STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ROBERT MATHEW BALES, ) CASE NO. 83-0762
) 83-0765
Petitioner, ) 83-0766
) 83-0767
vs. ) 83-0776
) 83-0777
DEPARTMENT OF HEALTH AND ) 83-0778
REHABILITATIVE SERVICES, ) 83-1224
) 84-0038
Respondent. ) 84-0855
)
RECOMMENDED ORDER APPEARANCES
For Petitioner: Joseph S. Farley, Esquire
Jacksonville, Florida
For Respondent: James A. Sawyer, Jr., Esquire
Gainesville, Florida
Reese A. Waters, Jr., Esquire Jacksonville, Florida
The final hearing in the consolidated cases identified in the above caption 1/ was held in Jacksonville on May 8 and 9, 1984. Procedurally, the cases are complicated. But, generally, the issue is whether the Department of Health and Rehabilitative Services (HRS) should: (1) discipline and refuse to renew the Jacksonville and Live Oak/Wellborn pest control licenses of Donald & Bales Exterminating Company, Inc. (the Company)(Case Nos. 83-776, 84-0855, 83-765 and 84-0038); (2) discipline the Company's two certified operators in charge of those two locations, John H. Witherspoon (Case No. 83-777) and Aubrey L. Blocker (Case No. 83-767), respectively; and/or (3) discipline one or more of the Company's identification cardholders - Colonel Matthew Bales (Case No. 83-762), Robert M. Bales, Jr. (Case No. 83-766) and Stanley E. Fryer (Case No. 83-778)
2/
Department of Health and Rehabilitative Services (HRS) generally alleges that the cardholders violated HRS rules and Section 482.161, Florida Statutes (1983): (1) by knowingly making false representations to customers or prospective customers that active pest infestations required specific treatment;
by placing second contracts for the same wood destroying organism control or preventive treatment in disregard of the first contract without first obtaining specific written consent; (3) by failing to obtain a written contract for work performed; and/or (4) by performing pest control in a negligent manner. 3/
HRS alleges that the Company and its certified operators in charge are subject to discipline under a theory of vicarious responsibility for the conduct of the Company's cardholders. HRS also alleges that the certified operators in charge violated Section 482.152, Florida Statutes (1983).
FINDINGS OF FACT 4/
At all times material to these proceedings respondent Donald & Bales Exterminating Company, Inc. (the Company) was a Florida corporation licensed by the Department of Health & Rehabilitative Services (HRS) to engage in the pest control business in Jacksonville, Florida. At all times material to these proceedings the Company also was licensed by the Department of Health & Rehabilitative Services to engage in the pest control business in either Live Oak or Wellborn, Florida. During the pendency of these proceedings the Live Oak license was regularly and properly transferred to Wellborn, Florida. 5/ During the pendency of these proceedings, the Company filed to renew both the Jacksonville and Live Oak/Wellborn business licenses. HRS denied the applications, and the Company sought review (resulting in Case No. 84-0855 and Case No. 84-0038, respectively).
Jacksonville.
Cardholders.
Stanley E. Fryer (Case No. 83-778) -
On or about June 16, 1981, Stanley E. Fryer, on behalf of the Company, called on the Company's customer Frank Dzedulevicz at Dzedulevicz's house in Jacksonville. Fryer crawled under the house to inspect. Dzedulevicz could not crawl in with Fryer but, from the access into the crawl space, could vaguely see Fryer in the darkness. Fryer pried at some wood under the house with the claw of a hammer. When Fryer emerged, he told Dzedulevicz that he saw wood borers that required a special treatment. Fryer explained that previous treatments for termites were ineffective against the wood borers. Fryer did not mention any signs of termite infestation.
Dzedulevicz agreed to the treatment, and he and Fryer signed a Company contract that day for $400.00, payable $200.00 down and $200.00 in four $50.00 monthly payments, for control of subterranean termites and "wood borers" in the foundation.
Dzedulevicz expected the Company to tent and fumigate his house. Instead, Company representatives used a spray and were only under the house for 20-30 minutes. Dzedulevicz did not smell any chemicals after the treatment. Dissatisfied, he complained to the Company, and the Company sent representatives back to spray. The treatment again lasted about thirty (30) minutes.
Still dissatisfied with the disparity between the cost and extent of the treatment, Dzedulevicz contacted HRS. His complaint was referred to inspector Phil Helseth. Helseth, an expert by training and experience, and Fryer met at the Dzedulevicz house, and both crawled under the house to reinspect.
