Findings Of Fact The Respondent, Philip G. Nicholson, does business as Allstate Termite Control. The Respondent holds a pest control identification card issued by the Office of Entomology of the Department of Health and Rehabilitative Services. On or about September 23, 1977, the Respondent entered into a subterranean termite control contract and service agreement with Roland E. Cooley and Alma P. Cooley with respect to the Cooleys' residence in Lake Worth, Florida. The chemical specified for use on the contract was chlordane. On or about that same date, the Respondent entered into a contract with Roland E. Cooley and Alma P. Cooley to perform a dry wood termite attic prevention treatment on the Cooley's residence. The chemical specified in the dry wood contract was "dri die". Only hearsay testimony was offered to establish what, if any, representations the Respondent made to the Cooleys to induce them to enter into the contracts. The work performed by the Respondent on the Cooleys' residence was not sufficient to provide the protection specified in the contracts, and in the case of the dry wood treatment, was unnecessary. The Cooleys' residence is constructed on a concrete slab. With such structures, the chlordane label, which governs use of the chemical, requires that all voids in hollow masonry units of the foundation be treated at the rate of at least one gallon per five linear feet of wall. It is thus necessary to drill each masonry block so that the chemical can be injected into it. Hollow masonry blocks were used in constructing the foundation of the Cooley house. Only one drill hole was made on the north side of the house into the masonry blocks, and none were made on the south side. If each of the masonry units had been treated as required, drill holes would have been placed at every eighteen inches along the foundation. This was not done, and the treatment for subterranean termite control was thus not in accordance with the label on the chemical, and was substandard. The treatment was inadequate to provide the Cooleys with the protection provided in the subterranean termite control contract. As to the dri die treatment at the Cooley house, the sort of treatment specified would not give the Cooleys any significant termite protection, since it would only protect them from dry wood termites in their attic. It is not a sort of treatment that is ordinarily performed. In order to be performed effectively, however, the dri die must be applied in accordance with the label which gives directions for its use. It is required that all wood surfaces be covered with the chemical at a recommended rate of one pound per one thousand square feet of area. At the Cooley residence, dri die was placed in the area, however, it was placed in a small pile in one part of the attic. It was not evenly spread, all wood surfaces were not covered, and insufficient chemical was utilized. The treatment specified would have provided the Cooleys only with dry wood termite prevention in the one part of the attic where the chemical was piled. The treatment was not in accordance with the label instructions, and was substandard. On or about September 27, 1977, the Respondent entered into a subterranean termite control contract and service agreement with Mr. and Mrs. Walter J. Delaney, for their residence in Lake Worth, Florida. The type of chemical specified for use in the contract was chlordane. The contract sets out the street address and zip code of the Delaneys' residence, but does not state the city. The address set out on the contract is sufficient to establish the location of the Delaneys' residence. Only hearsay evidence was offered at the final hearing to indicate what, if any, representations the Respondent made to the Delaneys in order to induce them to enter into the contract. The work performed by the Respondent on the Delaney home was insufficient to comport with the label instructions for application of chlordane, was substandard, and did not provide the Delaneys with the protection specified in the contract. The Delaneys' home is of concrete slab on-ground construction. The foundation is constructed of hollow masonry units. The voids in the hollow masonry units were not each treated as required on the chlordane label. Only one drill hole was made on the south side of the house and none were made on the north side. Several drill holes were made on the other sides of the house, however, four of them were fake, in other words they did not go all the way through the slab. On or about September 28, 1977, the Respondent entered into a subterranean termite control contract and service agreement with Mrs. Ann Sahlem, for her residence in West Palm Beach, Florida. The chemical specified for use in the contract was chlordane. Only hearsay evidence was offered to establish what representations, if any, were made by the Respondent to induce Mrs. Sahlem to enter into the contract. The work performed by the Respondent on the Sahlem residence did not comport with the label instructions for us of chlordane, was substandard, and was not sufficient to provide Mrs. Sahlem with the protection specified in the contract. The Sahlem residence is constructed on an on-ground concrete slab. The foundation is constructed of hollow masonry units. The voids in each of the hollow masonry units were not filled as required by the chlordane label. No drill holes were made on the west side of the home, and only one was made on the east side. On the north side of the home the holes were too far apart to treat all of the voids. The address set out on the Sahlem contract does not give the city of Mrs. Sahlem's residence although it does give the street address and zip code. The address as given is sufficient to identify the residence. On or about September 30, 1977, the Respondent entered into a subterranean termite control contract and service agreement, and a dry wood termite attic prevention treatment agreement with Mrs. Elizabeth A. Hughes. The chemical specified for use in the subterranean termite control contract was chlordane. The chemical specified in the dry wood termite prevention treatment was "dri die". The contracts were for Mrs. Hughes' residence in Lake Worth, Florida. The contracts do not specify the city of Mrs. Hughes' residence, although the street address and zip code are set out. The address as set out is sufficient to adequately identify the location of Mrs. Hughes' residence. No evidence was offered from which it could be concluded that the Respondent made any misrepresentations to Mrs. Hughes to induce her to enter into the contracts. The work performed under the contracts was, however, not in accordance with the label instructions for chlordane and dri die treatments, was substandard, and was not sufficient to provide the treatment specified in the contracts. Mrs. Hughes' home is constructed on a concrete slab. The foundation is constructed of hollow masonry units. The voids in the masonry units were not each treated as required on the chlordane directions. Furthermore, the drill holes were made three feet above the ground along one wall, and five feet above the ground along another wall, which would be insufficient to allow introduction of the chemicals below the concrete slab. The dri die was not distributed evenly over the attic wood surfaces as required on the dri die label. An insufficient amount of the chemical was utilized, and it was placed at one spot in the attic. The dri die treatment was unnecessary, and even if it had been advisable, it was not accomplished in a manner which would provide any useful protection to Mrs. Hughes. On or about October 27, 1977, the Respondent entered into a subterranean termite control contract and service agreement with Mrs.. Fred J. Schultz. The contract was for Mrs. Schultz's residence in Lake Worth, Florida. No direct evidence was offered to establish what, if any, representations were made by the Respondent to induce Mrs. Schultz to enter into the contract. It appears that the contract was solicited and performed by employees of the Respondent, and not by him directly, although he signed the contract and was responsible for the work. The chemical specified for use in the contract is Gold Crest, 72%, which is a trade name for chlordane. The work performed by the Respondent did not comport with the label instructions for use of chlordane, was substandard, and was not sufficient to provide the protection specified in the contract. The Sdchultz's home is constructed on piers with a crawl space. The instructions for application of chlordane contained in the label provide that in treating such structures it is necessary to either rod or dig a narrow trench to the top of the footing along the inside of the foundation walls, around all piers, sewers, pipes, and conduits; and to rod or dig a narrow trench to the top of the footing along the outside of the foundation wall. The Respondent, or his employees who performed the work at the Schultz residence did not make any trenches whatever, and did not even enter the crawl space below the Schultz's home in order to treat the piers. No evidence was presented from which it could be determined that the Respondent performed any dry wood termite treatment on the Schultz's residence. No evidence was presented from which it could be determined that any such work that may have been performed was done improperly, or that it was accomplished with or without a contract. On or about October 21, 1977, the Respondent entered into a subterranean termite control contract and service agreement with Mrs. Hulda Radke. The contract related to Mrs. Radke's residence in West Palm Beach, Florida. The chemical specified for use in the contract was chlordane. The Respondent also entered into contracts to perform home repairs for Mrs. Radke. No evidence was offered from which it could be concluded that the Respondent made any misrepresentations in order to induce Mrs. Radke to enter into the contract for termite control. The termite control work performed by the Respondent on Mrs. Radke's residence did not comport with the label instructions for use of chlordane, was substandard, and was not sufficient to provide the protection specified in the contract. Mrs. Radke's home was of pier constructions with a crawl space. No trenches were made, and the chemical was not trenched or rodded around each pier, and around each foundation wall. The chemical was broadcast along the top of the soil, but was not placed below the surface. The label instructions specify that a chemical should not be broadcast sprayed. On or about October 26, 1977 the Respondent entered into a subterranean termite control contract and service agreement with Mrs. Charles Thompson, for her residence in West Palm Beach, Florida. The chemical specified for use in the contract was chlordane. No direct evidence was offered to establish what, if any, representations were made by the Respondent to induce Mrs. Thompson to enter into the contract. The work performed by the Respondent on the Thompson residence did not comport with the label instructions for use of chlordane, was substandard, and was insufficient to provide the protection specified in the contract. The Thompson residence is of pier and crawl space construction. No trenches or rodding was done as specified on the chlordane label, and each pier was not treated. The address set out on the Thompson contract is insufficient. It gives only a street address, and no city or zip code. The Respondent testified that he used a process known as "long rodding" to treat under concrete slabs. Long rodding is a method whereby the end of a spray assembly is extended, and chemicals introduced under a slab. It is used typically where hollow masonry is not used in constructing the foundation. The process does not work well because the end of the rod cannot be adequately controlled. Even if this process were utilized, the chlordane label would required that all voids in hollow masonry units be treated. Failure to treat each of the voids would render the treatment substandard. It appears that since these incidents occurred, the Respondent has performed numerous termite control contracts in Hillsborough and Pinellas counties without complaint.
