93-006525 Department Of Agriculture And Consumer Services vs. Hulett Environmental Services, Inc., And Edward West Status: Closed Recommended Order on Tuesday, April 5, 1994.

Summary: Petitioner failed to show Resppondent had finished spraying pesticide. No improper application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA DEPARTMENT )

OF AGRICULTURE AND CONSUMER )

SERVICES, )

)

Petitioner, )

vs. ) CASE NO. 93-6525

)

HULETT ENVIRONMENTAL SERVICES, )

INC., a Florida corporation, and )

EDWARD WEST, )

)

Respondents. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this

case on February 21, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Robert G. Worley, Esquire

Richard Tritschler, Esquire

Department of Agriculture and

Consumer Services

Room 515, Mayo Building

Tallahassee, Florida 32399-0800

For Respondent: George P. Ord, Esquire

340 Royal Palm Way

Palm Beach, Florida 33480

STATEMENT OF THE ISSUES

Whether Respondents made an improper application of a termiticide to the

soil of two pre-construction sites for the prevention of subterranean termites,

and, if so, what penalties should be imposed.

PRELIMINARY STATEMENT

Petitioner, Department of Agriculture and Consumer Services (Department)

filed a nine count administrative complaint against Respondents, Hulett

Environmental Services, Inc. (Hulett) and Edward West (West), alleging that

West, acting at the direction of his employer, Hulett, improperly applied

termiticide treatments at three pre-construction sites. Respondents requested

an administrative hearing and the matter was forwarded to the Division of

Administrative Hearings on November 12, 1993 for formal proceedings. The

hearing was scheduled for February 7, 1994. On January 11, 1994, Petitioner

filed a Motion for Continuance. The motion was granted and the hearing was

rescheduled for February 21, 1994. The parties filed a prehearing stipulation

wherein Petitioner withdrew Counts 7, 8, and 9 of the Administrative Complaint.

The parties stipulated to certain facts which are included in the Findings of

Fact. Petitioner filed an unopposed Motion to Amend Administrative Complaint.

At the hearing the Motion to Amend Administrative Complaint was granted. The

citation to Rule 10E-14.106(8), Florida Administrative Code in paragraphs 8, 14,

and 20 of the Administrative Complaint was amended to read Rule 5E-14.106(8).

The Proposed Agency Action of the Administrative Complaint was amended to seek

suspension of Hulett's license in the termite category for one year; suspension

of West's Identification Card for one year; administrative fines of $5,000 for

each violation against each respondent; and such other penalties as may be

proper under Chapter 482.

The Department presented the testimony of Steven Rutz, Frederick Hassut,

and Frank Valdes. The Department's exhibits 1-6 were admitted into evidence.

Respondents presented the live testimony of Edward West, Scott Armand, and

Timothy Hulett and published a portion of the deposition of Michael McDaniel.

Respondents' exhibits 1 and 2 were admitted into evidence.

The parties agreed to file proposed recommended orders within ten days of

the filing of the transcript. The transcript was filed on March 9, 1994. The

parties timely filed proposed recommended orders. The parties' proposed

findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Hulett Environmental Services, Inc. (Hulett), is engaged in

the business of general structural pest control, including the application of

termiticide to the soil of pre-construction sites for the prevention of

subterranean termites. Hulett is licensed by Petitioner, Department of

Agriculture and Consumer Services (Department), under Chapter 482, Florida

Statutes, as a pest control business and maintains its primary place of business

at 1959 West 9 Street, Riviera Beach, Florida. Respondent Edward West (West) is

employed by Hulett as a pesticide applicator technician.

2. On May 20, 1993, West performed termiticide treatments to two pre-

construction sites located at Lot 4 of Block 13, Willow Bend, Coconut Creek,

Florida (site one); and Lot 3 of Block 13, Willow Bend, Coconut Creek, Florida

(site two) where he applied the chemical pesticide "Prevail Termiticide" to the

soil for the prevention of subterranean termites. The labels of "Prevail

Termiticide" provide for a specific amount and concentration of the pesticide to

be applied to soil for the prevention of subterranean termites.

3. From May 17-21, 1993, the Department was conducting a surveillance

investigation of pre-construction termiticide applications to determine if there

were violations of Chapter 482, Florida Statutes. This investigation was known

as Operation Spray Right. Frederick Hassut (Hassut), Frank Valdes (Valdes), and

Michael McDaniel were Department employees working on Operation Spray Right.

4. On the morning of May 20, 1993, Hassut and Valdes went to the

construction site of Willow Bend Development. They parked their van about one

block from sites one and two where West was working.

5. West tamped the soil on the first site to compact the soil. After

tamping the soil, he sprayed the site for five minutes and thirty-two seconds as

timed by Hassut and Valdes, resulting in 29 percent of the pesticide required by

the termiticide label being applied during that application.

6. West went to site two, which was adjacent to site one, and tamped the

soil. After tamping, he sprayed the soil for six minutes and forty seconds,

resulting in 24 percent of the pesticide required by the termiticide label being

applied during that application.

