20-004043PL Florida Department Of Agriculture And Consumer Services vs. David Aponte Status: Closed Recommended Order on Thursday, January 7, 2021.

Summary: The Department proved, by clear and convincing evidence, that Respondent violated Florida Administrative Code Rules 5E-14.108(6) and 5E-14.112(7)(b), as alleged in the Administrative Complaint.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

F LORIDA D EPARTMENT OF A GRICULTURE

A ND C ONSUMER S ERVICES ,

Petitioner ,

vs. Case No. 20 - 40 43PL

D AVID A PONTE ,

Respondent .

/

R ECOMMENDED O RDER

Administrative Law Judge (ALJ ) Brittany O. Finkbeiner conducted the

final hearing in this case for the Division of Administra tive Hearings (DOAH )

on November 12 , 2020, by Zoom conference.

A PPEARANCES

For Petitioner: Lee Damesso us, Esquire

Department of Agriculture

and Consumer Services

407 South Calhoun Street , Suite 520

Tallahassee, Florida 32399 - 0800

For Respondent: Da vid Aponte , pro se

Home Care Pest Control, Inc.

672 Northwest 118 Street

Miami, Florida 33138

S TATEMENT OF T HE I SSUE

The issue in this case is whether Respondent violated Florida

Administrative Code Rule s 5E - 14.108(6) and 5E - 14.112(7)(b) , as alleged in

the Administrati ve Complaint. If it is found t hat Respondent has committed

any of the rule violations alleged, the penalty that should be imposed must

also be deter mined.

P RELIMINARY S TATEMENT

On July 22 , 2020, the Department of Agriculture and Consumer Services

(Depar tment or Petitioner) filed a two - count Administr ative Complaint

against Respondent David Aponte (Respondent). The first count alleged that

Respondent violated rule 5E - 14.108(6 ), by failing to have two properly

functioning self - containing breathing apparatus (SCBA) devices at a

fumigation site . The second count alleged that Respondent failed to open all

exterior doors duri ng the one - hour aeration period , in violation of rule 5E -

14.112(7)(b). For the alleged violation s , the Department sought to im pose

discipline against Respondent pursuant to section 482.161, Florida Statutes.

Respondent submitted an Election of Rights form disputing the

allegations in th e Administrative Complaint and requesting a hearing on

August 10, 2020. The Department transmi tted the matter to DOAH on

September 9 , 2020, for the assignment of an ALJ.

The final hearing was held on November 12, 2020. Petitioner presented

the testimony o f Victor Z uclich (Mr. Zuclich) , Environmental Specialist II ,

with the D epartment. PetitionerÔs exhibits 1, 2, 7, 11, and 13 through 16 were

admitted into evidence. Respondent testified on his own behalf and did not

call any other witnesses. RespondentÔs ex hibits 1 and 2 were admitted into

evidence.

A one - volume Transcript of the final hearing was filed with DOAH on

December 9, 2020. T he parties submitted timely proposed recommended

orders, which were duly considered in the preparation of this Recommended

Order.

All references to the Florida Statutes and the Florida Administrative Code

are to the 2019 versions , unless specified otherwise .

F INDINGS OF F ACT

1. On June 26, 2020, The DepartmentÔs inspector, Mr. Zucli ch, inspected a

fumigation operation conduct ed by Home Care Pest Control, Inc., at 520 SW

47th Ave, Coral Gables, Florida, 33134.

2. Respondent is the certified operator of Home Pest Control, Inc., as

defined in section 482.021(5 ) .

3. Th e Department has the authority to discipline the licenses of ce rtified

operators. § 482.161, Fla. Stat.

4. Respondent used the fumigant Zythor during the fumigation of the

subject property.

5 . The DepartmentÔs inspector, Mr. Zuclich, first arrived at the site of the

fumigation during the active aeration phase. He obse rved the crew

conducting their work for approximately 15 minutes.

6 . The inspection took place during the one - hour active aeration phase of

the fumigation process, which is when the gas is allowed to escape the

structure after the active fumigation phase is complete.

7 . During the inspection, Mr. Zuclich asked Respondent if he could

demonstrate that the two SCBAs that were visible at the fumigation site

were functional .

8 . Through his inspection, Mr. Zuclich determined that the first SCBA

tank he checked had two and a half pounds of gas, which is an acceptable

level. The second SCBA, however, showed a reading of zero. Respondent

explained to Mr. Zuclich that the second SCBA did have air in it, but the

gauge on the unit was not functioning properly. Mr. Zu clich then gave

Respondent the opportunity to demonstrate that the second SCBA was , in

fact , operational by turning it on and using it. However, even in doing so, the

SCBA failed to function. Respondent had recently taken the second SCBA to

be filled with air and did not know that it was inoperable until he attempted

to demonstrate it for Mr. Zuclich during the inspection.

