STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1921

) HARRY H. MINDS AND RICHARD L. ) JENKINS d/b/a BUILDING INSPECTION ) SERVICES, INC., OF DADE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held in this matter before P. Michael Ruff, duly designated hearing officer of the Division of Administrative Hearings on January 8, 1982 in Miami, Florida.

APPEARANCES

For Petitioner: Morton Laitner, Esquire

Legal Department Department of Health and

Rehabilitative Services 1350 Northwest 14th Street Miami, Florida 33125

For Respondent: Andrew C. Pavlick, Esquire

2780 Galloway Road, Suite 100

Miami, Florida 33165

This cause was initiated on an administrative complaint filed by the Petitioner against the Respondents wherein it was alleged that the Respondents violated the provisions of Subsection 482.226(1) and (2) Florida Statutes, as well as Rule 10D-55.142(2)(c), Florida Administrative Code. Specifically, it is alleged that written reports of findings of inspections for wood-destroying organisms by the Respondents were entered on forms different from those prescribed by the department. The Respondents reports regarding wood-destroying organism inspections allegedly contain the following statement, which is not included in the wording of the prescribed HRS form codified in the above Rule:

This is a termite and wood-destroying insect report only, fungi and carpenter ant inspections are available as a separate special inspection.

In effect, the Petitioner contends that the continued issuance of the required written reports of such inspections on a form that differs from that prescribed by the department is in conflict with the provisions of Chapters 482 and 10D-55, Florida Administrative Code and allegedly constitutes grounds for revocation of the Respondents' pest-control business license and pest-control employees' identification cards, pursuant to Subsection 482.161, Florida Statutes. The issue is thus whether the Respondents reports its inspections on a form different from that mandated by the above statute and rule and whether that authority has been violated.

Each of the parties presented one witness and the Petitioner presented one Exhibit. Subsequent to the hearing, the parties elected to avail themselves of the right to file proposed findings of fact and conclusions of law. The undersigned was under the impression that a transcript of the proceeding was to be ordered and apparently the transcript was ordered, since reference is made to it in the Respondents' proposed findings of fact and conclusions of law, but the undersigned has never been furnished a copy. Since the undersigned has waited a reasonable time for the filing of the transcript, the Recommended Order is rendered in its absence.

FINDINGS OF FACT

1. The Respondents hold licenses granted by the Petitioner as a pest- control business and Harry Minds and Richard Jenkins hold individual pest- control employees' identification cards granted by the Petitioner. The Respondents individually, and the licensed business they represent, are a well recognized pest-control service in the Dade County area and enjoy a good reputation for competent pest-control operations in their community. On July 10, 1980 and subsequent thereto, the Respondents have, after conducting termite or wood-destroying organism inspections of buildings owned by customers, furnished them inspection reports containing the following language:

   
   

   This is a termite and wood-destroying insect report only, fungi and carpenter ant inspections are available as a separate special inspection.

   
   

2. Each time the Respondents performed such inspections for customers they issued the customer such a report pursuant to the requirements of the authority cited below. The report issued by the Respondents, which is at issue herein (Petitioner's Exhibit One), is on the prescribed HRS form set forth in Rule 10D- 55.142(c). It is like it in every way. The only difference is that the above- quoted language is inserted as an addendum at the bottom of the form as a notice to the customer.

   
   

3. After commencement of the hearing, the parties entered into a stipulation whereby they agreed that the only issue is whether or not the inspection report customarily issued by the Respondents and depicted in Petitioner's Exhibit One violates Section 482.226, Florida Statutes or Rule 10D- 55.142(c), Florida Administrative Code.

   
   

4. As acknowledged by the Petitioner's witness, Mr. Preve, there is no restriction either on the face of the form or in the Petitioner's policy or enforcement interpretation against the ability of a termite or wood-destroying organism inspector to charge separately for each type of wood-destroying organism inspected for. Further, it was acknowledged by the Petitioner that such an individual inspector could even charge separately for each area of a

   house or building which he inspects; i.e. one price for an attic or beneath the crawl-space of a house, as opposed to an inspection of the interior of the main portion of the house. Nor is it required that an individual inspector inspect an entire house.

   
   

5. The Respondents established that an inspection for fungus requires extra time, labor and additional training for inspection personnel. If clients desire that such a fungus inspection be made, the Respondent makes it available at a set, published, per hour charge.

   
   

6. The Petitioner acknowledged that an individual inspector can legitimately inspect for only one type of insect or organism according to the statutes, rules and policy the department makes a practice of enforcing. The Respondents herein inspected for all the statutorily defined pests except one, the presence of fungi.

   
   

7. The Respondent properly inspected for wood-destroying organisms and properly completed the report form depicted in Exhibit One as required of it by the Petitioner supplying all information required. The Respondent, by inserting its own disclosure that an inspection for fungi had not been made, but could be ordered if desired by that customer, was making a more extensive disclosure of information to the benefit of the customer than the Petitioner's required form does itself. Rather than merely following the prescribed form and reporting within the strict scope of its actual inspection, the Respondent also called the customer's attention to an additional condition which perhaps should be inspected for, the lack of which disclosure by merely adhering to the form may have misled an uninformed customer.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Section 482.226, Florida Statutes provides the statutory basis for the department's jurisdiction regarding the content and format of wood-destroying organism inspection reports.