7. After he sprayed site two, West returned to his truck. Using the radio

in his truck, he called the Hulett office and told Timothy Mark Hulett, the

president of Hulett, that he thought that inspectors were in the area but he had

not completed the job. Mr. Hulett advised West that he was coming out to the

site. Mr. Hulett asked his operations manager, Scott Armand, to accompany him

to the site. The Hulett office is located approximately 45 minutes from the

site.

8. West began to roll up his hose, when Valdes approached him and

introduced himself to West. Hassut parked the van near West's truck, came to

West, introduced himself, gave him his business card, and served him with a

Notice of Inspection.

9. West advised both Hassut and Valdes that he had not completed spraying

the two sites. Hassut and Valdes performed a calibration test to measure the

flow rate of the chemicals. No tests were performed to determine the amount of

the pressure used in the spraying.

10. Hassut showed West affidavit forms and filled in the blanks. West

wrote on the affidavit forms, "Job not done at time of inspc," and signed the

affidavits in the presence of Hassut and Valdes.

11. West would not sign the affidavits unless he could be provided copies

of the affidavits; thus, Hassut and Vales left the site in search of a copying

machine. When they returned West was spraying another lot nearby.

12. When Mr. Hulett and Mr. Armand reached the site, they found West

spraying and Hassut standing near the Hulett truck. Mr. Hulett went to West, who

told Mr. Hulett that the site was not ready. The bathroom areas were not dug

out properly and some form boards were down. West told Mr. Hulett he had told

the construction workers to come back and dig out the site in the bathroom

areas. Mr. Hulett advised him to tell the construction company personnel again.

There were construction workers who were sitting and watching at a nearby lot.

13. Mr. Hulett went to talk with Hassut, whom he had known for several

years. Hassut advised Mr. Hulett that West had sprayed improperly to which

Hulett responded that West had not finished the job. There was a general

discussion between them concerning problems in the pest control industry,

particularly since the use of Chlordane had been banned.

14. Construction workers came and worked on sites one and two.

15. Mr. Hulett requested Hassut to come look at sites one and two and to

watch West finish the spraying. Hassut declined to do so, and he and Valdes

left the site.

16. A notice is required to be placed on the site after a termite

treatment is completed. It is Hulett's policy that the applicator post a

termite sticker on the permit board at the site once the application is

complete. The termite sticker indicates the company and technician who

performed the treatment, the location where the treatment was performed, the

chemical used and the date of treatment.

17. After Valdes and Hassut left the sites, West finished spraying sites

one and two and posted a termite sticker at each site, indicating the site had

been treated.

18. When Valdes and Hassut inspected the sites, West had not posted

termite stickers nor had he made any attempt to post termite stickers at sites

one and two. Valdes and Hassut did observe that there were Hulett termite

stickers posted at other sites in the West Bend Development where Hulett had

applied termiticide.

19. When Hassut and Valdes inspected sites one and two, West had not

completed spraying the sites.

20. West applied the "Prevail Termiticide" to sites one and two in

accordance with the label requirements.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of this proceeding. Section 120.57(1),

Florida Statutes.

22. Petitioner has the burden to prove by clear and convincing evidence

all the essential allegations against the Respondents. See Ferris v. Turlington,

510 So.2d 292 (Fla. 1987); Pic N' Save v. Department of Business Regulation, 601

So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation,

592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law

Enforcement, 585 So.2d 500 (Fla. 3rd DCA 1991).

23. The court in Solomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA

1983) stated the requirements for clear and convincing evidence as follows:

[T]he evidence must 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 that 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.

24. Section 482.051(1), Florida Statutes, provides that the Department of

Agriculture and Consumer Services adopt rules which require the following:

That all pesticides or economic poisons be used

only in accordance with the registered labels and

labeling or as directed by the United States

Environmental Protection Agency or the department.

In compliance with this requirement, Petitioner

adopted Rule 5E-14.106(8), Florida Administrative

Code which states:

Pesticides used for pre-construction soil treatments

for prevention of subterranean termites shall be

applied in the specific amounts, concentration, and

treatment areas designated by the label. The

pesticide, in its original formulation, shall be

mixed at the pre-construction treatment site

immediately prior to application. A copy of the

label of the registered pesticide being used shall

be carried in the vehicle from which the application

is performed. The licensee shall maintain records

for 3 years of each pre-construction soil treatment

indicating the date of treatment, address of property

treated, total square footage of structure treated,

pesticide used, percent concentration of mixture

applied and total volume applied.

25. Sections 482.161 (1)(e) and (f), Florida Statutes, provide:

(1) The department may issue a written warning

to or fine a licensee, certified operator, limited

certificate holder, identification cardholder, or

special identification cardholder or may suspend,

revoke, or stop the issuance or renewal of any

license, certificate, limited certificate

identification card, or special identification

card coming within the scope of this chapter,

in accordance with chapter 120, upon any one

or more of the following grounds as the same may

be applicable:

* * * *

(e) Knowingly making false or fraudulent claims

with respect to pest control; knowingly misrep-

resenting the effects of materials or methods

used in pest control; or knowingly failing to

use material or methods suitable for the pest

control undertaken.

