STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2582

)

DIANE M. JELLEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing before Ella Jane P. Davis, duly assigned Hearing Officer of the Division of Administrative Hearings in Cocoa, Florida, on September 18, 1986.

APPEARANCE

For Petitioner: Melissa Storey

Assistant District VIII Counsel

400 West Robinson Street, Suite 911 Orlando, Florida 32801

For Respondent: Diane M. Jellen pro se

784 Cranbrook Palm Bay, Florida

ISSUE

Whether or not an Administrative fine may be imposed upon proof of allegations contained in the Administrative Complaint dated June 6, 1986, wherein Respondent is charged with violations of Section 482.226(1), (2)(f) and (g), and 482.161(1)(a),(e) and/or (f) Florida Statutes.

Petitioner presented the oral testimony of Roger Gagnon and Frederick Hassut, Jr., and had 3 exhibits admitted in evidence (P-1, P-2, and P-4). Respondent presented her own oral testimony and that of Susan Rickenbach and had admitted 1 exhibit (R-1).

At the close of Petitioner's case in chief, and at the conclusion of her own case. Respondent moved to dismiss for failure to prove the allegations of the Administrative Complaint. Ruling on same was reserved for disposition in this recommended order.

No transcript was filed. Both parties have filed post-hearing proposals. To the extent they contain proposed findings of fact, these proposals are ruled on pursuant to Section 120.59(2), F.S., in the appendix hereto.

Respondent's post-hearing Motion for Dismissal is ruled on in the course of this recommended order.

FINDINGS OF FACT

1. On October 16, 1985, Diane M. Jellen, representing Terminix International, Inc., Cocoa, inspected the property consisting of 12 units which is located at 141 Bluff Terrace, Melbourne, Florida. The inspection was for purposes connected with a real estate transfer. Ms. Jellen issued a report of findings on a Wood-Destroying Organisms Inspection Report (HRS Form 1145, May 1983) dated October 16, 1985.

   
   

2. At the time of making the inspection, Ms. Jellen felt herself to be sexually harassed by an individual representing the seller who obstructed her entry into certain units, and she did not complete the inspection of each and every unit for this reason.

   
   

3. The top portion of the report issued by Ms. Jellen indicates that Ms. Jellen is the "inspector" and states: "Specific structures inspected: 12 units; Structures on property NOT inspected: none; Areas of structures NOT inspected: none." Essentially the report goes on to indicate that no wood destroying organisms existed. However, at the bottom on the COMMENTS line, Respondent wrote "not all apts accessable" and "low crawl." She made the latter comments in reliance on instructions from her Terminex supervisor that this was sufficient. 1/

1. Thereafter, partly in reliance on Ms. Jellan's report, Mr. Roger Gagnon purchased the 12 units previously inspected.

   
   

2. On May 14, 1986 Mr. Roger Gagnon, owner of the property, filed a written complaint alleging that the inspection performed by Ms. Jellen on October 16, 1985, had failed to detect evidence of wood destroying organisms which were present within the structure at the time of the October 16, 1985 inspection, and which wood destroying organisms Mr. Gagnon had subsequently discovered.

   
   

3. On May 15, 1986 Frederick Hassut, Jr., Entomologist-Inspector for the State of Florida Department of Health and Rehabilitative Services performed a wood-destroying organism inspection of the premises which revealed wood-decaying fungus damage present in wood braces and overhang located above apartments No.

3. and No. 4; in several wood members of the stairway and railing adjacent to apartments No. 3 and No. 4; in several floor joists located within the storage room of building No. 2; in the baseboard located in the bathroom of apartment No. 10; and in several wood members of the stairway adjacent to apartment No.

1. Further, he found drywood termite fecal pellets and damage in the east window frame located in the living room of apartment No. 3. Mr. Hassut determined, within his expert education, training and experience, that the old wood decay, fungus damage and the dry-wood termite evidence and damage had to have been present and visible on October 16, 1985, when Ms. Jellen issued the inspection report indicating an infestation.

   
   

   1. Terminex International subsequently repaired all losses incurred by Roger Gagnon at its own expense.

      
      

   2. Prior to the time of the inspection, October 16, 1985, Respondent had filed an application to become a pest control employee identification cardholder. Petitioner did not affirmatively show that the card was issued

      prior to the October 16, 1985 inspection, however Ms. Jellan's application, admitted in evidence as P-4, specifies the agency policy that:

      
      

      "The effective date of this ID Card when issued will be the date of receipt of post- mark if mailed, of this application."

      
      

      The application bears two receipt dates: "10-3-85" and "October 07, 1985," both of which pre-date the inspection at issue. The parties agree that an identification card was subsequently issued. Accordingly, Respondent is found to have been an identification cardholder as contemplated by Chapter 482 F.S. 2/ and therefore subject to Petitioner's jurisdiction at all times relevant.

      
      

   3. Respondent's unrebutted testimony that she was hired by Terminex International as an office salesperson and was insufficiently trained by that employer to do wood-destroying organism inspections is accepted but deemed irrelevant and immaterial.

      
      

   4. In mitigation, it is noted that Respondent has, at her own initiative, recently completed 5 days training in pest control with an eye to continued competent employment in this field.

      
      

      CONCLUSIONS OF LAW

      
      

   5. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause.