Findings Of Fact SJRWMD caused "Request for Qualifications No. 91H157" to be published in the Jacksonville Business Journal on May 3 through 9, 1991. In part, the request stated: Interested firms shall submit a letter of interest (three (3) copies) which contains, but is not limited to, the following: Experience in assessing the environmental fate of pollutants. Familiarity with current and historical agricultural practices employed by vegetable farms in Florida. In particular, knowledge of the storage and application of pesticides and herbicides is required. Ability to perform environmental chemistry and to assess the toxicological, chemical, and physical properties of hazardous materials. Ability to evaluate and/or develop site monitoring plans, industrial hygiene plans, site safety plans, decontamination plans, remediation plans, and abatement measures. Experience in performing environmental audits at potential hazardous waste sites. Staff must have the OSHA required 40 hours Hazardous Waste Site Safety Training pursuant to 29 CFE 1910.120. Documentation of experience in sampling of surface water, ground water, soil, sediment, including installation of temporary and permanent wells and split-spoon borings while following current state and federal approved procedures, and must be capable of preparing and implementing a quality assurance project plan specific to each site assessment. At least $5,000,000 of professional liability insurance. Evaluation of submitted letters of interest will be pursuant to Section 287.055, Florida Statutes. Contracts shall be negotiated pursuant to provisions of Section 287.055, Florida Statutes. Petitioner's Exhibit No. 1. Halff, Jammal and Geraghty & Miller, Inc. (G & M) among others, responded to the request for qualifications with letters of interest. SJRWMD staff evaluated the letters of interest and ranked the respondents in order: Halff was first; Jammal was second; and G & M was third. Staff recommended beginning negotiations with Halff. After tabling the matter at the first Board meeting at which it came up, the Board discussed the staff recommendation on August 14, 1991, and, it seemed from a tape recording of the meeting in evidence, was unfavorably impressed with the fact that Halff had only one full-time employee in Florida, Robert Barnard. (Three other people are in petitioner's Jacksonville office on "a sub-contract basis." T.50.) Mr. Barnard, who would have had charge of the work for SJRWMD if Halff had been chosen, spoke at the Board meeting. He came up to the podium and answered questions, but did not make a formal presentation. No other contender was represented at the Board meeting. As far as the evidence shows, each Board member had read all letters of intent carefully: The record is silent on the point. The Board voted to rerank Jammal and Halff first and second, respectively, and directed staff to begin negotiations with Jammal.
Recommendation It is, accordingly, recommended that SJRWMD proceed with negotiations with Jammal, Halff and G & M in that order. RECOMMENDED this 4th day of March, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II 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 4th day of March, 1992. COPIES FURNISHED: William Lon Allworth, Esquire 1301 Gulf Life Drive, Suite 200 Jacksonville, FL 32207 John W. Williams, Esquire P.O. Box 1429 Palatka, FL 32178-1429 Wayne Flowers, Executive Director St. Johns River Water Management District P.O. Box 1429 Palatka, FL 32178-1429 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue posed herein is whether or not the Department of Health and Rehabilitative Services' revocation of Respondent's pest control business license, operator's certificate and employee's identification is warranted based on conduct set forth hereinafter in detail as set forth in the Petitioner's revocation notice dated June 4, 1979. 1/
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the arguments and briefs of counsel and the entire record compiled herein, the following relevant facts are found. Pursuant to Petitioner's Notice of Violation dated June 4, 1979, the administrative proceeding herein commenced on December 6, 1979, on twenty-six of the thirty-nine specific violations alleged to have been committed by Respondent. The specific alleged violations are as set forth below based on a separation by complainant or victim with the alleged date of violation: On February 28, 1977, it is alleged that Respondent and/or its agents, performed pest control services for Ms. Ethel Atkinson and Ms. Loree Atkinson, 1903 East Leonard Street, Pensacola, Florida, and violated the following Administrative Code sections and/or statutes: Treated the Atkinsons' residence with fumigant gas, methyl bromide, without notifying in advance, the Escambia County Health Department, in violation of Chapter 10D-55.110(1), Florida Administrative Code. Failed to perform the fumigation of the Atkinson residence in strict accordance with the registered label directions for methyl bromide, in violation of Chapter 10D-55.111(4), Florida Administrative Code. On March 17, 1977, Respondent failed to perform subterranean termite control treat- ment for the Atkinsons, in violation of Chapter 10D-55.142(1)(b), Florida Administra- tive Code. During July, 1978, Respondent's agents and/or employees, Steven R. Foster and Gerald A. Caudill, inspected the Atkinson residence and told them that the home was infested with powder-post beetles and proposed a treatment when no such infestation existed, and thus no treatment was required, which acts constitute violations of Chapter 10D-55.104(4), Florida Administrative Code. Respondent, during times material, failed to apply for and obtain an I.D. card for Steven R. Foster, in violation of Chapter 10D-55.143(1), (2) and (3), Florida Adminis- trative Code. Respondent performed Phostoxin fumi- gation on residences when Phostoxin is not labeled or registered for residential fumi- gation, in violation of Chapters 10D-55.106(1); 10D-55.111(4) and 10D-55.144(1), Florida Administrative Code. Respondent and/or its agents, during times material but particularly during July, 1978, illegally used Phostoxin for fumigation purposes in a residential structure, in vio- lation of Chapter 10D-55.116(2), Florida Administrative Code. During July, 1978, Respondent per- formed Phostoxin fumigation without notifying the Escambia County Health Department, in violation of Chapter 10D-55.110(1), Florida Administrative Code. During July, 1978, Respondent performed Phostoxin fumigation without the knowledge and personal supervision of its certified registered operator in charge of fumigation for Killingsworth, Inc., Elmer Logan, in violation of Chapter 10D-55.108(1) and (2), Florida Administrative Code. Shumpert/Graham Case On April 22, 1977, Respondent performed services for Robert Shumpert and/or R. A. Graham of 109 Harris Street, Pensacola, Florida, by fumigation of their residence at 109 Harris Street, without informing the Escambia County Health Depart- ment, in violation of Chapter 10D-55.110(1), Florida Administrative Code. On or about April 22, 1977, Respondent fumigated the Shumpert/Graham residence with "Vikane" gas in a manner not in accordance with the label instructions, nor were occupants of the residence properly warned of the hazards, in violation of Chapters 10D-55.106(1); 10D-55.110(3); 10D-55.111(4) and 10D-55.144(1), Florida Adminis- trative Code. On or about April 22, 1977, Respondent used Phostoxin for residential fumigation for the Graham/Shumpert residence, in violation of Chapters 10D-55.106(1); 10D-55.111(4) and 10D-55.144(1), Florida Administrative Code. On or about April 22, 1977, Respondent fumigated the Graham/Shumpert Residence with Phostoxin without informing the occupants of the hazards, in violation of Chapter 10D-55.110(3), Florida Administrative Code. During approximately April 22, 1977, Respondent performed a fumigation with Phostoxin without advance notification to the Escambia County Health Department, in violation of Chapter 10D-55.110(1), Florida Administrative Code. During April 22, 1977, Respondent performed a Phostoxin fumigation without the knowledge and personal supervision of its certified operator in charge of fumigation, Elmer Logan, in violation of Chapter10D-55.108(1) and (2), Florida Administrative Code. During May 22, 1978, Respondent per- formed pest control services for Mrs. Ann Boyett of 706 North Lynch Street, Pensacola, Florida, and during the course of such treatment, through its agent and employee, Steven R. `Foster, placed Phostoxin pellets under the Boyett residence for control of powder-post beetles, in violation of Chapter 10D-55.108(1) and (2), Florida Administrative Code. Respondent used Phostoxin in resi- dential fumigation in violation of Chapter 10D-55.106(1); 10D-55.111(4) and 10D-55.144(1), Florida Administrative Code. Respondent, during May 23, 1978, released Phosphine gas during use of Phostoxin. which is highly inflammable and its use in resi- dential structures is illegal pursuant to Chapter 10D-55.116(2), Florida Administrative Code. During May 23, 1978, Respondent performed a fumigation with Phostoxin without informing the Escambia County Health Department, in violation of Chapter 10D-55.110(1), Florida Administrative Code. Respondent, during May 23, 1978, per- formed a fumigation with Phostoxin without informing the homeowner of the hazards, in violation of Chapter 10D-55.110(3), Florida Administrative Code. Respondent, during May 23, 1978, failed to apply for and obtain an employee I.D. card for Steven R. Foster, in violation of Section 482.091(1), (2) and (4), Florida Statutes, and Chapter 10D-55.143(1),(2) and (3), Florida Administrative Code. Based on the foregoing activities, it is alleged that Respondent violated his duties as a certified operator in charge of the pest control activities of a licensee, in violation of Section 482.152(1), (2),, (4), and (5), Florida Statutes. During July 12, 1978, Respondent performed pest control work for John A. Sanders, Jr. , at his residences located at 912, 914 and 916 North 63rd Avenue, Pensacola, Florida. During the course of this treatment it is alleged that Respondent failed to per- form the work in accordance with the label directions of any registered termiticide or by the use of methods and equipment generally suitable and accepted as good industry practice, in violation of Chapters 10D-55.106(1); 10D-55.135(2) and 10D-55.144(1), Florida Adminis- trative Code. Based on the conduct set forth in the paragraph next above, it is alleged that the Respondent violated the duties of a certified operator in charge of pest control activities of a licensee, in violation of Section 482.152(1), (4), and (5), Florida Statutes. The Hinote Case During December 21, 1978, it is alleged that Respondent's agent Wayne Thompson, repre- sented to Ms. Lee Hinote of 1405 East Gonzales Street, Pensacola, Florida, that wood borers were infesting her residence and that treatment was needed, when no such infestation existed and no treatment was required, in violation of Chapter 10D-55.104(4), Florida Administrative Code. Based on the alleged conduct set forth in the paragraph next above, it is alleged that the Respondent engaged in conduct violative of Section 482.152(1), (2), (4), and (5), Florida Statutes. William E. Grimsley, Supervisor, Environmental Health Unit of the