STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4851

)

BERNARD KOLKANA, Palm Beach )

Exterminating Service )

)

Respondent. )

) DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

Petitioner, )

)

vs. ) CASE NO. 91-4928

) MICHAEL F. KILBY, Palm Beach )

Exterminating Service, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case on October 9, 1991 in West Palm Beach, Florida before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Karen M. Miller, Esquire

DHRS, District IX

111 Georgia Avenue, 3rd Floor West Palm Beach, Florida 33401

For the Respondent: Patrick C. Massa, Esquire

11891 U.S. Highway 1, Suite 110

North Palm Beach, Florida 33408-2864 STATEMENT OF THE ISSUES

The issue for consideration in these cases is whether each or either Respondent should be disciplined because of thealleged misconduct outlined in the Administrative Complaints filed in these cases by the Petitioner, Department of Health and Rehabilitative Services.

PRELIMINARY MATTERS

On June 17, 1991, Doctor John H. Mulrennan, Jr., Chief of the Department of Rehabilitative Services', (Department), Entomology Services, signed Administrative Complaints against both Respondents which alleged that Respondent Kilby, an employee of Palm Beach Exterminating Services, Inc., working under the direct supervision of Respondent Kolkana, a certified operator in charge, inspected two different residences in the Palm Beach area and thereafter issued wood-destroying organism inspection reports in which he failed to report visible and accessible evidence of subterranean termite infestation in violation of various provisions of Chapter 482, Florida Statutes. Though Respondent Kilby did the actual inspection and issued the report, Respondent Kolkana is alleged to be vicariously liable for failure to properly train and supervise.

By letter dated July 11, 1991, both Respondents dispute the allegations of misconduct in the Administrative Complaint and request formal hearing.

Thereafter, on July 31, 1991, the matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer.

After the parties' responses to the Initial Order, received as late as August 19, 1991, by Notice of Hearing dated October 9, 1991, the matter as regards Mr. Kolkana was set forhearing on August 26, 1991, and by Notice of Hearing dated September 17, 1991, Mr. Kilby's case was set for hearing at the same time. The matters were heard as scheduled.

At the hearing, Petitioner presented the testimony of Joseph E. Parker, an entomologist in its West Palm Beach office and an expert in entomology, and introduced Petitioner's Exhibits 1 through 10. Respondent, Kilby testified in his own behalf and presented the testimony of Susan McKnight, an entomologist, and introduced Respondent's Exhibits A, C, and E. Respondent's Exhibits B, D, and F for Identification were not admitted.

No transcript was provided but both parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

Petitioner did not submit it's Proposed Findings of Fact within the time limitations set by the Hearing Officer at the hearing. However, Counsel did call prior to the due date and secured an extension granted within the discretion of the Hearing Officer. Counsel for Respondent seeks to have the Hearing Officer strike the Petitioner's late submittal on the basis that Petitioner's counsel secured an unfair advantage by being privy to the submittal of Respondent's counsel before submitting her own. The Motion to strike is denied.

FINDINGS OF FACT

1. At all times pertinent to the allegations contained in the Administrative Complaint, the Petitioner, Department, was responsible for the certification and regulation of pest exterminating services in Florida. Respondent, Bernard Kolkana,was a certified operator in charge employed by Palm Beach Exterminating Service, Inc., which is located at 2110 Florida Mango Road in West Palm Beach. The Respondent, Michael F. Kilby, was an employee of Palm Beach Exterminating Services, Inc.

   
   

2. On September 25, 1989, Michael F. Kilby, in his capacity as a representative of Palm Beach Exterminating Service, Inc., and working under the direct supervision of certified operator in charge, Respondent Kolkana performed a termite inspection at the home of Neil S. Mallard located at 3306 Fargo Avenue

   in Lake Worth. At the time of the inspection, Mr. Kilby found no visible evidence of subterranean termite activity or damage and issued a written report stating he had inspected the entire structure and did not observe visible evidence of wood-destroying organisms, live wood-destroying organisms, any visible damage, or visible evidence of previous treatment.

   
   

3. Sometime thereafter, Mr. Mallard, because he was unable to operate a sliding pocket door, removed the siding near the door base and observed what he thought to be infestation. He also observed what appeared to him to be termite damage in a kitchen cabinet. Therefore, he requested a reinspection by Mr. Kilby on October 6, 1990. At that inspection, Mr. Kilby observed extensive termite damage around the sliding glass door which was inoperable as a result of damage to the frame and wall structure; numerous areas of subterranean termite mud shelter tubing around the perimeter of the house; and termite damage throughout the garage door frame. Kilby also noted that Mr. Mallard had removedcertain areas of the house siding, and evidence of a secondary moisture source in that there were water spots in the area above the sliding door. This indicated to him a possible roof leak.

