Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the final hearing, the following facts are found: At all time material to these proceedings, Respondent DiFalco, was employed by Sears Termite and Pest Control (Sears) of Tallahassee, Florida, a licensee as defined in Section 482.021(12), Florida Statues. Although Respondent was an employee of a licensee, Sears, there was no evidence that Respondent was a "certified operator", or an "identification cardholder" or a "special identification cardholder" as defined by Section 482.021(5)(9), Florida Statutes, and Section 482.151, Florida Statutes, respectively. On or about May 31, 1988, Respondent, representing Sears and responding to a request by Dixie Lee Mims (Mims), inspected the residential property of Mims and represented to Mims that her home was infested with subterranean termites and powder post beetles and that control treatment was needed. Subsequently, though Sears, Respondent entered into a contract, number 96232, with Mims for the control of termites at a cost of $875.00 to be paid through Mims' Sears charge account. Respondent advised Mims that the cost for control of the beetles was included in the contract even though such control was omitted in the contract. Subsequent inspection of the Mims' home by an independent pest control firm and by Petitioner's entomologist revealed no visible signs of present or recent infestation of termites or beetles. Roger White, Manager, Sears, based on an additional inspection by Sears worked out a settlement with Mims whereby Mims would be given $500 credit on her Sears charge account and retain her contract with Sears.
Recommendation Upon consideration of the fcregong Findings of Fact and Conclusions of Law, the evidence of record and the demeanor of the witnesses, it is, therefore, RECOMMENDED that Petitioner enter a Final Order dismissing the Administrative Complaint filed herein. Respectfully submitted and entered this 16th day of May, 1989 in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1989. COPIES FURNISHED: Anthony T. DiFalco Route 5, Box 215, #3 Tallahassee, Florida 32301 John L. Pearce, Esquire District 2 Legal Office 2639 North Monroe Street Suite 200-A Tallahassee, 32303-4082 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
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
The Issue Petitioners seek attorney's fees and costs from Respondent, Department of Agriculture and Consumer Services, pursuant to Section 57.111, Florida Statutes. The parties have stipulated that Petitioners are "small business parties" under that section, and that the fees and costs being sought are "reasonable." The issues remaining for disposition, therefore, are: Whether Petitioners "prevailed" in all four underlying cases, including the two that were settled prior to final hearing; Whether the Department "initiated" the procedures, or was merely a "nominal party"; Whether the Department had a "reasonable basis in law and fact" at the time that it initiated the proceedings; Whether special circumstances exist which would make an award unjust; and Whether the statutory $15,000 cap should be applied collectively or separately to the four underlying cases.
Findings Of Fact (The facts are substantially uncontroverted and the facts established in the underlying cases nos. 94-2801, et al are incorporated by reference. The following facts are recounted to establish a background for the contested issues of law.) As stipulated, the Petitioners are small business parties within the meaning of Section 57.111, Florida Statutes. They are Florida corporations, with their principal offices in Florida, with less than 25 full-time employees and net worth of less than $2 million. The Department of Agriculture and Consumer Services (department) is the state agency responsible for administering and maintaining the pesticide- sensitive and especially pesticide-sensitive person registries as provided in Section 482.2265(3), Florida Statutes (1993). Carol Ann Rodriguez, Jacqueline V. Dilworth, Susan L. Maxwell and Carrietta Kelly are four individuals, among approximately twenty-seven individuals, who applied to the department for designation as "especially pesticide-sensitive" pursuant to subsection 482.2265(3), Florida Statutes, (1993). The pesticide-sensitive and especially pesticide-sensitive registries are described in the department's final order entered August 4, 1995, adopting all but two findings of fact in the Hearing Officer's recommended order in Case No. 94-2801, et al. These findings, and the findings related to the department's review of applications, need not be repeated here. In summary, however, the department did not investigate the merits of the applications but merely determined