STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6005

)

ERIC C. VAN DE VEN, ) JOEY COLLINS PEST CONTROL OF ) AMERICA, INC., )

)

Respondent. )

) DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7406

) JOEY COLLINS PEST CONTROL OF ) AMERICA, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled consolidated cases on January 17, 1991, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Karen Miller, Esquire

Department of Health and Rehabilitative Service

111 Georgia Avenue

West Palm Beach, Florida

33401

For Respondent: Eric C. Van De Ven, pro se

Joey Collins Pest Control of America, Inc.

243 N.E. 5th Avenue

Delray Beach, Florida 33483

Joseph A. Collins, III Owner

Joey Collins Pest Control of America, Inc.

243 N.E. 5th Avenue

Delray Beach, Florida 33483 STATEMENT OF THE ISSUE

Whether Respondents committed the offenses set forth in the respective administrative complaints and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

Respondent, Eric C. Van De Ven was, at all times pertinent to these proceedings, an employee of Respondent, Joey Collins Pest Control of America, Inc. (Collins Pest Control). Separate administrative complaints, arising out of the same transaction, were filed by Petitioner against each of these Respondents. Each complaint alleges that Mr. Van De Ven, during the course of his employment with Collins Pest Control, performed a termite inspection on a residence at the request of the prospective purchasers, that Mr. Van De Ven violated multiple provisions of the Florida Pest Control Act, Chapter 484, Florida Statutes by conducting the inspection in a negligent manner, by recommending unnecessary corrective action, and by failing to report visible damage. The separate administrative complaint brought against Collins Pest Control was based on the above-described alleged acts of Mr. Van De Ven and on Collins Pest Control's responsibility as Mr. Van De Ven's employer. The administrative complaint filed in Case 90-6005 advised Mr. Van De Ven that the Department intended to impose an administrative fine in the amount of $300.00 against him. The administrative complaint filed in Case 90-7406 advised Collins Pest Control that the Department intended to impose an administrative fine in the amount of $1,000.00 against it.

The following issues were contested at the formal hearing:

1. Whether the wood-destroying organisms inspection was made in accordance with good industry practice and standards as required by Section 482.226(1), Florida Statutes.

2. Whether the Respondents failed to report visible and accessible evidence of drywood termite damage as required by Section 482.226 (2)(f) and (g), Florida Statutes.

3. Whether Respondents misrepresented the presence of Formosan termite infestation and damage and the need for control treatment in violation of Rule 10D-55.104(4), Florida Administrative Code.

4. Whether Respondents knowingly failed to use inspection methods suitable for the pest control undertaken, or whether the pest control was undertaken in a negligent manner.

Petitioner presented the testimony of one witness, Stuart Alan Samuels, an entomologist employed by Petitioner. Petitioner presented four exhibits, each of which was accepted into evidence. Mr. Van De Ven testified on behalf of the Respondents. Mr. Collins made a statement for the record, but he did not testify.

No transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the hearing. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent hereto, Joey Collins Pest Control of America, Inc. (Collins Pest Control) was subject to the regulatory provisions of Chapter 482, Florida Statutes, and the pertinent rules adopted by Petitioner, as a business entity licensed by Petitioner to engage in pest control in the State of Florida.

   
   

2. At all times pertinent hereto, Eric C. Van De Ven was employed by Collins Pest Control as a pest control operator and was subject to the regulatory provisions of Chapter 482, Florida Statutes, and the pertinent rules adopted by Petitioner.

   
   

3. On May 15, 1990, Mr. Van De Ven performed a termite inspection at the residence located at 8411 S.W. 84th Terrace, Miami, Florida, at the request of

   J. Raul Cosio and Maria F. Trabanco, in connection with their intended purchase of that residence. This work was performed in his capacity as an employee of Collins Pest Control.

   
   

4. Mr. Van De Ven prepared, signed, and caused to be delivered to Mr. Cosio and Ms. Trabanco, a written inspection report pursuant to Section 482.226, Florida Statutes. This report was prepared on behalf of his employer, Collins Pest Control, on Collins Pest Control's letterhead. This report, states that visible evidence of Formosan termites was observed on the main beam above the pool deck, that live Formosan termites were observed on the main beam above the pool deck, and that there was visible evidence of damage by Formosan termites. The report also estimates that treating the premises by "tent and soil poisoning" would cost $1,525.00.

   
   

5. The report did not include observable damage that had been caused by drywood termites. Mr. Van De Ven had observed this damage, but he did not note this damage in his report because the owner of the premises had been aware of the damage, the damaged area had been treated, and the area had been patched.

