The Issue Whether Respondent committed the violations alleged in the Administrative Complaint dated April 17, 2009, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner is the state agency responsible for inspecting and regulating public food service establishments in Florida. Respondent is a permanent food service establishment holding License No. 5808714. Respondent's business address is 11400 University Boulevard, Orlando, Florida 32817. On June 2, 2008, Will Goris, an employee of Petitioner, conducted a routine inspection of Respondent's premises. A Food Service Inspection Report was prepared on site which noted a number of violations. This Food Service Inspection Report was received and signed by Camilo Gondran on the day of the inspection. Respondent was notified in writing on the inspection report that violations must be corrected by the next unannounced inspection. On October 15, 2008, Nyahin Bandele, an employee of Petitioner, conducted a routine inspection of Respondent's premises. A Food Service Inspection Report was prepared on site which noted a number of violations. This Food Service Inspection Report was received and signed by Tim Smoak on the day of the inspection. Respondent was notified verbally and in writing on the inspection report that violations must be corrected by December 15, 2008. Ms. Bandele conducted a follow-up inspection on December 30, 2008. She discovered that some of the violations noted during the October 15, 2008, inspection had been corrected, but that some had not. She issued a Call Back Inspection Report and delivered it to Tim Smoak on the day of the inspection. She verbally advised and the report stated that the "remaining violations must be corrected by the next inspection to avoid an Administrative Complaint." On March 27, 2009, Ms. Bandele conducted a routine inspection on Respondent's premises. She prepared an inspection report and delivered it to David Swanson. It noted violations and recommended that an Administrative Complaint be filed. A critical violation is one that, if not corrected, is more likely than other violations to cause an imminent food-borne illness, contamination, or environmental hazard. A non-critical violation is one that relates to good retail practices, such as general cleanliness, organization, and maintenance of the facility. On October 15, 2008, and March 27, 2009, the inspection reports noted that the required consumer advisory for raw, undercooked, or not otherwise processed foods, was not provided. This is a violation of Rule 3-603.11 of the Food Code and a critical violation. Respondent presented credible evidence that the menu was changed in late August 2009 that corrected this violation. On October 15, 2008, and March 27, 2009, the inspection reports noted that there were small flying insects in the bar area. This is a violation of Rule 6-501.11 of the Food Code, and a critical violation. Respondent presented credible evidence that following the confirmed presence of fruit flies during the October 15, 2008, inspection, a pest control organization was retained by Respondent and he presented a service report that indicates "no activity of flying insects" on February 20, 2009. On October 15, 2008, December 30, 2008, and March 27, 2009, there was a build-up of slime inside the ice machines. In addition, a build-up of accumulated food debris was noted in the reach-in coolers. These are critical violations of Rule 4-602.11(E) of the Food Code. No credible evidence was offered to refute these violations. On October 15, 2008, December 30, 2008, and March 27, 2009, boxes of food were found to be on the floor in the walk-in cooler. This is a critical violation of Rule 3-305.11 of the Food Code. No credible evidence was offered to refute these violations. On October 15, 2008, December 30, 2008, and March 27, 2009, there was an excessive build-up of dirt and dust observed on hood filters. This is a violation of Rule 4-601.11(C) of the Food Code, but is a non-critical violation. Respondents presented evidence that the hoods had been professionally cleaned on April 13 and October 27, 2008. This does not preclude the violations noted. On October 15, 2008, December 30, 2008, and March 27, 2009, the lights over the kitchen cookline were missing shields. This is a non-critical violation of Rule 6-202.11 of the Food Code. No credible evidence was offered to refute these violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order finding that: Respondent, TD's Sports Bar and Grill, committed the critical violations of Rules 3-305.11, 4-601.11(C), and 4-602.11(E) of the Food Code, as alleged in the Administrative Complaint, and be administratively fined $1,500.00 for these violations; Respondent committed the non-critical violation of Rule 6-202.11 of the Food Code and be administratively fined $250.00 for this violation; and The allegations that Respondent violated Rules 3-603.11 and 6-501.11 of the Food Code, be dismissed. DONE AND ENTERED this 16th day of April, 2010, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 16th day of April, 2010. COPIES FURNISHED: William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 David Swanson Timothy Smoak TD's Sports Bar and Grill c/o Legend Realty, LLC 2838 University Acres Drive Orlando, Florida 32817
The Issue Did Respondent violate Section 475.25(1)(b), Florida Statutes, through fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in a business transaction?
