STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1337

)

GREGORY W. LEA d/b/a ) PROFESSIONAL CHEMICAL APPLICATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on May 28, 1992, in Sanford, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Sonia Nieves Burton

District 7 Legal Office Department of Health and

Rehabilitative Services South Tower, Suite S827

400 West Robinson Street Orlando, Florida 32801

For Respondent: No Appearance

STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint dated January 9, 1992; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on January 9, 1992, when the Department of Health and Rehabilitative Services, Entomology Services (Department) filed an administrative complaint against the Respondent, Gregory W. Lea d/b/a Professional Chemical Application by Greg Lea, and alleged several violations of Chapter 482, Florida Statutes. More specifically, the complaint alleged that Respondent had inspected residential property owned by Mary J. Collins at 907 Magnolia Avenue, Sanford, Florida, and had issued a report of findings that was wholly inaccurate due to the obsolete form utilized and the erroneous findings contained therein.

On February 13, 1992, Respondent requested a formal hearing to contest the allegations. The case was then forwarded to the Division of Administrative Hearings for formal proceedings on February 28, 1992.

At the hearing, the Department presented the testimony of Byron Cole Lemont, field inspector for the Department, an expert in entomology. The Department's exhibits numbered 1 (a composite exhibit containing 27 photographs of the visible damage to the property at 907 Magnolia Avenue), 2 (the wood- destroying organisms inspection report completed by Respondent), and 3 (the report of the investigation completed by Mr. Lemont) were admitted into evidence.

No evidence was presented on behalf of the Respondent. A transcript of the hearing has not been filed and neither party filed a proposed recommended order.

FINDINGS OF FACT

Based upon the testimony of the witness and the documentary evidence received at the hearing, the following findings of fact are made:

1. The Respondent performed an inspection for wood-destroying organisms for property located at 907 Magnolia Avenue, Sanford, Florida (907 Magnolia). That inspection was completed on or about May 23, 1991.

   
   

2. The inspection form utilized by Respondent was valid in 1983 but has not been in use since 1989.

   
   

3. The inspection form reported there were no visible evidences of wood- destroying organisms; that there were no live wood-destroying organisms; that there was no visible damage; and that there was no visible evidence of previous treatment.

   
   

4. The report completed by Respondent for 907 Magnolia was false, incomplete and erroneous.

   
   

5. When 907 Magnolia was inspected by Mr. Lemont on October 3, 1991, numerous evidences of wood-destroying organisms (both live and remnant) were observed. Such organisms or the evidences of their presence would have been present when Respondent inspected the property. Some of the damage observed by Mr. Lemont would have taken months or years to have developed.

   
   

6. Respondent failed to detect and disclose the following information on the inspection he performed: drywood termite damage; wood-decay fungus; subterranean termite and powder post beetle damage.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

8. Section 482.161(1), Florida Statutes, provides, in part: (1)The department may issue a written warning

   to or fine the licensee, certified operator,

   identification cardholder, or special identi- fication cardholder or may suspend, revoke, or stop the issuance or renewal of any certificate,

   special identification card, license, or identi- fication 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 be applicable:

   1. Violation of any rule of the department or any provision of this chapter.

   2. Conviction in any court within this state of a violation of any provision of this chapter or any rule of the department.

   3. Habitual intemperance or addiction to nar- cotics.

   4. Conviction in any court in any state or in any federal court of a felony, unless civil rights have been restored.

   5. Knowingly making false or fraudulent claims; knowingly misrepresenting the effects of ma- terials or methods; or knowingly failing to

      use materials or methods suitable for the pest control undertaken.

   6. Performing pest control in a negligent manner.

   7. Failure to give to the department, or authorized representative thereof, true infor- mation upon request regarding methods and ma- terials used, work performed, or other infor- mation essential to the administration of this measure.

   8. Fraudulent or misleading advertising or advertising in an unauthorized category.

      
      

9. Section 482.226, Florida Statutes, provides, in part:

   
   

   1. When an inspection for wood-destroying orga- nisms 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. A copy of the inspection report shall be retained by the licensee for a period of not less than 3 years.

   2. The inspection report form prescribed pur- suant 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 in- spected and the reason for not inspecting.

   5. Areas of the structure which were inaccessible.

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

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

   
   

   If any pest control treatment is provided at the time of the inspection, the inspection report shall include the name of each of the wood-destroying organisms for which treatment was provided, the name of the pesticide used, and all conditions and terms associated with such treatment. Such report shall not be con- strued to constitute a guarantee of the absence of such organisms or damage or other evidence unless the report specifically states therein the extent of such guarantee.

   
   

10. In this case, the Department has established, by clear and convincing evidence, that the Respondent's inspection failed to accurately state the condition of the property located at 907 Magnolia. Whether the inaccuracies were intended or were through incompetence or negligence is unknown; however, the magnitude of the error, both as to seriousness and number, gives rise to grave concern regarding the Respondent's ability to perform these types of inspections. The Respondent failed to inspect the residential property in accordance with good industry practice and standards, and failed to include a listing for all wood-destroying organisms noted at the site.

    
    

11. It is concluded that Respondent violated Sections 482.161 and 482.226, Florida Statutes, in the performance of the subject inspection. Accordingly, he should be disciplined.

RECOMMENDATION

Based on the foregoing, it is recommended that the Department of Health and Rehabilitative Services enter a final order finding the Respondent guilty of violating Sections 482.161 and 482.226, Florida Statutes, and imposing an administrative fine in the amount of $1500.00.

RECOMMENDED this 6th day of July, 1992, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

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 6th day of July, 1992.

COPIES FURNISHED:

Sonia Nieves Burton District 7 Legal Office Department of Health and Rehabilitative Services South Tower, Suite S827

400 West Robinson Street Orlando, Florida 32801

Gregory W. Lea

252 S. Country Club Drive Lake Mary, Florida 32746

John Slye General Counsel

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Sam Power, Agency Clerk 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: 92-001337

Orders for Case No: 92-001337