Disciplinary
investigations by the Department of Agriculture and Consumer
Services (DACS) are frequently initiated as a result of a consumer
complaint and/or an inspection by the Department. The most common
subjects of disciplinary action are WDO inspections, fumigation
procedures and subterranean termite treatments. Nevertheless,
any violation of Florida Statute 482 or the Department’s
administrative rules can give rise to disciplinary action, i.e.,
the filing of an administrative complaint.
Unlike most
closely regulated professions or trades, the procedures used
by DACS to investigate pest control operators are not described
in any statute or administrative rule. This legislative flaw
can cause serious problems to the uninformed. Most other regulatory
agencies give the licensee 20 days to respond to specific allegations
and submit any appropriate information such as photographs,
records, or affidavits. The response typically reflects the
licensee's side of the issue and can result in the termination
of unfounded consumer complaints and/or allay the agency's suspicions.
In such cases, unjustified allegations do not become part of
the licensee's public record.
This procedure
is not provided for in Florida Statute 482. Typically, the pest
control business licensee, certified operator or special identification
card holder is not informed of the Department's concerns about
a possible licensure violation until after an administrative
complaint has been issued and become a part of the licensee's
public record. In high profile cases, the initial unfairness
of the process may be compounded by the publication of a press
release critical of the pest control licensee.
Arguably,
publication is itself a form of disciplinary action which should
not be undertaken without an intervening opportunity for an
impartial hearing. In several cases, the targets of these press
releases have ultimately been cleared of any wrongdoing. Damage
repair in such cases is not unlike trying to unscramble an egg.
There is
no legal mandate however which requires DACS to conduct its
investigations and disciplinary actions in this manner. Although
some effort has recently been initiated to effect appropriate
legislative changes, there are immediate measures that PCO's
can presently undertake.
Pest control licensees and/or their employees who have reason to believe that they are the subject of a significant investigation by the Department should give consideration to acting first. Each situation is unique and dependent upon a variety of circumstances including the probable severity of the charges, the likelihood of damaging public disclosure of the charges, factual or legal defenses which may or may not be known to the Department. The assessment of whether or not to be proactive is a decision that should be made with he assistance of legal counsel and appropriate staff.
In situations
where the licensee chooses not to wait for or risk filling of
an administrative complaint, it may be advisable to request
in writing:
- A description
of any contemplated charges and an opportunity to respond
to them.
- The opportunity
to review the Department's final investigative report and
provide supplemental information before DACS makes a final
decision to file an administrative complaint.
- Reasonable
notice of the probable cause determination procedure where
a final decision to issue an administrative complaint can
be made.
In some
instances, it may be advantageous to proffer statements, photographs,
or information which address the issues under investigation.
Again, such discretionary action by the licensee should be undertaken
in a careful, measured way.
At this
time it is uncertain what the Department's response will be.
More likely than not the Department will consider any additional
information pertinent to their investigation. An inquiry as
to which, if any, statutory or rule based provisions are under
consideration may or may not be responded to by the Department.
There is no harm in asking and a substantial upside in doing
so. If the Department is forthcoming and enumerates statutory
and/or rule based deficiencies, this may assist the licensee
in meaningfully responding to the same and if feasible resolving
them favorably.
If the Department fails to identify the factual and/or legal basis for its ultimate action this may provide the licensee with an additional ground to challenge any subsequent disciplinary action. Should you require any additional information, this office is available for consultation either directly or with your present legal counsel.
See Hearing
Procedures for alternatives following the filing of an administrative
complaint.