There were no signs of any old house borer infestation under the Dzedulevicz house. 6/ Fryer had falsely represented that the two to four holes observable under the Dzedulevicz house were from the active infestation of a wood destroying organism (WDO) which required treatment for control. But there was insufficient evidence to establish that Fryer had knowledge of the falsity. The evidence did establish that Fryer negligently identified wood destroying old house borers.
Assuming Fryer's identification were correct, he negligently failed to properly treat what he told Dzedulevicz was the infesting WDO. An active infestation of old house borers should be exterminated immediately by tenting
and fumigation. Too much damage can be done before liquid residual chemical kills the adult old house borers, if it does at all, when they emerge at the end of their larva stage.
Fryer was an identification cardholder of the Company's Jacksonville business location at the time of his dealings with Dzedulevicz. The Company applied for renewal of his identification card with its application for renewal of its business license for that location on or about October 25, 1983.
Colonel Matthew Bales (Case No. 83-762) -
On December 1, 1961, the Company entered into a contract with David E. Maxwell of Jacksonville for control of subterranean termites, powder post beetles and wood borers in the "complete foundation" and for "prevention (sic) all home" for $305.00. Under the contract, Maxwell had the right to renew the contract annually for five years for an additional sum of $45.00 per year.
On December 1, 1982, Colonel Matthew Bales on behalf of the Company called on Mr. and Mrs. Maxwell, an elderly couple, and inspected the attic. He then showed the Maxwells two fat, yellowish-gold bugs and told the Maxwells "powder post beetles" were actively infesting the attic. 7/ This was a false and fraudulent misrepresentation. In fact, there was no evidence whatsoever that any powder post beetles ever had been in the attic. If the two bugs Bales had were powder post beetles (which are white worms in the larva stage when mining inside the wood and small brownish beetles when they emerge as adults), Bales did not find them in the Maxwells' attic.
By his fraudulent misrepresentation, Bales induced Maxwell to sign a new contract, dated December 1, 1982, in disregard of the earlier contract, for control and prevention of the complete foundation and attic, with "garage guaranteed" for $400.00. Under the renewal contract, the renewal fee was to be
$50.00.
Bales did not get specific written consent in letter form signed by Maxwell or an authorized agent before placing the Maxwell home under the second contract. The second contract actually was for the same wood-destroying organism control or preventive treatment although the second contract added, the phrase "garage guaranteed."
There was no other evidence from which it could be inferred that Colonel Matthew Bales was an identification cardholder with the Company during the time of his dealings with the Maxwells. Nor was it proved that he now is a cardholder for the Company at its Jacksonville business location or that the Company sought renewal of his identification card in its October 25, 1983 application to renew its business license for the Jacksonville location.
Byron O. Bales (Case No. 83-1224) -
On August 19, 1981, Byron O. Bales, as representative of the Company, called on Blanche Parker for an annual reinspection and treatment of her house in Jacksonville under an existing termite control contract. Bales crawled under the house and emerged to tell Parker that she had trouble in the form of a wood destroying fungus growing under her house and that it had to be taken care of immediately. Parker, an elderly woman, was recently widowed, and she agreed to enter into a new contract with the Company, dated August 19, 1981, for control of fungus as well as termites for $315.60 with a five-year renewal option at
$45.00 per year.
Bales' representations regarding the presence of a fungus requiring
$315.60 of treatment was false and fraudulent. In fact, there was no wood- destroying fungus under Parker's house, and there was no evidence of it whatsoever when Bales said there was an active infestation.
2. Jacksonville Certified Operator In Charge John H. Witherspoon (Case No. 83-777) -
At all times pertinent to this case, John B. Witherspoon officially was the certified operator in charge of the Company's Jacksonville business location and an identification cardholder.
Witherspoon was employed by the Company on a full-time basis. There was no evidence that he did not personally supervise or participate in the pest control operations of the business. He was unaware of the activities of the cardholders described above and of the three complaints which arose out of each of them. Each time, both the disgruntled customer and HRS inspector Helseth telephoned the Company at least one time about the incident, and Helseth mailed to Witherspoon at the Company office a copy of each of his inspector reports. None of those contacts came to Witherspoon's attention. The complaints were handled and disposed of primarily by Byron Bales, son of owner Robert M. Bales, Jr. Witherspoon first became aware of the incidents when he received a copy of the administrative complaint against him in Case No. 83-777.
However, those complaints arose out of three of the 2,000 or so contracts the Company services each year. The evidence, by itself, is insufficient to overcome Witherspoon's and others' testimony that generally Witherspoon personally supervised and participated in the pest control operations of the Jacksonville business location.
