Bales, representing Donald and Bales, sold Mrs. Emma Denham. . .a $403 contract for the control of subterranean termites, all beetles and wood borers when an existing contract sold by John A. McKinnon, Sr. for $221 covering subterranean termites and powder-post beetles was still in effect. . .[even though it was subsequently] determined that the house had not been recently infested by either subterranean termites or powder-post beetles and that the house had not been treated according to the provisions of any currently registered termiticide chemical label"; that "[o]n September 15, 1982 Ronnie J. McLean, representing Donald and Bales, told Mrs. Anise Phillips. . .that her house was infested with powder-post beetles and sold her a control service for
$150 and marked the contract for 'prevention'. . .[even though it was subsequently] determined that the house had not been infested with powder-post beetles and that a control treatment was unnecessary"; that "[o]n October 19, 1982 Byron O. Bales sold Mr. George L. Baker. . .contract #2921 for $302.40 for the control of powder-post beetles in the understructure of his home"; and that "[o]n November 8, 1982, Matthew Bales told Mr. Baker that powder-post beetles were infesting the attic of his home and sold Mr. Baker an additional service and contract #2763 for $275. . .[even though it was subsequently] determined that an active infestation of powder-post beetles did not exist in the attic and that no control treatment had been necessary"; all in violation of Sections 482.161(1)(a), (e) and/or (f), and 482.191(1), Florida Statutes; and Rules 10D- 55.104(4), 10D-55.105(6) and 10D-55.106(1), Florida Administrative Code.
On August 25, 1982, Petitioner received an application for pest control business license and identification cards, Petitioner's Exhibit 1, signed by Perry Commander, requesting licensure for Donald and Bales Exterminating Company, Inc., at 615 East Chestnut Avenue in Crestview, Florida. In the blank for "owners [or] corporation officers" appeared the name R. N. Bales, Jr. Among those on whose behalf identification cards were sought were listed Ronnie James McLean and Byron Bales. Byron Bales was listed as "MGR Salesman," while Perry Commander was listed as "Certificate Holder." Perry Commander was also listed as the certified operator. Petitioner granted this application on September 22, 1982, issuing license No. 343. Since approximately 1974, there have been applications for licenses at this location.
Based on an application not in evidence signed by Byron Bales sometime before August 17, 1983, Petitioner issued an emergency certificate.
On August 17, 1983, Petitioner received an application form signed by Byron Bales, which Petitioner returned to Mr. Bales for more information, and received a second time on August 29, 1983. Petitioner's Exhibit 2. The form gave Donald & Bales Exterminating Co., Inc., as the applicant's firm name and 615 East Chestnut Avenue in Crestview as the firm's address. Byron Bales and "R. [B]ales" were listed as "owners [or] corporation officers." Byron Bales, Colonel (Matthew) Bales and Ronnie James McLean were listed among those on whose behalf identification cards were sought. Byron Bales was listed as "Manager Salesman." Perry Commander's name was crossed out, as was his designation as "Certificate Holder." Nobody else was designated certificate holder, and nobody was listed as a certified operator. This application, which was made on a multipurpose form, has not been acted on. Boxes were printed next to various
categories including "Initial (New) License," "Change-of-Business Ownership License" and "Renewal License." No box was checked, however.
On February 4, 1976, Aggie B. Nelson of Chipley, Florida, contracted with Donald and Bales Exterminating Company, Inc. (Donald & Bales), for treatment of the foundation of her two-bedroom frame house for termites and agreed to pay $30 a year thereafter for annual inspections and preventive sprayings. Petitioner's Exhibit 3. The contract gave a Crestview address for Donald & Bales. On March 24, 1982, Ronnie James McLean arrived at the Nelson home in a truck emblazoned with the Donald & Bales logo and sprayed underneath Ms. Nelson's house. He emerged with five or six bugs in his hand that he told Ms. Nelson were beetles. He said the house needed to be sprayed for beetles and offered to do it while he was there for $230. Ms. Nelson allowed as how that would sure put her in a bind, but agreed to have him spray. Mr. McLean and Ms. Nelson each signed a Donald & Bales form contract on which Mr. McLean checked the box beside the word "Prevention," but not the box beside the word "Infested." The contract showed a Crestview address for Donald & Bales. Petitioner's Exhibit 4. Ms. Nelson wrote a check for $230 to Ronnie J. McLean personally. Later, she began to inquire and eventually arranged for William E. Page, an entomologist in Petitioner's employ, to inspect her house. At the hearing, Mr. Page was qualified as an expert in pest control and testified without contradiction that there was no sign of there having been a beetle infestation at Ms. Nelson's home at any time.