   
   

6. Mr. Van De Ven recommended to Mr. Cosio and Ms. Trabanco that the owners of the premises should contact Truly Nolen, the company that had treated the premises for drywood termites, to determine whether Truly Nolen would pay for any additional treatment that may be necessary.

   
   

7. Mr. Van De Ven erroneously identified a drywood termite as being a Formosan termite. There were no Formosan termites on the premises, and there was no condition that would have warranted the treatment recommended by Mr. Van De Ven. All damage that had been observed by Mr. Van De Ven had been caused by

   drywood termites. Mr. Van De Ven should have been able to distinguish between evidence of Formosan termites and evidence of drywood termites because of the physical differences between the two types of termites and because of the differences between the damage each type does to an infested area. Mr. Van De Ven was negligent in failing to distinguish between the two types of termites and in recommending the unnecessary treatment.

   
   

8. There was no evidence that Mr. Van De Ven deliberately misled his customers or that he was trying to sell unnecessary services. There was no evidence that Mr. Cosio or Ms. Trabanco suffered any damages as a result of their dealings with Respondents. There was no evidence that either Respondent had been previously disciplined by Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

   
   

10. Chapter 482, Florida Statutes, may be cited as the Florida Pest Control Act. Section 482.011, Florida Statutes. The Department of Health and Rehabilitative Services is authorized to enforce the Pest Control Act and to adopt rules to carry out the intent and purpose of the Act. Sections 482.032 and 482.051, Florida Statutes.

    
    

11. Section 482.226, Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. 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 shall include inspection for all wood destroying organisms. ...

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

       * * *

       1. Any visible evidence of previous treatments for or infestation of

          wood-destroying organisms.

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

12. Rule 10D-55.1046(6), Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    No licensee or its employees shall represent to any owner or occupant that only specific pest is infesting said property, structure ... or that it requires a specific treatment for pest control when an infestation, or strongly supporting evidence of such infestation, does not exist.

    
    

13. Mr. Van De Ven failed to perform the subject inspection report in accordance with good industry standards as required by Section 482.226, Florida Statutes, by misidentifying the drywood termite as being a Formosan termite, by failing to note the observable damage caused by the drywood termite. Further, he violated the provisions of Rule 10D-55.1046(6), Florida Administrative Code, by recommending treatment for Formosan termites where there was no evidence of such infestation. Mr. Van De Ven caused this erroneous inspection report to be issued through his employer, Collins Pest Control, which, as a licensee within the meaning of Section 482.021(12), Florida Statutes, is responsible for the acts of its employee.

    
    

14. 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 ... in accordance with the provisions of chapter 120, upon any one or more of the

       following grounds as the same may be applicable:

       (a) Violation of any rule of the department or any provision of this chapter.

       * * *

       (f) Performing pest control in a negligent manner.

       * * *

       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 $1,000 for the violation of any of the provisions of this measure. ... 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 the licensee or certified operator in charge to correct the violation or remedy complaints; and

          3. Any previous violations of this measure.

15. The recommendations that follow are based on the violations found herein. It is appropriate, in considering the penalty to be imposed, the absence of evidence that Mr. Cosio and Ms. Trabanco suffered damages as a result of the violations, the absence of fraud or other intentional misconduct, and the absence of evidence of previous violations on the part of either Mr. Van De Ven or Collins Pest Control.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which:

1. finds that Respondents Eric C. Van De Ven and Joey Collins Pest Control of America, Inc. have violated the provisions of Section 482.226(1), Florida Statutes, by performing the subject inspection in a negligent manner;

   
   

2. further finds that said Respondents have violated the provisions of Rule 10D-55.1046(6), Florida Administrative Code, by recommending treatment for Formosan termites where there was no evidence of such infestation; and

   
   

3. imposes an administrative fine in the amount of $250 against each Respondent.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of February, 1991.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1991.

APPENDIX TO RECOMMENDED ORDER

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner.

1. The proposed findings of fact in paragraphs 1, 2, and 10 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 3-9 are rejected as being subordinate to the findings made.

The only post-hearing submittal submitted by Respondents was in the form of a letter addressed to the Hearing Officer filed January 28, 1991. This letter contained no proposed findings of fact.

COPIES FURNISHED:

Karen Miller, Esquire Department of Health and

Rehabilitative Services

111 Georgia Avenue Third Floor

West Palm Beach, Florida 33401

Joey Collins Pest Control of America, Inc.

243 N.E. 5th Avenue

Delray Beach, Florida 33483

Joseph A. Collins, III Owner

Joey Collins Pest Control of America, Inc.

243 N.E. 5th Avenue

Delray Beach, Florida 33483

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Linda K. Harris

Acting General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 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: 90-006005

Orders for Case No: 90-006005