Escambia County Health Department, is the person in charge of inspecting and ensuring that within the county no violations of Chapter 10D-55.110(1), Florida Administrative Code, occur. All pest control companies operating in the county, including Respondent, are required to notify the County Health Department when a fumigation is to take place and the approximate time that the "gas" will be released. Fumigation notices are required to be submitted to the Health Department twenty-four hours in advance of the fumigation. Thee Health Department inspects the premises to be certain that the tent is properly sealed, that there is first aid equipment readily available and to generally ensure that the operator is qualified to perform the fumigation Mr. Grimsley recalled having received no fumigation notices from Respondent. Specifically, Mr. Grimsley testified that his office, the County Health Department, received no fumigation notice from Respondent for the Atkinson residence during April of 1977, for the Sumpert residence during times material, or for Ann Boyett's residence during the period of May, 1978. During May of 1978, Mr. Grimsley, through the Escambia County Health Department, received a complaint from the Atkinsons regarding the pest control services performed by Respondent. Mr. Grimsley referred Ms. Atkinson to Mr. William E. Page, Petitioner's agent in the Office of Entomology, Department of Health and Rehabilitative Services. During October of 1978, Mr. William Page and Mr. William Grimsley removed a sample of a white powdery substance found in the Atkinsons' attic. The sample was analyzed by Chris Bush, a chemist employed by Petitioner, who determined that the substance was a residue of Phostoxin. (Petitioner's Exhibits 32 and 40.) The Atkinson residence was treated by Respondent during, April of 1977. As stated, the Atkinsons complained to the Health Department during May of 1978, approximately fifteen months after the treatment. Samples of a white powdery residue found in the attic were analyzed by Petitioner's chemist during. October, 1978, and were determined to be a Phostoxin residue. Respondent and its agents and employees denied treating the Atkinson residence with anything other than Lindane and Methyl Bromide. During late 1978, Messrs. Grimsley and Page visited the residence of Mrs. Ann Boyett of 704 North Lynch Street, Pensacola, Florida. Mr. Page removed two prepac Phostoxin strips from underneath the Boyett residence. Steven Roy Foster (Moneyhun) also known as Steven Roy Foster was employed by Respondent from March of 1978 through July of 1978. Foster was hired by Respondent to perform mechanical work, although he assisted in tapings for fumigations and assisted Respondent's pest control operators. Foster placed two prepac Phostoxin strips under the Boyett residence. Foster was assigned to do the work by Respondent's agent, Frank Ancarrow, and was paid by the Boyetts for the work. (Petitioner's Exhibit 13.) Respondent and its agents, Frank Ancarrow and former employee, Elmer Logan, denied any knowledge, authorization or other assistance in the use of the treatment of residential structures with Phostoxin. Phostoxin is not authorized for the use in residential construction according to its label use restrictions. (Petitioner's Exhibit 12.) Respondent treated the Graham-Shumpert residence at 109 Harris Street, Pensacola, Florida, for subterranean termites and old house wood borers during late April, 1977. The old house wood borers were located in the attic and, according to Respondent, were treated by him using a "spot" fumigation treatment of Methyl Bromide. 3/ Approximately two years later, Mr. Shumpert detected traces of termites again swarming in the kitchen of his home and called Frank Roberts of Roberts Pest Control Company to check on the termites. Mr. Roberts inspected the Shumpert residence and noted what he found in the attic, a residue of suspected Phostoxin. Mr. Roberts engaged the services of a private laboratory in Pensacola, Florida, to analyze the residue of the substance he found in the Shumpert residence. The sample was analyzed and, according to the lab analysis, the residue of the sample was Phostoxin. Gail Thompson, a former employee of the Respondent, testified that he treated the Shumpert residence for termites and that he assisted in taping the house in preparation for the fumigation which was performed by Respondent Billy F. Killingsworth. Respondent testified that he treated the Shumpert house by a "spot" fumigation using Methyl Bromide as a localized treatment to eradicate the infestation which was concentrated on a few joists. Respondent's testimony to the effect that the infestation was localized to a few joists conflicts with the testimony of witnesses William Page, Carlton Layne and John Boitnott, who testified that the damage and infestation was severe and widespread. Based on the extended hiatus between the treatment by Respondent and the inspections by Messrs, Page, Layne and Boitnott, it cannot be concluded that the condition of the premises as found by Respondent, continued unchanged until the subsequent and, of course, more recent visit by the investigating officials. (Petitioner's Exhibit 3.) When the Shumpert residence was treated, it was under contract to be sold by Mims-Snow Realty of Pensacola, Florida. Prior to sale, it was necessary to receive an FHA wood infestation report which admittedly, as testified to by Respondent's secretary and assistant, Joyce Beard, was filed incorrectly using information from another wood infestation report for another property. (Petitioner's Exhibits 6 and 9.) According to that report, Vikane gas was used as a fumigant, which, if used according to the petitioner's licensing administrator, Warren T. Frazier, was not applied in accordance with the label instructions of that fumigant. 4/ On or about July 12, 1978, Mr. John A. Sanders entered into a contract with Respondent for pest control treatment of three houses that he owned on North 63rd Avenue, Pensacola, Florida. (Petitioner's Exhibits 17, 15 and 19.) Respondent contracted to control household pests, fleas, etc. in the Sanders' residences for a total price of $520.00. According to 14r. Sanders, the treatment period lasted approximately twenty minutes and no trenches were dug, no drilling took place and there was no treatment for powder-post beetles contrary to his payment and contract for these services. Mr. Sanders filed a complaint with local and state officials and executed a complaint form. (Petitioner's Exhibits 20 and 21.) Respondent's former employee, Steven Foster, was assigned the task of treating the Sanders' residences. Foster acknowledged that he inadequately and incompletely treated the Sanders' residences for termites and powder-post beetles. Testimony of Warren Frazier, John Sanders and William Page corroborate Foster's testimony to the effect that the treatment was substandard and was not in accordance with the label directions of any registered termiticide. Additionally, the treatment fell below what is generally accepted as good industry Practice. Respondent testified that the Sanders' residences were treated by Carl Heichel. Heichel was unavailable and did not testify in this proceeding. Opal Lee Hinote of 1405 East Gonzalez Street contacted Respondent during December, 1978, for an annual renewal inspection of her residence. Respondent's agent, Wayne Thompson, performed the annual inspection. (Petitioner's Exhibit 27.) Additionally, Respondent's agent, Thompson, represented to Ms. Hinote that old house wood borers were affecting her residence and that treatment was needed. Thompson discussed a treatment price of $175.00, which was reduced, after some negotiation, to $125.00. Ms. Hinote, being suspicious, called Elmer Logan, Respondent's former employee who presently operates Fireman Pest Control, to inspect her premises. Mr. Logan advised Ms. Hinote that there were no wood borers in her house but merely old traces of wood borer activity. Ms. Hinote, still concerned, contacted Petitioner's agent, William Page, who inspected the house and confirmed Logan's report that there was no present wood horer activity to her residence. (Petitioner's Exhibits 28, 29 and 30.) Respondent's position on Ms. Hinote's complaint is that it is difficult to discern whether or not there is active or inactive wood borer activity and that Thompson, being a sales representative only for a short time when he made the inspection, was unable to discern whether or not the activity signs were evidences from old damage by powder-post beetles and wood borers. 5/ Mr. F. R. Du Chanois is Petitioner's supervisor for pest control records and has in excess of twenty-six years experience as an Entomologist. Mr. Du Chanois, who is Petitioner's records custodian, also receives and assigns complaints for investigation. Based on the complaints received about Respondent, Mr. Du Chanois directed an Inquiry to the manufacturer respecting the application of Phostoxin for residential application. Mr. Du Chanois determined and received confirmation that there are presently no registered uses for residential application for Phostoxin fumigations to control wood destroying insects. (Petitioner's Exhibit 42.) According to Du Chanois, the responsibility for obtaining an I.D. card is jointly placed on the operator and the employee. See Section 482.091(1) and (2), Florida Statutes. Billy F. Killingsworth, the certified operator and owner of Killingsworth pest control business, has been in business for approximately eleven years in Escambia County. Respondent has a B.S. degree in Entomology from Auburn University and is certified in all areas of pest control, i.e,. general household pest and rodent control, subterranean termites, lawn and ornamental, and fumigation. According to Respondent, it is very difficult to determine whether powder-post beetles are in an active or inactive status. Respondent uses Lindane as a residual treatment for the eradication of beetles and Methyl Bromide as a fumigant to control beetles, dry wood termites and rodent control. Respondent only uses Phostoxin as a commodity fumigant since it is only labeled for such uses and since it is one-half to two-thirds more expensive than other registered fumigants. Respondent, Billy F. Killingsworth, is the only certified operator within his employ in Escambia County who is registered to use Phostoxin. (Testimony of Billy F. Killingsworth.) According to the worksheets, Tommy Phelps was the card holder assigned to perform the work for the Atkinson job. Respondent performed the fumigation, using oil based Lindane in the attic. Respondent acknowledged that he erroneously issued a termite contract for the Atkinsons. Respondent considers a "spot" fumigation as being superior to a complete or tent fumigation, in that it permits a larger concentration of gas to be infused to the exposed area and is least expensive. Respondent has performed less than ten structural fumigations since he has been in business. (Respondent's Exhibits 4, 5 and 6.) Respondent employed Steven Roy Foster (Moneyhun) to help in repairing hydraulic pumps, refrigeration equipment and to do mechanical and other minor maintenance tasks based on his (Foster's) prior experience. Respondent denied that Foster was assigned to assist or perform fumigations within the short period that Foster was employed by