Mardra Stewart was at home in her three-bedroom log house down below Orange Hill from Chipley when Ronnie J. McLean stopped by on April 19, 1982. "He sent some of the men he had with him under the house, and they c[a]me out with a handful of the sills," wood that appeared to have been eaten into by
termites. Mr. McLean told Ms. Stewart she should have her house sprayed because insects "had eat it up under there." (T. 89) She agreed to the spraying and paid McLean $225 for spraying. Mr. McLean and Ms. Stewart each signed a Donald & Bales form contract on which Mr. McLean checked the box beside the word "Prevention," but not the box beside the word "Infested." The contract showed a Crestview address for Donald & Bales. Petitioner'S Exhibit 8. The next day, Ms. Stewart called the sheriff and eventually telephoned Petitioner's Jacksonville offices. Mr. Page inspected her house and found no evidence of an active or recent infestation of insects of any kind, although he did discover evidence of old powder-post beetle damage. In his opinion, the Stewart house probably needed treatment.
Emma Martin Denham of Altha, whose husband died in 1976, has lived in the same house for 35 years; and the Denhams have dealt with Donald & Bales for about half that time. On August 5, 1977, Mrs. Denham paid Marvin A. House $448 to spray for beetles, termites and "wood bores." Mr. House, or somebody else who worked for Donald & Bales at the time, told her, in August of 1977, that there was a new infestation of beetles. She also agreed to pay $25 a year for annual sprayings and inspections. Petitioner's Exhibit 5. On August 13, 1981, John A. McKinnon took $224 from Mrs. Denham on behalf of Donald & Bales in exchange for a commitment to spray for subterranean termites and powder-post beetles. Petitioner's Exhibit 7. The written agreement, a Donald & Bales form signed by Mr. McKinnon and Mrs. Denham, provided: "DONALD and BALES agrees. .
.to guarantee [the August 13] treatment for a period of one (1) year. . .such guarantee being to protect the owner from the return of [subterranean termites and powder-post beetles]. . .DONALD and BALES agreeing to re-treat such property in the event of reinfestation. . ." Petitioner's Exhibit 7. On June 15, 1982, someone falsely claiming to be Byron Bales told Mrs. Denham that she had an infestation of ambrosia beetles and that her home needed spraying. He showed
her two pieces of wood crawling with bugs that he claimed to have found underneath the house and charged her $403 to spray. Mrs. Denham and her visitor each signed a Donald & Bales form contract, the exterminator signing as Byron Bales. Petitioner's Exhibit 6. After he left, Mrs. Denham looked for the wood and the bugs, but could not find them. She wrote Donald & Bales, asking for a refund. When she got no reply, she contacted the authorities. Mr. Page came to her house to inspect, as a result. He found no evidence of ambrosia beetles, which was to be expected since ambrosia beetles only infest living trees. He found no evidence of active pests of any kind and no evidence of drilling or trenching for termites. He found some old powder-post beetle damage, but no other evidence of insects. Donald & Bales eventually refunded $403 to Mrs.
Denham.
