseeÓs customers.

57. Neither Mr. Franco nor Mr. Kekec operated out of, or

for customers assigned from, DLÓs business locati on in

Ft. Pierce, Flori da. Instead, the Individual Respondents

operated out of EliteÓs bus iness location in Jacksonville,

Florida. They did not take customers assigned from DL, but

rather serviced Elite customers who were directed to them either

from EliteÓs website, its prior customers, or real estate

agents. Both of the Individual Respondents performed pest

control services without the knowledge or involvement of either

DL or its COIC, Mr. Miles. DL played no role i n scheduling

WDO inspections for Eli te customers, and Mr. M iles had no

knowledge of the clients for whom the Individual Respondents

conducted WDO inspections until he reviewed, after the fact,

inspection reports completed and executed by Mr. Franco and

Mr. Kekec.

58. The ÐarrangementÑ between DL and Elite , by whi ch Elite

paid DL $38 for each WDO inspection performed by the Individual

Respondents, was nothing more than a sham arrangement to give

the appearance of a client relationship between the two

entities.

59. Petitioner proved that the Individual Respondents

obtained and utilized their employee - identification cards in a

manner contrary to the statutory requirement of 482.091(2)(a).

60. Section 482.191(1) provides that it is unlawful to

Ðsolicit, practice, perform, or advertise in pest control except

as provid ed by this chapter.Ñ Subsection (1) is a precursor to

the imposition of a misdemeanor penalty for a violation of the

Act. The undersigned has no authority to make conclusions

r egarding this section of the statute.

Counts 5 and 7

61. Finally, Petitioner charges the Individual Respondents

with violating 482.165(1), 482.071(1), and 482.191(1), by

performing pest control as independent contractors without a

pest control business license.

62. Both 482.165(1) and 482.071(1) make it unlawful for

any person or business entity to operate a pest control business

without a license from the Department. The issue underlying

this charge is whether the Individual Respondents operated a

pest control business during the relevant timeframe.

Respondents maintain that the Individual Respondents were

employees of DL, rather than independent contractors thereto.

As evidence of the employer - employee relationship, Respondents

offered that DL paid the Individu al Respondents $10 for each

WDO inspection they conducted, and issue d a W - 2 wage and tax

statement on their behalf.

63. Section 482.091(2)(a) provides that Ð[a]n

identification cardholder must be an employee of the licensee

and work under the direction and supervision of the licenseeÓs

certified operator in charge and sha ll not be an independent

contractor.Ñ

64. Section 482.021(13) defines Ð[i]ndependent contractorÑ

as follows:

(13) Ò Independent contractorÓ means an

entity separate from the licensee that:

(a) Receives moneys from a customer which

are deposited in a bank account other than

that of the licensee;

(b) Owns or supplies its own service

vehicle, equipment, and pesticid es;

(c) Maintains a business operation, office,

or support staff independent of the

licenseeÓs direct control;

(d) Pays its own operating expenses such as

fuel, equipment, pesticides, and materials;

or

(e) Pays its own workersÓ compensation as

an ind ependent contractor.

65. Elite is a separate legal entity from DL. The

Individual Respondents received moneys from Elite customers for

conducting WDO inspections, which moneys were deposited into

EliteÓs business banking account. That account was separ ate

from DLÓs (the licenseeÓs) bank account. Elite, not DL,

provided the vehicles and equipment, with the exception of a

magnifying glass, used by the Individual Respondents to conduct

WDO inspections. Elite, through its managers, the Individual

Responde nts, maintained an office in Jacksonville separate from

DLÓs office in Ft. Pierce, and scheduled WDO inspections

personally, outside of DLÓs business operations. Elite, through

its managers, paid it s own fuel costs to conduct

WDO inspections, which was, a dmittedly, its only operating

expense.

66. The fact that DL supplied the Individual Respondents

with a magnifying glass to perform WDO inspections does not

preclude the conclusion that the Individual Respondents operated

as independent contractors for DL. The facts that DL paid a

meager $10 to the Individual Respondents for each WDO inspection

performed, and supplied a minor piece of equipment for their

use, support an inference that the Respondents attempted to

circumvent the regulatory structure.

67. The Individual RespondentsÓ sustaining business

operation was conducting WDO inspections for Elite clients, a

business for which it billed its clients over $48,000 in 2014

alone, and for which it did not have a license from the

Department. The evidence s upports the conclusion that the

Individual Respondents were independent contractors to DL.

68. Petitioner proved that the Individual Respondents

violated 482.065(1) and 482.071(1) by operating a pest control

business without a license.

69. In counts 5 an d 7, Petitioner again charged the

Individual Respondents with violating 482.191, a statute

imposing criminal sanctions over which the undersigned has no

jurisdiction. Thus, the undersigned declines to draw any

conclusion relative to that statutory section .

Sanctions

70. 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, 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;

a nd 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 reme dy complaints;

(c) Any previous violations of this chapter

or of the rules adopted pursuant to this

chapter; and

(d) The cost to the department of

investigating the violation.

71. Florida Administrative Code Rule 5E - 14.149, entitled

"Enforcement and Penalties," authorizes Petitioner to impose

penalties for violations of chapter 482, and sets forth the

factors Petitioner must consider in determining the penalty.

