STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD W. GARDNER, PESTAGON ) TERMITE AND PEST MANAGEMENT, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-6975

) DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Hearing Officer, Division of Administrative Hearings held a formal hearing in this matter on March 28, 1995, in Sarasota, Florida.

APPEARANCE

For Petitioner: Gary M. Glassman, Esquire

2100 South Tamiami Trail Sarasota, Florida 34239

For Respondent: Robert G. Worley, Esquire

Department of Agriculture and Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800 STATEMENT OF THE ISSUE

Should Petitioner's identification card be revoked, suspended or otherwise disciplined based on the allegations contained in the Notice Of Intent To Impose Warning Letter dated September 20, 1994?

PRELIMINARY STATEMENT

On September 20, 1994, Respondent Department of Agriculture and Consumer Services (Department) issued a Notice Of Intent To Impose Warning Letter wherein the Department alleged that Petitioner had failed to report visible and accessible evidence of and damage caused by wood-destroying organisms on Form 1145 Wood-Destroying Organisms Inspection Report in accordance with Section 482.226(1), Florida Statutes, and Rule 5E-14.142(2)(c), Florida Administrative Code, in violation of Section 482.161(1)(f), Florida Statutes. On October 7, 1994, Petitioner disputed the factual allegations and requested a formal hearing. By letter dated December 15, 1994, the Department referred Petitioner's request for formal hearing to the Division of Administrative Hearings (Division) for the assignment of a Hearing Officer and conduct of a hearing.

The parties stipulated that Pestagon Termite & Pest Management, Inc. (Pestagon) is not a party to this proceeding but was included in the style of the case for the purpose of identifying the licensed business which employed Petitioner. Additionally, the parties stipulated that the Department had the burden of going forward with the proof, notwithstanding that Richard W. Gardner was named as Petitioner.

Petitioner testified on his own behalf and presented the testimony of Roger Mensing. Petitioner did not offer any documentary evidence. The Department presented the testimony of Ronald P. Forshee and Thane R. Beehler, Sr. The Department's exhibits 1 through 8 were received as evidence.

A transcript of this proceeding was filed with the Division on April 20, 1995. The parties timely filed their Proposed Recommended Orders. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. At all times material to this proceeding, Petitioner Richard W. Gardner was an employee of Pestagon Termite and Pest Management, Inc. and the holder of an identification card issued by the Department in accordance with Section 482.091, Florida Statutes, which authorized Petitioner to perform inspections of structures for wood-destroying organisms.

   
   

2. Petitioner has been an identification cardholder for approximately six and one-half years and during that time has received special training in the detection and control of wood-destroying organisms.

   
   

3. In accordance with instructions from his employer, Pestagon, Petitioner performed an inspection for wood-destroying organisms of a residence located at 1550 Wilson Road, Sarasota, Florida on February 16, 1993. The inspection was made at the request of the realtor in connections with the sale of the residence where the termite inspection was a condition to the closing of the sale.

   
   

4. After completing his inspection of the premises for wood-destroying organisms, Petitioner issued a Wood-Destroying Organisms Inspection Report in accordance with Section 482.226, Florida Statutes, and Rule 5E-14.142(2)(c), Florida Administrative Code. Petitioner's report was what is commonly referred to as a "clean report", i.e. showing no evidence of wood-destroying organisms, no visible damage and no evidence of previous treatment.

   
   

5. Ronald P. Forshee, purchaser in the real estate transaction, relied on Petitioner's report, among other things, and purchased the residence.

   
   

6. Sometime around mid-February, 1994, Forshee encountered swarming termites in several rooms in his residence. Several pest control companies, including Pestagon, inspected the residence and confirmed that there was a termite infestation. None of the pest control companies who inspected the residence gave a definite time period when the termites may have first infested the Forshee residence.

7. On March 6, 1994, Forshee filed a complaint against the Petitioner with the Department.

   
   

8. In response to the complaint filed by Forshee, Thane Beehler, inspector for the Department, inspected the residence on April 15, 1994, and May 19, 1994, and discovered evidence of subterranean termites.

   
   

9. Beehler found visible signs (mud tunnels) of termite infestation by looking through a vent to the underside of the residence. The vent would have been accessible to Petitioner at the time of his inspection of the Forshee residence on February 16, 1993.

