ROBERT A. PACE, )
vs. ) CASE NO. 76-1794
Respondent. )
A hearing was held pursuant to notice on March 22, 1977, at 9:35 A.M. at 7701 Boca Ciega Drive, St. Petersburg, Florida, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.
This matter came on to be heard upon a letter of denial from the Department of Health and Rehabilitative Services (DHRS) of an application for a pest control identification card filed by Louis S. Hall Termite Control for Robert A. Pace dated September 30, 1976. The grounds stated for denial of the application for a pest control identification card for Robert A. Pace are the same grounds asserted for denial of Pace's individual application to take the examination to become a certified pest control operator. In summary, both letters of denial are based upon Pace's alleged violations of Section 482.161(5) and (6), Florida Statutes, and Rules 10D-55.04(4) and 10D-55.35(2), Florida Administrative Code, the factual allegations having been set forth in detail in the letters of denial.
Nixon E. Farnell, Esquire
Whether Robert A. Pace has violated Section 482.161(5) and (6), Florida Statutes, and Rules 10D-55.04(4) and 10D-55.35(2), Florida Administrative Code, and therefore should be denied a pest control identification card and the opportunity to take the examination to become a certified pest control operator.
Testimony and evidence was introduced by DHRS from various witnesses regarding Pace's activities as the holder in the past of a pest control identification card with both Suncoast and Bay Area Control Companies, and as an emergency certified pest control operator for Suncoast Pest Control Company. From that testimony only the following factual allegations were proven. All other allegations against Robert A. Pace as stated in the letters of denial clearly were not proven by substantial and competent evidence.
On or about March 21, 1974, Pace was a holder of a pest control identification card as an employee of Suncoast Pest Control. At this time Pace was also a partner in this company. On that date, Robert Pace offered to conduct a free termite inspection of the residence of Melvin Redlin. The inspection was conducted and live termites were shown to Mrs. Redlin by Pace with the explanation that they had been found in the area of the tub trap or plumbing service access in the bathroom of the Redlin's home. On the same day, Pace solicited a termite treatment contract with the Redlins. Treatment for subterranean termites was begun by employees of Suncoast Pest Control, but while it was in progress, one of Redlin's neighbors stated that he had never seen termites. One of the Suncoast employees stated that he had some live termites in the truck and showed Redlin and others a log infested with live termites. At that point Redlin became irate, suspecting that the individual who had inspected his home had shown his wife termites taken from the truck and not from the plumbing access space. Redlin ordered all work by Suncoast to cease. At the time Redlin directed them to stop, chemicals were being introduced into the
ground around the slab foundation of the Redlin home. Before leaving, a Suncoast employee poured a jar of chemicals into the tub trap. Three weeks later, in response to a complaint by the Redlins, William Bargren, who is qualified as an expert witness in entomology and who is employed as an investigator with DHRS, inspected the Redlin's residence. Bargren found no evidence of prior termite infestation.
On or about July 1, 1974, a contract for the treatment of subterranean termites was solicited from John A. Johnson by Suncoast Pest Control Company. This contract bore the signature of Robert A. Pace as a representative of Suncoast; however, Johnson was unable to identify Robert A. Pace at the hearing and described the man with whom he had dealt as being taller and heavier than Pace. Pursuant to this contract, the Johnson's house was treated for subterranean termites and certain structural repairs were made in the attic by employees of Suncoast. William Bargren, identified above, testified that upon his subsequent inspection of the home, in his opinion, it was only partially treated. Bargren found evidence of previous subterranean termite infestation but concluded that the inner walls of the foundation of the house had not been treated. For the treatment of the subterranean termites and repairs to the house Johnson wrote checks payable to Suncoast in the amount of One Thousand Eight Hundred Twenty-Two Dollars and Forty-Five Cents ($1,822.45) and One Thousand One Hundred Fifty-Five Dollars ($1,155.00). Pace was not an emergency pest control operator until July 10, 1974.
The deposition of Mrs. Annie Symons, admitted pursuant to stipulation of the parties, indicates that in October, 1974, an employee of Suncoast Pest Control known only as "Joe" to Mrs. Symons inspected her residence for termites. Mrs. Symons had recently purchased the house and obtained a termite inspection and certificate prior to purchase certifying there was no evidence of termite infestation. The Suncoast employee inspected Symons' residence and advised her that her house had an active termite infestation showing her a piece of wood with live termites. Mrs. Symons called Southern Labs, the pest control firm which had conducted the original inspection. Michael Spokes, an employee of Southern Labs, reinspected Symons' residence and found no evidence of termite infestation. Concerned at the conflicting reports, Mrs. Symons contacted the Division of Health and her house was inspected by David Jones, an etomologist qualified and accepted as an expert witness at hearing and employed by the Division of Health as an inspector. Jones inspected Symons' house and could find no evidence of termite infestation. In October, 1974, Pace was the emergency certified pest control operator for Suncoast. There was no evidence introduced that Suncoast was advised of the Symons matter and that Pace was on notice of the conduct of his employee.
