STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 78-433

) PHILIP G. NICHOLSON d/b/a ) ALLSTATE TERMITE CONTROL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a formal hearing in the above case on June 14, 1978, West Palm Beach, Florida.

The following appearances were entered: K.C. Collette, West Palm Beach, Florida, for the Petitioner, Department of Health and Rehabilitative Services; and Philip G. Nicholson, Pinellas Park, Florida, representing himself.

On or about January 31, 1978, the Department of Health and Rehabilitative Services issued a notice of its intent to revoke the pest control business license, pest control operator's certificate, and identification card which had been issued to the Respondent in accordance with the Florida Pest Control Act, Chapter 482, Florida Statutes (1977). The Respondent is therein charged with violations of the Pest Control Act, and of the Department's pest control regulations, Chapter 10D-55, Florida Administrative Code, in connection with seven separate termite treatments performed by the Respondent. The Respondent requested a formal hearing, and the matter was forwarded to the office of the Division of Administrative Hearings in accordance with the provisions of Section 120.57(1)(b)(3), Florida Statutes (1977.) The final hearing was scheduled by notice dated March 20, 1978.

At the final hearing the Department called the following witnesses: Susan McKnight, an entomologist inspector employed by the office of entomology of the Department; Elizabeth A. Hughes, a customer of the Respondent; and Hulda Radtke, a customer of the Respondent. The testimony of Frederick Hassut, an entomologist inspector employed by the office of entomology of the Department, was received in the form of a deposition. The Respondent testified as a witness on his own behalf. Petitioner's Exhibits 1-8, and Respondent's Exhibits 1-8 were offered into evidence and were received. Official recognition was taken of the provisions of the Department's Pest Control Regulations, Chapter 10D-55, Florida Administrative Code. The parties were invited to submit post-hearing legal memoranda, but none have been received.

FINDINGS OF FACT

1. The Respondent, Philip G. Nicholson, does business as Allstate Termite Control. The Respondent holds a pest control identification card issued by the Office of Entomology of the Department of Health and Rehabilitative Services.

   
   

2. On or about September 23, 1977, the Respondent entered into a subterranean termite control contract and service agreement with Roland E. Cooley and Alma P. Cooley with respect to the Cooleys' residence in Lake Worth, Florida. The chemical specified for use on the contract was chlordane. On or about that same date, the Respondent entered into a contract with Roland E. Cooley and Alma P. Cooley to perform a dry wood termite attic prevention treatment on the Cooley's residence. The chemical specified in the dry wood contract was "dri die". Only hearsay testimony was offered to establish what, if any, representations the Respondent made to the Cooleys to induce them to enter into the contracts. The work performed by the Respondent on the Cooleys' residence was not sufficient to provide the protection specified in the contracts, and in the case of the dry wood treatment, was unnecessary.

   
   

3. The Cooleys' residence is constructed on a concrete slab. With such structures, the chlordane label, which governs use of the chemical, requires that all voids in hollow masonry units of the foundation be treated at the rate of at least one gallon per five linear feet of wall. It is thus necessary to drill each masonry block so that the chemical can be injected into it. Hollow masonry blocks were used in constructing the foundation of the Cooley house. Only one drill hole was made on the north side of the house into the masonry blocks, and none were made on the south side. If each of the masonry units had been treated as required, drill holes would have been placed at every eighteen inches along the foundation. This was not done, and the treatment for subterranean termite control was thus not in accordance with the label on the chemical, and was substandard. The treatment was inadequate to provide the Cooleys with the protection provided in the subterranean termite control contract.

   
   

4. As to the dri die treatment at the Cooley house, the sort of treatment specified would not give the Cooleys any significant termite protection, since it would only protect them from dry wood termites in their attic. It is not a sort of treatment that is ordinarily performed. In order to be performed effectively, however, the dri die must be applied in accordance with the label which gives directions for its use. It is required that all wood surfaces be covered with the chemical at a recommended rate of one pound per one thousand square feet of area. At the Cooley residence, dri die was placed in the area, however, it was placed in a small pile in one part of the attic. It was not evenly spread, all wood surfaces were not covered, and insufficient chemical was utilized. The treatment specified would have provided the Cooleys only with dry wood termite prevention in the one part of the attic where the chemical was piled. The treatment was not in accordance with the label instructions, and was substandard.

   
   

5. On or about September 27, 1977, the Respondent entered into a subterranean termite control contract and service agreement with Mr. and Mrs. Walter J. Delaney, for their residence in Lake Worth, Florida. The type of chemical specified for use in the contract was chlordane. The contract sets out the street address and zip code of the Delaneys' residence, but does not state the city. The address set out on the contract is sufficient to establish the location of the Delaneys' residence. Only hearsay evidence was offered at the

   final hearing to indicate what, if any, representations the Respondent made to the Delaneys in order to induce them to enter into the contract.

