STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0287

)

ANTHONY T. DIFALCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in Tallahassee, Florida, on May 1, 1989, before William R. Cave, a duly designed Hearing Officer of the Division of Administrative Hearings. The issue for determination is whether Respondent should be assessed an administrative fine.

APPEARANCES

For Petitioner: John L. Pearce, Esquire

Department of Health and Rehabilitative Services

District 2 Legal Office

2639 North Monroe Street, Suite 200-A Tallahassee, Florida 32303-4082

For Respondent: No Appearance

BACKGROUND

By an Administrative Complaint dated October 31, 1988 and filed with the Division of Administrative Hearings on January 18, 1989, the Petitioner seeks to impose an administrative fine of $100.00 against the Respondent. As grounds therefor, the Petitioner alleges that Respondent violated Rule 10D-55.104(4), Florida Administrative Code in that he falsely represented to Dixie Lee Mims that her home was infested with subterranean termites and powder post beetles and thereby violated Section 482.161(1)(a), Florida Statutes, and further alleges that such misrepresentation is a violation of Section 481.161(1)(e)(c) Florida Statutes.

In support of its charges, Petitioner presented the testimony of Dixie Lee Mims, William Page and James H. Bond. Petitioner's Exhibits A, B, C, D and E were received into evidence. Respondent failed to appear after being furnished a timely notice of the hearing.

Petitioner waived the submission of Proposed Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the final hearing, the following facts are found:

1. At all time material to these proceedings, Respondent DiFalco, was employed by Sears Termite and Pest Control (Sears) of Tallahassee, Florida, a licensee as defined in Section 482.021(12), Florida Statues. Although Respondent was an employee of a licensee, Sears, there was no evidence that Respondent was a "certified operator", or an "identification cardholder" or a "special identification cardholder" as defined by Section 482.021(5)(9), Florida Statutes, and Section 482.151, Florida Statutes, respectively.

   
   

2. On or about May 31, 1988, Respondent, representing Sears and responding to a request by Dixie Lee Mims (Mims), inspected the residential property of Mims and represented to Mims that her home was infested with subterranean termites and powder post beetles and that control treatment was needed.

   
   

3. Subsequently, though Sears, Respondent entered into a contract, number 96232, with Mims for the control of termites at a cost of $875.00 to be paid through Mims' Sears charge account. Respondent advised Mims that the cost for control of the beetles was included in the contract even though such control was omitted in the contract.

   
   

4. Subsequent inspection of the Mims' home by an independent pest control firm and by Petitioner's entomologist revealed no visible signs of present or recent infestation of termites or beetles.

   
   

5. Roger White, Manager, Sears, based on an additional inspection by Sears worked out a settlement with Mims whereby Mims would be given $500 credit on her Sears charge account and retain her contract with Sears.

   
   

   CONCLUSIONS OF LAW

   
   

6. Section 482.091, Florida Statutes, requires that any employee of a licensee, who performs or solicits pest control carry an identification card that is issued by the Respondent upon application by the licensee or certified operator, and present such card on demand to any of those persons enumerated in Section 482.091(1), Florida Statutes. Upon issuance of an identification card the employee becomes an "identification cardholder" as defined in Section 482.021(9), Florida Statutes, and subject to the enforcement of Chapter 482, Florida Statutes, and any rules promulgated pursuant thereto.

   
   

7. Section 482.161(1), Florida Statutes, empowers the Petitioner to fine an "identification cardholder" or to revoke or suspend the identification card of an "identification cardholder" who is found guilty of any one of those acts enumerated in Section 482.161(1)(a), Florida Statutes. However, unless the person sought to be fined or otherwise disciplined is a licensee, certified operator, identification cardholder or a special identifications cardholder, the Petitioner is without jurisdiction in this forum. Therefore, the Petitioner having failed to prove that the Respondent was either a licensee, a certified operator, an identification cardholder, or a special identification cardholder, has no authority to fine or otherwise discipline the Respondent.

RECOMMENDATION

Upon consideration of the fcregong Findings of Fact and Conclusions of Law, the evidence of record and the demeanor of the witnesses, it is, therefore,

RECOMMENDED that Petitioner enter a Final Order dismissing the Administrative Complaint filed herein.

Respectfully submitted and entered this 16th day of May, 1989 in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1989.

COPIES FURNISHED:

Anthony T. DiFalco Route 5, Box 215, #3

Tallahassee, Florida 32301

John L. Pearce, Esquire District 2 Legal Office 2639 North Monroe Street Suite 200-A

Tallahassee, 32303-4082

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 89-000287

Orders for Case No: 89-000287