9 . Mr. Zuclich inspected a truck that was marked with the logo for

RespondentÔs company. He also requested access to inspect the interi or and

the cargo bed of RespondentÔs personal vehicle, which Respondent denied. To

the extent that Mr. Zuclich was able to make a plain - view observation from

the outside of the personal vehicle , he could not see any additional SCBA

equipment. Mr. Zuclich t estified credibly that he be lieved if such equipment

were present in the vehicle, he would have been able to see them from his

vantage point because of their large size.

10 . Following his inspection, Mr. Zuclich filled out an affidavit onsite

summarizing his observations, including the inadequacy with respect to

RespondentÔs SCBA equipment. Respondent signed the affidavit that

Mr. Zuclich wrote, which included some clarifying language at RespondentÔs

request.

1 1 . Respondent testified that he had spare SCB A tanks in both his

personal and fumigation vehicles. However, according to his testimony, he

did not produce the additional SCBA equipment over the course of the

inspection because Mr. Zuclich did not ask him to do so. RespondentÔs

tes timony on this point is not credible because it is illogical that he would not

have submitted other available SCBA equipment for inspection despite the

fact that it was clear that Mr. Zuclich was documenting the deficiency in

SCBA equipment as part of his inspection. Responde ntÔs testimony is rejected

to the extent that i t conflicts with Mr. ZuclichÔs testimony as to the

availability of additional SCBA tanks at the fumigation site.

1 2 . During his inspection, Mr. Zuclich further observed , and documented ,

that one of the exteri or doors on the structure being fumigated was closed

and locked during the one - hour active aeration period.

1 3 . Respondent testified that he did not receive keys from the homeowner

to the exterior door that remained closed during active aeration. He furth er

testified that he could not access the door because it was blocked and locked

from the inside. He did not know definitively whether the door was operable.

C ONCLUSIONS OF L AW

1 4 . DOAH has jurisdiction over the parties and the subject matter of this

cau se pursuant to sections 120.569 and 120.57(1), Florida Statutes .

1 5 . The Administr ative Complaint against Respondent alleges violations

of rule 5E - 14.108(6), for failing to have two properly functioning SCBA

devices at a fumigation site; and of rule 5E - 14. 112(7)(b), for failing to open all

exterior doors during the one - hour aeration period . The Department seeks to

impose discipline against RespondentÔs license for the alleged violations.

1 6 . A proceeding to impose discipline upon a license is penal in natu re.

State ex rel. Vining v. Fla. Real Estate CommÔn , 281 So. 2d 487, 491 (Fla.

1973). Therefore, Petitioner bears the burden of proving the charges against

Respondent by clear and convincing evidence. Fox v. DepÔt of Health , 994 So.

2d 416, 418 (Fla. 1st D CA 2008) (citing DepÔt of Banking & Fin. v. Osborne

Stern & Co ., 670 So. 2d 932 (Fla. 1996)).

1 7 . The clear and convincing standard of proof has been described by the

Florida Supreme Court as follows:

Clear and convincing evidence requires that

evidence m ust be found to be credible; the facts to

which the witnesses testify must 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 tha t it produces in the mind

of the trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the allegations

sought to be established.

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

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

1 8 . Disciplinary rules and statutes generally must be construed strictly, in

favor of the one against wh om the penalty would be imposed. Griffis v. Fish

& Wildlife Conser v . CommÔn , 57 So. 3d 929, 931 (Fla. 1st DCA 2011) . The

present case , however, arises under c hapter 482, the provisions of which

Ñshall be liberally construed in order to effectively carry them out in the

interest of the public and its health, welfare, and safety.Ò

§ 482.241, Fla. Stat.

1 9 . Rule 5E - 14.108(6) states:

Whe n crew members are present on the fumigation

site, two properly functioning, positive pressure

self - containing breathing apparatus (SCBA) must

be available at all times when the structure is

under fumigation (fumigant release, exposure

period, aeration and at other times when the state

law or the fumigant label requires the use or

pres ence of a SCBA). Two SCBA do no t need to be

present at the fumigation site for activities that do

not involve workers exposure to fumigant

concentration above threshold permit ted by the

fumigant label. Such activities could include but

would not be limited to, remote monitoring, using a

Fumiscope, TIF leak detection, job site cleanup,

DACS inspections and Quality Assurance Reviews.