Respondent. Respondent acknowledged that the FHA Wood Infestation Report given to Ms. Graham of Mims-Snow Realty was erroneously issued based on the realtor's rush to sell the property. (Respondent's Exhibit 8.) Respondent performed the fumigation for the Shumpert residence and placed a warning sign on the front and back doors of the house. At the time of the fumigation, the house was unoccupied. Respondent used Methyl Bromide to fumigate the Shumpert residence and had no explanation as to the presence of Phostoxin in the attic of the Shumpert residence. Respondent assigned Carl Heichel to do the termite and beetle treatment for the Boyett residence. (Respondent's Exhibit 9.) Lindane and Heptachloride were used for the treatment. Heichel left Respondent's employ approximately October of 1978. According to Respondent, Heichel was also assigned to perform the work for the Sanders' houses on 63rd Avenue. (Respondent's Exhibit 10.) Respondent testified that he attempted to correct the problems in connection with the Sanders residence but was unable to arrange a mutually convenient schedule to resolve the matter. Wayne Thompson was assigned to perform the pest control treatment for the Hinote residence. Thompson had only been employed approximately six months when he was assigned to inspect the Hinote residence. Respondent noted that it was a mistake not to apply for an I.D. card for Steven R. Foster. He acknowledged that there was no reason not to apply for an I.D. card for Foster; however, the fact that Foster was hired to do mechanical work delayed his decision to apply for or to obtain an I.D. card for Foster. Respondent treated the Shumpert residence using Methyl Bromide which was registered and labeled "Dowfume MC-2". 6/ Respondent acknowledged that it is unlawful to use a registered pesticide in a way which is inconsistent with the label. He also acknowledged that certified operators are charged with the duty of using fumigants in accordance with the registered labels consonant with the structure to be fumigated. (Testimony of Billy F. Killingsworth.) Several of Respondent's former employees who were employed during times material herein testified that they were unaware of any illegal uses of Phostoxin by Respondent and/or its employees. These employees included J. D. White, Sr., of Sterling, Illinois; Gerald Caudill of Evansville, Indiana; Frank Ancarrow; Elmer Logan and Gail Thompson. J. D. White, Sr. , of Sterling, Illinois, was formerly employed by Respondent from June, 1973, through the end of 1974. Mr. White worked for Frank Roberts, a competitor of Respondent during the period July, 1976, through August of 1977. Mr. White was party to conversations between Frank Roberts to the effect that he was; "out to get" Respondent and was privy to conversations with Mr. Roberts to the effect that Roberts had communicated with various Federal regulatory and state agencies to register complaints about Respondent and other competitors in the area. White testified that he was offered money to spray the yards of customers who were on annual contract with Respondent using the wrong chemicals to destroy the grass. Gerald Caudill presently is employed by Economy Pest Control of Evansville, Indiana. He was formerly employed by Respondent from approximately March, 1978, through approximately April of 1979. Caudill did a localized treatment for powder-post beetles for the Atkinson residence on Leonard Street in Pensacola, Florida. Caudill was shown by the Atkinsons, signs of what he viewed to be an active infestation in the attic of the Atkinson residence and advised them that they needed treatment in their attic. Frank Ancarrow, Respondent's sales manager, has been employed in that capacity for approximately four years and has approximately eight years' experience with another pest control company. Mr. Ancarrow is certified in all categories except fumigation. Messrs, Ancarrow and Thompson prepared the Shumpert residence for fumigation. The Shumpert residence was treated by Gail Thompson for subterranean termites and the Respondent fumigated the attic for old house wood borers. Frank Ancarrow was shown the statement given in an affidavit taken by Carlton Layne of the Environmental Protection Agency (EPA) to the effect that Gail Thompson was in charge of the fumigation of the Shumpert residence. Mr. Ancarrow testified that that was a mistake and that Thompson only prepared the house for fumigation. (Petitioner's Exhibits 5 and 26.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, Recommended: That the Respondent's Pest Control Operator's Certificate Number 1306; Respondent's Pest Control Employee Identification Card Numbers 5832 and 5843 and Respondent's Pest Control Business License Number 78 be SUSPENDED for a period of two (2) years. In all other respects, the June 10, 1980 Recommended Order previously entered herein remains unchanged. RECOMMENDED this 7th day of July, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jon W. Searcy, Vsquire Department of IIIS 160 Governmenta] Center Pensacola, Florida 32522 Larry Parks, Esquire Murphy, Beroset and Parks 216 Government Street Pensacola, Florida 32501 Alvin J. Taylor, Secretary Department of IRS 1323 Winewood Boulevard Tallahassee, Florida 32301 ================================================================= STIPULATION TO CONSENT FINAL ORDER =================================================================
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.
Findings Of Fact 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. 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." 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.
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
The Issue The issue in this case is whether Suncoast Concrete, Inc. (Suncoast), is entitled to Permit No. 194919-003-SO, to construct and operate a construction and demolition debris disposal facility (C & D facility) in Santa Rosa County, Florida.
Findings Of Fact Petitioners Lois and Wallis Mahute live within two miles of the proposed C & D facility. Petitioner Nathaniel Williams, Jr., resides less than one mile from the proposed facility. Suncoast is a Florida corporation and is the applicant for Permit No. 194919-003-SO. The site of the proposed C & D facility is already permitted by the Department as a disposal facility for land clearing debris. It is located on U. S. Highway 90, 1.9 miles east of State Road 87. The disposal area is 7.2 acres on a parcel of land that is 57.8 acres. Suncoast provided all of the information required by the Department for applications for C & D facilities, including geotechnical data, hydrologic data, and financial assurance for closure. The proposed permit includes numerous conditions, including the use of an impermeable liner, groundwater monitoring, stormwater controls, leachate collection and storage, and access control. The requirement for an impermeable liner is uncommon for C & D facilities and adds greater protection for groundwater. Issues Raised by Petitioners Petitioners expressed concern about groundwater contamination. The required liner is designed to prevent rainwater that might become contaminated after contact with the materials in the landfill from entering the groundwater. The proposed facility would be located over some existing land clearing debris. The existing debris is located on part of one side of the proposed landfill. Before the liner is installed, the base would be prepared by covering the area with six inches of compacted soil. After the liner is installed, two feet of clean soil is placed on top of the liner. The liner would be installed in a manner to prevent the liner from being punctured or torn. Groundwater monitoring is required so that any contamination that occurs will be detected and remediated. There are no potable water wells within 500 feet of the proposed facility. The nearest public water supply well is approximately 4,000 feet away. Petitioners presented the testimony of Kyle Holley, who expressed his views on hydrogeologic conditions in the area. Mr. Holley is not a geologist or hydrologist and was not competent to testify regarding the hydrogeologic conditions in the area. Petitioners expressed concern about odors, but presented no competent evidence that foul or unhealthy odors would be generated by the facility. The permit conditions that require a small working face and weekly cover with soil would minimize odors. Petitioners expressed concern about fires, partly because fires have occurred at other C & D facilities. The evidence shows that the requirements of the proposed permit, including the prohibition against burning and requirements to maintain a small working face and to cover with soil on a weekly basis, would minimize the possibility of fires at the facility. The facility must maintain access for fire trucks to the disposal area so that, if a fire occurs, it can be suppressed. Petitioners expressed concerns that the facility would not be safely closed in the event that Suncoast became bankrupt or otherwise ceased operations at the facility. The evidence shows that the financial assurance requirements of the proposed permit provide a means to close the facility in the event that Suncoast was unwilling or unable to close the facility. Petitioners expressed concerns about the “pattern of abuse” by landfill owners. However, Petitioners presented no evidence that Suncoast has shown a pattern of noncompliance, or that the landfills where these alleged abuses have occurred are similar to Suncoast’s proposed C & D landfill with respect to physical conditions and permit requirements. Suncoast provided reasonable assurance by a preponderance of the evidence that the facility, with the conditions in the permit, will comply with all applicable rule requirements regarding the protection of groundwater, odor and fire control, and proper closure of the facilities. In summary, Suncoast proved by a preponderance of the evidence that it has provided reasonable assurance that the proposed facility meets all regulatory criteria for entitlement to Permit No. 194919-003-SO.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order granting Permit No. 194919-003-SO, subject to all the conditions set forth in the Department’s Notice of Intent to Issue, for the construction and operation of a construction and demolition debris disposal facility in Santa Rosa County, Florida. DONE AND ENTERED this 20th day of May, 2009, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2009. COPIES FURNISHED: Michael W. Sole, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandell, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 William J. Dunaway, Esquire Clark, Partington, Hart, Larry Bond & Stackhouse 125 West Romana, Suite 800 Pensacola, Florida 37502 Ronda L. Moore, Esquire Department of Environmental Protection Douglas Building, Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Nathaniel Williams, Jr. 8984 Tara Circle Milton, Florida Wallis Mahute 32583 5500 Cox Road Milton, Florida 32583 Lois Mahute 5504 Cox Road Milton, Florida 32583
The Issue Whether Robert A. Pace has violated Section 482.161(5) and (6), Florida Statutes, and Rules 10D-55.04(4) and 10D-55.35(2), Florida Administrative Code, and therefore should be denied a pest control identification card and the opportunity to take the examination to become a certified pest control operator.
