vs. ) CASE NO. 77-2024
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on January 26, 1978 at Largo, Florida.
For Respondent: David J. Kurland, Esquire
By Administrative Complaint filed October 10, 1977 as amended at the hearing, the Department of Health and Rehabilitative Services, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Gulf Coast Pest Control, Inc., Respondent. As grounds therefor it is alleged that:
On or about October 25, 1974 Thomas C. Folsom and Phillip E. Jones, employees of Respondent, falsely represented to Mr. Floyd Green that dry wood and subterranean termites were infesting his residence at 2718 - 8th Avenue North, St. Petersburg, Florida and that at the time of such false representation was made one of the operators, Phillip E. Jones, did not hold a valid identification card.
On or about December 27, 1974 an employee of Respondent, Charles Casale, falsely represented to Robert C. Rankin that subterranean termites were infesting his property at 5713 - 18th Avenue South, Gulfport, Florida and that at the time such false representations were made Casale did not hold a valid identification card.
On or about December 10, 1974 Respondent failed to advise Leonard A. Wray of precautions to be taken prior to fumigating his residence at 3241 - 19th Avenue North, St. Petersburg, Florida; failed to furnish a printed list of items to be removed from the structure; posted a postdated clearance notice while structure was under fumigation instead of warning signs; and failed to notify the county health unit with the required advance notice of fumigation.
On or about May 14, 16, and 23, 1975 an employee of Respondent performed pest control work for Mrs. George Chaney at 2335 - 36th Avenue North, St. Petersburg, Florida without having a current identification card; and licensee advised Mrs. Chaney by letter that the chemicals used were approved by the Bureau of Entomology.
On or about June 10, 1975 an employee of Respondent, Phillip E. Jones, falsely represented to Mrs. Ruby Moser that the attic joists in her home at 5121 Ridge Street, St. Petersburg, Florida had sustained severe damage requiring treatment; and that the service agreement with Mrs. Moser did not comply with Section 510D-55.05(2)(g)(h) and 10D-55.05(4) Florida Administrative Code.
On or about July 25, 1975 Bill Gillian, an employee of Respondent falsely represented to Mr. and Mrs. Donald R. Seldes that subterranean termites were infesting their property at 5120 - 31st Avenue North, St. Petersburg, Florida.
On or about August 5, 1975 Ken Ely, Jr. and Phillip E. Jones, employees of Respondent, falsely represented to Mrs. William B. Bashline that wood borers were infesting her residence at 5571 - 66th Avenue North, Pinellas Park, Florida, and that according to Florida law she would be required to have a fumigation tent placed over her home.
On or about September 16, 1975, Ken Ely, Jr., an employee of Respondent, falsely represented to Mrs. Margaret Hopper that her home located at 1037 - 12th Street North, St. Petersburg, Florida was infested with wood borers and that specific treatment was required.
On or about October 5, 1976 and January 20, 1977, Robert R. Plowman, an employee of Respondent, falsely represented to Mrs. Donald R. Bond II that powder post beetles, dry wood termites and wood borers were infesting her property and treatment was indicated.
During July of 1976 Robert R. Plowman, an employee of Respondent, falsely representing to Mrs. Rita M. Spera that wood borers were infesting the attic of her home at 9783 - 52nd Avenue North, St. Petersburg, Florida and treatment was required.
On or about September 2, 1976 Robert R. Plowman, an employee of Respondent, falsely represented to Mrs. Nathan M. Hameroff that powder post beetles and wood borers were infesting the attic of her home at 1190 - 80th Street Court, South, St. Petersburg, Florida and that specific treatment was required.
During December, 1976 John D. Lucas and Robert R. Plowman falsely represented to Robert L. Dill that powder post beetles were infesting the attic and substructure of his property located at 1551 Citrus Street, Clearwater, Florida and treatment was required.
On or about December 14, 1976, Robert R. Plowman, an employee of Respondent, falsely represented to Mrs. Donald R. Bond, Sr. that wood boring beetles were infesting her property located at 6701 - 19th Street North, St. Petersburg, Florida and treatment was required.
Robert R. Plowmon, an employee of Respondent, falsely represented to Ray L. Jackson that powder pest beetles were infesting his property at 6243 - 6th Avenue South, St. Petersburg, Florida and treatment was required.
On or about July 7, 1977 Larry D. Brown, an employee of Respondent, falsely represented to Helen H. Stambaugh that dry wood termites were infesting her property at 2518 - 67th Avenue South, St. Petersburg, Florida and treatment was required; and that at the time Larry D. Brown was without a current valid identification card.