   
   

4. When Mr. Kilby pointed out to Mr. Mallard the numerous areas of termite mud tunnels around the base of the house, he was told by Mallard that they must be new because he, Mallard, had recently had the outside of the house pressure cleaned prior to having it painted and there had been no evidence of tunnels then.

   
   

5. Mr. Kilby did not conduct a complete inspection of the house on October 6, 1990 and he was not advised of any termite problem in the kitchen cabinets. As a result, he did not examine that area. No evidence was presented to contradict Kilby's testimony.

   
   

6. On October 24, 1990, a subterranean termite treatment was performed at this property by Orkin Pest Control. At the time of this treatment, Orkin's representative noted no evidence of visible and accessible live wood-destroying organisms in either the kitchen cabinets, the sliding door frame, or the garage door frame. The treatment area included only the cement slab on the patio and the exterior kitchen wall. Nonetheless, on or about December 17, 1990, Mr. Mallard filed a complaint about the Respondent's September 25, 1989 inspection with the Department.

   
   

7. On March 8, 1991, Mr. Mallard again contacted Orkin Pest Control and reported additional evidence of subterranean termites. Several days later, on March 21, 1991, Orkin's servicemanager examined the Mallard residence, performed a reinspection, and after noticing evidence of live subterranean termites, performed a re-treatment.

   
   

8. On April 2, 1991, pursuant to Mr. Mallard's December 17, 1990 complaint, Joseph Parker, an entomologist inspector and expert in the field, inspected the residence and took photographs of the damage. Mr. Parker's report, issued on May 3, 1991, indicated his opinion that the evidence of live infestation or the visible and accessible evidence of termite damage should have been detected by Mr. Kilby when he performed his September 25, 1989 inspection because of the extensive damage the insects had done throughout the Mallard residence. He indicated that the damage he observed on April 2, 1991 appeared to him to have existed for from three to five years prior to treatment, and his inquiry of the homeowner indicated that no repairs were done to the home between the time of Kilby's inspection in September, 1989 and Parker's inspection on April 2, 1991. Mr. Parker was unaware, when he issued his report on May 3,

   1991 that Orkin had done a re-treatment on March 22, less than two weeks prior to his inspection.

   
   

9. A secondary moisture source, such as that which was observed by Mr. Kilby during his reinspection in October, 1990, can increase the rate of subterranean termite activity and damage. Subterranean termite activity in a home can be hidden for quite a while, and visibility of that activity is changeable and does not necessarily appear at the beginning of termite activity. The mud tunnels can be formed relatively quickly.

   
   

10. While Mr. Parker visited the property and observed the damage himself, Susan McKnight, testifying on behalf of the Respondent's did not. Nonetheless, she is highly qualified in entomology, holding a Master's of Science degree in the field, and has six year's research experience and 10 years experience with the Department as the former holder of Mr. Parker's position. In fact, she spent several weeks training him when he was first hired. Based on her review of the records of the Mallard inspections, she concluded she could not have formed the opinion reached by Mr. Parker because the time between the inspections was too great. Eastern termites eat wood at a rate based on the number of insects, the moisture present, the accessibility to the structure, and other items. Because this is a tropic environment, the rules generally applicable to the determination of time of damage are questionable when the elapsed time is more than one year. She believes any estimate indicating damage existing for over a year is unreliable. The re-treatment done by Orkin normally would not be done unless there was evidence of live termites. Under Department rules, re- treatment of property is permitted if an active infestation is noted; if the certified operator determines that the chemical barrier has been disturbed or rendered ineffective; or if a technician observes an incomplete original treatment.

    
    

11. According to Ms. McKnight, there are many ways an initial treatment might be ineffective, but the most common reason for re-treatment is the presence of moisture which makes it possible for the termites to not have to return to the soil forwater and to remain in the property.

    
    

12. Mr. Parker indicated that in his opinion, evidence of live infestation or visible and accessible evidence of damage was available and should have been detected by Mr. Kilby when he did his September 25, 1989 inspection. Ms. McKnight, on the other hand, indicates that the evidence available was unreliable and she disagrees with Parker's conclusion. Taken together, the evidence is neither clear nor convincing that Kilby missed evidence in the Mallard house he could have and should have seen, or that his inspection was not consistent with good industry practice and standards.

    
    

13. On March 9, 1990, Mr. Kilby also performed a termite inspection at the residence of Aladberto Valcarcal at 15 Lake Arbor Drive in Palm Springs. At this time, Kilby found no visible evidence of subterranean termite activity or damage and issued a report to that effect.

