The Issue The primary issue for determination is whether Emerald Shores Heath Care Associates, LLC, d/b/a Emerald Health Care Associates (Respondent) committed the deficiencies as alleged in the Administrative Complaint dated September 17, 2004. Secondary issues include whether Petitioner should have changed the status of Respondent's license from Standard to Conditional for the time period of July 16, 2004 until August 13, 2004; and whether Petitioner should impose administrative fines for alleged deficiencies that are proven to be supported by the evidence.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes. Respondent is licensed to operate a nursing home located at 626 North Tyndall Parkway, Panama City, Florida 32404 (the facility). Petitioner conducted a survey of Respondent's facility on July 16, 2004. Upon completion of that survey, Petitioner prepared a report that charged Respondent with violations of various nursing home regulations. This report organized each of the charged violations under “Tags,” which are shorthand references to the regulatory standards that Petitioner alleges were violated. Additionally, Petitioner assigned, as required by law, Class I severity ratings and widespread scope ratings to the two deficiencies or Tags (F224, and F469) at issue in this proceeding. On July 8, 2004, one of Petitioner’s surveyors observed that a patient in Respondent’s facility had approximately 60 ant bite pustules on her face, arms, neck, and chest. Investigation revealed that the patient had been discovered with fire ants in her bed at about 4 p.m. on July 7, 2004. Personnel of the facility had, at that time, taken appropriate steps to care for the injured patient. That care and treatment is not at issue in this proceeding. Petitioner initiated another survey of Respondent’s facility on July 16, 2004. A primary objective of that survey team was to ascertain the extent of the ant bite situation in the facility. There had been other incidents in the past involving ants. One incident involved harmless, non-biting “sugar” ants, covering a patient’s sandwich left by the patient on a nightstand. The sandwich was removed, the room sprayed and the patient admonished about leaving food in the room. Later, ants were again discovered in the room, requiring further spraying and maintenance. In the course of the July 16th survey, dead ants were found in the room of the patient who had been bitten. Additionally, a couple of ant beds were found in the lawn outside the facility. As a consequence of the findings of ant nests outside the facility and dead ants inside the facility, coupled with the previous incidents involving the sandwich attacking ants and other ant incidents, Petitioner cited Respondent for “immediate jeopardy” on July 16. The surveyor report found Respondent had not dealt adequately with its pest problem and cited Respondent for violation of Tag F224, abuse and neglect, and Tag F469, pest management. Before Respondent erected the facility, a contract was executed with A to Z Pest Control to provide a termite barrier effective against termites, as well as other all arthropods, including ants. A to Z Pest Control is a certified, licensed pest control company with certifications in entomology and pest control. Respondent’s continuing contract with the pest control company required that the pest control barrier be renewed in December of every year. After opening the facility, Respondent entered into a regular pest control contract with A to Z. The contract was for integrated pest control management. Under the integrated pest management approach, the pest control company continually changed its approach to eliminating and preventing insect problems depending on the nature of the problem and its location within the facility. Monthly routine service and “call-backs” as needed were provided under the contract. The pest control company used EPA approved and laboratory-tested chemicals at the facility. No adverse incidents occurred at the facility as the result of ants or other insects from 1999 through 2003. From time to time, ant mounds were discovered in the yard to the facility, but were treated by maintenance personnel or the pest control company. Typical of insects in Florida, activity of insects increased in the spring and summer months. In addition to monthly treatment and Friday drop-bys, the pest control company personnel would treat pests at the facility whenever they were called. The first adverse incident related to ants at the facility occurred in August 2003, concluding a summer of an unusual amount of insect activity. In August, a patient was discovered in her bed with ant bites and pustules. Respondent then asked A to Z for a solution to the problem. The pest control company recommended a “barrier” treatment which involved placing insecticide in all openings in the facility, digging a trench around the building and placing granular insecticide in the trench, and finally spraying the lawn area in a band five to ten feet around the entire building. Despite the extra cost of such a treatment, Respondent approved the treatment and the additional payment. Notably, Respondent conducted a complaint survey in response to the August 2003 ant bite incident and determined that no deficient practices had occurred to cause the incident. Respondent assumed its pest control practices were adequate and continued to use the same pest control company, A to Z until the conclusion of July 2004. The barrier treatment, or grounds treatment, provided after the 2003 ant bite incident remained effective, in conjunction with the annual termite treatment, through the fall of 2003 and into the winter and spring of 2004. After that, it might have started breaking down due to rain and exposure to the elements. As previously noted, the afternoon of July 7, 2004, presented the patient with fire ants in her bed and approximately 60 ant bites on her head and upper body. The patient was removed from the room and thorough treatment for ants applied to the room while the patient was being treated. A survey was made of all of the rooms in the facility to determine if there were ants anywhere else. The grounds were inspected and all ant beds were treated. A to Z Pest Control was called, but couldn’t get out to the facility until the next day. On the following day, A to Z treated the entire inside of the building, but could not treat the grounds because it was raining. Personnel of A to Z returned and treated the outside of the facility on the following day, July 9. Thereafter, the “sugar” ant sandwich attack occurred. The room was immediately sprayed with pesticide. Several days later, the ants were again found in the same room and the room was cleaned and sprayed again. At this point, Respondent sought more aggressive treatment of ants to ensure that everything possible was being done to keep patients safe. Further, facility management created an “Action Plan” on July 7 to deal with this issue. This plan included daily rounds of the grounds; inspections of every resident’s room for signs of ants three times per shift (nine times per day); educating residents and staff of the necessity of keeping all food items tightly sealed; and implementation of a pest control log. Respondent also began the process of reevaluating its contract with A to Z after this incident. Several other local pest control operators were contacted and asked for a plan of treatment. The proposal to include an annual barrier treatment as a part of regular pest control services was made to Respondent for the first time. Shortly thereafter, Respondent terminated its routine pest control contract with A to Z (although A to Z retains the termite contract), and hired Panama Pest Control to provide both interior and exterior treatment with regular barrier treatment. Patients of Respondent’s facility were not at risk or in “immediate jeopardy” from insects on July 16, 2004. Petitioner requires nursing home facilities to adopt specific policies and procedures. Fla. Admin. Code R. 59A-4.106. Although pest control is not one of the required policies and procedures, Respondent has had since 2002, a policy and procedure on pest control. Respondent followed those policies and procedures. Among the pest control activities of Respondent before either ant bite incident were daily checks of every room, so-called “Angel Rounds," and regular monitoring of the grounds. Pest control is not part of the curriculum for Nursing Home Administrators. Neither Petitioner nor the Centers for Medicare and Medicaid Services have issued any regulations, guidance, or advisories with regard to pest control. The term “effective” as is used in the regulation requiring “effective pest control” isn’t defined anywhere. It is impossible to be certain that fire ants will not enter any building. The owner of A to Z Pest Control Company, bearing certifications in entomology and pest control, opined that no matter what you are doing to prevent ant bites, you can still do more. Even then, you cannot be sure of success “because you are trying to control something that is based in nature.” You can only provide pest “control” as opposed to pest “elimination.”