Each of the Company contracts used in the three transactions described above asked the Company's customer to make his or her check payable to the individual representative selling the contract. If generally used, such a policy, combined with less than complete supervision, could give the Company's cardholders, who work on commission, an opportunity to be overzealous and unscrupulous or, as in the two cases cited above, fraudulent, in selling pest control services unbeknownst to Witherspoon and the Company. But there is no evidence that this policy in fact gave Colonel Matthew Bales or Byron Bales their opportunity to commit fraud.
Finally, Witherspoon did not adequately train Fryer to differentiate between signs of harmful old house borers and powder post beetles, on the one hand, and signs of harmless wood borers and other beetles, on the other hand. Specifically, Fryer was taught (incorrectly) that there is no difference between signs of harmful powder post beetles and harmless ambrosia beetles. As a result, Fryer urges customers to spend the money to exterminate, as a WDO, any kind of beetle he finds.
Live Oak/Wellborn.
Cardholders.
Robert M. Bales, Jr. (Case No. 83-776) and David Ewing -
Robert M. Bales, is the principal officer and owner of the Company. He also was a cardholder at the Company's Live Oak/Wellborn location at least
from December 28, 1982 until October 25, 1983, when the Company applied for renewal of his identification card. There was no other evidence that he was a cardholder before December 28, 1982, except that he was owner, officer and representative of the Company during the times described below.
On January 12, 1982, Bales and Company cardholder David Ewing called on Mr. and Mrs. Roy Blair. The Company had served the Blairs under pest control contracts for 15-16 years, most recently under a five year renewable contract dated January 4, 1980 for prevention of termites in the foundation of the Blair house. The annual renewal fee was $20.00.
On January 12, 1982, Bales talked to the Blairs in their house while Ewing looked around outside. (Bales' vision had deteriorated to the point that he generally relies on another cardholder to do inspection.) Ewing returned, said he had seen signs of powder post beetles and asked to look in the attic. Mrs. Blair showed Ewing the access to the attic and returned to the conversation with Bales. Ewing reappeared with a piece of dark brown, decaying moist wood with white worm-like insects crawling on it. Neither Bales nor Ewing identified the insects for the Blairs.
In fact, there was no active infestation of powder post beetles in the Blairs' attic that could have been the source of the insects Ewing showed the Blairs. Ewing's representation was false and fraudulent. It induced the Blairs to agree to pay $280.00 for treatment of the attic for control of a supposedly active infestation of powder post beetles.
The Company did not give the Blairs a written contract for the treatment; the check was made payable to Bales individually.
Bales claimed at final hearing that he knows nothing of Ewing's fraud. He claimed that his vision had so deteriorated that he had to rely completely on Ewing. He claimed he never even saw the insects Ewing showed the Blairs.
Bales' self-serving testimony is not completely convincing. But nor is the evidence clear and convincing that Bales actually knew of, and participated in, Ewing's fraud. Nonetheless, as owner of the Company, Bales was in position to, but was either unable or unwilling to, prevent the fraud.
W. M. Rutherford.
W. M. Rutherford was an identification cardholder at the Company's Live Oak/Wellborn business location at least from December 28, 1982 until his identification card was revoked June 27, 1983. The evidence did not establish that Rutherford was a cardholder before December 28, 1982, but he was a representative of the Company, with or without the identification card, during the times described below.
Customer Nell Nelson.
On August 18, 1982, Rutherford called on one Nell Nelson, an elderly woman, and inspected her Jacksonville house for termites. He found a plank in the basement infested with termites and showed it Nelson. On the basis of that evidence, Rutherford sold Nelson, a contract stating it was for control of powder post beetles. The contract cost Nelson $550.00, payable $150.00 down and eight $25.00 monthly payments.
In fact, there was no strongly supporting evidence of active powder post beetle infestation then or at any time within the previous six months. There were, however, signs of termite infestation as Rutherford had told Nelson. There was no evidence to explain why the contract said it was for powder post beetles instead of termites. It could have been that Rutherford inadvertently checked the box on the contract designating powder post beetles instead of the box just above it designating termites. Nor was there any evidence regarding the treatment, specifically whether it was for termites, powder post beetles or both.
(ii) Customer Blanche Payne.
When Rutherford appeared at the Jacksonville home of Blanche Payne on September 14, 1982, the house already was under a contract dated September 4, 1980 for "control of subterranean termites (and) powder post beetle (in the) foundations." The contract provided that it was renewable for five years at a fee of $25.00 per year.