   
   

10. Beehler's size prevented him from crawling throughout the underside of the residence without some excavation because of a low floor joist. Although Beehler did not find any visible evidence of termites in the area where he crawled, a distance of 20 - 25 feet, he was able to see mud tunnels, both in use and abandoned, beyond where he crawled. In order to get photographs of the termite infestation beyond where Beehler crawled, and not require excavation, Forshee crawled under the floor joist and took photographs with Beehler's camera. This area was accessible to Petitioner on February 16, 1993, when he made his inspection of the Forshee residence.

    
    

11. While there is insufficient evidence to establish the exact time the Forshee residence was infected with subterranean termites, there is sufficient evidence to show that the termite infestation observed by Beehler at the time of his inspection of the Forshee residence on April 15, 1994, and May 19, 1994, had been present at the Forshee residence no less than three to five years.

    
    

12. There is sufficient evidence to show that the termite infestation observed by Beehler at the Forshee residence on April 15, 1994, and May 19, 1994, existed, and was visible from areas accessible to Petitioner, at the time Petitioner made his inspection of the Forshee residence on February 16, 1993.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

14. Pertinent to this case, Section 482.161(1)(f), Florida Statutes, provides:

    
    

    1. The department may issue a written warning to or fine a licensee, certified operator, limited certificateholder, identification cardholder, or special identification cardholder or may suspend, revoke, or stop the issuance or renewal of any license, certificate, limited certificate identification card, or special identification card coming within the scope

       of this chapter, in accordance with chapter 120, upon any one or more of the following grounds as the same may be applicable:

       * * *

       (f) Performing pest control in a negligent manner.

15. Section 482.021(20)(b), Florida Statutes, includes in the definition of pest control the identification of or inspection for infestations or infections in, on, or under a structure, lawn, or ornamental.

    
    

16. In accordance with its authority to adopt rules under Section 482.051, Florida Statutes, the Department adopted Rule 5E-142(2)(c), Florida Administrative Code, which in pertinent part provides:

    
    

    (2) Reports:

    * * *

    1. Termite or other wood-destroying organisms inspection report:

       * * *

       The licensee shall inspect for all wood- destroying organisms as defined in Chapter 482.021(27), F.S., in accordance with the following inspection standards:

       1. The inspection will include all areas accessible by normal means but does not cover those areas that are enclosed or inaccessible,

          areas concealed by wall coverings, floor coverings, furniture, equipment, stored articles, insulation, or any portion of the structure in which inspection would necessitate removing or defacing any part

          of the structure.

       2. The inspection will be visible but may include probing and sounding of structural members as deemed necessary by the inspector, based upon a preliminary finding of visual evidence of infestation or damage.

    
    

17. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino

1. Department of Health and Rehabilitative Services, 348 So.2d 349 (1st DCA Fla. 1977). The Department must prove the material allegations of the Notice Of Intent To Impose Warning Letter by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The Department has met its burden in this regard. It is clear from the record, using the standard set out in Rule

   5E-142(2)(c), Florida Administrative Code, that Petitioner performed the inspection of the Forshee residence in a negligent manner in violation of Section 482.161(1)(f), Florida Statutes.

   
   

   RECOMMENDATION

   
   

   Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding Petitioner guilty of violating Section 482.161(1)(f), Florida Statutes. It is further recommended, after considering Section 482.161(7), Florida Statutes, that for such violation Petitioner be required to pay an administrative fine of $500.

   DONE AND ENTERED this 23rd day of May, 1995, in Tallahassee, Florida.

   
   

   
   

   WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building

   1230 Apalachee Parkway

   Tallahassee, Florida 32399-1550

   (904) 488-9675

   
   

   Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1995.

   
   

   APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6975

   
   

   The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Department in this case.

   
   

   Petitioner's Proposed Findings of Fact:

   
   

   1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(3); 4(4); and 5-6(6).

   2. The first four sentences of proposed finding of fact 7 are adopted in Findings of Fact 8-10. The balance of proposed finding of fact 7 are rejected as not being supported by evidence in the record.

   3. The first two sentences of proposed finding of fact 8 is adopted in Finding of Fact 3. The balance of proposed finding of fact 8 is rejected as not being supported by evidence in the record.

Department's Proposed Findings of Fact:

1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1-4(1-4,respectively); 5(5,6);and 7(8-12).

2. The first two sentences of proposed finding of fact 6 is neither material nor relevant. The balance of proposed finding of fact 6 is adopted in Finding of Fact 7.

COPIES FURNISHED:

Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler General Counsel

Department of Agriculture and Consumer Services

The Capitol, PL-10

Tallahassee, Florida 32399-0810

Gary M. Glassman, Esquire 2100 South Tamiami Trail Sarasota, Florida 34239

Robert F. Worley, Esquire Department of Agriculture and

Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

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.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

RICHARD W. GARDNER, PESTAGON TERMITE AND PEST MANAGEMENT, INC.,

Petitioner,

vs. DOAH CASE NO. 94-6975

FDACS CASE NO. 94-0720

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES.