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a final order dismissing the Administrative Complaint and issuing a standard rating to Respondent’s facility, and further finding that no deficiencies stemming from the survey of July 16, 2004, as described under the tags and regulations cited and discussed above, have occurred. DONE AND ENTERED this 16th day of May, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 16th day of May, 2005.
Findings Of Fact At all times material hereto, Petitioner was, and is, a Florida certified pest control operator. Petitioner owns and operates Campbell's Pest Control, a firm licensed by the State of Florida for pest control purposes and doing business in Alachua, Florida. In his capacity as owner and operator of that firm, Petitioner supervises two cardholder employees. In the latter part of 1982, Petitioner received two letters from Respondent, one dated August 13, 1982, and the other September 7, 1982. Both of these letters contained notification to Petitioner of Respondent's contention that he had failed to comply with the requirements of Section 482.152, Florida Statutes, which provides as follows: A certified operator in charge of pest control operations of a licensee shall be a Florida resident whose primary occupation is in the structural pest control business, who is employed on a full-time basis by the licensee, and whose principal duty is the personal supervision of and participation in the pest control operations of the licensee as the same relate to the following: The selection of proper and correct chemicals for the particular pest control work to be performed. The safe and proper use of these pesticides. The correct concentration and formulation of pesticides used in all pest control work performed. The training of personnel in the proper and acceptable methods of pest control. The control measures and procedures used. The notification of the Department of Health and Rehabilitative Services within 24 hours of any knowledge of accidental human poisoning or death connected with pest control work performed on jobs he is supervising. Two memoranda were enclosed with the letter from Respondent dated September 7, 1982. The first of these was a legal memorandum from Respondent's counsel concerning an interpretation of Section 482.152, Florida Statutes, quoted above. This memorandum provided in pertinent part that: It is clear from a careful reading of Chapter 482 that the requirement concerning a fully qualified certified operator exists as a condition precedent to licensure because of the many dangers inherent in pest control activities. The interpretation placed on the language above quoted from Section 482.152, F.S. is that the certified operator's primary job should be that of a certified operator. Because of the many functions which are required to be performed by the certified operator, he should be on the job on a full-time basis or a nearly full-time basis for the licensee. It is obvious that the legislature, by using the language above described, intended to preclude 'certificate selling'. . . The other memorandum was dated February 23, 1978, and furnished to all commercial pest control licensees and certified operators, and concerned the subject of "renting" of pest control certificates. This memorandum provided in part that: It has come to the attention of this office that some licensees and certified operators are not in compliance with the provisions of Chapter 482.121 and 482.152, Florida Statutes, concerning the status and activities of a certified operator in charge of pest control activities of a licensee. * * * The intent and purpose of the provisions of the Pest Control Act . . . are to prevent such practices as certificate 'renting' or 'selling' under the pretense that the certified operator is in the [sic] charge of pest control activities of the licensee, when in fact he or she is not. The Office of Entomology will enforce the referenced provisions of chapter 482 F.S. as interpreted by legal counsel [in the January 25, 1977 memorandum] with regard to certificate 'renting'. Licensees and certified operators should examine their present arrangements with regard to this matter to determine if they are in compliance with the law. Violations could be grounds for suspension or revocation of licenses or certificates. Any licensee adversely affected would be entitled to apply for an emergency certificate upon loss of certified operator. By Administrative Complaint dated October 13, 1982, Petitioner was charged with a violation of Chapter 482, Florida Statutes: . . . in that you are presently employed on a full-time basis by the City of Gainesville as a firefighter and at the same time registered with the Department as an employee--identification cardholder and as a certified operator in charge of the pest control operations of Campbell's Pest Control . . . This constitutes a violation of Section 482.152, F.S., which requires, in part, that the primary occupation of a certified operator in charge of the pest control operations of a licensee shall be in the pest control business and that such certified operator be employed on a full-time basis by the licensee with the principal duty of personal supervision of and participation in the licensee's pest control operations as these operations relate to selection and safe, and correct use of pesticides, control measures and procedures used, and training of personnel; and a violation of section 482.121(1), F.S., which provides that no certified pest control operator shall allow his certificate to be used by any licensee to secure or keep a license unless such certified operator is in charge of the 'pest control activities of the licensee in the category or categories covered by his certificate and is a full-time employee of the licensee.
The Issue Whether Respondents Lee Ann Kennedy ("Kennedy") and Kenco Industries, L.L.C. ("Kenco"), engaged in various activities constituting pest control under chapter 482 without having obtained the required licenses from Petitioner Department of Agriculture and Consumer Services, in violation of sections 482.161(1)(j), 482.165(1), and 465.191(1), Florida Statutes.
