STATE OF FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES oO a, 4% Oi, ° ty STATE OF FLORIDA, DEPARTMENT OF Mis s $e AGRICULTURE AND CONSUMER SERVICES, “gh Os 4B Ss “Ls : Petitioner, ° vs. CASE NO. 2001-0271 MASSEY SERVICES, INC.,a corporation Ol -3| 3 uf licensed to do business in the State of Florida, pest control # 1945, ADAM W. JONES, an individual, certified operator # 6229, EDWARD L. DIAMOND, an individual, operator # $445, operating in the State of Florida, with business offices located in BrevardCounty, at 1760 S. Huntington Lane, Rockledge, Florida 32955, Respondents. / ADMINISTRATIVE COMPLAINT Petitioner, STATE OF FLORIDA, DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES (hereinafter DEPARTMENT), files this Administrative Complaint against Respondents, MASSEY SERVICES, INC.,a corporation licensed to do business in the State of Florida, pest control # 1945, (hereinafter MASSEY), ADAM W. JONES, an individual, certified operator # 6229, (hereinafter JONES), EDWARD L. DIAMOND, an individual, operator # 8445, (hereinafter DIAMOND), operating in the State of Florida, with business offices located in BrevardCounty, at 1760 S. Huntington Lane, Rockledge, Florida 32955, and states as follows: GENERAL ALLEGATIONS 1. Petitioner, STATE OF FLORIDA, DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, is an agency of the State of Florida with the authority to enforce the provisions of Sections 482.011-482.242, Florida Statutes, cited as the "Structural Pest Control Act", Florida Statutes and rules promulgated thereunder. 2. Respondents, MASSEY, JONES, and DIAMOND were to the best information and knowledge of the DEPARTMENT, operating a pest control business, as a licensed business, certified operator and/or a Wood Destroying Organisms cardholder in the State of Florida, with the act complained of herein of performing pest control activities from business offices located in Brevard County, at at 1760 S. Huntington Lane, Rockledge, Florida 32955. 3. On or about July 13, 1998, when DIAMOND conducted a Wood Destroying Organisms Inspection and Report on a residence now owned by Kevin and Abby Brown located at 5365 Cangro Street, Cocoa, Florida 32926 in Brevard County. . 4. The property in question is a home in Brevard County, Florida , which was owned previously by a Mr. Phillip Lowerre (hereinafter Lowerre ) until a sale and closing that was transacted on or about July 27, 1998, wherein the property was sold to Mr. and Mrs. Kevin Brown (hereinafter referred to as Brown) based upon their reliance on the WDO report and transfer of contracts of MASSEY with Lowerre to them. 5. Prior to the sale referred to in Paragraph 4. above, MASSEY had a contract on the same home since 1990 for control of subterranean termites with a GUARANTEE OF TOTAL PROTECTION/SUBTERRANEAN TERMITE CONTROL with renewable provisions. MASSEY initially treated the home under the contract with Lowerre on January 17, 1990, and it re-treated the home numerous times thereafter without controlling thje termites. 6. Prior to the sale referred to in Paragraph 4. above, MASSEY performed a wood destroying organism (WDO) report on the stated home which indicated it was all clear for termites. 7. Respondent, DIAMOND, at the time was under the supervision of JONES, a licensed certified operator, and both were employed by MASSEY, a licensed pest control business, as defined by Florida Statutes, Chapter 482. 8. The Respondents operated as pest control licensees, and performed pest control activities as defined by Section 482.071, Florida Statutes when they issued the Wood Destroying Organisms Inspection Report on the residence referred to in paragraph 1. above. 9. The DEPARTMENT has determined that MASSEY, JONES, and DIAMOND have violated Florida Statutes, Chapter 482, and Rules 5E-14, of the Florida Administrative Code, in that, they failed to 10. |The DEPARTMENT verily believes that the safety, health and welfare of the public is in danger as a result of the activities of the Respondents wherein Wood Destroying Organisms Inspection Reports are being conducted in a manner inconsistent with the law. STATEMENTS OF LAW 11. Respondents must comply with all applicable Florida Statutes and Rules promulgated by the Department of Agriculture and Consumer Services. Florida Statutes, Section 482.051, provides: “The department has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this chapter. Prior to proposing the adoption of a rule, the department shall counsel with members of the pest control industry concerning the proposed rule. The department shall adopt rules for the protection of the health, safety, and welfare of pest control employees and the general public which require:” Florida Statutes, Section 482.0571(2)(e), provides: 3 fie BE RE a (e) The department may not issue or renew a license to engage in the pest control business unless the applicant’s pest control activities are under a certified operator or operators in charge who are certified in the categories of the license. Florida Statutes, Section 482.152, provides “ A certified operator in charge