   
   

6. The work performed by the Respondent on the Delaney home was insufficient to comport with the label instructions for application of chlordane, was substandard, and did not provide the Delaneys with the protection specified in the contract. The Delaneys' home is of concrete slab on-ground construction. The foundation is constructed of hollow masonry units. The voids in the hollow masonry units were not each treated as required on the chlordane label. Only one drill hole was made on the south side of the house and none were made on the north side. Several drill holes were made on the other sides of the house, however, four of them were fake, in other words they did not go all the way through the slab.

   
   

7. On or about September 28, 1977, the Respondent entered into a subterranean termite control contract and service agreement with Mrs. Ann Sahlem, for her residence in West Palm Beach, Florida. The chemical specified for use in the contract was chlordane. Only hearsay evidence was offered to establish what representations, if any, were made by the Respondent to induce Mrs. Sahlem to enter into the contract.

   
   

8. The work performed by the Respondent on the Sahlem residence did not comport with the label instructions for us of chlordane, was substandard, and was not sufficient to provide Mrs. Sahlem with the protection specified in the contract. The Sahlem residence is constructed on an on-ground concrete slab. The foundation is constructed of hollow masonry units. The voids in each of the hollow masonry units were not filled as required by the chlordane label. No drill holes were made on the west side of the home, and only one was made on the east side. On the north side of the home the holes were too far apart to treat all of the voids.

   
   

9. The address set out on the Sahlem contract does not give the city of Mrs. Sahlem's residence although it does give the street address and zip code. The address as given is sufficient to identify the residence.

   
   

10. On or about September 30, 1977, the Respondent entered into a subterranean termite control contract and service agreement, and a dry wood termite attic prevention treatment agreement with Mrs. Elizabeth A. Hughes. The chemical specified for use in the subterranean termite control contract was chlordane. The chemical specified in the dry wood termite prevention treatment was "dri die". The contracts were for Mrs. Hughes' residence in Lake Worth, Florida. The contracts do not specify the city of Mrs. Hughes' residence, although the street address and zip code are set out. The address as set out is sufficient to adequately identify the location of Mrs. Hughes' residence. No evidence was offered from which it could be concluded that the Respondent made any misrepresentations to Mrs. Hughes to induce her to enter into the contracts. The work performed under the contracts was, however, not in accordance with the label instructions for chlordane and dri die treatments, was substandard, and was not sufficient to provide the treatment specified in the contracts.

    
    

11. Mrs. Hughes' home is constructed on a concrete slab. The foundation is constructed of hollow masonry units. The voids in the masonry units were not each treated as required on the chlordane directions. Furthermore, the drill holes were made three feet above the ground along one wall, and five feet above the ground along another wall, which would be insufficient to allow introduction of the chemicals below the concrete slab.

12. The dri die was not distributed evenly over the attic wood surfaces as required on the dri die label. An insufficient amount of the chemical was utilized, and it was placed at one spot in the attic. The dri die treatment was unnecessary, and even if it had been advisable, it was not accomplished in a manner which would provide any useful protection to Mrs. Hughes.

    
    

13. On or about October 27, 1977, the Respondent entered into a subterranean termite control contract and service agreement with Mrs.. Fred J. Schultz. The contract was for Mrs. Schultz's residence in Lake Worth, Florida. No direct evidence was offered to establish what, if any, representations were made by the Respondent to induce Mrs. Schultz to enter into the contract. It appears that the contract was solicited and performed by employees of the Respondent, and not by him directly, although he signed the contract and was responsible for the work. The chemical specified for use in the contract is Gold Crest, 72%, which is a trade name for chlordane.

    
    

14. The work performed by the Respondent did not comport with the label instructions for use of chlordane, was substandard, and was not sufficient to provide the protection specified in the contract. The Sdchultz's home is constructed on piers with a crawl space. The instructions for application of chlordane contained in the label provide that in treating such structures it is necessary to either rod or dig a narrow trench to the top of the footing along the inside of the foundation walls, around all piers, sewers, pipes, and conduits; and to rod or dig a narrow trench to the top of the footing along the outside of the foundation wall. The Respondent, or his employees who performed the work at the Schultz residence did not make any trenches whatever, and did not even enter the crawl space below the Schultz's home in order to treat the piers.

    
    

15. No evidence was presented from which it could be determined that the Respondent performed any dry wood termite treatment on the Schultz's residence. No evidence was presented from which it could be determined that any such work that may have been performed was done improperly, or that it was accomplished with or without a contract.