Rutherford told Payne that there were powder post beetles in the attic and that there was a law requiring the attic be treated. Rutherford showed Payne a crumbly stick with some of the alleged powder post beetles on it.
(Payne did not know where he got the stick.) With these statements and representations, Rutherford induced Payne to cancel the September 4, 1980 contract and buy a new contract. The new contract added treatment of, and prevention in, the attic to the services under September 4, 1980 contract. It cost Payne $250.00 and an additional $20.00 per year on each of the three renewal terms that would have been left under the September 4, 1980 contract.
In fact, there were no powder post beetles in the Payne attic, as Rutherford well knew. The representation was false and fraudulent.
2. Live Oak/Wellborn Certified Operator in Charge Aubrey L. Blocker (Case No. 83-767).
At all times pertinent to this case, Aubrey L. Blocker officially was the certified operator in charge of the Company's Live Oak/Wellborn business location and an identification cardholder.
Blocker is a full-time, salaried employee of the Company as the certified operator in charge of the Live Oak/ Wellborn office. The evidence was that Blocker actually works full-time.
There was no evidence that Blocker participated in, knew of or approved of the two instances of fraud committed by the cardholders referred to above. On the other hand, there also was no evidence that Blocker was generally unaware of the day-to-day activities of the Company's cardholders.
Specifically, Blocker attempted to inspect the Blair house after complaints were registered, but the Blairs refused to allow the inspection. After Mrs. Nelson complained about her contract, HRS Inspector Helseth contacted he Company and made a joint inspection of the Nelson house with Stanley E. Fryer of the Jacksonville office. But later Blocker and Fryer reinspected the house together.
Nor was there any evidence that any improprieties resulted from Blocker's failure to train cardholders under his supervision or that his training was deficient. He saw no need to, and did not, train the company's
owner, Robert M. Bales, Jr., because he had been in the business since 1964. Other personnel receive on-the-job training with Blocker personally and then a trusted cardholder. Blocker checks behind the new man's work until Blocker thinks he is capable of doing the work of a cardholder. Training also includes reading chemical labels and other written material on the subject of pest control. The problems that arose from the activities of Blocker's cardholders stem from fraud, not lack of training.
There was no evidence that Blocker ignored the problem of potential fraud by cardholders. It is true that the Blairs made their check payable to Robert Bales individually. But there was no evidence that this was a general practice approved by Blocker or that it had anything to do with Ewing's fraud.
When customers complain, Blocker participates in the Company's decision whether to refund or re-treat (or both). Blocker recommends to owner Robert M. Bales, Jr., who has the final word in the decisional process.
Relationship Between Jacksonville and Live Oak/Wellborn
Although the Jacksonville business location is licensed separately from the Live Oak/Wellborn business location, the company owns both licenses. Moreover, the operations of the two locations overlap to some extent. For example, although Robert M. Bales, Jr. is a cardholder in the Live Oak/Wellborn office, he is physically in the Jacksonville office two to three times a week. Rutherford, a Live Oak/Wellborn cardholder, called on Mrs. Nelson and Mrs. Payne in Jacksonville and placed their Jacksonville houses under contract. (Mrs. Payne's previous contract was sold by Fryer). When Mrs. Nelson complained and HRS inspector Helseth called the Company to arrange an inspection, he called and dealt with the Jacksonville office and was joined by Fryer on his inspection of the Nelson house.
Company's Refunds to Customers.
In each of the cases of customer complaints referred to above, including the case of Nell Nelson, the Company promptly refunded all monies paid by the customers after the customers complained and HRS inspections resulted in evidence of improprieties. In the Dzedulevicz case, the Company re-treated before HRS became involved. Generally, the Company has been cooperative and reasonable in its response to customer complaints and HRS criticism.
The evidence is not clear what action the Company took in response to the conduct of its representatives referred to above. The evidence shows that the Company sought to renew the identification cards of Fryer, Blocker and Robert M. Bales, Jr. as late as October 25, 1983. It also sought to renew Rutherford's identification card on July 1, 1983 although it already had been revoked on June 27, 1983. There is no evidence when or under what circumstances Colonel Matthew Bales, Byron Bales, Witherspoon or David Ewing ceased to be representatives of the Company.
CONCLUSIONS OF LAW
Under Chapter 482, Florida Statutes (1983), the Florida Department of Health and Rehabilitative Services is responsible for regulating pest control operations and for enforcing the provisions of Chapter 482.