of the pest control activities of a licensee shall have her or his primary occupation with the licensee and shall be a full time employee of the licensee, and her or his principal duty shall include the responsibility for the personal supervision of and participation in the pest control activities at the business location of the licensee as the same relate to: (1) The selection of proper and correct chemicals for the particular pest control work performed. (2) The safe and proper use of the pesticides used. (3) The correct concentration and formulation of pesticides used in all pest control work performed. (4) The training of personnel in the proper and acceptable methods of pest control. (5) The control measures and procedures used. (6) The notification of the department of any accidental human poisoning or death connected with pest control work performed on a job she or he is supervising, within 24 hours after she or he has knowledge of the poisoning or death. (Emphasis added) Florida Statutes, Section 482.226 (1)(6), provides 4 apap rete: 12. qd) When an inspection for wood-destroying organisms is made by a licensee for purposes of a real estate transaction and either a fee is charged for the inspection or a written report is requested by the customer, a wood-destroying organism inspection report shall be provided by the licensee or its representative qualified under this chapter to perform such inspections. . . . (6) Any licensee that performs wood-destroying organism inspections in accordance with subsection(1) must meet financial responsibility in the form of errors and omissions (professional liability) inswrance coverage or bond in an amount no less than $50,000 in the aggregate and $25,000 per occurrence, or demonstrate that the licensee has equity or net worth of no less than $100,000 as determined by generally accepted accounting principles substantiated by a certified public accountant’s review or certified audit. The licensee must show proof of meeting this requirement at the time of license application or renewal thereof. Florida Administrative Code, Rule 5E-14.142, provides: (1)(b) Each licensee shall comply with the terms of each pest control contract it issues. Section 482.161, Florida Statutes, authorizes the Department to impose administrative fines not to exceed $5000.00 per violation or taking action to suspend, revoke or deny the registration if the business fails to comply with or violates the Act or the business has intentionally defrauded the public through dishonest or deceptive means or has done any other act or omission that would affect the health, welfare, and safety of the public. 13. Section 482.165, Florida Statutes, authorizes the Department to issue a cease and 5 desist order and seek an injunction or writ of mandamus for the purposes of enforcing that order, and additionally to institute a civil suit to recover civil penalties for violations, court costs and attorneys fees COUNT 1 FAILURE TO LIST VISIBLE AND ACCESSIBLE EVIDENCE AND DAMAGE OF WOOD DESTROYING ORGANISMS ON A FORM 1145 WOOD DESTROYING ORGANISM REPORT 14. The Department re-alleges paragraphs 1 through 13 as though each were fully set forth herein and incorporates the same by reference. 15. The Respondents on or about July 13, 1998, failed to report evidence and associated damage of Wood Destroying Organisms in the form of subterranean termites that charge. 16. The Department inspectors having jurisdiction over the location where the . Wood Destroying Organisms inspection was performed were informed by the consumer, Brown, about the existing termite problem, and the inspectors determined that there was no adequate and proper inspection performed, and that the past treatment and past information obtained as a result of the prior treatment by MASSEY should have been utilized to ensure that the inspection report was as required by law. In violation of Florida Statutes, Chapter 482.226, and Florida Administrative Code, Rules SE-14, neither MASSEY, JONES, and/or DIAMOND ensured that these provisions were complied with in rendering the Wood Destroying Organisms Report to the consumer. PROPOSED AGENCY ACTION WHEREFORE, The Respondent’s, MASSEY, JONES, and DIAMOND, are hereby notified that the Commissioner of Agriculture pursuant to Florida Statutes, Chapter 482.161, 6 agen intends to request and/or enter a Final Order for the following: . (A) Cease and Desist from any and all pest control activities and/or operations immediately. (B) Revocation and/or Suspension of each of the Respondent’s licenses. (C) Anadministrative fine in an amount not to exceed $5,000.00 per violation per each Respondent. COUNT 2 BREACH OF CONTRACT 17. The Department re-alleges paragraphs 1 through 16 as though each were fully set forth herein and incorporates the same by reference. 18. The contract entered into between MASSEY and BROWN was for control of termites and gives rise to a presumption that there was a failure to control and/or there were no termites or evidence of the same existing at the time of entering the contract. 