(f) Performing pest control in a negligent manner.

26. In Count One of the Administrative Complaint, Petitioner alleged that

the Respondents failed to apply pesticide to site one in the specific amounts

and concentration designated by the label, violating Section 482.051(1), Florida

Statutes and Rule 5E-14.106(8), Florida Administrative Code. Petitioner failed

to meet its burden of proof to show that Respondents violated Section 482.05(1),

Florida Statutes and Rule 5E-14.106(8), Florida Administrative Code. West

applied "Prevail Termiticide" to site one in the amounts and concentration

designated on the label.

27. In Count Two of the Administrative Complaint, Petitioner alleged that

Respondents performed pest control on site one in a negligent manner, violating

Section 482.161(1)(f), Florida Statutes. Petitioner has failed to meet its

burden of proof to show that Respondents violated Section 482.161(1)(f), Florida

Statutes. West applied the termiticide according to the label to sites one and

had not completed the application when Hassut and Valdes inspected the site.

28. In Count Three of the Administrative Complaint, Petitioner alleged

that the Respondents knowingly failed to use materials or methods on site one

suitable for the control of subterranean termites, violating Section

482.161(1)(e), Florida Statutes. Petitioner failed to show that Respondents

violated Section 482.161(1)(e), Florida Statutes. West used suitable materials

and methods in applying the termiticide to site one.

29. In Count Four of the Administrative Complaint, Petitioner alleged that

the Respondents failed to apply pesticide to site two in the specific amounts

and concentration designated by the label, violating Section 482.051(1), Florida

Statutes and Rule 5E-14.106(8), Florida Administrative Code. Petitioner failed

to meet its burden of proof to show that Respondents violated Section 482.051(1)

and Rule 5E-14.106(8). West applied "Prevail Termiticide" to site two in

accordance with the label. West had not finished applying the termiticide to

site two when Hassut and Valdes made their inspection.

30. In Count Five of the Administrative Complaint, Petitioner alleged that

Respondents performed pest control on site two in a negligent manner, violating

Section 482.161(1)(f), Florida Statutes. Petitioner failed to demonstrate that

Respondents violated Section 482.161(f), Florida Statutes. West applied

"Prevail Termiticide" to site two in accordance with the label and had not

completed spraying site two when Hassut and Valdes made their inspection of site

two.

31. In Count Six of the Administrative Complaint, Petitioner alleged that

Respondents knowingly failed to use materials or methods on site two suitable

for the control of subterranean termites, violating Section 482.161(1)(e),

Florida Statutes. Petitioner failed to show that Respondents violated Section

482.161(e), Florida Statutes. West used suitable materials and methods in

applying the termiticide to site two.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered dismissing all counts in the

Administrative Complaint against Hulett Environmental Services, Inc., and Edward

West.

DONE AND ENTERED this 5th day of April 1994, in Tallahassee, Leon County,

Florida.

___________________________________

SUSAN B. KIRKLAND

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of April 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6525

To comply with the requirements of Section 120.59(2), Florida Statutes

(1993), the following rulings are made on the parties' proposed findings of

fact:

Petitioner's Proposed Findings of Fact.

1. Paragraph 1: Accepted.

2. Paragraph 2: Rejected as unnecessary detail.

3. Paragraph 3: Accepted.

4. Paragraph 4: The first three sentences are accepted in substance.

5. Paragraph 5: Rejected as subordinate to the facts actually found.

6. Paragraph 6: The first sentence is rejected as recitation of

testimony. The second, third and fourth sentences are accepted in substance.

The last sentence is rejected as subordinate to the facts actually found.

7. Paragraph 7: The first, second, fourth, and fifth sentences are

rejected as subordinate to the facts actually found. The third sentence is

rejected as constituting argument.

8. Paragraph 8: The first sentence is rejected as not supported by the

greater weight of the evidence. The last sentence is rejected as constituting a

conclusion of law.

All of Respondent's Proposed Findings of Fact are not numbered. The

following rulings are numbered to correspond to the order in which the

paragraphs appear in Respondent's Proposed Findings of Fact.

1. Paragraph 1: Accepted.

2. Paragraphs 2-6: Accepted in substance.

3. Paragraphs 7-12: Rejected as argument.

COPIES FURNISHED:

Robert G. Worley, Esquire

Consumer Services

Room 515, Mayo Building

Tallahassee, Florida 32399-0800

George P. Ord

Alley, Maass, Rogers

& Lindsay, P.A.

321 Royal Poinciana Plaza, So.

Palm Beach, Florida 33480

Honorable Bob Crawford

Commissioner of Agriculture

The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler

General Counsel

Department of Agriculture

and Consumer Services

The Capitol, PL-10

Tallahassee, Florida 32399-0810

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended

order. All agencies allow each party at least ten days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this recommended order. Any exceptions to this recommended order should be

filed with the agency that will issue the final order in this case.