On September 15, 1982, Mrs. J. C. Phillips telephoned her daughter, Margaret Powell, and asked her to come to the Phillips' house on Bayshore Drive in Niceville "to write the check for the exterminator." (T. 94) By the time Ms. Powell arrived, the spraying had been done. Ms. Powell asked Ronnie James McLean and his companion(s) to show her some beetles. When they were unable to do so, she declined pay, even after Mr. McLean referred her to Byron Bales, who was at work next door. Mr. McLean and Ms. Phillips each signed a Donald & Bales form contract on which Mr. McLean checked the box beside the word "Prevention," but not the box beside the word "Infested." Petitioner's Exhibit 9. The contract indicated prophylactic treatment of the foundation for powder-post beetles for $150 and called for annual inspections and resprayings for $45 per year. Petitioner's Exhibit 9.
On September 22, 1982, when Mr. Page inspected the Phillips' house, he found no sign of any infestation, new or old, by beetles (or termites). When tenting is not resorted to, the treatment for beetles is applying Lindane with a power sprayer in such a concentration that the odor lasts about a month. This odor was not present when Mr. Page inspected, one week after Mr. McLean's visit.
In November of 1982, Barbara K. Baker Glass was at the home of George Baker, her father, in Flomaton, when Matthew Bales and a companion came by to inspect the floor which he had a month or two earlier sprayed for powder-post beetles.
[T]he one guy turned to the other one and said, "Did you check the attic?"
And he said, "No."
And he said, "Well, we'll have to check the attic to see if there's any up there."
And they did, and he came back down with a piece of wood that he said was from our house. And he said that it needed spraying, and it would cost two hundred and seventy-five more dollars.
Q. Do you remember this man's name?
A. Matthew Bales.
Q. All right. How is it that you remember him?
A. I wrote the check gut to him for my dad, and I wrote it to Donald and Bales, and he had me tear that one up and write it to him.
Q. Now, what did he say, this person who said he was Matthew Bales? What did he say about the attic?
A. He said that we had a real bad case of powder post beetles. [T. 154-155]
When Mr. Page inspected Mr. Baker's attic, he found no sign of powder-post beetles. It is possible for powder-post beetles to Infest attics, but it is ordinarily too hot for them.
Except for Petitioner's Exhibit 7, all the Donald & Bales form contracts state, "Please make check to representative." Having customers write checks in favor of the individual exterminator is "company policy." (T. 169) The corporate structure of Donald and Bales Exterminating Company, Inc., and lines of authority over its west Florida operations are somewhat confused. Robert M. Bales, Jr., of Wellborn in Suwannee County, who owns all the corporation's stock, has not worked in the Panhandle for ten years or more. On June 15, 1982, he signed some agreement which was not offered into evidence. By this instrument, he intended to convey to Byron Bales, his 47-year-old son, all the rights Donald and Bales Exterminating Company, Inc., had in termite control contracts relating to structures west of Leon County, along with "the name of the business. (T. 137) Robert M. Bales, Jr., was unaware at the time of any requirement to notify Petitioner of this change and did not do so. Donald and Bales Exterminating Company, Inc., holds at least one other license at a location other than Crestview, which is not at issue here.
Byron Bales fired Ronnie James McLean because "he stole money from me." (T. 165) He accomplished this theft by selling contracts and cashing checks. (T. 167) Mr. Bales did not discharge Mr. McLean when he first learned that money had been diverted, "not on the first one. . ." (T. 167)
The Hearing Officer has had the benefit of Petitioner's proposed recommended order in preparation of the foregoing Findings of Fact. Proposed findings have been adopted, in substance, for the most part. To the extent they have been rejected, they have been deemed unsupported by the weight of the evidence, immaterial, cumulative, or subordinate.
CONCLUSIONS OF LAW
Petitioner is authorized to "fine the licensee. . .or may suspend, revoke, or stop the issuance or renewal of any. . .license. . .upon. . .the following grounds:
Violation of any rule of the department or any provision of this chapter.
Knowingly making false or fraudulent claims; knowingly misrepresenting the effects of materials or methods; or knowingly failing to use materials or methods suitable for the pest control undertaken.
Performing pest control in a negligent manner.
Section 482.161(1), Florida Statutes (1982 Supp.). The rules which Petitioner alleges that Respondent has violated provide:
No licensee or its employees shall represent to any property owner or occupant of any structure that any specific pest is infesting said property, structure, or lawn or ornamental thereof, or that it requires a specific treatment 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.
