STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0357

)

DONALD A. MYERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Orlando, Florida, on March 21, 1991, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Ana Sonia Nieves

Environmental Health Attorney

Department of Health and Rehabilitative Services

400 W. Robinson St., Suite S-827 Orlando, Florida 32801

For Respondent: Donald A. Myers, Jr.

Lowndes, Drosdick, et al.

P.O. Box 2809

Orlando, Florida 32802-2809 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is guilty of violating various disciplinary provisions governing certified operators in charge of pest control activities of licensees.

PRELIMINARY STATEMENT

By Administrative Complaint served October 25, 1990, Petitioner alleges that Respondent, as a certified operator for American Pest Control, Inc., inspected the residence of Mr. Orren Nye on September 11, 1989, and, on the same day, issued a Wood-Destroying Organisms Inspection Report. Respondent allegedly failed to report visible and accessible evidence of drywood termite damage in structural roof members at the northwest corner of the detached garage and wood-decaying fungus damage in a north wall truss end of the garage, a northwest corner truss end of the garage, a west wall truss and roofing member ends near the north end of the garage, roofing members in the south half of the

west wall of the garage, and two truss ends near the middle of the south wall of the garage.

The Administrative Complaint alleges that Respondent thereby violated Section 482.226(1), Florida Statutes, which requires that the inspection for wood-destroying organisms be made in accordance with good industry practice and shall include inspection for all wood-destroying organisms; Section 482.226(2)(f) and (g), Florida Statutes, which requires that the inspection form report any visible evidence of previous treatments for or infestations of wood- destroying organisms and the identity of any wood-destroying organisms present and any visible damage caused; Section 482.161(1)(a), Florida Statutes, which authorizes Petitioner to discipline the license of any certified operator who violates any rule of Petitioner or anyprovision of Chapter 482, Florida Statutes; and Section 482.161(1)(e) and (f), Florida Statutes, which authorizes Petitioner to discipline the license of any certified operator who knowingly makes false or fraudulent statements or performs pest control in a negligent manner.

Each party called two witnesses. Petitioner offered into evidence five exhibits, and Respondent offered none. All exhibits were admitted except Petitioner's Exhibit 5.

No transcript was filed. Each party filed a proposed recommended order.

Treatment accorded the proposed findings is detailed in the appendix.

FINDINGS OF FACT

1. At all material times, Respondent has been the certified operator in charge of the pest control activities at American Pest Control, Inc.

   
   

2. On September 11, 1989, Respondent conducted an inspection for wood- destroying organisms incidental to the purchase of a residence located at 2 Wisteria Drive, Ormond Beach, by Mr. Orren Nye. The residential lot contains two structures: the primary residence and a detached garage.

   
   

3. Respondent detected no problems in the house. However, in the garage, Respondent discovered that work had recently been done on the roof. He observed sawdust on the floor in the northwest corner of the garage. On closer examination, Respondent found that a portion of some of the roof rafters had been cut off and new rafters scabbed together with the old. Respondent noticed that some dry rot remained in the old wood at the joint with the new wood. Because the area was not moist and he did not see how further repairs could be undertaken, Respondent decided not to mention the dry rot in his inspection report.

   
   

4. Dry rot is a condition caused by the work of fungi, which are wood- decaying organisms. The fungi are active when the wood is wet. After the fungi are no longer active, they typically leave the wood in a dry, weakened condition. It is from this condition that the term, dry rot, is derived.

   
   

5. There was no evidence of active fungi in the visible and accessible portions of the garage, which were dry at the time of Respondent's inspection.

   
   

6. There was no evidence of any active termite infestation visible and accessible in the garage. The presence of sawdust was did not conclusively indicate the presence of termites in view of such other factors as the absence of any termite pellets.

7. Following his inspection, Respondent prepared a standard wood- destroying organisms inspection report on a form prepared by Petitioner. The report identifies Mr. Nye's residence. The report lists only the "residence" as the "specific structure inspected." However, under "structures on property NOT inspected," the report states, "none."

   
   

8. The inspection report describes the scope of the inspection for wood- destroying organisms as including termitesand wood-decaying fungi. The report is expressly limited to "what was visible and accessible at the time of the inspection."

   
   

9. The material findings of the report indicate no visible evidence of wood-destroying organisms observed, no live wood-destroying organisms observed, no "visible damage observed," and no "visible evidence of previous treatment . .

   . observed."

   
   

10. On September 20, 1990, Petitioner's entomological investigator visited the Nye residence in response to a complaint received from Mr. Nye. The investigator found active wood-decaying fungi in the areas of the garaged previously inspected by Respondent, including those areas where Respondent had seen dry rot where new and old wood had been joined. The investigator also found considerable evidence of an active termite infestation.

    
    

11. The primary problem noted by Petitioner's investigator was the wood- decaying fungi. The evidence was not clear and convincing that any evidence of termite infestation was visible and accessible when Respondent conducted his inspection about one year earlier.

    
    

12. The evidence is stronger that any evidence of wood-decaying fungi was visible and accessible at the time of Respondent's inspection. However, in the intervening year, the garage roof had been leaking for at least five months. On balance, Petitioner has failed to prove by clear and convincing evidence that Respondent overlooked visible and accessible evidence of active wood-decaying fungi.

    
    

13. However, by Respondent's own admission, he saw visible damage that he failed to report. The dry rot remaining after the roof repairs clearly constituted damage from the work of wood-destroying organisms, which Respondent was required to report regardless of the absence of evidence of the presence of any active fungi or Respondent's estimation of the lack of need of further repairs. It is impossible to dismiss this omission as immaterial in view of the later problems that arose in the same area of the garage roof. This failure constitutes negligence in the performance of pest control and a deviation from good industry practice and standards in connection with inspections.