Findings Of Fact Petitioner is responsible for the licensing and regulation of persons who practice real estate in Florida. Authority for the licensure and regulation is set forth in Chapters 20, 120, 455, and 475, Florida Statutes, and associated provisions of the Florida Administrative Code. Respondent has been licensed as a Florida real estate broker at all times relevant to the inquiry. Respondent holds license no. 0237202 as broker for Shad and Shad Realty, Inc., located at 9955 Lem Turner Road, Jacksonville, Florida 32208. At all times relevant to this case, Respondent served as a property manager for the Veteran's Administration in relation to property held by that governmental body. The property management function which Respondent performed for the Veteran's Administration was as a management broker. Property at 3128 Plum Street, Jacksonville, Florida, was one of the properties managed by Respondent for the Veteran's Administration. In the interest of selling the property Respondent invoiced the Veteran's Administration and charged a management fee for his services in relation to that parcel to be paid by the Veteran's Administration. Respondent's management involved the correction of problems with the home at that address. Among the fee services provided by Respondent was the arrangement to have the house treated to rid the premises of fleas, the installation of signs, installing a lock, and certain other repairs. In these circumstances, Petitioner would have other persons responsible for performing the work or would perform the work himself. A related responsibility which Respondent performed for the Veteran's Administration in reference to the Plum Street property was to order a wood-destroying organism inspection to be performed by a licensed firm, J. F. Yearty and Sons, Inc., of Jacksonville, Florida, and for that firm to report the results of its findings in writing. That inspection was performed on June 7, 1995, and a report was prepared. The report which Respondent was provided and read, pointed out visible evidence of wood-destroying organisms observed to the extent, "old signs of powder post beetles scattered throughout the substructure." The report referred to live wood-destroying organisms observed as subterranean termites in the wall studs, sills, and bracing of the right side of the home. The report also stated the following: Water rot to the siding and trim scattered around the entire house. Heavy subterranean termites damage to the wall studs, sills, and bracing on the right side. Water stains to the kitchen and bathroom subflooring. Water stains to the flooring on the porch left front corner of the house. Respondent sent the inspection report to the Veteran's Administration. Realizing that the report referred to active termites, Respondent ordered termite treatment for the home. In doing so he understood that there were problems with termites in the wall studs, sills, and bracing. In his experience Respondent further understood that the extent of the damage that had been found at the home could be major. Respondent obtained a termite bond following the treatment. Respondent knew that there was a contract pending for the purchase of the Plum Street property. The buyer was John Harold Bamping. Mr. Bamping was represented by Shirley Jean Irons as a real estate sales agent for Lester W. Jenkins Real Estate, Inc., Lester Jenkins Broker, whose business address is 5147 San Juan Avenue, Jacksonville, Florida 32210. In preparation for the closing on the Plum Street property, Ms. Irons went to Respondent's office, who was acting as the seller's representative for the Veteran's Administration in this context. Ms. Irons obtained a property receipt, the termite bond involving the treatment of the Plum Street property and the keys to the property. The bond constituted evidence that the property had been treated for termites but did not explain the degree of the problem for which treatment was necessary. At the time these items were picked up, Ms. Irons asked Respondent's wife for the termite inspection report related to the property. The wife told Ms. Irons that reports were not given out, only bonds. Ms. Irons told the wife that Ms. Irons needed the termite inspection report. The wife summoned Respondent from another part of the Respondent's office. Respondent then told Ms. Irons that he did not furnish the termite inspection report, properly referred to as wood-destroying organism inspection report. Respondent told Ms. Irons that the bond for termite treatment would be the only item provided to Ms. Irons in relation to the upcoming real estate closing. At hearing, Respondent indicated that his practice is not to provide a copy of the termite inspection report unless it is specifically asked for and then that Respondent does not always give the report to the party requesting the report "because that's VA property. That belongs to the VA." The VA refers to Veteran's Administration. Ms. Irons made John Bamping and Audrey Bamping his wife aware of the fact that Respondent was not providing a copy of the wood-destroying organism inspection report for purposes of the closing. This meant that the only evidence of the circumstances associated with the termite problem remained the termite bond. On July 11, 1995, the transaction closed for purchase of the Plum Street property, utilizing forms prepared by the Veteran's Administration. Ms. Irons and the Bampings attended the closing. Subsequent to the closing the Bampings became aware of the wood-destroying organism damage at the Plum Street house. The problems discovered were not evident when Ms. Bamping first saw the home before it was purchased. After the Bampings discovered the extent of the problem, they obtained a copy of the wood-destroying inspection report from Yearty and Sons which reflected the exact nature of the problems with the dwelling. Attempts were made to try and resolve the issue concerning the damage to the home. Eventually, the Bampings found it necessary to hire an attorney to assist them in addressing the damage to the home caused by the wood-destroying organisms. A suit was filed against the Veteran's Administration and damages were recovered in the amount of $2,000, and the Veteran's Administration was released in full from all claims for the wood-destroying organism damage. The Bampings also authorized their lawyer to file a complaint with Petitioner concerning Respondent's failure to disclose the wood-destroying organism inspection report.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Section 475.25(1)(b), Florida Statutes, and imposing a 30-day suspension and a fine of $1,000. DONE AND ENTERED this 9th day of April, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 9th day of April, 1999. COPIES FURNISHED: Laura McCarthy, Esquire Division of Real Estate Department of Business and Professional Regulation Suite N308 400 West Robinson Street Orlando, Florida 32801-1772 Vernon B. Shad Shad and Shad Realty, Inc. Post Office Box 9750 Jacksonville, Florida 32208 Herbert S. Fecker, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
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.
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
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.