19. | MASSEY treated the home and conducted the WDO report on July 13 1998 and thereafter, MASSEY breached the contract with Brown in the following manner: A. MASSEY had knowledge of prior termite infestation and damage, but failed to note the extent of any such damage, any live infestation or moisture problems on the Inspection/Treating Report at the time of entering the contract with Mr. Brown. Thus, when the consumer made a claim for damage repair, MASSEY denied the claim for damage in violation of its’ contractual obligations, and thus breached the contract and compliance therewith in violation of Florida Statutes, Section 482.051(3). B. The contract was for Control as indicated on page 1 of the 7 5 eae agreement.(1990) MASSEY has breached its’ performance by failing to control the recurrence of termites, and it is a breach of the contract and ‘compliance therewith in violation of Florida Statutes, Section 482.051 (3). . C. Implicit in the agreement for control of termites is that MASSEY would use proper methods for chemical applications and chemicals to accomplish control as part of their contractual obligation. The fact that termites continually recurred in the residence and caused extensive damage indicates this was not accomplished, and it is a breach of the contract and compliance therewith in violation of Florida Statutes, Section 482.051(3). PROPOSED AGENCY ACTION WHEREFORE, The Respondent, MASSEY is hereby notified that the Commissioner of Agriculture pursuant to Florida Statutes, Chapter 482.161, intends to request and/or enter a Final Order for the following: (A) Cease and Desist from any and all pest control activities and/or operations immediately. (B) Revocation and/or Suspension of each of the Respondent’s licenses. (C) An administrative fine in an amount not to exceed $5,000.00 per violation per each Respondent. COUNT 3 PERFORMING PEST CONTROL IN A NEGLIGENT MANNER. 20. The Department re-alleges paragraphs 1 through 19 as though each were fully set forth herein and incorporates the same by reference. 21. MASSEY is in violation of Section 482.161(1)(f), Florida Statutes, for 8 performing pest control in a negligent manner. x . t 22. MASSEY negligently failed to control subterranean termites at the home of Brown as a result of the following: . A. MASSEY failed to use proper methods of chemical treatment for the prevention of subterranean termites in the home in violation of Section 482.161(1)(f). . B. MASSEY failed to use proper methods for treatment of subterranean termites in the slab and ground areas of the home in violation of Section 482.161(1)(). C. MASSEY failed to use proper methods for treatment of subterranean termites in the above ground areas including the inside of the home and structural areas in violation of Section 482.161(1)(f). D. MASSEY failed to use proper methods for monitoring the home for subterranean termites in violation of Section 482.161(1)(f). | oe 23. Asaresult of MASSEY negligence as stated above, the home of Mr. Brown has become infested with subterranean termites, the infestation continues, and the termites have caused considerable damage for which MASSEY refuses to accept responsibility and provide repairs. PROPOSED AGENCY ACTION WHEREFORE, The Respondent, MASSEY is hereby notified that the Commissioner of Agriculture pursuant to Florida Statutes, Chapter 482.161, intends to request and/or enter a Final Order for the following: (A) Cease and Desist from any and all pest control activities and/or operations 9 immediately. (B) Revocation and/or Suspension of each of the Respondent’s licenses. (C) An administrative fine in an amount not to exceed $5,000.00 per violation per each Respondent. NOTICE OF RIGHTS . YOU HAVE THE RIGHT, UNDER SECTION 120.57, FLORIDA STATUTES, TO CONTEST THE CHARGES THAT HAVE BEEN ALLEGED IN THIS ADMINISTRATIVE COMPLAINT. PLEASE REFER TO THE ATTACHED TWO PAGE NOTICE OF RIGHTS. YOU HAVE THE RIGHT TO ASK FOR A HEARING IMMEDIATELY AND NOT WAIT 21 DAYS TO REQUEST THE HEARING. Dated this [Aa day of July, 2001. CHARLES H. BRONSON COMMISSIONER OF AGRICULTURE MW. Caged [ACK W. CROOKS SENIOR ATTORNEY -FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES BY: 10 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this [Qraay of July, 2001, a true and correct copy of the foregoing Administrative Complaint and Notice of Rights have been fumished by U.S. Certified Mail, return receipt requested, to the following Respondents, MASSEY SERVICES, INC.,a corporation, at 1760 S. Huntington Lane, Rockledge, Florida 32955, and STEPHEN B. HATCHER, Registered Agent, at 315 East Robinson Street, Suite 600, Orlando Florida 32801, ADAM W. JONES, an individual, at 1760 S. Huntington Lane, Rockledge, Florida 32955,and/or 30 Dalewood Drive, Debary, Florida 32713, EDWARD L. DIAMOND, an individual, at 1078 Crystal Bowl Circle, Casselberry, Florida 32707. bach Wbawbe ack W. Crooks, Senior Attorney Florida Bar # 155231 Department of Agriculture and Consumer Services . Room 515, Mayo Building Tallahassee, Florida 32399-0800 (850) 245-1000 ee ATTORNEY FOR PETITIONER SR 11

Docket for Case No: 01-003134