The above acts are alleged to violate various provisions of Chapter 482, Florida Statutes and Chapter 10D-55 Florida Administrative Code. Eighteen witnesses were called by Petitioner, five witnesses were called by Respondent and six exhibits were admitted into evidence. Objections to Exhibits 6 and 7 on the grounds they were not properly authenticated and identified were sustained.
Respondent is licensed by the State of Florida, Department of Health and Rehabilitative Service as a pest control service authorized to perform all functions for which such organizations may be licensed.
Gilbert Bellino was certified operator for Respondent from prior to the earliest charge in the Administrative Complaint until mid-1977. He was certified in the four types of treatment authorized by pest control companies, viz. fumigation, general household pest control, including rodent control, termite or other wood infesting organisms control, and lawn and ornamental pest control.
A certified operator is required to supervise and direct the activities of all employees engaged in pest control.
Many of the complaining witnesses made their first contact with Respondent when answering an advertisement for a onetime household pest treatment and a free termite inspection.
Lloyd Green responded to an ad in which Respondent offered a spray treatment of the yard and house for $15. Folsom and Jones appeared and after an inspection of his house advised Green that he had dry wood and subterranean termites and induced him to sign a contract to treat them at a price of $286. After reflection and before any work was done Green called and cancelled the contract. He had the house inspected by Mr. Chapman of Chapman Pest Control who found no evidence of active infestation. All evidence Chapman found of wood damage was done prior to the timber having been processed. The house was later inspected by David Jones, District V Entomologist and he too found no evidence of active infestation. A second inspection of Green's home was made by Jones in company with Casale, the President of Respondent. The only evidence found was one hole in a bed slat which had occurred before the lumber was processed.
Turpentine beetles and pine sawyer beetles are wood borers that attack trees but not processed lumber. Once lumber is processed any further damage from these beetles is highly improbable if not impossible. Evidence of the
damage they have caused will remain in the wood but is readily distinguishable from an active infestation by one with almost any training in pest control.
Wood borers make round holes and any eliptical hole found in timber is indicative that the hole was made before the wood was processed. The oblique angle to the borer's tunnel cut by the saw when the lumber was processed causes an eliptical hole.
Charles Casale visited Robert Rankin's house for a free termite inspection and identified himself as an employee of Respondent. He was accompanied by another man who inspected the crawl space under the house. Upon completion of the inspection Casale advised Rankin he had an infestation and needed treatment which would cost $300. After getting an opinion from another pest control company that he did not have termites Rankin called HRS and David Jones inspected the entire house. At this inspection Jones found no evidence of active infestation but a colony of fleas from Rankin's two dogs. At the time of Casale's inspection application for an identification card had not been submitted for Casale.
Thelma P. Wray contracted with Respondent for fumigation of her house. No written instructions were given her by Respondent, nor was she advised to remove medicines. She was advised to remove only milk cartons, cheese and open food. The only warning sign placed on front and rear of house during fumigation (Exhibit 4) on November 10, 1974 did not show type of fumigant used and stated house is safe for reentry at 10:30 a.m. December 11, 1974. This sign appeared on the house the evening of December 10, 1974 and was placed only at the front and rear. No notice of this fumigation was provided to the County Industrial Hygienist who maintains records of notices of all fumigations.
Neither Mr. nor Mrs. Chaney testified. No one having personal knowledge was called to identify Exhibit 6 and no evidence was offered that Larry A. Donald, Jr. was employed by Respondent and visited the Cheney home without a valid identification card.
Mrs. Ruby Moser did not testify. No witness was produced to testify regarding Phillip Jones' visit to the Moser home on June 10, 1975 or identify Exhibit 7.
Neither Mr. nor Mrs. Donald R. Seldes testified. No evidence was presented regarding the alleged visit of Bill Gillian, while an employee of Respondent, to the home of the Seldes.
Judith Bashline was contacted by Respondent through telephone solicitation for special pest cleanout and termite inspection. One man sprayed for the pest cleanout and he was followed by Phillip Jones and Ken Ely, Jr.
who, after inspecting the attic, advised her she had an infestation in the attic in a dormant state which needed immediate treatment. She entered into a contract for spot treatment for $190. After Jones and Ely left Mrs. Bashline began having misgivings and called another pest control company for information. She was referred to HRS and there contacted David Jones who inspected the property. Upon inspection Jones found no evidence of active infestation - only the preprocessed type damage found in the other homes.