Findings Of Fact The Parties Petitioner is the state agency charged with administering the Structural Pest Control Act, chapter 482. Respondent Kennedy is a resident of Wellington, Florida. Respondent Kenco Industries, L.L.C., is a registered Florida Limited Liability Company. Kennedy is the manager and sole member of, and the registered agent for, Kenco. Pest Control Regulation under Chapter 482, Florida Statutes Chapter 482 authorizes Petitioner to regulate activities constituting "pest control" and to impose sanctions for violations of that chapter. "Pest control" is broadly defined in section 483.021(22) as: The use of any method or device or the application of any substance to prevent, destroy, repel, mitigate, curb, control, or eradicate any pest in, on, or under a structure, lawn, or ornamental; The identification of or inspection for infestations or infections in, on, or under a structure, lawn, or ornamental; The use of any pesticide, economic poison, or mechanical device for preventing, controlling, eradicating, identifying, inspecting for, mitigating, diminishing, or curtailing insects, vermin, rodents, pest birds, bats, or other pests in, on, or under a structure, lawn, or ornamental; All phases of fumigation, including: The treatment of products by vault fumigation; and The fumigation of boxcars, trucks, ships, airplanes, docks, warehouses, and common carriers; and The advertisement of, the solicitation of, or the acceptance of remuneration for any work described in this subsection, but does not include the solicitation of a bid from a licensee to be incorporated in an overall bid by an unlicensed primary contractor to supply services to another. Petitioner is authorized to issue licenses to qualified businesses to engage in the business of pest control in this state. § 482.165(1), Fla. Stat. It is unlawful for any person, partnership, firm, corporation, or other business entity to engage in the unlicensed practice of pest control as that term is defined in section 482.021(22). Id. Section 482.191(1) makes unlawful the advertisement of pest control services except as authorized under chapter 482. Absent limited circumstances not applicable here, persons or entities engaging in such advertisement must be licensed by Petitioner to practice pest control. Petitioner also is authorized to fine persons who impersonate an employee of Petitioner. § 482.161(1)(j), Fla. Stat. Respondents' Acts Alleged to Violate Chapter 482 Respondent Kennedy did not hold a pest control business license or other license to practice pest control at any time relevant to this proceeding.2/ Respondent Kenco also did not hold a pest control business license or other license to practice pest control at any time relevant to this proceeding. On or about April 1, 2011, Kennedy entered Saigon Oriental Market in Lake Park, Florida. According to its owner, Hung The Thach, Kennedy walked around the store inspecting it, then told him that she was employed by Petitioner, that some of his produce was infested by insects, and that he would have to have pest control services performed or she would return in a week to conduct another compliance inspection. Kennedy gave Mr. Thach the telephone number for Outside In, a pest control company, and the business card of its owner, Dennis O'Rourke. Concerned that Kennedy would shut down his store or fine him, Mr. Thach called Outside In; the following day, an employee of that company performed pest control services at the store. Outside In performed additional pest control services at the store on or around May 26, 2011. Mr. Thach paid Outside In for these services. In mid-May 2011, Kennedy inspected Fajita's Super Market in Lake Worth, Florida, and told its owner, Ali Jaber, that she was employed by Petitioner as an inspector, and that he had a fly problem in his store. She recommended that he contact Outside In to correct the problem. Mr. Jaber told her he used another pest control company, but thereafter, a representative from Outside In visited the store, left a business card with Mr. Jaber, and offered to provide pest control services for the store for $150.00 per month with no contract. Kennedy returned to the store approximately a week later and wanted to know why nothing had been done to correct the fly problem; she also asked an employee of Fajita's who was going to pay for her time to inspect the store; when she was referred to Mr. Jaber, she left the store and did not return. On or around May 24, 2011, Kennedy entered the Fortune Cookie oriental supermarket in West Palm Beach, Florida, and told its president, David Chang, that she was with an inspector with Petitioner. She inspected the store, told him that there was a fly problem, and stated she would return in two weeks. Mr. Chang testified that Kennedy did not provide him the name of any pest control businesses, but that approximately a week before Kennedy inspected the store, a representative of Outside In had come to the store and tried to sell him pest control services, but that he had declined to purchase the services at that time. Dennis O'Rourke, President of Outside In, testified that Kennedy was not on his company's payroll, but that she had solicited pest control business for his company for approximately four months prior to September 2011. She successfully solicited four accounts and he paid her 30% of the profits made on those accounts. At the time she solicited the accounts, she did not possess a valid identification card to perform pest control services on behalf of Outside In.3/ Mr. O'Rourke subsequently obtained a valid identification card for Kennedy so that she could perform pest control, including business solicitation, for his company. Petitioner initiated an investigation of Kennedy in June 2011, after being notified by several small food markets in Palm Beach County that she was holding herself out as a food inspector with Petitioner, inspecting the stores, notifying the store operators that there was a pest problem, and recommending that Outside In be contacted to correct the problem. In the course of the investigation, on September 7, 2011, John Berquist, an inspector with Petitioner's Bureau of Entomology and Pest Control, took photographs of Kennedy's motor vehicle4/ bearing magnetic signs on the front passenger and driver side doors labeled "Kenco Industries," which depicted a photograph of Kennedy and advertised the provision of pest control services. Berquist checked Petitioner's pest control licensing records and determined that Petitioner had not issued a pest control business license or other pest control license to Kennedy or to Kenco. At the hearing, Kennedy acknowledged that she conducted food store inspections, pointed out pest problems to store operators, and recommended that they contact Outside In for pest control service. However, she denied holding herself out as an employee of Petitioner. She testified that she is certified in food safety by the Department of Health and that if she observed a pest problem while shopping, she would show her food safety certification card to the store operator and point out the problem. She claimed she did this because she is Vietnamese, so often shops at Asian food markets and wants the stores where she purchases her family's food to be pest-free. She also claimed that she only wanted the stores "to get what they needed" in the way of pest control service and that it did not matter whether she was compensated for soliciting business for Outside In. However, she acknowledged