STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7041

)

JAMES M. DODDS, Creative ) Construction Services, Inc., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 6, 1991, at Fort Lauderdale, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances for the parties at the hearing were as follows:

APPEARANCES

The Petitioner, Department of Health and Rehabilitative Resources, was represented by Martha F. Barrera, Esquire, Department of Health and Rehabilitative Services, 201 West Broward Boulevard, Fort Lauderdale, FL 33301. The Respondent, Mr. James M. Dodds, Creative Construction Services, Inc., P. O. Box 38-1996, Miami, Florida 33138, represented himself.

STATEMENT OF THE ISSUE

This is a license discipline case in which the Department of Health and Rehabilitative Services seeks to impose an administrative fine in the amount of

$350.00 on the basis of allegations that the Respondent, failed to report visible and accessible evidence of dry wood termite fecal pellets.

PRELIMINARY STATEMENT

At the hearing, the Department of Health and Rehabilitative Services offered the testimony of two witnesses and also offered seven exhibits, all of which were received in 4) evidence. The Respondent testified on his own behalf and also presented the testimony of one other witness. The Respondent also offered two exhibits, both of which were received in evidence. At the conclusion of the hearing, the parties were allowed 20 days within which to file their proposed recommended orders. The Respondent stated at the conclusion of the hearing that he did not intend to file a proposed recommended order. The Department indicated at the conclusion of the hearing that it did intend to file a proposed recommended order, but as of the date of this Recommended Order the Department has not filed any post- hearing documents.

FINDINGS OF FACT

1. At all times material to this case, the Respondent, James M. Dodds has been licensed to conduct residential termite inspections. On June 12, 1990, he conducted a termite inspection at the residence of a Mrs. Mitchell, located at 7420 W. 15 Court, Hialeah, Florida. During the course of that inspection, Dodds did not inspect the attic of the residence. The reason he did not inspect the attic was because the access to the attic (which was through a crawlspace in the ceiling of a small bedroom closet) was blocked by a large number of boxes stacked in the closet. During the course of the inspection Dodds told the owner of the house that unless she arranged to move all the boxes out of the way, he would have to indicate on his report that the attic was not inspected. The owner did not arrange to get the boxes moved and Dodds did not inspect the attic.

   
   

2. At the conclusion of his inspection of the property described above, Dodds filled out an inspection report form and left a copy of the inspection report with the property owner. Dodds placed some check marks in some preprinted boxes on the back of the inspection report form. Those check marks included one that indicated "attic not available for inspection."

   
   

3. Shortly thereafter, the house was sold to a new owner who, shortly after moving in, discovered what appeared to him to be evidence of possible termite infestation. Subsequent inspections of the premises by another pest control company and by an inspector of the Department of Health and Rehabilitative Services revealed the presence of fecal pellets left behind by dry wood termites. The termite fecal pellets were discovered in the attic near the crawl space opening. There was no other evidence of the presence of termites. No live termites were seen on either of the follow-up inspections.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sec. 120.57(i), Fla. Stat.

   
   

5. In a license discipline proceeding of this nature the Petitioner bears the burden of proving the charge it has alleged. Any failure of proof of an essential element of the violation charged requires that the charge be dismissed.

   
   

6. The Administrative Complaint alleges that the Respondent's conduct in the course of inspecting the subject residence constitutes a violation of the following statutory provisions: Sections 482.161(1)(a), (e), and (f), and 482.226(1) and (2)(f) and (g), Florida Statutes. Section 482.161 contains the Department's general statutory authority to take disciplinary action against licensees and specifically authorizes disciplinary action for the following relevant grounds:

   
   

   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.

7. Section 482.226(1), Florida Statutes describes the circumstances under which inspection reports must be prepared, and Section 482.226(2), Florida Statutes, contains the following pertinent provisions regarding what information must be included in the inspection reports:

   
   

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

   1. The licensee's name.

   2. The date of the inspection.

   3. The address of the structure inspected.

   4. Any visible accessible areas not inspected and the reason for not inspecting.

   5. Areas of the structure which were inaccessible.

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

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

      
      

8. The subject inspection report prepared by the Respondent complies with the requirements of Section 482.226(1) and (2). There is no evidence of violation of any other statutory provision, nor is there evidence of violation of any Department rule. Accordingly, the evidence is insufficient to establish a violation of Section 482.161(1)(a), Florida Statutes. Similarly, there is no evidence that the Respondent knowingly made false or fraudulent claims or that he performed pest control in a negligent manner. Accordingly, the evidence is insufficient to establish a violation of Section 482.161(1)(e) or (f), Florida Statutes.

RECOMMENDATION

For all of the foregoing reasons, it is recommended that the Department of Health and Rehabilitative Services issue a final order in this case dismissing all charges against the Respondent, James M. Dodds.

DONE AND ENTERED at Tallahassee, Leon County, Florida, this 11th day of March, 1991.

MICHAEL M. PARRISH, 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 11th day of March, 1991.

COPIES FURNISHED:

Martha F. Barrera, Esquire,

Department of Health and Rehabilitative Services

201 West Broward Boulevard Fort Lauderdale, FL 33301

Mr. James M. Dodds

Creative Construction Services, Inc. P. O. Box 38-1996,

Miami, Florida 33138

Sam Power, Clerk

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Linda K. Harris

Acting General Counsel

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 dads 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: 90-007041

Orders for Case No: 90-007041