Under Section 482.021 (12): "'Licensee' means a person, partnership, firm, corporation, or other business entity having a license issued by the
department of engaging in pest control at particular business location." Under 462.021(28): "'Certified operator in charge' means a certified pest control operator who is a state resident whose primary occupation is the pest control business, who is employed on a full-time basis by a licensee, and whose principal duty is the personal supervision of the licensee's operation in the category or categories of pest control in which the operator is certified." Under 482.021(9): "'Identification cardholder' means a person to whom a current card has been issued by the department appropriately identifying the holder to the public or to any officer or any agent of the department charged with, or entitled to exercise any function in connection with, the enforcement of this chapter and any rules made pursuant to this chapter."
Section 482.061 provides in pertinent part:
(1) The department may fine the licensee, certified pest control operator, identification cardholder, or special identification cardholder or may suspend, revoke, or stop the issuance or renewal of any certificate, special identification card, license, or identification card coming within the scope of this measure, in accordance with the provisions of Chapter 120, upon any one or more of the following grounds as the same may be applicable:
(a) Violation of any rule of the department or any provision of this chapter.
Knowingly making false or fraudulent claims; knowingly misrepresenting the effects of materials or methods; or knowingly failing to use materials or methods suitable for the pest control undertaken.
Performing pest control in a negligent manner.
Rule 10D-55.104, Florida Administrative Code, provides a pertinent part:
In solicitation of pest control business, or licensee or its employees shall claim that inspections or treatments are required, authorized or endorsed by the department or other government agencies.
(4) No licensee or its employees shall represent to any property owner or occupant of any structure that any specific pest is infesting said property, structure, or lawn or ornamental thereof, or that it requires a specific treatment for pest control when an
infestation or strongly supporting evidence of such infestation, does not exist. Exception: this prohibition shall not apply to bona fide preventive treatments which imply no infestation per se.
Rule 10D-55.105 provides in pertinent part:
Each licensee must enter into a written contract with the property owner or his authorized agent for each treatment for control or prevention of wood destroying organisms.
Such contract or an exact facsimile thereof must be given to the property owner or his authorized agent for acceptance or rejection before any portion of work is done and before payment, in part or in full, is received by the licensee.
(6) A structure shall not be knowingly placed under a second contract for the same wood destroying organism control or preventive treatment in disregard of the first contract, without first obtaining specific written consent in letter form signed by a property owner or authorized agent.
Stanley E. Fryer (Case No. 83-778)
The evidence established that Fryer, acting on behalf of the Company, mistook signs of harmless wood borers in the foundation of the Dzedulevicz home for signs of harmful old house borers. He also mistreated what he thought was an infestation of old house borers by using chemical residue instead of tent fumigation. This constituted the negligent performance of pest control in violation of 482.061(1)(f). This also violated 482.061(1)(a) by contravening Rule 10D-55.104(4), Florida Administrative Code.
Colonel Matthew Bales (Case No. 83-762) -
The evidence establishes that Colonel Matthew Bales violated Section 482.061(1)(e), (f) and both 482.061(1)(a) and Rule 10D-55.104(4), Florida Administrative Code, by defrauding the Maxwells.
In addition to his fraud, Colonel Matthew Bales violated Section 482.061(1)(a) by placing the Maxwell home under a second contract in disregard of the previous contract for the same services in violation of Rule 10D- 55.105(6), Florida Administrative Code.
HRS did not prove that Colonel Matthew Bales was an identification cardholder at the time of his misconduct or that he is one now. Section 482.091, Florida Statutes (1983), requires all employees of a license who perform pest control to have an identification card. And the Company probably complied with this law, obtaining an identification card for Colonel Matthew Bales effective during the times he performed pest control for the Company. But there was no clear and convincing evidence that he in fact had one at the time of his misconduct. And there is no evidence that he holds one now or that the Company sought renewal of his last card. Therefore, HRS failed to prove an element of its charge against this respondent Section 482.091(2), Florida Statutes (1983); Farzad v. Department of Regulation, 443 So.2d 373 (Fla. 1st DCA 1983)
John B. Witherspoon (Case No. 83-777).
The evidence establishes that Witherspoon was the certified operator in charge of the Jacksonville business location during the times Fryer and Colonel Matthew Bales committed the violations referred to above. In addition, the evidence shows that Byron Bales, another employee under Witherspoon's supervision, violated 482.061(1)(3) by defrauding Blanche Parker, thereby also violating 482.061(1)(a) and Rule 10D-55.104(4).