that she had been compensated by Outside In for the pest control business she had successfully solicited on their behalf. Kennedy testified that she did not intend to do anything that was against the law, and was not aware that she was engaging in conduct that violated the law. The evidence established that neither Kennedy nor Kenco previously violated chapter 482 or Petitioner's rules. Ultimate Findings of Fact Regarding Alleged Violations Based on the foregoing, Petitioner established, by clear and convincing evidence, that Kennedy impersonated an employee of Petitioner, as alleged in Count 1 of the Amended Administrative Complaint, in violation of section 482.161(1)(j). Kennedy's testimony that she did not hold herself out as an employee of Petitioner was contradicted by all other witnesses and was not credible. Petitioner also established, by clear and convincing evidence, that Kennedy and Kenco advertised pest control services without obtaining a pest control business license in violation of sections 482.165(1) and 482.191(1). There was no dispute that Kennedy advertised the provision of pest control services by herself and by Kenco by placing signs on her vehicle depicting her image and Kenco's business name. Further, Kennedy is Kenco's manager, sole member, and agent, so her actions in advertising the provision of pest control services by Kenco are imputed to Kenco.5/ Petitioner also proved, by clear and convincing evidence, that Kennedy solicited pest control business for Outside In for compensation, in violation of sections 482.165(1) and 482.191(1). Kennedy's testimony that she was motivated by altruism and personal interest in food safety at markets where she shopped, rather than by being compensated for soliciting business for Outside In, was not credible. The undisputed evidence establishes that she was compensated by Outside In for soliciting pest control business on its behalf. However, Petitioner did not establish, by clear and convincing evidence, that Kenco solicited business on behalf of Outside In. The evidence does not show that Kennedy represented to the food store operators that she was acting on behalf of Kenco when she solicited business for Outside In. To the contrary, the evidence established that Kennedy represented that she was an inspector employed by Petitioner. Accordingly, it is determined that Kenco did not solicit pest control business for Outside In, in violation of sections 482.165(1) and 482.191(1). As further addressed below, Petitioner's Enforcement and Penalties rule, Florida Administrative Code Rule 5E-14.149, makes the deliberate commission of an act that constitutes a violation of chapter 482 an aggravating factor in determining the applicable fine. Here, the evidence shows that Kennedy intentionally misrepresented that she was employed by Petitioner specifically to solicit and induce food store operators to purchase pest control services for which she would be compensated. Accordingly, it is determined that Kennedy acted deliberately in impersonating an employee of Petitioner and in soliciting business on behalf of Outside In for compensation. Furthermore, the evidence shows that Kennedy——and by operation of the law of agency, Kenco——deliberately engaged in advertising the provision of pest control services without having obtained the required license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner Department of Agriculture and Consumer Services impose a fine of $2,600.00 on Respondent Lee Ann Kennedy, and impose a fine of $1,000.00 on Respondent Kenco Industries, L.L.C. DONE AND ENTERED this 27th day of June, 2012, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 27th day of June, 2012.
Findings Of Fact On August 25, 1982, Petitioner received an application for pest control business license and identification cards, Petitioner's Exhibit 1, signed by Perry Commander, requesting licensure for Donald and Bales Exterminating Company, Inc., at 615 East Chestnut Avenue in Crestview, Florida. In the blank for "owners [or] corporation officers" appeared the name R. N. Bales, Jr. Among those on whose behalf identification cards were sought were listed Ronnie James McLean and Byron Bales. Byron Bales was listed as "MGR Salesman," while Perry Commander was listed as "Certificate Holder." Perry Commander was also listed as the certified operator. Petitioner granted this application on September 22, 1982, issuing license No. 343. Since approximately 1974, there have been applications for licenses at this location. Based on an application not in evidence signed by Byron Bales sometime before August 17, 1983, Petitioner issued an emergency certificate. On August 17, 1983, Petitioner received an application form signed by Byron Bales, which Petitioner returned to Mr. Bales for more information, and received a second time on August 29, 1983. Petitioner's Exhibit 2. The form gave Donald & Bales Exterminating Co., Inc., as the applicant's firm name and 615 East Chestnut Avenue in Crestview as the firm's address. Byron Bales and "R. [B]ales" were listed as "owners [or] corporation officers." Byron Bales, Colonel (Matthew) Bales and Ronnie James McLean were listed among those on whose behalf identification cards were sought. Byron Bales was listed as "Manager Salesman." Perry Commander's name was crossed out, as was his designation as "Certificate Holder." Nobody else was designated certificate holder, and nobody was listed as a certified operator. This application, which was made on a multipurpose form, has not been acted on. Boxes were printed next to various categories including "Initial (New) License," "Change-of-Business Ownership License" and "Renewal License." No box was checked, however. On February 4, 1976, Aggie B. Nelson of Chipley, Florida, contracted with Donald and Bales Exterminating Company, Inc. (Donald & Bales), for treatment of the foundation of her two-bedroom frame house for termites and agreed to pay $30 a year thereafter for annual inspections and preventive sprayings. Petitioner's Exhibit 3. The contract gave a Crestview address for Donald & Bales. On March 24, 1982, Ronnie James McLean arrived at the Nelson home in a truck emblazoned with the Donald & Bales logo and sprayed underneath Ms. Nelson's house. He emerged with five or six bugs in his hand that he told Ms. Nelson were beetles. He said the house needed to be sprayed for beetles and offered to do it while he was there for $230. Ms. Nelson allowed as how that would sure put her in a bind, but agreed to have him spray. Mr. McLean and Ms. Nelson each signed a Donald & Bales form contract on which Mr. McLean checked the box beside the word "Prevention," but not the box beside the word "Infested." The contract showed a Crestview address for Donald & Bales. Petitioner's Exhibit 4. Ms. Nelson wrote a check for $230 to Ronnie J. McLean personally. Later, she began to inquire and eventually arranged for William E. Page, an entomologist in Petitioner's employ, to inspect her house. At the hearing, Mr. Page was qualified as an expert in pest control and testified without contradiction that there was no sign of there having been a beetle infestation at Ms. Nelson's home at any time. Mardra Stewart was at home in her three-bedroom log house down below Orange Hill from Chipley when Ronnie J. McLean stopped by on April 19, 1982. "He sent some of the men he had with him under the house, and they c[a]me out with a handful of the sills," wood that appeared to have been eaten into by termites. Mr. McLean told Ms. Stewart she