STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

)

Petitioner, )

)

vs ) CASE NO. 92-1055

)

JAMES DALE COOLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on June 24, 1992, in Jacksonville, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Scott D. Leemis

Assistant District Legal Counsel

P. O. Box 2417

Jacksonville, Florida 32231-0083

For Respondent: Griffin Helwig, Esquire

3030 Harley Road #190

Jacksonville, Florida 32257 STATEMENT OF THE ISSUE(S)

The administrative complaint herein charged Respondent, a Pest Control Certificate Holder, with violations of Sections 482.226(1), 482.226(2)(g), 482.161(1)(a), and 482.161(1)(e) F.S. with regard to two inspection reports dated December 6, 1990 and December 7, 1990.

PRELIMINARY STATEMENT

Petitioner presented the oral testimony of Respondent, Jain-Min Tseng, Phillip Helseth, and John Mulrenen. Respondent testified on his own behalf and presented the oral testimony of Janet Robinson.

The parties had two joint exhibits admitted in evidence. Petitioner had one exhibit admitted. It was ruled that Petitioner's prior disciplinary actions against Respondent would be considered only in the event that guilt of one or more charges was first proven herein and then considered only for purposes of setting penalty. Respondent had two exhibits admitted.

Official recognition was taken of Chapter 482 F.S.

No transcript was filed. All timely proposed findings of fact have been ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. James Dale Cooley, Respondent herein, is a certified pest control operator doing business as Tropical Pest Control and Closing Inspection Services Company.

   
   

2. On December 6, 1990, Respondent inspected a residential property located at 1222 Stimson Street, Jacksonville, Florida, and issued a Wood- Destroying Organisms Inspection Report, HRS Form 1145. That report indicated that wood fungi was present in the subfloor and was caused by a moisture condition in the crawl space. The block under "Report of Findings" on that report for "visible evidence of wood-destroying organisms observed" was marked, "Yes." Under "comments," Respondent stated "Mature home; minor deterioration bottom of siding and trim of detached utility."

   
   

3. Subsequently, Respondent issued a second Wood-Destroying Organisms Inspection Report for the same residence, bearing an inspection date of December 7, 1990. The second report indicated that no visible evidence of wood destroying organisms was observed. The "comments" portion was modified to read, "mature home has moisture condition in crawl space, common problem may be considered minor."

   
   

4. The issuance of the second report clearly contradicted the first report as to existence of damage from wood-destroying organisms.

   
   

5. The property was subsequently purchased based on the report of findings dated December 7, 1990. Mrs. Robinson, the realtor who commissioned the Respondent's inspection and report, testified that this second report was seen by the buyers and co-signer, and probably by the mortgagor, but that the earlier one was not.

   
   

6. Eleven months later and after an above-average period of rainfall, on November 25, 1991, an HRS inspector visited the subject property and determined that evidence of damage caused by wood decay fungi was present in the substructure area. The primary cause of wood-destroying fungus growth is moisture. During this on-site investigation, Respondent was cooperative with the HRS inspector and provided him with a copy of his December 6, 1990 report.

   
   

7. Receipt of a copy of the earlier report signalled to the department that there had been possible fraud in the sale of the house. Departmental personnel reached that conclusion because the first report had stated that there were wood-decaying organisms present, one day later the second report indicated that there were not such organisms present, and eleven months later wood- decaying organisms were found to be present.

   
   

8. According to Respondent, when he made his inspection on December 6, 1990, he had observed only mold, mildew, and moisture stains, but no wood destroying organisms. Respondent's explanation for issuing two reports totally contrary to each other was that he intentionally made out a "very objectionable report" on December 6, 1990 showing that "wood fungi" and "wood destroying organisms" were present because he wanted the buyers to be fully informed about what was really wrong with the house and because he felt the "very objectinable report" would induce the buyers or the realtor to phone him, personally. His

   explanation for why he wrote in "wood fungi" on the first inspection report was that he was trying to signify only "wood fungi" but not "wood destroying fungi" or "wood destroying organisms." Respondent's testimony on this score is contradicted by the first inspection report itself whereon he had checked the box indicating that he had observed "wood destroying organisms." Respondent also had no plausible explanation for why he did not simply make a full and accurate explanation in the "comments" section of the first report. Also, according to Respondent, he filled out the new report not on December 7, 1990 but sometime thereafter around December 10 after receiving assurances from Mrs. Robinson that the buyers had been informed by somebody else of the true condition of the house. Respondent testified that he made out the second inspection report to reflect the truth of what he had seen on December 6th, not to defraud anyone by substituting a "good" report for the previous "bad" report. Nonetheless, Respondent charged $55.00 for the inspection and what he called a false report on December 6 and $25.00 for the "update" which he called a true report bearing the December 7 date. He admittedly did not re-inspect the premises. According Respondent every benefit of the doubt, it is clear from his own testimony that he intentionally falsified one report which ultimately resulted in an unnecessary fee of $25.00 which someone had to bear when the sale of the property was closed.

   
   

9. Competent expert and lay testimony are in accord that mildew and mold are not fungi; neither organism is a wood decay fungus; neither organism metamorphoses into a wood decay fungus when exposed to prolonged moisture, and neither organism is an algae.

   
   

10. Mr. Phillip Helseth testified competently and credibility that it is commonly understood that if one cites "wood fungi" as the Respondent did on the first wood-destroying organisms report it is commonly understood within the inspection industry to mean "wood decaying fungi." Mr. Helseth's testimony is also credible to the effect that there would be no reason to report "wood fungi" which is not decaying/destroying on such a report. Moreover, the HRS form utilized for both reports explicitly defines "wood-destroying organism" as, "arthropod or plant life which damages a structure, namely termites, powder-post beetles, wood-boring beetles, wood-boring wasps, carpenter bees and wood- decaying fungi." Mr. Helspeth also testified competently and credibly that "wood decaying fungi" constitutes a "wood destroying organism" and that to call mildew and mold "wood fungi" is inaccurate and falls below the standards of the profession.