When Helen M. Hopper purchased her home at 1037 - 12th Street North, St. Petersburg, Florida she acquired a subterranean termite policy from Respondent. She then started monthly sprayings with Respondent. After the first spraying on September 16, 1975, Ken Ely, Jr., an employee of Respondent, went into Hopper's attic and told Mrs. Hopper she had borers in the roof and
needed immediate treatment to save the roof. After he left she called another pest control company for verification. When that company inspected the attic they reported no problem with borers. She then called HRS and David Jones inspected the premises October 24, 1975 and in the attic he found only old damage which had occurred before the wood was processed. There was no infestation for which treatment was indicated.
When Donald R. Bond II and his wife purchased a home his mother recommended they use Gulf Coast Pest Control. In January, 1977 Robert R. Plowman, an employee of Respondent, advised the Bonds that they had powder post beetles and dry wood termites and the attic needed to be treated. He came back that evening when Mr. Bond was home and a contract for the work was signed. The following day Mrs. Bond had two other pest control companies inspect the house. Whey they advised her there was no evidence of active infestation she cancelled her contract and called HRS. On February 10, 1977 David Jones inspected her property. He found no evidence of borer or termite infestation; however Jones did find evidence of rat infestation.
On June 26, 1976 Robert R. Plowman, an employee of Respondent, inspected the home of Rita M. Spera at 9783 - 52nd Avenue North, St. Petersburg, Florida and reported to her that there was an infestation of wood borers in the attic and she needed to have fumigation. The previous year the Speras had replaced the shingles on the roof and had found the wood in good condition. Accordingly Mrs. Spera really didn't believe Plowman and called HRS for verification. When David Jones Inspected the house on July 2, 1976 he found only evidence of old damage that had occurred before the wood was processed. No evidence of active infestation was observed.
Mrs. Ellen M. Hameroff received a telephone solicitation from Respondent for a cleanout and termite inspection. She accepted the offer and on September 2, 1976 Robert R. Plowman, an employee of Respondent, inspected her attic and reported that powder post beetles were present and treatment was needed which would cost $200 to $400. Plowman returned that evening to talk with Dr. Hameroff but they didn't sign a contract. The following day another pest control company was contacted for an inspection. They reported no infestation. She then called HRS and on November 22, 1976 David Jones inspected the property and found only evidence of old damage. On September 1, 1977 William C. Bargren, Scott Askins and F. R. DuChanois, Entomologists with HRS inspected the Hameroff property. They found evidence that pine sawyer beetles had been in the tree from which some sheathing boards in the attic had been processed. There was no evidence of infestation in the Hameroff home.
In December, 1976 Robert L. Dill had a spray and free inspection by Respondent on his home at 1551 Citrus Street Clearwater, Florida. Following an inspection of the home, Robert R. Plocnan and John D. Lucas, employees of Respondent, advised Dill that he had powder post beetles in the attic, ceiling and floor under the house and needed treatment. Before agreeing to the treatment for the powder post beetles and preventive treatment for termites for which Respondent wanted $500, Dill had two other pest control companies inspect the property. Both of these companies advised Dill he had no infestation. Jimmy Robinson of Exterminator Terminix, International, a certified operator,
inspected the Dill property on November 22, 1976 and found no evidence of powder post beetles or termites for which treatment was indicated. He noticed no damage to floor but did see some evidence of borers before the wood was processed. When Dill reported the incident to HRS, David Jones inspected the property on January 20 and 26, 1977, the second time in company with the Casales, Plowman and Donald. Damage to wood in the floor was done before the
lumber was processed and no infestation was present for which treatment was indicated. Lawrence A. Donald, an employee of Respondent, holds a certified operator's license and he found evidence of "tremendous damage due to boring animals" under Dill's house. He opined that there were live larvae in the wood, however, his credibility and expertise left a great deal to be desired.
During a monthly contract spraying Robert R. Plowman, an employee of Respondent, told Mrs. Shirley I. Bond that she had powder post wood borer beetles in the attic of her home at 6701 - 19th Street North, St. Petersburg, Florida and needed to have the attic power dusted. Mrs. Bond gave Plowman a check for $295 but after her daughter-in-law's experience, stopped the work.
She called HRS and David Jones inspected her property on April 14, 1977. He found no evidence of infestation and in Jones' opinion the power spray of Dridie (a trade name for silica gel) would not be appropriate to treat dry wood termites or powder post beetles.
Raymond L. Jackson employed Respondent for the advertised "clean-out" and free inspection. On January 6 and 7, 1977 Robert R. Plowman, an employee of Respondent, inspected Jackson's property at 6243 - 6th Avenue South, St. Petersburg, Florida and advised Jackson that he had active termites and powder post beetles and needed treatment. Jackson signed a contract and paid Plowman
$300 for the work. About two weeks later two men power dusted Jackson's attic. After reading an article in the newspaper about powder post beetles Jackson called HRS and his property was inspected by Askins on July 26, 1977 and by Askins and Bargren on August 10, 1977. The only evidence of damage they found was that caused by turpentine beetles prior to the wood being processed. In their opinion no treatment was indicated before the power dusting was done.