      
      

   6. Respondent's oral motions to dismiss for failure to establish a prima facie case are denied. The Respondent's post-hearing Motion for Dismissal, which basically states Petitioner failed to dispute or disprove paragraphs 1-6 of the original response, is likewise denied. The response was never offered in evidence nor were some of its attachments. Even if the response were viewed as "affirmative defenses," its attachments would be outside of the evidence of record.

      
      

   7. The applicable statutes provide:

      
      

      Section 482.161 Remedies of department

      1. The department may fine the licensee, certified pest control operator, identifica- tion cardholder, or special identification cardholder or 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, 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 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.

               * * *

            2. Performing pest control in a negligent manner.

            Section 482.226 Termite or other wood destroying organism inspection report; notice of inspection or treatment

            * * *

      2. The inspection report from prescribed pursuant to this section shall include the following information:

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

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

         
         

   8. With regard to making a penalty recommendation, the following subsections of Section 482.161 are pertinent:

      
      

      1. If, after appropriate hearing in accor- dance with the provisions of Chapter 120, the department finds that an identification cardholder, special identification card- holder, certified operator, or licensee has

         committed an act set forth in subsection (1), but further finds that such violation is of such nature or under such circumstances that revocation or suspension of a certificate would either be detrimental to the public or

         be unnecessarily harsh under the circumstances, it may in its discretion and in lieu of executing the order of suspension or revoca- tion, either:

         1. Reprimand the party publicly or privately; or

         2. Place the party on probation for a period of no more than 2 years.

      * * *

      1. The department, pursuant to chapter 120, in addition to or in lieu of any other remedy provided by state or local law, may impose an administrative fine not exceeding $500, or less than $25, the violation of any of the provisions of this measure. All amounts collected pursuant to this section shall be deposited in the General Revenue Fund. In determining the amount of fine to be levied for a violation, the following factors shall be considered:

         1. The severity of the violation, including the probability that death or serious harm to the health or safety of any person will result or has resulted; the severity of the actual or potential harm; and the extent to which the provisions of this measure were violated;

         2. Actions taken by licensee or certified

            operator in charge to correct the violation or remedy complaints; and

         3. Any previous violations of this measure.

      2. A hearing officer may, in lieu of or in addition to a fine, recommend probation or public or private reprimand. Public reprimand shall be in a newspaper of general circulation in the county of the licensee. The department shall publish quarterly a list of disciplinary action taken pursuant to this measure and shall provide such list to each licensee.

      
      

   9. Upon the foregoing findings of fact, Petitioner has established only that Section 482.161(1)(f) has been violated. The manner in which the inspection report was filled in does not support the "knowingly" requirement of subsection (1)(e). The violation of (1)(a) is purely derivative of the failure to adequately inspect, i.e., negligent inspection as found by violation of subsection (1)(f). In applying subsections (5), (7), and (8) it is determined that the $50 fine requested by Petitioner is too harsh under the circumstances. Respondent would have fulfilled her professional obligations by telling her harasser that she refused to complete her report until she could make a thorough inspection but instead she relied on a co-employee who suggested a stopgap of giving a contradictory report. In place of a fine, a private reprimand will better accomplish the goal of upholding the standards of the pest control profession by impressing on this Respondent that she and the licensee for whom she works (not her supervisor) are ultimately responsible for her job performance and that inadequate job performance for whatever reason can constitute negligence.

RECOMMENDATION

That DHRS issue a final order of private reprimand to Respondent for negligent performance of a pest control inspection.

DONE and ORDERED this 24th day of October 1986, in Tallahassee, Florida.

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 24th day of October 1986.

ENDNOTES

1/ Although Ms. Jellan's testimony concerning her belief that she was being sexually harassed and concerning what her supervisor told her are purely self- serving, she is a credible witness and these matters are unrebutted. Needless to say, her testimony concerning what was told her by her supervisor would be

inadmissible hearsay if it were intended to establish the truth of her supervisor's out-of-court statements. Here, it is not offered for that purpose, but only explains her actions in reliance and it is admissible for that limited purpose.

2/ Section 482.021(9) defines "identification cardholder" as follows: "Identification cardholder" means a person to

whom a current card has been issued by the department appropriately identifying the holder to the public or to any officer or any agent of the department charged with, or entitled to exercise any function in connec- tion with, the enforcement of this chapter and any rules made pursuant to this chapter.

See also Section 482.161(1), quoted infra.

APPENDIX

Petitioner's Proposed Findings of Fact (FOF)

1. Covered in Findings of Fact 1, 3, and 6

2. Covered in Finding of Fact 5.

3. Covered in Finding of Fact 6.

"The Closing Statement by Respondent" is treated as post-hearing "Proposed Findings of Fact."

1. Rejected for reasons set out in Conclusions of Law 2.

2. Rejected as misconstruing nature and effect of P-2 and confusing same with the Administrative Complaint herein. To extent it quotes testimony, it is immaterial.

3. Rejected as not supported by Mr. Gagnon's testimony as a whole. He was not present at all times relevant and is not an expert entymologist.

4. Accepted but irrelevant.

5. Covered in Finding of Fact 2

6. As stated, is not supported by the evidence of the record as a whole; subject matter covered in Finding of Fact 8.

COPIES FURNISHED:

Melissa Storey, Esquire Assistant District 7 Counsel

400 West Robinson Street Suite 911

Orlando, Florida 32801

Diane M. Jellen

784 Cranbrook Drive, N. E. Palm Bay, Florida 32905

Docket for Case No: 86-002582

Orders for Case No: 86-002582