    
    

11. The competent credible evidence as a whole supports a finding that Respondent issued a false report which was not in accordance with good industry practice and standards. Having made that finding of fact, the undersigned may consider his prior disciplinary record (three cases) and has done so for purposes of penalty, only.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to Section 120.57 (1) F.S.

    
    

13. The operative statutes under which Respondent has been charged are as follows:

    
    

    482.226 Termite or other wood-destroying organism inspection report; notice of inspection or treatment.

    1. When an inspection for wood-destroying organisms is made for purposes of a real estate transaction, a fee is charged for the inspection or a written report is requested by the customer, a termite or other wood- destroying organism inspection report shall be provided by a licensee or its representative qualified under this measure to perform such inspections. The inspection shall be made in accordance with good industry practice and standards and shall include inspection for all wood-destroying organisms. The inspection findings shall be reported to the party requesting the inspection. The report shall be made on a form prescribed by the department and furnished by the licensee. The inspection report shall contain a statement that a notice of the wood-destroying organism inspection has been affixed to the property in accordance with subsection (5) or subsection (6) and shall state the location of the notice. A copy of the inspection report shall be retained by the licensee for a period of not less than 3 years.

       
       

    2. The inspection report form prescribed pursuant to this section shall include the following information:

    
    

    ***

    
    

    (g) The identity of any wood-destroying organisms present and any visible damage caused.

    
    

    482.161 Remedies of department.

    1. The department may issue a written warning to or fine the licensee, certified operator, identification cardholder, or special identification cardholder or may suspend, revoke, or stop the issuance or renewal of any certificate, special identification card, licensee, 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 any be applicable:

       
       

       1. Violation of any rule of the department or any provision of this chapter.

    
    

    ***

    (e) 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. [Emphasis supplied]

    
    

14. The agency has cited no specific rule that has been violated.

    
    

15. The agency has contended throughout that the first report was correct and that the Respondent, either at the behest of the seller or realtor, falsified his second report so as to insure that the house sale would close. The evidence falls short of clearly and convincingly establishing that particular scenario. What has been clearly and convincingly shown, however, is that the Respondent knowingly made a false report.

    
    

16. Respondent's argument that there is no evidence to show that the inspection was not made in accordance with good industry practice and standards and that the agency has no authority to discipline simply because the report of the inspection was not up to industry standards is rejected as contrary to the clear intent of the statute.

    
    

17. While the premise that the second report was knowingly falsified may be supported to a large degree by the type of circumstantial evidence that reasonable men would believe and rely upon, it falters in respect to showing by clear and convincing evidence that the wood-decaying organisms which were present eleven months after a rainy spell were, in fact, present when Respondent inspected the house before the rainy spell. The experts could not clearly state that eleven months under these conditions would not have been sufficient for the wood-destroying organisms to grow anew. On the other hand, Respondent has sealed his own fate out of his own lips by stating that he falsified the first report and then charged an additional fee for correcting it. Expert testimony is not necessary to show that this is false, fraudulent, and dishonest dealing, whoever does it and for whatever purpose.

    
    

18. Respondent is accordingly guilty of violating Sections 482.161(1)(a) and (e) F.S. due tothe false report. See, Sections 482.226(1) and (2)(g) F.S. The penalty enacted for such a violation should be sufficient to impress upon Respondent that he has done wrong and to discourage recidivism.

    
    

19. The undersigned ruled at formal hearing that prior disciplinary actions against the Respondent would be considered for aggravation/mitigation purposes only if at least one violation were proven in the instant case. Petitioner's post-hearing proposal has cited three prior disciplinary actions against Respondent. Respondent's post-hearing proposal has provided copies of the applicable orders and attempted to distinguish them from the present one. Having considered all information provided and argued, it is noted that the last disciplinary order against Respondent is nearly three years old, and the others are nearly fifteen years old. It is further noted that two disciplinary orders involved low public impact situations which are normally considered technical or perfunctory matters. None of the prior disciplines involved commission of fraud, as such. Upon consideration of these factors, the agency's proposed penalty of a one year certificate suspension is deemed to be too severe.

RECOMMENDATION

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 finding Respondent guilty of the statutory violations charged in the administrative complaint, and suspending Respondent's Pest Control Certificate No. 2236 in the category of "Termite and Other Wood-Destroying Organism Control" for a period of three months.

DONE and RECOMMENDED this 11th day of September, 1992, at Tallahassee, Florida.

ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1992.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-1055

The following constitute specific rulings, pursuant to S120.59 (2), F.S., upon the parties' respective proposed findings of fact (PFOF)

Petitioner's PFOF:

1-8 Accepted

9-10 Accepted as modified to reflect the greater weight of the admissible evidence. Penalty matters are relegated to the conclusions of law.

Respondent's PFOF:

1 Rejected as a conclusion of law.

2, 4-12 Accepted except as to unnecessary, subordinate, and cumulative material.

3 Rejected as not suppported by the record.

13-15 Rejected as mere legal argument and not dispositive of the material issues in the case.

COPIES FURNISHED:

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Slye, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Scott D. Leemis

Assistant District Legal Counsel

P. O. Box 2417

Jacksonville, Florida 32231-0083

Griffin Helwig, Esquire 3030 Harley Road #190

Jacksonville, Florida 32257

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.

Docket for Case No: 92-001055

Orders for Case No: 92-001055