Mrs. Helen Stambaugh had a "clean-out" and free termite inspection in July, 1977 at her home at 2518 - 67th Avenue South, St. Petersburg, Florida by Respondent. Larry D. Brown, an employee of Respondent, to whom an application for identification card had not been submitted, told Mrs. Stambaugh that dry wood termites were infesting her garage and treatment was necessary. Spot treatment was offered for $130. She contacted another pest control company who, after inspection, advised that no treatment was indicated. She then called HRS and on July 20, 1977, Bargren and Askins inspected her property and found only evidence of old turpentine beetle damage in the garage which had occurred before the wood was processed. No infestation for which treatment was indicated was observed.
In October, 1975 representatives from Gulf Coast Pest Control, Louis Casale, the company manager, Carmine Casale the owner and Gilbert Bellino, the certified operator, met with HRS representatives in Jacksonville to discuss the numerous complaints HRS had received about Respondent and to formulate remedial action. At this meeting the need for additional training of their salesman was discussed in connection with the complaints filed by Green, Rankin, Wray, and others with particular emphasis on the need to train their operators to distinguish old damage in the preprocessed tree from damage requiring correction. Respondent agreed to increase their training to improve the quality of their inspectors.
Respondent has discharged all of the salesmen who made the misrepresentations noted above. Plowman was finally discharged because "he was too dumb" to learn to distinguish between old damage not requiring treatment and new damage which did require treatment. However, Plowman was continued as an employee even after criminal charges involving fraudulent misrepresentation had been filed against him.
CONCLUSIONS OF LAW
Section 482.161 Florida Statutes provides in pertinent part:
The Department may suspend, revoke or stop the issuance or renewal of any certificate, special identification card, license or identification card coming within the scope of this measure upon any one or more of the following grounds as the same may be applicable:
Violation of any rule of the Department or any provision of this act;
Knowingly making false or
fraudulent claims; knowingly misrepresenting the effects of materials or methods; knowingly failing to use methods of materials suitable for the pest control undertaken;
Performing pest control in a negligent manner;
(8) Fraudulent or misleading adver- tising or advertising in an unauthorized category.
Section 482.152 Florida Statutes in enumerating the duties of a certified pest control operator includes: "(4) The training of personnel in the proper and acceptable methods of pest control."
Section 482.091 Florida Statutes provides in pertinent part: "No licensee or certified operator shall assign or use any employee to perform pest control without trained supervision unless said employee is trained and qualified."
Regulations implementing Chapter 482 Florida Statutes are contained in Chapter 10D-55 Florida Administrative Code. Subsection 55.104 thereof provides in pertinent part:
(4) No licensee or its employees shall represent to any property owner or occupant of any structure that any
specific pest is infesting said property
... or that it requires a specific treat- ment for pest control when an infestation, or strongly supporting evidence of such infestation does not exist. Exception:
this prohibition shall not apply to bona fide preventive treatments which imply no infestation per se.
The evidence was clear that on numerous occasions the employees of Respondent represented to property owners that infestation of wood boring pests existed in their property when there was no evidence of infestation. The evidence was overwhelming that old damage which was caused by borers prior to the processing of the timber is clearly distinguishable from evidence of powder post beetles, dry wood termites or other wood borers.
Licensee is required by the various provisions of Chapter 482 Florida Statutes and Chapter 10D-55 Florida Administrative Code to see that its employees engaged in pest control work are properly trained. Pest control obviously includes the identification of the pests for which the control is intended.
The mere fact that so many misrepresentations were made to property owners by various employees of Respondent is indicative that the training program was wholly inadequate or was not carried out as Respondent's witnesses testified. Alternatively, if the training program was carried out and the employees were properly trained, then the only explanation for the numerous property owners being wrongly advised that their property was infested is that the employees knowingly gave the property owners false information for the purpose of inducing the property owners to enter into contract for pest control that was not needed.
Whether the evidence is sufficient to sustain a finding that Respondent, through its agents, knowingly made false claims is not necessary to determine in this case. It is sufficient that they violated Rule 10D-55.104(4) Florida Administrative Code above quoted and thereby violated Section 482.161(1) Florida Statutes.