   
   

   Termit or other wood-destroying organism inspection report. -

   1. When an inspection for wood-destroying organisms is made, and the findings reported in writing, a termite or other wood-destroying organism inspection report shall be provided by a licensee or its representative certified to apply pesticide or economic poison for the purpose of controlling such termites or other wood-destroying organisms. The inspection report shall be in accordance with good industry practice and standards on a form prescribed by the department and furnished by the licensee.

   2. An inspection report based on an inspection of the visible and accessible areas of the property, and given without the application of pesticide or economic poison to said property, shall reveal the visual

      presence or absence of termites or other wood-destroying organisms during the inspection. Such report shall not be construed to constitute a guarantee of the absence of said organisms unless the report specifically states in writing the extent of said guarantee and the length of time said guarantee be in effect.

      
      

10. Pursuant to this Section, Rule 10D-55.142(1)(c) provides:

    
    

    1. Records:

       (c) Termite or other wood-destroying organism inspection report:

       Pursuant to Chapter 482.266(1) and (2), F.S., each licensee having a certified operator in the category of termit or other

       wood-destroying organism control and who makes and reports the findings of a wood-destroying organism inspection in writing shall provide the property holder or his authorized agent with the inspection findings on the following Wood-Destroying Organism Inspection Report form prescribed by the department and furnished by the licensee. . .

       
       

       There follows in that Rule a depiction of the inspection report form which is the exact form used by the Respondents herein, with the addition of course, of the disputed language at the bottom.

       
       

       Section 482.241 states as follows:

       Liberal interpretation. - The provisions of this act shall be liberally construed in order to effectively carry out the provisions of this act in the interest of the public and its health, welfare, and safety.

       
       

       There is no question that the testimony and evidence in this record establishes that the addition of the language at the bottom of the form by the Respondents indicating that it was only a report of an inspection for termites and wood- destroying insects and not for fungi (the parties stipulated that carpenter ants were not at issue), constitutes more extensive notice and information to the customer regarding the question of infestation of his structure than the mere filling in of the blanks on the department's required form would provide. Thus, the insertion of this additional disclosure to the customer, although it is obviously in part for the Respondents' own legal protection, also serves the interest of the public health, welfare and safety for purposes of the above Section in that it provides the customer with more specific notice as to the work performed by the inspector and that a separate fungi inspection may be needed. In amplification of the basis for the disclosure regarding the separate nature of the fungi inspection and the additional charge involved, the unrefuted evidence propounded by the Respondents establishes that special training is necessary in order to recognize wood-destroying fungi and its effect on the structure of a building, hence, the Respondents' practice of making such a separate inspection with a separate additional charge. In that connection no statutory or other prohibition has been demonstrated against the performance of separate inspections for fungi infestation, with attendant separate additional

       charges. Indeed, the Petitioner acknowledged that there is no prohibition even against separate charges for inspections of different portions of a building or dwelling. In short, the Respondents demonstrated that they had used the prescribed form that the Petitioner demands and properly filled it out with regard to the customers in question and merely added an additional disclosure to the customer at the bottom.

       
       

11. The Petitioner demonstrated no legal basis for its position that the Respondents should not add language of their own which constitutes an additional disclosure to the benefit of members of the public, so long as the form itself was properly executed, which it was. The additional disclosure provided by the Respondents to these customers in actuality comports with the spirit and intent underlying Chapter 482 which, as stated in the above provision, is to be liberally construed in order to effectively carry out the provisions of the act in the interest of the public's health, welfare and safety. The additional and more specific disclosure at the bottom of the form inserted by the Respondents serves the interest of the public and specifically the customer involved by more fully informing him of what he has paid for and what additional service he may need to insure the safety of his building. In that connection, no illegal charges for services on the part of the Respondents have been demonstrated and are not at issue. The form employed by the Respondents with the subject amplification comports with the expressed legislative intent behind the enactment of Chapter 482 and the specific provisions cited above.

    
    

12. It should be noted that no evidence was offered which could establish that the inspection report used by the Respondents is not "in accordance with good industry practice and standards. . ." The evidence of the Respondents shows that the inspectors performing the work are qualified and that the recognition and diagnosis of fungi infestation in a wooden structure requires some special training and knowledge, which is the rationale for its furnishing such inspections as a separate service and charge and disclosing that fact in the additional language on the form. Since the form, as amplified by the Respondents and supplied to their customers, is the same as but also provides notice in addition to that contained in the form mandated by the above Rule, it cannot be deemed that the inspection report used by the Respondents is not "in accordance with good industry practice and standards."

    
    

13. The Petitioner, not having demonstrated that the Respondents have violated Section 482.226(1) and (2) and Rule 10D-55.142(1)(c), Florida Administrative Code, especially given the legislative intent expressed in Section 482.241, and given the fact that the actual form dictated by the above Rule was used in its entirety, with merely the additional notice inserted, it must be concluded that the allegations of the administrative complaint have not been proven.

RECOMMENDATION

Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED:

That the administrative complaint herein be DISMISSED.

DONE AND ENTERED this 14th day of May, 1982 at Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1982.

COPIES FURNISHED:

Morton Laitner, Esquire 1350 Northwest 14th Street Miami, Florida 33125

Andrew C. Pavlick, Esquire 2780 Galloway Road, Suite 100

Miami, Florida 33165

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 81-001921

Orders for Case No: 81-001921