whether the certifying physicians were qualified according to the department's liberal interpretation of its own rule. That review function was delegated primarily to the secretary for the administrator of the department's pest control section. After review, the department published quarterly notices in the Florida Administrative Weekly of its intent to grant applications of especially pesticide-sensitive persons. The notices listed the names and addresses of the applicants and described the process for pest control operators to request hearings pursuant to Section 120.57, Florida Statutes. These were clear points of entry. Petitioners here, and the Florida Pest Control Association, Inc. filed their requests for hearings, challenging the department's proposed action. The underlying consolidated cases resulted. Prior to the formal hearing, several individual applicants, including Carol Ann Rodriguez and Jacqueline Dilworth, settled their cases by withdrawing their applications and agreeing to be placed on the less restrictive pesticide- sensitive registry. This outcome was favorable to Petitioners because they were thereby relieved of the more onerous notification requirements which attach when an individual is designated "especially pesticide-sensitive." This was the relief Petitioners sought. After vigorous prehearing motion and discovery activity, approximately twenty consolidated cases proceeded to formal hearing. Among those were the individual cases of Susan L. Maxwell and Carrietta Kelly. The department, through counsel, participated in the formal hearing. It presented evidence through exhibits and witnesses, and cross-examined witnesses presented by other parties. Evidence to support Susan Maxwell's application was limited to a certification signed by Dr. Albert Robbins, an osteopathic physician. The certification was not supported by any non-hearsay evidence. Evidence to support Carrietta Kelly's application was limited to Dr. Robbins' testimony that he signed her certificate after she and her physician husband called him and wrote him a letter. Mrs. Kelly was never Dr. Robbins' patient and he never met her. The outcome of the formal hearing was a recommended order which found that no individual in the multiple cases presented adequate proof of the need for notification at greater distance than that specified for pesticide-sensitive persons. In other words, the applicants failed to prove entitlement to designation as "especially pesticide-sensitive." The department entered its final order on August 4, 1995, and adopted all but two findings by the hearing officer. The first rejected finding was that nothing in evidence indicated that one of the certifying individuals, "Roy P. Doyle," was a physician. The second finding rejected by the department was that the department had failed to justify or explicate its policy for qualifying physicians other than those specified in its own rule. The department's final order removed all of the individual parties from the registry as "especially pesticide-sensitive" and left them on the pesticide-sensitive list. Petitioners thus prevailed on the central issue in dispute: whether the individuals were entitled to designation as "especially pesticide- sensitive." The fees and costs incurred by Petitioners in their successful defense, as well as fees incurred in pursuing the instant claims, are appropriately described in affidavits filed with the petitions and amended petitions. The department accedes to the reasonableness of the fees and costs, except where they are duplicated in more than one case. The affidavits establish that the Petitioners incurred $22,348.70 in attorney's fees and $4,085.26 in costs related to the four underlying cases. In addition, and not included in the above total, are minor fees incurred in individual cases: Rodriguez $374.00 Dilworth $368.50 Maxwell $115.50 $858.00 Petitioners also claim $2,530.00 (23 hours x $110/hour) for fees incurred in their Section 57.111 cases here. These costs and fees are reasonable, and amount to a total of $29,821.96. The calculation which leads to that total avoids duplication (charges for the same work computed more than once). The calculation also reflects that the three Petitioners joined together, two Petitioners each, in the four underlying cases, hired a single attorney and avoided duplication of effort by separate attorneys for each Petitioner.
The Issue The issue for consideration in this case is whether Respondents, Hugh H. Warnock and Terminix International Company, L.P. (Terminix), should be administratively disciplined by the Department Of Agriculture and Consumer Services, (Department), because of the matters alleged in the Notice to Impose Fine dated September 10, 1996.
