STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3564

)

RICHARD L. GRIMMEL, )

)

Respondent. )

) DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3565

)

BILLY F. KILLINGSWORTH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings, by its duly-designated Hearing Officer, Diane Cleavinger, on October 16, 1990.

APPEARANCES

For Petitioner: John Rodriguez, Esquire

Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700

For Respondent: Richard L. Grimmel, pro se

Billy F. Killingsworth, pro se STATEMENT OF THE ISSUES

The issue in this proceeding is whether Respondents' pest control licenses should be disciplined for alleged violations of Chapter 482, Florida Statutes.

PRELIMINARY STATEMENT

On April 16, 1990, Petitioner, Department of Health and Rehabilitative Services, filed separate Administrative Complaints against Respondents, Richard

1. Grimmel and Billy F. Killingsworth, respectively. The Administrative

   Complaint alleged that Respondents' pest control licenses should be disciplined for violating Chapter 482, Florida Statutes, for falsely reporting the presence of an active infestation of wood borers and powder post beetles to a homeowner and falsely reporting the same infestation on the Wood Destroying Organisms Inspection Report (HRS Form 1145) requested by HRS in its investigation of this incident. The complaints also alleged that the Respondents had failed to post a notice of the inspection within the structure and to properly explain the required posting on HRS Form 1145. Finally, the complaint alleged that the Respondents had reported evidence of subterranean termites and wood-decaying fungus in the wrong place on HRS Form 1145; however, this charge was dropped at the hearing. Respondents disputed the allegations of the Administrative Complaints and requested a formal administrative hearing. The Administrative Complaints and Respondents' requests were forwarded to the Division of Administrative Hearings.

   
   

   At the hearing, the Petitioner presented the testimony of three witness and offered five exhibits into evidence. Respondents, Billy Killingsworth and Richard Grimmel, testified in their own behalf and on behalf of each other.

   Respondents also performed two demonstrations at the hearing.

   
   

   Petitioner and Respondents filed their Proposed Recommended Orders on December 18, 1990 and December 13, 1990, respectively. The parties' proposed findings of fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings on the parties' proposed findings of fact are contained in the appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. Billy F. Killingsworth is a licensed pest control operator in the State of Florida. He has been so licensed since 1967. He holds a degree in entomology and agriculture with minors in toxicology and soils. He is a highly qualified expert in the field of pest control. Mr. Killingsworth is the owner and operator of Killingsworth Pest Control Company, Inc., located in Pensacola, Florida. Killingsworth Pest Control engages in the business of the control and eradication of insects and rodents.

      
      

   2. Mr. Killingsworth and Killingsworth Pest Control employ Respondent, Richard L. Grimmel. Mr. Grimmel is a Pest Control Special Identification cardholder. The cardholder status enables Mr. Grimmel to administer chemicals and other pest control agents and otherwise conduct inspections of property to determine whether a structure is infested with pests. Mr. Grimmel performs his duties under the supervision of Mr. Killingsworth and Killingsworth Pest Control Co., Inc.

      
      

   3. About two years ago, Mr. Killingsworth purchased an Insecta-scope II Detector (Insecta-scope). An Insecta-scope is a device which enables an operator to listen to various types of insects while the insects are inside the wood of a structure. The main use of an Insecta-scope is to detect wood boring pests while they are still in a structure's wood, but before any evidence of the infestation appears on the outside of the wood. Different types of wood boring insects make different noises and, therefore, an Insecta-scope operator can determine what type of insect may be present in the wood. The Insecta-scope is on the forefront of technology in the detection of wood-destroying pests. If the operator is properly trained, the machine does what it is advertised to do, i.e., serve as a listening device for the detection of wood boring insects.

   4. Other than the Insecta-scope, current methods of detection involve a hammer, a flashlight, and a metal probe. Current methods of detection are limited to determining the presence of wood-boring pests after the insects begin to emerge from the wood. With certain types of insects, considerable damage can occur to the wood of a structure before any damage is noticeable on the exterior of the wood.