    
    

14. Nine months later, on December 19, 1990, the homeowner filed a complaint with the Department alleging that Kilby and Palm Beach Exterminating Service, Inc. had failed to report evidence of damage at the time of the inspection. This complaint was based on the fact that on December 7, 1990, a representative of Tomasello Pest Control Company performed an inspection of that property and found evidence of subterranean termite damage and activity. As a result of the December 7 complaint, Mr. Parker did an inspection of the Valcarcal residence and on April 24, 1991, subsequent to his report being

    issued, Tomasello did a treatmentfor subterranean termites at that residence. On June 4, 1991, Tomasello performed a re-treatment for termite activity in the

    
    

15. Mr. Parker did not notice, during his December, 1990 inspection, any ongoing termite activity problem in the kitchen cabinet area of the Valcarcal home. Because he saw no evidence,. he assumed there was no termite activity going on there. As the evidence shows, however, the subsequent termite damage noted in June indicates that activity had been going on for a while and must have been present at the time of Parker's inspection at which he found no activity. Again, the evidence of improper performance by Kilby is neither clear nor convincing.

    
    

16. There is no evidence of record to demonstrate that Respondent Kilby was inadequately trained or supervised as a termite inspector for Palm Beach EXterminating Service by Respondent Kolkana.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

    
    

18. Petitioner seeks to take disciplinary action against Mr. Kilby, the inspector employed by Palm Beach Exterminating Service who failed to note any termite damage at either the Mallard or Valcarcal residences in September, 1989 and March, 1990, respectively, and against Mr. Kolkana, the certified operator in charge of the company for allegedly failing to properly train and supervise Mr. Kilby, under the disciplinary provisions outlined inChapter 482, Florida Statutes.

    
    

19. To properly take this action, Petitioner must establish by clear and convincing evidence that the Respondents are guilty of the allegations supporting the disciplinary action, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

20. Under the provisions of Section 482.161, Florida Statutes, the Department may impose an administrative fine of up to $1,000.00 per violation against licensee, certified operator, identification card holder, or special identification card holder for the violation of any of the provisions of Chapter 482.

    
    

21. Section 482.226(1), Florida Statutes, provides that:

    
    

    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, ... the inspection shall be made in accordance with good industry practice and standards and shall include inspection for all wood-destroying organisms.

    
    

22. Under subparagraph 2 of the same section, the inspection report must include, inter alia:

    
    

    1. any visible evidence of previous treatments for or infestations of

       wood-destroying organisms, and

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

       
       

23. The evidence of record indicates that on September 29, 1989, Mr. Kilby did an inspection of the Mallard residence for the purposes of a real estate transaction and thereafter wrote his report in which he indicated no visible evidence of subterranean termite activity or damage, as was required by the statute. Thereafter, infestation was noted by a subsequent inspector and the issue for resolution is whether or not Kilby's failure to note this infestation at the prior inspection constitutes a departure from good industry practice and standards.

    
    

24. The evidence indicates that Mr. Kilby did all that was required of him at the time of the initial inspection, and the Department's evidence does not clearly and convincingly demonstrate any negligence or deviation from good industry standards on his part.

    
    

25. As to Kilby's performance with regard to the Valcarcal inspection, again, the evidence is neither clear nor convincing that Kilby either negligently or incompetently missed the visible signs of termite infestation or damage. Mr. Parker claims here, as in the Mallard matter, that because of the extent of the evidence of infestation apparent when he did his inspections, Kilby reasonably could not have failed to note it when he did his initial inspections. This evidence, upon which Petitioner almost totally relies to support its case, is substantially contradicted by that of Ms. McKnight, whose credentials and credibility are equal at least to those of Mr. Parker. In addition, the evidence also shows that as to the Valcarcal house, even Parker failed to note evidence of infestation in the cabinets in his first inspection of the property. Taken together, the evidence does not carry the Petitioner's burden of proof in either case.

    
    

26. Section 482.152(4), Florida Statutes, provides that:

A certified operator in charge of the pest control activities of a licensee['s] principalduty shall include the responsibility for the personal supervision of and participation in pest control activities at the business location of the licensee as the same relates to ...

* * *

(4) the training of personnel in the proper and acceptable methods of pest control.

Here, there is no evidence whatever, as regards either the Mallard or the Valcarcal inspections, that even if Kilby missed something he should have caught, and, parenthetically, the evidence does not show that he did, his performance in neither case was so below industry standards as to indicate his training and supervision were inadequate. Consequently, it cannot be said that the evidence supports disciplinary action against Respondent Kolkana either.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that the Administrative Complaints filed in these cases against Bernard Kolkana and Michael F. Kilby be dismissed.