Findings Of Fact At all times pertinent to the issues herein, the Department of Agriculture and Consumer Services was the state agency responsible for the licensing of pest control companies and applicators in Florida. Respondent, Terminix, was licensed as a pest control company and Respondent, Warnock, was licensed as a pest control applicator in Florida, and was employed by Terminix International Company, L.P. On January 22, 1996, Mr. Warnock conducted a termite inspection at property owned by Gordon C. Williamson located at 704 Court Street in Clearwater, at Mr. Williamson’s request. The property was a single story commercial building. Upon completion of his inspection, Mr. Warnock prepared and issued to the owner a wood-destroying organisms inspection report on which he certified he had inspected the premises, except for the attic which was inaccessible. Mr. Warnock noted that he found no visible evidence of wood destroying organisms, no evidence of visible damage and no visible evidence of previous treatment. He noted, however, that in January 1988, the premises previously had been treated for dry wood termites. As a matter of record, the January 1988 inspection and treatment was conducted by ARAB Pest control which, since that time, had been taken over by Terminix. Mr. Warnock qualified his inspection report by the comment, “This report is based on what was visible to me at the time of inspection.” The purpose of a wood destroying organism report is to note existing or present activity of wood destroying organisms, or damage done as a result of that activity. Most frequently, the inspection is done for buyers of property or those who are lenders to those who buy, though quite often owners of property have it done as a part of or in preparation for a treatment program to protect against the organisms. On the visit in issue, Mr. Warnock did the inspection by himself. Having seen vents in the lower portion of the outer wall on his way up to the property, he thought there might be an air space, not necessarily a crawl space, under the floor. After speaking with the owner, and telling him what was intended, Warnock started his inspection at the north end of the building where he found sheet rock against the walls and a dropped ceiling. This particular area was one where old furniture was stored. Mr. Warnock went from area to area in the building, and was able to do his inspection better in some places than in others because of the clutter inside. He also inspected around the outside of the building, after which he went to ask Mr. Williamson how he could get to the space beneath the floor in the center of the building. In response, according to Respondent, Mr. Williamson said he didn’t know of any access to that area and suggested Warnock ask someone else. With that, Warnock inquired of the other individual working in the building, who, Warnock asserts, also said he didn’t know of an access. Though Warnock claims he looked as best he could throughout those portions of the building accessible to him, because of sawdust and lumber on the floor, and the wood working machinery there, he could not see any access ports. It was subsequently determined that there are three crawl spaces located under the north part of the building which are separated by concrete footings. These spaces are accessible through access ports in the floor above them. Mr. Warnock definitively states that had he known of any access ports to the crawl space, he would have gone down into it to look for damage or organisms. It is so found. Mr. Warnock takes exception to the photographs introduced by the Department, taken by Mr. Caudill several months after his initial visit, contending they do not accurately reflect the conditions he encountered during his January 1996 visit. The major difference is that at that time, sawdust and machinery covered the floor access panels that appear unencumbered in the pictures, and they were not visible to him when he looked. Admittedly, he did not ask that any of the equipment or wood be moved or that the sawdust be swept away. Subsequent to Warnock’s inspection, Mr. Williamson called the Terminix office and advised he had discovered damage at the north end of the building. This damage was found by Warnock on a return visit to be behind the drywall previously mentioned, and was determined to have been caused by drywall as opposed to subterranean termites. The treatment done under the contract with ARAB in 1988 was for drywall termites, and there was no contract to treat for subterranean termites. On the second visit Warnock again asked Mr. Williamson about any access ports, and, according to Respondent, Williamson again denied knowing of any. A second inquiry of the other gentleman on the premises met with the same response again, but on this occasion, when he looked down at the floor, Warnock saw an access hole in the floor, and when asked directly about it, the man admitted he had cut it into the floor about two years previously. Warnock claims that when he asked if there were other holes, the man said there were not, but this individual did not appear or present testimony at hearing. The hole was no more than a series of cuts across the floor boards between the floor joists which, since there was no handle, were removed one at a time by being pried up. When Respondent and his assistant manager, who was present with him on this visit, got down into the crawl space, they found no evidence of infestation. At that time, the other access holes subsequently found to exist were not known to be there. Respondent steadfastly contends that none of the access holes were visible to him or pointed out to him on inquiry of the occupants at the time of his January 1996 visit. As such, he claims, they were not accessible to him at that time. It was only after the second visit my Mr. Warnock that on June 4, 1996, Williamson submitted his complaint to the Department. In response, on June 7, 1996, Todd Caudill, a pest control environmentalist with the Department, went to the site and re-inspected it. During his inspection, done some six months after Warnock’s initial visit, Mr. Caudill found termite tubes and other evidence of infestation in the crawl space under the building when