    
    

14. Petitioner seeks to impose an administrative fine of $500 for the violations alleged in the Administrative Complaint.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

16. Petitioner is authorized to discipline the certificates of certified operators in charge of pest control activities of licensees. Section 482.161.

    Petitioner may issue a written warning, impose an administrative fine, or suspend or revoke the certificate of a person who violates any provision of Chapter 482, knowingly makes false or fraudulent claims, or performs pest control in a negligent manner. Section482.161(1)(a), (e), and (f). "Pest control" is defined to include the "identification of or inspection for infestations or infections in, on, or under a structure, lawn or ornamental." Section 482.021(15)(b).

    
    

17. Section 482.226(1) requires that a wood-destroying organisms inspection must be conducted "in accordance with good industry practice and standards and shall include inspection for all wood-destroying organisms."

    
    

18. Section 482.226(2)(f) and (g) require that the inspection report contain information of "[a]ny visible evidence of previous treatments for or infestations of wood-destroying organisms" or the identity of any wood- destroying organisms present and any visible damage caused.

    
    

19. Petitioner must prove the material allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

20. Petitioner has proven by clear and convincing evidence only that Respondent observed visible damage in the form of dry rot, which had been caused by wood-destroying organisms. This failure constitutes a violation of Section 482.161(e) prohibiting the performance of pest control in a negligent manner, Section 482.226(1) requiring inspections to be performed in accordance with good industry practice and standards, and Section 482.226(2)(g) requiring inspection reports to include information of any visible damage caused by wood-destroying organisms.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order imposing an administrative fine against Respondent in the amount of $500.

ENTERED this 5th day of April, 1991, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1991.

APPENDIX TO RECOMMENDED ORDER

Treatment Accorded Proposed Findings of Petitioner

1: adopted except for second-to-last sentence, which is rejected as unsupported by clear and convincing evidence.

2: adopted.

3: rejected as hearsay, subordinate, and recitation of evidence. 4: adopted.

5: rejected as subordinate and recitation of evidence except that last sentence is adopted.

6: adopted only as to damage from wood-decaying fungi, not as to the presence of active wood-decaying fungi.

7-8: rejected as recitation of evidence.

9: rejected as unsupported by clear and convincing evidence. Respondent testified to the presence of dry rot. The fungi are active when the area is wet. Because the area was dry, the condition that Respondent observed and failed to report was damage, not active infestation of fungi.

10: rejected as evidence excluded at the hearing. Treatment Accorded Respondent's Proposed Findings

1: adopted except that the inspection report deviated from his observations and the requirements of law as to the indication that Respondent observed no visible damage from wood-destroying organisms.

2: adopted.

3: rejected as subordinate.

4: first sentence adopted. Remainder rejected as subordinate and recitation of evidence except for last sentence. The last sentence is rejected because Petitioner proved by clear and convincing evidence--namely the testimony of Respondent--that he detected dry rot during his inspection and did not report it. Dry rot is damage from a wood-destroying organism. The damage was visible and accessible because Respondent admitted that he saw it.

5-6: rejected as subordinate and irrelevant.

7-8: rejected because Petitioner proved by clear and convincing evidence that the damage from fungi was seen by Respondent during his investigation.

COPIES FURNISHED:

Ana Sonia Nieves Environmental Health Attorney

Department of Health and Rehabilitative Services

400 W. Robinson St., Suite S-827 Orlando, FL 32801

Donald A. Myers, Jr. Lowndes, Drosdick, et al.

P.O. Box 2809

Orlando, FL 32802-2809

Linda K. Harris

Acting General Counsel

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Sam Power, Agency Clerk

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

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 10 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.

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AGENCY FINAL ORDER

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STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Petitioner,

vs. CASE NO.: 91-0357

DONALD A. MYERS,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.

FINDINGS OF FACT

The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except for the Hearing Officer's conclusion of law that Ferris vs. Turlington, 510 So2d 292 (Fla. 1987) requires the department to prove the allegations of the complaint by clear and convincing evidence. Ferris is applicable to revocation of a professional license, not imposition of lesser sanctions. The correct burden of proof here is the preponderance test. American Insurance Association vs.

Department of Insurance, 518 So2d 1342 (Fla. 1st DCA 1987), Allen vs. School Board, 571 So2d 568 (Fla. 3rd DCA 1990).

Based upon the foregoing, it is

ADJUDGED, that a fine of $500.00 be imposed on respondent, Donald

A. Myers.

The fine shall be paid by check or money order payable to Treasurer, State of Florida and shall be mailed or delivered to Department of Health and Rehabilitative Services, Office of Entomology, Attn: John A. Mulrennan, Jr., Ph. D., Director, P. O. Box 210, Jacksonville, FL 32231. The fine shall be paid no later than 30 days from the entry of this Order.

DONE and ORDERED this 1st day of May 1991, in Tallahassee, Florida.

Robert B. Williams Acting Secretary Department of Health and

Rehabilitative Services

by Deputy Secretary for Health

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Copies furnished to:

Ana Sonia Nieves, Esquire Environmental Health Attorney Department of Health and Rehabilitative Services

400 West Robinson Street Suite 5827

Orlando, FL 32801

Donald A. Myers, Jr. Lowndes, Drosdick, et al. Post Office Box 2809 Orlando, FL 32802-2809

Robert E. Meale Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

John A. Mulrennan, Jr., Ph. D. Director

Entomology Services

P. O. Box 210 Jacksonville, FL 32231

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 6th day of May , 1991.

R. S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700 904/488-2381

Docket for Case No: 91-000357

Orders for Case No: 91-000357