STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2932

)

CHARLES C. NOEGEL d/b/a ) SEMINOLE GATOR EXTERMINATOR, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter after due notice, at Tallahassee, Florida, on December 27, 1983, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: John Pearce, Esquire

Department of Health and Rehabilitative Services

District II Legal Counsel 2639 North Monroe Street Tallahassee, Florida 32303

For Respondent: Charles T. Noegel, pro se

Seminole Gator Exterminator 1409 Pichard Drive

Tallahassee, Florida 32308 ISSUE PRESENTED

Whether Respondent's pest control business license, pest control operator's certificate, and pest control identification card should be suspended or revoked, or the licensee otherwise disciplined for alleged violation of Chapter 482, Florida Statutes, and Chapter 10D-55, Florida Administrative Code, as set forth in Administrative Complaint dated August 18, 1983.

Respondent Charles T. Noegel appeared at the hearing unaccompanied by legal counsel and announced that he desired to represented himself. He was thereupon advised by the Hearing Officer of his rights and the procedures in the administrative proceeding. He acknowledged that he understood such rights.

Petitioner presented the testimony of six witnesses and submitted eight exhibits in evidence. Respondent testified in his own behalf and submitted two exhibits.

Respondent filed a post-hearing document which has been considered, and those potions not adopted herein are deemed to be unnecessary, irrelevant, or unsupported in law or fact.

FINDINGS OF FACT

1. Respondent Charles T. Noegel operates Seminole-Gator Exterminator, Tallahassee, Florida. Inspection reports made by Respondent with respect to the residences of the four owners named in the Administrative Complaint show that he held business license number 519 and ID Card No. 7750, issued by the Petitioner, at the time of the four inspections. (Petitioner's Exhibits 1-3, 5-8).

   
   

2. On August 13, 1981, Respondent inspected the property of Gene Gandy, 2504 Hartsfield, Tallahassee, Florida, and issued a "wood-destroying organism inspection report," HRS Form 1145. He also entered into a termite control contract and warranty guarantee with Mr. Gandy on the same date, which included protection against powder-post beetles. Respondent's inspection report apparently was made in connection with the sale of the house to Mr. Gandy. Respondent's report reflected that active infestation and visible damage by powder-post bettles had been observed under the house. Gandy then authorized Respondent to treat the house for the control of powder-post beetles, and Respondent proceeded to provide such treatment. (Testimony of Respondent, Petitioner's Exhibit 6).

   
   

3. On September 10, 1981, Mr. Gandy filed a written request with Petitioner's Office of Entomology to inspect his property because he had found evidence of powder-post beetle damage inside the house and in the garage. Pursuant to the request, William E. Page, entomologist-inspector for Petitioner, inspected the Gandy property on September 18, 1981, and rendered a report of his investigation on October 12, 1981. He found that there was active powder-post beetle infestation in the wall studs of a bedroom and in the walls of the garage, old beetle and termite damage under the house, and in the wall studs of another bedroom, and water and fungus damage in kitchen and bathroom walls. Respondent conceded at the hearing that he had re-treated the house for powder-post beetles after being informed of Page's inspection and had had no further complaints from Mr. Gandy since that time. (Testimony of Page, Respondent, Petitioner's Exhibit 6)

   
   

4. Prior to purchasing a home at 1937 Sageway Drive, Tallahassee, Florida, Dennis G. Fagen observed some "wrinkled" wood on the wall of the spa room. He requested the real estate salesman to arrange for a termite inspection. Respondent performed an inspection of the property on June 24, 1982, and rendered a negative report as to the presence of wood destroying organisms. The inspection occurred on the date that the Fagens closed the transaction for the purchase of the property. Mrs. Fagen accompanied Respondent during part of his "walk through" of the premises. During the course of his inspection, Respondent noted that the wood in the spa room was suspicious, and, in fact, poked his finger through the pine wood on the wall. Although the evidence is conflicting as to whether Mrs. Fagen was present in the room at that time, it is apparent that both the Fagens and Respondents were aware of the potential problem prior to the completed purchase of the home. The Fagens were of the opinion that it probably consisted of wood rot, and relied on Respondent's negative report as to the presence of wood destroying organisms. About a year later, after the suspicious area had increased in size, Mr. Fagen pulled a board off the wall and discovered that there was active termite infestation. Mr. Fagen contacted Respondent concerning the problem, but he declined to take any remedial action because the Fagens had been aware of the potential damage and Respondent had