Respondent.

/

FINAL ORDER

THIS MATTER, arising under the Structural Pest Control Act, Fla. Stat.

482.011 - 482.242, is before the Commissioner of Agriculture as agency head of the Florida Department of Agriculture and Consumer Services (hereinafter referred to as the "Department") for final agency action.

BACKGROUND

On September 20, 1994, Respondent Department issued a Notice of Intent to Impose Warning Letter in which the Department alleged Petitioner, Richard W. Gardner, had failed to report visible and accessible evidence of, and damage caused by, wood-destroying organisms on Form 1145, entitled "Wood-Destroying Organisms Inspection Report" in accordance with Fla. Stat. 482.226(1) and Fla. Admin. Code Ann.r. 5E-14.142(2)(c) resulting from an inspection by Petitioner for wood-destroying organisms at a residence in Sarasota, Florida. The Department further alleged that failure to report such evidence of and/or damage caused by wood-destroying organisms is a violation of Fla. Stat. 482.161(1)(f). On October 7, 1994, Petitioner disputed the factual allegations contained in the Notice of Intent to Impose Warning Letter. By letter dated December 15, 1994, the Department referred Petitioner's request for formal hearing to the Division of Administrative Hearings for the assignment of a Hearing Officer and conduct of a hearing.

A formal hearing was conducted on March 28, 1995, in Sarasota, Florida. At hearing, the parties stipulated that Pestagon Termite & Pest Management, Inc. was not a party to the proceedings, but was included in the style of the case for the purpose of identifying the licensed business which employed Petitioner.

At formal hearing, Petitioner appeared through counsel, testified on his own behalf and presented the testimony of Roger Mensing proffered as an expert in pest control. Petitioner did not offer any documentary evidence. The Department appeared through counsel, presented the testimony of Ronald P. Forshee and Thane R. Beehler, Jr. Mr. Beehler testified as an expert in the field of pest control and inspection of termites and entomology in general. The Department's exhibits 1 through 8 were received as evidence.

The Hearing Officer in this matter issued a Recommended Order on May 23, 1995 which recommended the Commissioner issue a final order finding Petitioner guilty of violating Fla. Stat. 482.161(1)(f). The Hearing Officer further recommended that Petitioner be required to pay an administrative fine in the amount of $500. Petitioner filed timely Exceptions to Recommended Order.

RULING ON PETITIONER'S WRITTEN EXCEPTIONS

Petitioner lists six paragraphs as exceptions to the Recommended Order challenging the Hearing Officer's Findings of Fact.

Under Florida law: "It is for the hearing officer to consider all the evidence presented, resolve conflicts, judge the credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent substantial evidence," Martuccio v. Dept. of Pro. Regulation, 622 So.2d 607, 609 (Fla.App. 1 Dist. 1993) and "The agency may not reject or modify the finding of facts of...unless the agency...[determines]...the findings of fact were not based upon competent substantial evidence...". Dept. of Business & Pro. Reg. v. McCarthy, 638 So.2d. 574, 575 (Fla.App. 1 Dist. 1993), Fla. Stat. 120.57(1)(b)(10).

1. Petitioner's Exception no. 1. Petitioner's Exception number 1 does not challenge a finding, but rather is a verbatim recitation of the Hearing Officer's Finding of Fact number 11. The Commissioner rejects Petitioner's Exception no. 1 as being irrelevant and immaterial.

   
   

2. Petitioner's Exceptions nos. 2-5. Petitioner's Exceptions 2-5 challenge expert opinions offered by Respondent at bearing in this matter. It is for the hearing officer to weigh the evidence and judge the credibility of witnesses (Martuccio at 609) and the agency may not disturb the hearing officer's findings if such findings are supported by competent substantial evidence. (Fla. Stat.. 120.1(b)(10)). Upon review of the complete file in this matter, it is the determination of the Commissioner of Agriculture that the hearing officer properly considered all evidence, including expert testimony proffered by both parties, therefore, Petitioner's Exception's 2-5 are denied.

   
   

3. Petitioner's Exception no. 6. Petitioner's Exception number 6 provides in pertinent part: "The hearing officer determined that the Petitioner's proposed finding of fact 8 "is rejected as being not supported by evidence in the record."" Upon review of the hearing officer's Appendix to Recommended Order, Case No. 94-6925, the following language may be found at paragraph 3:

The first two sentences of [Petitioner's] proposed finding of fact 8 is adopted in Finding of Fact 3. The balance of [Petitioner's] finding of fact is rejected as not

being supported by evidence in record. Emphasis supplied.

