21-002325 Department Of Agriculture And Consumer Services vs. Luis Cardenas (Jd282778) Status: Closed Recommended Order on Tuesday, November 2, 2021.

Summary: Department failed to prove by clear and convincing evidence that Respondent violated rule requiring warning signs and secondary lock on a connected structure. Recommend dismissal of Administrative Complaint.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF A GRICULTURE A ND

C ONSUMER S ERVICES ,

Petitioner ,

Case No. 21 - 2325

vs.

L UIS C ARDENAS (J D 282778) ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearing in this case was conducted before

Administrative Law Judge Mary Li Creasy by Zoom conference on

September 27 , 2021.

A PPEARANCES

For Petitioner: Lee Damessous, Esquire

Department of Agri culture

and Consumer Services

407 South Calhoun Street, Suite 520

Tallahassee, Florida 32399 - 0800

For Respondent: Luis Cardenas, pro se

2922 Southwest 14th Street

Miami, Florida 33145

S TATEMENT OF T HE I SSUE S

Whether Resp ondent , a fumigator, committed the violation s alleged in the

Administrative Complaint of failing to lock a shed connected to a house under

fumigation and fail ing to post warning signs ; and, i f so, what is the

appropriate penalty .

P RELIMINARY S TATEMENT

Aft er an inspection of a house under fumigation, the Department of

Agriculture and Consumer Services ( Ñ Petitioner Ò or Ñthe DepartmentÒ) issued

an Administrative Complaint on February 16, 2021, against the fumigator in

charge, Respondent, Luis Cardenas. Respon dent timely requested an

administrative hearing, and the matter was r e ferred to the Division of

Administrative Hearings (ÑDOAHÒ) on July 28, 2021.

The hearing was held as scheduled on September 27, 2021. The

Department presented the testimony of Victor Zu clich, Department

Investigator. PetitionerÔs Exhibits 2, 6, 9, 12, and 14 were admitted .

Respondent testified on his own behalf and offered no exhibits.

T he T ranscript was filed on October 5 , 2021. The Department timely filed

a P roposed R ecommended O rder, which w as taken into consideration in the

drafting of this Recommended Order. Respondent did not file a post - hearing

submittal. Unless otherwise indicated, citations to the Florida Statutes refer

to the version in effect at the time of the application den ial.

F INDINGS OF F ACT

1. Pursuant to chapter 482, Florida Statutes, the Department is charged

with the regulation of the pest control industry in Florida . The L egislature

created stringent requirements and standards within the pest control

controlling sta tute. The DepartmentÔs pest control regulation includes

oversight and inspections over fumigations performed in Florida.

2. Fumigation, the use of a restricted use pesticide (fumigant), brings with

it a particular set of dangers. The chemicals used in the fumigation process

are restricted use pesticides. They are odorless, tasteless, and invisible gases.

The L egislature has recognized the inherent danger of restricted use

pesticides. It is for this reason that the statutes and rules related to

fumigation ar e particularly stringent. See § 482.051(1), (4), and (7), Fla. Stat.

3. The Department regulates the precautions necessary when there is a

structure connected to one under fumigation. W hen a primary structure (like

a home) is fumigated, any structure conne cted to it by electrical conduits or

other pipes could become subjected to the fumigant gas because the gas may

travel through these construction elements. F la. Admin. Code R . 5E -

14.102(17). For this reason, the connected structure must be posted with

warn ing signs and secondarily locked in accordance with the label on the

fumigant and Florida Administrative Code Chapter 5E - 14 .

4. On January 22, 2021, Department I nspector Victor Zuclich conducted a

lawful inspection of a fumigation operation conducted by SP C Services, LLC

(ÑSPCÒ) , at 10945 S outhwest 179 th Street, Miami, Fl orida 33157 (Ñthe

propertyÒ) .

5. SPC is owned and operated by Cristy Fernandez. Ms. Fernandez was

the Ñcertified operator in chargeÒ (ÑCOICÒ) and considered by the Department

as 100 percen t responsible for the supervision and fumigation activities in

the field by her company even when she is not present.