RECOMMENDED in Tallahassee, Florida this 14th day of November, 1991.

ARNOLD H. POLLOCK

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 14th day of November, 1991.

APPENDIX TO RECOMMENDED ORDER

The following constitutes my specific rulings pursuant to Section 120,59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR THE PETITIONER;

As to the Mallard property:

1. & 2. Accepted and incorporated herein.

   1. Accepted and incorporated herein.

   2. Accepted and incorporated herein.

   3. - 7. Accepted and incorporated herein.

8. - 11. Accepted and incorporated herein.

12. - 14. Accepted and incorporated herein.

1. & 16. Rejected as not supported by competent evidence of record.

   1. Rejected as not supported by competent evidence of record.

   2. Accepted.

   3. Accepted and, as pertinent, incorporated herein.

   4. Accepted and incorporated herein.

   5. Accepted.

As to the Valcarcal Property:

1. & 2. Accepted and incorporated herein.

   1. Accepted and incorporated herein.

   2. Accepted and incorporated herein.

   3. - 7. Accepted and incorporated herein.

      1. Not supported by competent evidence of record.

      2. & 10. Rejected as not supported by competent evidence or record.

         11. Merely a restatement of testimony.

         
         

         FOR THE PETITIONER:

         As to the Mallard Property:

         
         

         1. & 2. Accepted and incorporated herein. 3a. - f. Accepted and incorporated herein.

4. - 6. Accepted and incorporated herein.

7. & 8. Accepted and incorporated herein.

1. - 11. Accepted.

   1. Accepted.

   2. Accepted.

   3. Not proven.

15.- 17. Accepted and incorporated herein. As to the Valcarcal property:

1. & 2. Accepted and incorporated herein.

   1. Accepted and incorporated herein.

   2. Accepted and incorporated herein.

   3. - 7. Accepted. 8.- 10. Accepted.

      1. Accepted.

      2. & 13. Accepted.

14. Accepted.

COPIES FURNISHED:

Karen M. Miller, Esquire

DHRS District IX Legal Office

111 Georgia Avenue, 3rd Floor West Palm Beach, Florida 33401

Patrick C. Massa, Esquire Suite 110

11891 U. S. Highway One

North Palm Beach, Florida 33408-2864

John Slye General Counsel DHRS

1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Sam Power Agency Clerk DHRS

1323 Winewood Blvd.

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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing

exceptions to this Recommended Order. Any exceptions to this Recommended Order should b e filed with the agency which will issue the Final Order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO.: 91-4851

)

BERNARD KOLKANA, Palm Beach )

Exterminating Service, )

)

Respondent. )

) DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO.: 91-4928

) MICHAEL F. KILBY, Palm Beach )

Exterminating Service, )

)

Respondent. )

)

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of the Recommended Order is attached hereto.

FINDINGS OF FACT

The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except for the Hearing Officer's conclusion of law that Ferris vs. Turlington, 510 So2d 292 (Fla. 1987) requires the department to prove the allegations of the complaint by clear and convincing evidence. Ferris is applicable to revocation of a professional license, not imposition of lesser sanctions. The correct burden of proof here is the preponderance test. American Insurance Association vs. Department of Insurance,

518 So2d 1342 (Fla. 1st DCA 1987), Allen vs. School Board, 571 So2d 568 (Fla. 3rd DCA 1990). Remand would be futile based on the Hearing Officer's conclusion that respondents' expert witness was more credible than petitioner's.

Based upon the foregoing, it is

ADJUDGED, that the administrative complaints are DISMISSED.

DONE and ORDERED this 19th day of December, 1991, in Tallahassee, Florida.

Robert B. Williams Secretary

Department of Health and Rehabilitative Services

by Deputy Secretary for Health

COPIES FURNISHED:

Karen M. Miller, Esquire District 9 Legal Office

111 Georgia Avenue, 3rd Floor West Palm Beach, FL 33401

Patrick C. Massa, Esquire 11891 US Highway 1

Suite 110

N. Palm Beach, FL 33408-2864

Arnold H. Pollock Hearing Officer

DOAH, The DeSoto Building 1230 Apalachee Parkway

Tallahassee, FL 32399-1550

John A. Mulrennan, Jr., Ph.D. Director, Entomology Services Post Office Box 210 Jacksonville, FL 32231

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above named people by U. S. Mail this 24th day of December, 1991.

R. S. Power, Agency Clerk Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700

(904)488-2381

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 91-004851

Orders for Case No: 91-004851