On or about July 23, 1975, Robert A. Pace, Philip Nicholson and Rick Draper went to the residence of Irene Shipley, 301 East Lake Fern, Lutz, Florida. Mrs. Shipley was offered a free inspection by Mr. Pace which she accepted. While Pace talked with her outside of her house, Rick Draper inspected her house and a mobile home belonging to her son located to the rear of her property. According to Mrs. Shipley, Draper went under both structures and produced insects which he identified as termites. Mrs. Shipley and Pace stood outside during the inspection and discussed and negotiated a price for treating both structures. Pace stated that he would spray under both homes, the woodwork and the attic for One Hundred Fifty Dollars ($150.00) for each home. Eventually a price of Two Hundred Fifty Dollars ($250.00) was negotiated to treat by spraying both homes. The area under and around both homes was sprayed, and an attempt to spray the attic was made but was thwarted by an inner roof. After completing the Work, Mrs. Shipley gave a check to Pace payable to him in
the amount of Two Hundred Fifty Dollars ($250.00). Pace gave her a contract for pest control treatment. Subsequently, Mrs. Shipley became concerned and asked the assistance of the Division of Health. William Bargren, identified above, conducted an inspection of both houses. Under Mrs. Shipley's home he could find no evidence of subterranean termite infestation but did discover dry rot, and under the mobile home, Bargren found evidence of a prior subterranean termite infestation. Bargren stated that in his opinion the treatment given both homes was insufficient because there was no evidence trenching around the house supports or boring in the pilings which he discovered under the mobile home.
In October, 1975, Frank Logan contacted Robert A. Pace, while Pace was treating a home for subterranean termite infestation. Logan stated that he was impressed with the work being done and asked for Pace's card. Logan stated that he knew that his home was infested with termites and later called Pace and asked for Pace to inspect his home. Pace conducted an inspection of Logan's home and advised Logan that he had a subterranean termite infestation. Pace testified that he also saw no evidence of what he took to be an inactive dry wood termite infestation in Logan's attic. Subterranean termite treatment was made of Logan's home; however, when Logan's problems were unabated for a year, he contacted the Division of Health. William Bargren, identified above, inspected Logan's residence and found evidence of subterranean termite infestation, a substandard treatment for subterranean termites, and an active dry wood termite infestation in Logan's attic. The subterranean termite treatment was substandard in that the voids in the concrete block foundation had not been drilled and treated. Bargren also testified that the signs of dry wood termites which Pace described as having seen would not indicate an inactive infestation but an active infestation. Bargren did not offer any opinion as to whether the dry wood infestation was over a year old. Bargren stated that dry wood termites are not effected by control treatment for subterranean termites because they do not require contact with the ground. Pace and his colleague, Nicholson, who had assisted Pace on the job, each thought that the other had treated the foundation.
ULTIMATE CONCLUSIONS OF LAW
Pace is charged with the violation of Section 482.161 (5) and (6) and Rule 10D-55.04(4), Florida Administrative Code, arising out of his conduct in providing pest control services to Melvin Redlin. Because Mr. Redlin demanded that the employees of Suncoast cease treatment of his home prior to their having completed the job, a charge of negligently treating the Redlin residence cannot be sustained. Because live termites were shown to Mrs. Redlin, strong evidence did exist of an active infestation if the termites were from the bathroom plumbing service access. If the termites were introduced by Pace into the Redlin home, clearly Pace would be guilty of fraud and misrepresentation in violation of Section 482.161(5) Florida Statutes. Based on Bargren's testimony that no evidence was found in the bath plumbing service access area of a prior subterranean termite infestation, together with the fact that treatment of that area was done rapidly without opportunity to substantially clean the area, the Hearing Officer finds that such a false representation was in fact made by Pace.
Evidence introduced by DHRS clearly indicated that Pace was not an emergency certified pest control operator until July 10, 1974. The treatment of the Johnson residence occurred on July 1, 1974. Rule 10D-55.35, Florida Administrative Code, applies only to certified pest control operators; therefore, Pace cannot be held accountable under that rule for his own activities or the activities of Suncoast employees with regard to the termite control treatment of the residence of John A. Johnson. Bargren found evidence
of a prior subterranean termite infestation at the Johnson residence; therefore, there could have been no misrepresentation of an infestation. Bargren did find that the foundation of the Johnson residence was not properly drilled and protected with pesticide. Therefore, Pace did not use methods suitable for the treatment of subterranean termites in violation of Section 482.161(5), Florida Statutes. Although the certified pest control operator for Suncoast on July 1, 1974, would have been responsible for Pace's failure, Pace himself cannot avoid responsibility for his failure to properly treat the Johnson residence by virtue of the provisions of Rule 10D-55.35, supra.