However, a certified operator in charge is not strictly liable for acts of misconduct by employees under his supervision. Rather, in order for the certified operator in charge to be responsible, there must be clear and convincing evidence either: (1) that he participated in, had knowledge of, or approved of the misconduct; or (2) that he has some culpability for having created circumstances that permitted the misconduct to occur. See Jones v. Department of Business Regulation, 448 So.2d 1109 (Fla. 1st DCA 1984); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979). There was no such evidence with respect to the fraud of Colonel Matthew Bales and Byron Bales.
There was such evidence, however, with respect to the misconduct of Fryer. Witherspoon was responsible for training Fryer in the diagnosis and treatment of different kinds of pests. He incorrectly taught Fryer that there is no difference between signs of harmful powder post beetles and old house borers, on the one hand, and signs of harmless other beetles and wood borers. He also incorrectly taught Fryer that chemical residual treatment is acceptable treatment of old house borers. This establishes Witherspoon's culpability for Fryer's violation of Section 482.061(1)(f), Florida Statutes (1983), and Rule 10D-55.104(4), Florida Administrative Code, and Section 482.061(1)(a), Florida Statutes (1983).
In addition, Witherspoon is responsible for Colonel Matthew Bales' violation of Rules 10D-55.105(6), Florida Administrative Code, and Section 482.061(1)(a), Florida Statutes (1983). This violation, by placing the second contract on the Maxwell home in disregard of the earlier contract, would have been apparent if Witherspoon had compared the two contracts in the Company's files.
Witherspoon's improper training of Fryer also establishes a violation of subsection (1), (4) and (5) of Section 482.152, Florida Statutes (1983), which provides, in pertinent part:
A certified operator in charge of pest control operations of the licensee shall be a Florida resident whose primary occupation is in the structural pest control business, who is employed on a full-time basis by the licensee, and whose principal duty is the personal supervision of and participation in the pest control operations of the licensee as the same relate to the following:
The selection of proper and correct chemicals for the particular pest control work to be performed.
The safe and proper use of these pesticides.
The correct concentration and formulation of pesticides used in all pest control work performed.
The training of personnel in the proper and acceptable methods of pest control.
The control measures and procedures used.
However, Section 482.152 does not form a basis for holding Witherspoon responsible for the fraud of Colonel Matthew Bales and Byron' Bales.
Finally, the evidence did not establish that Witherspoon directly participated in the misconduct of Fryer, Colonel Matthew Bales or Byron Bales. Therefore, no discipline against Witherspoon as a cardholder is supported by the evidence.
Robert M. Bales, Jr. (Case No. 766). -
As in the case of Colonel Matthew Bales, there was insufficient evidence to support a finding that Robert M. Bales was an identification cardholder in January 1982. Therefore, no charge against him as a cardholder is supported by evidence.
Aubrey L. Blocker (Case No. 83-767). -
While Blocker was certified operator in charge of the Live Oak/Wellborn business location of the Company, the evidence shows:
Rutherford defrauded Blanche Payne, contrary to the provisions of Section 482.061(1)(e), Florida Statutes (1983), and Rule 10D-55.104(1)(a), Florida
Administrative Code, and Section 482.061(1)(a), Florida Statutes (1983);
Ewing defrauded the Blairs, contrary to the provisions of Section 482.061(1)(a), Florida Statutes (1983), and Rule
10D-55.104(1)(a), Florida Administrative Code, and Section 482.061(1)(a), Florida Statutes (1983);
While the evidence did not establish that Robert M. Bales, Jr., defrauded the Blairs, he was negligent in allowing the fraud to take place, contrary to Section 482.061(1)(f), Florida Statutes (1983);
In addition, Ewing and Robert M. Bales, Jr., failed to give the Blairs a written contract, contrary to the provisions of Rule 10D-55.105(1) and (2), Florida
Administrative Code, and Section 482.061(1)(a), Florida Statutes (1983).
But for the same reasons the evidence does not establish Witherspoon's responsibility for the misconduct of Colonel Matthew and Byron Bales, the evidence does not establish Blocker's responsibility for the foregoing misconduct. See also Section 482.091(2), Florida Statutes (1983).
In addition, like the case of Witherspoon, the evidence does not establish Blocker's direct participation in the foregoing misconduct. Therefore, no charge against Blocker as identification cardholder is supported by the evidence.
Jacksonville Business License (Case No. 83-776 and 84-0855) -
As noted in the Findings of Fact, the operations of the two business locations involved in this case overlap in several respects. However, Section 482.061(4), Florida Statutes (1983), provides in pertinent part:
"Any charge of a violation of this measure by licensee shall affect only the license of the business location from which the violation is alleged to have occurred."