Findings Of Fact Testimony and evidence was introduced by DHRS from various witnesses regarding Pace's activities as the holder in the past of a pest control identification card with both Suncoast and Bay Area Control Companies, and as an emergency certified pest control operator for Suncoast Pest Control Company. From that testimony only the following factual allegations were proven. All other allegations against Robert A. Pace as stated in the letters of denial clearly were not proven by substantial and competent evidence. On or about March 21, 1974, Pace was a holder of a pest control identification card as an employee of Suncoast Pest Control. At this time Pace was also a partner in this company. On that date, Robert Pace offered to conduct a free termite inspection of the residence of Melvin Redlin. The inspection was conducted and live termites were shown to Mrs. Redlin by Pace with the explanation that they had been found in the area of the tub trap or plumbing service access in the bathroom of the Redlin's home. On the same day, Pace solicited a termite treatment contract with the Redlins. Treatment for subterranean termites was begun by employees of Suncoast Pest Control, but while it was in progress, one of Redlin's neighbors stated that he had never seen termites. One of the Suncoast employees stated that he had some live termites in the truck and showed Redlin and others a log infested with live termites. At that point Redlin became irate, suspecting that the individual who had inspected his home had shown his wife termites taken from the truck and not from the plumbing access space. Redlin ordered all work by Suncoast to cease. At the time Redlin directed them to stop, chemicals were being introduced into the ground around the slab foundation of the Redlin home. Before leaving, a Suncoast employee poured a jar of chemicals into the tub trap. Three weeks later, in response to a complaint by the Redlins, William Bargren, who is qualified as an expert witness in entomology and who is employed as an investigator with DHRS, inspected the Redlin's residence. Bargren found no evidence of prior termite infestation. On or about July 1, 1974, a contract for the treatment of subterranean termites was solicited from John A. Johnson by Suncoast Pest Control Company. This contract bore the signature of Robert A. Pace as a representative of Suncoast; however, Johnson was unable to identify Robert A. Pace at the hearing and described the man with whom he had dealt as being taller and heavier than Pace. Pursuant to this contract, the Johnson's house was treated for subterranean termites and certain structural repairs were made in the attic by employees of Suncoast. William Bargren, identified above, testified that upon his subsequent inspection of the home, in his opinion, it was only partially treated. Bargren found evidence of previous subterranean termite infestation but concluded that the inner walls of the foundation of the house had not been treated. For the treatment of the subterranean termites and repairs to the house Johnson wrote checks payable to Suncoast in the amount of One Thousand Eight Hundred Twenty-Two Dollars and Forty-Five Cents ($1,822.45) and One Thousand One Hundred Fifty-Five Dollars ($1,155.00). Pace was not an emergency pest control operator until July 10, 1974. The deposition of Mrs. Annie Symons, admitted pursuant to stipulation of the parties, indicates that in October, 1974, an employee of Suncoast Pest Control known only as "Joe" to Mrs. Symons inspected her residence for termites. Mrs. Symons had recently purchased the house and obtained a termite inspection and certificate prior to purchase certifying there was no evidence of termite infestation. The Suncoast employee inspected Symons' residence and advised her that her house had an active termite infestation showing her a piece of wood with live termites. Mrs. Symons called Southern Labs, the pest control firm which had conducted the original inspection. Michael Spokes, an employee of Southern Labs, reinspected Symons' residence and found no evidence of termite infestation. Concerned at the conflicting reports, Mrs. Symons contacted the Division of Health and her house was inspected by David Jones, an etomologist qualified and accepted as an expert witness at hearing and employed by the Division of Health as an inspector. Jones inspected Symons' house and could find no evidence of termite infestation. In October, 1974, Pace was the emergency certified pest control operator for Suncoast. There was no evidence introduced that Suncoast was advised of the Symons matter and that Pace was on notice of the conduct of his employee. On or about July 23, 1975, Robert A. Pace, Philip Nicholson and Rick Draper went to the residence of Irene Shipley, 301 East Lake Fern, Lutz, Florida. Mrs. Shipley was offered a free inspection by Mr. Pace which she accepted. While Pace talked with her outside of her house, Rick Draper inspected her house and a mobile home belonging to her son located to the rear of her property. According to Mrs. Shipley, Draper went under both structures and produced insects which he identified as termites. Mrs. Shipley and Pace stood outside during the inspection and discussed and negotiated a price for treating both structures. Pace stated that he would spray under both homes, the woodwork and the attic for One Hundred Fifty Dollars ($150.00) for each home. Eventually a price of Two Hundred Fifty Dollars ($250.00) was negotiated to treat by spraying both homes. The area under and around both homes was sprayed, and an attempt to spray the attic was made but was thwarted by an inner roof. After completing the Work, Mrs. Shipley gave a check to Pace payable to him in the amount of Two Hundred Fifty Dollars ($250.00). Pace gave her a contract for pest control treatment. Subsequently, Mrs. Shipley became concerned and asked the assistance of the Division of Health. William Bargren, identified above, conducted an inspection of both houses. Under Mrs. Shipley's home he could find no evidence of subterranean termite infestation but did discover dry rot, and under the mobile home, Bargren found evidence of a prior subterranean termite infestation. Bargren stated that in his opinion the treatment given both homes was insufficient because there was no evidence trenching around the house supports or boring in the pilings which he discovered under the mobile home. In October, 1975, Frank Logan contacted Robert A. Pace, while Pace was treating a home for subterranean termite infestation. Logan stated that he was impressed with the work being done and asked for Pace's card. Logan stated that he knew that his home was infested with termites and later called Pace and asked for Pace to inspect his home. Pace conducted an inspection of Logan's home and advised Logan that he had a subterranean termite infestation. Pace testified that he also saw no evidence of what he took to be an inactive dry wood termite infestation in Logan's attic. Subterranean termite treatment was made of Logan's home; however, when Logan's problems were unabated for a year, he contacted the Division of Health. William Bargren, identified above, inspected Logan's residence and found evidence of subterranean termite infestation, a substandard treatment for subterranean termites, and an active dry wood termite infestation in Logan's attic. The subterranean termite treatment was substandard in that the voids in the concrete block foundation had not been drilled and treated. Bargren also testified that the signs of dry wood termites which Pace described as having seen would not indicate an inactive infestation but an active infestation. Bargren did not offer any opinion as to whether the dry wood infestation was over a year old. Bargren stated that dry wood termites are not effected by control treatment for subterranean termites because they do not require contact with the ground. Pace and his colleague, Nicholson, who had assisted Pace on the job, each thought that the other had treated the foundation. ULTIMATE CONCLUSIONS OF LAW Pace is charged with the violation of Section 482.161 (5) and (6) and Rule 10D-55.04(4), Florida Administrative Code, arising out of his conduct in providing pest control services to Melvin Redlin. Because Mr. Redlin demanded that the employees of Suncoast cease treatment of his home prior to their having completed the job, a charge of negligently treating the Redlin residence cannot be sustained. Because live termites were shown to Mrs. Redlin, strong evidence did exist of an active infestation if the termites were from the bathroom plumbing service access. If the termites were introduced by Pace into the Redlin home, clearly Pace would be guilty of fraud and misrepresentation in violation of Section 482.161(5) Florida Statutes. Based on Bargren's testimony that no evidence was found in the bath plumbing service access area of a prior subterranean termite infestation, together with the fact that treatment of that area was done rapidly without opportunity to substantially clean the area, the Hearing Officer finds that such a false representation was in fact made by Pace. Evidence introduced by DHRS clearly indicated that Pace was not an emergency certified pest control operator until July 10, 1974. The treatment of the Johnson residence occurred on July 1, 1974. Rule 10D-55.35, Florida Administrative Code, applies only to certified pest control operators; therefore, Pace cannot be held accountable under that rule for his own activities or the activities of Suncoast employees with regard to the termite control treatment of the residence of John A. Johnson. Bargren found evidence of a prior subterranean termite infestation at the Johnson residence; therefore, there could have been no misrepresentation of an infestation. Bargren did find that the foundation of the Johnson residence was not properly drilled and protected with pesticide. Therefore, Pace did not use methods suitable for the treatment of subterranean termites in violation of Section 482.161(5), Florida Statutes. Although the certified pest control operator for Suncoast on July 1, 1974, would have been responsible for Pace's failure, Pace himself cannot avoid responsibility for his failure to properly treat the Johnson residence by virtue of the provisions of Rule 10D-55.35, supra. There is clear evidence that an employee of Suncoast other than Pace misrepresented the facts of an infestation to Annie G. Symons contrary to Section 482.161(5), Florida Statutes, and Rule 10D-55.04(4), Florida Administrative Code, in October, 1974. At that time Pace was an emergency certified pest control operator. There was no evidence introduced that Pace was contacted by Symons or by DHRS regarding misrepresentation to Annie G. Symons by an employee of Suncoast. Pace cannot be vicariously liable under the provisions of Section 482.161(5) or Rule 10D-55.04(4), Florida Administrative Code, where knowledge of a misrepresentation is required. Although responsible for the pest control treatments as a certified operator, Pace cannot be considered liable for the misrepresentations of a Suncoast employee when Pace was not aware a contract had been made. Pace clearly violated Rule 10D-55.05(2), Florida Administrative Code, by failing to give Mrs. Shipley a copy of the contract before the work was done and payments made. It was clear that the nature of the treatment Pace was to perform was clearly explained to Mrs. Shipley prior to the commencement of the work. Bargren found prior evidence of subterranean termite infestation under one of the homes, and damage to the wood under the other as a result of dry rot. In any event, the inspection of the premises was by Rick Draper, and although Pace sold Mrs. Shipley the contract, it is clear that Mrs. Shipley knew that Pace did not conduct the inspection of the houses because she was talking with Pace outside while watching Draper inspect the house. Bargren's testimony was that the treatment was substandard, and he also testified that the prior infestation of subterranean termites under the mobile home had been stopped. The testimony indicated that bargaining went on between Pace and Shipley regarding the treatment that would be applied and the price for the treatment. Treatment in accordance with this agreement was performed or a good faith effort made. Considering the circumstances there is not substantial and competent evidence of a violation of Section 482.161(5) or (6), Florida Statutes, or of Rule 10D-55.04(4), Florida Administrative Code. Pace is charged with not providing adequate subterranean termite treatment and not treating an active dry wood termite infestation at the residence of Frank Logan. Bargren's inspection revealed evidence of a prior subterranean termite infestation which had been controlled and an active dry wood termite infestation in Logan's attic. Bargren's inspection took place over one year from the date of Pace's initial inspection and treatment. Pace stated that he saw evidence of what he took to be an inactive dry wood infestation when he initially inspected Logan's residence. No evidence was obtained concerning whether the infestation of dry wood termites was over one year old. Testimony was received that dry wood termites will not be affected by subterranean termite control measures; and, further, dry wood termites may fly into a building and start a colony if preventive measures have not been taken. Logan testified that the initial treatment by Pace did not control the termites because he kept seeing them. Pace was negligent in treating for subterranean termites in that he failed to assure that the foundation voids were treated contrary to Section 482.161(6), Florida Statutes. The length of time between Bargren's inspection and Pace's treatment together with the manner of infestation of dry wood termites creates sufficient doubt regarding the allegation of Pace's failure to properly identify the dry wood infestation to find the allegations not proven. The individual allegations proven above are not significant when taken singularly; however, the evidence taken as a whole presents a picture of high pressure salesmanship by Pace and those with whom he was associated, together with poor workmanship in application of treatments. In one instance the evidence is clear that Pace made a misrepresentation of a termite infestation where evidence was lacking. He did solicit contracts on occasions in which another employee made the inspections and he lacked specific knowledge of the conditions found. As part owner of Suncoast, Pace had the responsibility to oversee his employees which he failed to do. Pace should have taken greater care to insure his employees had properly inspected homes, and were dealing honestly and forthrightly with customers. As an employee, Pace did not treat homes in a workman like manner in accordance with accepted practices. The course of conduct engaged in by Suncoast and Pace's failure to control his employees cannot be overlooked.