There is clear evidence that an employee of Suncoast other than Pace misrepresented the facts of an infestation to Annie G. Symons contrary to Section 482.161(5), Florida Statutes, and Rule 10D-55.04(4), Florida Administrative Code, in October, 1974. At that time Pace was an emergency certified pest control operator. There was no evidence introduced that Pace was contacted by Symons or by DHRS regarding misrepresentation to Annie G. Symons by an employee of Suncoast. Pace cannot be vicariously liable under the provisions of Section 482.161(5) or Rule 10D-55.04(4), Florida Administrative Code, where knowledge of a misrepresentation is required. Although responsible for the pest control treatments as a certified operator, Pace cannot be considered liable for the misrepresentations of a Suncoast employee when Pace was not aware a contract had been made.
Pace clearly violated Rule 10D-55.05(2), Florida Administrative Code, by failing to give Mrs. Shipley a copy of the contract before the work was done and payments made. It was clear that the nature of the treatment Pace was to perform was clearly explained to Mrs. Shipley prior to the commencement of the work. Bargren found prior evidence of subterranean termite infestation under one of the homes, and damage to the wood under the other as a result of dry rot. In any event, the inspection of the premises was by Rick Draper, and although Pace sold Mrs. Shipley the contract, it is clear that Mrs. Shipley knew that Pace did not conduct the inspection of the houses because she was talking with Pace outside while watching Draper inspect the house. Bargren's testimony was that the treatment was substandard, and he also testified that the prior infestation of subterranean termites under the mobile home had been stopped.
The testimony indicated that bargaining went on between Pace and Shipley regarding the treatment that would be applied and the price for the treatment. Treatment in accordance with this agreement was performed or a good faith effort made. Considering the circumstances there is not substantial and competent evidence of a violation of Section 482.161(5) or (6), Florida Statutes, or of Rule 10D-55.04(4), Florida Administrative Code.
Pace is charged with not providing adequate subterranean termite treatment and not treating an active dry wood termite infestation at the residence of Frank Logan. Bargren's inspection revealed evidence of a prior subterranean termite infestation which had been controlled and an active dry wood termite infestation in Logan's attic. Bargren's inspection took place over one year from the date of Pace's initial inspection and treatment. Pace stated that he saw evidence of what he took to be an inactive dry wood infestation when he initially inspected Logan's residence. No evidence was obtained concerning whether the infestation of dry wood termites was over one year old. Testimony was received that dry wood termites will not be affected by subterranean termite control measures; and, further, dry wood termites may fly into a building and start a colony if preventive measures have not been taken. Logan testified that the initial treatment by Pace did not control the termites because he kept seeing them. Pace was negligent in treating for subterranean termites in that he failed to assure that the foundation voids were treated contrary to Section
482.161(6), Florida Statutes. The length of time between Bargren's inspection and Pace's treatment together with the manner of infestation of dry wood termites creates sufficient doubt regarding the allegation of Pace's failure to properly identify the dry wood infestation to find the allegations not proven.
The individual allegations proven above are not significant when taken singularly; however, the evidence taken as a whole presents a picture of high pressure salesmanship by Pace and those with whom he was associated, together with poor workmanship in application of treatments. In one instance the evidence is clear that Pace made a misrepresentation of a termite infestation where evidence was lacking. He did solicit contracts on occasions in which another employee made the inspections and he lacked specific knowledge of the conditions found. As part owner of Suncoast, Pace had the responsibility to oversee his employees which he failed to do. Pace should have taken greater care to insure his employees had properly inspected homes, and were dealing honestly and forthrightly with customers. As an employee, Pace did not treat homes in a workman like manner in accordance with accepted practices. The course of conduct engaged in by Suncoast and Pace's failure to control his employees cannot be overlooked.
Considering the findings of fact generally and the conclusions of law, the Hearing Officer would recommend that the Department of Health and Rehabilitative Services deny Pace's application to take the examination to become a certified pest control operator on the basis that Pace has not actively worked in pest control for some months, that substantial and competent evidence exist which indicates that Pace's expertise in pest control is lacking, and that his prior conduct raises questions of his business reputation and his ability to supervise employees. The Hearing Officer would further reand that Lewis S. Hall's request for an identification card for Pace be disapproved on the specific basis that Pace misrepresented an infestation to Mrs. Marian Redlin, which reflects adversely on Pace's business reputation and good character.
DONE and ORDERED this 29th day of April, 1977, in Tallahassee, Florida.
STEPHEN F. DEAN
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Frank Wollett, Esquire Nixon E. Farnell, Esquire
Barbara Dell McPherson, Esquire Post Office Box 2417 F Jacksonville, Florida 32231