he went into it. He took photographs of what he saw. Mr. Caudill is 5’11’ tall and weighs about 260 pounds. Notwithstanding, he had no trouble getting down into the crawl space through the existing access holes. Mr. Caudill could easily see the termite tubes, and in his opinion, they were there before Warnock’s January 1996 inspection of the property. He bases this opinion on the dryness of the tubes, the lack of active termites there, and the extent of the damage existing. He could look up into the rafter area because the ceiling had been removed due to renovation, but could see no termite activity there. Mr. Caudill returned to the property for a second visit on June 25, 1996, at which time he took additional photographs. This second series of pictures included the second crawl space, on the East side of the building, and several additional access holes in the floor of the building. Mr. Caudill indicates that when he asked about additional access holes, he was directed to a portion of the building where, when he went there, he was able easily to find the portals without having them pointed out to him. He could not see where any of the access portals had been covered by machinery nor did it appear to him that any of the machinery recently had been moved. The machinery was not so big that it would cause a major obstruction. It was on this second that Mr. Caudill procured an affidavit from Mr. Williamson which indicates that when Mr. Warnock was there for his inspection, the access ports were not obstructed and had not been obstructed for the six years the tenant has occupied the space. Mr. Williamson was not present at the hearing to testify in person nor was his absence explained by counsel for the Department. No explanation was given by the Department as to why Williamson could not be present or his testimony preserved by deposition. Therefore, it is found that Mr. Williamson’s affidavit is inadmissible as hearsay evidence and is not considered. In Mr. Caudill’s opinion, Warnock’s report of his inspection of the Williamson property in January 1996 is not a complete report since it did not cover the area of the crawl space. Based on his investigation of the situation, Mr. Caudill recommended a fine of $500.00, after which, on September 10, 1996, the Department issued its Notice of Intent on which the alleged violations found are listed. At the time Mr. Caudill did his investigation of Mr. Warnock’s inspection, he had been employed by the Department less than a year. He is not licensed as a pest control operator, but had been trained in the classroom and in on the job training with other operators, and had done three inspections on his own. According to Mr. Chandler, the Terminix branch manager who went with Mr. Warnock to the Williamson property in May 1996 as a result of Mr. Williamson’s call, termite damage was discovered in the walls of the building when the covering was removed for repairs and renovation. Williamson seemed to feel that this area had been missed by Respondent when he was there in January. In response, Mr. Chandler supported Respondent, indicating the damage, as it existed and where it was, could not have been found by Respondent’s inspection. He offered to put in place a new treatment plan. Whether Mr. Chandler also spoke with Mr. Williamson about access holes is questionable. On one hand, Chandler said he did speak with him about them, yet at another point in his testimony, he could not recall asking Williamson about access ports. When the ports were discovered and opened, and Chandler went down into the crawl space, he found no evidence of infestation in that crawl space. The only evidence of termite damage observed by Chandler did not extend up from the crawl space, but existed in a beam which rested on a concrete slab in the area opened for renovation. Dr. John Mangold has worked in the pest control industry for seventeen years and is familiar with the laws and rules relating to wood destroying organism reports. To his understanding, equipment on the floor of a building renders the area underneath it inaccessible, and an inspector cannot deface an area in order to do an inspection. The inspection report done in 1988 reflects that a crawl space was not inspected at that time because it was N/A. Counsel agree this means “not accessible.” The second report, done by Mr. Warnock, is consistent with the former in that it also reflects the crawl space was not inspected because it was inaccessible. Since the vents on the side of the exterior wall, near the ground give rise to a presumption there is a crawl space there, if the inspector cannot find access ports, he should note that fact in the report and indicate why he could not get to it. Though Respondent did not do this, it does not invalidate a finding that at the time of his inspection, the crawl space was not reasonably accessible to him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Agriculture and Consumer Services enter a final order dismissing its Notice of Intent to Impose Fine. DONE and ENTERED this 23rd day of May, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1997. COPIES FURNISHED: Linton B. Eason, Esquire Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 James M. Nicholas, Esquire 1815 South Patrick Drive Indian Harbour Beach, Florida 32937 Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level Ten Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level Ten Tallahassee, Florida 32399-0810
The Issue On or about November 18, 1992, the Petitioner, the Department of Agriculture and Consumer Services, filed a five-count Administrative Complaint against the Respondent, Anthony W. Rhea, Dept. of Agriculture Case No. 92-1427, alleging essentially that, on or about July 17, 1991, the Respondent made an inspection of a residential structure for wood-destroying organisms and failed to report visible and accessible evidence of wood-destroying organisms and damage caused by them, in violation of Section 482.226(1) and (2), Fla. Stat. (1991). The Administrative Complaint also alleges that the Respondent used an obsolete report form, in violation of F.A.C. Rule 10D-55.142(2)(c), 1/ and that the Respondent was negligent, in violation of Section 482.161(1)(f), Fla. Stat. (1991).