      
      

   5. Powder post beetles/old house wood borers have a life cycle of 10 to 15 years. In general, these insects lay their eggs in the pores of wood. The insects eventually hatch and begin eating the wood in which they live from the inside out. The insects do not reach adulthood for about 10 to 15 years. Once they reach adulthood, they chew their way to the outside of the wood, forming an exit hole. The hole generally has a sawdust-like material associated with it known as frass. Old exit holes are dark, and fresh exit holes are of a lighter color. Once the adult insects have exited the wood, it is highly probable that they will lay their eggs in the pores of the wood they have exited and reinfest the same wood. If left untreated, the insects would continuously be exiting the wood. If treated, the exiting would stop, however, the eggs inside the wood would not be affected. The infestation would appear when new exit holes begin to form 10 to 15 years later. In the meantime, the immature insects would be dieting on the wood in which they live.

      
      

   6. On February 13, 1989, Mr. Grimmel was called by Scott Mudge to inspect a house located at 3812 West Cervantes Street, Pensacola, Florida. The inspection was required in order to sell the house. The house to be inspected was at least 20 to 25 years old and was located close to the water. The house appeared to have a moisture problem. The conditions in the house were very good for powder post beetles/old house wood borers to infest the house, eating the wooden parts from the inside out. In the attic area of the house there was evidence of an old infestation of powder post beetles/old house wood borers. Reinfestation from the old infestation was highly probable.

      
      

   7. Mr. Grimmel arrived at the house and conducted an inspection of the premises. In the attic, he saw a few fresh exit holes with frass coming out of the holes. When he placed the Insecta-scope on the area of the frass and fresh exit holes, he knocked what little frass there was off of the beam or impacted the frass into the exit holes. Through the Insecta- scope, Mr. Grimmel could hear powder post beetles/old house wood borers inside the beam. Other than the few fresh exit holes and frass Mr. Grimmel saw, there was very little exterior evidence that the infestation was currently exiting the wood.

      
      

   8. The infestation was reported to Mr. Mudge and an inspection report was given to Mr. Mudge. Mr. Grimmel also posted a notice of inspection adjacent to the crawl space of the house. Mr. Mudge requested that Mr. Grimmel give him an estimate for treatment of the infestation. The estimate was around $975.

      
      

   9. Due to the treatment's cost, Mr. Mudge desired to get a second estimate for treatment of the infestation found by Mr. Grimmel. He obtained a second inspection of his house from Fireman's Termite & Pest Control (Fireman's). Fireman's inspector inspected the property either the same day as Mr. Grimmel or the next day. The inspector used the current method of inspecting by looking at the wood with a flashlight and tapping on the wood. Insufficient time had elapsed for new exit holes or frass to have formed; therefore, Fireman's found no evidence of an active infestation of wood borers or power post beetles in the structure. Mr. Mudge then filed a complaint with HRS against Respondents.

   10. Upon Mr. Mudge's complaint, HRS initiated an investigation and requested Mr. Killingsworth to file HRS Form 1145, Wood Destroying Organisms inspection report. The report includes information on evidence of whether an infestation was discovered and whether notice of the inspection was posted. Mr. Killingsworth reported that evidence of a live infestation had been observed, but inadvertently failed to properly fill in the information regarding the posting of the notice. 1/ The form submitted by Mr. Killingsworth indicated that a notice of inspection had been posted "in person", but failed to indicate where the notice had been posted. None of the information on either HRS Form 1145 or the inspection report to Mr. Mudge was false or incorrect. The failure of Mr. Killingsworth to fill in the information about the notice of inspection was at best a miniscule violation of Chapter 482, Florida Statutes, since the notice was actually posted and the notice information was not relevant to the complaint of Mr. Mudge.