    
    

16. On or about October 21, 1977, the Respondent entered into a subterranean termite control contract and service agreement with Mrs. Hulda Radke. The contract related to Mrs. Radke's residence in West Palm Beach, Florida. The chemical specified for use in the contract was chlordane. The Respondent also entered into contracts to perform home repairs for Mrs. Radke. No evidence was offered from which it could be concluded that the Respondent made any misrepresentations in order to induce Mrs. Radke to enter into the contract for termite control.

    
    

17. The termite control work performed by the Respondent on Mrs. Radke's residence did not comport with the label instructions for use of chlordane, was substandard, and was not sufficient to provide the protection specified in the contract. Mrs. Radke's home was of pier constructions with a crawl space. No trenches were made, and the chemical was not trenched or rodded around each pier, and around each foundation wall. The chemical was broadcast along the top of the soil, but was not placed below the surface. The label instructions specify that a chemical should not be broadcast sprayed.

    
    

18. On or about October 26, 1977 the Respondent entered into a subterranean termite control contract and service agreement with Mrs. Charles Thompson, for her residence in West Palm Beach, Florida. The chemical specified for use in the contract was chlordane. No direct evidence was offered to

    establish what, if any, representations were made by the Respondent to induce Mrs. Thompson to enter into the contract. The work performed by the Respondent on the Thompson residence did not comport with the label instructions for use of chlordane, was substandard, and was insufficient to provide the protection specified in the contract.

    
    

19. The Thompson residence is of pier and crawl space construction. No trenches or rodding was done as specified on the chlordane label, and each pier was not treated.

    
    

20. The address set out on the Thompson contract is insufficient. It gives only a street address, and no city or zip code.

    
    

21. The Respondent testified that he used a process known as "long rodding" to treat under concrete slabs. Long rodding is a method whereby the end of a spray assembly is extended, and chemicals introduced under a slab. It is used typically where hollow masonry is not used in constructing the foundation. The process does not work well because the end of the rod cannot be adequately controlled. Even if this process were utilized, the chlordane label would required that all voids in hollow masonry units be treated. Failure to treat each of the voids would render the treatment substandard.

    
    

22. It appears that since these incidents occurred, the Respondent has performed numerous termite control contracts in Hillsborough and Pinellas counties without complaint.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the subject matter of this action, and over the parties. Section120.57(1), 120.60, Florida Statutes.

    
    

24. The Department has the burden of establishing that the Respondent has committed acts which would justify the revocation of his licenses.

    
    

25. Hearsay testimony, is not sufficient in itself to support any finding of fact, unless it would be otherwise admissible over objection in a civil action. Section 120.58, Florida Statutes.

    
    

26. The Department has failed to establish that the Respondent made any fraudulent claims, or false representation which would constitute violations of Section 42.161(5), Florida Statues, or of Rule 10D-55.104(4), Florida Administrative Code.

26. The work performed by the Respondent on the Cooley, Delaney, Sahlem, Hughes, Schultz, Radke, and Thompson residences was substandard, negligent, and contrary to the instructions contained on the chemical labels, in violations of Section 482.161(6), Florida Statutes, and Rule 10D-55.106(1), Florida Administrative Code. Since the Respondent was the certified operator in charge of each of the projects, he is not absolved of responsibility for the negligent performance of termite control treatments because he did not personally perform the treatments. Section 482.152(5), Florida Statutes.

1. With respect to the Thompson contract, the Respondent failed to put a sufficiently complete address on the contract in violation of Rule 10D- 55.105(102)(a), Florida Administrative Code.

2. The Respondent's violations of the Pest Control Act, and of the Department's Pest Control Regulations justify the suspension of his pest control business license, his pest control operator's certificate, and his identification card for a period of two years.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Department of Health and Rehabilitative Services enter a final order suspending the pest control business license, the pest control operator's certificate, and identification card of Philip Gary Nicholson, d/b/a Allstate Termite Control for a period of two years.

RECOMMENDED this 17th day of July, 1978, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings

101 Collins Building

Mail: 530 Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPY FURNISHED:

K.C. Collette, Esquire District IX, Legal Counsel Department of Health and

Rehabilitative Services

1665 Palm Beach Lakes Boulevard Suite 800

West Palm Beach, Florida 33401

Mr. Philip G. Nicholson 4140 72nd Avenue North

Pinellas Park, Florida 33565

Steven W. Huss, Esquire Central Operations Services Department of Health and

Rehabilitative Services 1317 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 78-000433

Orders for Case No: 78-000433