Recommendation Considering the findings of fact generally and the conclusions of law, the Hearing Officer would recommend that the Department of Health and Rehabilitative Services deny Pace's application to take the examination to become a certified pest control operator on the basis that Pace has not actively worked in pest control for some months, that substantial and competent evidence exist which indicates that Pace's expertise in pest control is lacking, and that his prior conduct raises questions of his business reputation and his ability to supervise employees. The Hearing Officer would further reand that Lewis S. Hall's request for an identification card for Pace be disapproved on the specific basis that Pace misrepresented an infestation to Mrs. Marian Redlin, which reflects adversely on Pace's business reputation and good character. DONE and ORDERED this 29th day of April, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frank Wollett, Esquire Nixon E. Farnell, Esquire 521 Oak Avenue Clearwater, Florida 33516 Barbara Dell McPherson, Esquire Post Office Box 2417 F Jacksonville, Florida 32231
Findings Of Fact At all times pertinent to the charges, respondents have been licensed real estate salesmen and brokers. Respondent Ed Wasdin holds real estate salesman's license number 0341534. Respondent Betty L. Green 2/ held real estate salesman's license number 0341467 at the time of the alleged misconduct. She now is a licensed broker. Respondent Ester L. Turner holds broker's license number 0090375. At the time of the alleged misconduct, she was the qualifying broker for Ed Wasdin Realty, Inc., a registered corporate real estate broker. (Pretrial Stipulation; Testimony of Vann.) During the time in question, Mr. Wasdin also owned and operated Ed Wasdin and Son, Inc., a licensed construction company, where Ms. Green served as his full-time secretary and office manager. She worked as a real estate salesman for Ed Wasdin Realty, Inc., on a part-time basis. (Testimony of Vann; Pretrial Stipulation.) II. On November 11, 1980, Hank V. Mannheimer and his wife, Barbara, saw an Ed Wasdin Realty, Inc., "For Sale" sign in front of a house located at 721 West Crossway Road, Tallahassee, Florida. They called the telephone number listed on the "For Sale" sign and made an appointment for respondent Wasdin to show them the house. (Testimony of H. Mannheimer, B. Mannheimer.) Later that day, Mr. Wasdin took the Mannheimers on a tour of the house. They then returned to Mr. Wasdin's office where respondent Green, as his secretary, prepared a standard real estate contract on a form published by the Florida Association of Realtors. The Mannheimers signed the contract as purchasers, and Ed Wasdin signed on behalf of Ed Wasdin and Son, Inc., the seller. The Mannheimers also delivered a $1,000 earnest money deposit check made payable to the seller, Ed Wasdin and Son, Inc. (Testimony of H. Mannheimer, B. Mannheimer; P-10, R-5.) III. The real estate sales contract contained a "Termite Clause" granting the buyers the right to have the property inspected "to determine whether there is any active termite or wood destroying organisms in any improvement on said property, or any damage from prior termite or wood destroying organism to said improvements". (P-10.) During the morning of January 15, 1981, respondent Green, on behalf of the seller, Ed Wasdin and Son, Inc., telephoned Helms Exterminating, Inc., and ordered a termite inspection of the house. David Baker, a termite inspection, was sent to the house to conduct the inspection that same morning. (Testimony of Vann, Baker.) On inspecting the house, Mr. Baker found termite infestation and termite damage to the left front corner of the house. He then telephoned Ms. Green and told her that he had seen evidence of termites. He did not, however, tell her of any termite damage. She told him that she needed a "clear" termite report by that afternoon (since closing was scheduled for that afternoon or the next day) and authorized him to treat the house for termites. She did not speak to respondent Wasdin before authorizing the treatment. (Testimony of Vann.) Mr. Baker testified that he told Ms. Green of termite damage to the house and that she promised to repair the damage in order to get him to issue a "clear" termite report that day. Ms. Green denied that Mr. Baker told of the damage and denied that she promised to make repairs. The testimony of Ms. Green is more credible and worthy of belief than that of Mr. Baker, whose previous statements about this incident have been incomplete, 3/ untrue or contradictory. In his termite inspection report of January 15, 1981, Mr. Baker indicated that no active termite infestation or visible termite damage was observed--the first statement was, at best, incomplete, the second was false. After discovering the termite damage, Mrs. Mannheimer questioned him twice. The first time, he told her that he had only found ter-mites on January 15, 1981, and mentioned nothing of termite damage. Later, when questioned again, he stated that he had also found termite damage. Further, Ms. Green was not authorized to promise structural repairs to a residence, and it is unlikely that she would have made such a promise when she did not know the extent of the damage and had no way of knowing the cost of repair. The conflict in testimony is therefore resolved in Ms. Green's favor. (Testimony of Vann, Baker.) On January 15, 1981 after treating the residence for termites, Mr. Baker issued a termite inspection report indicating that he had observed no active termite infestation or visible damage. The report, on its face, indicated that it was to be mailed to Ed Wasdin Realty at 4432 Kensington Road, Tallahassee, Florida. The Mannheimers did not see the report until after the closing. (Testimony of Baker, Green; P-7.) IV. In negotiating for and purchasing the house from Ed Wasdin and Son, Inc., the Mannheimers believed, and had reasonable grounds to believe, that they were dealing with realtors associated with Ed Wasdin Realty, Inc. The house was advertised by an Ed Wasdin Realty, Inc., "For Sale" sign; they called the number listed on the sign, and Mr. Wasdin showed them the property; a contract identified with the Florida Association of Realtors was executed which contained an Employment of [Real Estate] Agent clause; 4/ both Ms. Green and Mr. Wasdin worked for both companies; and the offices of the Wasdin realty and construction companies were located in the same model home. Although the offices in the model home were separately marked as construction or realty company offices, the conference room (where the closing took place) was not marked as belonging to either. In actuality, the sale of the residence was not a transaction on the account of Ed Wasdin Realty, Inc. The house was not listed with the realty company; a commission was not promised or paid to the realty company; and the deposit was not placed in the realty company escrow account. (Testimony of Vann, H. Mannheimer, B. Mannheimer.) No evidence was presented to show that respondent Wasdin knew, or should have known, that the house in question had a termite infestation or termite damage. There is not a sufficient factual basis to impute such knowledge to him. Neither was any evidence presented to show that respondent Turner, qualifying broker for Ed Wasdin Realty, Inc., knew, or should have known, about the real estate transaction in question, including the termite infestation and damage. The evidence is insufficient to support a factual inference that Ms. Turner was negligent or derelict in her duty to supervise the realty company's operations. Although, in this case, a realty company's sign was used to advertise a property which was not listed with the company, the evidence does not show that this had ever happened before, that this was anything but an isolated mistake. The evidence is insufficient to support a finding that either Mr. Wasdin or Ms. Green saw the termite inspection report prior to closing, or affirmatively represented to the Mannheimers that no termites had been discovered during the January 15, 1981, termite inspection. 5/
Recommendation Based on the foregoing, it is RECOMMENDED: That the administrative complaint against the respondents be dismissed. DONE and RECOMMENDED this 15th day of October, 1982, in Tallahassee, Leon County, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1982.