       
       

   11. Respondents cooperated in every respect with the Department's investigator. The Department's investigator, using the same techniques as Fireman's, did not find any evidence of an active live infestation i.e. he did not see any fresh exit holes or frass. However, as with Fireman's inspection, the Department's inspection occurred too close to the inspection by Mr. Grimmel for new exit holes or frass to form. 1/

       
       

   12. Later, on June 13, 1990, Mr. Killingsworth along with Mr. Grimmel, re- inspected the property. Mr. Killingsworth viewed the area of the attic where Mr. Grimmel had reported the infestation. He saw a few fresh exit holes and some frass. Mr. Killingsworth had Mr. Grimmel place the Insecta-scope on the wood. They heard and simultaneously recorded wood borers/powder post beetles chewing inside the wood. The tape recording was presented at the hearing. It is very unlikely that the infestation or the evidence of the infestation had substantially changed in the time period from the initial February inspection to the present inspection.

       
       

   13. Based on the above facts, neither Respondent made a false report to Mr. Mudge or the Department. While Respondents' methodology may be in dispute, there was clear evidence on which a reasonable person could rely that Mr. Mudge's house was infested with wood borers/powder post beetles. Neither Respondents relied solely on the sounds from the Insecta-scope to make their determination. The evidence demonstrated that the Respondents' methodology comported with the standard practice in the Pensacola area. Therefore, neither Respondents is guilty of filing a false report.

       
       

       CONCLUSIONS OF LAW

       
       

   14. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.57 and 120.60, Florida Statutes.

       
       

   15. Chapter 482, Florida Statutes, regulates the practice of pest control. Section 482.161, Florida Statutes, provides, in pertinent part, as follows:

       
       

       1. The department may issue a written warning to or fine the licensee, certified operator, identification cardholder, or special identification cardholder or may suspend, revoke, or stop the issuance or renewal or 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 b~ 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.

             3. Failure to give to the department, or authorized representative therefore, true information upon request regarding methods and materials used, work performed, or other information essential to the administration of this measure.

             
             

   16. Rule 10D-55.104(4), Florida Administrative Code, prohibits any licensee or its employees from representing to a property owner or occupant of a structure that any specific pest is infesting such property when an infestation or strongly supporting evidence thereof does not exist. In this case, strongly supporting evidence did exist that Mr. Mudge's house was infested.

       
       

   17. Section 482.226, Florida Statutes reads in pertinent part, as follows:

       
       

       When an inspection for wood-destroying organisms is made for purposes of a real estate transaction, a fee is charged for the inspection or a written report 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 shall include inspection for all wood-destroying organisms. 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. The inspection report shall contain a statement that a notice of the wood-destroying organism inspection has been affixed to the property in accordance with subsection (5) or subsection (6) and shall state the

       location of the notice.

       (5) When a wood-destroying organism inspection is provided in accordance with subsection (1), the licensee shall post notice of such inspection immediately adjacent to the access to the attic or crawl area or other readily accessible area of the

       inspected. This notice shall be at least 3 inches by 5 inches and shall consist of a material that will last at least years.

       
       

       The Record shows that the Respondent, Billy Killingsworth, failed to indicate in his report where such notice had been posted.

       
       

   18. Petitioner has the burden of demonstrating by clear and convincing evidence that Respondents are guilty of violating Chapter 482, Florida Statutes or the rules promulgated pursuant thereto. In this case, Petitioner has failed to make any showing that Respondents made a false or fraudulent report of infestation. The Respondents utilized methods of detection which, in trained hands, are recognized as capable of detecting pest infestations. Respondent Killingsworth's, personnel were adequately trained. Moreover, Respondents did not rely solely on the Insecta-scope's auditory evidence, but on knowledge of old house wood borers/powder post beetle life cycles, the fresh exit holes, and frass Mr. Grimmel saw when he inspected the property and the ripe conditions in the house for reinfestation. 3/

       
       

   19. The allegations involving Respondents' failure to fill in the information on the posting of riot ice of inspection on HRS Form 1145 were established by clear and convincing evidence as to Billy Killingsworth. The evidence disclosed that Mr. Grimmel had supplied the information. Therefore, no violation can be attributed to Mr. Grimmel. Mr. Killingsworth's violation is de minimus in light of the fact that the appropriate notice was actually posted. Therefore, Mr. Killingsworth's violation does not justify imposition of a formal penalty, but only requires an informal letter of guidance.