   pointed out the area to the real estate salesman at the time of his inspection. Respondent is of the belief that he was not required to reflect the damaged area on his inspection report because it was damage that had occurred prior to his inspection which he was not required to report on the inspection form, and which would have necessitated removing finished wood to make a determination of the presence of wood-destroying organisms beyond the scope of his inspection, as provided for on HRS form 1145. Mr. Fagen thereafter filed a complaint with Petitioner's Entomology Office and requested a state inspection. William E. Page, the State Entomologist-Inspector investigated the complaint on July 8, 1983, and filed a report reflecting his findings that active infestation of subterranean termites and wood rot were present in the walls and ceiling of the spa room. This finding was confirmed by his observation of termite tubes on the exterior wall of the room, and it was his opinion that termites had been active for several years in that location. Mr. Page's findings were confirmed by a further inspection made on July 14, 1983, by another local pest control firm.

   Mr. Page was of the opinion that there was obvious damage in the room which should have been listed by Respondent on his inspection report. This opinion is deemed credible. By letter of September 1, 1983, Respondent wrote the Fagens and reiterated his belief that he was not responsible in any respect with regard to the termite damage. (Testimony of D. Fagen, B. Fagen, Page, Respondent, Petitioner's Exhibits 3-4, 7, Respondent's Exhibit 1)

   
   

5. On April 12, 1982, Respondent performed a wood destroying organism inspection at 1409 Pichard Drive, Tallahassee, Florida, prior to its purchase by John E. Ellis. His inspection report was rendered on the same date on HRS Form 1145 and was negative as to the presence of any damage or infestation. Mr. Ellis was particularly concerned about this aspect of the house since he had previously cancelled a contract in another state for the purchase of a home when an inspection revealed the presence of termites. Consequently, he had insisted on a clause in his present sales contract which permitted him to void the same if a termite problem existed. Mr. Ellis closed the house purchase in May 1982, lived there a month, and after a trip to North Carolina, came back to the dwelling on July 4. At this time, he found that he had a flea problem in the house and accordingly, called a local pest control firm, Florida Pest Control, to spray for fleas and treat the property for termite control. That firm performed the treatment on July 6 and apparently did not find any problems. On July 7, Mr. Ellis observed what looked to be dry rot at the base of four wooden posts on his front deck. It also appeared that Florida Pest Control had dug around each post slightly to treat the ground. Mr. Ellis then traveled again to North Carolina and returned on September 30. Two days later he examined the posts again and noticed that a piece of wood on one corner of a deck post had fallen off. He called the Florida Pest Control who found that the deck posts were damaged as high as four inches above the deck. Mr. Ellis, one of that firm's representatives, told him that although one post showed termite damage, the treatment in July must have killed the termites since there was none existing at that time. He also indicated that the damage to the other posts was either water damage or dry rot. Mr. Ellis contacted Respondent concerning the problem, but he declined to do anything about it because he considered that the damage was not visible or accessible, and therefore outside the scope of his inspection as provided on HRS Form 1145. Mr. Ellis thereupon filed a written complaint with Petitioner's Office of Entomology and requested a state inspection. William E. Page, the State Entomologist Inspector, investigated the complaint on October 15, 1982, and his report of inspection indicated that there was evidence of termite damage in one post of the front deck and rot damage at the base of all the posts. In the opinion of Mr. Page, a normal inspection should have found signs of termite damage to the posts underground and that the damage had been progressing for at least a period of one year. He was further

   of the opinion that it would have been necessary to remove the dirt from the first two or three inches below the ground surface in order to find the damage and that such an area would be "accessible." He found damage to the posts at least eight inches above the ground, although he acknowledged that part of the damage could have been done after Respondent had made his inspection. Mr. Ellis later sued Respondent in civil court and recovered a judgment which was subsequently satisfied. Repair damages to the posts were approximately $585. (Testimony of Ellis, Page, Respondent, Petitioner's Exhibit 5, 8)

   
   

6. Respondent conducted a wood-destroying organism inspection of the property located at 711 Piedmont Drive, Tallahassee, Florida, on May 5, 1983 incident to the subsequent purchase of the property by Mr. David Jones on June 1, 1983. Respondent's inspection report on HRS Form 1145 was negative in all respects except that it was noted that the property showed evidence of previous treatment. Mr. Jones talked to Respondent prior to closing of the transaction and Respondent assured him that everything was all right with the property. While moving into the home on June 1, 1983, Mr. Jones observed an area of wrinkled paint above a window in the family room. When he touched the area, his finger went through the wood. He proceeded to call another pest control firm, Florida Pest Control, to inspect the house. Their inspection indicated that there was evidence of termites by the presence of termite tubes on the wall of the utility room. They also found that there was wood rot damage to the subfloor under a bathroom. Mr. Jones got in touch with Respondent who again examined the property and agreed to repair the damage in the family room, but was unwilling to do anything about the other problems. Jones filed a complaint with Petitioner's Office of Entomology on June 10, 1983, and requested that a state inspection of the premises be performed. Entomologist-Inspector William