should have her house sprayed because insects "had eat it up under there." (T. 89) She agreed to the spraying and paid McLean $225 for spraying. Mr. McLean and Ms. Stewart each signed a Donald & Bales form contract on which Mr. McLean checked the box beside the word "Prevention," but not the box beside the word "Infested." The contract showed a Crestview address for Donald & Bales. Petitioner'S Exhibit 8. The next day, Ms. Stewart called the sheriff and eventually telephoned Petitioner's Jacksonville offices. Mr. Page inspected her house and found no evidence of an active or recent infestation of insects of any kind, although he did discover evidence of old powder-post beetle damage. In his opinion, the Stewart house probably needed treatment. Emma Martin Denham of Altha, whose husband died in 1976, has lived in the same house for 35 years; and the Denhams have dealt with Donald & Bales for about half that time. On August 5, 1977, Mrs. Denham paid Marvin A. House $448 to spray for beetles, termites and "wood bores." Mr. House, or somebody else who worked for Donald & Bales at the time, told her, in August of 1977, that there was a new infestation of beetles. She also agreed to pay $25 a year for annual sprayings and inspections. Petitioner's Exhibit 5. On August 13, 1981, John A. McKinnon took $224 from Mrs. Denham on behalf of Donald & Bales in exchange for a commitment to spray for subterranean termites and powder-post beetles. Petitioner's Exhibit 7. The written agreement, a Donald & Bales form signed by Mr. McKinnon and Mrs. Denham, provided: "DONALD and BALES agrees. . .to guarantee [the August 13] treatment for a period of one (1) year. . .such guarantee being to protect the owner from the return of [subterranean termites and powder-post beetles]. . .DONALD and BALES agreeing to re-treat such property in the event of reinfestation. . ." Petitioner's Exhibit 7. On June 15, 1982, someone falsely claiming to be Byron Bales told Mrs. Denham that she had an infestation of ambrosia beetles and that her home needed spraying. He showed her two pieces of wood crawling with bugs that he claimed to have found underneath the house and charged her $403 to spray. Mrs. Denham and her visitor each signed a Donald & Bales form contract, the exterminator signing as Byron Bales. Petitioner's Exhibit 6. After he left, Mrs. Denham looked for the wood and the bugs, but could not find them. She wrote Donald & Bales, asking for a refund. When she got no reply, she contacted the authorities. Mr. Page came to her house to inspect, as a result. He found no evidence of ambrosia beetles, which was to be expected since ambrosia beetles only infest living trees. He found no evidence of active pests of any kind and no evidence of drilling or trenching for termites. He found some old powder-post beetle damage, but no other evidence of insects. Donald & Bales eventually refunded $403 to Mrs. Denham. On September 15, 1982, Mrs. J. C. Phillips telephoned her daughter, Margaret Powell, and asked her to come to the Phillips' house on Bayshore Drive in Niceville "to write the check for the exterminator." (T. 94) By the time Ms. Powell arrived, the spraying had been done. Ms. Powell asked Ronnie James McLean and his companion(s) to show her some beetles. When they were unable to do so, she declined pay, even after Mr. McLean referred her to Byron Bales, who was at work next door. Mr. McLean and Ms. Phillips each signed a Donald & Bales form contract on which Mr. McLean checked the box beside the word "Prevention," but not the box beside the word "Infested." Petitioner's Exhibit 9. The contract indicated prophylactic treatment of the foundation for powder-post beetles for $150 and called for annual inspections and resprayings for $45 per year. Petitioner's Exhibit 9. On September 22, 1982, when Mr. Page inspected the Phillips' house, he found no sign of any infestation, new or old, by beetles (or termites). When tenting is not resorted to, the treatment for beetles is applying Lindane with a power sprayer in such a concentration that the odor lasts about a month. This odor was not present when Mr. Page inspected, one week after Mr. McLean's visit. In November of 1982, Barbara K. Baker Glass was at the home of George Baker, her father, in Flomaton, when Matthew Bales and a companion came by to inspect the floor which he had a month or two earlier sprayed for powder-post beetles. [T]he one guy turned to the other one and said, "Did you check the attic?" And he said, "No." And he said, "Well, we'll have to check the attic to see if there's any up there." And they did, and he came back down with a piece of wood that he said was from our house. And he said that it needed spraying, and it would cost two hundred and seventy-five more dollars. Q. Do you remember this man's name? A. Matthew Bales. Q. All right. How is it that you remember him? A. I wrote the check gut to him for my dad, and I wrote it to Donald and Bales, and he had me tear that one up and write it to him. Q. Now, what did he say, this person who said he was Matthew Bales? What did he say about the attic? A. He said that we had a real bad case of powder post beetles. [T. 154-155] When Mr. Page inspected Mr. Baker's attic, he found no sign of powder-post beetles. It is possible for powder-post beetles to Infest attics, but it is ordinarily too hot for them. Except for Petitioner's Exhibit 7, all the Donald & Bales form contracts state, "Please make check to representative." Having customers write checks in favor of the individual exterminator is "company policy." (T. 169) The corporate structure of Donald and Bales Exterminating Company, Inc., and lines of authority over its west Florida operations are somewhat confused. Robert M. Bales, Jr., of Wellborn in Suwannee County, who owns all the corporation's stock, has not worked in the Panhandle for ten years or more. On June 15, 1982, he signed some agreement which was not offered into evidence. By this instrument, he intended to convey to Byron Bales, his 47-year-old son, all the rights Donald and Bales Exterminating Company, Inc., had in termite control contracts relating to structures west of Leon County, along with "the name of the business. (T. 137) Robert M. Bales, Jr., was unaware at the time of any requirement to notify Petitioner of this change and did not do so. Donald and Bales Exterminating Company, Inc., holds at least one other license at a location other than Crestview, which is not at issue here. Byron Bales fired Ronnie James McLean because "he stole money from me." (T. 165) He accomplished this theft by selling contracts and cashing checks. (T. 167) Mr. Bales did not discharge Mr. McLean when he first learned that money had been diverted, "not on the first one. . ." (T. 167) The Hearing Officer has had the benefit of Petitioner's proposed recommended order in preparation of the foregoing Findings of Fact. Proposed findings have been adopted, in substance, for the most part. To the extent they have been rejected, they have been deemed unsupported by the weight of the evidence, immaterial, cumulative, or subordinate.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the motion of Robert M. Bales, Jr., for dismissal as to him individually be granted. That Petitioner revoke License No. 343, issued to Donald and Bales Exterminating Company, Inc., at Crestview. DONE AND ENTERED this 13th day of December, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II 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 13th day of December, 1983.