RECOMMENDATION

That the Department enter a Final Order dismissing the administrative complaint against Respondent, Grimmel, and finding Respondent, Killingsworth, guilty of violating Section 482.161(1)(a), Florida Statutes, and issuing a letter of guidance to Respondent Killingsworth.

DONE and ENTERED this 17th day of January, 1991, in Tallahassee, Florida.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1991.

ENDNOTES

1/ Mr. Grimmel's handwritten rough draft of HRS Form 1145 included the information on the posting of the notice. However, the information did not get transferred to Mr. Killingsworth's formal report.

2/ The Department's investigator attempted to use Respondent's Insecta-scope. However, the attempt failed The failure was most probably due to the Department's investigator's lack of training in the use of the Insecta-scope.

3/ Of concern in this proceeding is the Department's allegations of false reporting in this case. The evidence was clear that Respondents had evidence of an infestation on which they relied. Even a minimum of such evidence removes this case from false reporting or fraud categories. There is a vast difference between negligence, which was not charged and not demonstrated in this case, and fraud or false reporting. Neither, false reporting nor fraud can be demonstrated when evidence of an infestation is obtained by an operator, even if that evidence is obtained with a device that is on the cutting edge of technology as long as that device performs in the manner it is represented to perform. If the Department wishes to limit the type of methods used by an operator, at least it should develop some rules defining such approved equipment and methods. See Breesman v. Department of Professional Regulation, 15 FLW D2249 (Fla. 1st DCA 1990). Rule 10D-55.104(4), Florida Administrative Code, does not solve a pest control licensee's dilemma in determining the Department's definition of strong evidence of an infestation since, as in this case and without some technological aid, there may not be any exterior evidence of an infestation until "the horse has left the barn" and it is discovered there has been an infestation for the last 10 to 15 years. The rule does not exclude the ability of an expert to use his knowledge to determine, at an earlier time, that an infestation is present in the wood of a structure. Finally, Rule 10D- 55.104(4), Florida Administrative Code, may exceed the Departments statutory authority by creating requirements of evidence over and above Section 482.226, Florida Statutes', requirements.

APPENDIX TO CASE NO. 90-3564 and 90-3565

1. The facts contained in paragraphs 2, 3, 9 & 10 of Petitioner's Proposed Findings of Fact are adopted in substance, in sofaras material.

2. The facts contained in paragraphs 1, 4, 6, 7, and 8 of Petitioner's Proposed Findings of Fact are subordinate.

3. The facts contained in paragraph 5 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The evidence only showed that the Insecta-scope results are not accepted by the industry when such results are the sole evidence of an infestation.

4. The facts contained in paragraphs 2, 3, 5, and 6 of Respondents' Proposed Findings of Fact are adopted in substance, in sofaras material.

5. The facts contained in paragraphs 1 and 4 of Respondents' Proposed Findings of Fact are subordinate.

6. The facts contained in paragraph 7 of Respondents' Proposed Findings of Fact are irrelevant.

COPIES FURNISHED:

John Rodriguez, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700

Mr. Richard L. Grimmel Killingsworth Pest Control, Inc. 4141 Pine Forest Road Cantonment, Florida 32533

Mr. Billy F. Killingsworth Killingsworth Pest Control, Inc. 4141 Pine Forest Road Cantonment, Florida 32533

Joyce Beard, CPO

Killingsworth Pest Control, Inc. 4141 Pine Forest Road Cantonment, Florida 32533

Sam Power Clerk

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-003564

Orders for Case No: 90-003564