Subsection (1) of the rule also authorizes Petitioner to impose

penalties under section 4 82.161, in lieu of the rule.

72. 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: . . . (g ) [t]he

licensee, certi fi cate holder, permit holder or applicator

performs or causes fraudulent or misleading advertising relative

to pest control . . . (k) An individual or business performs

pest control without holding a valid license from the

Department ."

73. Subsection (8) of the rule provides:

(8) Fines. For 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 rectifying 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 will fully, the compliance record

of the violator, and the costs to the

Department of investigating the violation.

The Department will use the attached Fine

Guide to assist it in determining the

appropriate amount of the fine.

74. 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 = Degre e & 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 = Toxicity of the pesticide for which a

pesticide m isuse 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 = Estim ated 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

violation

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 responsible for

violation, or person operating a pest

co ntrol 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

established by prior disciplined violations,

within the thre e (3) years preceding the

date of th e 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. Violations will be considered

final on acceptance of the a pplicable

penalty, or the date of final agency action

or the conclusion of any appeals thereof.

75. The evidence did not reveal any human, animal, or

environmental harm as a result of the violations. No pesticides

were involved in the violations. Petitioner presented no

evidence of prior violations.

76. The estimated cost of rectifying the damage to the

consumer would be over $48,000, the amount unlawfully charged

and collected by Respondents from Elite customers in 2014 alone.

Respondents offer ed no evidence of mitigation and their

activities were deliberate. Petitioner presented no evidence of

investigative costs.

77. Using the rule formula, Respondents , Elite, Kekec, and

Franco , should each be fined $4,500 3/ for engaging in the

business of pest control without a license, in violation of

482.065(1) and 482.071(1). Respondent Elite could additionally

be fined for the separate violation of 482.161(1)(h) (fraudulant

advertising), but the Petitioner did not establish the cost of

rectifying damag e to the consumer. 4/

78. Section 482.161 authorizes Petitioner to suspend or

revoke an employee - identification card for Ðviolation of any

provision of this chapter.Ñ Petitioner seeks to revoke the

Individual RespondentsÓ employee - identification cards fo r

engaging in the unlicensed practice of pest control in violation

of 482.071(1) and 482.165(1). Pursuant to 482.161, revocation

is effective for three years, after which application may be

made for reinstatement.

79. The Individual Respondents conduc ted WDO inspections

before they were issued identification cards as Ðemployees of

DLÑ and continued the activities willfully thereafter. They

participated in a business ÐarrangementÑ which allowed them to

be paid twice for each and every inspection, once by the Elite

customer, and once as an Ðemployee of DL.Ñ Having each been

engaged in the pest control business in some capacity since

2005, both Individual Respondents were well aware of the

requirement to be supervised by the COIC, and skirted that

requi rement by creating an appearance of supervision in the form

of after - the - fact reviews of their work.

8 0. The undersigned concludes that it is highly likely the

Individual Respondents will continue to engage in the unlicensed

practice of pest control i n the future, as long as they can

obtain identification cards from some licensee willing to

participate in a similar arrangement. Revocation of their

identification cards will prevent the unlicensed practice for at

least three years.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that the

Department of Agriculture and Consumer Services enter a final

order finding:

1. Respondents, Elite Inspectors, LLC , d/b/a

EliteInspectors.com, Tamer Kekec, and Stephen Franco, violated

sections 482.071( 1) and 482.165(1) , by engaging in the business

of pest control in 2014 and 2015 without a license from the

Department, and impose an administrative fine of $4,500 against

the Respondents, jointly;

2. Respondent, Elite Inspectors, LLC , d/b/a

EliteInspect ors.com violated section 482.161(1)(h), by engaging

in misleading advertising relating to pest control, and issue a

warning letter thereto; and,

3. Respondents, Tamer Kekec and Stephen Franco, violated

section 482.091(2)(a) , by conducting WDO inspections in 2014 and

2015 as independent contractors to DL, and revoking the

Individual RespondentsÓ identification cards, pursuant to

section 482.161.

DONE AND ENTERED this 22nd day of March , 2016 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

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

D ivision of Administrative Hearings

this 22nd day of March , 2016 .

ENDNOTE S

1/ Unless otherwise noted herein, all references to the Florida

Statutes are to the 2015 version. While some of the actions

giving rise to the charges occurred in 2014, there was no

substantive change to the relevant statutes between 2014 and

2015.

2/ Mr. Kekec was unable to identify the business address for

A1 Pest Control.

3/ The mathematical formula is 1(0结)x $500 = $4,500.

4/ Petitioner seeks only a warning letter for this violation.

COPIES FURNISHED:

David W. Young, Esquire

Department of Agriculture and

Consumer Services

Mayo Building, Suite 520

407 South Calhoun Street

Tallahassee, Florida 32399 - 0800

(eServed)

Howard J. Hochman, Esquire

Law Offices of Howa rd J. Hochman

Suite 210

7695 Southwest 104th Street

Miami, Florida 33156

(eServed)

Lorena Holley, General Counsel

Department of Agriculture and Consumer Services

407 South Calhoun Street, Suite 520

Tallahassee, Florida 32399 - 0800

(eServed)

Honorable A dam Putnam

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.