6. Respondent was the special identification cardholder (fumigator in

charge or ÑshooterÒ ) who performed the subject fumigation at the pro perty .

Respondent used the restricted use pesticide fumigant Vikane during the

fumigation of the subject property.

7. The Vikane label 1 and r ule 5E - 14.112(7)(b) require warning signs and

secondary locks be posted on all Ñ connected structures Ò during fumiga tion.

8. The property consists of a house with a screened - in pool and a nearby

stand - alone shed . At the time of Mr. ZuclichÔs inspection, the house was

tented and undergoing termite fumigation, but the shed was not covered.

1 The Vikane label was admitted into evidence as PetitionerÔs Exhibit 12.

9. Respondent posted warning sig ns on , and secondarily locked , the

primary structure under fumigation. Respondent did not post any warning

signs or secondarily lock the shed.

10. Mr. Zuclich observed a plastic conduit running from the outside lower

wall of the shed into the grass. He was not able to tell whether the conduit

connected the shed to the house . He took photos of the shed and made a note

to inquire whether the shed was a connected structure.

11. On January 22, 2021, Mr. Zuclich sent a request for information to

SPC by email . Af ter receiving no response, he made several phone calls and

spoke to Ms. Fernandez and her husband who identified himself as ÑRoger.Ò

12 . Neither Ms. Fernandez nor her husband had been on - site at the

property. Roger was not familiar with the shed. He called Respondent who

advised that he had placed tape over the breaker to the shed in the main

breaker box and had also dug up and disconnected the conduit pipe and taped

the ends.

13. Mr. Zuclich met with Ms. Fernandez and her husband on February 1,

2021, and p resented Ms. Fernandez with the Notice of Inspection.

Respondent was present in the office but did not speak to Mr. Zuclich.

Mr. Zuclich did not ask Respondent any questions.

14. Ms. Fernandez represented to Mr. Zuclich that the shed was not a

ÑconnectedÒ structure because Respondent had placed tape over the breaker

to the shed.

15. Ms. Fernandez made no mention of the disconnection of the conduit .

Based on his conversation with Ms. Fernandez, Mr. Zuclich prepared an

affidavit for her signature as the COIC . The affidavit was passed to

Respondent, but RespondentÔs first language is not English, and he did not

read it.

16. Based on the representations in the affidavit of Ms. Fernandez, the

Department cited Respondent for failing to affix the proper warning

no tification on the shed and to secure it with a secondary lock to prevent

entry during fumigation of the house.

17. After receipt of the Administrative Complaint, Respondent became

aware of the DepartmentÔs position that the shed was a connected structure .

Roger returned to the property and took pictures, as directed by Respondent,

showing a disconnected conduit in the ground with a taped end.

C ONCLUSIONS OF L AW

18 . DOAH has jurisdiction over the subject matter and the parties to this

proceeding. § § 120.569 and 120.57(1), Fla. Stat.

19. Chapter s 482 and 5E - 14 set forth the substantive requirements for the

practice of pest control operations in Florida.

20. Because the Department is seeking to discipline RespondentÔs license

as a fumigator, the Department has the burden of proof in this proceeding ,

and must show by clear and convincing evidence that Respondent committed

the acts alleged in the Administrative Complaint. DepÔt of Banking & Fin.,

Div. of Sec. & I nv . Prot. v. Osborne Stern & Co. , 670 So. 2d 932 (F la. 1996) .

21. Rule 5E - 14.106(1) states that Ñit shall be unlawful to use any

registered pesticide in a manner inconsistent with its label and labeling È . Ò

This requires that fumigants be used according to the label.

22. A ÑConnected StructureÒ is any str ucture physically connected with

the structure to be fumigated by construction elements (e.g. pipes, conduits,

drains, ducts, etc.), which may allow passage of fumigant between the

structures. See Fla. Admin. Code R . 5E - 14.102(17) .