Rule 10D-55.104(4), Florida Administrative Code.
A structure shall not be knowingly placed under a second contract for the same wood- destroying organism control or preventive treatment in disregard of the first contract, without first obtaining specific written consent in letter form signed by property owner or authorized agent.
Rule 10D-55.105(6), Florida Administrative Code.
Only those pesticides having federal and/or state label registration clearance shall be used. It shall be unlawful to use any registered pesticide in a manner inconsistent with its labeling, except as provided by EPA or the Florida Department of Agriculture and Consumer Services.
Rule 10D-55.106(1), Florida Administrative Code.
For purposes of the pest control laws, a licensee is defined as a "person. . .corporation, or other business entity having a license issued by the department for engaging in pest control at a particular business location." Section 482.021(12), Florida Statutes (1982 Supp.).
Corporation Licensed at Crestview
Petitioner proved that it had issued a license to Donald and Bales Exterminating Company, Inc., on September 22, 1982, for a pest control business at 615 East Chestnut Avenue in Crestview. 1/
Section 482.071, Florida Statutes (1982 Supp.), contemplates annual, ministerial renewal of such licenses. In August of 1983, Petitioner received an application for renewal from Donald & Bales.
With respect to sufficient 2/ renewal applications timely filed, Section 120.60(5), Florida Statutes (1981), provides that "the existing license
shall not expire until the application has been finally acted upon by the agency. . ." It follows that the license Petitioner issued to Donald and Bales Exterminating Company, Inc., on September 22, 1982, remains in effect, pending final agency action on the application for renewal, which, according to uncontroverted testimony, has yet to be taken.
Although he was listed as an owner or corporate officer on the application Petitioner granted, there was no evidence that Robert M. Bales, Jr., has ever held a license at any location in his individual capacity. His motion to dismiss on that ground is well taken. Although the Respondent named in the administrative complaint is "Robert M. Bales, Jr., d/b/a Donald and Bales Exterminating Company, Inc.," counsel for the corporate licensee recognized this pleading as ambiguous, appeared at the hearing and defended vigorously. In these circumstances, the misstyling of the administrative complaint was harmless error.
Burden on Petitioner
In a matter as grave as license revocation proceedings, the duty allegedly breached by the licensee must appear clearly from applicable statutes or rules or have a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981), in the evidence. Disciplinary licensing proceedings like the present case are potentially license revocation proceedings, even in the absence of a recommendation of revocation, since the penalty for the infraction alleged lies within the discretion of the disciplinary authority, if the allegations of misconduct are established at the hearing. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla. 1979). License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den. 1980).
At the formal hearing, Petitioner had the burden to show by clear and convincing evidence that Respondent committed the acts alleged in the administrative complaint. Walker v. State, 322 So.2d 612 (Fla. 3.d DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). See The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970).
Except with respect to the Stewart house, Petitioner established its allegations that Respondent's agents represented to property owners that treatment for active infestation was necessary when there was no evidence of any such infestation, in violation of Rule 10D-55.104(4), Florida Administrative Code, and Sections 482.161(1)(a) and (e), Florida Statutes (1982 Supp.). With respect to the Denham home, Petitioner also proved a violation of Rule 10D- 55.105(6), Florida Administrative Code, and Section 482.161(1)(a), Florida Statutes (1982 Supp.). The culpability of the corporate licensee is clear. Its name is on form contracts directing property owners to draw checks in favor of its agents. This arrangement invites abuse and evinces a complete lack of supervision on the part of any responsible person.
The transaction at the Baker house was the only one proven to have occurred after September 22, 1982, however. Even on the assumption that Petitioner had the burden to show licensure at the time of the earlier events, this one transaction is enough to justify revocation of Respondent's license for violation of Sections 482.161(1)(a) and (e), Florida Statutes (1982 Supp.), and Rule 10D-55.104(4), Florida Administrative Code.