Findings Of Fact Alinco Associates, Inc. (Alinco) is a corporate real estate broker and was so registered with FREC at all times material herein. Alfred C. Couric, Jr., Carol L. Astin, and Reginald D. Lucas are real estate brokers and at all times material herein were so registered with FREC. Respondent Alinco was the listing broker for a home at 7110 Filmore Street, Hollywood, Florida, owned by Jones. In December, 1977, Mrs. Jones had a termite inspection by Orkin. The inspector reported active termite infestation in the attic and induced Mrs. Jones to sign a contract for tenting and fumigation. After talking to salesman Boland and his supervisor and listing broker, Respondent Lucas, Mrs. Jones commissioned a second inspection by Harry Pope, a licensed termite inspector. Pope also found active termite infestation and so advised Mrs. Jones. When told by Mrs. Jones that she had already entered into a contract with Orkin, Pope did not further pursue the matter. Respondent Lucas called Pope's office after the inspection but Pope was out and his secretary said he left no word there was active infestation. Lucas assumed from this that termites were not found. Pope never relayed his findings to anyone other than Mrs. Jones. Mrs. Jones rescinded the fumigation contract she had entered into with Orkin. After the Contract for Sale had been executed and a "solid" sign appeared on Jones' property the Orkin salesman revisited Mrs. Jones to inquire about the fumigation and was told she would call when ready. Approximately thirty days prior to closing, salesman Boland, on behalf of the purchaser, ordered an inspection by DeLeva Exterminating, Inc. Robert W. DeLeva, President of DeLeva Exterminating, Inc., inspected the residence at 7110 Filmore Street on March 8, 1977, found no evidence of active termite infestation and submitted a termite clearance report which was presented to the buyers at closing. Some three weeks after the closing and occupancy of the house, the purchaser Menendez was advised by the Orkin inspector that he had found evidence of termites. Menendez then called DeLeva who again inspected the premises and on this inspection found evidence of active termite infestation. No evidence was presented that any Respondent other than Lucas (and former Respondent Boland) as aware of the Orkin inspection and report. DeLeva Exterminating, Inc. is a licensed corporate termite inspector as is Orkin, but neither the Orkin inspector nor Robert DeLeva was a licensed inspector when their inspections were made. Robert DeLeva has conducted numerous termite inspections but, following this incident, limits his field of operations to fumigation for which he is licensed.
Findings Of Fact Petitioner has a degree in pest control technology. On June 18, 1981, Respondent renewed Petitioner's Pest Control operator's Certificate No. 2303 until June 1, 1982, in the categories of general household pests and rodent control, termite and other wood-destroying organism control, and lawn and ornamental pest control. On May 6, 1982, Petitioner filed his annual Application for Renewal of his certificate in the same categories. On that application, Petitioner answered "yes" to the question: "Have you been convicted by any court of a felony or of a crime involving moral turpitude within the past year?" and he answered "no" to the question: "[H]ave your civil rights been restored?" By letter dated June 15, 1982, Respondent denied Petitioner's Application for Renewal based upon Petitioner's answers to those questions, and Petitioner timely requested a formal hearing on that denial. On December 16, 1982, Respondent wrote to the Division of Administrative Hearings advising that a Hearing Officer had not yet been assigned to hear this matter and attaching only a copy of a July 6, 1982, letter from Respondent requesting the Division to conduct a formal hearing in this cause. Since the July 6 letter had never been received by the Division of Administrative Hearings, and since the December 16 letter failed to transmit Petitioner's request for hearing or any other pleadings or papers setting forth the substance of the cause, the Staff Assistant of the Division telephoned Mrs. Cheryl Ganley of Respondent's Clerk's Office on December 23, 1982, and requested the documents required to open a case before the Division of Administrative Hearings. That telephonic request was followed up with a letter to Mrs. Ganley on January 4, 1983. No response to either the telephonic or written inquiry was made by Respondent until March 24, 1983, when Respondent again wrote to the Division of Administrative Hearings asking why the matter was not scheduled for hearing and attaching only a copy of its December 16, 1982, letter. On March 31, 1983, the Director of the Division wrote Respondent outlining the chronology of the letters to and from Respondent and again advising Respondent that the case could not be heard until Respondent transmitted the pleadings required to open a case file. On April 11, 1983, Respondent finally did so. Petitioner relies upon his licensure by Respondent as a Certified Pest Control Operator for his livelihood and has no other training or means for earning a living. Other than Petitioner's testimony that his involvement in the incident was minimal, the only evidence introduced regarding the circumstances surrounding his arrest and conviction is a letter from Petitioner's Probation Officer, which letter constitutes uncorroborated hearsay and, therefore, cannot support a finding of fact. Petitioner's probation should be terminated in approximately six months, at which time he will be able to seek restoration of his civil rights. He anticipates no problem in having his civil rights restored. At the formal hearing in this cause, the parties stipulated that the only bar to renewal of Petitioner's licensure is his conviction of a felony or of a crime involving moral turpitude without his civil rights being restored.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered approving Petitioner's Application for Renewal of his Pest Control Operator's Certificate No. 2303 for the annual period commencing June 1, 1983. DONE and RECOMMENDED this 17th day of June, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 17th day of June, 1983. COPIES FURNISHED: Harold L. Braynon, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301 Mr. Christopher M. Hagerty 1141 South West Sixth Avenue Fort Lauderdale, Florida 33315 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Respondents, during all times here involved, were licensed by Petitioner as alleged and operated three separate pest control offices in Jacksonville, New Smyrna Beach and Palatka. During the period between May 1976 and April 1977 no certified operator was registered with Petitioner at the Jacksonville or New Smyrna Beach offices. During this period numerous fumigation contracts were entered into by Respondents. When these contracts were carried out all fumigation was performed under the supervision of a currently registered certified operator who was attached to the Palatka office owned by Respondents. Between June 1976 and October 1977 24-hour advance written notice of fumigation was not provided by Respondents to the health authorities in Duval County on five occasions and to the health authorities of Volusia County on six occasions. However, the health inspectors of each county apparently received telephone notice because they inspected the fumigations for which the written notice was not provided a higher percentage of times than the average inspection for fumigation for which 24-hour written advance notice was provided. Several violations involved the certified operator notifying HRS by letter that he would be certified operator for a specific office commencing on a given date and thereafter failing to submit the proper forms to obtain a current pest control identification card for the office at which he worked. Proper registration of pest control salesmen and certified operators requires the issuance of a pest control identification card for a specific location. On some occasions the charges resulted from Respondent, United Pest Control, acquiring another pest control company and continuing operations under United Pest Control without having changed the pest control identification cards of these employees. Two charges involved agents of Respondent who entered into contracts with customers. One resulted from a complaint that the agent inaccurately advised the customer that there was termite infestation and one involved a complaint of improper treatment for subterranean termites. After the customers complained to governmental authorities Respondents refunded their money. When Respondent Powell attempted to inspect the premises to verify the complaint of these two customers he was denied access to the premises by the customers. The certified operator in the Palatka office was used to supervise a fumigation contract obtained in the Jacksonville office and the New Smyrna Beach office during the period here involved. He told Respondent several times that it was a violation of the regulation for him to perform the fumigation on contracts in these other offices, but only after he reported this to HRS was the practice stopped. At the time of the hearing the Jacksonville pest control operation had been sold by Respondent United Pest Control.