23. The Vikane l abel, un der the heading ÑConnected Structures , Ò

specifically states that , ÑIf state rules and regulations do not describe or

permit a process to isolate and seal a connected structure È then the

connected structure must be vacated during the fumigation.Ò Further, if a

structure must be vacated, Ñthe structure shall be considered as a fumigated

structure an d all applicable rules, regulations and label instructions apply,

such as È posting, securing È . Ò

24. The Department Ôs rules and regulations do not describe or p ermit a

process to Ñisolate and seal a connected structure to prevent passage of

fumigant to the fumigated structure.Ò

25. Thus, a connected structure must be vacated and is considered a

Ñfumigated structure , Ò requiring the adherence to regulations for pos ting

and securing fumigated structures. Fumigated structures must be

posted with warning signs and secondarily locked. See Fla. Admin. Code

R . 5E - 14.112(7)(b) and the Vikane l abel.

26. Respondent admit ted that he did not post warning signs or secondarily

l ock the shed.

27. In an abundance of caution, Respondent taped the electric panel to cut

any potential power running through the conduit to the shed. He also

disconnected the conduit and taped the two ends to prevent any fumigant

from possibly entering the shed.

28. The Department makes much of the fact that the COIC affidavit only

mentions the electric panel and not the disconnected pipe . The Department

also questions why, when Respondent was present at the meeting with the

inspector and the business owner , he would not speak up to explain the pipe

disconnection.

29. The DepartmentÔs argument assumes facts not in evidence -- that the

shed, in fact, was a connected structure . No evidence was presented by the

DepartmentÔs witness that the conduit, regardless of whether it was

disconnected in the yard or not by Respondent, ran to the main house. To the

contrary, Mr. Zuclich testified:

I saw gray conduit, which gave the appearance that

it was connected to the main structure, but the

conduit disappears under the gr ass, and IÔm not

able to see exactly where it leads to. È I was under

the assumption during my inspection, that the shed

was connected, and I didnÔt notice a secondary lock

or warning sign, so I made sure I included it in my

documentation so I could follow up with the

company. (Emphasis added) . [ 2 ]

30. The Department relies on the affidavit of Ms. Fernandez as the

COIC , which states, ÑThere was a connected shed to the main fumigated

structure È . Ò Although the document was admitted without objection as

part of the inspection report (PetitionerÔs Exhibit 6), it contains

uncorroborated and , therefore, inadmissible hearsay. Ms. Fernandez had no

personal knowledge of the situation at this property. Her company,

RespondentÔs employer, is not the Ñparty opponentÒ in this proceeding. There

was no evidence that Respondent adopted this statement expressly or

implicitly.

31. Respondent credibly testified that although the affidavit was passed to

him for review, he could not understand it due to his limited ability to r ead

English. He also credibly asserted that the citation and proposed penalty

(and this litigation) could have been avoided if the inspector talked directly to

him, rather than Ms. Fernandez.

32. The Department failed to demonstrate by clear and convincing

evidence that the shed in question was, in fact, a connected structure, or that

any violation occurred.

R ECOMMENDATION

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

R ECOMMENDED that the Administrative Complaint be dismissed.

2 See Tr . P. 18, line 15 , through p . 19, line 3.

D ON E A ND E NTERED this 2nd day of November , 2021 , in Tallahassee, Leon

County, Florida.

S

M ARY L I C REASY

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Divisio n of Administrative Hearings

this 2nd day of November , 2021 .

C OPIES F URNISHED :

Lee Damessous, Esquire Luis Cardenas

Department of Agriculture 2922 Southwest 14 th Street

and Consumer Services Miami, Florida 33145

407 South Calhoun Street , Suite 520

Tallahassee, Florida 32399 - 0800 Honorable Nicole "Nikki" Fried

Commissioner of Agriculture

Steven Hall, General Counsel Department of Agr iculture

Dep artment of Agriculture and Consumer Services

and Consumer Services The Capitol, Plaza Level 10

407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399 - 0810

Tallahassee, Florida 32399 - 0800

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 excepti ons to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.