Findings Of Fact The Respondent, Anthony W. Rhea, is an employee of Ace Professional Pest Control, Inc. He is part of the company's inspections sales staff. He has been in the inspection business for 15 years and previously has not been the subject of disciplinary proceedings. On or about July 17, 1991, the Respondent inspected a residence at 501 Poinsettia Road, Belleair, Florida. His report of inspection was made on the May, 1983, HRS Form 1145. 2/ His report of inspection noted that the tub trap and remote attic areas were not inspected because they were inaccessible but that inspection of the rest of the house revealed no visible evidence of wood- destroying organisms, no live wood-destroying organisms, no visible damage, and no visible evidence of previous treatment. The Respondent did not recommend treatment. It is found that, at the time of the Respondent's inspection, there was no live infestation, but there was clearly visible and accessible evidence of: (1) subterranean termites, and the damage caused by them, in the garage above the master bedroom of the house and in the garage rafters; (2) drywood termites in the attic around an old chimney stack; and (3) previous treatment. 3/ It is found that the Respondent was negligent in the performance of the inspection and in the completion of the inspection report form. In part in reliance on the Respondent's inspection and report, the current owner bought the house at 501 Poinsettia Road. It has cost him between approximately $7,000 and $8,000 to repair the damage discovered in October, 1991. Liability insurance coverage maintained by the Respondent's employer has paid for the repairs. Neither the insurance company nor the Respondent's employer has agreed to pay for treating the house, or for the removal and replacement of plants and shrubs that will be killed during tent fumigation of the residence, in the event tent fumigation is required. These additional items will cost the homeowner approximately $4,000. The Respondent was not aware of the additional items referred to in the preceding paragraph until hearing the homeowner's testimony at final hearing. He thought the homeowner was satisfied by the insurance benefits that were paid. The HRS October, 1989, Form 1145 became effective October 25, 1990. Active enforcement began on January 1, 1991. The Respondent's company continued to use the obsolete form at least through July 17, 1991, because it incorrectly understood that, when HRS gave it permission to deplete its current stock of WDO inspection/treatment notices and contracts, it also was giving it permission to deplete its current stock of May, 1983, Form 1145s. The only difference between the May, 1983, and October, 1989, Form 1145 was that the earlier form specified that WDOs included "wood-boring beetles, wood-boring wasps and carpenter bees," while the later form instead specified only "oldhouse borers."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commissioner of Agriculture enter a final order (1) finding the Respondent guilty of violating Section 482.226(1) and (2), Fla. Stat. (1991), and F.A.C. Rule 5E-14.142(2)(c), and therefore Section 482.161(1)(a), Fla. Stat. (1991), and also guilty of violating Section 482.161(1)(f), Fla. Stat. (1991); and (2) imposing a $500 administrative fine on the Respondent. RECOMMENDED this 26th day of May, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 26th day of May, 1993.
The Issue Whether or not an Administrative fine may be imposed upon proof of allegations contained in the Administrative Complaint dated June 6, 1986, wherein Respondent is charged with violations of Section 482.226(1), (2)(f) and (g), and 482.161(1)(a),(e) and/or (f) Florida Statutes. Petitioner presented the oral testimony of Roger Gagnon and Frederick Hassut, Jr., and had 3 exhibits admitted in evidence (P-1, P-2, and P-4). Respondent presented her own oral testimony and that of Susan Rickenbach and had admitted 1 exhibit (R-1). At the close of Petitioner's case in chief, and at the conclusion of her own case. Respondent moved to dismiss for failure to prove the allegations of the Administrative Complaint. Ruling on same was reserved for disposition in this recommended order. No transcript was filed. Both parties have filed post-hearing proposals. To the extent they contain proposed findings of fact, these proposals are ruled on pursuant to Section 120.59(2), F.S., in the appendix hereto. Respondent's post-hearing Motion for Dismissal is ruled on in the course of this recommended order.