The issue in this matter is whether or not Petitioner failed to report visible and accessible evidence of, and/or damage caused by, wood destroying organisms on Form 1145, not Petitioner's physical inspection of the residence. Therefore, the hearing Officer's rejection of the last two sentences of Petitioner's proposed finding of fact 8 is proper and supported by competent substantial evidence. Consequently, Petitioner's Exception no. 6 is denied.

For the above reasons, Petitioner's Written Exceptions are denied. WHEREFORE it is ORDERED and ADJUDGED:

1. Petitioner's written exceptions are DENIED;

   
   

2. The Hearing Officer's Findings of Fact are adopted in toto as the Department's findings of fact;

   
   

3. The Hearing Officer's Conclusions of Law are adopted in toto as the Department's conclusions of law; and

   
   

4. The Hearing Officer's Recommendation--that the Commissioner of Agriculture enter a final order finding Petitioner guilty of violating Fla. Stat. 482.161(1)(f) and order Petitioner to pay an administrative fine of $500-- is APPROVED and ADOPTED as the appropriate disposition of this matter.

   
   

5. It is ORDERED Petitioner pay an administrative fine in the amount of FIVE HUNDRED DOLLARS (500.00) payable to the Florida Department of Agriculture and Consumer Services within thirty (30) days of the date of this Order.

NOTICE OF RIGHT TO APPEAL

Any party to these proceedings adversely affected by this Final Order is entitled to seek judicial review thereof pursuant to Fla. Stat. 120.68 and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be initiated by filing a petition or notice of appeal with the Agency Clerk, Room 515, Mayo Building, Tallahassee, Florida 32399-0800, and a copy of the same with the appropriate District Court of Appeal within thirty (30) days of the date this ORDER is final.

DONE AND ORDERED this 21st day of June, 1995.

BOB CRAWFORD

Commissioner of Agriculture

ANN H. WAINWRIGHT

Assistant Commissioner

Florida Department of Agriculture and Consumer Services

FILED with the Agency Clerk this 21st day of June, 1995.

JOANN S. DIXON

Agency Clerk

COPIES TO:

Gary M. Glassman, Esquire Richard D. Tritschler, Esquire 2100 South Tamiami Trail General Counsel

Sarasota, Florida 34239 Department of Agriculture and

Consumer Services

William R. Cave The Capitol, PL-10

Hearing Officer Tallahassee, Florida 32399-0810 Division of Administrative

Hearings Robert G. Worley, Esquire The Desoto Building Room 515, Mayo Building

1230 Apalachee Parkway Tallahassee, Florida 32399-0800

Tallahassee, Florida 32399-1550

=================================================================

DISTRICT COURT OPINION

=================================================================

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

RICHARD W. GARDNER, PESTAGON IN THE DISTRICT COURT OF APPEAL TERMITE AND PEST MANAGEMENT, OF FLORIDA

INC. SECOND DISTRICT

Appellant, CASE NO. 95-03066 DOAH CASE NO. 94-6975

v.

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES,

Appellee.

/ Opinion filed April 3, 1996.

Appeal from a final order of the Department of Agriculture and Consumer Services.

Gary M. Glassman, Sarasota, for Appellant.

Robert C. Worley, Department of Agriculture and Consumer Services, Tallahassee, for Appellee.

PER CURIAM.

Affirmed.

SCHOONOVER, A.C.J., and BLUE and WHATLEY, JJ., Concur.

MANDATE

From

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

STYLE: Richard A. Gardner vs. Department of Agriculture and Consumer Services

COUNTY: Sarasota

APPELLATE CASE NO: 95-03066

TRIAL COURT CASE NO: 94-6975/94-0720

This cause having been brought to this court by appeal and after due consideration, the court having issued its opinion;

YOU ARE THEREBY COMMANDED that further proceedings be had in said cause in accordance with he opinion of this court and with the rules of procedure and laws of the State of Florida.

WITNESS the Honorable Edward F. Threadgill, Jr.,

Chief Judge of the District Court of Appeal of the State of Florida, Second District, and the seal of said

court at Lakeland, Florida on this day.

April 24, 1996

(Seal) William A. Haddad

Clerk, District Court of Appeal Second District

Docket for Case No: 94-006975

Orders for Case No: 94-006975