Findings Of Fact Respondent, David W. Brown, is the sole proprietor of an unincorporated business known as A-Quality Terminators which operates in the Orlando area. Respondent is licensed to operate a pest control business by the Petitioner. Respondent is also the holder of an identification card issued by the Petitioner which authorizes him to perform inspections of structures for wood-destroying organisms. Results of a wood-destroying organism inspection are required to be evidenced by completion of the Respondent's approved Form 1145, Wood Destroying Organism Report. Prior to April 20, 1984, Respondent was asked to perform a wood- destroying organism inspection at a residence located at 2913 Risser Avenue, Orlando, Florida. The inspection was requested by the purported owner, a woman using the name of "Laura Taylor," for the alleged purpose of enabling the owner to obtain refinancing of the mortgage on the residence. The advance arrangements made with "Ms. Taylor" were that the residence would be unoccupied during the inspection to be made on April 20, 1994, that a residence key would be left for Respondent under the door mat, that a check would be left for Respondent on the table inside, and that Respondent would leave a Form 1145 Wood-Destroying Organisms Inspection Report on the table inside. The person purporting to be the owner of the subject property was actually Laura Douglas, an employee of a local television station. She was using the fictitious name "Laura Taylor", as a part of the sting operation the station was conducting. The real owner was Dawn Angert. The contrivance to have Respondent inspect the subject property was part of arrangements made by the TV station to have inspections conducted by several pest control companies of the subject property. An investigative report would then be produced and broadcast by the station. Respondent had previously performed several wood-destroying organisms inspections in the subdivision where the subject residence is located, and he was familiar with the common types of construction throughout the subdivision and the common types of wood-destroying organism problems throughout the subdivision. On April 20, 1994, Respondent arrived at the subject property and remained for approximately eight minutes. He noticed termite damage inside the front door. He also observed the drill holes, indicating prior termite treatment, outside the front door, even though the drill holes had been obstructed by the door mat and potted plants. Respondent did not complete his inspection at that time. He did not leave a Form 1145, nor did he leave a notice of inspection. However, he took the check on the table inside, and left a note on his business card indicating that there were problems requiring further inspection. Portions of Respondent's activities at the subject property on April 20, 1994, were videotaped by three hidden cameras of the TV station. A day or so after the subject inspection of April 20, 1994, the purported owner of the subject property, "Laura Taylor," telephoned Respondent's office to advise that she urgently needed a "clean" Form 1145 because interest rates were going higher and she wanted to complete the purported refinancing transaction. She insisted that the Form 1145 be taped on the door of Respondent's office so that she could drive by and pick it up. Respondent's secretary called him while he was in the field to obtain approvals for the release of the report. Respondent, acting without his field notes and without a clear recollection of his inspection of the subject property, asked his office by telephone whether any notes at the office reflected a problem at the subject property. He was advised that no such notes were found. He then instructed his office to provide "Ms. Taylor" a "clean" Form 1145 pursuant to her urgent request. The Form 1145 was completed showing no evidence of any damage by wood- destroying organisms or any evidence of treatment of wood-destroying organisms. The report was taped to the office door and picked up that afternoon. Respondent did not follow his normal procedure of checking his field notes before issuing a Form 1145 report. The following day, while reviewing his notes, he discovered his error and attempted to communicate the mistake to "Ms. Taylor." Respondent did not intend to provide an erroneous Form 1145 following the inspection of the subject property. The incomplete inspection and erroneous wood-destroying organism report prepared by Respondent fell below the standard of practice in the pest control industry in the Orlando area and was negligent. In mitigation, following the extensive media publicity generated by this matter, Respondent lost a substantial volume of business, has substantially reduced the number of his employees, has been forced to close his office and work out of his home, and has suffered personal embarrassment and loss of reputation. In the weeks preceding the hearing in this case, Respondent was a participant in an unrelated undercover operation which led, through his efforts, to the detection and interdiction of a third party's scheme to distribute banned pest control substances unlawfully. Respondent's efforts led to an investigative report broadcast by another local televison station, and further led to enforcement action against the third party by the Petitioner. Respondent has never previously had any fines or warning letters imposed against him in the course of several years of pest control work and several thousand wood-destroying organisms inspections in Florida.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered which finds the Respondent guilty of violating the provisions of Section 482.226(1) and 482.161(1)(f), Florida Statutes, and Rule 5E-14.142(2)(c), Florida Administrative Code. It is further, Recommended that the Respondent be issued a letter of reprimand and be assessed an administrative fine of $500.00. However, should the Petitioner determine that Respondent cooperated and played a significant role in the unrelated sting operation, said administrative fine should be suspended. DONE and ENTERED this 23rd day of May, 1995, in Tallahassee, 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 23rd day of May, 1995. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1 (in part), 2, 3 (in part), 5 (in part). Rejected as a conclusion of law: paragraph 1 (in part). Rejected as subsumed or a comment on the evidence: paragraph 3 (in part), 4 (in part), 5 (in part), 6, 7; Supplement paragraphs 1, and 2. Revised proposed findings of fact by Respondent. Accepted in substance: paragraph 1, 2, 3, 4, 5, 7 (in part), 8, 9 (in part), 10, 11 (in part), 12 (in part), 13 (in part), 14 (in part), 21 (in part), 22 (in part), 23. Rejected as irrelevant and immaterial: paragraph 6, 7 (in part), 9 (in part), 13 (in part), 15, 16, 17, 18, 19, and 20. Rejected as a comment on the evidence or subsumed: paragraph 7 (in part), 11 (in part), 12 (in part), 14 (in part), 21 (in part), 22 (in part). COPIES FURNISHED: Robert G. Worley, Esquire Richard Tritschler, Esquire Department of Agriculture & Consumer Services Mayo Building, Room 515 Tallahassee, Florida 32399-0800 Robert W. Genzman, Esquire Akerman, Sneterfitt & Eidson, P.A. 255 South Orange Avenue Post Office Box 231 Orlando, Florida 32802-0231 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800