Therefore, it is not permissible in law to examine the cumulative effect of activities at both business locations; each business location must be examined separately.
It is true that a corporation can function only through its officers and employees. However, that fact does not create, in the context of license discipline cases, strict liability of the licensee for all conduct of the employees. As in the case of the certified operator in charge, there must be clear and convincing evidence of culpability on the part of the "licensee."
In this case the licensee technically is the Company. But Robert M. Bales, Jr. is the sole owner, and officer of the Company. Therefore, for purposes of disciplining this licensee, HRS must have proved the culpability of Bales or Witherspoon, as certified operator in charge, for the misconduct arising out of the operations of the Jacksonville business location.
As previously discussed, Witherspoon is responsible for Fryer's violations of Section 482.061(1)(f), Florida Statutes (1983), and Rule 10D- 55.104(4), Florida Administrative Code, and Section 482.061(1)(a), Florida Statutes (1983). In addition, Witherspoon himself violated Section 482.152, Florida Statutes (1983), by failing to adequately train Fryer. Finally, Witherspoon is responsible for the Company, through Colonel Matthew Bales, placing a second contract on the Maxwell home is disregard of the earlier contract in violation of Rule 10D-55.105(6), Florida Administrative Code, and Section 482.061(1)(a), Florida Statutes (1983). The Company, in turn, as license, is responsible for Witherspoon's failings.
Live Oak/Wellborn Business License (Case Nos. 83-765 and 84-0038)
The same general principles of law discussed in connection with the Jacksonville business license above also apply, of course, to the Live Oak/Wellborn business license.
In the case of the misconduct arising out of the operations of the Live Oak/Wellborn business location, the evidence does not establish that Blocker, as certified operator in charge, is responsible for any violations. However, Robert M. Bales, Jr., himself, is responsible for:
Negligently allowing Ewing to defraud the Blairs, thereby violating Section 482.061(1)(f), Florida Statutes (1983); and
Failing to give the Blairs a written contract, thereby violating Rule 10D-55.105(1), (2), Florida Administrative Code, Section 482.061(1)(a), Florida Statutes (1983).
The Company, as licensee, is responsible for these violations by Bales acting in his capacity as owner, officer and representative of the Company.
Penalty for Violations -
In addition to subsection (1) of Section 482.061, Florida Statutes (1983), cited above, subsections (5), (7) (8) and (9) provide:
(5) If after appropriate hearing in accordance with the provisions of chapter 120, the department finds that an identification cardholder, special identification cardholder, certified operator, or licensee has committed any act set forth in subsection (1), but
further finds that such violation is of such nature or under such circumstances that revocation or suspension of a certificate would either be detrimental to the public or
be unnecessarily harsh under the circumstances, it may in its discretion, and in lieu of executing the order of suspension or revocation, either:
Reprimand the party publicly or privately;
or
Place the party on probation for a period
of not more than 2 years.
The department, pursuant to chapter 120, in addition to or in lieu of any other remedy provided by state or local law, may impose an administrative fine not exceeding $500, or less than $25, for the violation of any of the provisions of this measure. All amounts collected pursuant to this section shall
be deposited in the General Revenue Fund. In determining the amount of fine to be levied for a violation, the following factors shall be considered:
The severity of the violation, including the probability that death or serious harm to the health or safety of any person will result or has resulted; the severity of the actual or potential harm; and the extent to which the provisions of this measure were violated;
Actions taken by the licensee or certified operator in charge to correct the violation or remedy complaints; and
Any previous violations of this measure.
A hearing officer may, in lieu of or in addition to fine, recommend probation or public or private reprimand. Public reprimand shall be in a newspaper of general circulation in the county of the licensee. The department shall publish quarterly a list of disciplinary actions taken pursuant to this measure and shall provide such list to each licensee.
Any licensee disciplined for any violation
of s. 482.226 may be required by the department to submit to the department reports for wood-destroying organism inspections and treatments performed. These reports shall be submitted on a timely basis as required by the department but in no case more frequently than once a week.