The Issue Whether the Respondent's real estate license in Florida should be disciplined because the Respondent committed fraud, misrepresentation, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, David John Tribbey, was at all times material hereto a licensed real estate salesman in the State of Florida having been issued license number 0499607 in accordance with Chapter 475, Florida Statutes. The last license issued was as a salesman, in association with Century 21 G.M. Group, Inc., a broker corporation located at 2233 Nursery Road, Clearwater, Florida, and home address of 1648 Summerdale Drive South, Clearwater, Florida. On March 31, 1989, his sales license expired and has not been renewed. In the summer of 1988, George Cayley made an offer to purchase a house at 7151 Flora Avenue, Largo, Florida, from Beryl W. Constable for the sum of $25,000. This offer was accepted, and a contract for sale of real estate was executed on March 3, 1988. Respondent was the agent for the Seller. Contained in the contract was the following pertinent clauses: "4. THIS CONTRACT IS SUBJECT TO THE TERMS AND CONDITIONS APPEARING ON THE REVERSE SIDE HEREOF WHICH ARE HEREBY INCORPORATED HEREIN [BY] REFERENCE EXCEPT AS STATED IN OTHER PROVISIONS. OTHER PROVISIONS ... Seller will pay a maxi- mum of $500.00 towards repairs other than termite clause E. THE FOLLOWING ITEMS SHALL BE IN WORKING ORDER AT CLOSING, "as is" after closing: All items listed in #5 above and to include elec- trical and plumbing. ... E. TERMITE INSPECTION, TREATMENT: Seller shall furnish to Buyer a termite inspection report from a licensed exterminating company showing the premises to be free of visible evidence of active infestation of subterranean or drywood termites. In the event the report reveals such infestation. Seller shall, prior to closing, have the premises treated for extermination of termites and have all damage caused by such infestation repaired; provided, however, that in the event the cost of treatment and repair will exceed the sum of Five Hundred ($500.00) Dollars the Seller shall have the option of terminating this contract, in which case the earnest money deposit shall be returned to Buyer. Cayley purchased the property for investment purposes. This was the second investment property he purchased. He walked through the house shortly after it was listed, the house was in excess of thirty years old and it was apparent that it was only in passable shape, and the roof would need to be replaced. The Buyer had the roof inspected, and as a result the Seller had the roof replaced. In between the roof inspection and replacement, Bob Bluhm of Century 21 G.M. Group, Inc., on behalf of the Seller arranged for a termite inspection to be completed. On May 13, 1988, JR's Termite and Pest Control inspected the house and the report of findings indicated that the inspector observed visible evidence of drywood and subterranean termites located throughout the structure and visible damage. A notice of inspection was left under the kitchen sink. Between May 16 and 18, 1988, the house and carport was treated by tenting and all evidence of live wood destroying organisms was eliminated. However, the inspector still noted that visible evidence of damage was observed. A notice of inspection was left under the kitchen sink. The Seller took no action to repair the damage prior to closing. The closing on the house took place on May 27, 1988, at the office of Century Title and Abstract, Inc. with John W. Johnson as closing agent. At the closing, the closing agent delivered to Cayley the termite inspection reports and went over the closing statement prior to its execution by the parties to the sale. The Closing Statement, executed on May 27, 1988, showed that the Seller paid $525 for pest inspection and the parties divided equally the cost of roof repair. Cayley was advised that the house had been "tented". Cayley and the Respondent did a final "walk through" of the house the day prior to the closing, and Cayley was shown the termite inspection sticker under the kitchen sink. Cayley made no further inquiry concerning termites and Respondent provided no further information in regard to the damage caused by the termites. Following the closing, Cayley sent his contractor to replace some broken and missing siding at the bottom of one side wall and substantial damage to the structural support of the house was discovered that was caused by the prior termite infestation. It cost the Buyer several thousand dollars to repair the damage.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Respondent be found guilty of violating Subsection 475.25(1)(b), Florida Statutes, that he should be reprimanded and an administrative fine of $500 should be imposed. RECOMMENDED this 25th day of January, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 25th day of January, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4812 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact: Accepted in substance: paragraphs 1,2,3,4,5 Rejected as against the greater weight of the evidence: 6,8 Rejected as a conclusion of law: 7 Respondent's proposed findings of fact: Respondent did not submit proposed findings. COPIES FURNISHED: Steven W. Johnson, Esquire Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 David John Tribbey 1201 Seminole Boulevard #8 Largo, Florida Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Kenneth Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0750
The Issue The issue is whether a permit should be issued to Respondent, Lake Environmental Resources, LLC (LER), authorizing the construction and operation of a construction and demolition debris disposal facility in unincorporated Lake County, Florida.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties LER, whose mailing address is Post Office Box 2872, Windermere, Florida, is a limited liability company authorized to do business in the State. LER's principals are Linwood Brannon and Richard Bazinet, both of whom have had at least ten years' experience in the operation and construction of demolition debris disposal facilities. The Department is an agency of the State that is authorized under Chapter 403, Florida Statutes (2005)2, to evaluate applications and issue permits for construction and demolition debris disposal and recycling facilities. The permit in issue here was processed, reviewed, and approved for issuance by the Department's Central District Office in Orlando, Florida. Petitioners Miriam Resto and Jim Taylor did not appear at the final hearing or otherwise present any evidence as to where they resided or how their substantial interests would be determined by the issuance of a permit. Petitioner Timothy L. McCormack resides at 11321 Valley View Road, Howey-in-the-Hills, Florida. Mr. McCormack's home is "a little over a mile" north-northwest of the proposed facility. His concern with the proposed facility is generally over contamination from the landfill, and not contamination occurring at the property. Petitioner John A. Mapp, Jr., resides at 21307 County Road 561, Clermont, Florida, which is approximately one-half mile from the proposed facility. Mr. Mapp's home is upgradient from the facility and consequently he has no "individual concerns" as to how the proposed facility would affect his home. He is concerned, however, with potential groundwater contamination from the facility. Petitioners David and Lisa Cimini did not testify at the final hearing or otherwise present any evidence as to where they resided or how their substantial interests would be determined by this proceeding. According to the Partial Pre- Hearing Stipulation filed by Respondents, however, they reside at 21423 County Road 455, Clermont, Florida, which is near the proposed facility. Background On July 26, 2005, LER filed an application with the Department for a permit authorizing it to construct and operate a facility for construction and demolition debris disposal and recycling in an unincorporated area of the County. A lengthy definition of construction and demolition debris is found in Florida Administrative Code Rule 62-701.200(27), which reads as follows: discarded materials generally considered to be not water soluble and non-hazardous in nature, including but not limited to steel, glass, brick, concrete, asphalt material, pipe gypsum wallboard, and lumber, from the construction or destruction of a structure as part of a construction or demolition project or from the renovation of a structure, including such debris from construction of structures at a site remote from the construction or demolition project site. The term includes rocks, soils, tree remains, trees, and other vegetative matter which normally results from land clearing or land development operations for a construction project; clean cardboard, paper, plastic, wood, and metal scraps from a construction project; effective January 1, 1997, except as provided in Section 403.707(12)(j), F.S., unpainted, non-treated wood scraps from the facilities manufacturing materials used for construction of structures or their components and unpainted, non-treated wood pallets provided the wood scraps and pallets are separated from other solid waste where generated and the generator of such wood scraps or pallets implements reasonable practices of the generating industry to minimize the commingling of wood scraps or pallets with other solid waste; and de minimus amounts of other non-hazardous wastes that are generated at construction and demolition projects, provided such amounts are consistent with best management practices of the construction and demolition industries. Mixing of construction and demolition debris with other types of solid waste will cause it to be classified as other than construction and demolition debris. The facility will be located on a 44.33-acre site one- half mile west of State Road 561, off County Road 455, in an unincorporated part of Lake County. Based on this description, it appears that the facility will be located east of Howey-in- the Hills, west of Tavares, and approximately half-way between Astatula and where State Road 561 crosses the Florida Turnpike to the southwest. The site presently has an active sand mine (borrow pit) that covers an area of approximately twenty-two acres. The facility intends to recycle metal, concrete, asphalt, wood chips, and PVC (polyvinyl chloride) and will serve areas in Lake County and nearby communities. In response to LER's initial application, the Central District Office submitted a Request for Additional Information dated August 22, 2005, asking for additional well and site information, operations plan details, and financial assurance clarification. On October 20, 200, LER submitted its Response to Request for Additional Information. While the application was being processed, Mr. Cimini advised the Department that two additional wells surrounded the property, including one that had recently been installed on property owned by Mr. Gary Sprauer that lies within five hundred feet of the limits of waste disposal of the facility. On November 18, 2005, the Department submitted an additional Request for Additional Information, in which it brought up the fact that Mr. Cimini had advised the Department of the existence of these wells. On November 28, 2005, LER submitted its Response to Request for Additional Information, in which it stated that only one well, which belonged to a Mr. Sprauer, had been drilled within five hundred feet of the proposed facility; that there was no electricity to the well; that the nearest residence was approximately seven hundred feet away; and that the well was not approved or being used as a potable water well. Therefore, LER asserted that the Department should not treat the Sprauer well as a potable water well subject to the five-hundred-foot setback from potable water wells for landfills established in Florida Administrative Code Rule 62-701.300(2)(b). LER's submittal provided additional information on the geology and operational aspects of its proposed facility. On December 6, 2005, LER submitted additional information in response to items discussed at a meeting held between the Department and LER on December 2, 2005. The submittal contained further information about potential drinking water wells around the proposed facility, and LER reasserted that the Sprauer well should not be treated by the Department as a potable drinking water well. Based upon its own investigation, however, the Department concluded that the Sprauer well "was a bona fide drinking water well for domestic supply." On January 6, 2006, Mr. Bradner, a Department solid and hazardous waste program manager who was assisting in the processing and review of the application, wrote a memorandum to the file confirming that the Department considered the application complete as of December 6, 2005. On February 10, 2006, LER provided additional hydrologic and operational information in order to try to convince the Department not to apply the five-hundred-foot setback to the Sprauer well. This information showed that the Sprauer well would be upgradient from the proposed facility. The Department allows waste to be placed within five hundred feet of an existing potable water well based upon site-specific conditions as demonstrated by an applicant. See Fla. Admin. Code R. 62-701.300(2)(b). On March 27, 2006, in response to the Department's comments on its submittal of this additional information, LER submitted further hydrologic and modeling information to support its contention that groundwater flowed away from the well belonging to Mr. Sprauer. On April 27, 2006, LER provided the Department with further refinement of its groundwater model to demonstrate that there would be no impact to the Sprauer well. On May 4, 2006, the Central District Office issued notice of its intent to approve the application and issue a permit to LER. Of significance here is the fact that the Department