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Pest Control Disciplinary Investigations

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:

  1. A description of any contemplated charges and an opportunity to respond to them.
  2. 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.
  3. 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.