   E. Page conducted an investigation on July 1, 1983, and found that, although there was no active infestation, old termite tubes were present in the utility room and subterranean termite damage and wood rot were located in a beam about the window, and in the window frame in the family room and the wall of the utility room, and that rot damage existed in the sub-flooring of a bathroom.

   Mr. Page was of the opinion that a light tap on the wall would have revealed the damage in the family room, and that the termite tubes in the utility room were obvious. He was of the further opinion that a thorough inspection would have found most of the damage that he noted. Respondent testified that he did not believe that HRS Form 1145 provided for the entry of information concerning inactive infestation. He acknowledged that he had not noticed the damaged area above the window of the family room because it had been painted over.

   (Testimony of Jones, Page, Respondent, Petitioner's Exhibit 1-2)

   
   

7. HRS Form 1145 limits the scope of a licensee's inspection of property to the "visible and accessible areas of the structure." It does not include areas concealed by wall coverings, or any portion of the structure in which inspection would necessitate removing or defacing finished wood. The form provides for the entry of findings concerning the observation of "active infestation," "other evidence of infestation," and "visible damage," together with locations of such observations, and the organisms observed or which caused the damage. It also provides for findings as to whether the property shows evidence of previous treatment. By requiring that a finding be entered as to "active infestation" and the organism observed, it is intended that the term "other evidence of infestation" refers to situations where organisms are not observed, but there is some other kind of evidence of either active or inactive infestation, such as the presence of termite tubes. It is intended that the term "visible damage" is also applicable to damage caused by active or inactive infestation. The terms used in the form are commonly understood by the industry to have the meaning indicated above which is the agency interpretation. In all

   instances, suspicious areas which might indicate infestation should be noted on the form as "visible damage," even though the licensee is unable to determine exactly what has caused the problem without removing or defacing finished wood. In such cases, "tapping" of the wood may produce a hollow sound which should be listed as possible hidden damage. Powder-post beetles can be detected by the observation of holes with powder falling out. If wood is damaged, it is possible to trace it to termite infestation with a probe. It is therefore expected that a thorough inspection will reveal signs of past or present infestation. HRS Form 1143 was revised in May 1983 at the request of the industry, but the changes were not substantiated, nor did they essentially change the required findings. The form is utilized in the sale of property and is designed to protect the purchaser. It is therefore important that the inspection be accurate and thorough in all instances since the public relies on the expertise of qualified licensees as to wood-destroying organisms. (Testimony of Page, Bond, Respondent's Exhibit 2)

   
   

   CONCLUSIONS OF LAW

   
   

8. It is alleged that Respondent violated various provisions of Chapter 482, Florida Statutes, and Rule 10D 55.142(2)(c), Florida Administrative Code, in failing to note visible evidence of damage or active infestation by wood destroying organisms on his inspection reports as to the Gandy, Ellis, Fagen, and Jones properties. The alleged statutory and regulatory violations are identical for each of the inspection reports, except as to the property of Jones. In that case, it is not alleged that Respondent violated subsections 482.161(5) and (6), Florida Statutes. In addition, certain of the alleged violations concerning the Gandy, Ellis and Fagen properties are laid under the current provisions of Chapter 482 as substantial reenactment of similar provisions which were in effect at the time the alleged offenses occurred. Accordingly, the alleged statutory and regulatory provisions provide in pertinent part as follows:

   
   

   482.161 Remedies of department.--

   1. The department may fine the license, certified pest control operator, identification card holder, or special identification card holder or may suspend, revoke, . . . any certificate, special identification card, license, or identification card coming within the scope of this measure, in accordance with the provisions of chapter 120, upon any one or more of the following grounds as the same may be applicable.