20 . Count 1 of the Administrative Complaint s tates, in its entirety:

Mr. David Aponte, JF122584 is in violation of

Section 5E - 14. 108(6), F.A.C., when on June 6, 2020

at a property located at 520 SW 47th Ave., Coral

Gables, FL 33134 under fumigation by Home Care

Pest Control, INC., JB 124118, there w as only one

functional SCBA with less than five pounds of air

and a second SCBA showing an air tank gauge with

a zero reading during the one - hour active aeration

phase of the fumigation.

2 1 . The Department proved, by clear and convincing evidence, that tw o

SCBAs were not available at the fumigation site during the aeration period

with crew members present , in violation of r ule 5 E - 14.108(6) .

2 2 . Rule 5E - 14.112(7)(b), states , in pertinent part:

All exterior doors and entrances to the fumigated

structure(s) s hall be posted with a warning sign on

or at each door or entrance prior to the release of

the fumigant, locke d and secured with a secondary

locking device(s) or barred or otherwise secured

against entry until the end of the exposure period,

then opened for ventilation and relocked, barred or

otherwise secured against reentry, including the

reinstallation of secondary device(s) until declared

to be safe for reoccupancy by the person exercising

direct and personal supervision of the fumigation

operation as re qui red by subsections 5E - 14.1 12 ( 1)

and (2), F.A.C.

2 3 . Count 2 of the Administrative Complaint states, in its entirety:

Mr. David Aponte, JF122584 is in violation of

Section 5 E - 14. 112(7)(b), F.A.C., wh e n on June 6,

2020 at a property located at 520 SW 47th Ave.,

Coral G ables, FL 33134 under fumigation by Home

Care Pest Control, [ INC., ] JB124118, the door

located by the North - East side of the structure w as

closed during the one - hour active aeration phase of

the fumigation .

2 4 . The Department proved, by clear and convincing evidence, that

Respondent failed to open all exterior doors during the one - hour aeration

period, in violation of rule 5E - 14.112(7)(b). Although Respondent testified

that he did not open one of the exterior doors for reasons that may ha ve been

logical, the text of the rule requires that Ñ[a]ll exterior doorsÒ be open ed for

ventilation during the relevant period , without exception.

2 5 . Disciplinary action must be predicated s olely on violations both pled in

the Administrative Complaint a nd proven at hearing. Due process prohibits

the Department from taking disciplinary action based on matters not

specifically alleged or charges not specifically made in the Administrative

Complaint. Cottrill v. DepÔt of Ins. , 685 So. 2d 1371 (Fla. 1st DCA 1996) ;

Trevisani v. DepÔt of Health , 908 So. 2d 1108 (Fla. 1st DCA 2005) .

Accordingly, the undersigned must calculate a fine based only upon matters

that were pled in the Administrative Complaint and proven at the hearing.

2 6 . The Fine Guide outlined in r u le 5E - 14.149 (15), provides a formula for

calculating penalties based on values in sections A - G. Specifically, the

formula is : A(B C D F)G. The undersigned has determined that a value

of 1 is appropriate in section A, because no Ñ[h]uman, animal, or

environmental harmÒ was identified by the Department. Section B requires a

value of 0 because Ñ no pesticide [ was ] involved in [ the ] complaint Ò in the

context of Ñhuman or animal hazards.Ò In section C, a value of 1 should be

assigned because the Department did not present any evidence as to the cost

of any damage, making such a calculation Ñ[ u ] nknown or under $1,000 . Ò

Section D require s a value of 1 because there was Ñ[n]o evidence [that the]

violation was committed deliberately.Ò Section F also requires a value of 0, as

there was no evidence of investigative costs. Finally, a value of 250 is

assigned to section G because Respondent was the certified operator

responsible for the violations in this case. Having plugged the above numbe rs

into the equation in r ule 5E - 14.149(15), the undersigned has determined that

the appropriate fine is $750. 1(1 0 1 1 0 0) 250 = 750.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department impose a fine of $750 against

RespondentÔs license.

D ONE A ND E NTERED this 7 th day of January , 2021 , in Tallahassee, Leon

County, Florida.

S

B RITTANY O. F INKBEINER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

T allahassee, 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 7 th day of January , 2021 .

C OPIES F URNISHED :

Lee Damessous, Esquire

Department of Agricult ure

and Consumer Services

407 South Calhoun Street , Suite 520

Tallahassee, Florida 32399 - 0800

(eServed)

David Aponte

Home Care Pest Control, Inc.

672 Northwest 118 Street

Miami, Florida 33138

(eServed)

Nicole ÑNikkiÒ Fried

Commissioner of Agriculture

Department of Agriculture

and Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

(eServed)

Steven Hall, General Counsel

Department of Agriculture

and Consumer Services

407 South Calhoun Street, Suite 520

Tallahassee, Flo rida 32399 - 0800

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.