did not require LER to install a liner and leachate collection system. This was consistent with the terms of Florida Administrative Code Rule 62-701.730(4)(a), which does not require a liner unless the Department demonstrates that the facility is "reasonably expected to result in violations of ground water standards and criteria." On May 17, 2006, Petitioners filed their Petition challenging the issuance of the permit. As grounds, Petitioners alleged that there is a substantial risk that the surrounding groundwater will be contaminated by leachates from the facility, and that the Department should accordingly require LER to (a) install a liner and associated leachate recovery system in their facility and (b) post a surety bond necessary to maintain the system in good working order and to fund a toxic cleanup should it become necessary. The Proposed Project Among other things, the application included an engineering report, an operations plan, a geotechnical evaluation of the stability of the site, a hydrological investigation, a stormwater management plan, a reclamation and closure plan, and financial assurance documentation. These elements are required by Florida Administrative Code Rule 62- 701.730, which governs this type of application. The proposed facility is to be located on a 44.33-acre parcel in a rural area that has been the site of a sand and clay borrow pit. The pit has been mined for the last thirty years, has been permitted by Lake County as a mine since 1986, and before being used as a mine was the site of an orange grove. As explained by Mr. Golden, the proposed facility's project manager, the site is "high and dry" and "a good site for a landfill." The water table is at least one hundred feet below the ground surface. There is a confining layer of clays and sandy clays approximately one hundred fifty feet below the ground surface at the site of the proposed facility, and the layer has very low hydrologic conductivity, that is, 1,000 to 10,000 times less permeable than the surface sands. The Floridan Aquifer is approximately two hundred feet below ground surface. The horizontal velocity of the groundwater at the site is approximately two feet per year, and the vertical velocity about 1.3 inches per year. As a result, the groundwater monitoring system at the proposed facility would detect any contamination that might be emitted. In addition, approximately twenty feet of dry soils underlying the landfill would absorb whatever comes out of the landfill to begin with, just like a septic tank. The confining layer would be approximately one hundred to one hundred twenty feet below the landfill base and would be anywhere from twenty to forty feet deep. As a result, it is highly unlikely that any potential contaminants that hypothetically might be emitted from the facility would ever reach the Floridan Aquifer. The Proposed Permit On May 4, 2006, the Central District Office issued its intent to issue the permit. Attached to that intent to issue was a Draft Permit. The Draft Permit restricts disposal of solid waste exclusively to construction and demolition debris (as defined in the rule cited above) and requires LER to comply with an Operations Plan developed by LER. Among other things, the Operations Plan provides for operators trained in spotting and turning away unacceptable waste and other screening procedures to ensure nondisposal of unacceptable waste. The Operations Plan exceeds minimum Department rule requirements. The Operations Plan prohibits disposal of CCA (chromated copper arsenate) pressure treated wood and has a special screening procedure to ensure that these wood products do not come into the facility. The Draft Permit requires LER to install a system of groundwater monitoring wells that surround the property at both shallow and deep depths to detect any potential contaminants coming off of the site. Thus, LER will be required to monitor the surficial aquifer, the Floridan Aquifer, and adjacent wells to ensure protection of area groundwater. The wells will act as a form of early warning indicator so that corrective action can be undertaken in the event the wells show a potential threat to drinking water beyond the property boundary of the proposed facility. The Draft Permit requires two wells to be installed immediately to the north of the Sprauer well, even though it is upgradient from the site. To be conservative and prudent, the Department is requiring that the number of wells that LER must install be substantially greater than the minimum required under Department rules. Based upon the hydrologic evaluation and the proposed permit conditions, Mr. Golden concluded that LER has provided reasonable assurance that the proposed facility will not discharge pollutants in contravention of Department standards or rules. Mr. Bradner agreed with this conclusion and likewise concluded that LER had provided reasonable assurance that the proposed facility will comply with all of the required statutes and rules. The weight of the evidence supports these conclusions. The weight of the evidence also supports Mr. Golden's conclusion that based upon the hydrologic evaluation and the proposed permit conditions, the proposed facility will not be a source of contamination for wells within or greater than five hundred feet of the proposed facility. In the same vein, Mr. Bradner determined that the Sprauer well was the only existing potable drinking water well within five hundred feet. Both experts concluded that the Sprauer well would not be adversely impacted based upon the Department's review of the groundwater modeling data provided to it by LER. Finally, the weight of the evidence supports Mr. Golden's conclusion that, based upon the hydrologic evaluation and the proposed permit conditions, the Department should not require LER to install a landfill liner at the proposed facility. Mr. Bradner agreed with that conclusion. Petitioners' Objections In their Petition, Petitioners have raised the following objections to the issuance of a permit: That because the proposed facility would have no liner, the local environment and drinking water supplies would not be adequately protected from contamination; That the application significantly underestimates the amount of recharge to local aquifers; That the application ignores or underestimates the ecological fragility of the area; and That the location of the Sprauer well should require a reconfiguration of the footprint of the proposed facility. As relief, the Petition asks that the Department require a liner and associated leachate recovery system and adequate financial assurance to ensure proper operation and cleanup if necessary. During opening argument, Petitioners raised one more issue not previously raised in their Petition — - the potential cumulative impacts of the proposed facility in conjunction with two other landfills in the area. This allegation was not timely raised, however, and has been disregarded. The positions taken by Petitioners (other than cumulative impacts) appear to be interrelated, that is, the Department should require a liner because the area is ecologically fragile and recharge is greater than calculated by LER. In support of their position, Petitioners first presented the testimony of Mr. McCormack, who is engaged in the commercial nursery and landscaping business. Mr. McCormack identified the presence of CCA treated wood as his main concern from a contamination standpoint. His concern is that a possible spread of leachate will result from mingling the wood with rainwater or groundwater and that the surrounding groundwater (which ultimately flows into Double Run Springs, the Harris Chain of Lakes, and the Floridan Aquifer) would be adversely impacted. Mr. McCormack estimated that the edge of the Double Run Springs system was approximately 2,500 feet, or around one- half mile, from the site. He expressed the opinion that it was physically impossible to remove such wood prior to its being landfilled. Mr. McCormack conceded, however, that he was not an expert on landfill management or hydrology and had no personal experience with the operation of a landfill. There is specific language in LER's Operations Plan prohibiting the disposal of CCA treated wood and requiring best management practices to enforce the prohibition against the disposal of CCA treated wood. This requirement is mandatory, and not voluntary, and provides reasonable assurance that CCA treated wood would not be a potential source of contamination. The testimony of expert witnesses Bradner and Golden, who expressed this view, is accepted as being more credible on this issue. Petitioners also presented the testimony of Mr. Mapp, who critiqued the hydrological investigation performed by LER by asserting that the recharge to the Floridan Aquifer is four or five times the amount stated in the application. He also opined that LER's evapotranspiration rates were understated.3 Mr. Mapp is a systems analyst for Lockheed Martin Missiles and has a master's degree in business and an undergraduate degree in physics. While highly educated, Mr. Mapp has no prior experience in any kind of hydrologic, geologic, chemical, or similar types of analyses, or any analyses of the rate of transport of chemicals in the environment. The knowledge and opinions rendered in this case by Mr. Mapp were obtained through personal research after the permit application was filed. Mr. Mapp opined that LER's recharge calculations constitute a "significant discrepancy." He acknowledged, however, that his estimate of the true speed of downward flow of water at the site of the proposed facility was "just off the cuff" and did not factor in the effects of applying cover to, and the filling and capping of, the landfill. He did not know how fast particular contaminants may migrate through the groundwater or what volume of waste might be necessary to cause a violation of groundwater quality standards. He also could not give a specific calculation of where a contaminant might be located after a set period of years. Unlike the other experts in this case, the witness had not calculated Floridan Aquifer recharge rates or otherwise used Darcy's Law.4 Even if the permit application underestimated the recharge rate, the thickness of the confining layer below the base of the proposed facility, which was conservatively estimated, would cause groundwater to flow horizontally, not vertically, once the confining layer is reached. As explained by Mr. Golden, LER did not rely exclusively on the recharge calculations that Mr. Mapp relied upon in determining recharge rates. Separate information regarding the permeability of the confining layer provides additional support for the recharge calculations. Mr. Mapp also opined that LER's evapotranspiration rate calculations were underestimated, based upon his review of a study of a deforested site elsewhere in the Lake Wales Ridge. He assumed the evapotranspiration rate in that study (for a site located fifteen miles away) would be applicable to the site of the proposed facility, and he then assumed that the evapotranspiration rate identified in the permit application for the proposed facility would be applicable only to the properties adjacent to the proposed facility. There is, however, no scientific basis for drawing an analogy between the borrow pit that is the location of the proposed facility and the deforested site with different geological characteristics about which Mr. Mapp read in the study he relied upon for his conclusions. Furthermore, LER undertook site-specific analyses of the permeability of the soils underlying the site of the proposed facility, whereas Mr. Mapp's calculations were based upon assumptions drawn from a study of a site fifteen miles away. The testimony of Mr. Golden is found to be credible and persuasive on this issue. Finally, there was no evidence concerning Petitioners' contention that LER should post a surety bond necessary to maintain the system in good working order and to fund a toxic cleanup should it become necessary. Therefore, no modification to the permit in this respect is required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the application of Lake Environmental Resources, LLC, for a permit authorizing the construction and operation of a construction and demolition debris disposal and recycling facility in unincorporated lake County. DONE AND ENTERED this 8th day of November, 2006, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 2006.
Findings Of Fact 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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 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. 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.
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: & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. - 7. Accepted and incorporated herein. 8. - 11. Accepted and incorporated herein. 12. - 14. Accepted and incorporated herein. & 16. Rejected as not supported by competent evidence of record. Rejected as not supported by competent evidence of record. Accepted. Accepted and, as pertinent, incorporated herein. Accepted and incorporated herein. Accepted. As to the Valcarcal Property: & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. - 7. Accepted and incorporated herein. Not supported by competent evidence of record. & 10. Rejected as not supported by competent evidence or record. 11. Merely a restatement of testimony. FOR THE PETITIONER: As to the Mallard Property: & 2. Accepted and incorporated herein. 3a. - f. Accepted and incorporated herein. 4. - 6. Accepted and incorporated herein. 7. & 8. Accepted and incorporated herein. - 11. Accepted. Accepted. Accepted. Not proven. 15.- 17. Accepted and incorporated herein. As to the Valcarcal property: & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. - 7. Accepted. 8.- 10. Accepted. Accepted. & 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