      1. Violation of any rule of the department or any provision of this chapter.

   * * *

   1. Knowingly made 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.

   2. Performing pest control in a negligent manner.

   
   

   482.191 Violation and penalty.--

   1. It is unlawful to solicit, practice, perform or advertise in pest control except as provided by this measure.

   
   

   482.226 Termite or other wood-destroying organism inspection report;

   notice of inspection or treatment.--

   1. When an inspection for wood-destroying organisms is made for purposes of real estate transfer or is requested by the customer, a termite or other wood-destroying organism inspection report shall be provided by a licensee or its representative qualified under this measure to perform such inspections. The inspection shall be made

      in accordance with good industry practice and standards, and the inspection findings shall be reported to the party requesting the inspection. The report shall be made on a form prescribed by the department

      and furnished by the licensee. . . .

   2. The inspection report form prescribed pursuant to this section shall include

   the following information:

   * * *

   1. Any visible evidence of previous treatments for or infestations of wood- destroying organisms.

   2. The identity of any wood-destroying organisms present and any visible damaged caused.

   
   

   10D-55.142 Responsibilities and Duties -- Records, Reports, Advertising Applications

   (2) Reports:

   * * *

   (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 certified in the category of termite 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 (furnished by the licensee), HRS Form 1145, June 79 which is incorporated by reference.

   
   

9. At the outset, it is noted that Rule 10D-55.142(2)(c), F.A.C., only requires that a licensee make and report the findings of his inspection to the property holder on HRS Form 1145. Inasmuch as Respondent did furnish each property holder with an inspection report setting forth his findings, there is no violation of the rule.

10. As to the allegations that Respondent violated subsection 482.226(2)(g), F.S. (1982), it is concluded that all that is required under this statutory provision is that the inspection report form include information as to the identify of any wood-destroying organism present and visible damage caused thereby, and visible evidence of previous treatment or infestation. Such a requirement presupposes that the licensee identified any such organisms and damage. Respondent's four inspection reports, even though erroneous in some instances, provided this information on the report forms to the apparent extent of his knowledge and understanding of the form's requirements. Accordingly, there has been no violation of that statutory provision. It is noted that subsection 482.226(1) provides that the inspection shall be made in accordance with "good industry practicing standards" and, although it cannot be said that Respondent's inspections conformed to such standards, that particular subsection was not charged.

    
    

11. As to the alleged violation of subsections 482.161(1)(e), F.S. (1982), the evidence fails to establish that Respondent knowingly made any false or fraudulent claims incident to his inspections.

    
    

12. The allegation regarding a violation of subsection 482.191(1), F.S., a criminal provision, is inapplicable under the facts presented by the evidence in this case.

    
    

13. As to the alleged violations of subsection 482.161(1)(f), F.S. (1982), it is determined that Respondent did, in fact, perform "pest control" in a negligent manner as to each of the four properties in question that he inspected by failing to note either active or inactive infestation or visible damage as a result of active or inactive infestation in various areas of those properties, as alleged in the Administrative Complaint. Thorough inspections, in each instance, would have revealed the evidence of active or inactive wood-destroying organisms, as subsequently noted by the state inspector. Respondent's claim that HRS Form 1145 was inadequate or did not provide for the entry of pertinent information concerning inactive infestation is not well founded. "Pest control" is defined in Section 482.021(15)(b) as including the identification of or inspection for infestations in structures.

    
    

14. Petitioner seeks to revoke Respondent's business license, pest control operator's certificate, and pest control identification card because of his inadequate inspection reports in the instances under consideration, and because he had been the subject of previous disciplinary action as the result of operating without a valid license. Such a penalty is considered too harsh under the circumstances because Respondent's conduct was a result of simple negligence in failing to conduct adequate inspections, and did not arise from intentional or fraudulent activities. Accordingly, it is considered that an appropriate and adequate penalty is suspension of his certificate, identification card, and license for a period of three months, and that he further be placed on probation for a period of one year under such appropriate conditions as may be imposed by Petitioner.

RECOMMENDATION

That a final order be entered which suspends the pest control business license, pest control operator's certificate, and pest control employee identification card of Respondent Charles T. Noegel for a period of three months, and that he be placed on probation thereafter for a period of one year for violation of Section 482.161(1)(f), Florida Statutes.

DONE AND EXTENDED this 25th day of January, 1984, in Tallahassee, Florida.

THOMAS C. OLDHAM

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 25th day of January, 1984.

COPIES FURNISHED:

John Pearce, Esquire Department of HRS District II Legal Counsel 2639 North Monroe Street

Tallahassee, Florida 32303

Charles T. Noegel

Seminole Gator Exterminator 1409 Pichard Drive

Tallahassee, Florida 32308

David Pingree, Secretary Department of HRS

1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 83-002932

Orders for Case No: 83-002932