Subsection 55.110 Florida Administrative Code prescribes fumigation requirements notices and states in pertinent part:
Each licensee, before performing general fumigation, shall in advance notify in writing the county health unit having jurisdiction over the location where the fumigation operation is to be performed. Such notices shall be received by the county health unit at least twenty-four (24) hours in advance of the fumigation period.
(3) The licensee or certified operator shall advise the property holder, or adult occupant responsible for the structure to be fumigated, of materials which may be conta- minated or damaged by the fumigant to be used and shall furnish the property holder or adult occupant responsible for the structure, prior to fumigation operation, a printed list of items to be removed from the structure as required by the registered label and other precautions to be taken by the property
holder or person responsible for the structure.
Rule 10D-55.113 Florida Administrative Code provides in pertinent part:
The certified operator in charge or his designated special fumigation identifica- tion card holder shall not permit or allow any unauthorized person to enter or occupy or reoccupy the structure or enclosed space fumigated until he has personally
checked with suitable gas-detecting equipment or monitoring device and found the structure
to be safe for human entry and occupancy, and he shall personally certify by his own signature as a result of his final personal inspection of the entire structure or space fumigated that the same and adjacent vacated structures are safe for human entry, occupancy or reoccupancy. Such notice of clearance shall be in writing and shall be conspicuously posted on all entrances to such structure or enclosed space. The signature of the certi- fied operator in charge or his designated special fumigation identification card holder and the exact date and hour of release for reentry and reoccupancy shall be set forth in all notices.
In no case shall the notice of clearance be postdated.
With respect to the fumigation of the Wray's house, the evidence was uncontradicted that a postdated notice appeared on the house, that Respondent failed to notify the county health official of the fumigation, and failed to properly advise the occupant of precautions to be taken all as required by the regulations.
Section 482.091 Florida Statutes provides in pertinent part:
No licensee shall assign any person to perform or to be trained for pest control without first applying for an identification card for such person ...
The evidence was uncontradicted that at the time several of Respondent's employees viz. Larry D. Brown, Charles Casale, and Phillip E. Jones, performed pest control work no application for identification card had been submitted to HRS.
From the foregoing it is concluded that Respondent is guilty of the acts alleged in paragraphs 2(a)(b)(c)(g)(h)(i)(j)(k)(l)(m)(n)(o) of the Administrative Complaint and not guilty of the acts alleged in paragraphs 2(d)(e)(f) of the Administrative Complaint.
As stated in Flaig v. Pest Control Commission, 213 So.2d 471, at p.
474 (Fla. 1st DCA 1968):
It is not the function or prerogative of an administrative board intrusted with quasi-judicial powers to scan the seas of the industry it regulates and sink upon sighting a long-established business upon finding but a ripple of noncompliance with its reams of rules and regulations. It is the proper function of such a board to protect the
public health and safety from incompetent and unscrupulous operators.
The principal acts of respondent which were inimical to the public welfare involved the categories of fumigation and termite and other wood- infesting organism control. In accordance with Section 482.171(4) Florida Statutes the Department, in its sole discretion, may suspend or revoke less than all four categories of pest control as listed in Rule 10D-55.118 Florida Administrative Code. Respondent provides other categories of pest control than fumigation and termite control and no evidence was submitted that Respondent erred in carrying out those other categories of pest control, namely general household pest control and rodent pest control, and lawn and ornamental pest control. It is therefore,
Recommended that the license of Gulf Coast Pest Control, Inc. be suspended for one year in the categories of fumigation and termite and other wood- infesting organism control.
DONE and ENTERED this 14th day of February, 1978, in Tallahassee, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Dept. of HRS
P. O. Box 5046 Clearwater, Florida 33518
David J. Kurland, Esquire
================================================================= AGENCY FINAL ORDER
vs. CASE NO. 77-2024
GULF COAST PEST CONTROL, INC.
Respondent.
Upon an independent review of the complete transcript, exhibits, and recommended order in the above styled proceeding the Department finds that:
IT IS ORDERED that the findings of fact and conclusions of law are adopted by the Department as its own pursuant to Section 120.57(1)(b)9, Florida Statutes, but that the recommendation of the Hearing Officer that the license of Gulf Coast Pest Control, Inc., be suspended for one year in the categories of fumigation and termite and other wood-infesting organism control is not accepted by the Department.
IT IS FURTHER ORDERED that the license of Gulf Coast Pest Control, Inc. to engage in pest control in this state is revoked for all categories of pest control.
DONE AND ORDERED THIS 12 day of May, 1978.
WILLIAM J. PAGE, JR., SECRETARY DEPARTMENT OF HEALTH &
DAVID J. KURLAND, ESQUIRE
K. N. AYERS HEARING OFFICER