Findings Of Fact On October 16, 1985, Diane M. Jellen, representing Terminix International, Inc., Cocoa, inspected the property consisting of 12 units which is located at 141 Bluff Terrace, Melbourne, Florida. The inspection was for purposes connected with a real estate transfer. Ms. Jellen issued a report of findings on a Wood-Destroying Organisms Inspection Report (HRS Form 1145, May 1983) dated October 16, 1985. At the time of making the inspection, Ms. Jellen felt herself to be sexually harassed by an individual representing the seller who obstructed her entry into certain units, and she did not complete the inspection of each and every unit for this reason. The top portion of the report issued by Ms. Jellen indicates that Ms. Jellen is the "inspector" and states: "Specific structures inspected: 12 units; Structures on property NOT inspected: none; Areas of structures NOT inspected: none." Essentially the report goes on to indicate that no wood destroying organisms existed. However, at the bottom on the COMMENTS line, Respondent wrote "not all apts accessable" and "low crawl." She made the latter comments in reliance on instructions from her Terminex supervisor that this was sufficient. 1/ Thereafter, partly in reliance on Ms. Jellan's report, Mr. Roger Gagnon purchased the 12 units previously inspected. On May 14, 1986 Mr. Roger Gagnon, owner of the property, filed a written complaint alleging that the inspection performed by Ms. Jellen on October 16, 1985, had failed to detect evidence of wood destroying organisms which were present within the structure at the time of the October 16, 1985 inspection, and which wood destroying organisms Mr. Gagnon had subsequently discovered. On May 15, 1986 Frederick Hassut, Jr., Entomologist-Inspector for the State of Florida Department of Health and Rehabilitative Services performed a wood-destroying organism inspection of the premises which revealed wood-decaying fungus damage present in wood braces and overhang located above apartments No. 3. and No. 4; in several wood members of the stairway and railing adjacent to apartments No. 3 and No. 4; in several floor joists located within the storage room of building No. 2; in the baseboard located in the bathroom of apartment No. 10; and in several wood members of the stairway adjacent to apartment No. Further, he found drywood termite fecal pellets and damage in the east window frame located in the living room of apartment No. 3. Mr. Hassut determined, within his expert education, training and experience, that the old wood decay, fungus damage and the dry-wood termite evidence and damage had to have been present and visible on October 16, 1985, when Ms. Jellen issued the inspection report indicating an infestation. Terminex International subsequently repaired all losses incurred by Roger Gagnon at its own expense. Prior to the time of the inspection, October 16, 1985, Respondent had filed an application to become a pest control employee identification cardholder. Petitioner did not affirmatively show that the card was issued prior to the October 16, 1985 inspection, however Ms. Jellan's application, admitted in evidence as P-4, specifies the agency policy that: "The effective date of this ID Card when issued will be the date of receipt of post- mark if mailed, of this application." The application bears two receipt dates: "10-3-85" and "October 07, 1985," both of which pre-date the inspection at issue. The parties agree that an identification card was subsequently issued. Accordingly, Respondent is found to have been an identification cardholder as contemplated by Chapter 482 F.S. 2/ and therefore subject to Petitioner's jurisdiction at all times relevant. Respondent's unrebutted testimony that she was hired by Terminex International as an office salesperson and was insufficiently trained by that employer to do wood-destroying organism inspections is accepted but deemed irrelevant and immaterial. In mitigation, it is noted that Respondent has, at her own initiative, recently completed 5 days training in pest control with an eye to continued competent employment in this field.
Recommendation That DHRS issue a final order of private reprimand to Respondent for negligent performance of a pest control inspection. DONE and ORDERED this 24th day of October 1986, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 24th day of October 1986.