Before imposition of any penalty, the following facts pertinent to the quoted statutory language should be taken into consideration:
(1.) The Company services approximately 2,000 contracts a year;
(2.) The Company generally was cooperative and responsive to customer complaints and, in general, re-treated or gave refunds whenever appropriate; and
(3.) The Company sought renewal of Rutherford's identification card as late as July 1, 1983 although his card had been revoked on
June 27, 1983. The Company sought renewal
of the identification cards of Fryer and Robert
M. Bales as late as October 25, 1983. There is no evidence of what disciplinary action the Company might have taken against its other employees in response to their misconduct, a matter of mitigation on which the Company bears the burden of proof.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That the administrative complaints against Byron Bales (Case No. 83- 1224), Aubrey L. Blocker (Case No. 83-767), Colonel Matthew Bales (Case No. 83- 762), and Robert M. Bales, Jr. (Case No. 83-766) be dismissed;
That the identification card of Stanley E. Fryer (Case No. 83-778) be suspended for ninety (90) days and that a fine in the amount of $100.00, payable within thirty (30) days, be assessed against Fryer;
That the identification card and certificate of John H. Witherspoon (Case-No. 83-777) be suspended for six (6) months and that a fine in the amount of $250.00, payable within thirty (30) days, be assessed against Witherspoon;
That the Company's Jacksonville business license (Case No. 83-776 and 84-0855) be suspended for six (6) months and that a fine in the amount of
$250.00, payable within thirty (30) days, be assessed against the licensee; and
That the Company's Live Oak/Wellborn license (Case No. 83-765 and 84- 0038) be suspended for twelve (12) months and that a fine in the amount of
$500.00, payable within thirty (30) days, be assessed against the licensee.
RECOMMENDED this 7 day of August, 1984, at Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 7 day of August, 1984.
ENDNOTES
1/ The above caption is amended in accordance with the stipulation of the parties made and approved at the final hearing.
2/ Case No. 83-1224 against Byron O. Bales forms part of the basis of the charge against the Company's Jacksonville business location and Witherspoon. But Byron O. Bales is dead, and proceedings against him individually as a cardholder were voluntarily dismissed on the record at the final hearing.
3/ In all, HRS alleged thirteen (13) separate factual circumstances out of which these alleged violations arose. But at final hearing, HRS put on evidence as to only six of those factual circumstances, as reflected in the following Findings of Fact.
4/ To the extent reflected in these Findings of Fact, HRS' proposed findings of fact are approved and adopted; to the extent not reflected in these Findings of Fact, they were considered and rejected either as not being proved by competent substantial evidence, as being subordinate or as being irrelevant. None of the other parties submitted proposed findings of fact.
5/ There is no issue as to the regularity of this change of location, and for purposes of this Recommended Order the licenses at Live Oak and Wellborn will be regarded as the same license.
6/ Old house borer is the only wood borer which is of concern in existing structures. Other wood borers only infest and mine living wood. Only the old house borer will reinfest and mine seasoned wood used in construction. Old house borer larvae are inside the wood mining until maturity, which is in three to five years in the Southeast. On maturity, they emerge from the wood, leaving relatively large, oval-shaped emergence holes of greater than one-fourth inch in length. Actively mining old house borers leave behind in the galleries (tunnels) and emergence holes a powdery dust or frass.
7/ Powder post beetles are a different type of insect than the old house borer. The powder post beetle is the common name for two families of beetles that, like the old house borer, reinfest and mine seasoned wood. (Other similar families of beetles, like the ambrosia beetle, can infest and mine only living wood.) The significant difference between powder post beetles and old house borers are:
(1) Powder post beetle galleries (tunnels) and, therefore, emergence holes are
obviously different in shape (round) and smaller (only one-eight of an inch), similar to birdshot; and (2) Powder post beetles mature in just one year.
Because of the shorter life cycle, it is acceptable to treat powder post beetles with liquid residual chemical (usually Lindane) which kills the emerging adult beetles and kills all of them within one year. On the other hand, fumigation is the only acceptable method of treatment of active old house borer infestation.
COPIES FURNISHED:
James A. Sawyer, Jr., Esquire Department of Health and
Rehabilitative Services 1000 North East 16th Avenue Gainesville, Florida 32601
Lacy Mahon, Jr., Esquire Joseph S. Farley, Jr., Esquire
350 East Adams Street Jacksonville, Florida 32202
Reese A. Waters, Jr., Esquire Department of Health and
Rehabilitative Services Post Office Box 2417 F Jacksonville, Florida 32231
David Pingree, Secretary Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Sep. 26, 1984 | Final Order filed. |
| Aug. 07, 1984 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 21, 1984 | Agency Final Order | |
| Aug. 07, 1984 | Recommended Order | Negligence by pest control cardholders, fraud by others. Certified operator in charge responsible for some, not all, fraud and for inadequate training. |