Findings Of Fact James Dale Cooley, Respondent herein, is a certified pest control operator doing business as Tropical Pest Control and Closing Inspection Services Company. On December 6, 1990, Respondent inspected a residential property located at 1222 Stimson Street, Jacksonville, Florida, and issued a Wood- Destroying Organisms Inspection Report, HRS Form 1145. That report indicated that wood fungi was present in the subfloor and was caused by a moisture condition in the crawl space. The block under "Report of Findings" on that report for "visible evidence of wood-destroying organisms observed" was marked, "Yes." Under "comments," Respondent stated "Mature home; minor deterioration bottom of siding and trim of detached utility." Subsequently, Respondent issued a second Wood-Destroying Organisms Inspection Report for the same residence, bearing an inspection date of December 7, 1990. The second report indicated that no visible evidence of wood destroying organisms was observed. The "comments" portion was modified to read, "mature home has moisture condition in crawl space, common problem may be considered minor." The issuance of the second report clearly contradicted the first report as to existence of damage from wood-destroying organisms. The property was subsequently purchased based on the report of findings dated December 7, 1990. Mrs. Robinson, the realtor who commissioned the Respondent's inspection and report, testified that this second report was seen by the buyers and co-signer, and probably by the mortgagor, but that the earlier one was not. Eleven months later and after an above-average period of rainfall, on November 25, 1991, an HRS inspector visited the subject property and determined that evidence of damage caused by wood decay fungi was present in the substructure area. The primary cause of wood-destroying fungus growth is moisture. During this on-site investigation, Respondent was cooperative with the HRS inspector and provided him with a copy of his December 6, 1990 report. Receipt of a copy of the earlier report signalled to the department that there had been possible fraud in the sale of the house. Departmental personnel reached that conclusion because the first report had stated that there were wood-decaying organisms present, one day later the second report indicated that there were not such organisms present, and eleven months later wood- decaying organisms were found to be present. According to Respondent, when he made his inspection on December 6, 1990, he had observed only mold, mildew, and moisture stains, but no wood destroying organisms. Respondent's explanation for issuing two reports totally contrary to each other was that he intentionally made out a "very objectionable report" on December 6, 1990 showing that "wood fungi" and "wood destroying organisms" were present because he wanted the buyers to be fully informed about what was really wrong with the house and because he felt the "very objectinable report" would induce the buyers or the realtor to phone him, personally. His explanation for why he wrote in "wood fungi" on the first inspection report was that he was trying to signify only "wood fungi" but not "wood destroying fungi" or "wood destroying organisms." Respondent's testimony on this score is contradicted by the first inspection report itself whereon he had checked the box indicating that he had observed "wood destroying organisms." Respondent also had no plausible explanation for why he did not simply make a full and accurate explanation in the "comments" section of the first report. Also, according to Respondent, he filled out the new report not on December 7, 1990 but sometime thereafter around December 10 after receiving assurances from Mrs. Robinson that the buyers had been informed by somebody else of the true condition of the house. Respondent testified that he made out the second inspection report to reflect the truth of what he had seen on December 6th, not to defraud anyone by substituting a "good" report for the previous "bad" report. Nonetheless, Respondent charged $55.00 for the inspection and what he called a false report on December 6 and $25.00 for the "update" which he called a true report bearing the December 7 date. He admittedly did not re-inspect the premises. According Respondent every benefit of the doubt, it is clear from his own testimony that he intentionally falsified one report which ultimately resulted in an unnecessary fee of $25.00 which someone had to bear when the sale of the property was closed. Competent expert and lay testimony are in accord that mildew and mold are not fungi; neither organism is a wood decay fungus; neither organism metamorphoses into a wood decay fungus when exposed to prolonged moisture, and neither organism is an algae. Mr. Phillip Helseth testified competently and credibility that it is commonly understood that if one cites "wood fungi" as the Respondent did on the first wood-destroying organisms report it is commonly understood within the inspection industry to mean "wood decaying fungi." Mr. Helseth's testimony is also credible to the effect that there would be no reason to report "wood fungi" which is not decaying/destroying on such a report. Moreover, the HRS form utilized for both reports explicitly defines "wood-destroying organism" as, "arthropod or plant life which damages a structure, namely termites, powder-post beetles, wood-boring beetles, wood-boring wasps, carpenter bees and wood- decaying fungi." Mr. Helspeth also testified competently and credibly that "wood decaying fungi" constitutes a "wood destroying organism" and that to call mildew and mold "wood fungi" is inaccurate and falls below the standards of the profession. The competent credible evidence as a whole supports a finding that Respondent issued a false report which was not in accordance with good industry practice and standards. Having made that finding of fact, the undersigned may consider his prior disciplinary record (three cases) and has done so for purposes of penalty, only.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order finding Respondent guilty of the statutory violations charged in the administrative complaint, and suspending Respondent's Pest Control Certificate No. 2236 in the category of "Termite and Other Wood-Destroying Organism Control" for a period of three months. DONE and RECOMMENDED this 11th day of September, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto 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 September, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-1055 The following constitute specific rulings, pursuant to S120.59 (2), F.S., upon the parties' respective proposed findings of fact (PFOF) Petitioner's PFOF: 1-8 Accepted 9-10 Accepted as modified to reflect the greater weight of the admissible evidence. Penalty matters are relegated to the conclusions of law. Respondent's PFOF: 1 Rejected as a conclusion of law. 2, 4-12 Accepted except as to unnecessary, subordinate, and cumulative material. 3 Rejected as not suppported by the record. 13-15 Rejected as mere legal argument and not dispositive of the material issues in the case. COPIES FURNISHED: Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Scott D. Leemis Assistant District Legal Counsel P. O. Box 2417 Jacksonville, Florida 32231-0083 Griffin Helwig, Esquire 3030 Harley Road #190 Jacksonville, Florida 32257
